Citation Nr: 1314154 Decision Date: 04/29/13 Archive Date: 05/15/13 DOCKET NO. 07-31 215 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Houston, Texas THE ISSUES 1. Whether new and material evidence has been received to reopen the claim of service connection for an acquired psychiatric disorder, to include posttraumatic stress disorder (PTSD), a depressive disorder, and dysthymic disorder. 2. Entitlement to service connection for an acquired psychiatric disorder, to include posttraumatic stress disorder (PTSD), a depressive disorder, and dysthymic disorder. 3. Entitlement to service connection for coronary artery disease. 4. Entitlement to service connection for obesity. 5. Entitlement to service connection for a left knee disorder. 6. Entitlement to service connection for a right knee disorder. 7. Entitlement to a compensable rating for the service-connected residuals of a fractured coccyx. 8. Entitlement to an increased rating for the service-connected degenerative disc disease of the thoracolumbar spine, currently evaluated at 20 percent. REPRESENTATION Appellant represented by: Texas Veterans Commission WITNESSES AT HEARINGS ON APPEAL The Veteran and T.G. ATTORNEY FOR THE BOARD J. Smith, Counsel INTRODUCTION The Veteran served on active duty from December 1954 to October 1957, and February 1958 to December 1967. The Veteran's claim comes before the Board of Veterans' Appeals (Board) on appeal from a September 2006 rating decision of the RO. In January 2008, the Veteran testified during a hearing before a Decision Review Officer (DRO) at the RO. A transcript of that hearing is of record. In July 2009, the Veteran testified at a hearing held at the RO before another Veterans Law Judge (VLJ). A transcript of that hearing is of record. In August 2010, the Board remanded the case to the RO for additional development of the record. In September 2012, the Veteran was notified that the VLJ who conducted the July 2009 hearing had retired. He was afforded the opportunity for a new hearing, and elected to have another hearing. In October 2012, the Board remanded the case in order to afford the Veteran with an opportunity for another hearing. In March 2013, the Veteran testified at a hearing held before the undersigned Veterans Law Judge at the RO. A transcript of that hearing is of record, and is located in the Veteran's Virtual VA file only. At the March 2013 hearing, the Veteran submitted additional medical evidence to the Board. In an accompanying VA Form 21-4138, the Veteran waived his right to have this evidence reviewed in the first instance by the RO. Also at the March 2013 hearing, the Veteran, his representative, and the undersigned Veterans Law Judge agreed that the claim involving an increased rating for a fractured coccyx also necessarily implicated the Veteran's service-connected lumbar spine disability, as the primary area affected by the coccyx disability was his low back. Hearing Transcript, pp. 4-7. It was agreed that an increased rating for both disabilities should be addressed on appeal. Id. The Board has thus captioned the issues accordingly. Finally, the Board notes that on October 13, 2009, in accordance with authority provided in 38 U.S.C. § 1116, the Secretary of VA announced his decision to establish presumptions of service connection, based upon exposure to herbicides used in the Republic of Vietnam during the Vietnam era, for three new conditions: ischemic heart disease, Parkinson's disease, and B cell leukemias. On March 25, 2010, the Secretary published in the Federal Register a proposed rule that would amend 38 C.F.R. § 3.309(e) to establish a presumption of service connection for ischemic heart disease, Parkinson's disease, and B cell leukemias based upon exposure to herbicides used in the Republic of Vietnam during the Vietnam era. 75 Fed. Reg. 14,391. On August 31, 2010, the Secretary published in the Federal Register a final rule amending 38 C.F.R. § 3.309(e) to establish such presumptions. 75 Fed. Reg. 53,202. The final rule was effective August 31, 2010. While the issue involving coronary artery disease has been previously framed as a petition to reopen the claim, in light of the foregoing, the claim should be adjudicated on a de novo basis. The Veteran's original claim of service connection for heart disease had been denied in a May 1992 rating decision, but he did not perfect an appeal. Hence, that decision became final. As noted, however, VA has since amended 38 C.F.R. § 3.309(e) to establish new herbicide-related presumptions, to include ischemic heart disease. Where there is an intervening liberalizing law or VA issue that may affect the disposition of a claim, VA is required to conduct a de novo review of the previously denied claim. See Pelegrini v. Principi, 18 Vet. App. 112, 125-26 (2004); Spencer v. Brown, 4 Vet. App. 283, 288-89 (1993), aff'd, 17 F.3d 368 (Fed. Cir. 1994). Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). 38 U.S.C.A. § 7107(a)(2) (West 2002). The Board has considered documentation included in the Virtual VA system in reaching the determination below. At present, the system contains VA treatment records that are not physically in the file, but that were considered by the RO in the last supplemental statement of the case. The reopened claim of service connection for an innocently acquired psychiatric disorder, the claims of service connection for obesity and bilateral knee disorder, and the identified claims for increase are being remanded to the RO via the Appeals Management Center (AMC) in Washington, DC. FINDINGS OF FACT 1. The Veteran is shown as likely as not to have had active service that included a visitation to the Republic of Vietnam. 2. The Veteran is shown to have a current diagnosis of coronary artery disease, which is included in VA's definition of ischemic heart disease and is compensably disabling. 3. An unappealed December 2002 rating decision denied the Veteran's claim of service connection for PTSD; he was notified of that decision and apprised of his appellate rights, but did not appeal in a timely manner. 4. The evidence pertaining to PTSD received subsequent to the December 2002 rating decision relates to a previously unestablished fact, is neither cumulative nor redundant, and raises a reasonable possibility of substantiating the claim. CONCLUSIONS OF LAW 1. By extending the benefit of the doubt to the Veteran, his disability manifested by coronary artery disease is due to his presumed exposure to Agent Orange that was incurred in active service in the Republic of Vietnam. 38 U.S.C.A. §§ 1110, 1131, 1116 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.303, 3.307, 3.309, 4.104, Diagnostic Code (DC) 7005 (2012); 75 Fed. Reg. 14,391 (March 25, 2010); 75 Fed. Reg. 53,202 (August 31, 2010). 2. New and material evidence has been submitted to reopen the claim of service connection for an innocently acquired psychiatric disorder, to include PTSD. 38 U.S.C.A. §§ 5108, 7105 (West 2002); 38 C.F.R. § 3.156 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Notice and Assistance To the extent that the action taken hereinbelow is favorable to the Veteran, a full discussion of the Veterans Claims Assistance Act of 2000 (VCAA) is not required at this time. Coronary Artery Disease The Veteran has alleged service in the Republic of Vietnam or its inland waterways which, if demonstrated in the record, affords him the presumption of exposure to herbicides such as Agent Orange. 38 C.F.R. § 3.307(a)(6) (2012). Service connection is presumed for certain disabilities which manifest in Veterans with confirmed herbicide exposure in Vietnam or other locations where herbicides were known to be used. However, the Veteran's service therein must first be established. "Service in the Republic of Vietnam" includes service in the waters offshore and service in other locations if the conditions of service involved duty or visitation in the Republic of Vietnam. 38 C.F.R. § 3.307(a)(6)(iii) (2012). An opinion of the General Counsel for VA held that service on a deep-water naval vessel off the shores of Vietnam without proof of actual duty or visitation in the Republic of Vietnam may not be considered service in the Republic of Vietnam for purposes of 38 U.S.C.A. § 101(29)(A), which defines the Vietnam era as the period beginning on February 28, 1961, and ending on May 7, 1975; and that this was not inconsistent with the definition of service in the Republic of Vietnam found in 38 C.F.R. § 3.307(a)(6)(iii). VAOPGCPREC 27-97 (July 23, 1997). The opinion also held that the Veteran must be diagnosed with one of the specific diseases listed in 38 C.F.R. § 3.309(e), which is the case at present, as ischemic heart disease, to include coronary artery disease, is among the specified disabilities. Since issuance of VAOPGCPREC 27-97, VA has reiterated its position that service in deep-water naval vessels (i.e. "Blue Water" service) offshore of Vietnam, as opposed to service aboard vessels in inland waterways of Vietnam (i.e. "Brown Water service") is not included as "service in the Republic of Vietnam" for purposes of presumptive service connection for Agent Orange diseases. See 66 Fed. Reg. 23166 (May 8, 2001). Further, the VA Adjudication Procedure Manual, M21-1MR, contains a note that "[s]ervice aboard a ship that anchored in an open deep- water harbor, such as Da Nang, Vung Tau, or Cam Rahn Bay, along the RVN coast does not constitute inland waterway service or qualify as docking and is not sufficient to establish presumptive exposure to herbicides." M21-MR, IV.ii.1.H.28.h. The note goes on to state that "[e]vidence of shore docking is required in order to concede the possibility that the Veteran's service involved duty or visitation in the RVN." Id. Further, in Haas v. Peake, 525 F.3d 1168 (Fed. Cir. 2008), the United States Court of Appeals for the Federal Circuit (Federal Circuit) upheld the Board's interpretation that, for purposes of applying the presumption of exposure to herbicides under 38 C.F.R. § 3.307(a)(6)(iii), the serviceman must have actually been present at some point on the landmass or the inland waters of Vietnam during the Vietnam conflict. Here, the Veteran's DD Form 214 indicates he was awarded a Vietnam Service Medal and a Republic of Vietnam Campaign Ribbon Bar. A personnel record dated from January 3, 1966 states the Veteran was authorized to wear the Vietnam Service Medal for his service in the Vietnam area of operations on board the U.S.S. Midway (CVA-41) from July 23, 1965 to November 4, 1965. A personnel record dated from November 16, 1966 states the Veteran was authorized to wear the Vietnam Service Medal with Device for his service supporting operations in Vietnam on board the U.S.S. Midway (CVA-41) from June 23, 1965 to November 4, 1965, and on board the U.S.S. Coral Sea from September 13, 1966 to an unspecified date. A personnel record dated from January 12, 1967 states the Veteran was authorized to wear two bronze stars on the Vietnam Service Medal and Ribbon for participation in the Vietnam Defense Campaign on board the U.S.S. Midway (CVA-41) from June 23, 1965 to November4, 1965, and September 13, 1966 to an unspecified date. A Command History report for the U.S.S. Coral Sea shows that on September 13, 1966, the ship launched combat air strikes against North Vietnam targets. In the month of January 1967, the ship was underway in the Gulf of Tonkin conducting special operations against North Vietnam. In October 2002, the National Personnel Records Center (NPRC) determined that the Veteran was attached to a Navy unit that could have been assigned to ship or to shore. The NPRC stated that for Department of Defense purposes, the unit was credited with Vietnam service from July 22, 1965 to August 26, 1965, September 11, 1965 to October 9, 1965, September 12, 1966 to October 19, 1966, October 30, 1966 to December 4, 1966, and December 26, 1966 to February 1, 1967. In May 2009, the U.S. Army Joint Services Records and Research Center (JSRRC) issued a generic Memorandum stating that found no evidence indicating that Navy or Coast Guard ships transported tactical herbicides from the United States to the Republic of Vietnam, or that ships operating off the coast of Vietnam used, stored, testing, or transported tactical herbicides. The JSRRC could not document that a shipboard Veteran was exposed to tactical herbicides based on contact with aircraft that flew over Vietnam or equipment that was used in Vietnam. This Memorandum was incorporated into the record. At the July 2009 hearing, the Veteran testified that he actually visited the Republic of Vietnam. He testified that he was an aviation storekeeper and went to Da Nang in order to buy items for other officers. He testified he was there for two days. Hearing Transcript, pp. 25-26. At the March 2013 hearing, the Veteran testified that he went to Vietnam a few months following his in-service car accident, which service treatment records show took place in March 1965. Hearing Transcript, p. 6. He again testified that he was a senior store keeper in his squadron and was talked in to visiting the Republic of Vietnam to obtain souvenirs for officers who wanted them. Id. at 14. He testified that his ship was in the blue water and that he took a plane to shore. Id. at 15. The Board finds the totality of this evidence is at least in equipoise, and is thereby sufficient to establish the Veteran's presence on the landmass or inland waterways of the Republic of Vietnam, for the purposes of 38 C.F.R. § 3.307(a). The Board is persuaded by the above-cited personnel records, and the October 2002 NPRC response confirming the Veteran's unit's credit with Vietnam service. The Veteran's March 2013 testimony places him in the Republic of Vietnam during a time the NPRC has verified that his unit was credited with Vietnam service. His DD Form 214 and personnel records corroborate his military occupational specialty as a storekeeper. The Board finds that the Veteran's hearing testimony was credible and internally consistent throughout the appeal. While the May 2009 JSRRC Memorandum weighs against the claim, the Memorandum is not specific to the Veteran and thus is of low probative value. The Board notes that the Compensation and Pension (C&P) Service initiated a program to collect data on Vietnam naval operations for the purpose of providing regional offices with information to assist with development in Haas-related disability claims based on herbicide exposure from Navy. While the January 2010 and June 2010 C&P Bulletins have been reviewed and the Veteran's ships are not included among those listed, the Board observes that the list is not exhaustive and the program was only recently initiated. When, after careful consideration of all procurable and assembled data a reasonable doubt arises regarding service origin, the degree of disability, or any other point, such doubt will be resolved in favor of the claimant. Based on all of this evidence, and in light of 38 U.S.C.A. § 5107, the Board concludes the Veteran has qualifying service in Vietnam, and his exposure to herbicides is therefore conceded for VA compensation purposes. The VA regulations provide that the following diseases shall be service connected if the Veteran was exposed to an herbicide agent during active service, even though there is no record of such disease during service, and provided further that the requirements of 38 C.F.R. § 3.307(d) are satisfied: AL amyloidosis, chloracne or other acneform disease consistent with chloracne, type II diabetes mellitus, Hodgkin's disease, chronic lymphocytic leukemia, multiple myeloma, non-Hodgkin's lymphoma, acute and subacute peripheral neuropathy, porphyria cutanea tarda, prostate cancer, certain respiratory cancers, and soft tissue sarcoma. 38 C.F.R. § 3.309(e) (2012). Except for chloracne, porphyria cutanea tarda, and acute and subacute peripheral neuropathy, these diseases must have become manifest to a degree of 10 percent or more at any time after service. 38 C.F.R. § 3.307(a)(6)(ii). As noted, on October 13, 2009, in accordance with authority provided in 38 U.S.C. § 1116, the Secretary of VA announced his decision to establish presumptions of service connection, based upon exposure to herbicides used in the Republic of Vietnam during the Vietnam era, for three new conditions: ischemic heart disease, Parkinson's disease, and B cell leukemias. On March 25, 2010, the Secretary published in the Federal Register a proposed rule that would amend 38 C.F.R. § 3.309(e) to establish a presumption of service connection for ischemic heart disease, Parkinson's disease, and B cell leukemias based upon exposure to herbicides used in the Republic of Vietnam during the Vietnam era. 75 Fed. Reg. 14,391. On August 31, 2010, the Secretary published in the Federal Register a final rule amending 38 C.F.R. § 3.309(e) to establish such presumptions. 75 Fed. Reg. 53,202. The final rule was effective August 31, 2010. In the proposed rule, which was ultimately adopted, VA noted that, according to Harrison's Principles of Internal Medicine (Harrison's Online, Chapter 237, Ischemic Heart Disease, 2008), IHD (ischemic heart disease) is a condition in which there is an inadequate supply of blood and oxygen to a portion of the myocardium; it typically occurs when there is an imbalance between myocardial oxygen supply and demand. Therefore, for purposes of the regulation, the term "IHD" includes, but is not limited to, acute, subacute, and old myocardial infarction; atherosclerotic cardiovascular disease including coronary artery disease (including coronary spasm) and coronary bypass surgery; and stable, unstable and Prinzmetal's angina. Since the term refers only to heart disease, it does not include hypertension or peripheral manifestations of arteriosclerosis such as peripheral vascular disease or stroke. 75 Fed. Reg. 14,391, 14,393 (March 25, 2010). The record reflects that the Veteran has a diagnosis of coronary artery disease, documented, for example, in a July 2010 VA treatment record. As described, this condition is included in VA's definition of ischemic heart disease. Based on the foregoing, the Board finds that the current coronary artery disease as likely as not is due to his presumed exposure to herbicides incident to his visitation to the Republic of Vietnam. Further, the record shows that the requirements for a 10 percent evaluation, at minimum, have been satisfied under the applicable diagnostic code. 38 C.F.R. § 4.104, Diagnostic Code 7005 (2012). A January 2008 VA treatment record, for example, indicates that the Veteran has been prescribed daily amounts of Isosorbide Dinitrate to treat his coronary artery disease. This shows that the Veteran's coronary artery disease requires continuous medication, which satisfies the requirements for a 10 percent evaluation under Diagnostic Code 7005, the code for arteriosclerotic heart disease (coronary artery disease). In resolving all reasonable doubt in the Veteran's favor, the Veteran's claim of service connection for coronary artery disease is granted. Psychiatric Disorder, to include PTSD In August 2010 and October 2012, the Board characterized the psychiatric claim on appeal as one requiring new and material evidence for reopening. In a rating decision of December 2002, the RO denied the Veteran's claim of service connection for PTSD. The evidence of record at the time consisted of statements from the Veteran, service treatment records, VA treatment records, private treatment records, and VA examination reports. The RO held that there was no evidence of a current diagnosis of PTSD. The Veteran was properly notified of the December 2002 decision, but did not initiate a timely appeal. See 38 C.F.R. § 20.200 (2012). Moreover, there was no material evidence received pertinent to the issue within one year of the issuance of the decision. 38 C.F.R. § 3.156(b). The December 2002 decision is final as to the evidence then of record and is not subject to revision on the same factual basis. See 38 U.S.C.A. § 7105 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.104, 20.302, 20.1103 (2012). Under pertinent legal authority, VA may reopen and review a claim that has been previously denied if new and material evidence is submitted by or on behalf of the Veteran. 38 U.S.C.A. § 5108; 38 C.F.R. § 3.156(a); see also Hodge v. West, 155 F.3d 1356 (Fed. Cir. 1998). The present appeal was initiated in 2006. Regarding petitions to reopen filed on or after August 29, 2001, 38 C.F.R. § 3.156(a) defines "new" evidence as evidence not previously submitted to agency decisionmakers and "material" evidence as evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. New and material evidence can be neither cumulative nor redundant of the evidence of record at the time of the last final denial of the claim sought to be reopened, and must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a). In determining whether new and material evidence has been received, VA must initially decide whether evidence received since the prior final denial is, in fact, new. As indicated by these regulation, and by judicial caselaw, "new" evidence is that which was not of record at the time of the last final disallowance (on any basis) of the claim, and is not duplicative or "merely cumulative" of other evidence then of record. This analysis is undertaken by comparing the newly received evidence with the evidence previously of record. After evidence is determined to be new, the next question is whether it is material. The provisions of 38 U.S.C.A. § 5108 require a review of all evidence submitted by or on behalf of a claimant since the last final denial on any basis to determine whether a claim must be reopened. See Evans v. Brown, 9 Vet. App. 273, 282-3 (1996). Here, the last final denial of the claim is the RO's August 1992 rating decision. Furthermore, for purposes of the "new and material" analysis, the credibility of the evidence is presumed. Justus v. Principi, 3 Vet. App. 510, 512-513 (1992). The pertinent evidence added to the claims file since December 2002 includes additional statements from the Veteran, private treatment records, VA treatment records, and VA examination reports. As noted, at the time of the 2002 rating decision, there was no evidence of a current diagnosis of PTSD. The additionally received treatment records include a January 2008 medical report from the Veteran's psychologist. In the report, the Veteran was diagnosed with chronic, severe PTSD. The Board finds that the evidence is "new" in that it was not before agency decisionmakers at the time of the December 2002 final denial of the claim for service connection, and is not duplicative or cumulative of evidence previously of record. Moreover, the Board finds this evidence "material" as it establishes a necessary element of the Veteran's claim for service connection, that of a current diagnosis. See Shade v. Shinseki, 24 Vet. App. 110 (2010) (holding that the language of 38 C.F.R. § 3.156(a) creates a low threshold, and viewed the phrase "raises a reasonable possibility of substantiating the claim" as "enabling rather than precluding reopening.") Accordingly, Board finds this evidence raises a reasonable possibility of substantiating the Veteran's claim. Under these circumstances, the Board concludes that the criteria for reopening of the claim of service connection for a psychiatric disorder are met. See 38 U.S.C.A. § 5108; 38 C.F.R. § 3.156. ORDER Service connection for coronary artery disease is granted. As new and material evidence has been presented to reopen the claim of service connection for an acquired psychiatric disorder, to include PTSD, a depressive disorder, and dysthymic disorder, the appeal to this extent is allowed subject to further action as discussed hereinbelow. REMAND After having carefully considered the case, and for the following reasons, the Board believes that the claims remaining on appeal must be remanded for further development of the record. Initially, the Board notes that there appear to be outstanding VA treatment records relevant to the claims remaining on appeal. At the March 2013 hearing, the Veteran testified that he receives treatment at the Texas City VA Outpatient Clinic. Hearing Transcript, p. 29. In a February 2006 VA Form 21-4142, the Veteran indicated that he had received treatment from the VA Medical Centers (VAMC) in San Diego, California and San Antonio, Texas. In a January 2009 letter, the Veteran stated he had been treated at the VAMC in Jacksonville, Florida. Despite the large volume of evidence in this matter, it does not appear that records from these particular facilities have been obtained. 38 U.S.C. § 5103A(b)(3) requires that VA continue any attempts to get federal records "until the records are obtained unless it is reasonably certain that such records do not exist or that further efforts to obtain those records would be futile." Further, VA is held to have constructive notice of the contents of VA records at the time of adjudication. Bell v. Derwinski, 2 Vet. App. 611 (1992). The records should be requested. In addition, there appear to be outstanding private medical records that need to be obtained. At the March 2013 hearing, the Veteran testified to receiving private treatment from Dr. P. and Dr. C. Hearing Transcript, pp. 37, 40, respectively. In a January 2009, VA Form 21-4142, the Veteran indicated he has received treatment from Dr. M. in Pinellas Park, Florida. The file does not contain records from these individuals, nor does it appear that the RO made any request for them. 38 C.F.R. § 3.159(c)(1) defines reasonable efforts in obtaining records outside the custody of the federal government as "an initial request for the records, and, if the records are not received, at least one follow-up request." VA must attempt to obtain these private medical records. A remand is also required in order to afford the Veteran VA examinations for the service connection claims remaining on appeal. In the case of a disability compensation claim, VA's duty to assist includes providing a medical examination or obtaining a medical opinion when necessary to make a decision on the claim. 38 U.S.C.A. § 5103A(d) (West 2002 & Supp. 2012); 38 C.F.R. § 3.159(c)(4) (2012). Such an examination or opinion is necessary to make a decision on a claim if all of the lay and medical evidence of record (1) contains competent evidence that the claimant has a current disability, or persistent or recurrent symptoms of disability; and (2) indicates that the disability or symptoms may be associated with the claimant's active military, naval, or air service; but (3) does not contain sufficient medical evidence for VA to make a decision on the claim. Id. With regard to the reopened claim, the Veteran has a current diagnosis of PTSD. During the pendency of the appeal, VA amended its rules for adjudicating disability compensation claims for PTSD contained at 38 CFR § 3.304(f) to relax the evidentiary standard for establishing the required in-service stressor in certain cases. This revision adds to the types of claims the VA will accept through credible lay testimony alone, as being sufficient to establish occurrence of an in-service stressor without undertaking other development to verify a Veteran's account, so long as the stressor is consistent with the circumstances of the Veteran's service and is not rebutted by clear and convincing evidence to the contrary. VA's specific PTSD regulation, § 3.304(f), previously only authorized VA to accept statements from Veterans who served in combat, as denoted by combat-related awards or decorations or other evidence sufficient to establish participation in combat, as sufficient to accept the occurrence of the claimed in-service stressor. Effective on July 10, 2010, under 38 C.F.R. § 3.304(f), service connection for PTSD requires medical evidence diagnosing the condition in accordance with Sec. 4.125(a) of this chapter; a link, established by medical evidence, between current symptoms and an in-service stressor; and credible supporting evidence that the claimed in-service stressor occurred. The following provisions apply to claims of service connection of PTSD diagnosed during service or based on the specified type of claimed stressor: (3) If a stressor claimed by a Veteran is related to the Veteran's fear of hostile military or terrorist activity and a VA psychiatrist or psychologist, or a psychiatrist or psychologist with whom VA has contracted, confirms that the claimed stressor is adequate to support a diagnosis of PTSD and that the Veteran's symptoms are related to the claimed stressor, in the absence of clear and convincing evidence to the contrary, and provided the claimed stressor is consistent with the places, types, and circumstances of the Veteran's service, the Veteran's lay testimony alone may establish the occurrence of the claimed in-service stressor. For purposes of this paragraph, "fear of hostile military or terrorist activity" means that a Veteran experienced, witnessed, or was confronted with an event or circumstance that involved actual or threatened death or serious injury, or a threat to the physical integrity of the Veteran or others, such as from an actual or potential improvised explosive device; vehicle-imbedded explosive device; incoming artillery, rocket, or mortar fire; grenade; small arms fire, including suspected sniper fire; or attack upon friendly military aircraft, and the Veteran's response to the event or circumstance involved a psychological or psycho-physiological state of fear, helplessness, or horror. The Veteran in this case receives consideration under the amended version of 38 C.F.R. § 3.304(f) because his claim was appealed to the Board prior to July 13, 2010, the date VA amended the regulation, but not decided by the Board as of July 13, 2010. At the March 2013 hearing, the Veteran testified that, while aboard the U.S.S. Coral Sea and U.S.S. Midway, the ships were in danger of attack and he feared for his life. See Hearing Transcript, pp. 26-27. The Board acknowledges that the Veteran's testimony in this regard is peculiar in that he characterized some dangerous military experiences as "funny." In an effort to afford him every opportunity for compensation, the Board nonetheless finds that further development is warranted. His DD Form 214 does not indicate receipt of such combat-related citations as the Purple Heart Medal or the Combat Infantryman Badge. Nonetheless, the January 1966 personnel record, for example, shows he served in the Vietnam area of operations on board the U.S.S. Midway. The record also shows that he received hostile fire pay for the months of July, August, and September 1965. The service treatment records are silent for psychiatric diagnoses, complaints or treatment. As noted above, the record shows diagnoses of PTSD, depressive disorder and dysthymic disorder. The January 2008 private medical examiner attributed the Veteran's PTSD to combat exposure, as well as the Veteran's unverified accounts of witnessing a soldier walk into a plane propeller and the beheading of a fellow serviceman while on a train on leave in France. The Board notes that, for adjudication purposes under the new regulation, this provider is not a VA psychiatrist or psychologist, or a psychiatrist or psychologist with whom VA has contracted. A VA examination was afforded August 2007. The examiner found the Veteran did not have PTSD. He was diagnosed with a mood disorder, but no opinion concerning etiology was rendered. While the VA examiner did not diagnose the Veteran with PTSD, the requirement of a current disability 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 where the disability resolves prior to the Secretary's adjudication of the claim. McClain v. Nicholson, 21 Vet. App. 319 (2007). In light of the amended regulation, and in order to obtain a medical opinion supported by a rationale, the Board finds a VA examination is necessary to fully adjudicate the psychiatric claim. Moreover, efforts should be taken to obtain further information about the stressors involving the plane propeller and beheading. These stressors have been consistent throughout the record. However, it does not appear the Veteran has provided dates or other identifying information for these events, such that verification can be attempted. This information should be requested. With regard to obesity, on remand in August 2010, a VA examination was ordered. An examination was conducted in October 2011, but the examiner provided no rationale for the negative opinions rendered. An addendum opinion should be sought. With regard to the bilateral knee disorder, the Veteran has been diagnosed with osteoarthritis of the bilateral knees. The December 2011 VA treatment record, CAPRI record set #3, p. 28/278. At the March 2013 hearing, the Veteran testified that he injured his knees in a motor vehicle accident in service. Hearing Transcript p. 10. A March 1965 service treatment record confirms this accident. While an August 2007 VA examination was conducted, an opinion was not rendered. The examiner could not do so without resorting to speculation, but did not state why not. As such a further medical opinion should be sought. As for the increased rating claims remaining on appeal, given the time that will pass until the matter returns to the Board, an updated VA examination should be conducted to assess the current severity of these service-connected disabilities. Accordingly, these remaining claims for REMANDED to the RO for the following action: (Please note, this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). Expedited handling is requested.) 1. The RO should take all indicated action in order to obtain and associate with the claims file copies of all records of medical care rendered the Veteran at the following VA facilities: a. Texas City VA Outpatient Clinic b. VAMC in San Diego, California c. VAMC in San Antonio, Texas d. VAMC in Jacksonville, Florida. The RO must follow the procedures set forth in 38 C.F.R. § 3.159(c) in regards to requesting records from Federal facilities. All records and/or responses received should be associated with the claims file. If no records can be obtained after an exhaustive search, VA's efforts and any resolution determined must be fully documented for the record, and compliance with the requirements of 38 C.F.R. § 3.159(e)(i)-(iv) (2012) must be achieved. 2. The RO should take appropriate steps to contact the Veteran and request that he provide authorization forms necessary to allow the RO to obtain records from the following private providers: Dr. P., Dr. C., and Dr. M. Thereafter, the RO should attempt to obtain copies of all pertinent records. If no records can be obtained after an exhaustive search, VA's efforts and any resolution determined must be fully documented for the record, and the compliance with the requirements of 38 C.F.R. § 3.159(e)(i)-(iv) (2012) must be achieved. 3. The RO should take all indicated action in order contact the Veteran in order to ask him provide identifying information, such as dates, locations, etc. concerning his stressors involving the death of a serviceman by walking into a plane propeller and the decapitation of a serviceman on the train and any other such event during service. Thereafter, all appropriate actions should be taken to verify the stressors as identified. 4. The RO then should have the Veteran scheduled for a VA examination to ascertain the nature and likely etiology of the claimed innocently acquired psychiatric disorder. On examination, the examiner should identify any psychiatric disability, to include PTSD, that might be found to be present. After examining the Veteran and reviewing the claims file, the examiner should opine on whether any disability manifested by PTSD are related to his fear of in-service hostile military or terrorist activity during service. In the alternative, the examiner is asked to express an opinion as to whether it is at least as likely as not (a 50 percent probability or greater) that any other current psychiatric disability had its clinical onset during service or otherwise is related to an event or incident of the Veteran's period of active service. If so, the examiner should clearly identify such current psychiatric disorder(s). The examiner should provide an adequate rationale for all opinions expressed and conclusions reached. If any opinion cannot be provided without resort to speculation, the examiner should state why this is so. 5. The RO then should take all indicated action to forward the claims file, to include a copy of this REMAND, to the VA examiner who prepared the October 2011 examination report on obesity for an addendum opinion. The examiner is requested to review all pertinent records associated with the claims file and offer comments and an opinion as to whether obesity is a disease or disorder. The examiner should also address the following: a) whether the evidence clearly and unmistakably (i.e. is it undebatable or absolutely certain) demonstrates that obesity pre-existed service? b) if obesity pre-existed service, did obesity increase in severity during service? c) if obesity increased in severity during service, then the examiner should provide an opinion as to whether the evidence clearly and unmistakably (i.e. is it undebatable or absolutely certain) demonstrates that the increase was due to the natural progression of the disability? d) if obesity did not pre-exist service, is it at least as likely as not (50 percent probability or greater) that obesity is causally related to any injury or other event or incident of the Veteran's period of active service? If any opinion cannot be provided without resort to speculation, the examiner should state why this is so. If the prior examiner is not available, or is unable to provide the requested opinion without examining the Veteran, the RO must arrange for the Veteran to undergo a VA examination to obtain an opinion responsive to the questions posed hereinabove. All indicated tests should be accomplished, and all clinical findings reported in detail. The claims file should be made available to the examiner for review prior to entering any opinions, and the examination report should include discussion of the Veteran's documented medical history and assertions. 6. The RO then should have the Veteran scheduled for a VA orthopedic examination to address the nature and likely etiology of the claimed bilateral knee disorder. The examiner is to be provided access to the claims folder and Virtual VA as needed. Any and all indicated studies deemed necessary by the examiner should be accomplished. The examiner is requested to review all pertinent records associated with the claims file and offer comments and an opinion addressing whether it is at least as likely as not (50 percent probability or greater) that any current knee disability is causally related to any injury or other event or incident of the Veteran's period of active service. If the opinion cannot be provided without resort to speculation, the examiner should state why this is so. All opinions should be supported by a clear rationale, and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. Copies of all pertinent records in the claims file, or in the alternative, the claims file itself, must be made available to the examiner. 7. The RO also should have the Veteran scheduled for VA orthopedic and neurological examinations in order to determine the current severity of his lumbar spine disability and the disability of the coccyx. The orthopedic findings must include ranges of motion, with notations as to the degree of motion at which the Veteran experiences pain, if any. The examiner should identify and completely describe any other current symptomatology. The neurological findings must include an opinion as to whether it is at least as likely as not (e.g. 50 percent probability or greater) that the Veteran has any neurological disorder associated with his lumbar spine disability. If so, the examiner must specifically indicate which nerves, if any, are involved, and indicate if there is complete paralysis. If incomplete, the examiner should indicate if the severity is mild, moderate, moderately severe, or severe. As for the coccyx, the examiner should state whether the Veteran has painful residuals of his disability. The Veteran's claims folder, including the electronic file, must be reviewed by the examiner in conjunction with the examination. The pertinent rating criteria must be provided to the examiner, and the findings reported must be sufficiently complete to allow for rating under all alternate criteria. All indicated tests and studies should be accomplished, and all clinical findings should be reported in detail. 8. The Veteran is hereby notified that it is his responsibility to report for the examinations and to cooperate in the development of the claims. The consequences for failure to report for a VA examination without good cause may include denial of the claim. 38 C.F.R. §§ 3.158, 3.655 (2012). In the event that the Veteran does not report for the aforementioned examination, documentation should be obtained which shows that notice scheduling the examination was sent to the last known address. It should also be indicated whether any notice that was sent was returned as undeliverable. 9. After the requested examinations have been completed, the RO should review the examination reports to ensure they are in complete compliance with the directives of this REMAND. If any report is deficient in any manner, the RO must implement corrective procedures at once. 10. After completing all indicated development, the RO then should readjudicate the claims remaining on appeal in light of all the evidence on file. If any benefit sought on appeal remains denied, the Veteran and her representative should be furnished 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. WIKKINS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs