Citation Nr: 1318947	
Decision Date: 06/11/13    Archive Date: 06/21/13

DOCKET NO.  04-21 222	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Waco, Texas


THE ISSUES

1.  Entitlement to service connection for bilateral hearing loss.  

2.  Entitlement to service connection for a psychiatric disability.


REPRESENTATION

Appellant represented by:	Virginia A. Girard-Brady, Attorney at Law


WITNESSES AT HEARING ON APPEAL

Veteran and spouse





ATTORNEY FOR THE BOARD

J.M. Seay, Associate Counsel


INTRODUCTION

The Veteran served on active duty from January 1964 to January 1966. 

This matter comes before the Board of Veterans' Appeals (Board) on appeal from a January 2004 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas, which, in pertinent part, denied service connection for depression, bilateral hearing loss, and rash of the groin.  

Historically, these matters were previously denied by the Board in an August 2007 decision wherein the Board denied the claims for service connection for depression, bilateral hearing loss, rash of the groin area and memory loss.  The Veteran appealed the Board's decision to the United States Court of Appeals for Veterans Claims (Court).  In September 2008, the Court granted a Joint Motion for Remand filed by the parties, which vacated the Board's decision on the first three aforementioned claims, and remanded these matters to the Board.  In January 2009, the Board remanded these matters to the RO for further development.  In September 2010, the Board denied the claims for service connection for depression, bilateral hearing loss, and rash of the groin area.  Again, the Veteran appealed the Board's decision to the Court.  In June 2012, the Court issued a Memorandum Decision vacating the Board's September 2010 decision with respect to the issues of entitlement to service connection for depression and bilateral hearing loss.  The June 2012 memorandum decision did not disturb the portion of the September 2010 Board decision that denied service connection for rash of the groin.  The case has been returned to the Board for review.  

A hearing was held in March 2007 before the undersigned Veterans Law Judge (VLJ).  A transcript of the hearing is associated with the claims file.  


Because the record contains diagnoses of psychiatric disabilities other than depression, the Board has restyled the claim as shown on the title page of this decision.  See Clemons v. Shinseki, 23 Vet. App. 1, 4-5 (2009) (holding that the claimant without medical expertise cannot be expected to precisely delineate the diagnosis of his mental illness; he filed a claim for the affliction that his mental condition, whatever it is, causes him).

The issue of entitlement to service connection for a psychiatric disability is addressed in the REMAND portion of the decision below and is REMANDED to the Department of Veterans Affairs Regional Office.


FINDING OF FACT

Bilateral hearing loss did not manifest in service and sensorineural hearing loss is not manifest within one year thereafter, and the weight of the evidence of record is against a finding that any current hearing loss disability is causally or etiologically related to any aspect of active military service.


CONCLUSION OF LAW

The criteria are not met for service connection for bilateral hearing loss.  38 U.S.C.A. §§ 1110, 1112, 5103, 5103A, 5107(b) (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309, 3.385 (2012).


REASONS AND BASES FOR FINDING AND CONCLUSION

Duties to Notify and Assist

VA has met all statutory and regulatory notice and duty to assist provisions as to the Veteran's claim.  See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326 (2012). Under the VCAA, when VA receives a complete or substantially complete application for benefits, it is required to notify the claimant and his 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) (West 2002); 38 C.F.R. § 3.159(b) (2012).  The United States Court of Appeals for Veterans Claims (Court) held that VA must inform the claimant of any information and 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.  Quartuccio v. Principi, 16 Vet. App. 183 (2002).

Further, in Dingess v. Nicholson, 19 Vet. Ap. 473 (2006), the Court held that, upon receipt of an application for a service connection claim, VA is required to review the evidence presented with the claim and to provide the claimant with notice of what evidence not previously provided will help substantiate his/her claim.  See also 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b).  Specifically, VA must notify the claimant of what is required to establish service connection and must inform him/her that a disability rating and effective date for the award of benefits will be assigned if service connection is awarded.

In this case, the RO issued to the Veteran a letter in June 2003 prior to the appealed January 2004 rating decision.  Therefore, the timing requirement of the notice as set forth in Pelegrini has been met and to decide the appeal would not be prejudicial to the claimant.  The letter satisfied the duty to notify provisions concerning his claim.  38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b)(1); Quartuccio, at 187.  Specifically, this letter apprised him of what the evidence must show to establish entitlement to the benefit sought, what evidence and/or information was already in the RO's possession, what additional evidence and/or information was needed from the Veteran, what evidence VA was responsible for getting, and what information VA would assist in obtaining on the Veteran's behalf.  The Veteran was advised in a separate March 2006 letter regarding the type of evidence necessary to establish a disability rating and effective date.  The Board acknowledges that the March 2006 letter was sent after the initial adjudication of the claim.  However, the claim was readjudicated by the November 2009, February 2010, and March 2010 supplemental statements of the case.  Therefore, any defect in the timing of the notice of this information was harmless.  Prickett v. Nicholson, 20 Vet. App. 370, 377-78 (2006) (VA cured failure to afford statutory notice to claimant prior to initial rating decision by issuing notification letter after decision and readjudicating claim and notifying claimant of such readjudication in the statement of the case).  Further, the purpose behind the notice requirement has been satisfied because the Veteran has been afforded a meaningful opportunity to participate effectively in the processing of his claim, to include the opportunity to present pertinent evidence.  Simmons v. Nicholson, 487 F.3d 892, 896 (Fed. Cir. 2007); Sanders v. Nicholson, 487 F.3d. 881, 887 (Fed. Circ. 2007), rev'd on other grounds, Sanders v. Shinseki, 556 U.S. 396 (2009).

In addition, the duty to assist the Veteran has been satisfied in this case.  The service treatment records, private treatment records, and VA treatment records are associated with the claims file.  The Board notes that VA requested records from Silver Cross Hospital.  In a July 2003 response, it was noted that no records were available for the dates requested.  In an August 2003 letter, the Veteran was informed of the effort made by VA and of the response from Silver Cross Hospital.  Therefore, any further efforts to request records from Silver Cross Hospital would be futile.  38 C.F.R. § 3.159(e).  The Veteran was afforded a VA examination in November 2009 in connection with his claim.  To that end, when VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate.  Barr v. Nicholson, 21 Vet. App. 303, 312 (2007).  The Board notes that the Veteran has asserted that his examination was inadequate.  However, in reviewing the examination report, there is nothing to suggest that the examination was inadequate or cursory.  The November 2009 VA examiner noted that the entire claims file was reviewed, acknowledged the Veteran's reports of in-service noise exposure, and provided a negative nexus opinion based on the personal interview with the Veteran, review of the claims file, and the service treatment records revealing normal hearing at separation from active service.  The Board finds that the examination and opinion is adequate and VA's duty to assist with respect to obtaining a VA examination or opinion with respect to the issue on appeal has been met.  38 C.F.R. § 3.159 (c)(4).

The Board concludes the Veteran was provided the opportunity to meaningfully participate in the adjudication of his claim and did in fact participate.  Washington v. Nicholson, 21 Vet. App. 191 (2007).  Hence, there is no error or issue that precludes the Board from addressing the merits of this appeal.

Service Connection

Service connection may be established for disability resulting from personal injury suffered or disease contracted in the line of duty in the active military, naval, or air service.  38 U.S.C.A. § 1110.  That an injury or disease occurred in service is not enough; there must be chronic disability resulting from that injury or disease.  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).  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 relevant part, 38 U.S.C. § 1154(a) requires that the VA give "due consideration" to "all pertinent medical and lay evidence" in evaluating a claim to disability benefits.  Generally, in order to establish direct service connection for a disorder, there must be (1) medical evidence of the current disability; (2) medical, or in certain circumstances, lay evidence of the in-service incurrence of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the current disability.  Gutierrez v. Principi, 19 Vet. App. 1, 5 (2004) (citing Hickson v. West, 12 Vet. App. 247, 253 (1999)).  However, medical evidence of a current disability and nexus is not always required to establish service connection.  See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009).  Lay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional.  Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007) (footnote omitted).

Competent medical evidence means evidence provided by a person who is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions.  Competent medical evidence may also mean statements conveying sound medical principles found in medical treatises.  It would also include statements contained in authoritative writings such as medical and scientific articles and research reports or analyses.  38 C.F.R. § 3.159(a)(1).  Competent lay evidence means any evidence not requiring that the proponent have specialized education, training, or experience.  Lay evidence is competent if it is provided by a person who has knowledge of facts or circumstances and conveys matters that can be observed and described by a lay person.  38 C.F.R. § 3.159(a)(2).

In rendering a decision on appeal, the Board must analyze the credibility and probative value of the evidence, account for the evidence that it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant.  See Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990).  Competency of evidence differs from weight and credibility.  The former is a legal concept determining whether testimony may be heard and considered by the trier of fact, while the latter is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted.  See Rucker v. Brown, 10 Vet. App. 67, 74 (1997); Layno v. Brown, 6 Vet. App. 465, 469 (1994); see also Cartwright v. Derwinski, 2 Vet. App. 24, 25 (1991) ("Although interest may affect the credibility of testimony, it does not affect competency to testify.").

Service connection for certain diseases, including organic diseases of the nervous system such as sensorineural hearing loss, may be also be established on a presumptive basis by showing that it manifested itself to a degree of 10 percent or more within one year from the date of separation from service.  38 C.F.R.              §§ 3.307(a)(3), 3.309(a).  Presumptive periods are not intended to limit service connection to diseases so diagnosed when the evidence warrants direct service connection.  The presumptive provisions of the statute and VA regulations implementing them are intended as liberalizations applicable when the evidence would not warrant service connection without their aid.  38 C.F.R. § 3.303(d) (2012).

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, or 4000 Hertz is 40 decibels or greater; or when the auditory thresholds for at least three of the frequencies 500, 1000, 2000, 3000, or 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.  The absence of in-service evidence of a hearing disability during service (i.e., one meeting the requirements of 38 C.F.R. § 3.385) is not always fatal to a service connection claim.  See Ledford v. Derwinski, 3 Vet. App. 87, 89 (1992).  Evidence of a current hearing loss disability and a medically sound basis for attributing that disability to service may serve as a basis for a grant of service connection for hearing loss where there is credible evidence of acoustic trauma due to significant noise exposure in service, post-service audiometric findings meeting the regulatory requirements for hearing loss disability for VA purposes, and a medically sound basis upon which to attribute the post-service findings to the injury in service (as opposed to intercurrent causes).  See Hensley v. Brown, 5 Vet. App. 155, 159 (1993).

Bilateral Hearing Loss

The Veteran avers that his current bilateral hearing loss disability is related to his period of active service, including in-service noise exposure.  

The medical evidence shows that the Veteran has a current bilateral hearing loss disability in accord with 38 C.F.R. § 3.385.

The service treatment records are absent for any notations or documentation related to hearing loss, although the Board notes that the Veteran's military occupational specialty (MOS) was mechanic and, therefore, it is reasonable that the Veteran was exposed to noise from his duties during active service.  Nonetheless, the January 1966 separation report of medical history shows that the Veteran denied experiencing hearing loss.  The separation report of medical examination reveals pure tone thresholds, in decibels, as follows:





HERTZ



500
1000
2000
3000
4000
RIGHT
0
0
0

0
LEFT
0
0
0

0

In a November 1997 health questionnaire, the Veteran indicated that he experienced difficulty hearing.  The questionnaire is dated approximately 30 years after the Veteran's separation from active service.  

The Veteran was provided a VA examination in September 2003.  The examiner noted the Veteran's report that he had military noise exposure consisting mostly of aircraft fire, serving on guard duty, and having various types of weapons fire in close proximity.  Subsequent to separation from active duty, the Veteran denied non-military noise exposure.  The diagnosis was bilateral high frequency sensorineural hearing loss.  The VA examiner commented that since his review of the service medical records was negative for hearing loss, and since the Veteran was noted to have normal audiometric thresholds and normal hearing at the time of separation from active duty, it would appear that the Veteran's current bilateral high frequency sensorineural hearing loss occurred subsequent to his active duty.  Therefore, the examiner opined that it was less likely than not that the current hearing loss was related to military service.  

At the March 2007 hearing, the Veteran testified that his primary occupational duty in service was being on guard duty, and that this required him to carry an M-16 machine gun and to shoot the gun every night.  There were also nearby tanks which were frequently the source of some noise.  The Veteran claimed that he immediately started having hearing problems after his return from Vietnam.  The Veteran has since indicated in later correspondence that he did not have ear protection available to him at any point.

The Veteran was provided a VA examination in November 2009.  The examiner completed a review of the claims file, which revealed audiometric thresholds within normal limits at separation, and no other information regarding the Veteran's hearing.  The Veteran reported noise exposure in service as a truck mechanic, and further exposure from engine noise, air tools, gunfire and tanks.  He denied occupational or recreational noise exposure since service.  The VA examiner then commented on the etiology of hearing loss.  It was indicated that the Veteran reported he was exposed to noise throughout his time of service.  However, his separation audiogram recorded thresholds within normal limits bilaterally at separation.  The examiner opined that after review of service treatment records, personal interview and audiometric testing, it was his opinion that the Veteran's hearing loss was less likely as not a result of noise exposure during service.

In considering the above, the Board finds that the most persuasive evidence is against service connection for bilateral hearing loss.  The Veteran's service treatment history is absent for any complaints, symptoms of or treatment for hearing loss.  In fact, the Veteran denied experiencing hearing loss on his report of medical history completed prior to separation from active service.  This notwithstanding, the lack of evidence of hearing loss in service alone is not dispositive, as the Veteran's assertions of noise exposure must receive due consideration.  See Hensley v. Brown, 5 Vet. App. 155, 158 (1993); Ledford v. Derwinski, 3 Vet. App. 87, 89 (1992).  

Nonetheless, in terms of etiology of the Veteran's bilateral hearing loss disability, the Board finds that the November 2009 examiner's opinion is the most persuasive evidence.  The examiner reviewed the entire claims file including the Veteran's statements regarding his hearing loss.  In addition, the examiner noted the Veteran's own reported medical history including his reports of in-service noise exposure.  The examiner then proceeded to rule out in-service noise exposure as the cause of current hearing loss, based on both the service treatment records and the results of his personal interview of the Veteran.  The opinion recognized the Veteran's assertions of noise exposure and the type of noise exposure described, but essentially determined that the absence of any abnormality on the separation audiogram outweighed the significance of his asserted injury.  As the examiner's conclusion followed an extensive examination of the Veteran and claims file review, as well as consideration of reported history, it is accorded great probative weight.  See Prejean v. West, 13 Vet. App. 444, 448-49 (2000) (factors for assessing the probative value of a medical opinion include the medical expert's access to the claims file and the thoroughness and detail of the opinion).

The Board recognizes the Veteran's belief that his bilateral hearing loss disability is related to his period of active service, to include his in-service noise exposure.  Although lay persons are competent to provide opinions on some medical issues, see Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011), the specific issue in this case, the etiology of a hearing loss disability, falls outside the realm of common knowledge of a lay person.  See Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007) (lay persons not competent to diagnose cancer).  While the Veteran is competent to provide statements indicating that he experienced difficulty hearing since service, he cannot diagnose himself with a bilateral hearing loss disability or relate his disability to his period of active service as diagnosing a bilateral hearing loss disability requires medical and diagnostic testing and identifying a medical etiology for a condition requires medical training.  

Further, the record raises some concern as to the Veteran's credibility and reliability as an accurate historian.  Although the Veteran stated in conjunction with the claim for service connection that he had difficulty with hearing since he returned from active service, the Board cannot ignore the fact that on his report of medical history prior to separation, the Veteran denied experiencing hearing loss.  Further, the evidence does not reveal objective treatment or evidence of a bilateral hearing loss disability during service or for decades after separation from active service.   While the Veteran is competent to relate his own observable symptoms the conflict between his assertions in conjunction with this claim, and the findings from the report of medical history and record of treatment diminishes his credibility and the probative value of his statements regarding the onset of his symptoms.  The Board affords more probative value to the VA examiner's opinion.  The examiner considered the entire claims file, including the personal interview with the Veteran, and his reported in-service noise exposure, and provided a negative nexus opinion.  

With respect to continuity of symptomatology, the Veteran has stated that he has had difficulty with hearing since his period of active service.  In the Court's memorandum decision, it was noted that the Board did not adequately address the probative value of the Veteran's statements regarding his difficulty hearing since service.  With respect to his reports of chronic symptoms since service, the Federal Circuit recently held that continuity of symtomatology under 38 C.F.R. § 3.303(b) only applies to those conditions recognized as chronic under 38 C.F.R. § 3.309(a).  Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013).  The Veteran's disability is diagnosed as sensorineural hearing loss and recognized as a chronic condition.  38 C.F.R. § 3.309(a).  Nevertheless, while the Veteran is competent to state that he had difficulty hearing since active service, the Board finds that the Veteran is not credible with respect to his reports related to onset or continuity of symptoms since active service.  The service treatment records are absent for any notations or documentation of hearing problems.  In fact, the Board finds it significant that the Veteran denied experiencing hearing loss upon separation from active service, and that the separation report of medical examination shows that the Veteran's hearing was normal.  The Veteran's assertions today are inconsistent with those made during active service.  See Indiana Metal Prods. v. NLRB, 442 F.2d 46, 51-52 (7th Cir. 1971) (citations omitted) (noting that "definitions of credibility do not necessarily confine that concept to the narrow peg of truthfulness.  It has been termed as 'the quality or power of inspiring belief. . . .' Credibility . . . apprehends the over-all evaluation of testimony in the light of its rationality or internal consistency and the manner in which it hangs together with other evidence.").  In addition, there is no objective evidence of any hearing problems for decades after separation from active service.  In light of the above, the Board finds that the Veteran's assertion that he had hearing problems since service is not credible, and that service connection based on continuity of symptomatology is not warranted.  

After considering all the evidence under the laws and regulations set forth above, the Board concludes that the Veteran is not entitled to service connection for bilateral hearing loss because the most persuasive and credible evidence of record is against a finding of continuity of symptoms since service and against a finding that there is a nexus between a current hearing loss disability and an injury or disease occurring in service.  Accordingly, the Board finds that the preponderance of the evidence is against the Veteran's claim of entitlement to service connection for bilateral hearing loss.  Because the preponderance of the evidence is against the Veteran's claim, the benefit-of-the-doubt provision does not apply.  Therefore, the Board concludes that service connection for bilateral hearing loss is not warranted.  See 38 U.S.C.A. § 5107(b) (West 2002); 38 C.F.R. §§ 3.102, 3.303 (2012).

Finally, where a Veteran served continuously for 90 days or more during a period of war, or during peacetime service after December 31, 1946, and sensorineural hearing loss becomes manifest to a degree of 10 percent within 1 year from date of termination of such service, such disease shall be presumed to have been incurred in service, even though there is no evidence of such disease during the period of service.  See 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 1137 (West 2002); 38 C.F.R. §§ 3.307, 3.309 (2012).  In this case, there is no evidence of hearing loss to a compensable degree within one year of separation from service.  Therefore, service connection on a presumptive basis is also not warranted.


ORDER

Service connection for bilateral hearing loss is denied.  


REMAND

In the Court's memorandum decision, the Court determined that the Board did not sufficiently address the Veteran's lay statements and the testimony of his spouse regarding the onset of his psychiatric symptoms.  The Veteran has reported that his psychiatric symptoms began after his return from service in Vietnam.  His spouse testified during the March 2007 hearing that the Veteran had problems with depression ever since they were married in 1976.  She stated that she witnessed the Veteran having tremors and experiencing difficulty with sleep.  She stated that he eventually began taking medication.  The Board observes that the first mention of depression after separation from active service is in a November 1997 questionnaire in which the Veteran stated that he has experienced depression and noted that he was currently taking Valium.  However, the Veteran has stated that he received mental health treatment shortly after separation from service but that the records were destroyed.  

The Veteran was provided a VA examination in July 2009.  The examiner reviewed the claims file.  The examiner listed diagnoses of depressive disorder, in full remission and anxiety disorder, in partial remission.  The examiner stated that he found it less likely than not that the Veteran's anxiety and depression are secondary to or aggravated by military service.  He did not seek treatment for the issues until much later.  The examiner also noted that the Veteran showed signs of complete remission of depression and partial remission of the anxiety and this is even after he cut down on his medication to where he is only taking one sleeping pill.  However, the Board points out that the Veteran was diagnosed with depression during the period on appeal.  See McClain v. Nicholson, 21 Vet. App. 319 (2007) (the requirement a current disability is satisfied when the claimant has the disability at the time the claim for VA disability compensation is filed or during the pendency of the claim and that a claimant may be granted service connection even though the disability resolves prior to VA's adjudication of the claim).  In addition, the examiner did not appear to take into account the statements of the Veteran that he sought treatment shortly after service (although the records are not available), nor did the examiner consider the statements of the Veteran's spouse.  As stated above, she testified that she witnessed the Veteran being depressed, having tremors, and difficulty sleeping since they were married in 1976 (ten years after the Veteran's separation from active service).  "Once VA undertakes the effort to provide an examination, it must provide an adequate one or, at a minimum, notify the veteran why one will not or cannot be provided."  See Barr v. Nicholson, 21 Vet. App. 303, 311 (2007).  Due to the statements from the Veteran and his spouse regarding treatment after service and the onset of the Veteran's symptoms, the Board finds that a remand for another VA examination and opinion is required to address all of the evidence of record including these statements.  

Accordingly, the case is REMANDED for the following action:

1.  Schedule the Veteran for a medical examination by an appropriate medical professional to determine the nature, extent, and etiology of his psychiatric disability.  All indicated tests and studies should be performed.  The claim folder and a copy of this Remand must be provided to the examiner in conjunction with the examination.  The examiner should list all psychiatric diagnoses (other than posttraumatic stress disorder).  The examiner should provide an opinion as to whether it is at least as likely as not (50 percent probability or more) that any diagnosed psychiatric disability is caused by service, related to service, or had its onset in service.  

In providing the aforementioned opinion, the examiner should address:

* The Veteran's reports of receiving treatment shortly after service (the records of which are not available).

* The Veteran's statements that he has experienced symptoms of depression since his return from service in Vietnam.

* The November 1997 questionnaire wherein the Veteran checked that he experienced depression and was taking Valium.

* The Veteran's wife's testimony that she witnessed the Veteran having tremors, difficulty sleeping, and depression since they were married in 1976 (approximately ten years after separation from active service), and that the Veteran told her that his problems began after his return from active service.  

All opinions expressed must be supported by complete rationale.

2.  Thereafter, the RO must readjudicate the claim.  If the benefit sought remains denied, the Veteran and his representative must be provided a supplemental statement of the case.  After the Veteran and his representative have been given an opportunity to submit additional argument, the appeal must be returned 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).




______________________________________________
DENNIS F. CHIAPPETTA
Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs