Citation Nr: 1318408	
Decision Date: 06/06/13    Archive Date: 06/11/13

DOCKET NO.  09-45 746	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs (VA) Regional Office (RO) 
in Hartford, Connecticut


THE ISSUES

1. Entitlement to service connection for a low back disorder.

2. Entitlement to service connection for hypertension, to include as secondary to service-connected chronic adjustment disorder

3. Entitlement to service connection for squamous cell carcinoma of the left mandible, to include as due to herbicide exposure.

4. Entitlement to a rating in excess of 10 percent for chronic adjustment disorder.


REPRESENTATION

Appellant represented by:	Disabled American Veterans



WITNESSES AT HEARING ON APPEAL

Veteran and his spouse


ATTORNEY FOR THE BOARD

G. Jackson, Counsel


INTRODUCTION

The Veteran had active service from September 1964 to September 1967.

This matter comes to the Board of Veterans' Appeals (Board) on appeal from a February 2009 rating decision issued by the RO. In that decision, the RO, in pertinent part, granted service connection for adjustment disorder and assigned a 10 percent rating effective from July 9, 2008. The RO, in pertinent part, also denied the Veteran's claims of entitlement to service connection for a low back disorder, hypertension and squamous cell carcinoma of the left mandible. 

The Veteran testified before a Decision Review Officer (DRO) in a hearing at the RO in April 2010; a transcript of the hearing is associated with the claims file.

The Board notes that, in addition to the paper claims file, there is a Virtual VA electronic claims file associated with the Veteran's claim. A review of the documents in the electronic file reveals that they are either duplicative of the evidence in the paper claims file or are irrelevant to the issue on appeal.

The issues of entitlement to service connection for a low back disorder, hypertension and squamous cell carcinoma of the left mandible 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

Chronic adjustment disorder has most nearly approximated occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks (although generally functioning satisfactorily with routine behavior, self-care and conversation normal).


CONCLUSION OF LAW

The criteria for a 30 percent rating for the chronic adjustment disorder are met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.1, 4.3, 4.7, 4.126, 4.130, Diagnostic Code (DC) 9440 (2012).


REASONS AND BASES FOR FINDING AND CONCLUSION

Veterans Claims Assistance Act of 2000

The Veterans Claims Assistance Act of 2000 (VCAA), codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, and 5126 (West 2002 & Supp. 2012) redefined VA's duty to assist a claimant in the development of a claim. VA regulations for the implementation of the VCAA were codified as amended at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, and 3.326(a) (2012).

The notice requirements of the VCAA require VA to notify the claimant of any evidence that is necessary to substantiate the claim, as well as the evidence VA will attempt to obtain and which evidence he is responsible for providing. 38 C.F.R. § 3.159(b) (2012). In rating cases, a claimant must be provided with information pertaining to assignment of disability ratings (to include the rating criteria for all higher ratings for a disability), as well as information regarding the effective date that may be assigned. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). VCAA notice must be provided to a claimant before the initial unfavorable decision on a claim for VA benefits by the agency of original jurisdiction (in this case, the RO). Id.; see also Pelegrini v. Principi, 18 Vet. App. 112 (2004). However, the VCAA notice requirements may be satisfied if any errors in the timing or content of such notice are not prejudicial to the claimant. See Pelegrini, 18 Vet. App. at 121.

In this case, in an August 2008 letter issued prior to the decision on appeal, the Veteran was provided notice regarding what information and evidence is needed to substantiate his claims for service connection, as well as what information and evidence must be submitted by the Veteran and what information and evidence will be obtained by VA. The letter advised the Veteran of how disability evaluations and effective dates are assigned, and the type of evidence which impacts those determinations. However, as this appeal stems from the initial grant of service connection for chronic adjustment disorder, the notice letter did not contain an explanation of the general rating criteria relevant to his chronic adjustment disorder.

The October 2009 Statement of the Case (SOC) set forth applicable criteria for ratings for chronic adjustment disorder. After issuance of the October 2009 SOC, and opportunity for the Veteran to respond, the August 2010 Supplemental SOC (SSOC) reflects readjudication of the claim. Hence, the Veteran is not shown to be prejudiced by the timing of the latter notice. See Mayfield v. Nicholson, 20 Vet. App. 537, 543 (2006); see also Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006) (the issuance of a fully compliant VCAA notification followed by readjudication of the claim, such as in an SOC or SSOC, is sufficient to cure a timing defect).

The record also reflects that VA has made reasonable efforts to obtain relevant records adequately identified by the Veteran. Specifically, the information and evidence that have been associated with the claims file include the VA treatment records and examination report and private treatment records.    

The VCAA provisions have been considered and complied with. The Veteran was notified and aware of the evidence needed to substantiate his claim, the avenues through which he might obtain such evidence, and the allocation of responsibilities between himself and VA in obtaining such evidence. The Veteran was an active participant in the claims process by providing evidence and argument and presenting for VA examinations. Thus, he was provided with a meaningful opportunity to participate in the claims process and has done so. Any error in the sequence of events or content of the notices is not shown to have any effect on the case or to cause injury to the Veteran. Therefore, any such error is harmless and does not prohibit consideration of this matter on the merits.  See Dingess, supra; see also ATD Corp. v. Lydall, Inc., 159 F.3d 534, 549 (Fed. Cir. 1998).

Laws and Regulations

Disability evaluations are determined by the application of VA's Schedule for Rating Disabilities, which is based on average impairment of earning capacity resulting from a service-connected disability. 38 U.S.C.A. § 1155; 38 C.F.R. Part 4. Where there is a question as to which of two ratings shall be applied, the higher rating will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned.  38 C.F.R. § 4.7. After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the veteran.  38 C.F.R. § 4.3.

The Veteran's entire history is to be considered when making disability evaluations. See generally 38 C.F.R. 4.1; Schafrath v. Derwinski, 1 Vet. App. 589 (1995).  The Court has held that "staged" ratings are appropriate for any rating claim when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings.  See Hart v. Mansfield, 21 Vet. App. 505 (2007); Fenderson v. West, 12 Vet. App 119 (1999).   Here the disability has not significantly changed and a uniform evaluation is warranted.

Here, the disability has not significantly changed and a uniform evaluation is warranted.

The initial rating for the Veteran's chronic adjustment disorder has been assigned pursuant to Diagnostic Code 9440. However, the actual criteria for rating the Veteran's disability are set forth in a General Rating Formula for evaluating psychiatric disabilities other than eating disorders. See 38 C.F.R. § 4.130.

Under the formula, a 10 percent rating is assigned when there is occupational and social impairment due to mild or transient symptoms which decrease work efficiency and ability to perform occupational tasks only during periods of significant stress, or; symptoms controlled by continuous mediation. 

A 30 percent rating is assigned when there is occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks (although generally functioning satisfactorily, with routine behavior, self-care, and conversation normal), due to such symptoms as: depressed mood, anxiety, suspiciousness, panic attacks (weekly or less often), chronic sleep impairment, and mild memory loss (such as forgetting names, directions, recent events).  

A 50 percent rating is assigned when there is occupational and social impairment with reduced reliability and productivity due to such symptoms as: flattened affect; circumstantial, circumlocutory, or stereotyped speech; panic attacks more than once a week; difficulty in understanding complex commands; impairment of short-and long-term memory (e.g., retention of only highly learned material, forgetting to complete tasks); impaired judgment; impaired abstract thinking; disturbances of motivation and mood; and difficulty in establishing and maintaining effective work and social relationships.  

A 70 percent rating is assigned for occupational and social impairment with deficiencies in most areas, such as work, school, family relationships, judgment, thinking or mood, due to such symptoms as: suicidal ideation; obsessional rituals which interfere with routine activities; speech intermittently illogical, obscure, or irrelevant; near-continuous panic or depression affecting ability to function independently, appropriately and effectively; impaired impulse control (such as unprovoked irritability with periods of violence); spatial disorientation; neglect of personal appearance and hygiene; difficulty in adapting to stressful circumstances (including work or a work-like setting); and inability to establish and maintain effective relationships.

A 100 percent rating is assigned for total occupational and social impairment, due to such symptoms as: gross impairment in thought processes or communication; persistent delusions; grossly inappropriate behavior; persistent danger of hurting self or others; intermittent ability to perform activities of daily living (including maintenance of minimal personal hygiene); disorientation to time or place; and memory loss for names of closes relatives, own occupation, or own name.

Psychiatric examinations frequently include assignment of a Global Assessment of Functioning (GAF) score. According to the Fourth Edition of the American Psychiatric Association's Diagnostic and Statistical Manual of Mental Disorders (DSM-IV), GAF is a scale reflecting the "psychological, social, and occupational functioning on a hypothetical continuum of mental health-illness." 

GAF scores between 61 and 70 reflect mild symptoms, (that is, depressed mood and mild insomnia), or some difficulty in social, occupational, or school functioning (e.g., occasional truancy, or theft within the household), but generally functioning pretty well, has some meaningful interpersonal relationships.

There is no question that the GAF score and interpretations of the score are important considerations in rating a psychiatric disability. See e.g., Richard v. Brown, 9 Vet. App. 266, 267 (1996); Carpenter v. Brown, 8 Vet. App. 240 (1995). However, the GAF score assigned in a case, like an examiner's assessment of the severity of a condition, is not dispositive of the evaluation issue; rather, the GAF score must be considered in light of the actual symptoms of the Veteran's disorder, which provide the primary basis for the rating assigned. See 38 C.F.R. § 4.126(a).  

Analysis

In this case, the Board concludes that the symptoms of the Veteran's chronic adjustment disorder have most nearly approximated occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks (although generally functioning satisfactorily with routine behavior, self-care and conversation normal).

A November 2008 report of VA examination reflects the Veteran's complaint of symptoms such as daily thoughts and memories of Vietnam (with little distress attached to these memories). He thought about the times he was wounded but only "once in a while." He had occasional stressful dreams about combat ("every once in a while") which would cause him to wake. There was no avoidance of trauma-specific reminders. However, he did become emotional and, at times, tearful in response to the more sentimental aspects of combat, such as seeing people in uniform, Memorial Day parades, etc. He reported that this emotional reactivity has increased with age. Other than that reactivity, he was affectively somewhat constricted, noting he usually has an "emotional wall up." He reported that his father died last year at the age of 95 and he did not shed a tear even though he had been very close with him. He avoided crowds and situations where he was not fully aware of his surroundings. He had difficulty relaxing and his thoughts were often rapid, if not racing (typically work-related). He slept 4-6 hours, reporting that since Vietnam that was all he required. He denied having sleep impairment (difficulty falling asleep or early morning awakening with fatigue). However, he did occasionally wake at 3 in the morning and be "raring to go." He described himself as a "loner," typically enjoying time to himself and outdoors. He remained very alert and aware at all times and was "always figuring escape routes" when out in public places. He had a history of exaggerated startle that had diminished over the years. 

He denied any use of alcohol, caffeine or other substances and managed activities of daily living without difficulty. He demonstrated an obsessive/compulsive quality to his overall conduct. He was meticulous; he was adamant about having never been late for anything (arriving over an hour early for the present appointment); and, was highly principled and ethical.

He has been married to his wife ("a wonderful wife") for over 40 years and has two adult children with whom he is close. Following discharge from the military, he worked as a police officer. Due to his tactical expertise and experiences as a sergeant in Vietnam, he was frequently used as a trainer. He subsequently left the police force to open his own tactical training business which he has run for the last 30 plus years. He trains tactical search and rescue units, SWAT teams, police departments and other agencies requiring such training. He reported that he was a "workaholic," working 10-15 hour days and then spending the evenings planning new tactical training courses, etc. He also is certified as an EMT. He has few leisure activities and is not particularly social, preferring to avoid social gatherings.

Mental status examination showed that he was candid and cooperative. His affect was euthymic, generally bright with some range which was mood congruent. There was no distress evident when describing trauma exposure; however, there was a hint of emotionality when referring to the more sentimental aspects of military service. His mood was good. Thought process was logical and organized with no evidence of thought disorder. He denied having hallucinations or delusions and there was no evidence of such on examination. He denied having any suicidal or homicidal ideation. His cognition was not formally tested but was grossly intact. His insight and judgment were good.

The examiner assigned the Veteran a GAF score in the range of 65-70 and reported that the Veteran demonstrated a convincing picture of sub-threshold posttraumatic stress disorder (PTSD) symptoms resulting from his combat exposure in Vietnam. The examiner noted that emotional/affective constriction along with significant arousal and hypervigilance are the major enduring sequalae of his combat experiences. Additionally, the examiner noted that the Veteran displayed a co-morbid generalized obsessive/compulsive personality style that had been enhanced during his military training and experience. The examiner concluded that the Veteran's chronic adjustment disorder has caused mild to moderate impairment in social function and no vocational impairment. 

Based on the above, despite his lack of most of the specific symptomatology listed in the criteria for a 30 percent rating, the evidence reasonably demonstrates that the Veteran's chronic adjustment disorder has been productive of symptomatology of a mild to moderate nature, i.e., he exhibits occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks (although generally functioning satisfactorily with routine behavior, self-care and conversation normal). The Veteran's testimony offered at the April 2010 RO hearing and the evidence clearly demonstrates that the Veteran has mild to moderate impairment in social areas of his functioning. He is shown to have few leisure activities and is not particularly social, preferring to avoid social gatherings. Additionally, he demonstrated emotional/affective constriction with significant arousal, hypervigilance and obsessive/compulsive traits.

While the Board is aware that the report of VA examination could be viewed as indicative of chronic adjustment disorder of less severity, the examiner found that the Veteran's chronic adjustment disorder has caused mild to moderate impairment in social function. The Board has also considered the lay pleading and testimony and has found the Veteran to be very credible.  This taken with the totality of the other evidence of record persuades the Board to conclude that the Veteran's chronic adjustment disorder has more nearly approximated occupational or social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks (although generally functioning satisfactorily with routine behavior, self-care and conversation normal). 

In finding that a 30 percent rating is warranted, the Board has not required that an exhaustive list of symptoms be met. Mauerhan v. Principi, 16 Vet. App. 436, 442-43 (2002). Rather, the Board finds the 30 percent rating is indicative of the Veteran's overall disability picture, reflecting the effects of his chronic adjustment disorder on social and occupational impairment. The Federal Circuit has embraced the Mauerhan Court's interpretation of the criteria for rating psychiatric disabilities. Sellers v. Principi, 372 F.3d 1318, 1326 (Fed. Cir. 2004).

The evidence does not indicate that the Veteran's chronic adjustment disorder caused occupational and social impairment with reduced reliability and productivity, particularly given the fact that the Veteran has not demonstrated more significant vocational impairment, and, has none of the symptoms listed in the criteria for a 50 percent rating. Thus, the Board finds that a 50 percent rating is not warranted. See Vazquez-Claudio v. Shinseki, 713 F.3d 112 (Fed.Cir. 2013).

The above determinations are based on application of pertinent provisions of VA's rating schedule.  Additionally, the Board finds that at no point has the disability been shown to be so exceptional or unusual as to warrant the assignment of any higher rating on an extra-schedular basis.  See 38 C.F.R. § 3.321.

Consideration of referral for an extraschedular rating requires a three-step inquiry. See Thun v. Peake, 22 Vet. App. 111 (2008), aff'd sub nom. Thun v. Shinseki, 572 F.3d 1366 (Fed. Cir. 2009). The first question is whether the schedular rating adequately contemplates the Veteran's disability picture. Thun, 22 Vet. App. at 115. If the criteria reasonably describe the claimant's disability level and symptomatology, then the claimant's disability picture is contemplated by the rating schedule, the assigned schedular evaluation is, therefore, adequate, and no referral is required. If the schedular evaluation does not contemplate the claimant's level of disability and symptomatology and is found inadequate, then the second inquiry is whether the claimant's exceptional disability picture exhibits other related factors such as those provided by the regulation as governing norms. If the Veteran's disability picture meets the second inquiry, then the third step is to refer the case to the Under Secretary for Benefits or the Director of the Compensation and Pension Service to determine whether an extraschedular rating is warranted. 

The discussion above reflects that the symptoms and effects of the Veteran's chronic adjustment disorder are fully contemplated by the applicable rating criteria. The Board's analysis above reflects that the symptoms, effects, and overall disability picture from the Veteran's chronic adjustment disorder is contemplated by the 30 percent rating, which takes account of both the individual symptoms and the overall impairment caused by the chronic adjustment disorder. Thus, consideration of whether the Veteran's disability picture exhibits other related factors such as those provided by the regulations as "governing norms" is not required. In any event, the above evidence reflects that the effects of the chronic adjustment disorder on the Veteran's employment did not constitute marked interference with employment, i.e., beyond that contemplated by the assigned 30 percent rating. See 38 C.F.R. § 4.1 ("Generally, the degrees of disability specified are considered adequate to compensate for considerable loss of working time from exacerbations or illnesses proportionate to the severity of the several grades of disability"). Moreover, there is no evidence of frequent hospitalization, or indication that the Veteran's symptoms have otherwise rendered impractical the application of the regular schedular standards. Therefore, referral for consideration of an extraschedular rating for chronic adjustment disorder is not warranted. 38 C.F.R. § 3.321(b)(1).

For the foregoing reasons, the preponderance of the evidence reflects that the Veteran's chronic adjustment disorder has most nearly approximated occupational and social impairment of a degree warranting a 30 percent rating since the July 9, 2008 effective date for the award of service connection. 38 C.F.R. § 4.7. The benefit-of-the-doubt doctrine is not for application, and a rating of 30 percent, but no higher, is therefore warranted for the Veteran's chronic adjustment disorder. See 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102, 4.3; see also Fagan v. Shinseki, 573 F.3d 1282, 1287 (Fed. Cir. 2009).


ORDER

Entitlement to a 30 percent rating for chronic adjustment disorder is granted, subject to controlling regulations governing the payment of monetary awards.


REMAND

The Board notes that the Veteran received the Purple Heart with two bronze stars for his service in Vietnam. A finding that a veteran engaged in combat with the enemy under 38 U.S.C.A. § 1154(b) requires that the Veteran participated in events constituting an actual fight or encounter with a military foe or hostile unit or instrumentality, and does not apply to veterans who served in a general "combat area" or "combat zone" but did not themselves engage in combat with the enemy. See VAOPGCPREC 12-99 (October 18, 1999). In this case, the Board finds that the Veteran engaged in combat with the enemy. Accordingly, his lay statements and hearing testimony must be considered. However, 38 U.S.C.A. § 1154(b) does not create a statutory presumption that a combat Veteran's alleged disease or injury is service connected; rather, it aids the combat Veteran by relaxing the adjudicative evidentiary requirements for determining what happened in service. Collette v. Brown, 82 F.3d 389, 392 (Fed. Cir. 1996). 

In this case, the Veteran asserts that his low back disorder onset due to injury sustained in service. He testified that he was on a patrol mission when someone set off a set of booby traps. He was thrown approximately 14 feet through the air and upon landing sustained injury to his back. He reported that he has had back problems since that time. Subsequent to service, the Veteran has received treatment for a low back disorder (diagnosed as lumbar I.V.D. syndrome).  

To date, the Veteran has not been afforded a VA examination that addresses the etiology of his claimed low back disorder. Under the circumstances, the Board finds such examination is warranted as to the Veteran's claim for entitlement to service connection for a low back disorder. See McLendon v. Nicholson, 20 Vet.App. 79, 83 (2006); Hyder v. Derwinski, 1 Vet.App. 221 (1991); Green v. Derwinski, 1 Vet.App. 121, 124 (1991).   

Additionally, the Veteran asserts that his hypertension is secondary to his service-connected chronic adjustment disorder. The Board notes that under 38 C.F.R. § 3.310(a) (2012), service connection may be granted for disability that is proximately due to or the result of a service-connected disease or injury. That regulation permits service connection not only for disability caused by service-connected disability, but for the degree of disability resulting from aggravation of a nonservice-connected disability by a service-connected disability. See also Allen v. Brown, 7 Vet. App. 439, 448 (1995). Effective October 10, 2006, VA amended 38 C.F.R. § 3.310 with regard to the requirements for establishing secondary service connection on an aggravation basis. See 71 Fed. Reg. 52,744-47 (Sept. 7, 2006) (see 38 C.F.R. § 3.310(b)). 

To date, the Veteran has not been afforded a VA examination that addresses the etiology of his claimed hypertension. Under the circumstances, the Board finds such examination is warranted as to the Veteran's claim for entitlement to service connection for hypertension, to specifically include addressing whether the claimed hypertension, was caused or aggravated by his service-connected chronic adjustment disorder. See McLendon v. Nicholson, 20 Vet.App. 79, 83 (2006); Hyder v. Derwinski, 1 Vet.App. 221 (1991); Green v. Derwinski, 1 Vet.App. 121, 124 (1991).   

Finally, the Board observes that the Veteran did serve in the Republic of Vietnam from April 1966 to February 1967. As such, he served in the Republic of Vietnam during the Vietnam era and is therefore presumed to have been exposed during such service to certain herbicide agents, including Agent Orange. 38 C.F.R. § 3.307. He contends that his squamous cell carcinoma of the left mandible is related to his military service. Specifically, he asserts that the disorder is related to his herbicide exposure while he was serving in the Republic of Vietnam. An August 2008 VA dermatology treatment record documents that the Veteran had a history of significant Agent Orange exposure. The Veteran underwent a procedure for removal of squamous cell carcinoma of the left mandible.

Squamous cell carcinoma is not on the list of diseases presumed service connected in Veterans exposed to Agent Orange. 38 U.S.C.A. § 1116(a)(1); 38 C.F.R. § 3.309(e) (2012). However, the availability of service connection on a presumptive basis does not preclude consideration of service connection on a direct basis. 38 U.S.C.A. § 1113(b) (West 2002); 38 C.F.R. § 3.304(d) (2012). To date, the Veteran has not been afforded a VA examination that addresses the etiology of his claimed squamous cell carcinoma of the left mandible. Under the circumstances, the Board finds such examination is warranted as to the Veteran's claim for entitlement to service connection for squamous cell carcinoma of the left mandible. See McLendon v. Nicholson, 20 Vet.App. 79, 83 (2006); Hyder v. Derwinski, 1 Vet.App. 221 (1991); Green v. Derwinski, 1 Vet.App. 121, 124 (1991).   

Accordingly, the case is REMANDED for the following action:

1. Schedule the Veteran for a VA examination to evaluate his complaints of a low back disorder. The claims file should be made available to the examiner for review prior to examination. All indicated tests and studies should be performed and clinical findings should be reported in detail. A comprehensive clinical history should be obtained, to include a discussion of the Veteran's documented medical history and assertions. After a thorough review of the evidence, the examiner should provide an opinion with supporting rationale as to whether it is at least as likely as not (50 percent probability or better) any current low back disorder is due to disease or injury sustained in service.  

The examination report must include complete rationale for all opinions and conclusions reached.

2. Schedule the Veteran for a VA examination to evaluate his complaints of hypertension. The claims file should be made available to the examiner for review prior to examination. All indicated tests and studies should be performed and clinical findings should be reported in detail. A comprehensive clinical history should be obtained, to include a discussion of the Veteran's documented medical history and assertions. After a thorough review of the evidence, the examiner should provide an opinion with supporting rationale as to whether it is at least as likely as not (50 percent probability or better) any current hypertension is related to service.  In addition, the examiner should determine whether it is at least as likely as not the service-connected chronic adjustment disorder caused or aggravated the Veteran's hypertension? If aggravation of the hypertension by the service-connected chronic adjustment disorder is shown, the examiner should objectively quantify the degree of aggravation above and beyond the level of impairment had no aggravation occurred.

The examination report must include complete rationale for all opinions and conclusions reached.

3. Schedule the Veteran for a VA examination to evaluate his complaints of squamous cell carcinoma of the left mandible. The claims file should be made available to the examiner for review prior to examination. All indicated tests and studies should be performed and clinical findings should be reported in detail. A comprehensive clinical history should be obtained, to include a discussion of the Veteran's documented medical history and assertions. After a thorough review of the evidence, the examiner should provide an opinion with supporting rationale as to whether it is at least as likely as not (50 percent probability or better) any current squamous cell carcinoma of the left mandible was caused by the Veteran's presumed Agent Orange exposure or anything else in service.

The examination report must include complete rationale for all opinions and conclusions reached.

4. After completion of the above development, the Veteran's claims of entitlement to service connection for a low back disorder, hypertension and squamous cell carcinoma of the left mandible should be readjudicated. If the determinations remain adverse to him, he should be furnished with a Supplemental Statement of the Case.

Thereafter, as 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).



______________________________________________
H. N. SCHWARTZ
Veterans Law Judge, Board of Veterans' Appeals


Department of Veterans Affairs