Citation Nr: 1318177 Decision Date: 06/04/13 Archive Date: 06/11/13 DOCKET NO. 10-35 490 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Buffalo, New York THE ISSUES 1. Entitlement to service connection for type 2 diabetes mellitus. 3. Entitlement to service connection for nerve damage. 3. Entitlement to service connection for hypothyroidism. 4. Entitlement to service connection for facial acne. 5. Entitlement to service connection for a respiratory disorder claimed as a breathing condition. ATTORNEY FOR THE BOARD M. Prem, Counsel INTRODUCTION The Veteran had active service from April 1958 to May 1960. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an August 2009 rating decision of the Department of Veteran's Affairs (VA) Regional Office (RO) in Buffalo, New York. This matter was remanded in February 2011 for further development. The Board also remanded the issues of entitlement to service connection for a traumatic brain injury (TBI), claimed as residuals of a head injury; and psoriasis. The RO issued a May 2012 rating decision in which it granted service connection for both disabilities. As the grant of service connection constitutes a complete grant of the claims, they are no longer before the Board. The issue of entitlement to service connection for nervous condition and anxiety has been raised by the record. Specifically, the Veteran reported to the April 2012 VA examiner that his claim for nerve damage was supposed to be a claim for a nervous disability and anxiety. The Board recognizes that the RO issued a May 2012 rating decision in which it granted service connection for posttraumatic stress disorder. Consequently, there may be some overlapping of symptoms. Nonetheless, the issue of entitlement to service connection for a nervous disability/anxiety has not been adjudicated by the Agency of Original Jurisdiction (AOJ). Therefore, the Board does not have jurisdiction over it, and it is referred to the AOJ for appropriate action. 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 issue of entitlement to service connection for a respiratory disorder claimed as a breathing condition is addressed in the REMAND portion of the decision below and is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDINGS OF FACT 1. Diabetes mellitus type 2 was not manifested during the Veteran's active duty service or for many years after service, nor is it otherwise related to service. 2. There is no medical diagnosis of current chronic nerve damage. 3. Hypothyroidism was not manifested during the Veteran's active duty service or for many years after service, nor is it otherwise related to service. 4. Severe facial acne was a preexisting disability that was noted upon the Veteran's entry into military service and that was not aggravated by service. CONCLUSIONS OF LAW 1. The criteria for an award of service connection for diabetes mellitus type 2 have not been met. 38 U.S.C.A. §§ 1112, 1113, 1131, 5107 (West 2002); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2012). 2. The criteria for an award of service connection for nerve damage have not been met. 38 U.S.C.A. §§ 1131, 5107 (West 2002); 38 C.F.R. § 3.303 (2012). 3. The criteria for an award of service connection for hypothyroidism have not been met. 38 U.S.C.A. §§ 1131, 5107 (West 2002); 38 C.F.R. § 3.303 (2012). 4. The criteria for an award of service connection for facial acne have not been met. 38 U.S.C.A. § 1111 (West 2002); 38 C.F.R. § 3.304 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Veterans Claims Assistance Act of 2000 (VCAA) - Duty to Notify As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2012). Proper notice from VA must inform the claimant of any information and medical or lay evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide. 38 C.F.R. § 3.159(b)(1); Quartuccio v. Principi, 16 Vet. App. 183 (2002). In addition, the notice requirements of the VCAA apply to all elements of a service-connection claim, including the degree of disability and the effective date of the disability. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). Further, this notice must include information that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. Id. at 486. VCAA notice must be provided prior to an initial unfavorable decision on a claim by the RO. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). Where complete notice is not timely accomplished, such error may be cured by issuance of a fully compliant notice, followed by readjudication of the claim. See Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); see also Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006). Here, the Veteran was sent letters in January 2009, and June 2009 that provided information as to what evidence was required to substantiate the claims and of the division of responsibilities between VA and a claimant in developing an appeal. The letters also explained what type of information and evidence was needed to establish a disability rating and effective date. Accordingly, no further development is required with respect to the duty to notify. Veterans Claims Assistance Act of 2000 (VCAA) - Duty to Assist Next, VA has a duty to assist the Veteran in the development of the claims. This duty includes assisting him in the procurement of service treatment records and pertinent treatment records and providing an examination when necessary. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. The Board finds that all necessary development has been accomplished, and therefore appellate review may proceed without prejudice to the appellant. See Bernard v. Brown, 4 Vet. App. 384 (1993). The claims file contains the Veteran's service treatment records, as well as post-service reports of VA and private treatment and examination. Moreover, his statements in support of the claim are of record. The Board has carefully reviewed such statements and concludes that no available outstanding evidence has been identified. The Board has also perused the medical records for references to additional treatment reports not of record, but has found nothing to suggest that there is any outstanding evidence with respect to the Veteran's claims. The Veteran has stated on a few occasions (most recently in April 2013) that his representative "quit the job." The Board does not find any evidence that the Veteran was ever represented. Moreover, the Veteran has not specifically requested representation. To the contrary, in a July 2010 correspondence, he expressed that he did not desire representation. For the above reasons, no further notice or assistance to the appellant is required to fulfill VA's duty to assist the appellant in the development of the claim. Smith v. Gober, 14 Vet. App. 227 (2000), aff'd, 281 F.3d 1384 (Fed. Cir. 2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); see also Quartuccio v. Principi, 16 Vet. App. 183 (2002). Service Connection Applicable law provides that service connection will be granted if it is shown that the Veteran suffers from disability resulting from an injury suffered or disease contracted in line of duty, or for aggravation of a preexisting injury suffered or disease contracted in line of duty, in the active military, naval, or air service. 38 U.S.C.A. § 1131; 38 C.F.R. § 3.303. That an injury occurred in service alone is not enough; there must be chronic disability resulting from that injury. If there is no showing of a resulting chronic condition during service, then a showing of continuity of symptomatology after service is required to support a finding of chronicity. 38 C.F.R. § 3.303(b). However, this provision applies only in cases involving chronic diseases listed under 38 C.F.R. § 3.309(a). Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Additionally, for Veterans who have served 90 days or more of active service during a war period or after December 31, 1946, certain chronic disabilities, such as diabetes mellitus, are presumed to have been incurred in service if manifest to a compensable degree within one year of discharge from service. 38 U.S.C.A. §§ 1101, 1112; 38 C.F.R. §§ 3.307, 3.309. Service connection may also be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). In this case, severe facial acne was noted on his April 1958 entrance examination. A May 1959 treatment report reflects folliculitis and acne vulgaris on the face. In December 1959, the Veteran sought treatment, and claimed that when he ate certain foods, he developed a rash on his face and legs. His March 1960 separation examination reflects acneform lesions of the face. The service treatment records fail to reflect any findings attributed to nerve damage, type 2 diabetes mellitus, or hypothyroidism. It appears that the Veteran believes all of his disabilities were caused by radiation exposure in the form of being struck by lightning. In November 2008, he wrote that he was standing around a tree at Fort Jackson during training in the summer of 1959, when an electric storm involving lightning hit him; and the radiation affected him. In December 2008, he wrote that the radiation he received produced his sickness in skin problems, nerves system, diabetes mellitus, and thyroid. In March 2011, the U.S. Army and Joint Services Records Research Center (JSRRC) informed the RO that it was unable to locate any unit records pertaining to Company D, 6th Battalion, U.S. Training Center. However, it was able to confirm that on July 29, 1958, there were six Fort Jackson, South Carolina soldiers on a field expedition that were struck by a bolt of lightning. Five were hospitalized in good condition. Diabetes mellitus Post service treatment records include VA outpatient treatment records dated from 1974-1980. None of these records reflect any findings attributed to diabetes mellitus. The first diagnosis of diabetes mellitus is dated in February 2003. There is no information regarding the date of onset. The Veteran underwent a VA examination in April 2012. The examiner reported the date of onset of diabetes mellitus type 2 to be 2005. He noted that it is being treated with a restricted diet, prescribed oral hypoglycemic agent, and oral medications including metformin, glipizide, and pioglitazone. He noted that the Veteran seeks diabetic care fewer than 2 times per month; and that it has not required hospitalization over the past 12 months. The examiner found that it was less likely than not that the Veteran's diabetes mellitus was caused by the lightning strike. His opinion was based on a review of the literature, including an article published in E-medicine health regarding complications of lightning strikes. Also factoring into the examiner's conclusion was the fact that the diagnosis of diabetes occurred so many years after the lightning strike. As the service treatment records lack the documentation of any findings attributed to diabetes mellitus, then service connection may be established by continuity of symptomatology under 38 C.F.R. § 3.303(b) or based on initial diagnosis after service under 38 C.F.R. § 3.303(d); Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). At the outset, the Board notes the gap of approximately 4 decades between the Veteran's separation from service and the first documented treatment for diabetes mellitus. See Maxson v. Gober, 230 F.3d 1330 (Fed. Cir. 2000) (a significant lapse in time between service and post-service medical treatment may be considered as part of the analysis of a service connection claim. However, such absence of documented treatment, in and of itself, is not a basis for discrediting his lay statements of continuity. Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). Thus, the Board must consider the totality of the record, and not just the absence of clinical treatment, in weighing any statements asserting continuity of symptomatology. However, in this case, the Veteran alleges that that his diabetes mellitus is due to radiation that he was exposed to as a result of being struck by lightning. He has not alleged any continuity of symptomatology. Moreover, the medical records do not reflect any continuity of symptomatology. To the contrary, the post service treatment records dated 1974-1980 fail to reflect any findings attributed to diabetes mellitus, and the first diagnosis was in February 2003. Additionally, the Veteran did not file a claim of service connection for diabetes mellitus until December 2008, many decades after he separated from service. Had he been experiencing symptoms of diabetes mellitus since service, it would be reasonable to expect that he would have filed a claim sooner. Indeed, in August 2008 he sought service connection for a head injury, nerve damage, and a thyroid condition. Thus, he was clearly aware of the process for applying for benefits, but he did not file a claim for service connection for diabetes mellitus at that time. This suggests that he was either not experiencing manifestations of diabetes mellitus as late as 2008, or if he was, he did not attribute them to service. For the above reasons continuity of symptomatology is not demonstrated here, either by the clinical record or by the Veteran's own statements. As noted above, service connection is not warranted in this case on the basis of continuity of symptomatology. However, if the competent medical evidence indicates that the current diabetes mellitus is related to the Veteran's active service, then an award of service connection would be appropriate. In this vein, the VA examiner in April 2012 concluded that the Veteran's diabetes mellitus was less likely as not related to service because the medical literature did not support a finding that diabetes mellitus is a complication of lightning strikes; and the diagnosis of diabetes mellitus did not occur for decades after the lightning strike. The Board finds the opinion of the VA physician to be persuasive evidence. Indeed, it was based on a review of the record and was offered following a physical evaluation of the Veteran. While the examination report erroneously indicated an onset of diabetes mellitus in 2005 rather than 2003, in the bigger picture this misstatement appears insignificant and there is no reason to believe that a different conclusion would have been reached if not for that mistake. Indeed, the rationale was primarily based on a literature review and although the lack of proximity from service factored into the examiner's opinion, the overall evidentiary foundation for that finding remains valid even if the gap between the lightning strike and the first diagnosis of diabetes mellitus was only 45 years instead of 47 years as stated by the examiner. Thus, the examiner's opinion is deemed highly probative, and no other competent evidence of record refutes that opinion. The Veteran himself believes that his current diabetes mellitus is related to a lightning strike sustained during service. However, while he is competent to describe symptoms of diabetes mellitus, he has not demonstrated the expertise generally required to opine on causation. Indeed, in this case, the question of etiology extends beyond an immediately observable cause-and-effect relationship, such as a fall leading to a broken leg. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009) (citing Jandreau)). Here, diabetes mellitus is not a simple medical condition that the Veteran can identify based on mere personal observation, that is, by visual observation or by any other of the senses. In sum, his statements as to etiology in this case are not competent and therefore lack probative value. As the preponderance of the evidence is against the claim under the applicable the theories of service connection under 38 C.F.R. § 3.303(b) and (d), the benefit of-the-doubt standard of proof does not apply. 38 U.S.C.A. § 5107(b). With respect to the question of entitlement to service connection on a presumptive basis, while there is medical evidence in this case of diabetes mellitus type 2, there is no competent medical evidence of it within one year of the Veteran's separation from active duty service, as required for service connection under 38 C.F.R. § 3.307(a), so service connection under the presumptive provisions of 38 C.F.R. §§ 3.307 and 3.309 is not warranted, and the benefit of-the-doubt standard of proof does not apply. 38U.S.C.A. § 5107(b). Nerve damage The Board notes that a miscommunication between the Veteran and the VA has caused this claim to be adjudicated despite the fact that the Veteran has since claimed that he never intended to file a claim for nerve damage. The Veteran's August 2008 claim included "nerve damage." The Veteran also stated in his June 2010 notice of disagreement, that he had "nerve damage" caused by racism during his service. The Veteran has not presented any evidence that he has a disability manifested by nerve damage. In April 2012, he was scheduled to undergo an examination of his peripheral nerves. The Veteran reported to the examiner that he did not intend to file a claim for "nerve damage." Instead, his claim was supposed to have been for a nervous disorder and anxiety caused by officers requiring him to speak English rather than his first language (Spanish). For the sake of thoroughness, the Board will complete the adjudication of the claim for "nerve damage." The Veteran's service treatment records fail to reflect any findings attributable to nerve damage. The separation examination was normal. Likewise, the post service treatment records fail to reflect any findings attributed to a nerve disability. As noted above, the Veteran reported for his VA examination of the peripheral nerves. However, the examiner noted that the Veteran had not been diagnosed with a peripheral nerve condition or with peripheral neuropathy. In light of the Veteran's admission that he never intended to file a claim for a disability of the nerves, the physical examination of the Veteran was concluded before it began. The Board notes that the existence of a current disability is the cornerstone of a claim for VA disability compensation. 38 U.S.C.A. §§ 1131; see also Degmetich v. Brown, 104 F.3d 1328 (1997). It is well-settled that in order to be considered for service connection, a claimant must first have a disability. In Brammer v. Derwinski, 3 Vet. App. 223 (1992), it was noted that Congress specifically limited entitlement for service-connected disease or injury to cases where such incidents resulted in disability. See also Gilpin v. Brown, 155 F.3d 1353 (Fed. Cir. 1998) (service connection may not be granted unless a current disability exists); Rabideau v. Derwinski, 2 Vet. App. 141 (1992). In this case, neither the service treatment records nor the post service treatment records reflect any findings attributed to nerve damage. Moreover, the Veteran has clarified that it was never his intention to file a service connection claim for nerve damage. As the preponderance of the evidence is against this claim, the benefit-of-the-doubt doctrine does not apply, and the claim for service connection for nerve damage must be denied. See Gilbert v. Derwinski, 1 Vet. App 49 (1990). Hypothyroidism Post service treatment records include VA outpatient treatment records dated 1974-1980. None of the records reflect any findings attributed to hypothyroidism. The first diagnosis of hypothyroidism is shown decades after service. There is no information regarding the date of onset. The Veteran underwent a VA examination in April 2012. The examiner reported the date of onset of hypothyroidism to be 2003. He noted that it was being treated with continuous medication (levo thyroxine). The Veteran's hypothyroidism was manifested by fatigability. Examination of the neck was normal (with no palpable thyroid enlargement or nodules). The examiner found it less likely than not that the Veteran's hypothyroidism was caused by the lightning strike. His opinion was based on a review of the literature, including an article published in E-medicine health regarding complications of lightning strikes. As the service treatment records lack the documentation of any findings attributed to hypothyroidism, then service connection may be established based on initial diagnosis after service under 38 C.F.R. § 3.303(d). In this case, the Veteran alleges that that his hypothyroidism is due to radiation that he was exposed to as a result of being struck by lightning. The lack of any post-service medical records until decades after service is probative to the issue of chronic disability. The United States Court of Appeals for the Federal Circuit has determined that a significant lapse in time between service and post-service medical treatment may be considered as part of the analysis of a service connection claim. See generally Maxson v. Gober, 230 F.3d 1330 (Fed. Cir. 2000). Nonetheless, if the competent medical evidence indicates that the current hypothyroidism is related to the Veteran's active service, then an award of service connection would be appropriate. In this vein, the VA examiner in April 2012 concluded that the Veteran's hypothyroidism was less likely as not related to service because the medical literature did not support a finding that hypothyroidism is a complication of lightning strikes, and the diagnosis of hypothyroidism did not occur for decades after the lightning strike. The Board finds the opinion of the VA physician to be persuasive evidence. Indeed, it was based on a review of the record and was offered following a physical evaluation of the Veteran. Moreover, it was accompanied by a clear rationale. No other competent evidence of record refutes that opinion. The Veteran himself believes that his current hypothyroidism is related to a lightning strike sustained during service. However, while he is competent to describe symptoms of hypothyroidism, he has not demonstrated the expertise generally required to opine on causation. Indeed, in this case, the question of etiology extends beyond an immediately observable cause-and-effect relationship, such as a fall leading to a broken leg. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009) (citing Jandreau)). Here, hypothyroidism is not a simple medical condition that the Veteran can identify based on mere personal observation, that is, by visual observation or by any other of the senses. In sum, his statements as to etiology in this case are not competent and therefore lack probative value. As the preponderance of the evidence is against the claim under the applicable the theories of service connection under 38 C.F.R. § 3.303(b) and (d), the benefit of-the-doubt standard of proof does not apply. 38 U.S.C.A. § 5107(b). Facial Acne VA law provides that a Veteran is presumed to be in sound condition, except for defects, infirmities or disorders noted when examined, accepted, and enrolled for service, or where clear and unmistakable evidence establishes that an injury or disease existed prior to service and was not aggravated by service. 38 U.S.C.A. §§ 1111, 1132, 1137. The presumption of soundness attaches only where there has been an induction examination during which the disability about which the Veteran later complains was not detected. See Bagby v. Derwinski, 1 Vet.App. 225, 227 (1991). The regulations provide expressly that the term "noted" denotes "[o]nly such conditions as are recorded in examination reports," 38 C.F.R. § 3.304(b), and that "[h]istory of pre- service existence of conditions recorded at the time of examination does not constitute a notation of such conditions." Id. at (b)(1). For purposes of illustrating the analysis to be used in such cases, the Board notes the decision of the U.S. Court of Appeals for the Federal Circuit (Federal Circuit) in Wagner v. Principi, 370 F.3d 1089 (Fed.Cir. 2004), issued on June 1, 2004, summarizing the effect of 38 U.S.C.A. § 1111 on claims for service-connected disability: When no preexisting condition is noted upon entry into service, the Veteran is presumed to have been sound upon entry. The burden then falls on the government to rebut the presumption of soundness by clear and unmistakable evidence that the Veteran's disability was both preexisting and not aggravated by service. The government may show a lack of aggravation by establishing that there was no increase in disability during service or that any "increase in disability [was] due to the natural progress of the" preexisting condition. 38 U.S.C.A. § 1153. If this burden is met, then the Veteran is not entitled to service-connected benefits. However, if the government fails to rebut the presumption of soundness under section 1111, the Veteran's claim is one for service connection. This means that no deduction for the degree of disability existing at the time of entrance will be made if a rating is awarded. See 38 C.F.R. § 3.322. On the other hand, if a preexisting disorder is noted upon entry into service, the Veteran cannot bring a claim for service connection for that disorder, but the Veteran may bring a claim for service-connected aggravation of that disorder. In that case section 1153 applies and the burden falls on the Veteran to establish aggravation. See Jensen v. Brown, 19 F.3d 1413, 1417 (Fed.Cir. 1994). If the presumption of aggravation under section 1153 arises, the burden shifts to the government to show a lack of aggravation by establishing "that the increase in disability is due to the natural progress of the disease." 38 U.S.C. § 1153; see also 38 C.F.R. § 3.306; Jensen, 19 F.3d at 1417; Wagner, 370 F. 3d at 1096. In this case, the Veteran's severe facial acne was noted upon entry into service. Consequently, the Veteran can only bring a claim for aggravation of his already severe facial acne. The service treatment records reflect that the Veteran sought treatment on two occasions. In May 1959, he was diagnosed with folliculitis and acne vulgaris. In December 1959, the Veteran claimed that after eating certain foods, he would develop a rash on his face and legs. His March 1960 separation examination reflects acneform lesions of the face. The Veteran underwent a VA examination in April 2012. The examiner reviewed the claims file in conjunction with the examination. He noted that the Veteran was diagnosed with psoriasis in 2003 (for which service connection has already been granted) and rosacea in 2003. The examiner noted that the Veteran had severe facial acne when he entered service, that he was treated for it during service, that he had a shaving profile, and that he was diagnosed with facial acne upon separation from service (the severity on separation was not specified). The Veteran reported that since his discharge from service, he had varying degrees of acne over the years. He reported that in his mid-30s, his acne seemed to improve and that it had not been a significant issue since. The examiner noted that the Veteran also has seborrheic dermatitis and rosacea that are commonly be seen in conjunction with psoriasis. The examiner found that the Veteran did not have any skin conditions that cause scarring or disfigurement of the head, face, or neck. He did not have any benign or malignant neoplasms. His acne had been treated with oral or topical medications in the past 12 months. While his psoriasis had been treated constantly/near constantly with topical corticosteroids, there was no indication that these corticosteroids were necessary treatment for acne. At the time of the examination, the Veteran did not have acne/chloracne. The examiner opined that the Veteran's facial acne was less likely than not related to service. He noted that the Veteran entered service with severe facial acne and that he was treated for it without significant exacerbation. The Board finds that the preponderance of the evidence weighs against the Veteran's claim. As previously noted, the Veteran's facial acne was severe when he entered service. At his VA examination, he specifically stated that his acne improved when he was in his 30s and that it has not been a real problem since. Moreover, the VA examiner opined that the Veteran's current facial acne is not related to service inasmuch as it was noted prior to service and was treated without significant exacerbation. The Board once again notes that when a Veteran has a disability that pre-dates service, he can only seek service connection for aggravation of that disability. Moreover, the burden falls on the Veteran to establish aggravation. In this case, the Veteran has failed to show that his severe facial acne that was noted upon entry into service has been aggravated by service. As the preponderance of the evidence is against this claim, the benefit-of-the-doubt doctrine does not apply, and the claim for service connection for facial acne must be denied. See Gilbert v. Derwinski, 1 Vet. App 49 (1990). ORDER Service connection for type 2 diabetes mellitus is denied. Service connection for nerve damage is denied. Service connection for hypothyroidism is denied. Service connection for facial acne is denied. REMAND Respiratory disability Although it has not specifically been confirmed that the Veteran was struck by lightning, the JSRRC was able to confirm that on July 29, 1958, there were six Fort Jackson, South Carolina soldiers on a field expedition that were struck by a bolt of lightning. Five were hospitalized in good condition. On this information, and resolving any doubt in his favor, the Board concedes that the Veteran was struck by lightning. The service treatment records reflect that the Veteran was diagnosed with an upper respiratory infection in November 1958. His separation examination was normal. In the March 1960 Report of Medical History, when asked if he ever had shortness of breath, he responded affirmatively (by checked box). He handwrote "shortness of breath - no trouble now." The Veteran underwent a VA examination in April 2012. The examiner noted that the Veteran experienced shortness of breath in 2000 and that he was diagnosed with bronchospasm at that time. He opined that the Veteran's respiratory disability was less likely than not related to the lightening strike. He based his opinion on a review of medical literature, including an article published in E-medicine health, on complications of lightning strikes. He also noted that the diagnosis of the Veteran's respiratory disability was made 42 years after being struck by lightning. A review of the claims file reflects that the Veteran had numerous respiratory problems in the 1970s. In September 1975, he had a cough and runny nose that was diagnosed as a common cold. In April 1976 and August 1976, he was diagnosed with an upper respiratory infection (URI). In September 1976, he experienced nasal congestion, sneezing, and coughing. It was thought to be due to allergies. In February 1977 and March 1977, the Veteran was diagnosed with another URI. He was diagnosed with common colds in December 1977 and September 1978. Finally, he was diagnosed with another URI in July 1980. As the April 2012 VA medical opinion was based on an inaccurate history, it is inadequate and of no probative value. Boggs v. West, 11 Vet. App. 334, 345 (1998); Kightly v. Brown, 6 Vet. App. 200, 205-06 (1994) (finding that presumption of credibility of evidence did not arise as to medical opinion that a Veteran's disability was incurred in service because it was based on an inaccurate history, one which failed to acknowledge an injury well-documented in the record, and hence holding such evidence not "material"); Reonal v. Brown, 5 Vet. App. 458, 460-61 (1993) (finding that presumption of credibility did not arise because physician's opinion was based upon "an inaccurate factual premise" and thus had "no probative value"). Consequently, the Board finds that the Veteran is entitled to a new VA examination for the purpose of determining the nature, extent, and etiology of the Veteran's current respiratory disability. Accordingly, the case is REMANDED 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 make sure that the VA records are updated and in the claims folder. 2. The Veteran should be afforded a VA examination for the purpose of determining the nature, etiology and severity of the Veteran's respiratory disability or disabilities. The claims file must be made available to the examiner for review in connection with the examination. Following a review of the relevant medical evidence in the claims file, to include the service treatment records and post-service treatment records; the medical history obtained from the Veteran; the clinical evaluation; and any tests that are deemed necessary, the examiner should opine whether it is at least as likely as not (a 50 percent or greater probability) that any respiratory disability began during or is causally related to service, to include whether any disability is causally related to (1) the lightning strike of July 29, 1958 or (2) the Veteran's November 1958 upper respiratory infection. The examiner must provide reasons for any opinion given. If the examiner is unable to provide an opinion without resort to speculation, he or she should explain why this is so and what, if any, additional evidence would be necessary before an opinion could be rendered. The examiner is advised that the Veteran is competent to report his symptoms and history, and such reports must be specifically acknowledged and considered in formulating any opinions. If the examiner rejects the Veteran's reports, he or she must provide a reason for doing so. 3. After completion of the above, the AMC should review the expanded record and determine if the benefits sought can be granted. If the claim remains denied, then the AMC should furnish the Veteran and his representative with a supplemental statement of the case, and afford a reasonable opportunity for response before returning the record to the Board for further review. The appellant 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). ______________________________________________ ERIC S. LEBOFF Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs