Citation Nr: 1302500 Decision Date: 01/23/13 Archive Date: 01/31/13 DOCKET NO. 11-05 502A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Newark, New Jersey THE ISSUES 1. Entitlement to service connection for cold injury residuals of the bilateral upper extremities. 2. Entitlement to service connection for cold injury residuals of the bilateral lower extremities. 3. Entitlement to service connection for a left knee disorder. 4. Entitlement to service connection for a right knee disorder. 5. Entitlement to service connection for cold injury residuals of the bilateral ears. 6. Entitlement to service connection for an acquired psychiatric disorder, to include posttraumatic stress disorder (PTSD) and adjustment disorder, to include as secondary to service-connected disabilities. 7. Whether new and material evidence has been received to reopen a claim of entitlement to service connection for a respiratory disorder claimed as chronic obstructive pulmonary disorder (COPD). REPRESENTATION Veteran represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD Jebby Rasputnis, Associate Counsel INTRODUCTION The Veteran served on active duty from January 1952 to December 1953. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a rating decision issued in July 2010 by the Department of Veterans Affairs (VA) Regional Office (RO) in Newark, New Jersey. The petition to reopen a claim of entitlement to service connection for a respiratory disorder has been addressed by the RO alternately as a petition to reopen a claim and as an original claim. See July 2010 rating decision, February 2011 Statement of the Case (SOC), and October 2012 Supplemental SOC. As the Veteran was previously denied service connection for a respiratory disorder, to specifically include COPD, in a March 2003 rating action and he did not appeal the denial, the Board notes that the issue is properly characterized as a petition to reopen a claim for service connection and has been phrased as such on the title page of this decision. See 38 C.F.R. § 20.1103 (2012). The Board notes that the Veteran's claims for service connection for bilateral knee injuries, and for residuals of cold injury to the bilateral upper and lower extremities and the bilateral ears were also previously denied in an unappealed August 2003 rating decision. Since that decision, however, VA has received additional service personnel records into the claims file. The Board has interpreted the provisions of 38 C.F.R. § 3.156(c) (2012) to find that these records are "relevant," allowing reconsideration of these claims on a de novo basis. Specifically, the service personnel records associated with the claims file in February 2010 reflect the Veteran's "combat record" as including the "Third Korean Winter" campaign (December 1, 1952 to April 30, 1953) and the "Korea Summer-Fall 1953" campaign (May 1, 1953 to July 27, 1953). As the Veteran has alleged experiencing cold injuries while on patrol overnight in winter weather in February 1953 in the Chorwon Valley of Korea and injuring his knees during a July 25, 1953 motor vehicle accident, also in the Chorwon Valley of Korea, the personnel records are relevant because they provide a more complete picture of the circumstances of his service. These records are not relevant to his petition to reopen a claim for service connection for a respiratory disorder, which he alleges was incurred while he served at Fort Dix and Fort Kilmer. In this regard, although the personnel records do show service at Fort Dix and Fort Kilmer, his service at those locations was already reflected by the service record evidence within the claims file at the time of the March 2003 rating decision. 38 C.F.R. § 3.156(c). Therefore, new and material evidence is still needed to reopen the Veteran's claim of entitlement to service connection for a respiratory disorder claimed as COPD and has been characterized as such on the first page of this decision. The Board also notes that the United States Court of Appeals for Veterans Claims (Court) has held that claims for service connection for a psychiatric disorder include claims for service connection for any mental disability that may reasonably be encompassed by the claimant's description of the claim, reported symptoms, and the other information of record. See Clemons v. Shinseki, 23 Vet. App. 1 (2009). In the instant case, the Veteran has claimed entitlement to service connection for PTSD, but he has only been diagnosed with an adjustment disorder with depressive features during the appeal period. Therefore, the Board has characterized the issue as shown on the first page of this decision. In addition to the paper claims file, there is a Virtual VA paperless claims file associated with the Veteran's appeal. A review of the virtual file did not reveal any additional evidence pertinent to the present appeal. Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). 38 U.S.C.A. § 7107(a)(2) (West 2002). The issues of entitlement to service connection for bilateral knee injuries and for residuals of cold injury to the bilateral upper and lower extremities are herein decided. The remaining issues are addressed in the REMAND portion of the decision below and are REMANDED to the RO via the Appeals Management Center (AMC), in Washington, D.C. FINDINGS OF FACT 1. Resolving all doubt in his favor, the Veteran's cold injury residuals of the upper and lower bilateral extremities are etiologically related to his in-service exposure to cold temperatures while serving in Korea. 2. Resolving all doubt in his favor, the Veteran's degenerative joint disease of the bilateral knees is etiologically related to his in-service injury involving a truck accident while serving in Korea. CONCLUSIONS OF LAW 1. Residuals of cold injuries to the bilateral upper extremities were incurred in active duty service. 38 U.S.C.A. §§ 1101 , 1110, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 3.303 (2012). 2. Residuals of cold injuries to the bilateral lower extremities were incurred in active duty service. 38 U.S.C.A. §§ 1101 , 1110, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 3.303 (2012). 3. Degenerative joint disease of the right knee was incurred in active duty service. 38 U.S.C.A. §§ 1101 , 1110, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 3.303 (2012). 4. Degenerative joint disease of the left knee was incurred in active duty service. 38 U.S.C.A. §§ 1101 , 1110, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 3.303 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS As the Board's decision to grant service connection for cold injury residuals to the bilateral upper and lower extremities and degenerative joint disease of the bilateral knees constitutes a complete grant of those benefits sought on appeal, no further action is required to comply with the Veterans Claims Assistance Act of 2000 and the implementing regulations. Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303(a). Service connection may also be granted for any disease diagnosed after discharge, when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Direct service connection may not be granted without evidence of a current disability; in-service incurrence or aggravation of a disease or injury; and a nexus between the claimed in-service disease or injury and the present disease or injury. 38 U.S.C.A. § 1112; 38 C.F.R. § 3.304. See also Caluza v. Brown, 7 Vet.App. 498, 506 (1995) aff'd, 78 F.3d 604 (Fed.Cir. 1996) [(table)]. Alternatively, service connection may be established under 38 C.F.R. § 3.303(b) by (a) evidence of (i) the existence of a chronic disease in service or during an applicable presumption period under 38 C.F.R. § 3.307 and (ii) present manifestations of the same chronic disease, or (b) when a chronic disease is not present during service, evidence of continuity of symptomatology. In addition, a disability can be service-connected on a secondary basis if it is proximately due to or the result of a service-connected condition. 38 C.F.R. § 3.310(a). Moreover, secondary service connection may be established, as well, by any increase in severity (i.e., aggravation) of a non-service-connected condition that is proximately due to or the result of a service-connected condition. 38 C.F.R. § 3.310(b), effective October 10, 2006. See 71 Fed.Reg. 52,744 -52,747 (September 7, 2006). See also Allen v. Brown, 7 Vet.App. 439, 448 (1995); Tobin v. Derwinski, 2 Vet.App. 34, 39 (1991). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet.App. 49, 53 (1990). Cold Injury Residuals The Veteran seeks service connection for residuals of cold injuries to his bilateral feet and hands. He contends that he was exposed to extremely low temperatures while serving on overnight patrol in Korea's Chorwon Valley in February 1953. He has stated that he subsequently experienced numbness and peeling skin of the bilateral upper and lower extremities (hands and feet). The Board has carefully considered the Veteran's contentions in light of the evidence of record and the applicable law. As his service personnel records reflect that he served in support of the Third Korean Winter Campaign in February 1953, exposure to cold temperatures is consistent with the conditions of his service. 38 U.S.C.A. § 1154(a) (2012). Since he is competent to report his symptomatology and he has been diagnosed with cold injury residuals which multiple VA examiners have attributed to his Korean service, the Board finds it appropriate to afford him the benefit of the doubt and grant his claims for service connection for residuals of cold injury. 38 U.S.C.A. § 5107(b); Alemany v. Brown, 9 Vet.App. 518 (1996); Brown v. Brown, 5 Vet.App. 413 (1993) (under the "benefit-of-the-doubt" rule, only where there exists "an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter," the claimant shall prevail upon the issue). The Veteran's service record shows receipt of the Korean Service Medal and the United Nations Service Medal. A member of the Armed Forces must have performed duty in Korea between June 27, 1950 and July 27, 1954 in order to be eligible for the Korean Service Medal. See Executive Order No. 10179, November 8, 1950. Moreover, the Veteran's service personnel record specifically reflects that, during the applicable time frame, he served in the Third Korean Winter campaign. Service treatment records do not show any complaints of, or treatment for, cold injury residuals of the feet or hands. However, the Veteran has explained to multiple VA examiners that he did not seek medical attention for these injuries at the time they occurred. A July 1958 self report of medical history that the Veteran completed while assigned to reserve service does reflect that he complained of unspecified "foot trouble." The first medical evidence within the claims file that references the feet and hands is the report of a May 2002 VA examination. The examiner interviewed the Veteran, who reported that he sustained frostbite while on active duty and subsequently experienced stiffness in his feet and hands during cold weather. The examiner described the Veteran as "status post frostbite of the feet and hands," but did not provide a current diagnosis or any discussion of etiology. In June 2002, the Veteran was seen for a second VA examination of cold injury residuals. The report states that the Veteran reported being out in cold weather during the majority of his time in Korea and experiencing untreated cold injuries to his feet, hands, and skin. He reported current pain and decreased sensation of the feet and hands. After examining the Veteran and conducting sensory testing and x-rays, the examiner diagnosed cold injury to the feet and hands with residuals. A January 2005 private medical consultation reflects that the Veteran had decreased sensation to the plantar aspect of his feet and toes, heel keratoses, and severe onychomycosis on all toenails. The private physician stated that the poor sensory testing was "probably due to some neuropathy due to his alcohol abuse," but did not discuss the etiology of the skin and nail changes. In October 2009, the Veteran wrote to VA that he now had no feeling in his feet and fingers except pain. He wrote again in April 2010 and reported spending one entire night outside by himself in Korea during February 1953 and experiencing cold injury to his feet and hands. His daughter also wrote a statement attesting that her father had lost sensation in his fingers. The Veteran was afforded two (2) VA examinations for cold injury residuals in November 2010. A physician conducted the first examination and noted that the Veteran reported being exposed to extreme cold while serving in Korea as well as currently experiencing decreased sensation and cold sensitivity in his feet and hands. Upon examination, the examiner observed peeling skin, loss of sensation, and degenerative changes as verified by x-ray. The examiner diagnosed cold injuries to the feet and hands, with residuals, and indicated agreement with the findings of the June 2002 VA examiner. As a result of the observed loss of sensation, the examiner referred the Veteran for a peripheral neurological evaluation. In November 2010, a separate physician conducted a VA neurological examination of the Veteran's claimed cold injury residuals. The examiner observed that the Veteran had a prior history of alcohol abuse and was diabetic. However, after interviewing the Veteran and conducting an examination, the examiner noted that his diabetes was under good control. The examiner concluded that he had "peripheral neuropathy of both upper and lower extremities most likely secondary to residuals of cold injury." The RO scheduled the Veteran for another VA cold injury residuals examination in June 2012. The examiner observed the Veteran's history of Korean service, noted his diagnosis of diabetes, and commented on the prior findings of frostbite residuals. After interviewing and examining the Veteran, the examiner noted that the findings were consistent with severe sensory polyneuropathy. However, the examiner opined that, due to the "long interval" in between the Veteran's service and the onset of progressive sensory loss, it was not likely that neuropathy was due to cold injury sustained during active duty. The examiner opined that the current sensory loss was more likely attributable to diabetic neuropathy. The Board notes that laymen such as the Veteran can attest to their in-service experiences and current symptoms. See Bostain v. West, 11 Vet.App. 124, 127 (1998), citing Espiritu v. Derwinski, 2 Vet.App. 492 (1992). The Board finds that the Veteran's contentions regarding his service and symptomatology are competent and credible. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed.Cir. 2007). His contentions are consistent with his service in Korea and supported by the opinions of the VA examiner who examined him in June 2002, the same year he was diagnosed with diabetes, and the two examiners who saw him in November 2010. The Court has held that a physician's knowledge of relevant case facts bears on the probative value assigned to a medical opinion. Nieves-Rodriguez v. Peake, 22 Vet.App. 295, 300 (2008). Further, as is true of any evidence, the credibility and weight to be attached to medical opinions are within the province of the Board. See Guerrieri v. Brown, 4 Vet.App. 467, 470-471 (1993); also see Hayes v. Brown, 5 Vet.App. 60, 69-70 (1993). Here, VA treatment records reflect observation of dry skin on the hands and feet, toenail infections, pain, and loss of sensation in the feet and hands. These observations are consistent with residuals of cold injury listed in the VA Adjudication Manual, M21-1MR. M21-1MR III.iv.4.E.21.c. Further, although the June 2012 examiner opined that the Veteran's sensory changes in his feet and hands were more likely attributable to the progression of diabetes, VA physicians first diagnosed cold injury residuals during the same year that the Veteran was first diagnosed with diabetes (so prior to diabetic progression) and the 2010 VA examiners determined that his diabetes was well-controlled. The 2012 examiner's opinion does not reflect analysis of these relevant case facts. Nieves-Rodriguez, 22 Vet.App. at 300. Under the benefit-of-the-doubt rule, where there exists an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter, the claimant shall prevail upon the issue. Ashley v. Brown, 6 Vet.App. 52, 59 (1993); see also Massey v. Brown, 7 Vet.App. 204, 206-207 (1994). As the claims file contains credible lay testimony and competent, highly probative medical evidence supportive of the Veteran's claims for service connection for cold injury residuals to the bilateral hands and feet, the Board is of the opinion that, despite the medical evidence to the contrary, a state of relative equipoise has been reached. Accordingly, the Board resolves all doubt in favor of the Veteran and finds that service connection is warranted for cold injury residuals to the bilateral upper and lower extremities. 38 U.S.C.A. § 5107(b); 38 C.F.R. §§ 3.102, 3.303, 3.310; Gilbert v. Derwinski, 1 Vet.App. 49 (1990). Bilateral knee disorders The Veteran seeks service connection for bilateral knee disorders. He contends that, while he was serving in the Korea Summer-Fall 1953 campaign, he injured both of his knees as the result of a truck accident in Korea's Chorwon Valley. He has stated that he subsequently experienced pain in his knees that progressed to loss of motion. His service personnel records verify his service and he is competent to report the circumstances of his service as well as his symptomatology. As he has been diagnosed with degenerative joint disease in both knees that a VA examiner has attributed to his in-service experiences, the Board finds it appropriate to afford him the benefit of the doubt and grant his claims for service connection for bilateral knee disorders. 38 U.S.C.A. § 5107(b); Alemany, 9 Vet.App. 518; Brown, 5 Vet.App. 413. An induction self report of medical history completed by the Veteran in September 1951 reflects that he either had at that time, or had experienced in the past, a "'trick' or locked knee." However, at the time of his induction, an examination revealed that he was in good physical health; his lower extremities were evaluated as normal. Although he was also evaluated as normal at the time of his separation from active duty, the Veteran again self-reported having experienced knee trouble. Despite the Veteran's 1951 self report of a trick or locked knee, the Board notes that he is entitled to the presumption of soundness because no knee disability was noted at the time of his entrance into service. See 38 C.F.R. § 3.304(b) (only such conditions as are recorded in examination reports are to be considered as noted). Moreover, the Board finds that there is no clear and unmistakable evidence that any knee disability pre-existed his entry to military service. A Veteran's self report is not a notation, but will be considered together with all other material evidence in determinations as to inception of disability. 38 C.F.R. § 3.304(b)(1). In this case, the Board finds that the Veteran's self-report does not rise to the level of clear and unmistakable evidence and, therefore, the Board finds that the presumption of soundness with respect to any knee disability is not rebutted. The first post-service medical evidence of record referring to the knees is a December 1992 private treatment record. A private physician evaluated the Veteran for right knee pain that he described as having troubled him for "a long period of time." The note states that the Veteran had a prior surgery on his left knee "and has done well with that." The physician diagnosed degenerative changes in the right knee with loss of joint space and torn medial meniscus. Arthroscopic surgery was performed. The Veteran was seen by VA in August 2001 for an initial consultation as to "severe" knee degenerative joint changes. The Veteran reported that the pain began approximately 10 years prior without a noticeable precipitating event and required bilateral knee surgery. Radiology of the knees revealed bilaterally advanced degenerative changes. He was assigned to physical therapy, but returned to care two (2) months later in October 2001 and reported that his knee pain was still severe with swelling and giveaway weakness. He received injections of pain medicine and steroid. Although a December 2001 treatment note reflects that the Veteran returned to physical therapy, his bilateral knee degeneration is described as severe again in a July 2002 note. At an October 2002 appointment, he estimated that he had undergone initial knee surgeries in 1988 and 1990. The Veteran wrote to VA in June 2003, contending that he had pain in his bilateral knees as the result of an accident in Korea that required him to jump from a vehicle. He stated that he had been the driver of the vehicle and the vehicle had rolled over. In July 2003, the Veteran underwent a VA examination for his bilateral knee disorders. The examiner interviewed the Veteran and summarized the in-service injury as occurring when the Veteran "jumped off a truck." The Veteran indicated that some pain began approximately 2 years after his discharge from the service and became progressively worse. After examining the Veteran and assessing the severity of his knee disorders, the examiner opined that degenerative joint disease of the bilateral knees was related to the Veteran's active duty service. The Veteran wrote to VA in October 2009 and reported that, while he was in the service, he fell out of a truck and hurt both of his knees. In an April 2010 statement, he specified that the date of the accident was July 25, 1953; he reported that the truck was forced off the road and he jumped from the vehicle, hurting his knees. He stated that he sought no treatment for his knees while in service. In a March 2011 statement he again referred to the in-service incident as a fall from a truck and, in a July 2011 statement, he again reported that the truck had rolled over. The Veteran contends that he experiences bilateral knee degeneration as the result of his active duty service. He informed a VA care provider in August 2001 that severe knee pain, requiring surgery, began without a precipitating event approximately 10 years earlier. In October 2002, he estimated that he had first required knee surgeries in 1988 and 1990. He has also informed a July 2003 VA examiner that his knee pain first manifested approximately 2 years after his discharge from service. The Veteran has repeatedly maintained that he injured both of his knees while serving in Korea. Although his description of the accident that resulted in injury has varied slightly (alternating between falling, jumping, and being thrown from the truck), he has consistently maintained that he was in a truck that rolled over, necessitating rapid exit. Service records reflect that, during the pertinent time period, the Veteran was attached to Company A of the 65th Engineering Battalion. 38 U.S.C.A. § 1154(a) directs that, where a Veteran is seeking service-connection for any disability, due consideration shall be given to the places, types, and circumstances of such Veteran's service as shown by such Veteran's service record, the official history of each organization in which such Veteran served, such Veteran's medical records, and all pertinent medical and lay evidence. Here, the Veteran's account of his in-service injury is consistent with the history of the organization he served with in Korea and his separation self report of medical history reflects complaint of knee trouble. Although the treatment record does not contain any records of treatment for knee pain in between his discharge from active duty and the December 1992 private treatment record describing his knee disabilities as long-standing, his contentions are supported by the opinion of the July 2003 VA examiner - that his clinical picture is consistent with someone who experienced the type of in-service injury he described. There can be no doubt that further medical inquiry could be undertaken with a view towards development of the claim. However, under the "benefit-of-the-doubt" rule, where there exists "an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter," the Veteran shall prevail upon the issue. Ashley, 6 Vet. App. at 59. The mandate to accord the benefit of the doubt is triggered when the evidence has reached such a stage of balance and the Board is of the opinion that this point has been attained. Service connection for degenerative joint disease of the bilateral knees is granted. ORDER Service connection for cold injury residuals of the bilateral upper extremities is granted. Service connection for cold injury residuals of the bilateral lower extremities is granted. Service connection for degenerative joint disease of the right knee is granted. Service connection for degenerative joint disease of the left knee is granted. REMAND Although the Board regrets the additional delay, a remand is necessary to ensure that due process is followed and that VA fulfills its duties to notify and assist the Veteran in order to create a complete record upon which to decide his claims pertaining to his ears, respiratory disorder, and acquired psychiatric disorder so that he is afforded every possible consideration. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. Relevant to all three claims, the Board notes that the Veterans Claims Assistance Act of 2000 (VCAA) requires VA to assist claimants by gathering all pertinent records of VA treatment and all identified private treatment records. VA treatment records within the claims file indicate that the Veteran has received VA treatment since at least August 1999. However, no VA records prior to August 14, 2001 appear in the claims file. Further, the most recent VA treatment note within the claims file is dated June 26, 2003, but subsequent private records dated as late as February 2009 refer to VA care. His initial claim for benefits in March 2002 indicates that he was receiving care at the VA Medical Center (VAMC) in Lyons for all of his claimed disabilities. Subsequent treatment notes indicate that he was also treated at the VAMC in East Orange. The agency of original jurisdiction (AOJ) must obtain any outstanding records of VA treatment and associate them with the claims file. The Veteran has also identified numerous private treatment providers - St. Peters University Hospital, Hudson Center for Spinal Care, and Chest & Intensive Care Medicine. Although a few records from St. Peters University Hospital and Chest & Intensive Care Medicine are associated with the claims file, letters from Chest & Intensive Care Medicine and notations within the record indicate that additional pertinent medical evidence from these sources remain outstanding. These records should be obtained and incorporated into the claims file before appellate review proceeds. In regard to the claim of entitlement to service connection for an acquired psychiatric disorder, the Board notes that the Veteran was afforded a VA examination in June 2012. The examiner determined that the Veteran did not have PTSD, as claimed, or any mental disorder as the result of his active duty service, but instead experienced an adjustment disorder as the general result of "aging, medical issues, and increased dependency." However, the Board finds that such opinion is inadequate. In Dalton v. Nicholson, 21 Vet.App. 23 (2007), the Court determined an examination was inadequate where the examiner did not comment on the Veteran's report of in-service injury and instead relied on the absence of evidence in the Veteran's service treatment records to provide a negative opinion. Here, the June 2012 examiner opined that the Veteran had not undergone any traumatic events in-service and did not discuss the Veteran contentions to the contrary. Moreover, the examiner did not discuss a service medical record showing that the Veteran reported nervous trouble upon his discharge from active duty. The Court has held that a medical examination report must contain not only clear conclusions with supporting data, but also a reasoned medical explanation connecting the two. See Nieves-Rodriguez v. Peake, 22 Vet.App. 295 (2008); Stefl v. Nicholson, 21 Vet.App. 120, 124 (2007) ("[A]medical opinion ... must support its conclusion with an analysis that the Board can consider and weigh against contrary opinions"). Further, the examiner's opinion also does not indicate whether any of the Veteran's service-connected disabilities are among the "medical issues" that the examiner stated were causing the adjustment disorder. In this regard, the examiner did not consider whether secondary service connection was warranted for the Veteran's acquired psychiatric disorder. Once VA undertakes the effort to provide an examination for a service connection claim, even if not statutorily obligated to do so, it must provide an adequate one or, at a minimum, notify the claimant why one will not or cannot be provided). Barr v. Nicholson, 21 Vet.App. 303, 311 (2007). Therefore, as the June 2012 VA examination report is not adequate, a remand is necessary in order to obtain an addendum opinion so as to determine the nature and etiology of any current acquired psychiatric disorder, especially with consideration of the Veteran's competent lay testimony. Additionally, the Veteran has not been provided with proper VCAA notice regarding the secondary aspect of his claim of entitlement to service connection for an acquired psychiatric disorder. Such should be accomplished on remand. Pertaining to the Veteran's application to reopen his claim for an respiratory disorder, the Board notes that the VCAA and its implementing regulations include clear guidelines consistent with the intent of Congress regarding the timing and the scope of assistance VA will provide to a claimant who attempts to reopen a previously denied claim. See 38 C.F.R. § 3.159(c)(1),(2) and (3). Such assistance includes obtaining service records, records in the custody of a Federal agency, and private records adequately identified by the claimant, but, prior to reopening a claim, there is no duty to obtain a VA medical examination or opinion. Also, as relevant to his claim for service connection for cold injury residuals of his ears, there was no dermatitis or evidence of any cold injury shown on the November 2010 VA examination and no scars or damage seen to the bilateral pinnas on the June 2012 VA examination. Therefore, as relevant to the Veteran's application to reopen his claim for service connection for a respiratory disorder and his claim for service connection for cold injury residuals of his ears, the AOJ should review the records received in connection with the aforementioned requests and, thereafter, should conduct any additionally indicated development, to include affording the Veteran VA examinations, necessary to decide his claims. Accordingly, the case is REMANDED for the following action: (Please note, this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). Expedited handling is requested.) 1. The Veteran should be provided with proper VCAA notice regarding the evidence and information necessary to substantiate his claim of entitlement to service connection for an acquired psychiatric disorder as secondary to his service-connected disabilities. 2. Obtain all VA treatment records from the VA Medical Centers in Lyons and in East Orange, New Jersey, dated prior to August 14, 2001 (to include any retired hardcopy records) and after June 26, 2003. All reasonable attempts should be made to obtain such records. If any records cannot be obtained after reasonable efforts have been made, issue a formal determination that such records do not exist or that further efforts to obtain such records would be futile, which should be documented in the claims file. The Veteran must be notified of the attempts made and why further attempts would be futile, and allowed the opportunity to provide such records, as provided in 38 U.S.C.A. § 5103A(b)(2) and 38 C.F.R. § 3.159(e). 3. Provide the Veteran with an opportunity to identify or submit any additional private medical evidence that is not of record. Send him the necessary authorizations for the release of any private treatment records not currently on file - the records must include, but are not limited to, records of treatment from St. Peters University Hospital, Hudson Center for Spinal Care, and Chest & Intensive Care Medicine. Make at least two (2) attempts to obtain records from any identified sources. If any such records are unavailable, inform the Veteran and afford him an opportunity to submit any copies in his possession. 4. After the above development has been completed and all outstanding records have been associated with the claims file, return the claims file to the VA examiner who conducted the Veteran's June 2012 mental health examination. The claims file and a copy of this Remand must be made available to the examiner. The examiner shall note in the examination report that the claims folder and the Remand have been reviewed. If the June 2012 VA examiner is not available, the claims file should be provided to an appropriate medical professional so as to render the requested opinion. The need for an additional examination of the Veteran is left to the discretion of the clinician selected to write the addendum opinion. After a review of the claims file, to specifically include a discussion of the Veteran's contentions as to stressful events experienced during service and the self report of examination he completed at the time of his discharge from service, the examiner should list all appropriate mental health diagnoses (any psychiatric condition experienced by the Veteran since he filed his claim in October 2009) and offer an opinion regarding the following: Is it at least as likely as not (50 percent probability or greater) that any current acquired psychiatric disorder either had its onset during, or is related to any incident of, the Veteran's active duty service, to include his fear of hostile military or terrorist activity? The examiner should consider a service medical record showing that the Veteran reported nervous trouble upon his discharge from active duty. If determining again that the Veteran has a psychiatric disorder as the result of "medical issues," is it at least as likely as not (50 percent probability or greater) that any of his service-connected disabilities are among those "medical issues?" The examiner should also opine as to whether it is at least as likely as not that any of the Veteran's service-connected disabilities caused or aggravated his diagnosed acquired psychiatric disorder. In this regard, the Veteran is now service-connected for cold injury residuals of the bilateral upper and lower extremities; degenerative joint disease of the bilateral knees; bilateral hearing loss; and tinnitus. In making these determinations of causation, the examiner should discuss any competent and credible lay evidence. See Dalton v. Nicholson, 21 Vet.App. 23 (2007) (examination found inadequate where examiner did not comment on the Veteran's report of in-service injury and, instead, relied on the absence of evidence in the service treatment records to provide a negative opinion). Any opinion offered must be accompanied by supporting rationale. 5. Relevant to his application to reopen his claim for service connection for a respiratory disorder, and his claim for service connection for residuals of frostbite of the ears, after all outstanding records have been associated with the claims file, the AOJ should review the record and conduct any additionally indicated development, to include affording the Veteran VA examinations, necessary to decide his claims. 6. After completing the above, and any other development as may be indicated by any response received as a consequence of the actions taken in the preceding paragraphs, the Veteran's claims should be readjudicated based on the entirety of the evidence. If any portion of the appeal remains denied, the Veteran and his representative should be issued a supplemental statement of the case. An appropriate period of time should be allowed for response. Thereafter, the case should be returned to the Board for further appellate consideration, if otherwise in order. The Board intimates no opinion as to the outcome of this case. The Veteran need take no action until so informed. The purpose of this REMAND is to ensure compliance with due process considerations. The Veteran has the right to submit additional evidence and argument on the matters the Board has remanded. Kutscherousky v. West, 12 Vet.App. 369 (1999). These claims 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). ______________________________________________ A. JAEGER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs