Citation Nr: 1237687 Decision Date: 11/02/12 Archive Date: 11/09/12 DOCKET NO. 06-09 600 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Los Angeles, California THE ISSUES 1. Entitlement to service connection for tinnitus. 2. Entitlement to service connection for bilateral hearing loss. 3. Entitlement to service connection for a bilateral knee disorder. 4. Entitlement to service connection for a bilateral wrist disorder, to include carpal tunnel syndrome. 5. Entitlement to service connection for a bilateral ankle disorder, also claimed as Achilles tendon problem and arthritis. 6. Entitlement to service connection for sinusitis. 7. Entitlement to service connection for degenerative disc disease of the lumbar spine, claimed as pain, atrophy, and weakness of the lower extremities. 8. Entitlement to service connection for a thoracic spine disorder. 9. Entitlement to service connection for a bilateral foot disorder, claimed as stress fracture of the left foot and frostbite residuals. 10. Entitlement to service connection for allergic rhinitis. 11. Entitlement to service connection for a skin rash. 12. Entitlement to service connection for an acquired psychiatric disorder, to include dysthymic disorder and depression, and to include as secondary to physical disabilities. 13. Entitlement to service connection for a right elbow disorder, to include arthritis. 14. Entitlement to an initial rating in excess of 10 percent for posttraumatic headaches, residuals of a head injury. 15. Entitlement to an initial rating in excess of 10 percent for degenerative disc disease of the cervical spine. 16. Entitlement to an initial rating in excess of 10 percent for right shoulder partial tear of acromial surface of supraspinatus tendon. 17. Entitlement to an initial rating in excess of 10 percent for left shoulder partial thickness of rotator cuff with supraspinatus tendon and chronic tendonitis. 18. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU). REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD A. Bordewyk, Associate Counsel INTRODUCTION The Veteran served on active duty from January 1989 to July 1991. These matters come before the Board of Veterans' Appeals (Board) on appeal from an August 2003 rating decision by the Los Angeles, California, Regional Office (RO) of the Department of Veterans Affairs (VA). In a March 2004 rating decision, the RO assigned a 100 percent temporary total rating under the provisions of 38 C.F.R. § 4.30 based on the need for convalescence following a right shoulder rotator cuff arthroscopic debridement and decompression, effective August 27, 2003. Thereafter, a schedular 10 percent rating was restored from December 1, 2003. The Court has held that when a claimant raises a claim, he is seeking service connection for symptoms regardless of how those symptoms are diagnosed or labeled. Clemons v. Shinseki, 23 Vet. App. 1 (2009) (claim for benefits based on PTSD encompassed benefits based on other psychiatric disabilities). Therefore, the Board construes the Veteran's claim of entitlement to service connection for depression as encompassing any acquired psychiatric disability, to include dysthymic disorder and depression, regardless of the precise diagnosis. In September 2005, the Veteran had an informal conference over the telephone with a Decision Review Officer (DRO) at the RO. A report from that conference is of record. The claim was remanded by the Board in January 2010 so that the Veteran could be provided a hearing. In August 2012, he provided testimony at a hearing before the undersigned at the RO. A transcript is of record. During the course of the appeal, the Veteran relocated to Alabama in 2006 and the claims file was transferred to the custody of the RO in Montgomery, Alabama. He has since returned to California and the Los Angeles RO now maintains jurisdiction. The Board notes that, in addition to the paper claims file, there is a Virtual VA electronic claims file associated with the Veteran's claim. A review of the documents in the electronic file reveals that they are either duplicative of the evidence in the paper claims file or are irrelevant to the issue on appeal. The issues of entitlement to service connection for bilateral hearing loss, a bilateral knee disorder, a bilateral wrist disorder, a bilateral ankle disorder, sinusitis, degenerative disc disease of the lumbar spine, a thoracic spine disorder, a bilateral foot disorder, allergic rhinitis, a skin rash, an acquired psychiatric disorder, and a right elbow disorder, entitlement to higher initial ratings for posttraumatic headaches, residuals of a head injury, degenerative disc disease of the cervical spine, right shoulder partial tear of acromial surface of supraspinatus tendon, and left shoulder partial thickness of rotator cuff with supraspinatus tendon and chronic tendonitis, and entitlement to TDIU are addressed in the REMAND portion of the decision below and are REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDING OF FACT Tinnitus was incurred as a result of acoustic trauma during service and has continued since. CONCLUSION OF LAW The criteria for service connection for tinnitus have been met. 38 U.S.C.A. § 1131 (West 2002); 38 C.F.R. § 3.303 (2011). REASONS AND BASES FOR FINDING AND CONCLUSION The Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (Nov. 9, 2000) (codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2002 & Supp. 2011) redefined VA's duty to assist a Veteran in the development of a claim. VA regulations for the implementation of the VCAA were codified as amended at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2011). Given the Board's favorable decision in the appeal regarding service connection for tinnitus, further assistance is not necessary to aid the Veteran in substantiating her claim. Wensch v. Principi, 15 Vet App 362 (2001) (the VCAA is not applicable where further assistance would not aid the appellant in substantiating his claim); see 38 U.S.C.A. § 5103A(a)(2) (Secretary not required to provide assistance "if no reasonable possibility exists that such assistance would aid in substantiating the claim"); see also VAOPGCPREC 5-2004; 69 Fed. Reg. 59989 (2004) (holding that the notice and duty to assist provisions of the VCAA do not apply to claims that could not be substantiated through such notice and assistance). Nevertheless, the Board notes that the Veteran received notice consistent with the VCAA and the duty to assist in June 2003 and July 2003 letters. Service Connection-Tinnitus The appellant contends that he incurred tinnitus as a result of acoustic trauma from weapons fire during his service in a mortar squad. His DD 214 reflects that he served as an indirect fire infantryman. Service treatment records are negative for treatment or diagnosis of tinnitus. However, the appellant is competent to report his in-service acoustic trauma and his report is consistent with the circumstance of his service. 38 U.S.C.A. § 1154(a) (2011). His statements regarding the in-service acoustic trauma are not contradicted, and are found to be credible. Bilateral tinnitus was diagnosed during VA treatment in October 2003 based on the Veteran's subjective complaints of ringing in his ears. He reported at that time that he had experienced ringing in his ears ever since he was exposed to loud artillery in the military and that it was getting worse. During the August 2012 Board hearing, the Veteran reported the continued presence of tinnitus and stated that the symptoms began during service as a result of his work as a mortar man. The Federal Circuit has held that lay evidence can be competent and sufficient to establish a diagnosis of a condition and when such symptoms began when a layperson is competent to identify the medical condition. 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"). Ringing in the ears are symptoms that a lay person could observe. The Veteran is competent to report current symptoms of his tinnitus and when such symptoms began. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); Layno v. Brown, 6 Vet. App. 465, 469 (1994); see also Barr v. Nicholson, 21 Vet. App. 303 (2007); see also Falzone v. Brown, 8 Vet. App. 398, 405 (1995). He has consistently reported the connection between the in-service acoustic trauma and tinnitus, although he also stated during the Board hearing that his tinnitus could be related in part to the head injury he sustained that resulted in his service-connected cervical spine disability. In either case, he has been consistent in that the injury was sustained during service. While the negative evidence of complaints or treatment of tinnitus in service treatment records and the lack of contemporaneous evidence in the years after service provide some evidence against the claim; the evidence is in at least equipoise. Resolving reasonable doubt in the Veteran's favor, service connection is granted for tinnitus. 38 U.S.C.A. § 5107(b). ORDER Service connection for tinnitus is granted. REMAND 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, 1137(West 2002); 38 C.F.R. § 3.303(a). A veteran is presumed to have been in sound condition on entrance into active service, except for conditions noted on examination when he was accepted for such service. 38 U.S.C.A. §§ 1111, 1137. A pre-existing injury or disease will be considered to have been aggravated by active service where there is an increase in disability during such service, unless clear and unmistakable evidence shows that the increase in disability is due to the natural progress of the disease. See 38 U.S.C.A. § 1153; 38 C.F.R. § 3.306. In addition, the regulations provide that a disability which is proximately due to or the result of a service-connected disease or injury shall be service connected. 38 C.F.R. § 3.310 (2011). The Court has held that service connection can be granted under 38 C.F.R. § 3.310, for a disability that is aggravated by a service-connected disability and that compensation can be paid for any additional impairment resulting from the service-connected disorder. Allen v. Brown, 7 Vet. App. 439 (1995). 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 types of evidence that indicate that a current disability may be associated with military service includes credible evidence of continuity of symptomatology such as pain or other symptoms capable of lay observation. McLendon, at 79, 83. The threshold for finding a link between current disability and service is low. Locklear v. Nicholson, 20 Vet. App. 410 (2006); McLendon, at 83. Regarding the ratings assigned to service-connected disabilities, a veteran must be afforded a thorough and contemporaneous examination when the record does not adequately reveal the current state of disability. Hart v. Mansfield, 21 Vet. App. 505, 508 (2007) (citing, inter alia, Green v. Derwinski, 1 Vet. App. 121, 124 (1991)). The record is inadequate and the need for a contemporaneous examination occurs when there is evidence (including a veteran's statements) of a possible increase in disability since the last examination. Hart, 21 Vet. App. at 508 (citing, inter alia, Snuffer v. Gober, 10 Vet. App. 400, 403 (1997)). Regarding the service connection issues, the Veteran has reported current symptoms related each of the claimed disabilities, as well as in-service symptoms or injuries. Therefore a VA examination must be provided to address the issue of etiology. During the Board hearing, the Veteran reported current decreased hearing acuity. He also expressed his belief that the audiogram results from his enlistment examination, which demonstrated left ear hearing loss under 38 C.F.R. § 3.385 (2011), were not accurate, as he specifically remembered not understanding what he was supposed to do during the testing. A separation examination is not of record. As noted above, acoustic trauma during service has been conceded. Therefore, upon remand, the VA examiner is requested to provide an opinion as to whether the Veteran's right ear hearing loss resulted from his conceded acoustic trauma. Regarding the left ear, the examiner must opine as to whether the Veteran's left ear hearing loss clearly and unmistakably pre-existed service and, if so, whether it was aggravated by active military service beyond the natural progression of the disability. If not, the examiner is requested to opine as to whether his left ear hearing loss was incurred due to in-service acoustic trauma. The Veteran has reported current pain and weakness in his knees, ankles, feet, wrists, and right elbow. Post-service treatment records demonstrate bilateral carpal tunnel syndrome and right elbow joint effusion, medial epicondylitis, and arthritis, but do not demonstrate a currently diagnosed bilateral knee, ankle, or foot disability. Service treatment records demonstrate multiple instances of treatment for his feet, ankles, and knees and the Veteran asserted during his hearing that he sustained significant wear and tear on his joints due to the physical nature of his position, which also involved heavy lifting. The Veteran has also asserted that each disability may have been caused or aggravated by his service-connected or nonservice-connected disabilities. A VA orthopedic examination has not been provided to determine the etiology of his reported knees, ankles, feet, wrists, and right elbow symptoms or disabilities; such an examination and opinion is necessary to properly adjudicate his claim for service connection. Therefore, upon remand, the Veteran should be provided with a VA orthopedic examination to determine whether any current orthopedic disability, to include a disability of the knees, ankles, feet, wrists, and right elbow, were incurred during or due to service or were caused or aggravated by a service-connected disability. If a disability was caused or aggravated by a disability of another part of the body, the examiner should so state, regardless of whether that other disability is currently service-connected, as service connection has not been determined for all disabilities at this point. For example, if a bilateral knee disability was caused by or aggravated by a disability of the spine, the examiner should so state, regardless of whether the spine disability is currently service-connected. The record reflects a current lumbar spine disability as demonstrated by MRIs conducted in June 2001 and July 2003. Moreover, a November 2003 VA clinical record reflects an assessment of thoracic outlet syndrome. The Veteran contends that these disabilities may be related to the physical nature of and wear and tear from service, an injury where he was hit in the head by a pole during service, which also caused his service-connected cervical spine disability, or that they were caused or aggravated by another disability, to include his service-connected cervical spine and shoulder disabilities or disabilities of his knees, feet, or ankles, which are not currently service-connected. A VA examination has not been provided specifically addressing the lumbar and thoracic spine disabilities. Therefore, upon remand, the Veteran should be provided with a VA spine examination to determine whether any current lumbar or thoracic spine disability was incurred during or due to service, including the injury involving the pole, or were caused or aggravated by another disability, including service-connected cervical spine and shoulder disability or a nonservice-connected disability. Additionally, the Veteran reported during his Board hearing that he began having issues for the first time with sinusitis and allergic rhinitis during service and that such symptoms have continued ever since. Service treatment records demonstrated several instances of care for sinus-related symptoms and include diagnoses of allergic rhinitis and sinusitis. The record does not demonstrate a current diagnosis of either disability. However, as the Veteran has credibly testified as to persistent symptoms since service, and indicated that he had sought treatment soon after discharge from active duty, the Board finds that he should be afforded a VA examination to identify the nature and etiology of any current sinus-related disorders. The Veteran also reported that he first incurred a rash during service, which has reoccurred intermittently ever since. He stated that the rash had just been noted during VA treatment and that he was going to reschedule a dermatology appointment for the near future. A VA skin examination has not yet been provided and is necessary to properly adjudicate his claim. The examination must be conducted after all VA records have been obtained. The Veteran was provided a VA general psychiatric examination in July 2003. However, the examination is inadequate for the purpose of evaluating his claim. The examiner stated that the Veteran had some emotional distress from a series of physical complaints but did not further expound on the nature of that distress, whether the distress resulted in a diagnosed disability, and whether such a disability was related to a service-connected disability. The examiner diagnosed dysthymic reaction and found that there were no signs or symptoms of major depression, again without further explanation. The Board notes that an assessment of depressive symptoms probably related to chronic pain was made in an October 2003 VA treatment record. Further, a January 2004 treatment record documented the diagnosis of depressive disorder not otherwise specified (NOS) as well as rule out major depressive disorder, rule out dysthymia, rule out depressive disorder secondary to a general medical condition. The record also listed his hypertension, chronic shoulder and neck pain, status post right shoulder debridement, and headaches under Axis III. Further, the Veteran stated during the Board hearing that his service-connected cervical spine and bilateral shoulder disabilities significantly contributed to his psychiatric symptoms. He also stated that his mood and personality changed greatly after he sustained the in-service head injury that led to his service-connected cervical spine disability. An opinion regarding any connection between service or service-connected disabilities and his current psychiatric disability was not provided by the VA examiner. The Court has held that an examination is inadequate where the examiner formulates an opinion without considering the Veteran's statements. Dalton v. Nicholson, 21 Vet. App. 23 (2007). Furthermore, an examination is inadequate where the examiner does not review the medical history and provide a factually accurate rationale for the opinions provided in the examination report. Nieves-Rodriquez v. Peake, 22 Vet. App. 295, 303-4 (2008). Where "diagnosis is not supported by the findings on the examination report or if the report does not contain sufficient detail, it is incumbent upon the rating board to return the report as inadequate for evaluation purposes." 38 C.F.R. § 4.2 (2011). Where the Board makes a decision based on an examination report which does not contain sufficient detail, remand is required "for compliance with the duty to assist by conducting a thorough and contemporaneous medical examination.'" Goss v. Brown, 9 Vet. App 109, 114 (1996); Stanton v. Brown, 5 Vet. App. 563, 569 (1993). Given the evidence obtained subsequent to the July 2003 examination, including the Veteran's statements and VA treatment, and the case law under Clemons, the Board finds that a new VA psychiatric examination is necessary in order to properly adjudicate the question of service connection. Therefore, upon remand, the examiner must opine whether any currently diagnosed acquired psychiatric disability was incurred during or as a result of service, including the injury involving the pole, or is caused or aggravated by a physical disability. Where possible, the examiner is requested to identify which disabilities are involved, whether or not they are currently service connected. New VA examinations are also necessary to evaluate the current severity of the Veteran's service-connected disabilities. Indeed, during the Board hearing, the Veteran indicated that his service-connected posttraumatic headaches disability, bilateral shoulder disability, and cervical spine disability have worsened since his last VA examination in July 2003. In this regard, a Veteran is entitled to a new VA examination where there is evidence that the condition has worsened since the last examination. Snuffer v. Gober, 10 Vet. App. 400 (1997); Caffrey v. Brown, 6 Vet. App. 377 (1994); VAOPGCPREC 11-95 (1995). In addition, a Veteran is competent to provide an opinion that his disability has worsened. Proscelle v. Derwinski, 2 Vet. App. 629 (1992). Regarding TDIU, the Court has held that it is an element of all appeals of assigned ratings. Rice v. Shinseki, 22 Vet. App. 447 (2009). TDIU is granted where a Veteran's service connected disabilities are rated less than total, but they prevent him from obtaining or maintaining all gainful employment for which his education and occupational experience would otherwise qualify him. 38 C.F.R. § 4.16 (2011). The Veteran has reported that he had to stop working as an electrician due to his physical disabilities. He worked for a short time thereafter in an office setting, but has been unable to find employment since that office closed. He stated that he did not feel that he would be able to return to any job now due to his physical and psychiatric disabilities. Therefore, once all of the other requested development has been completed, the Veteran should be provided with a VA examination to determine whether his service-connected disabilities prevent him from obtaining or maintaining all gainful employment for which his education and occupational experience would otherwise qualify him. Finally, during the Board hearing, the Veteran stated that he has continued to receive medical care at the VA West Los Angeles Healthcare Center and the Sepulveda Outpatient Clinic. The last VA treatment of record is dated in March 2004. Where VA has constructive and actual knowledge of the availability of pertinent reports in the possession of the VA, an attempt to obtain those reports must be made. See Bell v. Derwinski, 2 Vet. App. 611 (1992). As this evidence is relevant to the Veteran's claim, all relevant records in VA's possession must be obtained. Accordingly, the case is REMANDED for the following action: 1. Obtain all outstanding VA medical records and associate them with the claims file or Virtual VA. All efforts to obtain these records must be documented in the claims file. Such efforts should continue until they are obtained, it is reasonably certain that they do not exist, or that further efforts would be futile. 2. After all efforts have been exhausted to obtain and associate with the claims file any additional treatment records, schedule the Veteran for a VA audiology examination by a qualified examiner to determine the etiology of any current hearing loss. All indicated tests and studies should be conducted. The claims folder, including this remand and any relevant records contained in the Virtual VA system, must be sent to the examiner for review; consideration of such should be reflected in the completed examination report or in an addendum. The examiner should answer all of the following questions as definitively as possible: (a) Is it at least as likely as not (50 percent probability or more) that any currently diagnosed right ear hearing loss disability had onset in service, including due to the conceded acoustic trauma? (b) Did any current left ear hearing loss disability clearly and unmistakably exist prior to service? If so, did the left ear hearing loss clearly and unmistakably undergo an increase in underlying disability during service? If so, did such increase in severity clearly and unmistakably represent the natural progression of the condition, or was it beyond the natural progress of the condition (representing a permanent worsening of such disorder)? The examiner must provide a rationale for each opinion given. If the examiner is unable to provide an opinion without resort to speculation, he or she should explain why this is so and what if any additional evidence would be necessary before an opinion could be rendered. The absence of evidence of treatment for any disability in the Veteran's service treatment records cannot, standing alone, serve as the basis for a negative opinion. The examiner is advised that the Veteran is competent to report his symptoms and history, and such reports must be specifically acknowledged and considered in formulating any opinions. If the examiner rejects the Veteran's reports of symptomatology, he or she must provide a reason for doing so. 3. After all efforts have been exhausted to obtain and associate with the claims file any additional treatment records, schedule the Veteran for a VA orthopedic examination by a qualified physician to determine the etiology of any current bilateral knee, ankle, feet, wrist, and right elbow disorders. All indicated tests and studies should be conducted. The claims folder, including this remand and any relevant records contained in the Virtual VA system, must be sent to the examiner for review; consideration of such should be reflected in the completed examination report or in an addendum. The examiner should identify all currently diagnosed orthopedic disabilities and then answer all of the following questions as definitively as possible: (a) Is it at least as likely as not (50 percent probability or more) that any currently diagnosed orthopedic disability, including that of the knees, ankles, feet, wrists, and right elbow and including carpal tunnel syndrome and right elbow joint effusion, medial epicondylitis, and arthritis, had onset in service? (b) Is it at least as likely as not (50 percent probability or more) that any current orthopedic disability was caused (in whole or in part) by another disability, to include his service-connected cervical spine and shoulder disabilities or another disability currently not service-connected? If caused by a nonservice-connected disability, please specify the disability or disabilities. (c) Is it at least as likely as not (50 percent probability or more) that any current orthopedic disability was aggravated (made worse as shown by comparing the current disability to medical evidence created prior to any aggravation) by another disability, to include his service-connected cervical spine and shoulder disabilities or another disability currently not service-connected? If aggravated by a nonservice-connected disability, please specify the disability or disabilities. If aggravation is found, the examiner should also state, to the extent possible, the baseline level of disability prior to aggravation. This may be ascertained by the medical evidence of record and also by the Veteran's statements as to the nature, severity, and frequency of his observable symptoms over time. The examiner must provide a rationale for each opinion given. If the examiner is unable to provide an opinion without resort to speculation, he or she should explain why this is so and what if any additional evidence would be necessary before an opinion could be rendered. The absence of evidence of treatment for any disability in the Veteran's service treatment records cannot, standing alone, serve as the basis for a negative opinion. The examiner is advised that the Veteran is competent to report his symptoms and history, and such reports must be specifically acknowledged and considered in formulating any opinions. If the examiner rejects the Veteran's reports of symptomatology, he or she must provide a reason for doing so. 4. After all efforts have been exhausted to obtain and associate with the claims file any additional treatment records, schedule the Veteran for a VA examination by a qualified physician to determine the etiology of any current sinusitis or allergic rhinitis disabilities. All indicated tests and studies should be conducted. The claims folder, including this remand and any relevant records contained in the Virtual VA system, must be sent to the examiner for review; consideration of such should be reflected in the completed examination report or in an addendum. The examiner should list all currently diagnosed sinus disabilities and then answer whether it is at least as likely as not (50 percent probability or more) that any currently diagnosed sinus disability had onset in service. The examiner must provide a rationale for each opinion given. If the examiner is unable to provide an opinion without resort to speculation, he or she should explain why this is so and what if any additional evidence would be necessary before an opinion could be rendered. The absence of evidence of treatment for any disability in the Veteran's service treatment records cannot, standing alone, serve as the basis for a negative opinion. The examiner is advised that the Veteran is competent to report his symptoms and history, and such reports must be specifically acknowledged and considered in formulating any opinions. If the examiner rejects the Veteran's reports of symptomatology, he or she must provide a reason for doing so. 5. After all efforts have been exhausted to obtain and associate with the claims file any additional treatment records, schedule the Veteran for a VA skin examination by a qualified physician to determine the etiology of any current skin disabilities. All indicated tests and studies should be conducted. The claims folder, including this remand and any relevant records contained in the Virtual VA system, must be sent to the examiner for review; consideration of such should be reflected in the completed examination report or in an addendum. The examiner should list all currently diagnosed sinus disabilities and then answer whether it is at least as likely as not (50 percent probability or more) that any currently diagnosed skin disability had onset in service. The examiner must provide a rationale for each opinion given. If the examiner is unable to provide an opinion without resort to speculation, he or she should explain why this is so and what if any additional evidence would be necessary before an opinion could be rendered. The absence of evidence of treatment for any disability in the Veteran's service treatment records cannot, standing alone, serve as the basis for a negative opinion. The examiner is advised that the Veteran is competent to report his symptoms and history, and such reports must be specifically acknowledged and considered in formulating any opinions. If the examiner rejects the Veteran's reports of symptomatology, he or she must provide a reason for doing so. 6. After all efforts have been exhausted to obtain and associate with the claims file any additional treatment records, schedule the Veteran for a VA psychiatric examination by a qualified physician to determine the etiology of any current acquired psychiatric disabilities. All indicated tests and studies should be conducted. The claims folder, including this remand and any relevant records contained in the Virtual VA system, must be sent to the examiner for review; consideration of such should be reflected in the completed examination report or in an addendum. The examiner should list all currently diagnosed spine disabilities and then answer all of the following questions as definitively as possible: (a) Is it at least as likely as not (50 percent probability or more) that any currently diagnosed acquired psychiatric disability had its onset in service, including following the in-service head injury? (b) Is it at least as likely as not (50 percent probability or more) that any current acquired psychiatric disability was caused (in whole or in part) by another disability, to include his service-connected disabilities or another disability currently not service-connected? (If caused by a nonservice-connected disability, please specify which.) (c) Is it at least as likely as not (50 percent probability or more) that any current acquired psychiatric disability was aggravated (made worse as shown by comparing the current disability to medical evidence created prior to any aggravation) by another disability, to include his service-connected disabilities or another disability currently not service-connected? (If aggravated by a nonservice-connected disability, please specify which.) If aggravation is found, the examiner should also state, to the extent possible, the baseline level of disability prior to aggravation. This may be ascertained by the medical evidence of record and also by the Veteran's statements as to the nature, severity, and frequency of his observable symptoms over time. The examiner must provide a rationale for each opinion given. If the examiner is unable to provide an opinion without resort to speculation, he or she should explain why this is so and what if any additional evidence would be necessary before an opinion could be rendered. The absence of evidence of treatment for any disability in the Veteran's service treatment records cannot, standing alone, serve as the basis for a negative opinion. The examiner is advised that the Veteran is competent to report his symptoms and history, and such reports must be specifically acknowledged and considered in formulating any opinions. If the examiner rejects the Veteran's reports of symptomatology, he or she must provide a reason for doing so. 7. After all efforts have been exhausted to obtain and associate with the claims file any additional treatment records, schedule the Veteran for a VA spine examination by a qualified physician to determine the etiology of any current lumbar or thoracic spine disabilities. All indicated tests and studies should be conducted. The claims folder, including this remand and any relevant records contained in the Virtual VA system, must be sent to the examiner for review; consideration of such should be reflected in the completed examination report or in an addendum. The examiner should list all currently diagnosed spine disabilities and then answer all of the following questions as definitively as possible: (a) Is it at least as likely as not (50 percent probability or more) that any currently diagnosed lumbar or thoracic spine disability had its onset in service? (b) Is it at least as likely as not (50 percent probability or more) that any current lumbar or thoracic spine disability was caused (in whole or in part) by another disability, to include his service-connected cervical spine and shoulder disabilities or another disability currently not service-connected? (If caused by a nonservice-connected disability, please specify which.) (c) Is it at least as likely as not (50 percent probability or more) that any current lumbar or thoracic spine disability was aggravated (made worse as shown by comparing the current disability to medical evidence created prior to any aggravation) by another disability, to include his service-connected cervical spine and shoulder disabilities or another disability currently not service-connected? (If aggravated by a nonservice-connected disability, please specify which.) If aggravation is found, the examiner should also state, to the extent possible, the baseline level of disability prior to aggravation. This may be ascertained by the medical evidence of record and also by the Veteran's statements as to the nature, severity, and frequency of his observable symptoms over time. The examiner must provide a rationale for each opinion given. If the examiner is unable to provide an opinion without resort to speculation, he or she should explain why this is so and what if any additional evidence would be necessary before an opinion could be rendered. The absence of evidence of treatment for any disability in the Veteran's service treatment records cannot, standing alone, serve as the basis for a negative opinion. The examiner is advised that the Veteran is competent to report his symptoms and history, and such reports must be specifically acknowledged and considered in formulating any opinions. If the examiner rejects the Veteran's reports of symptomatology, he or she must provide a reason for doing so. 8. After all efforts have been exhausted to obtain and associate with the claims file any additional treatment records, schedule the Veteran for a VA examination with a qualified physician to assess the severity of his service-connected posttraumatic headaches, bilateral shoulder, and cervical spine disabilities. The claims folder, including this remand and any relevant records contained in the Virtual VA system, should be reviewed by the examiner; consideration of such should be reflected in the completed examination report or in an addendum. The examiner should report all orthopedic and neurologic manifestations of the each disability. 9. Once the above development has been completed, schedule the Veteran for a VA examination with a qualified physician to determine the combined impact the Veteran's service-connected disabilities have on his ability to obtain and maintain gainful employment. The claims folder, including this remand and any relevant records contained in the Virtual VA system, should be reviewed by the examiner; consideration of such should be reflected in the completed examination report or in an addendum. The examiner should also consider the Veteran's level of education and employment experience. The examiner should provide an opinion as to whether the service-connected bilateral shoulder, cervical spine, and posttraumatic headaches disabilities, as well as any other disability service-connected at that time, would together prevent the Veteran from obtaining or maintaining gainful employment for which his education and occupational experience would otherwise qualify him. The examiner should provide a rationale for this opinion. In addition, the examiner is requested to consider the impact any other disability not yet service-connected has, alone, or together with any other disability, on his ability to obtain and maintain employment. 10. The agency of original jurisdiction should carefully review the examination reports to ensure that they contain the information, opinions, and rationales requested in this remand. 11. After completion of all requested and necessary development, the RO should review the record in light of the new evidence obtained. If any benefit for which there is a perfected appeal remains denied, the Veteran and his representative should be furnished with a supplemental statement of the case. Once they are afforded an opportunity to respond, the claim should be returned to the Board for appellate review. The appellant has the right to submit additional evidence and argument on the matter 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 2002 & Supp. 2011). ______________________________________________ ERIC S. LEBOFF Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs