Citation Nr: 1300719 Decision Date: 01/08/13 Archive Date: 01/16/13 DOCKET NO. 06-26 493 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Lincoln, Nebraska THE ISSUES 1. Entitlement to service connection for diabetes mellitus. 2. Entitlement to service connection for headaches. 3. Entitlement to service connection for an acquired psychiatric disorder other than posttraumatic stress disorder (PTSD), to include depression and anxiety disorder. 4. Whether new and material evidence has been received to reopen a claim of service connection for orthostatic proteinuria. 5. Whether new and material evidence has been received to reopen a claim of service connection for arthritis. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD K. Neilson, Counsel INTRODUCTION The Veteran served on active duty from June 1959 to May 1963. These matters come before the Board of Veterans' Appeals (Board) on appeal from a February 2006 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Lincoln, Nebraska. The Board notes that the instant matters were most recently before the Board in April 2012 at which time they were remanded for further development. After the development requested by the Board was completed, the agency of original jurisdiction (AOJ) denied the Veteran's claims by way of a November 2012 supplemental statement of the case (SSOC). The matters were returned to the Board that same month. The Board further notes that on October 26, 2006, the Veteran presented testimony at a hearing before a Veterans Law Judge. The Veterans Law Judge who conducted the October 2006 hearing has since retired from the Board. In July 2011, the Veteran and his representative were sent a letter wherein they were informed that because the Veterans Law Judge who had conducted the October 2006 hearing was no longer available to decide the case, the Veteran was entitled to another hearing before a different Veterans Law Judge. The Veteran was informed that if he did not respond within 30 days of the date of that letter, it would be assumed that he did not desire another hearing and that the Board would proceed accordingly. To date, no response to the July 2011 letter has been received. As such, the Board will assume that the Veteran does not desire another hearing and will proceed with disposition of his appeal. In a November 2012 written brief, the Veteran's representative raised an argument concerning an association between cerebral vascular accidents (CVAs) and PTSD, citing to an article published by the National Institute of Health. The record reveals that the Veteran has been diagnosed as having vascular dementia and memory loss related to a series of CVAs and that he is service connected for PTSD. As the issue of entitlement to service connection for residuals of CVAs has not been considered by the AOJ, it is not properly before the Board at this time and that matter is referred to the AOJ for appropriate action. (The decision below addresses the Veteran's claims of service connection for headaches and an acquired psychiatric disorder, other than PTSD, as well as the issues of whether new and material evidence has been submitted to reopen previously denied claims of service connection for proteinuria and arthritis. The underlying claims of entitlement to service connection for proteinuria and arthritis, as well as issue of entitlement to service connection for diabetes mellitus are addressed in the remand that follows the Board's decision.) FINDINGS OF FACT 1. The Veteran does not have a chronic headache disability that is attributable to military service. 2. The Veteran has depression that is as likely as not attributable to his service-connected PTSD. 3. By prior final decisions, VA denied claims of service connection for proteinuria and arthritis. 4. Evidence received since the prior final decisions relates to unestablished facts necessary to substantiate the claims of service connection for proteinuria and arthritis and it raises a reasonable possibility of substantiating the underlying claims. CONCLUSIONS OF LAW 1. The Veteran does not have a chronic headache disability that is the result of disease or injury incurred in or aggravated during active military service. 38 U.S.C.A. §§ 1131, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.303, 3.304 (2012). 2. The Veteran has depression that is likely attributable to his service-connected PTSD. 38 U.S.C.A. §§ 1131, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303, 3.304 (2012); 3. A January 1976 rating decision, which denied service connection for orthostatic proteinuria, a left knee disability, and a left shoulder disability, and an August 1994 rating decision that denied service connection for arthritis, a bilateral ankle condition, and a right knee disability are final. 38 U.S.C.A. §§ 7104, 7105 (West 2002); 38 C.F.R. §§ 20.302, 20.1103 (2012). 4. New and material evidence has been submitted since the last final decisions; as a result, the claims of entitlement to service connection for arthritis and proteinuria are reopened. 38 U.S.C.A. § 5108; 38 C.F.R. § 3.156 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Notice and Assistance The Veterans Claims Assistance Act of 2000 (VCAA), codified in pertinent part at 38 U.S.C.A. §§ 5103, 5103A (West 2002 & Supp 2012), and the pertinent implementing regulation, codified at 38 C.F.R. § 3.159 (2012), provide that VA will assist a claimant in obtaining evidence necessary to substantiate a claim. They also require VA to notify the claimant and the claimant's representative of any information, and any medical or lay evidence, not previously provided to the Secretary that is necessary to substantiate the claim. See 38 U.S.C.A. § 5103(a) (West 2002); Quartuccio v. Principi, 16 Vet. App. 183 (2002); 38 C.F.R. § 3.159(b). As part of the notice, VA is to specifically inform the claimant and the claimant's representative of which portion, if any, of the evidence is to be provided by the claimant and which part, if any, VA will attempt to obtain on behalf of the claimant. (The Board notes that 38 C.F.R. § 3.159 was revised, effective May 30, 2008. 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 VCAA notice requirements apply to all five elements of a service connection claim. These are: (1) veteran status; (2) existence of a disability; (3) a connection between a veteran's service and the disability; (4) degree of disability; and (5) effective date of the disability. Dingess v. Nicholson, 19 Vet. App. 473 (2006). Regarding VA's duty to notify with respect to a petition to reopen a previously disallowed claim, VA must also advise the claimant of the evidence and information necessary to reopen the claim and of the evidence and information necessary to establish entitlement to the underlying claim for the benefit sought by the claimant. Kent v. Nicholson, 20 Vet. App. 1 (2006). This requires VA to look at the bases for the denial in the prior decision and respond with a notice letter that describes what evidence would be necessary to substantiate the element or elements required to establish service connection that were found insufficient in the previous denial. Id. at 9-10. In March 2005, the RO received the Veteran's claims of service connection for headaches and his petition to reopen his previously denied claim of service connection for arthritis and kidney problems. In June 2005, the RO sent to him a letter notifying him of the evidence required to substantiate his claims. The letter advised the Veteran of the information already in VA's possession and the evidence that VA would obtain on his behalf, as well as of the evidence that he was responsible for providing to VA, to include any records not in the possession of a Federal agency. The RO further advised the Veteran on the types of evidence he could submit that would support his claim for service connection, such as the dates of medical treatment during service, evidence of medical treatment since service, employment physical examination reports, insurance examination reports, and statements by persons who knew of the Veteran's disabilities. By a letter dated in October 2007, the Veteran was informed of the notice elements required by Dingess for how VA determines disability ratings and effective dates. That letter also notified the Veteran regarding the basis upon which his claims of service connection for proteinuria and arthritis were previously denied and informed that he needed to submit new and material evidence. The letter also advised the Veteran of the definition of such. The Veteran has not disputed the contents of the VCAA notice in this case. Further, the Board finds that the June 2005 and October 2007 notice letters comply with the requirements of 38 U.S.C.A. § 5103(a) and Kent, supra, and afforded the Veteran a meaningful opportunity to participate in the development of his claims. Further, any error with respect to the timing of notice was effectively cured in this case, as the Veteran's claims were several times readjudicated following the provision of adequate notice. See Mayfield v. Nicholson, 499 F.3d 1317, 1323 (Fed. Cir. 2007) (holding that timing error can be effectively "cured" by providing any necessary VCAA notice followed by a readjudication of the claim). Thus, the Board is satisfied that the duty-to-notify requirements under 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) were satisfied. Regarding the duty to assist, the Board is satisfied that the duty to assist requirements under 38 U.S.C.A. § 5103A and 38 C.F.R. § 3.159(c) were satisfied. All available evidence pertaining to the Veteran's claim has been obtained. The evidence includes his service treatment records (STRs), VA treatment records, VA examination reports, private medical evidence, and statements from the Veteran, to include his October 2006 hearing testimony. In this regard, the Board notes that the instant matters were previously remanded for the AOJ to attempt to obtain treatment records from the VA Medical Center (VAMC) in Cheyenne, Wyoming, dated between 1976 and 1978, as well as any records from the Social Security Administration (SSA). While records received from the Cheyenne VAMC do not include treatment records dated between 1976 and 1978, the response received from that facility indicates that all available records, to include the Veteran's retired records, had been submitted to VA. Further, a response from the SSA indicated that all medical records had been destroyed, and the Veteran was informed of such and given an opportunity to provide any records in his possession. Accordingly, the Board finds that the terms of its previous remands have been complied with and that no further assistance is necessary as it is clear that all available records have been associated with the Veteran's claims folder. See Stegall v. West, 11 Vet. App. 268 (1998). Further, the Veteran has been afforded a VA examination in connection with his claim for service connection for headaches. A review of the examination report reveals that the examiner reviewed the claims folder and considered the lay contentions of the Veteran before expressing an opinion regarding the likelihood that the Veteran has a headache disability related to service. The Board finds that the VA examiner's opinion is supported by an adequate rationale and complies with the terms of the Board's prior remand. See Barr v. Nicholson, 21 Vet. App. 303, 311 (2007); Stegall, supra. II. Service Connection Service connection may be granted for disability resulting from disease or injury incurred or aggravated during active military service. 38 U.S.C.A. § 1110. That an injury or disease occurred in service is not enough; there must be chronic disability resulting from that injury or disease. If there is no showing of a resulting chronic condition during service, then a showing of continuity of symptomatology after service is required to support a finding of chronicity. 38 C.F.R. § 3.303(b). Service connection may also be granted for any injury or disease diagnosed after service, when all the evidence, including that pertinent to service, establishes that the disease or injury was incurred in service. 38 C.F.R. § 3.303(d). Generally, establishing service connection requires medical or, in certain circumstances, lay evidence of (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the present disability. See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); Hickson v. West, 12 Vet. App. 247, 253 (1999). A. Headaches At the outset, the Board notes that a review of the Veteran's STRs is silent for complaints of or treatment related to headaches or a head injury. In seeking service connection for headaches, the Veteran reported that he began to experience headaches after boot camp. He indicated that his headaches worsened sometime after he was denied SSA benefits in 1979. During a March 1994 Agent Orange exposure examination, the Veteran indicated that he had had severe headaches, on and off since 1969. He reported that his headaches had gotten better since being placed on insulin for his diabetes mellitus. The Veteran stated his belief that his headaches may be related to the fluctuation in his blood sugar prior to being diagnosed with diabetes mellitus. During his October 2006 hearing, the Veteran asserted that he was treated for headaches in service while he was in Subic Bay, Philippines, in or around June 1962, and that he still experiences headaches. When asked about a history of a head injury, the Veteran reported that while he was stationed in California, he fell off the back of a truck and hit his head, after which he experienced headaches. The Veteran indicated being seen by a Navy Corpsman, who did not believe that the Veteran had sustained a concussion. In a May 2011 statement, the Veteran asserted that he was hit in the head while unloading a ship at Mindoro Island, Philippines. He stated that he was given pain pills at that time and that his headaches started again in the mid-1980s. He reported having slight headaches at that time. In May 2012, the Veteran was afforded a VA examination for the specific purpose of ascertaining whether he has any current residuals of a head injury, including traumatic brain injury (TBI). The examiner was requested to opine as to whether the Veteran had a headache disability related to military service, to include any TBI sustained therein. The examiner reviewed the evidence suggestive of a head injury in service and set forth the definition of a TBI, but determined that the evidence failed to show that Veteran had sustained a true TBI in service consistent with the definition of a TBI. Notably, during the examination, the Veteran denied any head injury in service and denied the presence of chronic headaches. Regarding the Veteran's claimed headache disorder, the examiner opined that it was less likely than not that any such disability was related to service. The examiner noted that the Veteran had denied chronic headaches and had been inconsistent in reporting the onset of his headaches. The examiner further opined that it was at least as likely as not that any headaches the Veteran may have experienced were related to poorly controlled blood sugar from undiagnosed diabetes, as the evidence suggested that after that condition was treated, his headaches had resolved. Upon review of the evidence of record, the Board finds that service connection for headaches is not warranted. In this regard, the Board is cognizant that the Veteran is competent to report on the existence of headaches and to provide testimony concerning factual matters of which he has firsthand knowledge, such as symptoms or events experienced during service. See Washington v. Nicholson, 21 Vet. App. 191, 195 (2007) (holding that, "[a]s a layperson, the appellant is competent to provide information regarding visible, or otherwise observable, symptoms of disability"). Regardless, however, of whether the Veteran did indeed suffer from headaches in or after service, the evidence of record fails to reveal that the Veteran has been diagnosed with a specific headache disorder. While the Veteran is certainly competent to testify as to the presence of headaches, the Board finds that the question of whether those headaches amount to a true headache disorder as opposed to acute and transitory attacks is medical in nature. Without the appropriate medical training, the Veteran is not competent to make such a medical determination. Moreover, the Veteran denied having a chronic headache condition at the time of the May 2012 VA examination. Further, no medical provider has linked any complained of headaches to service. To the contrary, the May 2012 VA examiner attributed the Veteran's previously complained of headaches to his poorly controlled blood sugar due to undiagnosed diabetes. The examiner's opinion in this regard is supported by the Veteran's own statement that his headaches had gotten better since being placed on insulin for his diabetes mellitus. The Board also finds that although the Veteran may be competent to report on the onset of symptoms or existence of an injury in service, in the instant case, the inconsistencies in the Veteran's account regarding his alleged head injuries in service, the onset of headaches, and continuity of symptoms since service renders his self-reported history not credible. In short, there is no basis upon which to conclude that the Veteran has a current headache disability that is in any way directly attributable to service, as competent and credible evidence of record fails to establish the presence of a head injury or a chronic headache disability in service, a current chronic headache disability, or a link between any complained of headaches and service. Accordingly, the claim of service connection for headaches must be denied. See Hickson, supra; Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). In finding that service connection for headaches is not warranted, the Board has considered the applicability of the benefit-of-the-doubt doctrine. However, as the preponderance of the evidence is against the claim, that doctrine is not helpful to the Veteran. See 38 U.S.C.A. § 5107(b) (West 2002); Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990); 38 C.F.R. § 3.102 (2012). B. Acquired Psychiatric Disorder other than PTSD A review of the record shows that the Veteran has, during the pendency of the claim period, been diagnosed as having both PTSD and depression and has been awarded service connection for PTSD. The Veteran has also consistently related feeling symptoms of depression since service. The Veteran was afforded a VA examination in March 2011, at which time the examiner diagnosed depression and PTSD. While the examiner related the Veteran's PTSD to his service, the examiner opined that the Veteran's depression was not attributable to his service. The examiner did not indicate the basis of the depression, but did state that he "thought" that the Veteran's depression was comorbid with his PTSD. Another examination was conducted in May 2012, at which time it was noted the Veteran's PTSD symptoms included a depressed mood and anxiety. At the outset, the Board notes that while it is possible for separately diagnosed psychiatric disorders to be service connected as distinct disabilities, see Amberman v. Shinseki, 570 F.3d 1377, 1381 (Fed. Cir. 2009), the evidence of record fails to establish that the Veteran has depression unrelated to PTSD that is directly related to service such that an award of service connection can be made. See Hickson, supra. The Board does, however, find that, resolving reasonable doubt in favor of the Veteran, the evidence suggests that the Veteran's diagnosed depression is a component of his already service-connected PTSD such that it should be service connected as part of that same disability picture. In this regard, the Board finds probative the Veteran's lay statements regarding his feelings of depression since service and his description of incidents in service that gave rise to those feelings, which incidents formed the basis for a grant of service connection for PTSD. The evidence also clearly shows that the Veteran's PTSD symptoms include symptoms of depression. See Mittleider v. West, 11 Vet. App. 181, 182 (1998) (when it is not possible to separate the effects of the service-connected and non-service-connected disabilities, the benefit of the doubt doctrine dictates that such signs and symptoms be attributed to the service-connected disability or disabilities). Accordingly, the Board finds that a grant of service connection for depression is warranted as a component of the Veteran's service-connected PTSD. III. Petition to Reopen By way of a January 1976 rating decision, the Veteran was denied service connection for, among other things, orthostatic proteinuria, claimed as a kidney infection, a left knee disability, and a left shoulder disability. By way of an August 1994 rating decision, the Veteran was denied service connection for, among other things, arthritis, a bilateral ankle condition, and a right knee disability. The Veteran did not disagree with either the January 1976 or the August 1994 RO decisions and those decisions therefore became final. See 38 U.S.C.A. § 7105 (West 2002); 38 C.F.R. §§ 20.302, 20.1103 (1994); 38 C.F.R. § 19.112, 19.118 (1975). As a result of the finality of the January 1976 and August 1994 rating decisions, the Veteran's claims of service connection for a kidney disability and for arthritis may now be considered on the merits only if new and material evidence has been received. 38 U.S.C.A. § 5108 (West 2002); 38 C.F.R. § 3.156 (2012); Manio v. Derwinski, 1 Vet. App. 140, 145 (1991); Evans v. Brown, 9 Vet. App. 273 (1996). Section 3.156(a) of title 38, Code of Federal Regulations provides the following definitions of new and material evidence: New evidence means existing evidence not previously submitted to agency decisionmakers. Material evidence means existing evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. New and material evidence can be neither cumulative nor redundant of the evidence of record at the time of the last prior final denial of the claim sought to be reopened, and must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a); see Hodge v. West, 155 F.3d 1356, 1359 (Fed. Cir. 1998). In making the determination of materiality, the "credibility of the evidence is to be presumed." Justus v. Principi, 3 Vet. App. 510, 513 (1992). The Board notes that it must consider the question of whether new and material evidence has been received because it goes to the Board's jurisdiction to reach the underlying claim and adjudicate the claim de novo. See Jackson v. Principi, 265 F.3d 1366, 1369 (Fed. Cir. 2001); Barnett v. Brown, 83 F.3d 1380 (Fed. Cir. 1996). If the Board finds that no such evidence has been offered, that is where the analysis must end, and what the RO may have determined in that regard is irrelevant. Id. Further analysis, beyond consideration of whether the evidence received is new and material is neither required nor permitted. Id. at 1384; see Butler v. Brown, 9 Vet. App. 167, 171 (1996). To determine whether new and material evidence has in fact been submitted, the Board first must compare the evidence submitted since the previous final denial with evidence previously of record. If the newly submitted evidence is that which was not of record at the time of the last final disallowance (on any basis) of the claim, and is not merely cumulative of other evidence that was then of record, it will be considered "new evidence" under 38 C.F.R. § 3.156(a). If the evidence is in fact new, the Board will then consider whether it is also material. In this regard, the Board notes that the threshold for determining whether new and material evidence raises a reasonable possibility of substantiating a claim is "low." Shade v. Shinseki, 24 Vet. App. 110, 117 (2010). When evaluating the materiality of newly submitted evidence, the focus must not be solely on whether the evidence remedies the principal reason for denial in the last prior decision; rather the determination of materiality should focus on whether the evidence, taken together, could at least trigger the duty to assist or consideration of a new theory of entitlement. See id. In this case, the evidence of record at the time of the January 1976 RO decision included: the report of a June 1959 enlistment examination that contained the results of a urinalysis that showed two plus albuminuria and noted a diagnosis of orthostatic albuminuria; the Veteran's STRs showing treatment for swelling of the ankles, which the Veteran related to his kidney troubles, and containing a diagnosis of orthostatic albuminuria; the report of an April 1963 release to inactive duty examination noting that the Veteran was clinically evaluated as normal, save for scars on the neck, left lower leg, right knee, left knee, and left thumb; the report of an August 1975 intravenous pyelogram showing a double collecting system on the right, but no other abnormalities; and the report of a September 1975 VA examination during which the Veteran was diagnosed as having post-traumatic injury to the left shoulder and knee, with some loss of motion, and proteinuria by history, but no evidence of such at time of examination. In January 1976, the RO denied service connection for a kidney condition upon finding that the evidence failed to show any current disability related to the kidney. The RO noted that protein in the Veteran's urine had been found at entrance into service, but that his kidney condition was thoroughly evaluated and felt to be of orthostatic origin. The RO also found no evidence of a kidney infection in service. Regarding the Veteran's claimed knee and shoulder disabilities, the RO denied service connection for those disabilities apparently based on the fact that the Veteran's STRs failed to disclose evidence of any in-service trauma to the shoulders or knees. In addition to the above-cited evidence, the evidence of record at the time of the August 1994 rating decision included the Veteran's February 1994 application for VA disability compensation benefits, wherein he claimed service connection for, among other things, bilateral knee injuries, bilateral knee and ankle problems, and arthritis due to herbicide exposure; the reports of March 1988 knee and shoulder x-rays, showing only that bone density seen beneath the inferior aspect of the right glenoid articular surface was consistent with old trauma or degenerative arthritic change; and VA treatment records dated in March 1988 and February 1994 noting the possibility of degenerative arthritis and complaints of shoulder pain In August 1994, the RO denied service connection a right knee and a bilateral ankle disability, as there was no evidence relating any such claimed disability to service, and denied service connection for arthritis, as there was no evidence showing that arthritis was incurred in or aggravated by military service or manifested to a compensable degree within a year of service. In March 2005, the Veteran sought to reopen his previously denied claims of service connection for kidney problems and arthritis. In support of his claim, the Veteran reported that he was diagnosed as having arthritis shortly after service and has suffered from bilateral shoulder pain since service. He also submitted an undated and unsigned statement, which reads as follows: "After examining [the Veteran] and reviewing his military medical records[,] it is my medical opinion that more likely than his arthritis condition (hands, shoulders, and feet) started while on active duty." During his October 2006 hearing, the Veteran testified that his arthritis was first diagnosed in 1976 or 1977 and that a doctor had informed him that it likely began in or was related to service. Further, a review of the Veteran's post-service treatment records shows high levels of microalbumin in 2010. The report of a March 2011 VA examination also notes current findings of proteinuria and contains a diagnosis of nephropathy with proteinuria, likely associated with the Veteran's diabetes mellitus. In light of this evidence, the Board finds that the Veteran's claims of service connection for arthritis and a kidney disability must be reopened. Notably, at the time of the January 1976 RO decision, the record failed to disclose evidence of a then-current disability related to the kidney. As noted above, evidence associated with the claims folder since the January 1976 RO decision reveals a current diagnosis of nephropathy with proteinuria. Further, the Veteran has provided evidence suggesting a link between his current arthritis and service. While the statement submitted by the Veteran fails to indicate who provided the opinion, which raises a question as to whether it is a competent medical opinion, the Veteran also testified that a medical professional informed him that his arthritis was related to service. The Veteran's statement in this regard is presumed to be credible. See Justus, supra. Evidence of a currently diagnosed kidney condition and evidence suggesting a link between the Veteran's arthritis and service is new as it was not previously of record when the prior decisions were made. That is, the previous evidence failed to show a currently diagnosed kidney condition or indicate an association between any diagnosed arthritis and service. Further, it is material because it relates to unestablished facts necessary to substantiate the Veteran's service connection claims and also requires consideration of a new theory of entitlement to service connection for a kidney disability (i.e., entitlement to service connection on a secondary basis). See Shade and Hickson, both supra. Accordingly, the claims of service connection for proteinuria and arthritis are reopened with the submission of new and material evidence. See 38 U.S.C.A. § 5108; 38 C.F.R. § 3.156(a). In this regard, the Board notes that VA is responsible for considering alternate current conditions within the scope of the claim. See Clemons v. Shinseki, 23 Vet. App. 1, 5 (2009) (when determining the scope of a claim, the Board must consider "the claimant's description of the claim; the symptoms the claimant describes, and the information the claimant submits or that the Secretary obtains in support of that claim"). Given that the evidence now contains a diagnosis of nephropathy with proteinuria, which is likely associated with diabetes mellitus, on remand, the AOJ must consider whether the Veteran has any diagnosed kidney disability that is related to service or to a service-connected disability. ORDER Entitlement to service connection for headaches is denied. Entitlement to service connection for depression related to service-connected PTSD is granted. New and material evidence having been received, the claims of entitlement to service connection for a kidney disorder and arthritis are reopened; to that limited extent, the appeal is granted. REMAND The Board notes that the Veteran has not been afforded a VA examination in connection with his claim of service connection for arthritis. In accordance with the duty-to-assist provisions codified at 38 U.S.C.A § 5103A(d) and by regulation found at 38 C.F.R. § 3.159(c)(4), a medical opinion or examination is required if the information and evidence of record does not contain sufficient medical evidence to decide the claim, but there is- (1) competent evidence of a current disability or persistent or recurrent symptoms of a disability, and (2) evidence establishing that an event, injury, or disease occurred in service or establishing certain diseases manifesting during an applicable presumptive period for which the claimant qualifies, and (3) an indication that the disability or persistent or recurrent symptoms of a disability may be associated with the veteran's service or with another service-connected disability. McLendon v. Nicholson, 20 Vet. App. 79, 81 (2006). At the outset, the Board notes that although the Veteran has submitted what appears to be a private nexus opinion relating the Veteran's arthritis to service, that opinion is neither written on a physician's letterhead, nor signed by any specific person. As such, it is unclear who wrote this statement and the Board cannot conclude that it is a competent medical opinion regarding nexus. Nevertheless, the Board finds that that statement, along with the Veteran's assertions regarding the continuity of his symptoms and what he was told by a physician, satisfies the "low threshold" necessary to establish entitlement to a VA medical examination. See McLendon, supra. Accordingly, the Board finds that on remand, the Veteran should be scheduled for a VA examination that addresses the nature and etiology of any current arthritis. The examiner should include a nexus opinion as to whether it is at least as likely as not that any currently diagnosed arthritis was caused or aggravated by the Veteran's military service. Concerning the Veteran's claim of service connection for diabetes mellitus, the Board notes that that matter has thrice been remanded for the AOJ to afford the Veteran a VA examination to determine the nature and etiology of his current diabetes. Specifically, the Board directed that the VA examiner was to determine whether the Veteran suffered from type I or type II diabetes mellitus and to provide an opinion as to whether the Veteran's diabetes mellitus began in or was related to his active military service. The Veteran was most recently examined in May 2012, at which time a diagnosis of diabetes mellitus, type I, was rendered. The examiner then opined that the Veteran's diabetes mellitus, type I, was at least as likely as not incurred in or caused by service. As rationale for his opinion, the examiner noted that the Veteran had served for six months in Vietnam during which time he was exposed to Agent Orange. The examiner went on to state that diabetes is a presumptive condition associated with Agent Orange exposure and therefore, it is at least as likely as not that the Veteran's diabetes is due to his Agent Orange exposure during military service in Vietnam. In this regard, the Board notes that certain diseases are associated with exposure to "herbicide agents" during active military, naval, or air service, and are thus presumed to have been incurred in or aggravated during active military service 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. 2012); 38 C.F.R. § 3.309(e) (2012). Notably, however, while type II diabetes mellitus is a disease associated with herbicide exposure, type I diabetes mellitus is not a disease for which presumptive service connection due to herbicide exposure has been established. 38 C.F.R. § 3.309(e). While a veteran is not precluded from presenting evidence that a claimed disability was due to or the result of herbicide exposure regardless of whether that claimed disability is recognized under 38 U.S.C.A. § 1116, pertaining to herbicide agent exposure presumptive diseases, see Combee v. Brown, 34 F.3d 1039, 1044-45 (Fed. Cir. 1994), the May 2012 VA examiner did not find that the Veteran's type I diabetes mellitus was indeed the result of his in-service exposure to herbicides. Rather, the examiner's positive nexus opinion was clearly based on the fact that "[d]iabetes is a presumptive condition associated with Agent Orange exposure." His opinion, therefore, is not probative as it is based in large measure on an inaccurate factual premise--namely that type I diabetes mellitus is an herbicide agent exposure presumptive disease recognized under 38 U.S.C.A. § 1116. See Reonal v. Brown, 5 Vet. App. 458, 461 (1993) (a medical opinion based upon an inaccurate factual premise has no probative value). Accordingly, because the May 2012 VA examiner's opinion is not adequate for evaluation purposes, as it is not probative as to the issue at hand, the Board finds that the Veteran's claim for service connection for diabetes mellitus must again be remanded in order for the AOJ to request from the examiner who performed the May 2012 examination an addendum to that examination report, wherein the examiner should provide another opinion regarding the likelihood that the Veteran's type I diabetes mellitus is related to service. See Stegall, supra (holding that a remand by the Board confers on a veteran, as a matter of law, a right to compliance with the remand instructions, and imposes upon VA a concomitant duty to ensure compliance with the terms of the remand); see also Barr, 21 Vet. App. at 312 (holding that once VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate); 38 C.F.R. § 3.159(c)(4) (2012). The addendum opinion must take into consideration the fact that type I diabetes mellitus is not a disease for which presumptive service connection has been established, but that a presumption of service connection provided by law is not the sole method for showing causation in establishing a claim for service connection for disability due to herbicide exposure. See Stefl v. Nicholson, 21 Vet. App. 120, 123 (2007) (recognizing that "[t]he availability of presumptive service connection for some conditions based on exposure to Agent Orange does not preclude direct service connection for other conditions based on exposure to Agent Orange"). Accordingly, the case is REMANDED for the following action: 1. The AOJ should send to the Veteran a new VCAA notice letter. The letter should specifically notify him of the information and evidence necessary to substantiate his claim of service connection for a kidney condition on a secondary basis. The Veteran should be given an opportunity to respond to the notice, and any additional information or evidence received should be associated with the claims file. 2. The AOJ should contact the VA examiner who examined the Veteran in May 2012 in connection with his claim of service connection for diabetes mellitus and obtain from him an addendum to his examination report that contains an opinion as to the likelihood that the Veteran's diabetes mellitus, type I, is related to service. The addendum opinion must take into consideration the fact the type I diabetes mellitus is not a disease for which presumptive service connection has been established. If the examiner's opinion remains positive, the examiner must explain the basis for concluding that the Veteran's type I diabetes mellitus is related to military service. Regardless of whether the examiner's opinion is favorable or negative as to the requested opinion, the examiner must provide support for his opinion that includes reference to lay or medical evidence contained in the claims folder, if appropriate, or to known medical principles relied upon in forming the opinion. (If the May 2012 examiner is no longer available, or if that examiner or the AOJ finds that a new examination is necessary, the Veteran should be scheduled for a VA examination. The examiner should also be asked to answer the question posed above.) 3. The AOJ should schedule the Veteran for an examination to determine the nature and etiology of any disability with respect to his claim of service connection for arthritis. The claims file should be made available to, and reviewed by, the examiner prior to examining the Veteran. (Advise the Veteran that failure to appear for an examination as requested, and without good cause, could adversely affect his appeal. See 38 C.F.R. § 3.655 (2012).) The examiner should elicit from the Veteran a complete history that includes identification of all currently or previously painful joints. All necessary tests and studies should be conducted, to include x-rays of the shoulders and any other painful joints identified by the Veteran. The examiner should be asked to identify all arthritic joints and provide an opinion as to medical probabilities that any diagnosed arthritis is related to the Veteran's military service. In doing so, the examiner must consider the Veteran's lay statements regarding any injuries sustained in service. Regardless of whether the examiner's opinion is favorable or negative, the examiner must provide support for his/her opinion that includes reference to lay or medical evidence contained in the claims folder, if appropriate, or to known medical principles relied upon in forming his opinion. Medical reasons to accept or reject the Veteran's statements regarding the onset and continuity of pain should be set forth. If the examiner determines that he/she cannot provide an opinion on any issue at hand without resorting to speculation, the examiner should explain the inability to provide an opinion, identifying precisely what facts could not be determined. In particular, he/she should comment on whether an opinion could not be rendered because the limits of medical knowledge have been exhausted regarding the etiology of any disorder or whether additional testing or information could be obtained that would lead to a conclusive opinion. See Jones v. Shinseki, 23 Vet. App. 382, 389 (2010). (The AOJ should ensure that any additional evidentiary development suggested by the examiner should be undertaken so that a definite opinion can be obtained.) 4. The AOJ must ensure that all medical examination reports and opinion reports comply with this remand and the questions presented in the request. If any report is insufficient, it must be returned to the examiner for necessary corrective action, as appropriate. 5. After undertaking any other development deemed appropriate, the AOJ should re-adjudicate the issues of entitlement to service connection for arthritis, diabetes mellitus, and a kidney disability, to include as secondary to a service-connected disability. If any benefit sought is not granted, the Veteran should be furnished with a supplemental statement of the case (SSOC) and afforded an opportunity to respond before the record is returned to the Board for further review. Thereafter, the case should be returned to the Board for further appellate review. By this remand, the Board intimates no opinion as to any final outcome warranted. No action is required of the Veteran until he is notified. The Veteran 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 case must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board 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. 2012). _________________________________ MARK F. HALSEY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs