Citation Nr: 1311779 Decision Date: 04/09/13 Archive Date: 04/19/13 DOCKET NO. 06-15 563 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Winston-Salem, North Carolina THE ISSUES 1. Entitlement to service connection for a claimed hiatal hernia. 2. Entitlement to service connection for the claimed residuals of a pilonidal cyst. 3. Entitlement to service connection for the claimed residuals of a cholecystectomy. 4. Entitlement to service connection for a claimed right shoulder disorder. 5. Entitlement to service connection for claimed hypertension. 6. Entitlement to service connection for a claimed heart disorder. 7. Entitlement to service connection for claimed asthma. 8. Entitlement to service connection for a claimed innocently acquired psychiatric disorder, to include bipolar disorder, dysthymic disorder, major depressive disorder, and posttraumatic stress disorder (PTSD). REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD G. Jackson, Counsel INTRODUCTION The Veteran served on an initial period of active duty for training (ACDUTRA) from August 1980 to March 1981 and then had extensive service with the Army Reserve. These matters initially came before the Board of Veterans' Appeals (Board) on appeal from February and a September 2004 rating decision by the RO. The Board remanded these issues on appeal in August 2010 and May 2012 for additional development of the record. Some of that development has been completed, and the case has been returned to the Board for appellate review. Finally, the Board notes that, in addition to the paper claims file, there is a Virtual VA electronic claims file associated with the Veteran's claim. A review of the documents in the electronic file reveals that they are either duplicative of the evidence in the paper claims file or are irrelevant to the issues on appeal herein decided. The issues of service connection for the residuals of a pilonidal cyst, the residuals of a cholecystectomy, asthma and an innocently acquired psychiatric disorder, to include bipolar disorder, dysthymic disorder, major depressive disorder and PTSD are being remanded to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDINGS OF FACT 1. The Veteran performed ACDUTRA from August 1980 to March 1981; and had confirmed periods of ACDUTRA including from June 17, 1984 to June 30, 1984; from June 23, 1985 to July 6, 1985; from June 12, 1986 to June 28, 1986; from September 13, 1986 to September 21, 1986; from May 28, 1987 to June 13, 1987; from June 16, 1988 to July 2, 1988; from June 16, 1989 to July 1, 1989; from June 1, 1990 to June 17, 1990; from July 8, 1990 to July 19, 1990; from July 6, 1991 to July 18, 1991; from May 1, 1992 to May 18, 1992; from January 16, 1993 to January 18, 1993; from September 11, 1993 to September 26, 1994; from June 18, 1995 to July 1, 1995; from June 9, 1996 to June 22, 1996; from June 8, 1997 to June 22, 1997; from July 9, 2000 to July 33, 2000; from July 29, 2001 to August 7, 2001; from August 4, 2002 to August 17, 2002; from August 3, 2003 to August 17, 2003, and from October 14, 2003 to July 22, 2004. 2. The currently demonstrated hiatal hernia is not shown to be due to event or incident of any period of ACDUTRA or INACDUTRA. 3. The currently demonstrated residuals of right shoulder impingement syndrome is not shown to be due to an event or incident of any period of ACDUTRA or INACDUTRA. 4. The currently demonstrated hypertension is not shown to be due to an event or incident of any period of ACDUTRA. 5. The Veteran is not shown to have a current heart disability that is due to an event or incident of any period of ACDUTRA. CONCLUSIONS OF LAW 1. The Veteran's disability manifested by a hiatal hernia is not due to disease or injury that was incurred in or aggravated by a period of ACDUTRA or an injury that was incurred in or aggravated by a period INACDUTRA. 38 U.S.C.A. §§ 101, 1110, 1131, 5103, 5103A, 5107 (West 2002 & Supp. 2011); 38 C.F.R. §§ 3.6, 3.102, 3.159, 3.303, 3.304 (2011). 2. The Veteran's right shoulder disability manifested by the residuals of impingement syndrome is no due to disease or injury that was incurred in or aggravated by a period of ACDUTRA or an injury that was incurred in or aggravated by a period of INACDUTRA. 38 U.S.C.A. §§ 101, 1110, 1131, 5103, 5103A, 5107 (West 2002 & Supp. 2011); 38 C.F.R. §§ 3.6, 3.102, 3.159, 3.303, 3.304 (2011). 3. The Veteran's disability manifested by hypertension is not due to disease or injury that was incurred in or aggravated by a period of ACDUTRA. 38 U.S.C.A. §§ 101, 1110, 1131, 5103, 5103A, 5107 (West 2002 & Supp. 2011); 38 C.F.R. §§ 3.6, 3.102, 3.159, 3.303, 3.304 (2011). 4. The Veteran does not have a heart disability due to disease or injury that was incurred in or aggravated by a period of ACDUTRA. 38 U.S.C.A. §§ 101, 1110, 1131, 5103, 5103A, 5107 (West 2002 & Supp. 2011); 38 C.F.R. §§ 3.6, 3.102, 3.159, 3.303, 3.304, 3.306 (2011). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Veterans Claims Assistance Act of 2000 The Veterans Claims Assistance Act of 2000 (VCAA), codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, and 5126 (West 2002 & Supp. 2011) includes enhanced duties to notify and assist claimants for VA benefits. VA regulations implementing the VCAA were codified as amended at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, and 3.326(a) (2011). The notice requirements of the VCAA require VA to notify the claimant of any evidence that is necessary to substantiate the claim, as well as the evidence VA will attempt to obtain and which evidence he is responsible for providing. 38 C.F.R. § 3.159(b) (2011). The requirements apply to all five elements of a service connection claim: veteran status, existence of a disability, a connection between a veteran's service and the disability, degree of disability, and effective date of the disability. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). VCAA notice must be provided to a claimant before the initial unfavorable decision on a claim for VA benefits by the agency of original jurisdiction (in this case, the RO). Id.; see also Pelegrini v. Principi, 18 Vet. App. 112 (2004). However, the VCAA notice requirements may be satisfied if any errors in the timing or content of such notice are not prejudicial to the claimant. See Pelegrini, 18 Vet. App. at 121. In this case, in a March 2007 letter issued subsequent to the decisions on appeal, the Veteran was provided notice regarding what information and evidence is needed to substantiate her claims for service connection, as well as what information and evidence must be submitted by the Veteran and what information and evidence will be obtained by VA. The letter provided the Veteran with information pertaining to the assignment of disability ratings and effective dates, as well as the type of evidence that impacts those determinations, consistent with Dingess/Hartman. After issuance of the March 2007 letter, and opportunity for the Veteran to respond, the August 2007 Supplemental Statement of the Case (SSOC) reflects readjudication of the claims. Hence, the Veteran is not shown to be prejudiced by the timing of this notice. See Mayfield v. Nicholson, 20 Vet. App. 537, 543 (2006); see also Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006) (the issuance of a fully compliant VCAA notification followed by readjudication of the claim, such as in an SOC or SSOC, is sufficient to cure a timing defect). The record also reflects that VA has made reasonable efforts to obtain relevant records adequately identified by the Veteran. Specifically, the information and evidence that have been associated with the claims file include the Veteran's service treatment records, VA treatment records and examination reports. Further, the Board is aware that these issues on appeal herein decided were, most recently, remanded by the Board in May 2012. See Stegall v. West, 11 Vet. App. 268, 271 (1998) (holding that a Court or Board remand confers upon the appellant the right to compliance with that order). That remand requested that the RO obtain an adequate VA medical opinion regarding the likely etiology of the claimed hiatal hernia, residuals of cholecystectomy and right shoulder disorder. Specifically, the VA examiner was to address whether it was at least as likely as not that any current hiatal hernia, residuals of cholecystectomy and right shoulder disorder was due to event or incident of the Veteran's period of service. Again, this development was completed in the June 2012 VA examination reports. Accordingly, the Board finds that there has been substantial compliance with its previous remand and it may proceed to adjudication of this appeal. D'Aries v. Peake, 22 Vet. App. 97, 105 (2008) (holding that there must be substantial compliance with the terms of a Court or Board remand); Dyment v. West, 13 Vet. App. 141, 146-47 (1999) (holding that there was no Stegall violation when the examiner made the ultimate determination required by the Board's remand, because such determination more than substantially complied with the Boards remand order). The VCAA provisions have been considered and complied with. The Veteran was notified and aware of the evidence needed to substantiate her claims, the avenues through which she might obtain such evidence, and the allocation of responsibilities between herself and VA in obtaining such evidence. The Veteran was an active participant in the claims process by providing evidence and argument and presenting for VA examinations. Thus, she was provided with a meaningful opportunity to participate in the claims process and has done so. Any defect in the sequence of events or content of the notices is not shown to have any effect on the case or to cause injury to the Veteran. Therefore, any such defect is harmless and does not prohibit consideration of this matter on the merits. See Dingess, supra; see also ATD Corp. v. Lydall, Inc., 159 F.3d 534, 549 (Fed. Cir. 1998). Laws and Regulations Service connection will be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred in or aggravated by active military service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303(a). Establishing service connection generally requires (1) evidence of a current disability; (2) evidence of in-service incurrence or aggravation of a disease or injury; and (3) evidence of a nexus between the claimed in-service disease or injury and the present disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); see also Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd per curiam, 78 F.3d 604 (Fed. Cir. 1996) (table); 38 C.F.R. § 3.303. In relevant part, 38 U.S.C.A. § 1154(a) requires that the VA give "due consideration" to "all pertinent medical and lay evidence" in evaluating a claim to disability or death benefits. 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). In fact, competent medical evidence is not necessarily required when the determinative issue involves either medical etiology or a medical diagnosis. Id. at 1376-77; see also Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. Sept 14, 2009); Buchanan v. Nicholson, 451 F .3d 1331, 1337 (Fed. Cir.2006). Once evidence is determined to be competent, the Board must determine whether such evidence is also credible. See Layno, supra (distinguishing between competency ("a legal concept determining whether testimony may be heard and considered") and credibility ("a factual determination going to the probative value of the evidence to be made after the evidence has been admitted"). Service connection may also be granted for a disease first diagnosed after discharge when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the VA shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107(b). Analysis As noted, the Veteran performed initial ACDUTRA from August 1980 to March 1981; and had other periods of ACDUTRA including from June 17, 1984 to June 30, 1984; from June 23, 1985 to July 6, 1985; from December 14, 1985 to December 15, 1985; from June 12, 1986 to June 28, 1986; from September 13, 1986 to September 21, 1986; from May 28, 1987 to June 13, 1987; from June 16, 1988 to July 2, 1988; from June 16, 1989 to July 1, 1989; from June 1, 1990 to June 17, 1990; from July 8, 1990 to July 19, 1990; from July 6, 1991 to July 18, 1991; from May 1, 1992 to May 18, 1992; from September 11, 1993 to September 26, 1993; from June 18, 1995 to July 1, 1995; from June 9, 1996 to June 22, 1996; from August 18, 1996 to August 25, 1996; from June 8, 1997 to June 22, 1997; from July 9, 2000 to July 23, 2000; from July 29, 2001 to August 7, 2001; from August 4, 2002 to August 17, 2002; from August 3, 2003 to August 17, 2003, and from October 14, 2003 to July 22, 2004. Hiatal Hernia The Veteran generally asserts that her hiatal hernia is due to events that happened during her various periods of ACDUTRA and INACDUTRA. The service treatment records referable to the Veteran's various periods of ACDUTRA are negative for complaints or findings referable to a hiatal hernia. A February 2001 private treatment record documents an assessment of gastroesophageal reflux disease (GERD). A June 2001 upper gastrointestinal series showed a moderate size reducible hernia with minimal distal esophageal reflux. In the report of June 2012 VA examination, the examiner confirmed the Veteran's diagnoses of hiatal hernia and GERD. The examiner opined that the Veteran's hiatal hernia was not caused by or a result of an event or incident of any identified period of ACDUTRA. The examiner explained that there were no documented injuries sustained while on active duty that caused her to develop a hiatal hernia. In this regard, the examiner noted that the Veteran reported having no gastrointestinal complains on her physicals and denied having or ever having frequent indigestion, stomach, liver or intestinal problems. In this case, the preponderance of the evidence does not serve to link the onset of any current hiatal hernia to a disease or injury of any period of the Veteran's ACDUTRA service or an injury of any period of inactive duty for training. In the June 2012 report of VA examination, the examiner opined that the Veteran's hiatal hernia was not caused by or a result of an event or incident of any identified period of ACDUTRA, explaining that there were no documented injuries sustained while on active duty that caused her to develop a hiatal hernia. Neither the Veteran nor her representative has presented or identified any medical evidence or opinion to contradict that provided by the VA examiner (which was based on a review of the medical records, taking the Veteran's history and performing examination). The only evidence supporting the Veteran's claim are her general lay assertions. Although the Veteran is competent to provide evidence of visible symptoms, she is not competent to provide evidence that requires medical knowledge. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007) (noting general competence to testify as to symptoms but not to provide medical diagnosis). Moreover, the Board finds that the Veteran has not presented credible lay assertions sufficient to establish onset of symptomalotogy referable to the claimed hiatal hernia to any period of ACDUTRA or INACDUTRA. In addition, the service treatment records are negative for any complaints or findings referable to a hiatal hernia. Moreover, the Veteran expressly denied having frequent indigestion, stomach, liver or intestinal problems in connection with her service examinations. Hence, to the extent that they lack specificity, the Board placed limited probative value on her lay assertions. For the foregoing reasons, the Board finds that the claim of service connection for a hiatal hernia must be denied. In reaching this conclusion, the Board has considered the applicability of the benefit-of-the-doubt doctrine. However, as the preponderance of the evidence is against the claim, that doctrine is not applicable. See 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). Right shoulder disorder The Veteran generally asserts that her right shoulder disorder is due to events that happened during her various periods of ACDUTRA and INACDUTRA. A review of the service treatment records referable to the Veteran's various periods of ACDUTRA shows that she checked the box for swollen or painful joints on the May 3, 2004 Report of Medical History. The report included notation of recurrent right shoulder pain. The examination included findings of anterior right shoulder transverse scar. Otherwise, the service treatment records are negative for complaints or findings referable to a right shoulder disorder. An April 2002 MRI report of the right shoulder documents right rotator cuff tendon impingement at the musculotendinous junction and benign cyst of the right humeral head. A September 2002 operation report documents that the Veteran underwent a right rotator cuff repair with acromioplasty and clavicle excision. In the report of a June 2012 VA examination, the examiner confirmed the Veteran's diagnosis of right rotator cuff impingement. The examiner opined that it was less likely as not that the Veteran's right rotator cuff impingement syndrome was due to an injury or another event or incident of any period of ACDUTRA or an injury sustained during any period of INACDUTRA. The examiner explained that the right shoulder disorder was diagnosed in 2002, approximately 21 years after her performance of initial ACDUTRA. The examiner reasoned that it was very unlikely that the current right shoulder disorder would have occurred during a period of ACDUTRA or INACDUTRA given this interval of time (21 years). In this regard, the examiner noted the lack of musculoskeletal complaint relative to her right shoulder in her service treatment records. In this case, the preponderance of the evidence does not serve to link the onset of the current right shoulder disorder to a disease or injury of any period of ACDUTRA or an injury of any period of INACDUTRA. Neither the Veteran nor her representative has identified, presented, or alluded to any medical evidence or opinion to support the claim (which was based on a review of the medical records, taking the Veteran's history and performing examination). The only evidence of record supporting the Veteran's claim is her various general lay assertions. Although the Veteran is competent to provide evidence of visible symptoms, she is not competent to provide evidence that requires medical knowledge. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007) (noting general competence to testify as to symptoms but not to provide medical diagnosis). However, the Board finds that the Veteran has not presented credible lay assertions sufficient to establish onset of symptomatology referable to the right shoulder disorder during a period of ACDUTRA or INACDUTRA. Moreover, the Veteran did not express musculoskeletal complaints relative to her right shoulder in her service treatment records that would link the condition to a period of ACDUTRA or INACDUTRA. Hence, to the extent that lack specificity, the Board placed limited probative value on these lay assertions. For the foregoing reasons, the Board finds that the claim of service connection for a right shoulder disorder must be denied. In reaching this conclusion, the Board has considered the applicability of the benefit-of-the-doubt doctrine. However, as the preponderance of the evidence is against the claim, that doctrine is not applicable. See 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. at 53-56 (1990). Hypertension The Veteran generally asserts that her hypertension is related to events during her various periods of ACDUTRA and INACDUTRA. The service treatment records referable to the Veteran's various periods of ACDUTRA indicate that she had a history of having and being prescribed medication for hypertension. There was no documentation of treatment for hypertension during a period of ACDUTRA. The VA and private treatment records confirm treatment for hypertension. In the report of a September 2003 VA fee basis examination, the Veteran reported that she had had hypertension since 2001. She reported that her blood pressure would rise and fall and as a result she was off and on medication for regulation. On examination, the diagnosis was essential hypertension In the report of a June 2012 VA examination, the examiner confirmed the Veteran's diagnosis of hypertension. The examiner opined that the hypertension was less likely as not caused by or as a result of an event or incident of any period of ACDUTRA. The examiner explained that there was no documentation that the Veteran was treated for hypertension during ACDUTRA. In this case, the preponderance of the evidence does not serve to link the onset of the current hypertension to an event or incident of any period of ACDUTRA. There is no medical opinion that even suggests that there exists a medical relationship, or nexus, between the current hypertension and her ACDUTRA. In the June 2012 report of VA examination, the examiner opined that it was less likely as not that the Veteran's hypertension was due to an injury or another event or incident of any period of ACDUTRA, explaining that there was no documentation that the Veteran was treated for hypertension during ACDUTRA. Neither the Veteran nor her representative has identified, presented, or alluded to the existence of any medical evidence or opinion to contradict that provided by the VA examiner (which was based on a review of the medical records, taking the Veteran's history and performing examination). The only evidence of record supporting the Veteran's claim is her various general lay assertions. Although the Veteran is competent to provide evidence of visible symptoms, she is not competent to provide evidence that requires medical knowledge. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007) (noting general competence to testify as to symptoms but not to provide medical diagnosis). However, the Board finds that the Veteran has not presented credible lay assertions sufficient to establish the onset of the hypertension during a period of ACDUTRA. Hence, to the extent that they lack specificity, the Board placed limited probative value on these lay assertions. For the foregoing reasons, the Board finds that the claim of service connection for hypertension must be denied. In reaching this conclusion, the Board has considered the applicability of the benefit-of-the-doubt doctrine. However, as the preponderance of the evidence is against the claim, that doctrine is not applicable. See 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. at 53-56 (1990). Heart Disorder The Veteran asserts that her current heart disorder preexisted her initial period of service and was aggravated beyond the normal progression of the disease due to service. On the February 1981 Report of Medical History, the Veteran reported having a heart operation as a child with no current problems. The physician noted "heart operation at age 4 1/2 and chest pain after running." On corresponding evaluation, a clinical evaluation of the heart was noted to be abnormal, and the examiner documented the presence of a slight heart murmur. The subsequent treatment records document that the Veteran continued to report having heart trouble as a child. There was no indication of current symptoms related thereto. In the report of a September 2003 VA fee basis examination, the Veteran described her heart disorder diagnosed during her childhood. She complained of having shortness of breath and fatigue. She reported that she became very tired and short-winded during walks and could not run "every so often." The Veteran was noted to have had no history of rheumatic heart disease or heart failure. The examiner commented that he "would not think that she would have been inducted into the service if she had any residual heart disease related to heart surgery at age four to five years of age." The Veteran added that she did not have any functional impairment due to her heart disorder because she knew her limits. On examination, there was no diagnosis because there was no pathology to render a diagnosis. In the report of a June 2012 VA examination, the examiner concluded that there was no evidence that the Veteran had any heart disorder or had a myocardial infarction. The chest x-ray study and EKG results were noted to be normal and showed no evidence of prior infarct or ischemia. Given this evidence showing no current heart disability, the Board finds that the claim of service connection must be denied. The Board emphasizes that Congress has specifically limited entitlement to service connection for disease or injury to cases where such incidents have resulted in disability. See 38 U.S.C.A. § 1131; see also 38 C.F.R. § 3.310. Thus, where, as here, the medical evidence does not establish that the Veteran has the disability for which service connection is sought, there can be no valid claim for service connection. See Gilpin v. West, 155 F.3d 1353 (Fed. Cir. 1998); Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). The only evidence of record supporting the claim are her own lay assertions. Although the Veteran is competent to provide evidence of visible symptoms, she is not competent to provide evidence that requires medical knowledge. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007) (noting general competence to testify as to symptoms but not to provide medical diagnosis). However, the Veteran, as a layperson, is not qualified to provide a medical diagnosis or an opinion regarding a question of medical causation as presented in connection with this matter. To the extent that the Veteran asserts that a preexisting heart disorder was aggravated by a period of service, the medical evidence of record simply does not support this assertion. Thus, to the extent that the lay assertions lack specificity, the lay statements are of limited probative value in this case. For the foregoing reasons, the Board finds that the claim of service connection for a heart disorder must be denied. In reaching this conclusion, the Board has considered the applicability of the benefit-of-the-doubt doctrine. However, as the preponderance of the evidence is against the claim, that doctrine is not applicable. See 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. at 53-56 (1990). ORDER Service connection for a hiatal hernia is denied. Service connection for a right shoulder disorder is denied. Service connection for hypertension is denied. Service connection for a claimed heart disorder is denied. REMAND As noted above, service connection will be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred in or aggravated by active military service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303(a). Establishing service connection generally requires (1) evidence of a current disability; (2) evidence of in-service incurrence or aggravation of a disease or injury; and (3) evidence of a nexus between the claimed in-service disease or injury and the present disability. Regarding the Veteran's claim of service connection for residuals of a pilonidal cyst, the Board notes that the requirement that a current disability be present is satisfied when a claimant has a disability at the time a claim for VA disability compensation is filed or during the pendency of that claim. McClain v. Nicholson, 21 Vet. App. 319 (2007). In this case, VA and private treatment records confirm treatment for a possible recurrent pilonidal cyst. However, the June 2012 report of VA examination indicates that the Veteran has no current disability caused by or the result of the removal of the pilonidal cyst. The examiner noted that the examination was normal except for the presence of the scar from the surgery. Thus, further opinion is necessary. In an addendum, the VA examiner must explain if the Veteran has or, at any time during the appeal period, had a pilonidal cyst that developed during or due to an event or incident of any period of the Veteran's ACDUTRA. Regarding the residuals of the cholecystectomy, the record is unclear as to whether the Veteran has a current residuals of a cholecystectomy that was performed due to a disease or injury that was incurred in or aggravated by any period of ACDUTRA or an injury that was incurred in or aggravated by a period of INACDUTRA. The Board notes that a June 2003 private treatment record indicates that the Veteran was tentatively scheduled for surgery on August 13, 2003 for gallstones. An August 2003 service treatment record sick slip documents the Veteran's complaints of stomach/side pain (gallstones). An August 2003 private treatment record reflects that the Veteran underwent cholecystectomy for her gangrenous cholecystitis with cholelithiasis. In the report of June 2012 VA examination, the examiner diagnosed cholelithiasis (gallstones) and cholecystectomy. The examiner opined that it was less likely than not that any current residual disability of cholecystectomy was due to an event or incident of any period of ACDUTRA. The examiner explained that there was no evidence that the Veteran suffered any gastrointestinal complications after the removal of her gangrenous gallbladder. Thus, it seems that the examiner is indicating that the Veteran does not have a current disability. However, the record indicates that the Veteran complained of symptoms related to gallstones during a period of ACDUTRA service. Thus, further opinion is necessary to determine if the Veteran has or, at any time during the appeal period, had gallstones due to an event or incident of any period of ACDUTRA. The examiner must also clarify if the Veteran has any current residual disability as a result of cholecystectomy due to an event or incident of the Veteran's period of ACDUTRA. Regarding the claimed asthma, the Board notes that the United States Court of Appeals for Veterans Claims (Court) has determined that a remand by the Board confers upon a claimant, as a matter of law, the right to compliance with remand orders. See Stegall v. West, 11 Vet. App. 268, 270-71 (1998). In the May 2012 remand, the Board requested that the RO schedule the Veteran for a VA examination to address the etiology of her claimed asthma. The examiner was asked to opine as to whether it is at least as likely as not (i.e., probability of 50 percent or greater) that any current asthma disability is due to an event or incident of any period of ACDUTRA. The examiner was also asked to opine whether any preexisting asthma at least as likely as not (i.e., probability of 50 percent or greater) underwent an increase in severity beyond the natural progression during any period of ACDUTRA. In the report of June 2012 VA examination, the examiner opined that the Veteran's preexisting asthma did not increase in severity beyond the natural progression during any period of ACDUTRA. However, the examiner failed to offer opinion as to whether it was at least as likely as not that any current asthma disability was due to an event or incident of any period of ACDUTRA. Thus, further remand is required to correct this deficiency. See Stegall supra. As to the claimed bipolar disorder, dysthymic disorder, major depressive disorder and PTSD, in the June 2012 Report of VA examination, the examiner stated that it was less likely than not that the Veteran's bipolar disorder was due to an event or incident of any period of ACDUTRA. The Examiner concluded that she could not opine whether the Veteran's preexisting bipolar disorder underwent an increase in severity beyond the natural progression during any period of ACDUTRA without resorting to speculation. In Jones v. Shinseki, 23 Vet. App. 382 (2009), the Court held that, before the Board can rely on an examiner's conclusion that an etiology opinion would be speculative, the examiner must explain the basis for such an opinion or the basis must otherwise be apparent in the Board's review of the evidence. Id. at 390. It must also be clear that the physician has considered "all procurable and assembled data." Id (citing Daves v. Nicholson, 21 Vet. App. 46 (2006)). Finally, the physician must clearly identify precisely what facts cannot be determined. Id. In this case, the VA examiner in June 2012 offered no rationale or supporting explanation for her statement. Accordingly, these remaining matters are REMANDED for the following action: 1. The RO should take all indicated action to forward the Veteran's claims file to the VA examiner who conducted the VA examination for the residuals of a pilonidal cyst in June 2012 or a suitable substitute in order to obtain a clarifying opinion. The entire claims file (i.e., both the paper claims file and any electronic medical records) should be made available to and be reviewed by the examiner, and it should be confirmed that such records were available for review. If the examiner does not have access to electronic medical records, any such relevant treatment records must be printed and associated with the paper claims file so they can be available to the physician for review. Based on a review of the entire record, and examination findings as documented in the June 2012 VA report, the examiner should offer an opinion as to whether it is at least as likely as not (50 percent probability or greater) that the Veteran has the residuals of a pilonidal cyst that is due to an event or incident of any period of ACDUTRA or INACDUTRA. The opinion should be provided based on the results of the June 2012 examination, a review of the medical evidence of record, and sound medical principles. All findings, along with the complete rationale for all opinions expressed, should be set forth in the examination report. If further examination is necessary to provide the requested opinion, such examination must be provided. 2. The RO should take all indicated action to forward the Veteran's claims file to the VA examiner who conducted the VA examination for the residuals of a cholecystectomy in June 2012 or a suitable substitute in order to obtain a clarifying opinion. The entire claims file (i.e., both the paper claims file and any electronic medical records) should be made available to and be reviewed by the examiner, and it should be confirmed that such records were available for review. If the examiner does not have access to electronic medical records, any such relevant treatment records must be printed and associated with the paper claims file so they can be available to the physician for review. Based on a review of the entire record, and examination findings as documented in the June 2012 VA report, the examiner should offer an opinion as to whether it is at least as likely as not (50 percent probability or greater) that the Veteran had gallstones (cholelithiasis) that are due to an event or incident of any period of ACDUTRA or ACDUTRA. The opinion should be provided based on the results of the June 2012 examination, a review of the medical evidence of record, and sound medical principles. All findings, along with the complete rationale for all opinions expressed, should be set forth in the examination report. If further examination is necessary to provide the requested opinion, such examination must be provided. 3. The RO should take all indicated action to forward the Veteran's claims file to the VA examiner who conducted the VA examination for asthma in June 2012 or a suitable substitute in order to obtain a clarifying opinion. The entire claims file (i.e., both the paper claims file and any electronic medical records) should be made available to and be reviewed by the examiner, and it should be confirmed that such records were available for review. If the examiner does not have access to electronic medical records, any such relevant treatment records must be printed and associated with the paper claims file so they can be available to the physician for review. After reviewing the entire record, including results of the June 2012 examination, the examiner should opine as to whether it is at least as likely as not (i.e., probability of 50 percent or greater) that any current asthma disability is due to disease or injury that was incurred in or aggravated by any period of ACDUTRA. All findings, along with the complete rationale for all opinions expressed, should be set forth in the examination report. If further examination is necessary to provide the requested opinion, such examination must be provided. 4. The RO should take all indicated action to forward the Veteran's claims file to the VA psychologist who conducted the VA psychiatric examination in June 2012 or a suitable substitute in order to obtain a clarifying opinion. The entire claims file (i.e., both the paper claims file and any electronic medical records) should be made available to and be reviewed by the physician, and it should be confirmed that such records were available for review. If the physician does not have access to electronic medical records, any such relevant treatment records must be printed and associated with the paper claims file so they can be available to the physician for review. After reviewing the entire record, the VA psychologist should provide an opinion as to whether any preexisting psychiatric disability underwent an increase in severity beyond natural progression during any period of ACDUTRA. An explanation for all opinions expressed must be provided. If an opinion cannot be provided without resorting to speculation, the psychologist then must provide an appropriate explanation for that conclusion (i.e., the physician must clearly identify precisely what facts cannot be determined). 5. After completing all indicated development, the claims remaining on appeal should be readjudicated in light of all the evidence of record. If any benefit sought on appeal remains denied, the Veteran and his representative should be furnished with a fully responsive Supplemental Statement of the Case and afforded a reasonable opportunity for response. Thereafter, if indicated, the case should be returned to the Board for the purpose of appellate disposition. The Veteran 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). ______________________________________________ STEPHEN L. WILKINS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs