Citation Nr: 1315596	
Decision Date: 05/10/13    Archive Date: 05/15/13

DOCKET NO.  96-11 042	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in North Little Rock, Arkansas


THE ISSUES

1.  Entitlement to service connection for an acquired psychiatric disorder, other than posttraumatic stress disorder (PTSD).  

2.  Entitlement to service connection for right ear hearing loss disability.

3.  Entitlement to service connection for a headache disorder, to include as secondary to service-connected sinusitis.   


REPRESENTATION

Veteran represented by:	Disabled American Veterans


WITNESS AT HEARING ON APPEAL

The Veteran

ATTORNEY FOR THE BOARD

Helena M. Walker, Counsel


INTRODUCTION

The Veteran had active service from October 1973 to December 1976 and from November 1990 to May 1991.  He also had service in the Reserves.

This matter came before the Board from various rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in North Little Rock, Arkansas.

In an October 2006 decision, the Board, in relevant part, determined that new and material evidence had not been submitted to reopen claims of entitlement to service connection for a skin disability, depressive disorder, hearing loss disability, and a headache disability.  The Board notes that the Court has held that the scope of a mental health disability claim includes any mental disability that may reasonably be encompassed by the claimant's description of the claim, reported symptoms, and the other information of record.  See Clemons v. Shinseki, 23 Vet. App. 1 (2009).  Thus, the Board has recharacterized the depression claim on appeal as shown on the title page of this decision-entitlement to service connection for an acquired psychiatric disorder, other than PTSD.  (A claim of entitlement to service connection for PTSD was reopened and remanded for additional development, as was the Veteran's claim of entitlement to a total rating based on unemployability due to service connected disabilities (TDIU).  Those claims have not yet been recertified to the Board for appellate consideration.)  

In a September 2008 memorandum decision, the Court, inter alia, vacated and remanded the issues pertaining to reopening the claims of entitlement to service connection for depressive disorder, hearing loss disability, and a headache disability.  Pursuant to the memorandum decision, the Board remanded the appeal in June 2010 for additional development consistent with the Court's order.  The Board remanded this matter again in March 2012 and January 2013. 

The Board observes that the Veteran was afforded a hearing before a Veterans Law Judge in April 2006.  In March 2010 he was advised that the Judge that conducted his hearing was no longer employed by the Board and that he could opt for an additional hearing.  He responded in March 2010 that he did not wish to have another hearing.

The Board notes that the issues currently on appeal have been developed (and in some instances adjudicated) as claims for whether new and material evidence has been received to reopen the claims.  As noted in the January 2013 decision, the Board will proceed with these issues as original claims instead claims to reopen.  

The issues of entitlement to service connection for an acquired psychiatric disorder, other than PTSD, and entitlement to service connection for headaches are addressed in the REMAND portion of the decision below and are REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC.


FINDING OF FACT

A right ear hearing loss disability has not been manifested at any time during the pendency of this claim.  


CONCLUSION OF LAW

A right ear hearing loss disability was not incurred in or aggravated by active military service.  38 U.S.C.A. §§ 1110, 1131 (West 2002); 38 C.F.R. §§ 3.303, 3.385 (2012).

REASONS AND BASES FOR FINDING AND CONCLUSION

The Board has thoroughly reviewed all the evidence in the Veteran's claims file.  Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, all the evidence submitted by or on behalf of the Veteran.  See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (the Board must review the entire record, but does not have to discuss each piece of evidence).  The analysis below focuses on the most salient and relevant evidence and on what this evidence shows, or fails to show, on the claim.  The Veteran must not assume that the Board has overlooked pieces of evidence that are not explicitly discussed herein.  See Timberlake v. Gober, 14 Vet. App. 122 (2000) (the law requires only that the Board address its reasons for rejecting evidence favorable to the Veteran).

Veterans Claims Assistance Act of 2000 (VCAA)

With respect to the Veteran's claims, the VA has met all statutory and regulatory notice and duty to assist provisions.  38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012).

Under the VCAA, when VA receives a complete or substantially complete application for benefits, it is required to notify the Veteran and his or her representative, if any, of any information and medical or lay evidence that is necessary to substantiate the claim.  38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002).  In Pelegrini v. Principi, 18 Vet. App. 112, 120-21 (2004) (Pelegrini II), the United States Court of Appeals for Veterans Claims (Court) held that VA must inform the Veteran of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; (3) that the Veteran is expected to provide; and (4) request that the Veteran provide any evidence in his or her possession that pertains to the claim.  The requirement of requesting that the Veteran provide any evidence in his possession that pertains to the claim was eliminated by the Secretary during the course of this appeal.  See 73 Fed. Reg. 23353 (final rule eliminating fourth element notice as required under Pelegrini II, effective May 30, 2008).  Thus, any error related to this element is harmless. 

VCAA letters dated in September 2004, April 2006, and February 2013 fully satisfied the duty to notify provisions.  See 38 U.S.C.A. § 5103(a) (West 2002); 38 C.F.R. § 3.159(b)(1) (2012); Quartuccio, at 187.  The Veteran was advised that it was ultimately his responsibility to give VA any evidence pertaining to the claims.  The letters informed him that additional information or evidence was needed to support his claims, and asked him to send the information or evidence to VA.  See Pelegrini II, at 120-121.  The April 2006 letter also explained to the Veteran how disability ratings and effective dates are determined.  See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). 

As noted above, the Veteran also was afforded a hearing before a Veterans Law Judge (VLJ) during which he presented oral argument in support of his service connection claim.  In Bryant v. Shinseki, 23 Vet. App. 488 (2010), the United States Court of Appeals for Veterans Claims (Court) held that 38 C.F.R. § 3.103(c)(2) (2012) requires that the VLJ/DRO who chairs a hearing fulfill two duties to comply with the above the regulation.  These duties consist of (1) the duty to fully explain the issues and (2) the duty to suggest the submission of evidence that may have been overlooked.  Here, the VLJ fully described the issue on appeal during the hearing, but he did not specifically discuss the basis of the prior determinations, the element(s) of the claim that were lacking to substantiate the claim for benefits, nor did he suggest the submission of evidence that would be beneficial to the Veteran's claim.  Significantly, neither the Veteran nor his representative has asserted that VA failed to comply with 38 C.F.R. § 3.103(c)(2), nor has he identified any prejudice in the conduct of the Board hearing.  By contrast, the hearing focused on the elements necessary to substantiate the claim, and the Veteran, through his testimony, demonstrated that he had actual knowledge of the elements necessary to substantiate his claim.  

Although the Veteran was not provided adequate VA notice prior to the January 2005 rating decision on appeal and was not provided a detailed description during his hearing as to why service connection for right ear hearing loss was previously denied, the Board finds that any prejudice due to such error has been overcome in this case by the following: (1) based on the communications sent to the Veteran over the course of this appeal, the Veteran clearly has actual knowledge of the evidence the Veteran is required to submit in this case; and (2) based on the Veteran's contentions as well as the communications provided to the Veteran by VA, it is reasonable to expect that the Veteran understands what was needed to prevail.  See Shinseki v. Sanders/Simmons, 129 S. Ct. 1696 (2009); Fenstermacher v. Phila. Nat'l Bank, 493 F.2d 333, 337 (3d Cir. 1974) ("[N]o error can be predicated on insufficiency of notice since its purpose had been served.").  In order for the Court to be persuaded that no prejudice resulted from a notice error, "the record must demonstrate that, despite the error, the adjudication was nevertheless essentially fair."  Dunlap v. Nicholson, 21 Vet. App. 112, 118 (2007). 

In this case, the Veteran has been continuously represented by an experienced national service organization and has submitted argument in support of his claim.  These arguments have referenced the applicable law and regulations necessary for a grant of service connection.  Thus, the Board finds that the Veteran has actual knowledge as to the information and evidence necessary for him to prevail on his claim and is not prejudiced by a decision in this case.  As such, a remand for additional notice would serve no useful purpose and would in no way benefit the Veteran.  Sabonis v. Brown, 6 Vet. App. 426, 430 (1994) (remands which would only result in unnecessarily imposing additional burdens on the VA with no benefit flowing to the Veteran are to be avoided).

The Board also concludes VA's duty to assist has been satisfied.  The Veteran's service treatment records (STRs) and VA medical records are in the file.  Private medical records identified by the Veteran have been obtained, to the extent possible.  The Veteran has at no time otherwise referenced outstanding records that he wanted VA to obtain or that he felt was relevant to the claim. 

The duty to assist also includes providing a medical examination or obtaining a medical opinion when such is necessary to make a decision on the claim.  38 C.F.R. § 3.159(c)(4)(i) (2012).  

In this case, the Veteran was provided a VA audiological examination in March 2013.  The examiner considered the Veteran's complaints, as well as the service treatment records, post-service treatment records, and conducting a physical examination.  The examiner concluded that the Veteran's right ear hearing loss did not meet the threshold for a finding of a hearing loss disability for VA purposes.  Given the foregoing, the Board finds the evidence of record to be thorough, complete, and sufficient upon which to base a decision with respect to the Veteran's claim for service connection.  See Barr v. Nicholson, 21 Vet. App. 303, 312 (2007) (when VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate).  As such, the Board finds that the medical evidence of record is sufficient to adjudicate the Veteran's claim.

As there is no indication that any failure on the part of VA to provide additional notice or assistance reasonably affects the outcome of this case, the Board finds that any such failure is harmless.  See Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006).

Legal Criteria

Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service.  38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303(a).  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).  

In order to show a 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 distinguished from merely isolated findings or a diagnosis including the word "chronic."  When the fact of chronicity in service is not adequately supported, then a showing of continuity after discharge is required to support a claim.  There must be competent medical evidence unless the evidence relates to a condition as to which lay observation is competent to identify its existence.  See 38 C.F.R. § 3.303(b) (2012).

Service connection may be granted on a presumptive basis for certain chronic diseases, including sensorineural hearing loss, if they are shown to be manifest to a degree of 10 percent or more within one year following the Veteran's separation from active military service.  38 U.S.C.A. §§ 1101, 1112, 1113, 1137 (West 2002); 38 C.F.R. §§ 3.307, 3.309 (2012). 

A recent decision of the U. S. Court of Appeals for the Federal Circuit (Federal Circuit Court), however, clarified that this notion of continuity of symptomatology since service under 38 C.F.R. § 3.303(b), which as mentioned is an alternative means of establishing the required nexus or linkage between current disability and service, only applies to conditions identified as chronic under 38 C.F.R. § 3.309(a).  Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013).  

With respect to claims for service connection for hearing loss, the United States Court of Appeals for Veterans Claims (Court) has held that the threshold for normal hearing is from 0 to 20 decibels, and that higher threshold levels indicate some degree of hearing loss.  Hensley v. Brown, 5 Vet. App. 155, 157 (1993).  The Court further opined that 38 C.F.R. § 3.385, discussed below, then operates to establish when a hearing loss disability can be service connected.  Id at 159.

For the purposes of applying the laws administered by VA, impaired hearing will be considered to be a disability when the auditory threshold in any of the frequencies 500, 1000, 2000, 3000, 4000 Hertz is 40 decibels or greater; or when the auditory thresholds for at least three of the frequencies 500, 1000, 2000, 3000, 4000 Hertz are 26 decibels or greater; or when speech recognition scores using the Maryland CNC Test are less than 94 percent.  38 C.F.R. § 3.385.

With disability compensation claims, VA adjudicators are directed to assess both medical and lay evidence.  In certain circumstances 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 v. Nicholson, 21 Vet. App. 303, 308-09 (2007) (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); see also Routen v. Brown, 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).  

Factual Background and Analysis

Here, the Veteran contends that he has current right ear hearing loss due to in-service noise exposure.  He asserts that he was exposed to acoustic noise (guns and artillery) and that his disability began in Vietnam.  

VA has conceded that the Veteran was exposed to acoustic trauma during service.  Thus, the main question before the Board is whether the Veteran has a current hearing loss disability in the right ear.  In other words, does the Veteran meet the threshold for a hearing loss disability as described in 38 C.F.R. § 3.385? 

The relevant evidence of record includes the following:

On examination conducted at entrance to service in October 1973, the following puretone thresholds, in decibels, were noted:




HERTZ



500
1000
2000
3000
4000
RIGHT
15
15
15
X
25

A July 1983 audiogram (for National Guard purposes) revealed puretone thresholds, as follows:




HERTZ



500
1000
2000
3000
4000
RIGHT
5
10
10
20
15

A September 1987 audiogram (for National Guard purposes) revealed puretone thresholds, as follows:




HERTZ



500
1000
2000
3000
4000
RIGHT
50
40
40
40
60

Audiological examination in November 1990 (prior to this second period of service) showed puretone thresholds, as follows:




HERTZ



500
1000
2000
3000
4000
RIGHT
20
30
25
25
25

Audiological examination in April 1991 revealed puretone thresholds, as follows:




HERTZ



500
1000
2000
3000
4000
RIGHT
15
10
10
10
10

Another audiogram from that same month listed all the same thresholds, except at 4000 Hz it was 5 decibels.  

Another audiological examination (for National Guard Purposes) in November 1994 revealed puretone thresholds, as follows:




HERTZ



500
1000
2000
3000
4000
RIGHT
10
10
5
10
5

During his physical examination, the Veteran reported "slight" hearing loss.  

Following a private audiological examination, puretone thresholds, were as follows:




HERTZ



500
1000
2000
3000
4000
RIGHT
0
15
5
15
20

The Board notes that speech discrimination testing was not performed during the above-noted audiological examinations. 

The Veteran was afforded a VA audiological examination in March 2013, during which puretone thresholds, were as follows:




HERTZ



500
1000
2000
3000
4000
RIGHT
15
20
10
10
15

Speech discrimination testing revealed 98 percent in the right ear.  The examiner diagnosed sensorineural hearing loss in the right ear at frequencies of 6000 Hz or higher.  The examiner opined that the Veteran's right ear hearing loss was not disabling for VA benefits purposes. 

Following careful review of the evidence of record, the Board finds the preponderance of the evidence is against the Veteran's claim of service connection for right ear hearing loss.  

The Board appreciates the Veteran's contentions and statements related to his claimed right ear hearing loss.  Even conceding that the Veteran was exposed to significant noise in service, there is no evidence that the Veteran has been diagnosed with right ear hearing loss disability by VA standards at any point during the timeframe on appeal.  In this regard, the puretone thresholds and speech recognition results from the above-described VA examination report shows some decreased hearing acuity, but not significant enough to constitute a right ear hearing loss disability for VA benefits purposes.  The Board is aware that his September 1987 National Guard audiological examination revealed thresholds that meet VA disability standards, but these thresholds were not taken during the timeframe on appeal and are isolated in nature.  

In other words, none of the audiological examinations during the timeframe on appeal revealed auditory thresholds of 40 decibels or greater at any of the prescribed auditory thresholds or speech recognition scores less than 94 percent.  Likewise, no single examination (other than the 1987 examination) shows at least three auditory thresholds of 26 decibels or greater or a threshold in any one of the frequencies of 40 decibels or greater.  

With respect to the Veteran's contention that he currently has a right ear hearing loss disability, a layperson is competent to testify in regard to the onset and continuity of symptomatology.  Heuer v. Brown, 7 Vet. App. 379, 384 (1995); Falzone v. Brown, 8 Vet. App. 398, 403 (1995); Caldwell v. Derwinski, 1 Vet. App. 466 (1991).  However, lay persons are not competent to opine as to medical etiology or render medical opinions.  Barr v. Nicholson, 21 Vet. App. 303 (2007); see Grover v. West, 12 Vet. App. 109, 112 (1999).  Rather, it is the province of trained health care professionals to enter conclusions that require medical expertise, such as opinions as to diagnosis and causation.  Jones v. Brown, 7 Vet. App. 134, 137 (1994); Degmetich v. Brown, 104 F.3d 1328 (1997).  As a layperson, the Veteran is competent to report that he experiences difficulty hearing in his right ear.  However, he is not competent to render a diagnosis of a right ear hearing loss disability that satisfies the regulatory criteria set forth in 38 C.F.R. § 3.385.  

Absent competent and reliable lay or medical evidence relating this claimed disability to service, and in consideration of the VA opinion discussed above, the Board concludes that the claims of entitlement to service connection for right ear hearing loss disability must be denied.  The preponderance of the evidence is against the Veteran's claim and the doctrine of reasonable doubt is not applicable in the instant appeal.  Gilbert v. Derwinski, 1 Vet. App. 49, 58 (1990); 38 C.F.R. § 3.102.


ORDER

Service connection for a right ear hearing loss disability is denied.


REMAND

Unfortunately, another remand is required in this case.  Although the Board regrets the additional delay, it is necessary to ensure that there is a complete record upon which to decide the Veteran's claims.  

In January 2013, the Board most recently remanded the Veteran's claims for service connection for an acquired psychiatric disorder, other than PTSD; and headaches, to include as secondary to sinusitis.  The main focus of the remand was to afford the Veteran VA examinations to determine the nature and etiology of his psychiatric disorder and headaches.  The Veteran was afforded these VA examinations in February 2013, and for the reasons described below, the Board finds these examinations inadequate.  

With respect to the psychiatric examination, the examiner was asked to provide diagnoses for any currently manifested psychiatric disorders.  The Board is aware that the February 2013 VA examiner opined that the Veteran did not meet the criteria for a current psychiatric disorder, but he has had a history of depression in 2004.  Of note, this claim, now characterized as entitlement to service connection for an acquired psychiatric disorder, other than PTSD, has been on appeal for many years.  In fact, the Veteran filed this claim in June 1998.  

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).

As such, although the Veteran was not currently diagnosed as having a psychiatric disorder, there is evidence to suggest that he has been treated for one, or more, during the timeframe on appeal.  As such, the February 2013 should have provided an opinion as to the nature and etiology of any psychiatric disorder present during the timeframe on appeal.  Thus, the Board finds that a remand is necessary to obtain a supplemental opinion with respect to the Veteran's claim of entitlement to service connection for an acquired psychiatric disorder, other than PTSD.  

With respect to the issue of headaches, the Board finds that the purported opinion of the February 2013 VA examiner is also inadequate.  The examiner opined that the Veteran's headaches were vascular in nature and unrelated to his service-connected sinus disability.  He also opined that these headaches are unrelated to his military service because they had their onset "long after exit from the military in 1994."  The Board notes, that the Veteran finished his second period of service in May 1991.

It is important to note that the United States Court of Appeals for the Federal Circuit  held in Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006) that a veteran's report of in-service symptoms is not deemed less than credible solely because there is no objective medical evidence corroborating those symptoms at the time.  In other words, the fact that the Veteran's service treatment records do not show complaints of or treatment for these disabilities is an insufficient rationale for a negative nexus as explained in Buchanan.

Given the inadequate and confusing nature of the February 2013 VA examination reports, the Board finds that the claims should be remanded so that supplemental opinions can be obtained with respect to both these issues.

Accordingly, the case is REMANDED for the following action:

1.  Provide the February 2013 VA examiner the Veteran's claims file, including any pertinent evidence in Virtual VA, and request a supplemental opinion as to the nature and etiology of any current acquired psychiatric disability.  This opinion should include the presence of any acquired psychiatric disability present at any time during the timeframe on appeal.  The examination report must indicate that the claims file was reviewed. 

The examiner should determine the diagnoses of any psychiatric disorder(s) manifested at any time during the timeframe on appeal.  The diagnosis(es) must be based on examination findings, all available medical records, and any special testing deemed appropriate.  A multiaxial evaluation based on the current DSM-IV diagnostic criteria is required.

The examiner must comment on the approximate date of onset and etiology of any diagnosed acquired psychiatric disorders as shown by the evidence of record.

For each disorder identified (at any point during the timeframe on appeal), the examiner should provide an opinion as to whether there is a 50 percent or better probability that the disorder is related to his military service, to include any stress incurred therein.

In rendering the requested opinion, the examiner must specifically acknowledge and discuss the Veteran's competent and credible lay evidence of symptoms having their onset during service.  See Dalton v. Nicholson, 21 Vet. App. 23 (noting that an examination was found inadequate where the examiner did not comment on the Veteran's report of in-service injury and relied on the lack of evidence in the service treatment records to provide a negative opinion). 

The examiner should reconcile any opinion with the evidence of record and cite to the record as appropriate.  

Any opinion provided must include an explanation of the basis for the opinion.  If the examiner is unable to offer the requested opinion, it is essential that the examiner explain why an opinion could not be provided without resort to speculation, together with a statement as to whether there is additional evidence that could enable an opinion to be provided, or whether the inability to provide the opinion is based on the limits of medical knowledge.  

The examiner is reminded that the term "as likely as not" does not mean "within the realm of medical possibility," but rather that the evidence of record is so evenly divided that, in the examiner's expert opinion, it is as medically sound to find in favor of the proposition as it is to find against it.

The Board shall leave it up to the examiner's discretion as to whether the Veteran should be reexamined.  

2.  Provide the February 2013 VA examiner the Veteran's claims file, including any pertinent evidence in Virtual VA, to obtain a supplemental opinion as to the nature and etiology of any current headache disorder.  The examination report must indicate that the claims file was reviewed. 

The examiner should determine the nature and diagnosis of any current headache disorder.

The examiner must determine whether any current headache disorder is distinct from the sinusitis disorder, or whether it is part and parcel of the sinusitis. 

If the headaches are a separate and distinct from sinusitis, the examiner should also provide an opinion as to whether there is a 50 percent or greater probability that any headache disorder is related to service, or caused or aggravated by any other service-connected disorder. 

The examiner should provide a rationale for any opinion rendered and should attempt to reconcile any contradictory evidence of record. 

If the examiner is unable to offer the requested opinion, it is essential that the examiner offer a rationale for the conclusion that an opinion could not be provided without resort to speculation, together with a statement as to whether there is additional evidence that could enable an opinion to be provided, or whether the inability to provide the opinion is based on the limits of medical knowledge.  See Jones v. Shinseki, 23 Vet. App. 382 (2011). 

The Board shall leave it up to the examiner's discretion as to whether the Veteran should be reexamined.  

3.  Following completion of the foregoing, the RO/AMC must review the claims folders and ensure that all of the foregoing development actions have been conducted and completed in full.  If any development is incomplete, appropriate corrective action is to be implemented.  Specific attention is directed to the examination reports.  If the examination reports do not include adequate responses to the specific opinions requested, the reports must be returned for corrective action.  38 C.F.R. § 4.2 (2012). 

4.  Thereafter, readjudicate the Veteran's claims.  If any the benefits sought on appeal remains denied, provide the Veteran and his representative with a supplemental statement of the case and allow an appropriate period of time for response.  The case should then be returned to the Board for further consideration, if otherwise in order.

By this remand, the Board intimates no opinion as to any final outcome warranted.

No action is required of the Veteran until he is otherwise notified but he has the right to submit additional evidence and argument on the matters the Board has remanded.  Kutscherousky v. West, 12 Vet. App. 369 (1999). 

This claim must be afforded expeditious treatment.  The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner.  See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2012).




______________________________________________
MICHAEL LANE
Veterans Law Judge, Board of Veterans' Appeals


Department of Veterans Affairs