Citation Nr: 1309317 Decision Date: 03/19/13 Archive Date: 04/01/13 DOCKET NO. 04-02 543 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUES 1. Whether new and material evidence has been received to reopen a claim of entitlement to service connection for hypertension. 2. Entitlement to service connection for an acquired psychiatric disorder, to include posttraumatic stress disorder (PTSD) and major depressive disorder. 3. Entitlement to a compensable disability rating for allergic rhinitis. 4. Entitlement to a compensable disability rating for gastritis. REPRESENTATION Appellant represented by: Vietnam Veterans of America WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD C. Eckart, Counsel INTRODUCTION The Veteran had active service from April 1966 to May 1972, and additional duty with the Air National Guard, including the Michigan Air National Guard from May 1972 to February 1974, and the California Air National Guard from February 1978 to October 1980. He is also shown to have served with the Air National Guard in Charlestown, South Carolina from July 1982 through July 1985. This matter came to the Board of Veterans' Appeals (Board) from rating decisions of a Department of Veterans Affairs (VA) Regional Office (RO). In a January 2003 rating decision, the RO determined that new and material evidence had not been received to reopen the claim of entitlement to service connection for hypertension. In a September 2003 rating decision, the RO determined that new and material evidence had not been received to reopen the Veteran's claim of entitlement to service connection for PTSD, and denied entitlement to compensable disability ratings for allergic rhinitis and gastritis. A request for a hearing before a member of the Board at the RO (Travel Board), was withdrawn by the Veteran in April 2006. In June 2008, the Board determined that new and material evidence had been received to reopen the claim of entitlement to service connection for PTSD; determined that new and material evidence had not been received to reopen the claim of entitlement to service connection for hypertension; and remanded for additional development the issues of service connection for PTSD, on the merits, and increased evaluations for allergic rhinitis and gastritis. The Veteran filed a timely appeal to the United States Court of Appeals for Veterans Claims (Court). Per a March 2010 Partial Joint Motion for Remand (PJMR) and Court Order, the Board's decision with regard to the determination that new and material evidence had not been received to reopen the claim of entitlement to service connection for hypertension was vacated and remanded for compliance with instructions in the PJMR. In September 2011, the Board remanded all four appellate issues to the RO for further development and reajudication. In this September 2011 remand, the Board characterized the Veteran's PTSD claim as one for service connection for an acquired psychiatric disorder, to include PTSD. See Clemons v. Shinseki, 23 Vet. App. 1 (2009) (per curiam order) (it is the responsibility of the Board to consider alternate current conditions within the scope of the claim). Thus the issue has been characterized to encompass potentially pertinent psychiatric disorders, including PTSD and major depressive disorder. The case has been returned to the Board for further consideration. In a January 2013 informal hearing, the Veteran's representative requested consideration of 38 C.F.R. § 3.324. THIS MATTER IS REFERRED TO THE RO FOR APPROPRIATE ACTION. The issues of whether new and material evidence has been received to reopen a claim of entitlement to service connection for hypertension and entitlement to service connection for an acquired psychiatric disorder, to include posttraumatic stress disorder (PTSD) and major depressive disorder are addressed in the REMAND portion of the decision below and are REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDINGS OF FACT 1. The Veteran's service-connected allergic rhinitis is not manifested by polyps or greater than 50-percent obstruction of nasal passage on both sides or complete obstruction on one side. 2. The Veteran's service-connected gastritis is manifested by occasional symptoms of pyrosis upon eating certain foods, rare hiccups, and occasional episodes constipation and diarrhea; with symptoms controlled by diet without use of medications. Such symptoms fail to more closely resemble those of chronic gastritis with small nodular lesions and symptoms. CONCLUSIONS OF LAW 1. The criteria for a compensable evaluation for allergic rhinitis have not been met. 38 U.S.C.A. §§ 1155 , 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.102 , 3.159, 4.1, 4.2, 4.3, 4.6, 4.7, 4.10, 4.97, Diagnostic Code 6522 (2012). 2. The criteria for a compensable rating for service-connected gastritis have not been met. 38 U.S.C.A. §§ 1155 , 5107(b) (West 2002); 38 C.F.R. §§ 4.7 , 4.20, 4.114, Diagnostic Codes 7307 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION Duty to Notify Under the Veterans Claims Assistance Act of 2000 (VCAA), codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107 and 5126; see also 38 C.F.R. §§ 3.102, 3.156(a), and 3.326(a), VA has a duty to notify the claimant of any information and evidence needed to substantiate and complete a claim, and of what part of that evidence is to be provided by the claimant and what part VA will attempt to obtain for the claimant. 38 U.S.C.A. § 5103(a); 38 C.F.R § 3.159(b)(1); Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002). In Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006), the Court held that the VCAA notice requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) apply to all five elements of a service connection claim. Those five elements include: 1) Veteran status; 2) existence of a disability; 3) a connection between the Veteran's service and the disability; 4) degree of disability; and 5) effective date of the disability. In Pelegrini v. Principi, 18 Vet. App. 112 (2004), the Court held that a VCAA notice, as required by 38 U.S.C.A. § 5103(a), must be provided to a claimant before the initial unfavorable AOJ decision on the claim for VA benefits. In the present case, notice was provided to the Veteran prior to the September 2003 adjudication of his increased rating claim in a letter dated in August 2003. Thereafter additional notice was provided including letter dated in March 2006, July 2008, December 2011 and August 2012. The March 2006 and July 2007 notices advised the Veteran of the of the evidence and information necessary to establish a disability rating and an effective date in accordance with Dingess/Hartman, supra. The case was readjudicated in November 2012. Under these circumstances, the Board finds that the notification requirements have been satisfied as to both timing and content. Adequate notice was provided to the Veteran prior to the transfer and certification of his case to the Board that complied with the requirements of 38 U.S.C. § 5103(a) and 38 C.F.R. § 3.159(b) . Duty to Assist Furthermore, the Board finds that there has been compliance with the assistance provisions set forth in the law and regulations. The record in this case includes service treatment records, VA treatment records, private treatment records, and VA examination reports. The electronic folder has also been reviewed. The Board finds that the record as it stands includes adequate competent evidence to allow the Board to decide the case and no further action is necessary. See generally 38 C.F.R. § 3.159(c)(4). No additional pertinent evidence has been identified by the claimant. Also, the Veteran received multiple VA medical examinations in this case, with his most recent examination taking place in November 2012. 38 U.S.C.A. § 5103A(d); 38 C.F.R. § 3.159(c)(4). The Board notes that the VA examination reports contain sufficiently specific clinical findings and informed discussion of the pertinent features of the Veteran's rhinitis and gastritis disorders. The reports, prepared by a competent medical expert and informed by direct inspection and interview of the Veteran, provide probative medical evidence concerning the features of disability applicable to the rating criteria in this case. The examination reports obtained contains sufficient information to decide the issue on appeal. See Massey v. Brown, 7 Vet.App. 204 (1994). Thus, the Board finds that a further examination is not necessary. For all the foregoing reasons, the Board concludes that VA's duties to the claimant have been fulfilled with respect to the issues on appeal decided at this time. Analysis-Increased Rating The issues on appeal involves the Veteran's contention that a higher disability rating is warranted for his service-connected rhinitis and gastritis disorders. Disability evaluations are determined by the application of the Schedule For Rating Disabilities, which assigns ratings based on the average impairment of earning capacity resulting from a service-connected disability. 38 U.S.C.A. § 1155; 38 C.F.R. Part 4. Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. The Veteran's entire history is to be considered when making disability evaluations. See generally 38 C.F.R. § 4.1 (2008); Schafrath v. Derwinski, 1 Vet. App. 589 (1995). Where entitlement to compensation already has been established and an increase in the disability rating is at issue, it is the present level of disability that is of primary concern. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994). Nevertheless, where the evidence contains factual findings that show a change in the severity of symptoms during the course of the rating period on appeal, assignment of staged ratings would be permissible. Hart v. Mansfield, 21 Vet. App. 505 (2007). Rhinitis-Factual Background and Analysis Service connection for rhinitis was granted by the RO in a January 2002 rating decision, with an initial noncompensable rating assigned. The Veteran filed a written claim for increased rating in June 2003; however he is noted to have expressed an intent to pursue a claim for rhinitis at a RO hearing held in October 2002, thus it appears that the October 2002 hearing testimony serves as an informal claim for increase. The noncompensable rating was confirmed and continued in the September 2003 rating on appeal. The RO assigned the noncompensable disability evaluation for the Veteran's service- connected allergic rhinitis under Diagnostic Code 6522, which provides ratings for allergic or vasomotor rhinitis. See 38 C.F.R. § 4.97. Diagnostic Code 6522. Under this Diagnostic Code, allergic or vasomotor rhinitis without polyps, but with greater than 50-percent obstruction of nasal passage on both sides or complete obstruction on one side, is rated 10 percent disabling. Allergic or vasomotor rhinitis with polyps is rated 30 percent disabling. 38 C.F.R. § 4.97. Lay evidence includes testimony from an October 2002 hearing (prior to the June 2003 claim), wherein the Veteran described continuous symptoms of stuffiness, drainage, and difficulty breathing through the nose. He indicated there would be times that one nostril will be completely closed. He noted his discharge was occasionally off color but was unsure if it was purulent. He denied taking medications, stating he self treated by using steam from a hot washcloth. Among the evidence pertinent to this claim is a November 2002 VA examination which in part addressed his rhinitis. He stated his symptoms are seasonal, but are perennial and consist of nasal congestion and watery discharge for which he takes no medications, including over the counter medications. Examination of his nose revealed slight nasal congestion and watery discharge. The tonsils were atrophic. The throat was negative. For further evaluation, some routine lab tests, including chest X-rays and EKG were ordered. The Veteran is also noted to have declined further testing, including these, saying he had them done by his private doctor. The diagnosis was allergic rhinitis, chronic, mild. Private treatment records primarily addressed other matters, with no mention of rhinitis, and findings from a July 2005 examination revealed the nose/sinuses and pharynx were normal. The report of an April 2006 VA ear nose and throat examination revealed a history of perennial allergic rhinitis. He stated that this interfered with breathing through his nose daily. He had clear but not purulent discharge. He had some dyspnea at rest. He reported some sinus pain occasionally but no headache. He experienced daily blockage and congestion of his nose. He had no incapacitating episodes due to this condition. He did note daily itching of his eyes, nose and soft palate and daily sneezing. Physical examination was negative for nasal polyps. He had erythematous mucosa with clear discharge. He had erythema in the right external auditory canal. There was no sinus tenderness and no purulent discharge from the nose or sinus. He had no obstruction to the nostrils on examination. The report of a January 2012 VA examination for rhinitis revealed the Veteran to have a diagnosis of allergic rhinitis since the 1970's. There was no evidence of the Veteran having a greater than 50 percent obstruction of the nasal passages on both sides, nor of complete obstruction on one side nor permanent hypertrophy of the nasal turbinates. He also had no evidence of nasal polyps or any granulatomous conditions. No other pertinent physical findings, complications, conditions signs and/or symptoms related to the diagnosed condition were shown. No further testing such as endoscopy, biopsy of the larynx or pharynx, pulmonary function testing, or other significant diagnostic testing was done. The examiner determined that the Veteran's sinus, nose, throat, larynx or pharynx condition did not impact his ability to work. Based upon a review of the record, the Board finds that there is a preponderance of evidence against a finding that the criteria for a compensable evaluation for allergic rhinitis under Diagnostic Code 6522 have been met. In order to warrant a 10 percent rating under Diagnostic Code 6522, greater than 50-percent obstruction of nasal passage on both sides or complete obstruction on one side must be shown. In the November 2002 VA examination, the Veteran is shown to have refused tests including X-ray which could have provided information pertinent to the extent of any nasal blockage. See Wood v. Derwinski, 1 Vet. App. 190 (1990) (in which the Court stipulated that the duty to assist is not a one way street and that an appellant must do more that passively wait for assistance when he/she has information essential to his/her claim). In the April 2006 and January 2012 VA examinations, there was no evidence of a greater than 50-percent obstruction of nasal passage on both sides or complete obstruction on one side. No obstruction was shown in the April 2006 examination, and in the January 2012 examination, the examiner noted no evidence of the Veteran having a greater than 50 percent obstruction of the nasal passages on both sides, nor of complete obstruction on one side nor permanent hypertrophy of the nasal turbinate. Thus, the Veteran's allergic rhinitis is not manifested by greater than 50-percent obstruction of nasal passage on both sides or complete obstruction on one side. The Board recognizes the Veteran's contention that he has obstruction of his nasal passages. However, the medical finding that there was no obstruction of the Veteran's nasal passages, which was noted by a VA physician, is of significantly greater probative value than the Veteran's lay statements regarding his nasal obstruction, by virtue of the physician's education and training in determining such a medical finding. The Federal Circuit has held that lay evidence is one type of evidence that must be considered and competent lay evidence can be sufficient in and of itself. The Board, however, retains the discretion to make credibility determinations and otherwise weigh the evidence submitted, including lay evidence. See Buchanan v. Nicholson, 451 F.3d 1331, 1335 (Fed. Cir. 2006). This would include weighing the VA physician's determination that there was no obstruction of the Veteran's nasal passages against the Veteran's lay statements that he has nasal obstruction. There is no evidence that a compensable rating under any other potentially applicable Diagnostic Codes is warranted as there is no evidence of sinusitis, nasal disfigurement (including loss of part of the nose or scars), deviated septum, bacterial rhinitis or granulomatous rhinitis. Thus consideration of other Diagnostic Codes 6502, 6504, 6510-6514, 6523 or 6524 is not warranted. The Board notes that the Veteran's allergic rhinitis is also not manifested by any nasal polyps. Under these circumstances, an initial or staged compensable rating for allergic rhinitis is not warranted. In reaching this decision, the Board considered the doctrine of reasonable doubt. However, since the preponderance of the evidence is against the claim, the benefit of the doubt doctrine does not apply. 38 U.S.C.A. § 5107(b); Ortiz v. Principi, 274 F.3d 1361, 1364, 1365 (Fed. Cir. 2001) (holding that "the benefit of the doubt rule is inapplicable when the preponderance of the evidence is found to be against the claimant"); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Finally, the Board has considered whether there is evidence showing that the Veteran's service-connected allergic rhinitis should be referred for assignment of an extraschedular rating. The record does not show that this disability has markedly interfered with his employment status beyond that interference contemplated by the assigned rating, and there is also no indication that this disability has necessitated frequent, or indeed any, periods of hospitalization during the pendency of this appeal. In the absence of an unusual disability picture such as one involving marked interference with employment or frequent hospitalization, the Board is not required to remand this matter to the RO for the procedural actions outlined in 38 C.F.R. § 3.321(b)(1) , which concern the assignment of extra-schedular evaluations in "exceptional" cases. See Thun v. Peake, 22 Vet. App. 111 (2008). Gastritis-Factual Background and Analysis Service connection for gastritis was granted by the RO in a January 2002 rating decision, with an initial noncompensable rating assigned. The Veteran filed a written claim for increased rating in June 2003; however he is noted to have expressed an intent to pursue a claim for gastritis at a RO hearing held in October 2002, thus it appears that the October 2002 hearing testimony serves as an informal claim for increase. The noncompensable rating was confirmed and continued in the September 2003 rating on appeal. The RO assigned the noncompensable disability evaluation for the Veteran's gastritis under Diagnostic Code 7307 which provides ratings for gastritis (identified by gastroscope). See 38 C.F.R. § 4.114, Diagnostic Code 7307. Under Diagnostic Code 7307, a 10 percent rating is warranted for chronic gastritis with small nodular lesions, and symptoms. A 30 percent rating is warranted for chronic gastritis with multiple small eroded or ulcerated areas, and symptoms. Ratings under Diagnostic Codes 7301 to 7329, inclusive, 7331, 7342, and 7345 to 7348, inclusive, will not be combined with each other. Instead, a single evaluation will be assigned under the diagnostic code that reflects the predominant disability picture, with elevation to the next higher evaluation where the severity of the overall disability warrants such elevation. 38 C.F.R. § 4.114 . Among the evidence pertinent to this claim is a November 2002 VA examination which in part addressed his gastritis. He gave a history of treatment in service, but review of a prior VA examination of 1999 revealed the examiner at that time had found the Veteran to have no significant gastrointestinal symptoms that would require further examination. When questioned regarding any gastrointestinal complaints, the Veteran gave very vague answers as to any symptoms he experiences. On physical examination, he had no organs or masses palpable. There was no abdominal tenderness. The diagnosis was gastritis, history of. The Veteran does not have significant gastrointestinal symptoms to warrant further evaluation at this time. The Veteran is also noted to have declined further testing, including lab, saying he had them done by his private doctor. Additionally, at an October 2002 hearing, the Veteran while expressing an intent to pursue the increased rating claim for gastritis, declined to testify regarding this condition. See Wood, supra. Private records from 2003 included a May 2003 record treating complaints of diarrhea 10-11 times for one day, without abdominal pain. The same month a record noted that he was referred for colon evaluation in 2001 but never followed through. He had a family history of colon cancer and rectal bleed. Private treatment records from 2005 include a July 2005 record which indicated the Veteran had some rectal bleeding, with a family history of colon cancer. On physical examination in the same month, his abdomen was noted to be moderately obese, with no masses, tenderness, or other significant findings. The report of an April 2006 VA stomach examination documented the Veteran's complaints of gastritis in the military which he attributed to stress. He had no vomiting, hematoemesis or melena. He was not currently taking any medications for gastritis. He had no circulatory or hypoglycemic reactions post prandially. He did occasionally note constipation. There was no colic or abdominal distension. He did have nausea, more so in the morning. This could occur from daily to every couple of weeks. This was moderate in severity. He also noted rare hiccups and occasional anorexia. He had no weight loss but had a 20 pound weight gain in the last year. He was never diagnosed with an ulcer. Examination revealed no signs of anemia, with pink mucus membranes noted. There was no tenderness in the abdomen or pain on palpation. Bowel sounds were normoactive throughout all 4 quadrants of the abdomen. He had nonpalpable organs in the abdomen. The diagnosis was gastritis. The report of a January 2012 VA examination for stomach and duodenal conditions revealed the Veteran to have a diagnosis of gastritis. The records were noted to indicate treatment for gastritis in the service. The Veteran denied having undergone any diagnostic studies for this. He took no medications for this and was rarely bothered by any gastrointestinal symptoms. He did report that he occasionally developed pyrosis after dietary indiscretions (such as red pepper). For the most part his symptoms were controlled by watching his diet. His signs and symptoms included recurring episodes of symptoms that were not severe, about 4 days or more per year. The duration of such symptoms lasted less than 1 day. No other symptoms (such as abdominal pain, anemia, weight loss, nausea, vomiting, hematemesis, or melena) were shown to be reported. The Veteran had no incapacitating symptoms. No other conditions (such as hypertrophic gastritis, postgastrectomy syndrome, vagotomy or peritoneal adhesions) were reported. He had no testing conducted. The functional impact of his stomach condition did not impact his ability to work. Based upon a review of the record, the Board finds that there is a preponderance of evidence against a finding that the criteria for a compensable evaluation gastritis under Diagnostic Code 7307 have been met. As the foregoing evidence shows, for the pendency of this appeal the Veteran's gastrointestinal disorder is shown to be manifested by occasional symptoms of pyrosis upon eating certain foods, rare hiccups and occasional constipation and diarrhea. He took no medication, and in the January 2012 VA examination, he described only rare symptoms. His symptoms were mostly controlled by diet. There is no functional loss, attributable to the gastrointestinal disorder. There is no objective evidence to show that the symptoms were of the type and severity that more nearly approximate the criteria for compensable rating. There is no evidence that his gastritis disorder more closely resembles a chronic gastritis with small nodular lesions and symptoms, as required for a 10 percent rating under Diagnostic Code 7307. There is no evidence that a compensable rating under any other potentially applicable Diagnostic Codes is warranted as there is no evidence of impairment of the esophagus (to include stricture, spasm or diverticulum), ulcers, postgastrectomy syndrome, vagotomy or peritoneal adhesions shown. Thus consideration of other potentially applicable Diagnostic Codes 7203-7306, and 7308 is not warranted. As the criteria for a 10 percent rating have not been demonstrated the preponderance of the evidence is against the claim and the benefit-of-the-doubt standard of proof does not apply. 38 U.S.C.A. § 5107(b). Finally, the Board has considered whether there is evidence showing that the Veteran's service-connected gastritis should be referred for assignment of an extraschedular rating. The record does not show that this disability has markedly interfered with his employment status beyond that interference contemplated by the assigned rating, and there is also no indication that this disability has necessitated frequent, or indeed any, periods of hospitalization during the pendency of this appeal. In the absence of an unusual disability picture such as one involving marked interference with employment or frequent hospitalization, the Board is not required to remand this matter to the RO for the procedural actions outlined in 38 C.F.R. § 3.321(b)(1) , which concern the assignment of extra-schedular evaluations in "exceptional" cases. See Thun v. Peake, 22 Vet. App. 111 (2008). ORDER A compensable rating for allergic rhinitis is denied. A compensable rating for gastritis is denied. REMAND Unfortunately the Board finds that it is again necessary to remand the issues of entitlement to service connection for an acquired psychiatric disorder, to include posttraumatic stress disorder (PTSD) and major depressive disorder, and whether new and material evidence has been received to reopen a claim of entitlement to service connection for hypertension. A remand by the Board confers on an appellant the right to VA compliance with the terms of the remand order and imposes on the Secretary a concomitant duty to ensure compliance with those terms. See Stegall v. West, 11 Vet. App. 268, 271 (1998). In Stegall the Court held that "where... the remand orders of the Board... are not complied with, the Board itself errs in failing to insure compliance." Id. Following the March 2010 Partial Joint Motion for Remand (PJMR) and Court Order, which vacated the Board's June 2008 determination that new and material evidence had not been submitted to reopen a claim for service connection for hypertension and remanded for compliance with instructions in the PJMR, the Board in September 2011 remanded this issue for additional development to ensure such compliance. The Board also remanded the PTSD claim, which it characterized as one for service connection for an acquired psychiatric disorder, to include PTSD. See Clemons v. Shinseki, 23 Vet. App. 1 (2009) (per curiam order). In the September 2011 remand, the Board advised the RO that "additional action should be taken to obtain all available service treatment records, if any, associated with the Veteran's duty with the Air National Guard between 1972 and 1974, and between 1978 and 1980. Therefore, the Board has no discretion and must remand the issue of whether new and material evidence has been received to reopen the claim of entitlement to service connection for hypertension to the RO for compliance with the Court's March 2010 Order granting the PJMR." The Board specifically directed the RO to conduct a two step process to obtain such records from the service department via the National Personnel Records Center (NPRC) and/or to other appropriate service entity, which may include the Defense Finance and Accounting Service (DFAS). First it was requested that such service department entity verify the Veteran's complete periods of active duty, active duty for training, and inactive duty for training with the Michigan Air National Guard and the California Air National Guard. Following this, the service department entity was to forward all available service treatment records associated with such duty for incorporation into the record. All efforts to obtain the verify the Veteran's service and obtain the service treatment records should have been documented. If no service treatment records were located, a written statement to that effect was to have been prepared for incorporation into the record. A review of the records obtained from the service department entity, both prior to and after the September 2011 remand, reflects that the first step of this development has been completed. Service personnel records, including from the Air National Guard, were shown to have been obtained in December 2004, and February 2009. Thereafter, following the September 2011 remand, service personnel records were obtained in October 2012. A review of these records reflects that they document periods of active duty, active duty for training, and inactive duty for training with the Michigan Air National Guard and the California Air National Guard. Thus the first portion of the Board's remand request has been satisfied. However, the second portion of the Board's remand request has yet to be satisfied, as service treatment records associated with such duty were neither obtained, nor was a written statement verifying the unavailability of such records incorporated into the record. The Board does note that service treatment records from the Veteran's active duty period from April 1966 to May 1972, and from his time in the Air National Guard in Charlestown, South Carolina from 1982 through 1983, were associated with the claims folder prior to the Board's June 2008 decision and subsequent adjudicative proceedings. These records however are not the records that were specifically requested by the Board's September 2011 remand. Again, it was requested that the service treatment records from the Michigan Air National Guard and the California Air National Guard be obtained. As the RO has neither obtained such records, nor provided a written statement confirming their unavailability, the Board finds it is necessary to remand this matter to afford compliance with the September 2011 remand's instructions. In addition to the RO's failure to fully comply with the previous remand's instructions, the Board notes that evidentiary deficiencies are shown in the current development. In regards to the VA examination conducted in June 2012 to determine the nature and etiology of the Veteran's psychiatric disorder, the Veteran's representative has argued in the January 2013 informal hearing that the examination focused almost entirely on ruling out the diagnosis of PTSD. It was pointed out that the examiner found that the diagnosed major depression was not caused by nor a result of active service, but did not provide an adequate explanation as to why such depression was not related to service. See Barr v. Nicholson, 21 Vet. App. 303, 311-12 (2007) (When VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate). Nor did the June 2012 examiner enclose the report of a study reported in a 2009 version of the British Journal of Psychiatry that discussed the rareness of delayed onset of PTSD, and was used by this examiner to support finding that this Veteran did not have a diagnosis of PTSD. The Board emphasizes that VA adjudicators are not permitted to rely on medical evidence (to include medical research) outside of the record without first giving the claimant notice and an opportunity to comment. See Thurber v. Brown, 5 Vet. App. 119 (1993). Finally the Veteran's representative argued that the VA examiner did not address findings on testing (the Beck inventory) that suggested the presence of anxiety type symptoms. Thus this matter should be remanded to afford an addendum opinion to more fully address the questions of the nature and etiology of the Veteran's claimed psychiatric disorder. In regards to the hypertension claim, the representative has argued in the January 2013 informal hearing that the RO should consider whether updates made in 2006 from the Executive Summary from the Institute of Medicine (IOM) titled, "Veterans And Agent Orange: Update 2006," indicating that hypertension has a limited or suggestive association with the herbicide Agent Orange, constitute new and material evidence in this matter. See www.iom.edu/Reports/2007/Veterans-and-Agent-Orange-Update-2006.aspx. This argument was noted to have been forwarded in the Appellant's brief to the Court dated December 10, 2009. In view of the need to remand this further, the RO on remand should consider this argument in adjudicating whether new and material evidence has been submitted to reopen the previously denied claim for entitlement to service connection for hypertension claimed as secondary to Agent Orange exposure. Accordingly, the case is REMANDED for the following action: 1. Contact the National Personnel Records Center (NPRC) and/or any other appropriate service entity, which may include the Defense Finance and Accounting Service (DFAS), and request that it forward all available service treatment records associated with any verified active duty in the Michigan Air National Guard and the California Air National Guard for incorporation into the record. All efforts to obtain the service treatment records should be documented. If no service treatment records are located, a written statement to that effect should be prepared for incorporation into the record. 2. After the aforementioned development has been completed, return the claims folder to the January 2012 VA mental health/psychology examiner, if available. The claims folder and a copy of this remand must be reviewed by the examiner. The examiner is asked to clarify his prior opinion that the Veteran does not have PTSD or depression as a result of service, (to include due to his fear of hostile military or terrorist activity during service) and provide a detailed rationale for his conclusions. In providing the opinion(s), the examiner should also address the favorable findings of anxiety shown on Beck testing, as well as other favorable evidence of record. (If the examiner is no longer available, or concludes that an examination is required to provide the required opinions, another examination should be scheduled.) If the examiner determines that he cannot provide an opinion on the issue at hand without resorting to speculation, he should explain the inability to provide an opinion, identifying precisely what facts could not be determined. In particular, he should comment on whether an opinion could not be rendered because the limits of medical knowledge have been exhausted 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 be undertaken so that a definite opinion can be obtained.) The reports of any study or studies relied upon by the examiner must be associated with the claims folder. 3. The RO 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. 4. After undertaking any other development deemed appropriate, the RO should re-adjudicate the issues on appeal. In reajudicating the issue of whether new and material evidence has been submitted to reopen a previously denied claim for hypertension secondary to Agent Orange exposure, the RO should address whether updates made in 2006 from the Executive Summary from the Institute of Medicine (IOM) titled, "Veterans And Agent Orange: Update 2006," constitute new and material evidence. 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. The appellant has the right to submit additional evidence and argument on the 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). ______________________________________________ M.G. MAZZUCCHELLI Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs