Citation Nr: 1311299 Decision Date: 04/05/13 Archive Date: 04/19/13 DOCKET NO. 10-02 637 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Atlanta, Georgia THE ISSUES 1. Entitlement to service connection for residuals of an in-service right rib injury (claimed as a right rib contusion). 2. Entitlement to service connection for a disorder manifested by chest pain, to include as due to undiagnosed illness. 3. Entitlement to service connection for an upper respiratory disorder, diagnosed as seasonal allergies and hay fever, to include as due to undiagnosed illness. 4. Entitlement to service connection for a right knee disorder, to include as due to undiagnosed illness. 5. Entitlement to service connection for a left knee disorder, to include as due to undiagnosed illness. REPRESENTATION Veteran represented by: Disabled American Veterans ATTORNEY FOR THE BOARD S. Dale, Counsel INTRODUCTION The Veteran served on active duty from June 1977 to June 2007, to include service in the Southwest Asia Theater of operations during the Persian Gulf War. These matters come before the Board of Veterans' Appeals (BVA or Board) on appeal from an October 2007 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Winston-Salem, North Carolina, as part of the Benefits Delivery at Discharge (BDD) program. The purpose of the BDD program is to help ensure a smooth transition from military to civilian status by allowing service members to file pre-discharge claims for disability compensation with VA. The Veteran appealed that decision to BVA, and the case was referred to the Board for appellate review. Original jurisdiction of the Veteran's claims resides in the VARO in Atlanta, Georgia. Characterization of issues on appeal As noted above, the Veteran had active service in the Southwest Asia Theater of operations during the Persian Gulf War. Accordingly, the Veteran's claims have been expanded to include entitlement to service connection due to undiagnosed illness and/or medically unexplained chronic multisymptom illness under 38 C.F.R. § 3.317. Schroeder v. West, 212 F. 3d 1265, 1271 (Fed. Cir. 2000); Szemraj v. Principi, 357 F.3d 1370 (Fed. Cir. 2004). The Board observes that this theory of entitlement was not addressed by the Winston-Salem and/or Atlanta VARO's in the prior adjudications of the Veteran's claims. However, as will be explained below, the provisions of 38 C.F.R. § 3.317 are not applicable to the Veteran's claim denied herein, and the remainder of his claims are being remanded for further development. Accordingly, the Veteran is not prejudiced by the Board's actions in this respect. Bernard v. Brown, 4 Vet. App. 384 (1993). Representation When the Veteran filed his initial claims to establish service connection in April 2007, he was unrepresented. In March 2009, the Veteran submitted a completed VA Form 21-22 (Appointment of Veterans Service Organization as Claimant's Representative) in favor of the Armed Forces Services Corporation. (See a March 2009 VA Form 21-22.) At all times after this submission, this Veterans Service Organization acted on the Veteran's behalf in all VA matters. However, in July 2010, the Veteran submitted a completed VA Form 21-22 (Appointment of Veterans Service Organization as Claimant's Representative) in favor of the Disabled American Veterans (DAV), who currently represents him in all matters before VA. The Board notes that the July 2010 VA Form 21-22 effectively revoked the Armed Forces Services Corporation as the Veteran's representative, and DAV is now recognized as the Veteran's representative in these matters. The issues of (1) entitlement to service connection for a disorder manifested by chest pain, to include as due to undiagnosed illness, (2) entitlement to service connection for an upper respiratory disorder, diagnosed as seasonal allergies and hay fever, to include as due to undiagnosed illness, (3) entitlement to service connection for a right knee disorder, to include as due to undiagnosed illness, and (4) entitlement to service connection for a left knee disorder, to include as due to undiagnosed illness, are addressed in the REMAND portion of the decision below and are REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDING OF FACT There has been no demonstration by competent clinical, or competent and credible lay, evidence of record of current chronic residual disability of an in-service right rib contusion at any time during the Veteran's appeal. CONCLUSION OF LAW Chronic residual disability of a right rib contusion was not incurred in, or aggravated by, active service. 38 U.S.C.A. §§ 1110, 1131, 5107, 38 C.F.R §§ 3.102, 3.303, 3.304 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION The Veterans Claims Assistance Act of 2000 (the VCAA) VA has a 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/her representative, if applicable, 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. This notice must be provided prior to an initial unfavorable decision by the AOJ. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). Further, in Dingess v. Nicholson, the United States Court of Appeals for Veterans Claims (Court) held that, upon receipt of an application for a service-connection claim, VA is required to review the evidence presented with the claim and to provide the claimant with notice of what evidence not previously provided will help substantiate his/her claim. 19 Vet. App. 473 (2006); see also 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b). Specifically, VA must notify the claimant of what is required to establish service connection and that a disability rating and effective date for the award of benefits will be assigned if service connection is awarded. The Board finds that the VCAA duty to notify was satisfied with regard to the claims to establish service connection by a letter sent to the Veteran in April 2007 as a part of the BDD program. The letter addressed all of the notice elements regarding claims for direct service connection and was sent prior to the initial unfavorable decision by the Winston-Salem VARO in October 2007. Also, the April 2007 letter provided the Veteran with notice concerning the assignment of a disability rating in the event of award of the benefit sought, per the Court's holding in Dingess. Although the letter did not apprise the Veteran of the criteria for assignment of an effective date for an award of a benefit, per Dingess, as service connection is being denied, no effective date is being assigned. Therefore, the Board finds that the Veteran has not been prejudiced by this notice defect. VA has also satisfied its duty to assist the Veteran at every stage of this case with regard to his claim for service connection denied herein. All available service treatment records as well as all identified medical records pertinent to the years after service are in the claims file and were reviewed by the VARO's and the Board in connection with the Veteran's claim. In connection with the Veteran's claims, he was afforded a VA examination, performed through QTC services, in May 2007. 38 C.F.R. § 3.159(c)(4). To that end, when VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). The Board finds that the examination obtained in this case is adequate. The May 2007 examiner interviewed the Veteran and completed a physical examination. The Board observes that this examination took place prior to the Veteran's separation from service, and thus, there was no post-service medical evidence to review. However, the examiner reviewed the Veteran's service treatment records and cited to specific records pertinent to the Veteran's claim. There is adequate medical evidence of record to make a determination with regard to the Veteran's claim decided herein. Accordingly, the Board finds that VA's duty to assist with respect to obtaining a VA examination or opinion with respect to the issue on appeal has been met. 38 C.F.R. § 3.159(c)(4). VA has also assisted the Veteran and his representatives, former and current, throughout the course of this appeal by providing them with a statement of the case which informed them of the laws and regulations relevant to his claim. For these reasons, the Board concludes that VA has fulfilled the duty to assist the Veteran in this case. Service connection - in general Service connection may be established for disability resulting from personal injury suffered or disease contracted in the line of duty in the active military, naval, or air service. 38 U.S.C.A. § 1110, 1131. In relevant part, 38 U.S.C. § 1154(a) requires that the VA give "due consideration" to "all pertinent medical and lay evidence" in evaluating a claim to disability benefits. Generally, in order to establish direct service connection for a disorder, there must be (1) medical evidence of the current disability; (2) medical, or in certain circumstances, lay evidence of the in-service incurrence of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the current disability. Gutierrez v. Principi, 19 Vet. App. 1, 5 (2004) (citing Hickson v. West, 12 Vet. App. 247, 253 (1999)). However, medical evidence of a current disability and nexus is not always required to establish service connection. See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). Lay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007) (footnote omitted). Competent medical evidence means evidence provided by a person who is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions. Competent medical evidence may also mean statements conveying sound medical principles found in medical treatises. It would also include statements contained in authoritative writings such as medical and scientific articles and research reports or analyses. 38 C.F.R. § 3.159(a)(1). Competent lay evidence means any evidence not requiring that the proponent have specialized education, training, or experience. Lay evidence is competent if it is provided by a person who has knowledge of facts or circumstances and conveys matters that can be observed and described by a lay person. 38 C.F.R. § 3.159(a)(2). If a chronic disease is shown in service, subsequent manifestations of the same chronic disease at any later date, however remote, may be service connected, unless clearly attributable to intercurrent causes. 38 C.F.R. § 3.303(b). If a condition noted during service is not shown to be chronic, then generally a showing of continuity of symptomatology after service is required for service connection if the disability is one that is listed in 38 C.F.R. § 3.309(a). The United States Federal Circuit Court recently held that the theory of continuity of symptomatology under 38 C.F.R. § 3.303(b) does not apply to any condition that has not been recognized as chronic under 38 C.F.R. § 3.309(a), even if such is noted to be "chronic." See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). In rendering a decision on appeal, the Board must analyze the credibility and probative value of the evidence, account for the evidence that it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant. See Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). Competency of evidence differs from weight and credibility. The former is a legal concept determining whether testimony may be heard and considered by the trier of fact, while the latter is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted. See Rucker v. Brown, 10 Vet. App. 67, 74 (1997); Layno v. Brown, 6 Vet. App. 465, 469 (1994); see also Cartwright v. Derwinski, 2 Vet. App. 24, 25 (1991) ("Although interest may affect the credibility of testimony, it does not affect competency to testify."). Undiagnosed Illness or Medically Unexplained Chronic Multisymptom Illness Service connection may also be established for a Persian Gulf Veteran who exhibits objective indications of a qualifying chronic disability that became manifest during active military, naval, or air service in the Southwest Asia Theater of operations during the Persian Gulf War or to a degree of 10 percent or more not later than December 31, 2016. 38 U.S.C.A. § 1117(a)(1); 38 C.F.R. § 3.317(a)(1). A 'Persian Gulf Veteran' is one who served in the Southwest Asia Theater of operations during the Persian Gulf War. 38 C.F.R. § 3.317. A 'qualifying chronic disability' includes: (A) an undiagnosed illness, (B) the following medically unexplained chronic multi symptom illnesses: chronic fatigue syndrome, fibromyalgia, and irritable bowel syndrome, as well as any other illness that the Secretary of VA determines is a medically unexplained chronic multi- symptom illness, and (C) any diagnosed illness that the Secretary determines, in regulations, warrants a presumption of service connection. 38 U.S.C.A. § 1117(a)(2); 38 C.F.R. § 3.317(a)(2)(i). Objective indications of a chronic disability include both 'signs,' in the medical sense of objective evidence perceptible to an examining physician, and other, non medical indicators that are capable of independent verification. Disabilities that have existed for six months or more and disabilities that exhibit intermittent episodes of improvement and worsening over a 6 month period will be considered chronic. The 6 month period of chronicity will be measured from the earliest date on which the pertinent evidence establishes that the signs or symptoms of the disability first became manifest. A disability referred to in this section shall be considered service connected for the purposes of all laws in the United States. 38 C.F.R. § 3.317(a)(2)(5). Signs or symptoms which may be manifestations of an undiagnosed illness and medically unexplained chronic multisymptom illnesses include, but are not limited to, fatigue, signs or symptoms involving the skin, headaches, muscle pain, joint pain, neurologic signs or symptoms, neuropsychological signs or symptoms, signs or symptoms involving the respiratory system (upper or lower), sleep disturbances, gastrointestinal signs or symptoms, cardiovascular signs or symptoms, abnormal weight loss, or menstrual disorders. 38 C.F.R. § 3.317(b). Compensation shall not be paid under 38 C.F.R. § 3. 317 if: (1) the undiagnosed illness was not incurred during active service in the Southwest Asia theater of operations during the Persian Gulf War; or (2) the undiagnosed illness was caused by a supervening condition or event that occurred between most recent departure from service in the Southwest Asia theater of operations during the Persian Gulf War and the onset of the illness; or (3) the illness is the result of willful misconduct or the abuse of alcohol or drugs. 38 C.F.R. § 3.317(c). With claims for service connection for a qualifying chronic disability under 38 C.F.R. § 3.317, the Veteran is not required to provide competent evidence linking a current disability to an event during service. Gutierrez v. Principi, 19 Vet. App. 1 (2004). Compensation may be paid under 38 C.F.R. § 3.317 for disability which cannot, based on the facts of the particular Veteran's case, be attributed to any known clinical diagnosis. The fact that the signs or symptoms exhibited by the Veteran could conceivably be attributed to a known clinical diagnosis under other circumstances not presented in the particular Veteran's case does not preclude compensation under § 3.317. VAOPGCPREC 8-98. When determining whether a qualifying chronic disability became manifest to a degree of 10 percent or more, the Board must explain its selection of an analogous Diagnostic Code. Stankevich v. Nicholson, 19 Vet. App. 470, 472 (2006). The Court has also held that Congress specifically limits entitlement for service-connected disease or injury to cases where such incidents have resulted in a disability. In the absence of proof of a present disability there can be no valid claim. Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). In cases where a Veteran applies for service connection under 38 C.F.R. § 3.317 but is found to have a disability attributable to a known diagnosis, further consideration under the direct service connection provisions of 38 U.S.C.A. § 1110 is nevertheless warranted. See Combee v. Brown, 34 F.3d 1039, 1042 (Fed. Cir. 1994). Analysis The Board has reviewed all of the evidence in the Veteran's claims file, with an emphasis on the medical evidence pertinent to this appeal. Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, the extensive evidence of record. Indeed, the Federal Circuit has held that the Board must review the entire record, but does not have to discuss each piece of evidence. Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000). Therefore, the Board will summarize the relevant evidence where appropriate, and the Board's analysis below will focus specifically on what the evidence shows, or fails to show, as to the claim. Although the May 2007 QTC examination report reflects that the Veteran reported as medical history that he had fractured one of his right ribs during his service, x-ray examination of the ribs at that time was normal, and the examiner noted that there was no pathology to render a diagnosis. The Veteran's service treatment records reflect that he initially injured one of his right ribs while playing Frisbee football in April 1997. He reported pain at the site of the injury and shortness of breath. The impression was rib fracture versus rib contusion, and he was given Tylenol for pain management and put on a physical profile. After the pain persisted for more than a month, he sought treatment again for right rib pain in May 1997. The impression was a right rib contusion, and his physical profile limiting activities was continued. Concerning element (1) of direct service connection, evidence of a current disability, there is no current competent or credible evidence of a diagnosed, post-service residual of his in-service right rib injury. To the contrary, the evidence is against such a finding. See Degmetich v. Brown, 104 F.3d 1328, 1333 (Fed. Cir. 1997) (holding that the existence of a current disability is the cornerstone of a claim for VA disability compensation). Specifically, x-ray examination conducted in connection with the May 2007 QTC examination reflected that the Veteran's ribs were within normal limits, and the examiner specifically stated that there was no identifiable pathology on which to render a diagnosis with regard to the Veteran's right ribs. The Board observes that the evidence in support of the Veteran's claim for service connection is limited to his reports of intermittent, localized pain in the area of his right ribs since the initial injury in April 1997. The Veteran is certainly competent to report that he suffers pain in the area of his right ribs. See Layno and Rucker, both supra. However, the Board points out that in the absence of an underlying pathology to account for the pain, pain alone is not a disability for VA purposes. See Sanchez-Benitez v. West, 13 Vet. App. 282, 285 (1999) ), vacated in part and remanded on other grounds sub nom., Sanchez-Benitez v. Principi, 259 F.3d 1356 (Fed. Cir. 2001). The Board acknowledges that competent medical evidence is not necessarily required where the determinative issue in a case involves medical causation or a medical diagnosis. Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. Sept. 14, 2009), citing Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007); see also Barr v. Nicholson, 21 Vet App 303 (2007) (lay testimony is competent to establish the presence of varicose veins); Woehlaert v. Nicholson, 21 Vet. App. 456, 462 (2007) (unlike varicose veins or a dislocated shoulder, rheumatic fever is not a condition capable of lay diagnosis). However, the Veteran's assertions that his right rib pain are indicative of a current chronic disability are not competent. Davidson, 581 F.3d 1313; Buchanan, 451 F.3d 1331; Jandreau, 492 F.3d 1372. Thus, the Board concludes that, although the Veteran is competent to report symptoms, his statements as to whether this symptomatology is indicative of a current chronic disability are not competent. As a layperson, he is not competent to provide evidence that requires medical knowledge, such as a complex matter of clinical diagnosis of a chronic disability in this case, because he has not been shown to have the requisite professional medical training, certification and expertise to present opinions regarding such matters. Furthermore, the Board finds that the findings of the May 2007 QTC examination, as conveyed by a medical doctor, are probative. The examiner conducted a physical examination of the Veteran, reviewed his service treatment records and medical history, and ruled out a current diagnosis relating to his in-service right rib injury. Thus, the Board finds that the QTC examiners statements are more persuasive than the statements of the Veteran with respect to the existence of a current disability. The existence of a current disability is the cornerstone of a claim for VA disability compensation. 38 U.S.C.A. § 1110, 1131; Degmetich v. Brown, 104 F. 3d 1328 (1997) (holding that the VA's and the Court's interpretation of sections 1110 and 1131 of the statute as requiring the existence of a present disability for VA compensation purposes cannot be considered arbitrary and therefore the decision based on that interpretation must be affirmed); Gilpin v. West, 155 F.3d 1353 (Fed. Cir. 1998); Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). As the preponderance of the evidence of record reflects that the Veteran does not have a current disability manifested by localized pain in the area of his right ribs, service connection cannot be established under 38 C.F.R. § 3.303. Further, in light of above, discussion of the provisions of 38 C.F.R. §§ 3.303(b), 3.309(a) and the Federal Circuit Court's holding Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013), pertaining to chronicity and continuity of symptomatology, is not necessary. As noted in the Introduction, the Veteran is a Persian Gulf War Veteran. However, the Veteran has not claimed, and the record does not establish, that his complaints of pain in the area of his right ribs, represent a chronic disability that is due to undiagnosed illness, subject to presumptive service connection under 38 C.F.R. § 3.317. To the contrary, the Veteran has asserted that such is secondary to his in-service rib injury in April 1997. Further, as explained above, there has been no demonstration of chronic residual disability of rib injury manifested by complaints of pain. As such, discussion of the Veteran's claim under 38 C.F.R. § 3.317 is not necessary. The Board has considered the doctrine of giving the benefit of the doubt to the Veteran, under 38 U.S.C.A. § 5107 (West 2002), and 38 C.F.R. § 3.102 (2012), but does not find that the evidence is of such approximate balance as to warrant its application. Gilbert v. Derwinski, 1 Vet. App. 49, 54-56 (1990). ORDER Entitlement to service connection for chronic residual disability of an in-service right rib injury is denied. REMAND As noted above, the Veteran's remaining claims have been expanded to include entitlement to service connection due to undiagnosed illness and/or chronic medically unexplained multisymptom illness under 38 C.F.R. § 3.317. Because these claims have been expanded, further procedural and developmental development is necessary to fulfill VA's duty to assist. 38 U.S.C.A. §§ 5103, 5103A (West 2002); 38 C.F.R. § 3.159 (2012). Initially, the Veteran has not been provided the criteria necessary to substantiate a service claim under this theory of entitlement as per 38 C.F.R. § 3.317. If, as here, the record has a procedural defect with respect to the notice required under the VCAA, this may not be cured by the Board. Disabled American Veterans v. Secretary of Veterans Affairs, 327 F.3d 1339 (Fed. Cir. 2003). Therefore, the RO/AMC must provide the Veteran with adequate notice because he has not received such and the Board is without authority to do so. Further, the May 2007 QTC examination is inadequate for the purpose of adjudicating the Veteran's claims. Specifically, although the Veteran was diagnosed with bilateral patellofemoral syndrome during his service, the May 2007 examiner did not rule out a current diagnosis of such or comment as to whether this disorder resolved. Further, although the Veteran's service treatment records are replete with instances of complaints of and treatment for pain and pressure in his chest (since March 1984), knee pain (since September 2006), and hay fever (since August 1984), the examiner did not discuss whether this reported symptomatology was indicative of signs or symptoms which may be manifestations of an undiagnosed illness and/or medically unexplained chronic multisymptom illness, to include muscle pain, joint pain, or signs or symptoms involving the upper respiratory system under 38 C.F.R. § 3.317(b). In light of above, the Veteran should be afforded an adequate VA examination which addresses his claims under all theories of entitlement. Accordingly, the case is REMANDED for the following actions: 1. Provide the Veteran and his representative with adequate notice of the criteria necessary to substantiate claims for service connection as due to an undiagnosed illnesses as per 38 C.F.R. § 3.317. 2. Contact the Veteran and request that he identify all VA and non-VA health care providers from whom he has received post-service treatment for chest pain, respiratory disability, allergies, and/or a knee disorder. The Veteran must complete a release for any private treatment records identified. All records obtained should be associated with the Veteran's VA claims file. If any requested records are not available, or if the search for any such records otherwise yields negative results, that fact should clearly be documented in the claims file, and the Veteran should be informed in writing. 3. Schedule the Veteran for a VA examination with an appropriate clinician to determine the nature and etiology of any identified knee disorder, upper respiratory disorder, and disorder manifested by chest pain. All necessary tests should be performed, to include MRI testing of the Veteran's knees. Thereafter, the examiner must address the following: a. Identify any disorder(s) of either knee. If patellofemoral pain syndrome of either knee is ruled out, such a finding must be reconciled with the in-service assessments of bilateral patellofemoral pain syndrome. b. For each chronic disorder identified in part (a), express an opinion as to whether such is due to diagnosed or undiagnosed illness, and whether it is at least as likely as not that such disability (whether or not due to diagnosed or undiagnosed illness) is related to the Veteran's active service. c. If a disorder is not identified with regard to either or both knees in part (a), the examiner should address whether any identified signs and symptoms which are not attributable to a known diagnosis are objective indications of chronic disability, to include either objective medical evidence perceptible to a physician or other, non-medical indicators that are capable of independent verification. 38 C.F.R. § 3.317(a)(2) (2012). The appropriate examiner should express his or her opinion as to whether any disability is "chronic" (as having existed for 6 months or more or as having resulted in intermittent episodes of improvement and worsening over a 6-month period). d. Identify all upper respiratory disorders, to include hay fever and seasonal allergies. If hay fever and/or seasonal allergies are ruled out, such a finding must be reconciled with the in-service assessments of hay fever and seasonal allergies. e. For each disorder identified in part (d), express an opinion as to whether such is due to diagnosed or undiagnosed illness, and whether it is at least as likely as not that such disability (whether or not due to diagnosed or undiagnosed illness) is related to the Veteran's active service. f. If a disorder is not identified with regard to the Veteran's upper respiratory system in part (d), the examiner should address whether any identified signs and symptoms which are not attributable to a known diagnosis are objective indications of chronic disability, to include either objective medical evidence perceptible to a physician or other, non-medical indicators that are capable of independent verification. 38 C.F.R. § 3.317(a)(2) (2012). The appropriate examiner should express his or her opinion as to whether any disability is "chronic" (as having existed for 6 months or more or as having resulted in intermittent episodes of improvement and worsening over a 6-month period). g. Identify all disorders manifested by chest pain. h. For each disorder identified in part (g), express an opinion as to whether such is due to diagnosed or undiagnosed illness, and whether it is at least as likely as not that such disability (whether or not due to diagnosed or undiagnosed illness) is related to the Veteran's active service. i. If a disorder is not identified with regard to the Veteran's in-service complaints of chest pain in part (g), the examiner should address whether any identified signs and symptoms which are not attributable to a known diagnosis are objective indications of chronic disability, to include either objective medical evidence perceptible to a physician or other, non-medical indicators that are capable of independent verification. 38 C.F.R. § 3.317(a)(2) (2012). The appropriate examiner should express his or her opinion as to whether any disability is "chronic" (as having existed for 6 months or more or as having resulted in intermittent episodes of improvement and worsening over a 6-month period). The VA clinician 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 causation as to find against causation. The clinician is requested to provide a complete rationale for his or her opinion, as a matter of medical probability, based on his or her clinical experience, medical expertise, and established medical principles. The clinician should review the claims folder, to include this remand, and this fact should be noted in the accompanying medical report. 4. When the development requested has been completed, the case should be reviewed on the basis of additional evidence. If any benefit sought is not granted to the fullest extent, the Veteran and his representative should be furnished a supplemental statement of the case (SSOC) and be afforded a reasonable opportunity to respond before the record is returned to the Board for further review. The Veteran has the right to submit additional evidence and/or argument on the matter or matters the Board has remanded to the regional office. Kutscherousky v. West, 12 Vet. App. 369 (1999). No action is required of the Veteran until he is notified. 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). ______________________________________________ U.R. POWELL Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs