Citation Nr: 1312181 Decision Date: 04/12/13 Archive Date: 04/19/13 DOCKET NO. 05-04 871 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Houston, Texas THE ISSUES 1. Entitlement to service connection for a disability manifested by joint pain, to include fibromyalgia, rheumatoid arthritis, polyarthralgia and arthritis of multiple joints (other than the right shoulder and lumbar spine). 2. Entitlement to service connection for an acquired psychiatric disorder, to include posttraumatic stress disorder (PTSD), hypochondriacal neurosis and depressive disorder. 3. Entitlement to service connection for a disability manifested by disequilibrium, to include Meniere's disease. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARINGS ON APPEAL Appellant ATTORNEY FOR THE BOARD K. R. Fletcher, Counsel INTRODUCTION The appellant is a veteran who served on active duty from January 1959 to July 1976. This case was originally before the Board of Veterans' Appeals (Board) on appeal from rating decisions of the Houston, Texas Department of Veterans Affairs (VA) Regional Office (RO). The Veteran testified at a travel Board hearing before the undersigned Veterans Law Judge in San Antonio in February 2009. A transcript of that proceeding is of record. In a decision issued in August 2011, the Board (in pertinent part) denied service connection for an acquired psychiatric disorder, to include PTSD and hypochondriacal neurosis. The Veteran appealed that decision to the United States Court of Appeals for Veterans Claims (Court). In a May 2012 Order, the Court granted a Joint Motion for Partial Remand of the parties (Joint Motion), and vacated only the portion of the Board's August 2011 decision denying service connection for service connection for an acquired psychiatric disorder, to include PTSD and hypochondriacal neurosis. The Board's August 2011 decision also (in pertinent part) remanded the issues of entitlement to service connection for Meniere's disease and arthritis of multiple joints for further evidentiary development. These issues are now ready for disposition. In addition to the paper claims file, there is a Virtual VA (VVA) electronic claims file associated with the Veteran's claims. The documents in the VVA file are either duplicative of the evidence in the paper claims file or are irrelevant to the issues on appeal. The record reflects that the issues on appeal have previously been characterized claims for service connection for: an acquired psychiatric disorder, to include PTSD and hypochondriacal neurosis; Meniere's disease; and arthritis of multiple joints. In Clemons v. Shinseki, 23 Vet. App. 1 (2009), the Court found that an appellant's claim for service connection for PTSD should have been construed more broadly by VA as a claim for service connection for any mental disability. The Court noted that the claimant was not competent to diagnose a particular psychiatric disability, such as PTSD, but that he was competent to describe his mental symptoms. Id. at 4-5, citing Espiritu v. Derwinski, 2 Vet. App. 492, 494-95 (1992) and Layno v. Brown, 6 Vet. App. 465, 469 (1994). The Court also noted that the evidence submitted in support of the claim showed that the appellant had been diagnosed with psychiatric disabilities other than PTSD and that these disabilities arose "from the same symptoms for which he was seeking benefits." Id. at 9. The Court held that, in construing a claim, the Board must consider any disability "that may reasonably be encompassed by several factors including: the claimant's description of the claim; the symptoms the claimant describes; and the information the claimant submits or that the Secretary obtains in support of the claim." Id. at 5. As is discussed in more detail below, the medical evidence of record in this case indicates that, in addition to PTSD, hypochondriacal neurosis, Meniere's disease and arthritis of multiple joints, the Veteran has been seen for depressive disorder, disequilibrium, polyarthralgia, rheumatoid arthritis and fibromyalgia. The Board has recharacterized the Veteran's claims accordingly. The issues of entitlement to service connection for an acquired psychiatric disorder and entitlement to service connection for a disability manifested by disequilibrium 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 has been awarded service connection for gout and osteoarthritis of the right shoulder. He has been denied service connection for degenerative disc disease of the lumbar spine. 2. Polyarthralgia and arthritis of multiple joints (other than the right shoulder and lumbar spine) were not present in service; arthritis was not present within the first year following the Veteran's discharge from active duty; and the Veteran's current polyarthralgia and degenerative arthritis of the left shoulder is not etiologically related to service. 3. No fibromyalgia or rheumatoid arthritis has been present during the pendency of this claim. CONCLUSION OF LAW A disability manifested by joint pain was not incurred in or aggravated by active service. 38 U.S.C.A. §§ 1110, 1131 (West 2002); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. The Veterans Claims Assistance Act of 2000 (VCAA) The VCAA, codified in pertinent part at 38 U.S.C.A. §§ 5103, 5103A (West 2002 & Supp. 2012), and the pertinent implementing regulation, codified at 38 C.F.R. § 3.159 (2012), provide that VA will assist a claimant in obtaining evidence necessary to substantiate a claim but is not required to provide assistance to a claimant if there is no reasonable possibility that such assistance would aid in substantiating the claim. They also require VA to notify the claimant and the claimant's representative, if any, of any information, and any medical or lay evidence, not previously provided to the Secretary that is necessary to substantiate the claim. As part of the notice, VA is to specifically inform the claimant and the claimant's representative, if any, of which portion, if any, of the evidence is to be provided by the claimant and which part, if any, VA will attempt to obtain on behalf of the claimant. Although the regulation previously required VA to request that the claimant provide any evidence in the claimant's possession that pertains to the claim, the regulation has been amended to eliminate that requirement for claims pending before VA on or after May 30, 2008. The Board also notes that the United States Court of Appeals for Veterans Claims (Court) has held that the plain language of 38 U.S.C.A. § 5103(a) requires that notice to a claimant pursuant to the VCAA be provided "at the time" that, or "immediately after," VA receives a complete or substantially complete application for VA-administered benefits. Pelegrini v. Principi, 18 Vet. App. 112, 119 (2004). The Court further held that VA failed to demonstrate that "lack of such a pre-AOJ-decision notice was not prejudicial to the appellant, see 38 U.S.C. § 7261(b)(2) (as amended by the Veterans Benefits Act of 2002, Pub. L. No. 107-330, § 401, 116 Stat. 2820, 2832) (providing that '[i]n making the determinations under [section 7261(a)], the Court shall...take due account of the rule of prejudicial error')." The timing requirement enunciated in Pelegrini applies equally to the initial-disability-rating and effective-date elements of a service-connection claim. Dingess v. Nicholson, 19 Vet. App. 473 (2006). With respect to the issue decided herein, the record reflects that the Veteran was provided all required notice in letters mailed in July 2004 and March 2006. Although the Veteran was not provided complete notice until after the initial adjudication of the claim, the Board finds that there is no prejudice to him in proceeding with the issuance of a final decision. See Bernard v. Brown, 4 Vet. App. 384, 394 (1993). In this regard, the Board notes that following the provision of the required notice and the completion of all indicated development of the record, the originating agency readjudicated the Veteran's claim. See August 2012 Supplemental Statement of the Case. There is no indication in the record or reason to believe that any ultimate decision of the originating agency on the merits of the claims would have been different had complete VCAA notice been provided at an earlier time. See Overton v. Nicholson, 20 Vet. App. 427, 437 (2006) (A timing error may be cured by a new VCAA notification followed by a readjudication of the claim). All appropriate development to obtain the Veteran's pertinent, available service treatment records (STRs) and post-service medical records (including VA and private) has been completed. The Veteran has not identified any pertinent, outstanding records that could be obtained to substantiate his claim. The Board is also unaware of any such records. Moreover, the Veteran has been afforded appropriate VA examinations and provided testimony at hearings before the RO and the Board. Accordingly, the Board concludes that VA has complied with its duty to assist the Veteran. Accordingly, the Board will address the merits of the claim. II. Legal Criteria Service connection is granted for disability resulting from disease or injury incurred in or aggravated by active duty. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303. For the showing of chronic disease in service, there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time, as opposed to merely isolated findings or a diagnosis including the word "chronic." When the fact of chronicity in service (or during any applicable presumptive period) is not adequately supported, then a showing of continuity after discharge is required to support the claim. 38 C.F.R. § 3.303(b). Service connection requires competent evidence showing: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); see also Caluza v. Brown, 7 Vet. App. 498 (1995). Under 38 C.F.R. § 3.303(b), an alternative method of establishing the second and third Shedden/Caluza element is through a demonstration of continuity of symptomatology. Barr v. Nicholson, 21 Vet. App. 303 (2007). Continuity of symptomatology may be established if a claimant can demonstrate (1) that a condition was "noted" during service; (2) evidence of post-service continuity of the same symptomatology; and (3) medical or, in certain circumstances, lay evidence of a nexus between the present disability and the post-service symptomatology. See Savage v. Gober, 10 Vet. App. 488, 495-96 (1997); see Hickson v. West, 12 Vet. App. at 253 (lay evidence of in-service incurrence sufficient in some circumstances for purposes of establishing service connection); 38 C.F.R. § 3.303(b). Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability was incurred in service. 38 C.F.R. § 3.303(d). Certain chronic diseases, including arthritis, may be presumed to have been incurred in or aggravated by service if manifest to a compensable degree within one year of discharge from service. See 38 U.S.C.A. §§ 1101, 1112; 38 C.F.R. §§ 3.307, 3.309. "Congress specifically limits entitlement to service-connected disease or injury where such cases have resulted in a disability ... in the absence of a proof of present disability there can be no claim." Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). The Court has held that the requirement for service connection 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 even though the disability resolves prior to the Secretary's adjudication of the claim. See McClain v. Nicholson, 21 Vet. App. 319, 321 (2007). With disability compensation claims, VA adjudicators are directed to assess both medical and lay evidence. As a general matter, a layperson is not capable of opining on matters requiring medical knowledge. See 38 C.F.R. § 3.159(a)(2); see also Routen v. Brown, 10 Vet. App. 183, 186 (1997) ("a layperson is generally not capable of opining on matters requiring medical knowledge"). In certain circumstances, however, lay evidence may be sufficient to establish a medical diagnosis or nexus. See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009). In addressing lay evidence and determining its probative value, if any, attention is directed to both 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"). See Layno v. Brown, 6 Vet. App. 465, 469 (1994). In terms of competency, lay evidence has been found to be competent with regard to a disease with "unique and readily identifiable features" that is "capable of lay observation." See Barr, supra (concerning varicose veins); see also Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007) (a dislocated shoulder); Charles v. Principi, 16 Vet. App. 370, 374 (2002) (tinnitus); Falzone v. Brown, 8 Vet. App. 398, 405 (1995) (flatfoot). That notwithstanding, a Veteran is not competent to provide evidence as to more complex medical questions and, specifically, is not competent to provide an opinion as to etiology in such cases. See Woehlaert v. Nicholson, 21 Vet. App. 456, 462 (2007) (concerning rheumatic fever). In weighing credibility, VA may consider interest, bias, inconsistent statements, bad character, internal inconsistency, facial plausibility, self-interest, consistency with other evidence of record, malingering, desire for monetary gain, and demeanor of the witness. See generally Caluza, supra. The Board may weigh the absence of contemporaneous medical evidence against the lay evidence in determining credibility, but the Board cannot determine that lay evidence lacks credibility merely because it is unaccompanied by contemporaneous medical evidence. See Buchanan v. Nicholson, 451 F.3d 1331, 1335 (Fed. Cir. 2006); but see Maxson v. Gober, 230 F.3d 1330 (Fed. Cir. 2000) (evidence of a prolonged period without medical complaint after service can be considered along with other factors in the analysis of a service connection claim). Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits under laws administered by the Secretary. The Secretary shall consider all information and lay and medical evidence of record in a case before the Secretary with respect to benefits under laws administered by the Secretary. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert, 1 Vet. App. at 54. Initially, the Board notes that it has reviewed all of the evidence in the Veteran's claims files, with an emphasis on the evidence relevant to this appeal. Although the Board has an obligation to provide reasons and bases supporting its decision, there is no need to discuss, in detail, every piece of evidence of record. Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (holding that VA must review the entire record, but does not have to discuss each piece of evidence). Hence, 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. III. Factual Background and Analysis - Disability Manifested by Joint Pain (Other than Right Shoulder and Lumbar Spine Pain) (Initially, the Board notes that the Veteran has been awarded service connection for gout and osteoarthritis of the right shoulder. He has been denied service connection for degenerative disc disease of the lumbar spine.) The Veteran essentially contends that he has pain (claimed as arthritis) of various joints that is related to his military service. The STRs are silent for complaints or findings of a disability manifested by joint pain, to include fibromyalgia and arthritis of multiple joints (other than the right shoulder and lumbar spine). The Veteran was discharged from service in July 1976. A November 1976 VA examination report notes the Veteran's complaints of pain in various joints, including the wrists and ankles. X-ray studies of the wrists, ankles and left shoulder were within normal limits; no arthritis was noted. Uric acid level was 7.9 and gout was diagnosed. VA outpatient treatment records dated in May and June 1977 note the Veteran's complaints of pain in various joints including the wrists, ankles, left shoulder and knees. The examiners noted the Veteran's history of arthritis and arthralgia, but no X-ray studies were completed. Uric acid level was 7.5. Range of motion of these joints was full. The assessment included possible generalized arthritis. A workup and follow up with the rheumatology clinic was recommended. The Veteran did not report to an August 1977 rheumatology clinic appointment. VA X-ray studies of the ankles and knees obtained in February 1983 revealed no significant abnormalities. An August 1983 VA examination report notes an impression of gout by history without any evidence of degenerative changes. Subsequent VA and private treatment records and examination reports dated from 2004 to 2012 note assessments of gout; general osteoarthritis; polyarthritis, not otherwise specified; bursitis; osteonecrosis; and rheumatoid arthritis. Specifically, an April 2004 VA joints examination report notes that the examiner found that the Veteran's symptoms noted at discharge from service were not conclusive of gout, that the Veteran had no current symptomatology of gout, and that his complaints now are related to arthritis. X-ray studies obtained during that examination revealed no arthritis of the ankles, hands, or knees. A February 2006 rheumatology clinic record notes that a diagnosis of inflammatory arthritis, to include rheumatoid arthritis, was not confirmed by either X-ray studies or blood tests. During a May 2010 VA examination the Veteran reported that he had been told that his joint problems were related to his gout. X-ray studies revealed degenerative changes of the left shoulder and minimal joint space narrowing of the knees; all other joints were normal. Diagnosis included polyarthralgia of unknown etiology, as well as symptoms and findings suggestive of fibromyalgia. In a July 2010 addendum, the VA examiner stated that there was never any medical evidence of gout or rheumatoid arthritis, and no evidence of arthritis within a year of the Veteran's discharge from service. He opined that the Veteran currently had "multiple joint complaints." A June 2012 VA examination report notes that the examiner reviewed the claims file. The examiner noted that the Veteran did not meet the diagnostic criteria for a diagnosis of fibromyalgia. The medical evidence of record shows that degenerative arthritis of the left shoulder and polyarthralgia have been diagnosed during the pendency of this appeal. See McClain, supra. However, the medical evidence does not show the presence of any such disability during service. Moreover, the evidence does not show the presence of any arthritis within one year of discharge. The first medical documentation of left shoulder degenerative arthritis is the 2010 X-ray findings noted above. Such a long interval of time between service separation and the earliest medical documentation of the disease is, of itself, a factor weighing against a finding of service connection. See Maxson v. Gober, 230 F.3d 1330 (Fed. Cir. 2000). The Board finds that no additional development, to include a medical examination and/or opinion, is warranted based on the facts of this case. This is because any such medical opinion would not establish the existence of disease or injury in service to which a current disability could be related, nor produce evidence supporting a nexus between current disability and service (e.g., continuity of complaints). Paralyzed Veterans of America, et. al., v. Secretary of Veterans Affairs, 345 F.3d 1334, 1355-57 (2003). There is no competent medical evidence in the record that even suggests that arthritis or polyarthralgia might be related to the Veteran's service. The Veteran believes that he currently has a disability manifested by joint pain that is related to his military service. In this regard, the Board acknowledges Jandreau, supra, in which it was held a lay person may speak as to etiology in some limited circumstances in which nexus is obvious merely through lay observation, such as a fall leading to a broken leg. Here, however, the question of causation extends beyond an immediately observable cause-and-effect relationship and, as such, the Veteran is not competent to address etiology in the present case. Moreover, there is no confirmed diagnosis of either fibromyalgia or rheumatoid arthritis during the pendency of the appeal. See Brammer, supra. With respect to whether the Veteran's own statements can establish a current diagnosis here, in Jandreau, supra, the Federal Circuit determined that 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 (noting that sometimes the layperson will be competent to identify the condition where the condition is simple, for example a broken leg, and sometimes not, for example, a form of cancer), (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. The relevance of lay evidence is not limited to the third situation, but extends to the first two as well. Whether lay evidence is competent and sufficient in a particular case is a factual issue. In this case, the Board acknowledges that the Veteran is able to observe his joint pain; however, the Board does not believe that the Veteran has the expertise required to determine whether any such problems amount to fibromyalgia or rheumatoid arthritis. In reaching the above conclusions, the Board has considered the benefit of the doubt doctrine; however, as the preponderance of the evidence is against the claim, that doctrine does not apply. See 38 U.S.C.A. § 5107(b) . ORDER Service connection for a disability manifested by joint pain (other than right shoulder and lumbar spine pain) is denied. REMAND Regarding the Veteran's remaining claims, the Veteran maintains that his current psychiatric disability is related to his military service. He also states that he was discharged from service due to a finding of hypochondriacal neurosis, but maintains that this diagnosis was in error. He also contends that he has a disability manifested by disequilibrium attributable to his period of active duty. As to the claimed psychiatric disability, STRs show that the Veteran was evaluated in December 1974 for "many situational unhappinessess [sic]." Shortly thereafter, the Veteran was admitted to the Naval Regional Medical Center in Oakland, California, and diagnosed with hypochondriacal neurosis. The Veteran was discharged for this disability. The post-service medical evidence of record shows that the Veteran has been diagnosed with depressive disorder. The Veteran underwent a VA examination in June 2010. The examiner opined that the Veteran's depressive disorder was less likely than not to have had its onset in service. She stated that VA treatment records suggest an onset of the disorder in the 1990s and indicated that his mood symptoms fluctuated largely in response to psychosocial stressors. To support this opinion, the examiner cited a January 1976 STR which notes a diagnosis of hypochondriacal neurosis and states that psychological testing reportedly supported the impression of somatic conversion reaction (not depressive disorder). She also cited a 1976 psychiatric evaluation following the Veteran's discharge that did not find any active diagnosis, the Veteran's lack of treatment from 1976 to 2003, and the lack of data to suggest the Veteran suffered from cognitive difficulties during active duty as his work performance was reportedly quite good and his poor concentration and memory had been attributed to other factors. The examiner also pointed to the two Master's degrees that the Veteran obtained in the 1980s as strong data to suggest he was not experiencing significant cognitive problems at that time in his life. The examiner also found that it was at least as likely as not that hypochondriacal neurosis was misdiagnosed. In support of this opinion, she stated that the diagnosis depends upon the exclusion of a medical basis for the complaints, and the Veteran was since determined to have some ear pathology. Moreover, the examiner pointed out that service treatment records indicated that the Veteran's psychiatric difficulties were thought to be his "over concern" regarding his ear problems. At the examination, the Veteran did not describe any suspicion that he suffered from a physical health problem that has gone undiagnosed. There was also no indication that the Veteran was preoccupied with fears that he had a serious disease based on misinterpretation of bodily signs or symptoms despite medical reassurance. Therefore, the examiner concluded that current symptomatology appeared unrelated to a finding of hypochondriacal neurosis in service. The Board relied on this examination report to deny the Veteran's claim in August 2011. The August 2011 Board decision, in pertinent part, denied service connection for an acquired psychiatric disorder, to include PTSD and hypochondrical neurosis. In the April 2012 Joint Motion endorsed by the Court, the parties agreed that remand was required to obtain a new medical opinion. In this regard, it was noted that while the June 2010 VA examiner cited to certain findings in a January 1976 STR, she ignored another finding that "The impression of the psychiatrist was that the [Veteran] has a psychophysical muskuloskeletal disorder with an underlying depression and possible conversion reaction." Although the June 2010 VA examiner reports that she reviewed the Veteran's claims file, she did not include a complete discussion of the pertinent findings noted in a January 1976 STR. The development of facts includes a thorough and contemporaneous medical examination, one that takes into account the records of prior medical treatment, VA adjudication regulations and guidelines provide that "if [an examination] report does not contain sufficient detail, it is incumbent upon the rating board to return the report as inadequate for evaluation purposes." 38 C.F.R. § 4.2. See also Littke v. Derwinski, 1 Vet. App. 90, 92 (1990); Green v. Derwinski, 1 Vet. App. 121 (1991). Therefore, another medical opinion is needed in this case. As to the claimed disability manifested by dysequilibrium, the Veteran has been awarded service connection for tinnitus, bilateral hearing loss disability and scar of the right tympanic membrane with Eustachian tube dysfunction. In an August 2002 private treatment record, the Veteran's private physician diagnosed Meniere's disease. In April 2004, the Veteran underwent a VA audiological examination. The examiner indicated that it is not at least as likely as not that the Veteran's hearing loss and tinnitus are related to Meniere's disease as Meniere's disease typically requires symptoms including rotary vertigo. The examiner indicated that the Veteran denied rotary vertigo, but he did not address the Veteran's complaints of dizzy spells. During a February 2009 hearing the Veteran testified that he experienced vertigo. A May 2010 VA ear disease examiner listed "dysequilibrium" as a diagnosis and found no specific diagnosis of Meniere's disease based on examination or review of the record. The examiner then opined that it was less likely than not that the Veteran's Meniere's disease was caused by or a result of his service-connected disability because the literature does not show that a perforated ear drum causes Meniere's disease and because Meniere's disease is manifested by vertigo, which the Veteran apparently denied experiencing at the examination. In June 2012, the Veteran underwent another VA examination. The examiner opined that there was no clear diagnosis of Meniere's disease in the evidence of record. The examiner also opined that that the Veteran's history was most consistent with a diagnosis of superior semi-circular canal dehiscence, a congenital defect of the temporal bone. However, the examiner also stated that this diagnosis could not be confirmed without an MRI of the temporal bone. No such MRI study was ordered. The Board finds that further development is needed in this case. Specifically, the Veteran should be scheduled for a new VA examination to obtain an MRI study and an etiology opinion. Accordingly, this case is REMANDED to the RO or the AMC for the following actions: 1. The RO or the AMC should return the Veteran's claims file to the examiner who conducted the June 2010 VA psychiatric examination (A.M.A.). Based upon the claims file review and sound medical principles, the examiner should answer the following question: Is it at least as likely as not that the Veteran's depressive disorder is etiologically related to his active military service. Reasons and bases should be provided for this opinion. The examiner should specifically address the part of the January 1976 STR that states, "The impression of the psychiatrist was that the [Veteran] has a psychophysical muskuloskeletal disorder with an underlying depression and possible conversion reaction." If the June 2010 examiner is not available, the claims file should be reviewed by another physician with appropriate expertise who should be requested to provide the required opinion with supporting rationale. Another examination of the Veteran should only be performed if deemed necessary by the person providing the opinion. 2. The RO or the AMC should arrange for the Veteran to undergo the appropriate examination to determine the likely etiology of disability manifested by dysequilibrium. The Veteran should be properly notified of the examination and of the consequences of his failure to appear. His claims file must be reviewed by the examiner in conjunction with the examination. An MRI study of the temporal bone should be obtained. Thereafter, the examiner should provide an opinion, based upon review of the Veteran' pertinent medical history and with consideration of sound medical principles, as to the following: a. Is it at least as likely as not (a 50% or better probability) that the disability manifested by dysequilibrium was present during active service because of a congenital defect? b. If the examiner is of the opinion that disability manifested by dysequilibrium was present during service, the examiner should provide an opinion as to whether the disability manifested by dysequilibrium clearly and unmistakably existed prior to service and clearly and unmistakably underwent no permanent increase in severity as a result of active duty. The examiner should also state whether any current disability manifested by dysequilibrium is a result of a superimposed injury or disease in service. c. If the examiner is of the opinion that a current disability manifested by dysequilibrium was not present during service, the examiner should provide an opinion as to whether it is at least as likely as not (a 50% or better probability) such disability is etiologically related to the Veteran's active service, or whether it is at least as likely as not (a 50% or better probability) that such disability was caused or permanently worsened by service-connected tinnitus, bilateral hearing loss disability and/or scar of the right tympanic membrane with Eustachian tube dysfunction. d. The examiner should explain the rationale for all opinions expressed and must reconcile all opinions with those provided in the record. 3. The RO or the AMC also should undertake any other development it determines to be warranted. 4. Then, readjudicate the issues on appeal. If the benefits sought on appeal are not granted to the Veteran's satisfaction, provide the Veteran and his representative with a supplemental statement of the case and afford them the requisite opportunity to respond before returning the case to the Board for further appellate action. By this remand, the Board intimates no opinion as to any final outcome warranted. The appellant has the right to submit additional evidence and argument on the matters that the Board has remanded. See 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 or by the Court 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). ______________________________________________ MARK W. GREENSTREET Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs