Citation Nr: 1031069 Decision Date: 08/18/10 Archive Date: 08/24/10 DOCKET NO. 04-24 971 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Pittsburgh, Pennsylvania THE ISSUES 1. Entitlement to service connection for bilateral hearing loss. 2. Entitlement to service connection for colitis. 3. Entitlement to service connection for a lump on the left rib cage. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD R. Kessel, Counsel INTRODUCTION The Veteran had active military service from March 1970 to November 1971. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a February 2003 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Pittsburgh, Pennsylvania. In August 2005, a hearing was held before the undersigned. In March 2006, the Board remanded the case to the agency of original jurisdiction (AOJ) for additional development. The issue of entitlement to service connection for colitis is addressed in the REMAND portion of the decision below and is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDINGS OF FACT 1. The Veteran does not have hearing loss that is attributable to his active military service. 2. The Veteran does not have a lump on the left rib cage that is attributable to his active military service. CONCLUSIONS OF LAW 1. The Veteran does not have hearing loss that is the result of disease or injury incurred in or aggravated during active military service. 38 U.S.C.A. §§ 1101, 1110, 1112, 1116, 5107 (West 2002 & Supp. 2010); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304, 3.307, 3.309 (2009). 2. The Veteran does not have a lump on the left rib cage that is the result of disease or injury incurred in or aggravated during active military service. 38 U.S.C.A. §§ 1110, 1116, 5107 (West 2002 & Supp. 2010); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304, 3.307, 3.309 (2009). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Board has thoroughly reviewed all the evidence in the Veteran's claims folder. Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, all of the evidence submitted by the appellant or on his behalf. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (the Board must review the entire record, but does not have to discuss each piece of evidence). The analysis below focuses on the most salient and relevant evidence and on what this evidence shows, or fails to show, on the claims of service connection for hearing loss and a lump on the left rib cage. The Veteran must not assume that the Board has overlooked pieces of evidence that are not explicitly discussed herein. See Timberlake v. Gober, 14 Vet. App. 122 (2000) (the law requires only that the Board address its reasons for rejecting evidence favorable to the appellant). The Board must assess the credibility and weight of all evidence, including the medical evidence, to determine its probative value, accounting for evidence which it finds to be persuasive or unpersuasive, and providing reasons for rejecting any evidence favorable to the claimant. Equal weight is not accorded to each piece of evidence contained in the record; every item of evidence does not have the same probative value. When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the appellant prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case, the claim is denied. See Gilbert v. Derwinski, 1 Vet. App. 49 (1990). I. Service Connection Service connection may be established for disability resulting from disease or injury incurred in or aggravated by active military service. 38 U.S.C.A. § 1110 (West 2002); 38 C.F.R. §§ 3.303, 3.304 (2009). In addition, certain chronic diseases, such as sensorineural hearing loss, may be presumed to have been incurred during service if the disease becomes manifest to a compensable degree within one year of separation from qualifying military service. 38 U.S.C.A. §§ 1101, 1112, 1113 (West 2002 & Supp. 2010); 38 C.F.R. §§ 3.307, 3.309 (2009). If a veteran was exposed to an herbicide agent during active military, naval, or air service, certain diseases are presumed to be service connected if the requirements of 38 C.F.R. § 3.307(a)(6) are met, even though there is no record of the disease during service, provided that the rebuttable presumption provisions of 38 C.F.R. § 3.307(d) are also satisfied. 38 U.S.C.A. § 1116(a) (West 2002 & Supp. 2010); 38 C.F.R. § 3.309(e). (In this context, the term "herbicide agent" is defined as a chemical in an herbicide used in support of the United States and allied military operations in the Republic of Vietnam during the period beginning on January 9, 1962 and ending on May 7, 1975, specifically: 2,4-D; 2,4,5-T and its contaminant TCDD; cacodylic acid; and picloram. 38 C.F.R. § 3.307(a)(6)(i).) A veteran who, during active military, naval, or air service, served in the Republic of Vietnam during the period beginning on January 9, 1962 and ending on May 7, 1975, is presumed to have been exposed during such service to an herbicide agent, unless there is affirmative evidence to the contrary. 38 C.F.R. § 3.307(a)(6)(iii). "Service in the Republic of Vietnam" includes service in the waters offshore and service in other locations if the conditions of service involved duty or visitation in the Republic of Vietnam. Id. Regardless of whether a claimed disability is recognized under 38 U.S.C.A. § 1116, pertaining to herbicide agent exposure presumptive diseases, a veteran is not precluded from presenting evidence that a claimed disability was due to or the result of herbicide exposure. Combee v. Brown, 34 F.3d 1039, 1044-45 (Fed. Cir. 1994). The Veteran's service personnel records document that he served in the Republic of Vietnam from August 1970 to August 1971. Thus, he is presumed to have been exposed to herbicide agents. See 38 C.F.R. § 3.307(a)(6)(iii). Hearing Loss The Veteran asserts that he has bilateral hearing loss as a result of his active military service. At a hearing before the Board, the Veteran testified that he was exposed to loud gunfire noise, primarily during basic training at the firing range at Fort Benning, Georgia, and in the performance of his duties as an armor crewman. He maintains that any current hearing loss is related to the in-service noise exposure. Thus, the Veteran contends that service connection is warranted for bilateral hearing loss. For purposes of applying the laws administered by VA, impaired hearing will be considered to be a disability when the auditory threshold in any of the frequencies 500, 1000, 2000, 3000, or 4000 Hertz is 40 decibels or greater; or when the auditory thresholds for at least three of the frequencies 500, 1000, 2000, 3000, or 4000 Hertz are 26 decibels or greater; or when speech recognition scores using the Maryland CNC Test are less than 94 percent. 38 C.F.R. § 3.385 (2009). A review of the medical evidence of record reveals that the Veteran has a history of hearing loss since at least 1982. Pursuant to the Board's March 2006 remand, the Veteran underwent VA audiological examination in May 2009. Audiometric testing results confirmed that the Veteran has impaired hearing for VA purposes under 38 C.F.R. § 3.385. Thus, the current disability element of the service connection claim has been established. The Veteran's service records document that he was an armor crewman with service in the Republic of Vietnam from August 1970 to August 1971. In view of the Veteran's seemingly credible testimony regarding in-service noise exposure that is consistent with his circumstances of military service, the Board finds that he likely was exposed to loud gunfire noise during active military service. Even so, the Veteran's service treatment records are negative for complaints of, treatment for, or a diagnosis of hearing loss. Both his July 1969 entrance examination and October 1971 separation examination showed normal hearing and a normal ears examination. Post-service medical records pertaining to hearing loss are primarily dated from the 1980s. The records were obtained in connection with a previous VA pension claim, as well as from records obtained from the Social Security Administration (SSA) pursuant to the Board's March 2006 remand. The earliest clinical diagnosis of hearing loss was made by Dr. A.O. in June 1982. He provided a diagnosis of conductive hearing loss for the right ear and mixed hearing loss for the left ear. In conjunction with the Veteran's SSA claim, Dr. A.O. confirmed that the Veteran had hearing loss in both ears in February 1983. In an April 1983 letter, Dr. R.R. stated that the Veteran had a history of hearing deficit in the left ear and also made note that the Veteran was in a motor vehicle accident in June 1982. In May 1983, the Veteran underwent VA audiological examination. He was diagnosed with mixed (conductive and sensorineural) bilateral hearing impairment. A June 1983 VA general physical examination contained a history reported by the Veteran of a June 1982 motor vehicle accident whereby he suffered a concussion after repeated blows to the head during the accident. The accident caused an injury to the left inner ear leading to hearing loss. The Veteran was diagnosed with residuals of a head injury including hearing loss. Dr. A.O. commented on the June 1982 motor vehicle accident in a June 1983 letter to the Veteran's attorney. Dr. A.O. stated that the Veteran was first seen by him during a hospitalization at St. John's General Hospital following the June 1982 accident. The admitting diagnosis was traumatic concussion and the Veteran complained of hearing loss in the left ear. Notably, Dr. A.O. stated that the Veteran denied any previous hearing loss, ear injury, ear infection, or ear surgery prior to the motor vehicle accident. Audiometric testing in 1982 showed hearing loss in both ears with worse hearing in the left. Dr. A.O. gave the opinion that the Veteran's problems were possibly related to the motor vehicle accident. In a September 1984 letter, Dr. L.M. stated that the Veteran had serious problems with hearing with no further comment. An October 1984 VA audiological examination report continued to document mixed bilateral hearing loss as a diagnosis. A November 1984 VA general physical examination included a diagnosis of decreased hearing by history. Dr. L.M., in a May 1985 letter, determined that the Veteran was totally disabled from multiple disabilities, including loss of hearing in the left ear. Dr. L.M. stated that the injury was the result of accidents that occurred in June 1982 and January 1983. In connection with the Veteran's SSA claim, Dr. S.B. authored a June 1985 letter that, in part, addressed the Veteran's hearing loss. Dr. S.B. noted that the Veteran had complained of hearing loss since he was involved in the motor vehicle accident in June 1982. Significantly, Dr. S.B. also noted that the Veteran denied having any previous similar symptoms. Dr. S.B. stated that the Veteran may have had a hearing test during military service approximately fifteen years ago that would be useful in evaluating the current situation. Dr. S.B. found, on the basis of his examination, that the Veteran had primarily conductive hearing loss which may have been due to otosclerosis. In May 1986, Dr. A.O. again stated that the Veteran had left ear hearing loss. Dr. J.S. authored a letter in January 1995 in connection with the Veteran's SSA claim. Dr. J.S. noted that the Veteran presented with a history of decreased hearing. The Veteran related the onset of the hearing difficulties to his time in military service. The Veteran stated that he was exposed to tank-type noises. Audiometric testing by Dr. J.S. revealed bilateral mixed hearing loss. Dr. J.S. stated that the findings were consistent with a diagnosis of otosclerosis. A November 1995 letter from Dr. F.S., the Veteran's treating physician, indicated that Dr. F.S. first treated the Veteran in June 1982 after the motor vehicle accident and that he complained about hearing problems. In connection with the Veteran's SSA claim, Dr. D.C. authored an April 2000 letter that, in part, addressed the Veteran's hearing loss. Dr. D.C. noted the Veteran's history of hearing loss and a motor vehicle accident. Audiometric testing revealed bilateral conductive hearing loss. Dr. D.C. provided a diagnosis of otosclerosis with conductive hearing loss. Significantly, Dr. D.C. stated that the Veteran's hearing loss did not appear to be related to his motor vehicle accident. As noted previously, the Veteran underwent VA audiological examination in May 2009 that showed hearing impairment for VA purposes. The diagnosis was mixed hearing loss and a report of significant military-related noise exposure was noted. The Veteran was also examined by a VA physician, Dr. Y.R., for an ear examination. The Veteran reported a history of noise exposure and decreased hearing during military training that included gunfire from armored tanks. He also reported a post-service history of being involved in a motor vehicle accident when he was hit by a truck and his vehicle hit a building. Dr. Y.R. reviewed the evidence in the claims file, including the service treatment records. Dr. Y.R. stated that the hearing tests that were conducted at entrance and separation had normal hearing thresholds. Additionally, Dr. Y.R. stated that, in the separation examination report, the Veteran noted that he was in good health and normal, and that he checked "no" under the review of systems for ear, nose, and throat trouble, dizziness, and for hearing loss. Dr. Y.R. also accurately related the post- service medical history pertaining to hearing loss. After examining the Veteran and reviewing the May 2009 audiometric testing results, Dr. Y.R. stated that the Veteran's hearing loss pattern is more likely than not due to a middle ear ossicular problem, i.e., otosclerosis. In addressing the etiology and onset of the Veteran's hearing loss, Dr. Y.R. concluded that the Veteran has a moderately severe mixed hearing loss that is more likely than not secondary to otosclerosis. Dr. Y.R. based the conclusion on the hearing loss pattern with a significant conductive component and a Carhart's notch. Given the fact that there was no evidence of hearing loss on the separation examination, Dr. Y.R. concluded that the Veteran's current hearing loss disability had its onset after the conclusion of the Veteran's military service. Dr. Y.R. further concluded that the Veteran's in-service noise exposure did not contribute in any way to his current hearing loss disability. Dr. Y.R. did not endorse the theory of in-service onset as he noted that the Veteran denied having hearing loss at separation, there were normal hearing thresholds at separation, and it was not until the accident in 1982 that there was anything in the medical record concerning hearing loss. Dr. Y.R. pointed to Dr. A.O.'s and Dr. S.B.'s notes that indicated that the Veteran dated his hearing loss troubles to the motor vehicle accident in 1982. In both of those evaluations, Dr. Y.R. noted that the Veteran had no prior history of hearing loss. Lastly, Dr. Y.R. reasoned that the Veteran's audiometric pattern is more likely than not due to otosclerosis and is highly unlikely to be associated with noise- induced hearing loss. In consideration of the evidence of record, the Board finds that the Veteran does not have hearing loss that is attributable to his active military service. Dr. Y.R.'s May 2009 opinion is the most probative and persuasive piece of evidence on the matter. Dr. Y.R. is the only medical professional who was able to review the evidence in the claims file, examine the Veteran, and provide an opinion regarding the relationship between the Veteran's hearing loss and his military service. With respect to the onset of hearing loss, Dr. Y.R.'s opinion that the Veteran's hearing loss had its onset subsequent to military service has support in the record. The first documented instance of hearing loss was in June 1982, and the Veteran's service treatment records were negative for references to hearing loss and in-service testing showed normal hearing. The only evidence showing an earlier onset is the Veteran's statements whereby he has stated that the onset was during military service. However, the Board does not find these specific statements to be credible in light of the contemporary evidence from 1982 that reflects that the Veteran denied any previous hearing loss. The more recent statements in support of the claim are inconsistent with the earlier statements when the Veteran was seeking medical treatment. See, e.g., Caluza v. Brown, 7 Vet. App. 498, 506 (1995) (the credibility of a witness may be impeached by a showing of inconsistent statements and inconsistency with other evidence). Dr. Y.R.'s May 2009 opinion as to the etiology of the Veteran's hearing loss is also persuasive as it has support in the record and he provided a complete rationale for the opinion. The medical professionals who first treated the Veteran after the June 1982 motor vehicle accident appeared to link the Veteran's hearing loss, at least in the left ear, to the accident. Subsequently, Drs. S.B, J.S., and D.C. each attributed the Veteran's hearing loss to otosclerosis. Dr. Y.R. agreed with those assessments and indicated that audiometric testing was consistent with otosclerosis rather than the possibility of noise-induced hearing loss from military service. The Veteran's representative contends that normal hearing loss does not preclude a finding of service connection for hearing loss if a relationship between the current disability and in- service exposure to loud noise can be sufficiently demonstrated by the medical evidence. See Hensley v. Brown, 5 Vet. App. 155, 159 (1993). Nevertheless, the medical opinion evidence on the matter has not demonstrated such a relationship; rather, that evidence has attributed the hearing loss to otosclerosis having an onset after service. The only express opinion linking the Veteran's current hearing loss to in-service noise exposure is the Veteran's opinion, which is not probative as there is no indication that he possesses the medical expertise necessary to provide such an opinion. See Espiritu v. Derwinski, 2 Vet. App. 492, 494 (1992). Consequently, because the Board finds that the Veteran does not have hearing loss that is attributable to his active military service, service connection is not warranted for hearing loss on a direct basis. See 38 U.S.C.A. § 1110; 38 C.F.R. §§ 3.303, 3.304. Additionally, the Board notes that there is no objective evidence that sensorineural hearing loss manifested itself to a compensable degree within one year of the Veteran's separation from military service. Although the Veteran has been shown to have primarily conductive hearing loss, a sensorineural hearing loss component has been identified. Sensorineural hearing loss was identified no earlier than June 1982, which was over ten years after the Veteran's separation from military service. Thus, service connection is not warranted for hearing loss on a presumptive basis concerning chronic diseases. See 38 U.S.C.A. §§ 1101, 1112; 38 C.F.R. §§ 3.307, 3.309. The Board also notes that the AOJ considered the claim under the theory of presumptive service connection as a result of exposure to herbicide agents. In June 2004, the Veteran indicated that he was not claiming hearing loss as a result of herbicide exposure. Additionally, hearing loss is not among the listed diseases that are associated with exposure to herbicides and there is no indication in the record that the Veteran's hearing loss is associated with his presumed exposure to herbicide agents resulting from his service in Vietnam. Thus, service connection is also not warranted for hearing loss on a presumptive or direct basis concerning exposure to herbicide agents. See 38 U.S.C.A. § 1116; 38 C.F.R. § 3.309(e); Combee, 34 F.3d at 1044-45. Lump on the Left Rib Cage The Veteran states that he has a lump on his left rib cage. At the Veteran's hearing, the Veteran's representative indicated that the Veteran did not know whether the lump was related to military service or to some post-service cause. Previously, the Veteran asserted that the lump was a result of exposure to Agent Orange. The Veteran's service treatment records are negative for any reference to a lump on the left rib cage or an injury, disease, or event that could plausibly be related to such a disability. Post-service treatment records show that the Veteran was seen for a complaint of left-sided discomfort in April 2004 by his treating physician Dr. F.S. Initially, Dr. F.S. diagnosed costochondritis and ordered a CT of the chest. The chest CT was normal and demonstrated no mass or significant abnormalities. In June 2004, Dr. F.S. noted that the left-sided chest discomfort had resolved and did not list any related diagnosis. There is no reference to a lump in the area of the left rib cage in medical records obtained in connection with the claim. In consideration of the evidence of record, the Board finds that the Veteran does not have a lump on the left rib cage that is attributable to his active military service. In addition to no mass being found on the April 2004 chest CT, the Veteran has not identified any injury, disease, or event (other than Agent Orange exposure) that occurred during military to which the claimed disability could possibly be related. Accordingly, the Board concludes that service connection is not warranted for a lump on the left rib cage on a direct basis. See 38 U.S.C.A. § 1110; 38 C.F.R. §§ 3.303, 3.304. In relation to this claim, no disease associated with veterans who were exposed to herbicide agents is shown in the record. Additionally, the Veteran has not identified any evidence that supports a direct relationship to his exposure to herbicide agents. The record contains no such evidence. Thus, service connection is also not warranted for a lump on the left rib cage on a presumptive or direct basis concerning exposure to herbicide agents. See 38 U.S.C.A. § 1116; 38 C.F.R. § 3.309(e); Combee, 34 F.3d at 1044-45. Conclusion For all the foregoing reasons, the Board finds that the claims of service connection for hearing loss and a lump on the left rib cage must be denied. In reaching these conclusions, the Board has considered the applicability of the benefit-of-the-doubt doctrine. However, as the preponderance of the evidence is against the Veteran's claims of service connection, that doctrine is not applicable. See 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; Ortiz v. Principi, 274 F.3d 1361, 1365 (Fed. Cir. 2001). II. The Veterans Claims Assistance Act of 2000 (VCAA) The VCAA describes VA's duties to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2010); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2009). The notice requirements were met for the hearing loss and rib cage lump claims by letters sent to the Veteran in January 2003 and March 2006. Those letters advised the Veteran of the information necessary to substantiate his claims, and of his and VA's respective obligations for obtaining specified different types of evidence. See Quartuccio v. Principi, 16 Vet. App. 183 (2002); 38 C.F.R. § 3.159(b). The March 2006 letter, which was sent pursuant to the Board's March 2006 remand, also notified the Veteran of the general criteria for assigning disability ratings and effective dates. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). Although the complete notice was not provided until after the RO initially adjudicated the Veteran's claims, the claims were properly re-adjudicated in July 2009, which followed the adequate notice. See Prickett v. Nicholson, 20 Vet. App. 370, 376-77 (2006). (The Board notes that 38 C.F.R. § 3.159 was revised, effective May 30, 2008, when the claims were in remand status. See 73 Fed. Reg. 23353-56 (Apr. 30, 2008). The amendments apply to applications for benefits pending before VA on, or filed after, May 30, 2008. The amendments, among other things, removed the notice provision requiring VA to request the veteran to provide any evidence in the veteran's possession that pertains to the claim. See 38 C.F.R. § 3.159(b)(1).) The Veteran has not alleged that VA failed to comply with the notice requirements of the VCAA, and he was afforded a meaningful opportunity to participate effectively in the processing of his claims, and has in fact provided additional arguments at every stage. See Mayfield v. Nicholson, 19 Vet. App. 103 (2005). The Board also concludes VA's duty to assist has been satisfied. The Veteran's service treatment and personnel records have been obtained and associated with the file. Private medical records identified by the Veteran and records from SSA associated with his disability benefits have been obtained, to the extent possible. Pursuant to the Board's March 2006 remand, the AMC requested and obtained records from Dr. F.S. and SSA. Pursuant to the Board's remand, the AMC also requested records from the VA Medical Center (VAMC) in Pittsburgh, Pennsylvania, dated from 1971 to 1989. The Pittsburgh VAMC responded that there are no records for the Veteran for that time period. Additionally, the AMC was unable to obtain records directly from St. John's Hospital (also known as Allegheny General Hospital) and Mercy Providence Hospital (also known as Divine Providence Hospital) on account of incomplete release authorizations. The remand instructions were nevertheless substantially complied with because records from those facilities were included in the SSA record request. The Veteran was sent multiple letters informing him of AMC's process in requesting these records. The duty to assist also includes providing a medical examination or obtaining a medical opinion when such is necessary to make a decision on the claim, as defined by law. With regard to service connection claims, the United States Court of Appeals for Veterans Claims held in the case of McLendon v. Nicholson, 20 Vet. App. 79 (2006), that an examination is required when (1) there is evidence of a current disability, (2) evidence establishing an "in- service event, injury or disease," or a disease manifested in accordance with presumptive service connection regulations occurred which would support incurrence or aggravation, (3) an indication that the current disability may be related to the in-service event, and (4) insufficient evidence to decide the case. The Board first notes that a medical examination and opinion was obtained in connection with the hearing loss claim pursuant to the Board's March 2006 remand. That examination report contains sufficient evidence by which to decide the claim regarding the origin and etiology of the Veteran's hearing loss. See Barr v. Nicholson, 21 Vet. App. 303, 311-12 (2007) (holding that once VA undertakes the effort to provide an examination, it must provide an adequate one). The Board concludes that an examination or opinion is not necessary for the claim of service connection for a lump on the left rib cage. As noted previously, the evidence does not establish an in-service injury, disease, or event for this case. In fact, the Veteran indicated that he does not know whether his claimed disability is related to military service. For this reason, the Board finds a VA examination is not required in for this claim and would serve no useful purpose. See McLendon, 20 Vet. App. 79. Thus, the Board finds that VA has satisfied the duty to assist the Veteran for these two claims. In the circumstances of these claims, additional efforts to assist or notify him in accordance with the VCAA would serve no useful purpose. See Soyini v. Derwinski, 1 Vet. App. 540, 546 (1991) (strict adherence to requirements in the law does not dictate an unquestioning, blind adherence in the face of overwhelming evidence in support of the result in a particular case; such adherence would result in unnecessarily imposing additional burdens on VA with no benefit flowing to the veteran); Sabonis v. Brown, 6 Vet. App. 426, 430 (1994) (remands which would only result in unnecessarily imposing additional burdens on VA with no benefit flowing to the veteran are to be avoided). VA has satisfied its duties to inform and assist the Veteran at every stage of this case. Therefore, the Board may proceed to consider the merits of the claims as outlined above. ORDER Service connection for hearing loss is denied. Service connection for a lump on the left rib cage is denied. REMAND The Board finds that additional development is necessary in regards to the claim of service connection for colitis in the form of a VA medical examination and opinion. See 38 U.S.C.A. § 5103A(d)(2); 38 C.F.R. § 3.159(c)(4)(i); McLendon, 20 Vet. App. at 81. The Veteran asserts that he has colitis as a result of his active military service. Specifically, he maintains that any current colitis is related to in-service exposure to Agent Orange or food poisoning that occurred when he was stationed in Vietnam. Thus, the Veteran contends that service connection is warranted for colitis. In March 2006, the Board remanded the claim, in part, to obtain medical records that may show treatment for colitis. At the time of the remand, there was no medical evidence of the current existence of colitis. Medical records obtained from SSA on remand include a record from a Dr. T.C., dated in January 1983, indicating that the Veteran had a history of treatment for colitis many years ago. An April 1983 report from a Dr. R.R. also reflects a medical history positive for colitis. At a February 1995 SSA disability examination, a Dr. A.R. diagnosed the Veteran with colitis. Dr. A.R. stated that he was uncertain as to the etiology of the colitis and that the Veteran appeared to be asymptomatic at the present time. On remand, records were also obtained from Dr. F.S., the Veteran's treating physician. In December 1987, Dr. F.S. noted that the Veteran had been having frequent bouts of diarrhea and that he had some history of colitis. Dr. F.S. provided a diagnosis of colitis at that time. Although there is no recorded diagnosis of colitis during the pendency of the claim, the Veteran has submitted statements indicating that he continues to experience diarrhea. The Veteran should therefore be scheduled for a VA examination of the digestive system in order to determine whether he has colitis or any other disorder manifested by diarrhea. The Veteran's service treatment records do not document a specific instance of food poisoning. However, an April 1971 entry (when the Veteran was stationed in Vietnam) reflects complaints of stomach cramps and nausea. There is no further information concerning the complaints other than the Veteran was prescribed Donnatal. No diagnosis was provided. None of the clinicians who noted the Veteran's history of colitis commented on the onset or origin of the colitis other than Dr. A.R. who was uncertain as to the etiology. Accordingly, in addition to an examination, the prospective VA examiner should provide an opinion as to whether the Veteran has colitis (or other disorder manifested by diarrhea) that had its onset during or is otherwise related to his active military service, including the April 1971 instance of stomach cramps. Although colitis is not a disease presumed to be associated with exposure to herbicide agents under 38 C.F.R. § 3.309(e), the prospective examiner should also provide a specific opinion as to whether the Veteran has colitis (or other disorder manifested by diarrhea) that is related to his presumed in-service exposure to herbicide agents. See Combee, 34 F.3d at 1044-45. Accordingly, this issue is REMANDED for the following actions: 1. Schedule the Veteran for a VA examination of the digestive system to ascertain whether the Veteran has colitis, or any other disorder manifested by diarrhea, related to his active military service. The claims folder should be provided to the examiner for review of pertinent documents therein in connection with the examination, including the service treatment records (particularly the April 1971 entry concerning stomach cramps) and the private treatment records contained in the SSA records. The examination report should reflect that such a review was conducted. In providing a nexus opinion, it would be helpful if the examiner would use the following language, as may be appropriate: "more likely than not" (meaning likelihood greater than 50%), "at least as likely as not" (meaning likelihood of at least 50%), or "less likely than not" or "unlikely" (meaning that there is a less than 50% likelihood). The term "at least as likely as not" does not mean "within the realm of medical possibility." Rather, it means that the weight of medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of that conclusion as it is to find against it. The examiner should provide an additional opinion that specifically addresses whether the Veteran has colitis, or any other disorder manifested by diarrhea, related to his presumed in-service exposure to herbicide agents (Agent Orange). The examiner should provide a complete rationale for any opinion provided. 2. After undertaking any other development deemed appropriate, re-adjudicate the claim of service connection for colitis. If the benefit sought is not granted, furnish the Veteran and his representative with a supplemental statement of the case (SSOC) and afford them an opportunity to respond before the record is returned to the Board for further review. The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2010). ______________________________________________ MICHELLE L. KANE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs