Citation Nr: 1304935 Decision Date: 02/11/13 Archive Date: 02/21/13 DOCKET NO. 12-07 768 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Winston-Salem, North Carolina THE ISSUES 1. Whether new and material evidence has been received to reopen a previously denied claim of entitlement to service connection for sores on both sides of the feet, also claimed as a skin rash on both feet, to include as due to an undiagnosed illness. 2. Whether new and material evidence has been received to reopen a previously denied claim of entitlement to service connection for breathing problems, to include as due to an undiagnosed illness. 3. Whether new and material evidence has been received to reopen a previously denied claim of entitlement to service connection for joint pain, to include as due to an undiagnosed illness. 4. Whether new and material evidence has been received to reopen a previously denied claim of entitlement to service connection for a stomach/intestinal condition, to include as due to an undiagnosed illness. 5. Whether new and material evidence has been received to reopen a previously denied claim of entitlement to service connection for degenerative joint disease of the thoracolumbar spine, also claimed as a back condition, to include as due to an undiagnosed illness. 6. Whether new and material evidence has been received to reopen a previously denied claim of entitlement to service connection for a bilateral knee condition, to include as due to an undiagnosed illness. 7. Whether new and material evidence has been received to reopen a previously denied claim of entitlement to service connection for muscle aches, to include as due to an undiagnosed illness. 8. Whether new and material evidence has been received to reopen a previously denied claim of entitlement to service connection for cardiomegaly, also claimed as an enlarged heart, to include as due to an undiagnosed illness. 9. Whether new and material evidence has been received to reopen a previously denied claim of entitlement to service connection for erectile dysfunction, to include as due to an undiagnosed illness. 10. Whether new and material evidence has been received to reopen a previously denied claim of entitlement to service connection for sebaceous cysts on the left arm, also claimed as growth on the left arm, to include as due to an undiagnosed illness. 11. Whether new and material evidence has been received to reopen a previously denied claim of entitlement to service connection for hypertension, to include as due to an undiagnosed illness. REPRESENTATION Appellant represented by: Nicolas Parr, Attorney at Law WITNESS AT HEARING ON APPEAL Appellant; R. O. ATTORNEY FOR THE BOARD H. Yoo, Counsel INTRODUCTION The Veteran had active service from June 1988 to February 1992. The Veteran's military occupational specialty was an Infantryman who was awarded the Combat Infantryman Badge. Furthermore, the Veteran served in Southwest Asia from September 1990 to March 1991. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an October 2010 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Winston-Salem, North Carolina. The Veteran testified before the undersigned Veterans Law Judge at a Travel Board hearing in September 2012. A transcript of this proceeding has been associated with the claims file. The request to reopen a previously denied claim of entitlement to service connection for sores on both sides of the feet, also claimed as a skin rash on both feet; breathing problems; joint pain; a stomach/intestinal condition; degenerative joint disease of the thoracolumbar spine, also claimed as a back condition; a bilateral knee condition; muscle aches; cardiomegaly, also claimed as an enlarged heart; erectile dysfunction; sebaceous cysts on the left arm, also claimed as growth on the left arm; and hypertension are granted herein, and the merits of the claims are addressed in the REMAND section of this decision. FINDINGS OF FACT 1. An August 1997 rating decision denied the Veteran's original claim for entitlement to service connection for sores on both sides of the feet, breathing problems, and joint pain. The Veteran was notified of his appellate rights, but did not timely appeal the decision. 2. An August 2006 rating decision denied the Veteran's original claim for entitlement to service connection for stomach/intestinal condition, a back condition, and a bilateral knee condition. The Veteran was notified of his appellate rights, but did not timely appeal the decision. 3. An August 2008 rating decision denied the Veteran's original claim for entitlement to service connection for muscle aches, cardiomegaly, erectile dysfunction, a sebaceous cyst on the left arm, and hypertension. The Veteran was notified of his appellate rights, but did not timely appeal the decision. 4. An August 2008 rating decision, the Veteran's claim to reopen the claim for entitlement to service connection for sores on both sides of the feet, breathing problems, joint pain, stomach/intestinal condition, degenerative joint disease of the thoracolumbar spine, and bilateral knee condition was denied. The Veteran was notified of his appellate rights, but did not timely appeal the decision. 5. Evidence received since the August 2008 decision is not cumulative of evidence previously considered and does raise a reasonable possibility of substantiating the claim of service connection for sores on both sides of the feet, breathing problems, joint pain, a stomach/intestinal condition, degenerative joint disease of the thoracolumbar spine, a bilateral knee condition, muscle aches, cardiomegaly, erectile dysfunction, a sebaceous cyst on the left arm, and hypertension. CONCLUSIONS OF LAW 1. The August 2008 rating decision denying service connection for sores on both sides of the feet, breathing problems, joint pain, a stomach/intestinal condition, degenerative joint disease of the thoracolumbar spine, a bilateral knee condition, muscle aches, cardiomegaly, erectile dysfunction, a sebaceous cyst on the left arm, and hypertension is final. 38 U.S.C.A. § 7105 (West 2002); 38 C.F.R. § 20.1103 (2012). 2. Since the August 2008 rating decision, new and material evidence has been received to reopen the claim of entitlement to service connection for sores on both sides of the feet, breathing problems, joint pain, a stomach/intestinal condition, degenerative joint disease of the thoracolumbar spine, a bilateral knee condition, muscle aches, cardiomegaly, erectile dysfunction, a sebaceous cyst on the left arm, and hypertension. 38 U.S.C.A. § 5108 (West 2002); 38 C.F.R. § 3.156 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. The Veterans Claims Assistance Act of 2000 (VCAA) VA has a statutory and regulatory duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2012). Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his or her representative, if any, of any information, and any medical or lay evidence, that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002). Proper notice from VA must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide. Pursuant to Kent v. Nicholson, 20 Vet. App. 1 (2006), the veteran must be apprised as to the requirements both as to the underlying service connection claim and as to the definitions of new and material evidence. Kent further requires that the notice inform the veteran as to the basis for the prior final denial and as to what evidence would be necessary to substantiate the claim. In light of the favorable outcome of this appeal with respect to the issue of whether new and material evidence has been submitted to reopen the claims (reopening of the claims by the Board), any perceived lack of notice or development is not prejudicial. See 38 U.S.C.A. §§ 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326 (2012). II. Merits of the Claims Legal Criteria In general, RO decisions are final. See 38 U.S.C.A. § 7105 (West 2002); 38 C.F.R. § 20.1100 (2012). Pursuant to 38 U.S.C.A. § 5108 (West 2002), a finally disallowed claim may be reopened when new and material evidence is presented or secured with respect to that claim. New evidence means existing evidence not previously submitted to agency decision makers. 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. See 38 C.F.R. § 3.156(a) (2012). To warrant reopening of a previously and finally disallowed claim, newly presented or secured evidence must not be cumulative of evidence of record at the time of the last prior final disallowance and must prove merits of the claim as to each central element that was specified as a basis for the last final disallowance of the claim. See Evans v. Brown, 9 Vet. App. 273, 285 (1996). An adjudicator must follow a two-step process in evaluating previously denied claims. First, the adjudicator must determine whether the evidence added to the record since the last final decision is new and material. If new and material evidence is presented or secured with respect to a claim that has been finally denied, the claim will be reopened and decided upon the merits. Once it has been determined that a claimant has produced new and material evidence, the adjudicator must evaluate the merits of the claim in light of all the evidence, both new and old, after ensuring that the VA's statutory duty to assist the appellant in the development of his claim has been fulfilled. See 38 U.S.C.A. § 5108 (West 2002); Elkins v. West, 12 Vet. App. 209 (1999); Vargas-Gonzalez v. West, 12 Vet. App. 321, 328 (1999). In addition, for the purpose of determining whether a case should be reopened, the credibility of the evidence added to the record is to be presumed. See Justus v. Principi, 3 Vet. App. 510, 513 (1992). In Shade v. Shinseki, 24 Vet. App. 110 (2010), the Court interpreted the language of 38 C.F.R. § 3.156(a) as creating a low threshold, and views the phrase "raises a reasonable possibility of substantiating the claim" as "enabling rather than precluding reopening." The Court emphasized that the regulation is designed to be consistent with 38 C.F.R. § 3.159(c)(4), which "does not require new and material evidence as to each previously unproven element of a claim." Therefore, it would be illogical to require that a claimant submit medical nexus evidence when he has provided new and material evidence as to another missing element, as it would "force the veteran to provide medical nexus evidence to reopen his claim so that he could be provided with a medical nexus examination by VA."' Analysis The Veteran's claims of service connection for sores on both sides of the feet, breathing problems, and joint pain was originally denied in an August 1997 rating decision; the Veteran was notified of the denial and he did not appeal the decision. Therefore, the August 1997 rating decision is final as to these claims. See 38 U.S.C.A. § 7105 (West 2002); 38 C.F.R. § 20.1103 (2012). The Veteran's claims of service connection for a stomach/intestinal condition, a back condition, and a bilateral knee condition were originally denied in a August 2006 rating decision; the Veteran was notified of the denial and he did not appeal the decision. Therefore, the August 2006 rating decision is final. See 38 U.S.C.A. § 7105 (West 2002); 38 C.F.R. § 20.1103 (2012). The Veteran subsequently attempted to reopen the claims for service connection for sores on both sides of the feet, breathing problems, joint pain, stomach/intestinal condition, degenerative joint disease of the thoracolumbar spine, and bilateral knee condition in January 2008. The RO denied the claims to reopen in a August 2008 rating decision. In addition, the Veteran's claims of service connection for muscle aches, cardiomegaly, erectile dysfunction, sebaceous cyst on the left arm, and hypertension were also denied in the August 2008 rating decision. The Veteran submitted a Notice of Disagreement in September 2008. A Statement of the Case was issued in July 2009. The Veteran, however, did not submit a timely substantive appeal. Rather, the Veteran's representative submitted a December 2009 letter requesting that the Veteran's claims remain open with a late filing of a Form 9. The applicable regulations provide that a substantive appeal must be filed within 60 days from the date that the agency of original jurisdiction mails the SOC to the veteran or within the remainder of the one-year period from the date of mailing of the notification of the determination being appealed, whichever comes later. 38 U.S.C.A. § 7105; 38 C.F.R. § 20.302(b). If a claimant fails to file a substantive appeal in a timely manner, and fails to timely request an extension of time, he or she is statutorily barred from appealing the RO decision. Roy v. Brown, 5 Vet. App. 554, 556 (1993). See also YT v. Brown, 9 Vet. App. 195 (1996); Cuevas v. Principi, 3 Vet. App. 542, 546 (1992). Cf. Rowell v. Principi, 4 Vet. App. 9 (1993). The RO notified the Veteran in a January 2010 letter that his substantive appeal was untimely and that his appeal was considered closed. The January 2010 letter explained that the representative's December 2009 letter will be construed as a request to reopen the claims. As such, the August 2008 rating decision became final. 38 C.F.R. §§ 20.200, 20.202, 20.1103. The August 2008 rating action, therefore, represents the last previous final decision on any basis as to the issue of whether the Veteran was entitled to service connection for sores on both sides of the feet, breathing problems, joint pain, stomach/intestinal condition, degenerative joint disease of the thoracolumbar spine, bilateral knee condition, muscle aches, cardiomegaly, erectile dysfunction, sebaceous cyst on the left arm, and hypertension. Evans v. Brown, 9 Vet. App. 273 (1996). As stated, the December 2009 letter from the Veteran's representative was construed as a request to reopen his claims. This resulted in the October 2010 rating denial which is the subject of the current appeal. The Veteran testified before the Board in September 2012. He stated that he injured his back during service while preparing for his tour in Iraq. Regarding his cardiomegaly and hypertension, the Veteran stated he first experienced chest pains in the early 1990s and discovered an enlarged heart in 2006 or 2007. He also stated he was told my his private physician, Dr. R.W.P., that his heart condition was related to stress and anxiety from stemming from his military service and his service connected posttraumatic stress disorder (PTSD). Regarding his muscle pain, bilateral knee condition, erectile dysfunction, joint pain, stomach/intestinal condition, and breathing problems, the Veteran testified he experiencing constant fatigue, muscle pain, shortness of breath, and hair loss (among other symptoms) either upon his return from the Persian Gulf or shortly after separation from service. The Veteran also described the treatment he received for his various conditions. Significantly, the Veteran testified that he was told by his private doctor, Dr. R.W.P. that his conditions possibly stemmed from his military service in the Persian Gulf. According to the record, since the August 2008 rating decision, the Veteran submitted numerous private and VA treatment records. He was also afforded a VA skin examination in February 2009 and a VA genitourinary examination in May 2009. The Board acknowledges the letters and treatment records from Dr. R.W.P. Since the August 2008 rating decision, Dr. R.W.P. submitted a October 2009 letter stating that he believes the Veteran's conditions stemmed from his Gulf War service. Dr. R.W.P. explained that the Veteran's conditions were either undiagnosed illnesses or a combination of undiagnosed illnesses that either appeared during active duty during the Gulf War or within a presumptive period following service in the Gulf War. As the Court stated in Shade v. Shinseki, the threshold for determining whether new and material evidence raises a reasonable possibility of substantiating a claim is "low." 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 Shade, supra. The totality of the new evidence reflects the Veteran has consistently reported his conditions were related to his military service, particularly his service in the Gulf War. The Veteran has also submitted numerous treatment records which reflect a possible nexus between his service in the Gulf War and his current condition. Here, this newly submitted medical evidence satisfies the "low threshold" necessary to trigger VA's duty to provide the Veteran with a VA medical examination. See McLendon v. Nicholson, 20 Vet. App. 79 (2006). Therefore, since there is new and material evidence, the claim is reopened. 38 U.S.C.A. § 5108; 38 C.F.R. § 3.156. ORDER As new and material evidence has been received, the claim for entitlement to service connection for sores on both sides of the feet, claimed as a skin rash on both feet, to include as due to an undiagnosed illness, is reopened and, to that extent only, the appeal is granted. As new and material evidence has been received, the claim for entitlement to service connection for breathing problems, to include as due to an undiagnosed illness, is reopened and, to that extent only, the appeal is granted. As new and material evidence has been received, the claim for entitlement to service connection for joint pain, to include as due to an undiagnosed illness, is reopened and, to that extent only, the appeal is granted. As new and material evidence has been received, the claim for entitlement to service connection for a stomach/intestinal condition, to include as due to an undiagnosed illness, is reopened and, to that extent only, the appeal is granted. As new and material evidence has been received, the claim for entitlement to service connection for degenerative joint disease of the thoracolumbar spine, also claimed as a back condition, to include as due to an undiagnosed illness, is reopened and, to that extent only, the appeal is granted. As new and material evidence has been received, the claim for entitlement to service connection for a bilateral knee condition, to include as due to an undiagnosed illness, is reopened and, to that extent only, the appeal is granted. As new and material evidence has been received, the claim for entitlement to service connection for muscle aches, to include as due to an undiagnosed illness, is reopened and, to that extent only, the appeal is granted. As new and material evidence has been received, the claim for entitlement to service connection for cardiomegaly, claimed as an enlarged heart, to include as due to an undiagnosed illness, is reopened and, to that extent only, the appeal is granted. As new and material evidence has been received, the claim for entitlement to service connection for erectile dysfunction, to include as due to an undiagnosed illness, is reopened and, to that extent only, the appeal is granted. As new and material evidence has been received, the claim for entitlement to service connection for sebaceous cysts on the left arm, claimed as growth on the left arm, to include as due to an undiagnosed illness, is reopened and, to that extent only, the appeal is granted. As new and material evidence has been received, the claim for entitlement to service connection for hypertension, to include as due to an undiagnosed illness, is reopened and, to that extent only, the appeal is granted. REMAND A remand is required in this case. Although the Board sincerely regrets the additional delay, it is necessary to ensure that there is a complete record upon which to decide the Veteran's claim so that he is afforded every possible consideration. The VA has a duty to assist claimants in obtaining evidence needed to substantiate a claim. 38 U.S.C.A. §§ 5107(a) 5103A (West 2002); 38 C.F.R. § 3.159(c) (2012). The Veteran claims that his service in the Gulf War has led to his numerous conditions. As stated above, he has testified at the September 2012 hearing that his symptoms started during soon after his return from the Gulf War or shortly after separation from service. At the outset, the Board recognizes that several records are absent from the claims file. The RO must secure any outstanding records and associated them with the claims files. 38 U.S.C.A. § 5103A(c) (West 2002); see also Bell v. Derwinski, 2 Vet. App. 611 (1992) (VA medical records are in constructive possession of the agency, and must be obtained if the material could be determinative of the claim). First, the Veteran testified that he is still receiving treatment from the VA Medical Center at Fayetteville, North Carolina. The Board notes that the most recent VA medical record within the claims file is the May 2009 VA genitourinary examination. As such, all VA treatment records since 2009 should be obtained and associated with the claims file. In addition, the Veteran submitted several letters from private treatment doctors. However, although these letters describe the Veteran's conditions, treatment, and any conclusions regarding etiology, the Board finds that the treatment records are absent from the record and necessary for review. As such, all private treatment records (namely from Dr. R.W.P., Dr. R.G.W., Dr. P.K., and Dr. M.K.A.) should be obtained and associated with the claims file. Finally, as previously discussed, the Veteran claims his numerous conditions began after his return from his service in the Gulf War, and was advised by medical professionals that his conditions may stem from his military service. A medical opinion has not been obtained to determine if any current condition is related to the Veteran's service or a service-connected disability. As such, a VA examination is necessary in this case. The Veteran is a Persian Gulf War veteran and may be entitled to service connection for an undiagnosed illnesses manifested by his symptoms if certain conditions are met. See 38 C.F.R. § 3.317. One requirement is that a qualifying chronic disability manifest to a degree of 10 percent or more. See id. The Veteran has not been provided a VA examination to determine the extent and history of his conditions, and it is unclear from the evidence of record if the Veteran's complaints could warrant a compensable evaluation. As such, a VA examination is necessary in this case. Given the above, the Board finds that VA's duty to provide VA examinations and obtain medical opinions regarding the claims for entitlement to service connection for sores on both sides of the feet, breathing problems, joint pain, stomach/intestinal condition, degenerative joint disease of the thoracolumbar spine, bilateral knee conditions, muscle aches, cardiomegaly, erectile dysfunction, sebaceous cyst on the left arm, and hypertension, has been triggered. See McLendon v. Nicholson, 20 Vet. App. 79 (2006) (stipulating that VA's duty to assist veterans, pursuant to the VCAA, includes the duty to obtain a medical examination and/or opinion when necessary to make a decision on a claim). Thus, the issues must be remanded so that the Veteran may be afforded VA examinations and medical opinions can be obtained. Accordingly, the case is REMANDED for the following action: 1. Contact the appropriate VA medical facilities, namely the VA Medical Center at Fayetteville, North Carolina, and obtain and associate with the claims file all outstanding records of treatment since 2009. In addition, obtain all private treatment records (namely from Dr. R.W.P., Dr. R.G.W., Dr. P.K., and Dr. M.K.A.) which have not been obtained already. The AMC should contact the Veteran and request that he provide a completed release form (VA Form 21- 4142) authorizing VA to request copies of any treatment records from any private medical providers who have treated him for his claimed conditions. If any requested records are not available, or the search for any such records otherwise yields negative results, that fact must clearly be documented in the claims file. Efforts to obtain these records must continue until it is determined that they do not exist or that further attempts to obtain them would be futile. The non-existence or unavailability of such records must be verified and this should be documented for the record. Notice must be provided to the Veteran and his representative. The notice must contain the identity of the records the VA was unable to obtain, an explanation of the efforts the VA made to obtain the records, a description of any further action the VA will take regarding the claim and a notice that the Veteran is ultimately responsible for providing the evidence. The AMC should also inform the Veteran that he can also provide alternative forms of evidence. 2. Once all outstanding records have been obtained and associated with the claims file, afford the Veteran a VA examination with an appropriate examiner in order to ascertain the nature and etiology of the Veteran's claimed disability of muscle aches, back condition, joint pain, and bilateral knee condition, to include as due to undiagnosed illness. The VA examiner is requested to address the following questions, providing a rationale for each opinion offered: Is it at least as likely as not (50 percent or greater probability) that any disorder involving muscle aches, back condition, joint pain, and bilateral knee condition, now present originated during service or is otherwise attributable to military service or any event thereof, or alternatively, is it at least as likely as not (50 percent or greater probability) that the Veteran's complaints of muscle aches, back condition, joint pain, and bilateral knee condition are indicative of any undiagnosed illness attributable to his service in the Southwest Asia Theatre Operations during the Gulf War? The examiner is advised that the term as likely as not does not mean within the realm of possibility. Rather, it means that the weight of medical evidence both for and against a conclusion is so evenly divided that it is medically sound to find in favor of service incurrence as to find against such matter. More likely and as likely support the contended relationship; less likely weighs against the claim. The claims files must be made available to and reviewed by the examiner in conjunction with the examination, and the examination report should reflect that such a review was made. All pertinent symptomatology and findings should be reported in detail. Any indicated diagnostic tests and studies should be accomplished. The Veteran's complaints and lay history should be recorded in full and addressed. A rationale for any opinion expressed must be provided. If the examiner opines that any of the above questions cannot be resolved without resorting to speculation, then a detailed medical explanation as to why this is so must be provided. 3. Once all outstanding records have been obtained and associated with the claims file, afford the Veteran a VA examination with an appropriate examiner in order to ascertain the nature and etiology of the Veteran's claimed disability of sores on both sides of the feet, also claimed as a skin rash on both feet, to include as due to undiagnosed illness. The VA examiner is requested to address the following questions, providing a rationale for each opinion offered: Is it at least as likely as not (50 percent or greater probability) sores on both sides of the feet and/or sebaceous cysts on the left arm originated in or during service or is otherwise attributable to military service or any event thereof, or alternatively, is it at least as likely as not (50 percent or greater probability) that the Veteran's complaints are indicative of any undiagnosed illness attributable to his service in the Southwest Asia Theatre Operations during the Gulf War? The examiner is advised that the term as likely as not does not mean within the realm of possibility. Rather, it means that the weight of medical evidence both for and against a conclusion is so evenly divided that it is medically sound to find in favor of service incurrence as to find against such matter. More likely and as likely support the contended relationship; less likely weighs against the claim. A rationale for any opinion expressed must be provided. If the examiner opines that any of the above questions cannot be resolved without resorting to speculation, then a detailed medical explanation as to why this is so must be provided. The claims files must be made available to and reviewed by the examiner in conjunction with the examination, and the examination report should reflect that such a review was made. All pertinent symptomatology and findings should be reported in detail. Any indicated diagnostic tests and studies should be accomplished. The Veteran's complaints and lay history should be recorded in full and addressed. 4. Once all outstanding records have been obtained and associated with the claims file, afford the Veteran a VA examination with an appropriate examiner in order to ascertain the nature and etiology of the Veteran's claimed disability manifested by breathing problems, to include as due to undiagnosed illness. The VA examiner is requested to address the following questions, providing a rationale for each opinion offered: Is it at least as likely as not (50 percent or greater probability) the Veteran's breathing problems originated in or during service or is otherwise attributable to military service or any event thereof, or alternatively, is it at least as likely as not (50 percent or greater probability) that the Veteran's complaints are indicative of any undiagnosed illness attributable to his service in the Southwest Asia Theatre Operations during the Gulf War? The examiner is advised that the term as likely as not does not mean within the realm of possibility. Rather, it means that the weight of medical evidence both for and against a conclusion is so evenly divided that it is medically sound to find in favor of service incurrence as to find against such matter. More likely and as likely support the contended relationship; less likely weighs against the claim. A rationale for any opinion expressed must be provided. If the examiner opines that any of the above questions cannot be resolved without resorting to speculation, then a detailed medical explanation as to why this is so must be provided. The claims files must be made available to and reviewed by the examiner in conjunction with the examination, and the examination report should reflect that such a review was made. All pertinent symptomatology and findings should be reported in detail. Any indicated diagnostic tests and studies should be accomplished. The Veteran's complaints and lay history should be recorded in full and addressed. 5. Once all outstanding records have been obtained and associated with the claims file, afford the Veteran a VA examination with an appropriate examiner in order to ascertain the nature and etiology of the Veteran's claimed disability of a stomach/intestinal condition, to include as due to undiagnosed illness. The VA examiner is requested to address the following questions, providing a rationale for each opinion offered: Is it at least as likely as not (50 percent or greater probability) the stomach/intestinal condition originated in or during service or is otherwise attributable to military service or any event thereof, or alternatively, is it at least as likely as not (50 percent or greater probability) that the Veteran's complaints are indicative of any undiagnosed illness attributable to his service in the Southwest Asia Theatre Operations during the Gulf War? The examiner is advised that the term as likely as not does not mean within the realm of possibility. Rather, it means that the weight of medical evidence both for and against a conclusion is so evenly divided that it is medically sound to find in favor of service incurrence as to find against such matter. More likely and as likely support the contended relationship; less likely weighs against the claim. A rationale for any opinion expressed must be provided. If the examiner opines that any of the above questions cannot be resolved without resorting to speculation, then a detailed medical explanation as to why this is so must be provided. The claims files must be made available to and reviewed by the examiner in conjunction with the examination, and the examination report should reflect that such a review was made. All pertinent symptomatology and findings should be reported in detail. Any indicated diagnostic tests and studies should be accomplished. The Veteran's complaints and lay history should be recorded in full and addressed. 6. Once all outstanding records have been obtained and associated with the claims file, afford the Veteran a VA examination with an appropriate examiner in order to ascertain the nature and etiology of the Veteran's claimed cardiomegaly, also claimed as an enlarged heart, and hypertension, to include as due to undiagnosed illness. The VA examiner is requested to address the following questions, providing a rationale for each opinion offered: Is it at least as likely as not (50 percent or greater probability) the Veteran's enlarged heart and/or hypertension originated in or during service or is otherwise attributable to military service or any event thereof, or alternatively, is it at least as likely as not (50 percent or greater probability) that the Veteran's complaints are indicative of any undiagnosed illness attributable to his service in the Southwest Asia Theatre Operations during the Gulf War? Additionally, it is at least as likely as not (at least a 50 percent probability) that either disorder found on examination was incurred in or aggravated by his service connected PTSD. The examiner is advised that the term as likely as not does not mean within the realm of possibility. Rather, it means that the weight of medical evidence both for and against a conclusion is so evenly divided that it is medically sound to find in favor of service incurrence as to find against such matter. More likely and as likely support the contended relationship; less likely weighs against the claim. A rationale for any opinion expressed must be provided. If the examiner opines that any of the above questions cannot be resolved without resorting to speculation, then a detailed medical explanation as to why this is so must be provided. The claims files must be made available to and reviewed by the examiner in conjunction with the examination, and the examination report should reflect that such a review was made. All pertinent symptomatology and findings should be reported in detail. Any indicated diagnostic tests and studies should be accomplished. The Veteran's complaints and lay history should be recorded in full and addressed. 7. Once all outstanding records have been obtained and associated with the claims file, afford the Veteran a VA examination with an appropriate examiner in order to ascertain the nature and etiology of the Veteran's claimed erectile dysfunction, to include as due to undiagnosed illness. The VA examiner is requested to address the following questions, providing a rationale for each opinion offered: Is it at least as likely as not (50 percent or greater probability) erectile dysfunction originated in or during service or is otherwise attributable to military service or any event thereof, or alternatively, is it at least as likely as not (50 percent or greater probability) that the Veteran's complaints are indicative of any undiagnosed illness attributable to his service in the Southwest Asia Theatre Operations during the Gulf War? The examiner is advised that the term as likely as not does not mean within the realm of possibility. Rather, it means that the weight of medical evidence both for and against a conclusion is so evenly divided that it is medically sound to find in favor of service incurrence as to find against such matter. More likely and as likely support the contended relationship; less likely weighs against the claim. A rationale for any opinion expressed must be provided. If the examiner opines that any of the above questions cannot be resolved without resorting to speculation, then a detailed medical explanation as to why this is so must be provided. The claims files must be made available to and reviewed by the examiner in conjunction with the examination, and the examination report should reflect that such a review was made. All pertinent symptomatology and findings should be reported in detail. Any indicated diagnostic tests and studies should be accomplished. The Veteran's complaints and lay history should be recorded in full and addressed. 8. Then, after ensuring any other necessary development has been completed, readjudicate the Veteran's claims. If action remains adverse to the Veteran, provide the Veteran and his representative with a supplemental statement of the case and allow an appropriate opportunity to respond. Thereafter, the case should be returned to the Board. The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2012). ______________________________________________ WAYNE M. BRAEUER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs