Citation Nr: 1012004	
Decision Date: 03/31/10    Archive Date: 04/07/10

DOCKET NO.  08-12 225	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Roanoke, 
Virginia


THE ISSUES

1.  Entitlement to service connection for pulmonary edema.  

2.  Entitlement to service connection for a neck disorder.

3.  Entitlement to service connection for a right knee 
disorder.

4.  Entitlement to service connection for a right shoulder 
disorder.

5.  Entitlement to service connection for a left knee 
disorder, including as secondary to a right knee disorder.

6.  Entitlement to service connection for a sinus disorder.

7.  Entitlement to service connection for a left shoulder 
disorder, including as secondary to a right shoulder 
disorder.

8.  Entitlement to service connection for a psychiatric 
disability to include posttraumatic stress disorder (PTSD).

9.  Entitlement to service connection for sexual dysfunction, 
including as secondary to PTSD.

10.  Entitlement to service connection for tinnitus.

11.  Entitlement to service connection for a skin disorder, 
including as secondary to toxic gas exposure.

12.  Entitlement to service connection for dizziness/vertigo.

13.  Entitlement to service connection for colon polyps, 
including as secondary to toxic gas exposure.

14.  Entitlement to service connection for asthma, including 
as secondary to toxic gas exposure.


REPRESENTATION

Veteran represented by:	John S. Berry, Attorney


ATTORNEY FOR THE BOARD

L. J. N. Driever, Counsel


INTRODUCTION

The Veteran had active service from July 1993 to February 
1998.  

These claims come before the Board of Veterans' Appeals 
(Board) on appeal of May 2007 and July 2008 rating decisions 
of the Department of Veterans Affairs (VA) Regional Offices 
(ROs) in St. Petersburg, Florida and Roanoke, Virginia.    

The Board addresses the claims of entitlement to service 
connection for pulmonary edema, a neck disorder, a right knee 
disorder, a right shoulder disorder, a left knee disorder, 
including as secondary to a right knee disorder, a sinus 
disorder, a left shoulder disorder, including as secondary to 
a right shoulder disorder, sexual dysfunction, including as 
secondary to PTSD, tinnitus, a skin disorder, including as 
secondary to toxic gas exposure, dizziness/vertigo, and 
asthma, including as secondary to toxic gas exposure, and a 
psychiatric disability to include PTSD, in the REMAND section 
of this decision, below, and REMANDS these claims to the RO 
via the Appeals Management Center (AMC) in Washington, D.C.


FINDING OF FACT

The Veteran does not currently have colon polyps related to a 
disease or injury in service.


CONCLUSION OF LAW

Colon polyps were not incurred in or aggravated by service.  
38 U.S.C.A. § 1110 (West 2002); 38 C.F.R. § 3.303 (2009).


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

I.  VA's Duties to Notify and Assist

Upon receipt and prior to consideration of most applications 
for VA benefits, VA is tasked with satisfying certain 
procedural requirements outlined in the Veterans Claims 
Assistance Act of 2000 (VCAA) and its implementing 
regulations.  38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 
5107, 5126 (West 2002 & Supp. 2009); 38 C.F.R. §§ 3.102, 
3.156(a), 3.159, 3.326(a) (2009).  

A.  Duty to Notify

Proper VCAA notice must inform the claimant of any 
information and evidence not of record (1) that is necessary 
to substantiate the claim; (2) that VA will seek to provide; 
and (3) that the claimant is expected to provide.  
38 U.S.C.A. § 5103(a) (West 2002); C.F.R. § 3.159(b)(1) 
(2005).  VCAA notice should be provided to a claimant before 
the initial unfavorable agency of original jurisdiction (AOJ) 
decision on a claim.  Pelegrini v. Principi, 18 Vet. App. 112 
(2004).

For claims pending before VA on or after May 30, 2008, 38 
C.F.R. 3.159 was recently amended to eliminate the 
requirement that VA request that a claimant submit any 
evidence in his or her possession that might substantiate the 
claim.  73 Fed. Reg. 23,353 (Apr. 30, 2008).  

Notice under the VCAA must be provided a claimant prior to an 
initial unfavorable decision by the agency of original 
jurisdiction.  Pelegrini v. Principi (Pelegrini II), 18 Vet. 
App. 112, 119-20 (2004).  

The aforementioned notice requirements apply to all five 
elements of a service connection claim, including: (1) 
veteran status; (2) existence of disability; (3) a connection 
between service and disability; (4) degree of disability; and 
(5) effective date of disability.  Dingess/Hartman v. 
Nicholson, 19 Vet. App. 473, 484 (2006).

In this case, the RO provided the Veteran with VCAA notice on 
his claims by letter dated in September 2007, and January 
2008 before initially deciding the claim in the July 2008 
rating decision.  The timing of such notice reflects 
compliance with the requirements of the law as found by the 
Court in Pelegrini II.  

In the letters, the RO notified the Veteran of the evidence 
needed to substantiate the claim, identified the type of 
evidence that would do so, notified him of what evidence VA 
would obtain and what evidence he was responsible for 
obtaining.  The September 20007 letter also told him to 
submit any pertinent evidence in his possession.  

The Veteran has substantiated his status as a Veteran and was 
provided with the remaining elements of Dingess notice in the 
September 2007 letter.  The letter specifically notified him 
of the rating and effective date elements of the claim.

B.  Duty to Assist

The RO made reasonable efforts to identify and obtain 
relevant records in support of the Veteran's claims.  38 
U.S.C.A. § 5103A(a), (b), (c) (West 2002).  Specifically, the 
RO secured and associated with the claims file all evidence 
the Veteran identified as being pertinent to his claims, 
including service treatment and personnel records and post-
service treatment records.  While he has reported pertinent 
treatment beginning in 2005, he has not specifically 
identified the location of this treatment.  VA has obtained 
pertinent records identified by him, but these do not show 
the reported treatment.  VA is only obligated to obtain 
records that are adequately identified.  38 U.S.C.A. § 5103A.

The RO did not afford the Veteran a VA examination or obtain 
an opinion in support of the claim being decided.  Under the 
VCAA, VA is obliged to provide an examination when the record 
contains competent evidence that the claimant has a current 
disability or signs and symptoms of a current disability, the 
record indicates that the disability or signs and symptoms of 
disability may be associated with active service; and the 
record does not contain sufficient information to make a 
decision on the claim.  38 U.S.C.A. § 5103A(d) (West 2002); 
McLendon v. Nicholson, 20 Vet. App. 79 (2006).  The evidence 
of a link between current disability and service must be 
competent.  Wells v. Principi, 326 F.3d 1381 (Fed. Cir. 
2003).  

The types of evidence that 'indicate' that a current 
disability 'may be associated' with military service include, 
but are not limited to, medical evidence that suggests a 
nexus but is too equivocal or lacking in specificity to 
support a decision on the merits, or credible evidence of 
continuity of symptomatology such as pain or other symptoms 
capable of lay observation.  McLendon v. Nicholson, 20 Vet. 
App. 79, 83 (2006).  The threshold for finding a link between 
current disability and service is low.  Locklear v. 
Nicholson, 20 Vet. App. 410 (2006); McLendon v. Nicholson, at 
83.

The Veteran has reported that his symptoms began in 2005, and 
that polyps were subsequently identified.  He has not 
reported a continuity of symptomatology dating to service and 
there is no competent medical opinion linking polyps to 
service.  He has attributed his disability to in-service 
chemical exposure, but such an opinion would require medical 
or scientific expertise and there is no evidence that he 
possesses such expertise.  Hence, there is no competent 
evidence that any current disability may be related to 
service.  

II.  Analysis 

A.  Colon Polyps

The Veteran claims entitlement to service connection for 
colon polyps.  According to written statements he submitted 
during the course of this appeal, he experienced rectal 
bleeding in 2005 and he was subsequently found to have colon 
polyps.  He maintains that the polyps were the result of in-
service exposure to hydrogen sulphide (a toxic chemical).  He 
also reports that the colon polyps were cancerous, which then 
necessitated their removal and now necessitate follow-up 
colonoscopies.

Service connection will be granted if the evidence 
demonstrates that a current disability resulted from an 
injury or disease incurred in or aggravated by active 
military service.  38 U.S.C.A. § 1110, 1131; 38 C.F.R. 
§ 3.303(a).  

Establishing service connection generally requires (1) 
medical evidence of a current disability; (2) medical or, in 
certain circumstances, lay evidence of in-service incurrence 
or aggravation of a disease or injury; and (3) medical 
evidence of a nexus between the claimed in-service disease or 
injury and the present disability.  Shedden v. Principi, 381 
F.3d 1163, 1167 (Fed. Cir. 2004); see Caluza v. Brown, 7 Vet. 
App. 498, 506 (1995), aff'd per curiam, 78 F.3d 604 
(Fed.Cir.1996) (table); see also Shedden v. Principi, 381 
F.3d 1163, 1167 (Fed. Cir. 2004); Hickson v. West, 12 Vet. 
App. 247, 253 (1999); 38 C.F.R. § 3.303. 

Under 38 C.F.R. § 3.303(b), an alternative method of 
establishing the second and third Shedden/Caluza element is 
through a demonstration of continuity of symptomatology.  
Barr v. Nicholson, 21 Vet. App. 303 (2007); see Savage 10 
Vet. App. 488, 495-97 (1997); see also Clyburn v. West, 12 
Vet. App. 296, 302 (1999).  Continuity of symptomatology may 
be established if a claimant can demonstrate (1) that a 
condition was "noted" during service; (2) evidence of post-
service continuity of the same symptomatology; and (3) 
medical or, in certain circumstances, lay evidence of a nexus 
between the present disability and the post-service 
symptomatology.  Savage, 10 Vet. App. at 495-96; see Hickson, 
12 Vet. App. at 253 (lay evidence of in-service incurrence 
sufficient in some circumstances for purposes of establishing 
service connection); 38 C.F.R. § 3.303(b).

Lay persons are generally not competent to opine as to 
medical etiology or render medical opinions.  Barr v. 
Nicholson; see Grover v. West, 12 Vet. App. 109, 112 (1999); 
Espiritu v. Derwinski, 2 Vet. App. 492, 494 (1992).  Lay 
testimony is competent, however, to establish the presence of 
observable symptomatology and "may provide sufficient 
support for a claim of service connection."  Layno v. Brown, 
6 Vet. App. 465, 469 (1994); see also Falzone v. Brown, 8 
Vet. App. 398, 405 (1995) (lay person competent to testify to 
pain and visible flatness of his feet); Espiritu, 2 Vet. App. 
at 494-95 (lay person may provide eyewitness account of 
medical symptoms).  

In relevant part, 38 U.S.C.A. 1154(a) (West 2002) requires 
that VA give "due consideration" to "all pertinent medical 
and lay evidence" in evaluating a claim for disability or 
death benefits.  Davidson v. Shinseki, 581 F.3d 1313 (Fed. 
Cir. 2009).  

The Federal Circuit has held that "[l]ay evidence can be 
competent and sufficient to establish a diagnosis of a 
condition when (1) a layperson is competent to identify the 
medical condition, (2) the layperson is reporting a 
contemporaneous medical diagnosis, or (3) lay testimony 
describing symptoms at the time supports a later diagnosis by 
a medical professional." Jandreau v. Nicholson, 492 F.3d 
1372, 1377 (Fed. Cir. 2007); see also Buchanan v. Nicholson, 
451 F.3d 1331, 1337 (Fed. Cir. 2006) ("[T]he Board cannot 
determine that lay evidence lacks credibility merely because 
it is unaccompanied by contemporaneous medical evidence").

"Symptoms, not treatment, are the essence of any evidence of 
continuity of symptomatology."  Savage, 10 Vet. App. at 496 
(citing Wilson v. Derwinski, 2 Vet. App. 16, 19 (1991).  Once 
evidence is determined to be competent, the Board must 
determine whether such evidence is also credible.  See Layno, 
supra (distinguishing between competency ("a legal concept 
determining whether testimony may be heard and considered") 
and credibility ("a factual determination going to the 
probative value of the evidence to be made after the evidence 
has been admitted").

Service connection may be granted for any disease diagnosed 
after discharge, when all the evidence, including that 
pertinent to service, establishes that the disease was 
incurred in service.  38 C.F.R. § 3.303(d).  

If a chronic disease, such as malignant tumors, is shown to a 
compensable degree within one year of service, the disease is 
presumed to have been incurred in service.  38 U.S.C.A. 
§ 1112(a); 38 C.F.R. § 3.307, 3.309.

If a chronic disease is shown in service, subsequent 
manifestations of the same disease, however remote, are to be 
service connected, unless clearly attributable to 
intercurrent causes.  For the showing of chronic disease in 
service there is required a combination of manifestations 
sufficient to identify the disease entity and sufficient 
observation to establish chronicity at the time, as 
distinguished from merely isolated findings or diagnosis 
including the word "chronic."  Continuity of symptomatology 
is required only where the condition noted during service is 
not, in fact, shown to be chronic or when the diagnosis of 
chronicity may be legitimately questioned.  When the fact of 
chronicity in service is not adequately supported then a 
showing of continuity after discharge is required to support 
the claim.  38 C.F.R. § 3.303(b),(d) (2009).  

Service connection may be granted for any disease diagnosed 
after discharge when all of the evidence, including that 
pertinent to service, establishes that the disease was 
incurred in service.  38 C.F.R. § 3.303(d) (2009).

In order to prevail on the issue of service connection on the 
merits, there must be medical evidence of a current 
disability, see Rabideau v. Derwinski, 2 Vet. App. 141, 143 
(1992); medical or, in certain circumstances, lay evidence of 
in-service incurrence or aggravation of a disease or injury; 
and medical evidence of a nexus between the claimed in-
service disease or injury and the present disease or injury. 
See Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd, 78 
F.3d 604 (Fed. Cir. 1996).

Except as otherwise provided by law, a claimant has the 
responsibility to present and support a claim for benefits 
under laws administered by the Secretary.  The Secretary 
shall consider all information and lay and medical evidence 
of record in a case before the Secretary with respect to 
benefits under laws administered by the Secretary.  When 
there is an approximate balance of positive and negative 
evidence regarding any issue material to the determination of 
a matter, the Secretary shall give the benefit of the doubt 
to the claimant.  38 U.S.C.A. § 5107 (West 2002); see also 
Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990).  

The evidence of record does not support the Veteran's 
assertion that he currently has colon polyps, secondary to 
chemical exposure or otherwise.  During service, no medical 
professional noted such a condition and the Veteran did not 
report blood in his stools or any other complaint that would 
have necessitated testing and resulted in a finding of colon 
polyps.  

Following discharge, in 2004, he reported bloody stools, but 
thereafter, particularly since filing a claim for service 
connection for colon polyps, no medical professional recorded 
such a condition.  This is so despite being seen on numerous 
occasions for other medical conditions. 

To prevail in a claim for service connection, a claimant must 
submit competent evidence establishing that he has a current 
disability resulting from service.  In this case, the 
Veteran's assertions constitute the only evidence diagnosing 
colon polyps.  Such assertions may be considered competent 
only when: (1) the layperson is competent to identify a 
medical condition, (2) the layperson is reporting a 
contemporaneous medical diagnosis, or (3) the lay testimony 
describing symptoms at the time supports a later diagnosis by 
a medical professional.  Jandreau v. Nicholson, 492 F.3d 
1372, 1377 (Fed. Cir. 2007) (providing an example that a 
layperson would be competent to identify a "simple" 
condition like a broken leg, but would not be competent to 
identify a form of cancer); see also Buchanan v. Nicholson, 
451 F.3d 1331, 1337 (Fed. Cir. 2006) (holding that the Board 
may not determine that lay evidence lacks credibility based 
merely on the absence of contemporaneous medical evidence).  
     
In this case, the Veteran is competent to report rectal 
bleeding and that he was subsequently told that the 
disability was diagnosed as colon polyps.  His statement 
provides competent evidence of a current disability.  He has 
not reported any symptomatology in service or in the period 
between his discharge from service and 2005.  There is no 
other evidence of this disability in service or in the years 
immediately following service.  

The Veteran contends that the current disability is the 
result of chemical exposure in service.  This opinion, 
however, would require medical or scientific expertise.  A 
lay person would not be expected to be able to say that his 
colon polyps were the result of an in-service chemical 
exposure as opposed to the myriad of other potential causes 
of colon polyps.  The Veteran's opinion, therefore, does not 
constitute competent evidence of a nexus between his current 
disability and service.  See 38 C.F.R. § 3.159(a)(1) (2009) 
(defining competent medical evidence).

The record does not contain a competent medical opinion, 
including treatise evidence, linking the Veteran's colon 
polyps to in-service chemical exposure or any other disease 
or injury in service.  Because there is no competent lay or 
medical evidence linking colon polyps to service, the weight 
of the evidence is against the claim, reasonable doubt does 
not arise, and the claim is denied.  




							(CONTINUED ON NEXT PAGE)
ORDER

Service connection for colon polyps, including as secondary 
to toxic gas exposure, is denied.


REMAND

Under 38 U.S.C.A. § 5103A, VA's duty to assist includes 
providing a claimant a medical examination or obtaining a 
medical opinion when an examination or opinion is necessary 
to make a decision on a claim, and there is competent 
evidence of record of a current disability or persistent or 
recurrent symptoms of disability, and evidence that the 
disability or symptoms may be associated with active service.  
In this case, as the Veteran's representative contends in a 
written statement dated January 2008, examinations are 
necessary for the Board to decide the claims being remanded.  
In addition, service and post-service treatment records 
include competent evidence that the Veteran has the claimed 
disabilities and lay and medical evidence indicating that 
they may be due to his active service.  To date, however, VA 
has not obtained medical opinions addressing the possibility 
of such a link.

The Veteran's service treatment records show that, during 
service, the Veteran received treatment, in some cases 
frequent, for respiratory/pulmonary, genitourinary, neck, 
right knee, right shoulder, and sinus complaints and 
dizziness.  The Veteran contends that he now has pulmonary 
edema, asthma, sinusitis, neck, right knee and right shoulder 
disorders, sexual dysfunction and dizziness and vertigo due 
to these in-service complaints.  Allegedly, these conditions 
or symptoms thereof manifested continuously from the time he 
was discharged from service.  Post-service medical records 
confirm that the Veteran has recently been treated for 
respiratory/pulmonary, neck, knee and shoulder complaints and 
the Veteran is competent to state that he is unable to 
function sexually and has continued to experience dizziness 
since discharge.  

The Veteran also alleges that, since discharge, he has 
developed left knee and shoulder disorders secondary to his 
right knee and shoulder disorders.  Again, according to the 
medical evidence of record, the Veteran received treatment 
for the latter disorders during service and, since discharge, 
has received treatment for knee and shoulder complaints.  He 
alleges that the pain caused by the latter disorders 
manifested continuously since discharge.  

The Veteran also alleges that some of the claimed 
disabilities, including a skin disorder and asthma, developed 
secondary to in-service toxic gas exposure.  As well he 
alleges that his tinnitus developed secondary to in-service 
noise exposure while working as a repairmen on loud machines 
in engine rooms.  According to his service personnel and 
treatment records, during service, he was exposed to 
chemicals, toxic fumes and ionizing radiation, suffered a 
chemical inhalation injury that resulted in pneumonitis and 
worked in the capacity alleged.  According to post-service 
treatment records, he has recently received treatment for 
various skin and respiratory/pulmonary complaints and 
tinnitus.    

The Veteran has reported traumatic experiences that included 
exposure to radiation (documented in the service records) and 
his representative has argued that the Veteran's exposure to 
chemicals was also traumatic.  The Veteran has reported that 
since these exposures he has experienced increased anxiety.  
The record does not show psychiatric treatment or a diagnosis 
and it is unclear whether the Veteran has a current 
psychiatric disability related to service.  An examination is 
needed to determine whether he has such a disability.

Based on the foregoing, the Board REMANDS this case for the 
following action:

1.  Afford the Veteran a VA 
respiratory/pulmonary examination in 
support of the claims for service 
connection for pulmonary edema, sinusitis 
and asthma.  Provide the examiner with 
the Veteran's claims file for review and 
ask the examiner to confirm in his 
written report that he conducted such a 
review. Following a comprehensive 
evaluation, during which all indicated 
studies are conducted, the examiner 
should:

a) indicate whether the Veteran 
has sinusitis, asthma, and/or 
pulmonary edema or a disability 
manifested thereby;

b) for each disability shown to 
exist, opine whether it is at 
least as likely as not related 
to the Veteran's active 
service, including documented 
in-service 
respiratory/pulmonary 
complaints, diagnoses of 
sinusitis and pneumonitis, and 
exposure to chemicals, ionizing 
radiation and toxic fumes;  

c) provide a rationale, with 
specific references to the 
record, and the Veteran's 
reports for the opinions 
expressed; and

d) if an opinion cannot be 
expressed without resort to 
speculation, discuss why such 
is the case.

2.  Afford the Veteran a VA orthopedic 
examination in support of the claims for 
service connection for neck, shoulder and 
knee disorders.  Provide the examiner 
with the Veteran's claims file for review 
and ask the examiner to confirm in his 
written report that he conducted such a 
review.  Following a comprehensive 
evaluation, during which all indicated 
studies are conducted, the examiner 
should:

a) diagnose all neck, shoulder 
and knee disabilities shown to 
exist;

b) opine whether each 
disability is at least as 
likely as not related to the 
Veteran's active service, 
including documented in-service 
neck, shoulder and knee 
complaints;  

c) specifically indicate 
whether any left knee disorder 
is proximately due to any right 
knee disorder; 

d) specifically indicate 
whether any left shoulder 
disorder is proximately due to 
any right shoulder disorder; 

e) provide a rationale, with 
specific references to the 
record, and the Veteran's 
reports, for the opinions 
expressed; and

f) if an opinion cannot be 
expressed without resort to 
speculation, discuss why such 
is the case.

3.  Afford the Veteran a VA examination 
in support of the claim for service 
connection for sexual dysfunction.  
Provide the examiner with the Veteran's 
claims file for review and ask the 
examiner to confirm in his written report 
that he conducted such a review. 
Following a comprehensive evaluation, 
during which all indicated studies are 
conducted, the examiner should:

a) indicate whether the Veteran 
has sexual dysfunction and, if 
so, whether it is at least as 
likely as not related to the 
Veteran's active service, 
including documented in-service 
genitourinary complaints;  

b) provide a rationale, with 
specific references to the 
record, and the Veteran's 
reports, for the opinion 
expressed; and

c) if the opinion cannot be 
expressed without resort to 
speculation, discuss why such 
is the case.

4.  Afford the Veteran a VA examination 
in support of the claim for service 
connection for tinnitus.  Provide the 
examiner with the Veteran's claims file 
for review and ask the examiner to 
confirm in his written report that he 
conducted such a review. Following a 
comprehensive evaluation, during which 
all indicated studies are conducted, the 
examiner should:

a) record in detail the 
Veteran's in-service and post-
service history of noise 
exposure, including 
occupational and recreational;

b) indicate whether the Veteran 
has tinnitus and, if so, 
whether it is at least as 
likely as not related to the 
Veteran's active service, 
including alleged in-service 
noise exposure;  

c) provide a rationale, with 
specific references to the 
record, and the Veteran's 
reports, for the opinion 
expressed; and

d) if the opinion cannot be 
expressed without resort to 
speculation, discuss why such 
is the case.

5.  Afford the Veteran a VA examination 
in support of the claim for service 
connection for a skin disorder.  Provide 
the examiner with the Veteran's claims 
file for review and ask the examiner to 
confirm in his written report that he 
conducted such a review. Following a 
comprehensive evaluation, during which 
all indicated studies are conducted, the 
examiner should:

a) diagnose any skin disability 
shown to exist; 

b) opine whether the disability 
is at least as likely as not 
related to the Veteran's active 
service, including documented 
in-service exposure to 
chemicals, ionizing radiation 
and toxic fumes;  

c) provide a rationale, with 
specific references to the 
record, and the Veteran's 
reports, for the opinion 
expressed; and

d) if the opinion cannot be 
expressed without resort to 
speculation, discuss why such 
is the case.

6.  Afford the Veteran a VA examination 
in support of the claim for service 
connection for dizziness and vertigo.  
Provide the examiner with the Veteran's 
claims file for review and ask the 
examiner to confirm in his written report 
that he conducted such a review. 
Following a comprehensive evaluation, 
during which all indicated studies are 
conducted, the examiner should:

a) indicate whether the Veteran 
has a disability manifested by 
dizziness and/or vertigo; 

b) opine whether such 
disability is at least as 
likely as not related to the 
Veteran's active service, 
including documented in-service 
dizziness;  

c) if not, indicate whether the 
Veteran's dizziness and/or 
vertigo is part of any cervical 
spine disorder as suggested in 
the service treatment records; 

d) provide a rationale, with 
specific references to the 
record, and the Veteran's 
reports, for the opinions 
expressed; and

e) if an opinion cannot be 
expressed without resort to 
speculation, discuss why such 
is the case.

7.  Afford the Veteran a VA psychiatric 
examination to determine whether he has a 
psychiatric disability related to service.  
The examiner should review the relevant 
contents of the claims folder and note 
such review in the examination report.

The examiner should provide an opinion as 
to whether the Veteran has a current 
psychiatric disability, and if so, whether 
the disability at least as likely as not 
(50 percent probability or more) is the 
result of a disease or injury in service, 
including radiation or chemical exposure, 
or otherwise had its onset in service.

The examiner should provide rationale, 
with specific references to the record, 
and the Veteran's reports, for the 
opinion expressed; and if the opinion 
cannot be expressed without resort to 
speculation, discuss why such is the 
case.

If any benefit sought on appeal remains 
denied, the agency of original 
jurisdiction should issue a supplemental 
statement of the case.  

Thereafter, subject to current appellate procedure, return 
this case to the Board for further consideration, if in 
order.  By this REMAND, the Board intimates no opinion as to 
the ultimate disposition of the appeal.  The Veteran need 
take no action unless he receives further notice.  He does, 
however, have the right to submit additional evidence and 
argument on the remanded claims.  Kutscherousky v. West, 12 
Vet. App. 369, 372 (1999).

The law requires that these claims be afforded expeditious 
treatment.  See The Veterans' Benefits Improvements Act of 
1994, Pub. L. No. 103-446, § 302, 108 Stat. 4645, 4658 
(1994), 38 U.S.C.A. § 5101 (West 2002) (Historical and 
Statutory Notes) (providing that all claims that are remanded 
by the Board or by the United States Court of Appeals for 
Veterans Claims (Court) for additional development or other 
appropriate action must be handled expeditiously); see also 
VBA's Adjudication Procedure Manual, M21-1, Part IV, paras. 
8.44-8.45 and 38.02-38.03 
(directing the ROs to provide expeditious handling of all 
cases that have been remanded by the Board and the Court).



__________________________________________
Mark D. Hindin
Veterans Law Judge, Board of Veterans' Appeals



 Department of Veterans Affairs