Citation Nr: 1321406	
Decision Date: 07/03/13    Archive Date: 07/12/13

DOCKET NO.  11-26 398	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Columbia, South Carolina


THE ISSUES

1. Entitlement to an effective date earlier than July 12, 2002, for the grant of service connection for tinnitus. 

2. Entitlement to an effective date earlier than July 12, 2002, for the grant of service connection for left ear hearing loss.

3. Entitlement to a compensable rating for service-connected left ear hearing loss.

4. Entitlement to service connection for posttraumatic stress syndrome (PTSD).  

(Multiple issues, including service connection for hepatitis C and a low back disorder are the subject of another decision issued today under a separate docket number.)



REPRESENTATION

Appellant represented by:	The American Legion


WITNESSES AT HEARING ON APPEAL

Veteran and his Mother


ATTORNEY FOR THE BOARD

C. Bruce, Counsel


INTRODUCTION

The Veteran had active military service from June 1972 to June 1975.

This case comes before the Board of Veterans' Appeals (Board) on appeal from October 2004, September 2009, and April 2010 rating decisions of a Regional Office (RO) of the Department of Veterans Affairs (VA). The October 2004 rating decision denied service connection for PTSD. The September 2009 rating decision denied a compensable rating for left ear hearing loss. The April 2010 rating decision denied an effective date prior to July 12, 2002, for left ear hearing loss and tinnitus. The Veteran was granted a 10 percent rating for tinnitus and a noncompensable rating for left ear hearing loss, both effective from July 12, 2002, in a July 2004 rating decision.

A review of the Virtual VA paperless claims processing system does not reveal any additional documents pertinent to the present appeal.

The issues of entitlement to service connection for PTSD and entitlement to an initial compensable rating for left ear hearing loss 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.


FINDINGS OF FACT

1. The Veteran's original claim for service connection for tinnitus was received on July 12, 2002; and no earlier claims for service connection for tinnitus were filed.

2. The Veteran's original claim for service connection for left ear hearing loss was received on July 12, 2002; and no earlier claims for service connection for left ear hearing loss were filed

CONCLUSIONS OF LAW

1. An effective date prior to July 12, 2002, for the grant of service connection for tinnitus is not warranted. 38 U.S.C.A. § 5110 (West 2002); 38 C.F.R. §§ 3.156, 3.400 (2012).

2. An effective date prior to July 12, 2002, for the grant of service connection for left ear hearing loss is not warranted. 38 U.S.C.A. § 5110 (West 2002); 38 C.F.R. §§ 3.156, 3.400 (2012).


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

In this decision the Board will discuss the relevant law which it is required to apply. This includes statutes enacted by Congress and published in Title 38, United States Code ("38 U.S.C.A."); regulations promulgated by VA under the law and published in the Title 38 of the Code of Federal Regulations ("38 C.F.R.") and the precedential rulings of the Court of Appeals for the Federal Circuit (as noted by citations to "Fed. Cir.") and the Court of Appeals for Veterans Claims (as noted by citations to "Vet.App.").

The Board is bound by statute to set forth specifically the issue under appellate consideration and its decision must also include separately stated findings of fact and conclusions of law on all material issues of fact and law presented on the record, and the reasons or bases for those findings and conclusions. See 38 U.S.C.A. § 7104(d); see also 38 C.F.R. § 19.7 (implementing the cited statute); see also Vargas-Gonzalez v. West, 12 Vet.App. 321, 328 (1999); Gilbert v. Derwinski, 1 Vet.App. 49, 56-57 (1990) (the Board's statement of reasons and bases for its findings and conclusions on all material facts and law presented on the record must be sufficient to enable the claimant to understand the precise basis for the Board's decision, as well as to facilitate review of the decision by courts of competent appellate jurisdiction). The Board must also consider and discuss all applicable statutory and regulatory law, as well as the controlling decisions of the appellate courts.

The Board must determine the value of all evidence submitted, including lay and medical evidence. See Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). However, although an obligation to provide sufficient reasons and bases in support of an appellate decision exists, there is no need to discuss, in detail, all of the evidence submitted by the Veteran or on his or her behalf. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (holding that the entire record must be reviewed, but each piece of evidence does not have to be discussed). The analysis in this decision focuses on the most salient and relevant evidence, and on what the evidence shows or fails to show with respect to the issues on appeal. See Timberlake v. Gober, 14 Vet. App. 122 (2000) (noting that the law requires only that reasons for rejecting evidence favorable to the claimant be addressed).

The evaluation of evidence generally involves a three-step inquiry. First, the Board must determine whether the evidence comes from a "competent" source. The Board must then determine if the evidence is credible, or worthy of belief. See Barr v. Nicholson, 21 Vet.App. 303 at 308 (2007) (observing that once evidence is determined to be competent, the Board must determine whether such evidence is also credible). The third step of this inquiry requires the Board to weigh the probative value of the proffered evidence in light of the entirety of the record. 

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). Lay evidence may be competent and sufficient to establish a diagnosis of a condition when:

(1) a layperson is competent to identify the medical condition (i.e., when the layperson will be competent to identify the condition where the condition is simple, for example a broken leg, and sometimes not, for example, a form of cancer);

(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 (Fed. Cir. 2007); see also Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009) (where widow seeking service connection for cause of death of her husband, the Veteran, the Court holding that medical opinion not required to prove nexus between service connected mental disorder and drowning which caused Veteran's death). 

In ascertaining the competency of lay evidence, the Courts have generally held that a layperson is not capable of opining on matters requiring medical knowledge. Routen v. Brown, 10 Vet.App. 183 (1997). In certain instances, however, lay evidence has been found to be competent with regard to a disease with "unique and readily identifiable features" that is "capable of lay observation." See, e.g., Barr v. Nicholson, 21 Vet.App. 303 (2007) (concerning varicose veins); see also Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007) (a dislocated shoulder); Charles v. Principi, 16 Vet.App. 370 (2002) (tinnitus); Falzone v. Brown, 8 Vet.App. 398 (1995) (flatfeet). Laypersons have also been found to not be competent to provide evidence in more complex medical situations. See Woehlaert v. Nicholson, 21 Vet.App. 456 (2007) (concerning rheumatic fever). 
Competent medical evidence is 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 include statements conveying sound medical principles found in medical treatises. It also includes statements contained in authoritative writings, such as medical and scientific articles and research reports or analyses. 38 C.F.R. § 3.159(a)(1).

After determining the competency and credibility of evidence, the Board must then weigh its probative value. In this function, the Board may properly consider internal inconsistency, facial plausibility, and consistency with other evidence submitted on behalf of the claimant. See Madden v. Brown, 125 F.3d 1447 (Fed Cir. 1997) (holding that the Board has the "authority to discount the weight and probative value of evidence in light of its inherent characteristics in its relationship to other items of evidence"); Caluza v. Brown, 7 Vet.App. 498, 511-512 (1995), aff'd, 78 F.3d 604 (Fed. Cir. 1996) (per curiam) (table). 

The standard of proof to be applied in decisions on claims for veterans' benefits is set forth in 38 U.S.C.A. § 5107 (West 2002). A claimant is entitled to the benefit of the doubt when there is an approximate balance of positive and negative evidence. See 38 C.F.R. § 3.102. When a claimant seeks benefits and the evidence is in relative equipoise, the claimant prevails. See Gilbert v. Derwinski, 1 Vet.App. 49 (1990). The preponderance of the evidence must be against the claim for benefits to be denied. See Alemany v. Brown, 9 Vet.App. 518 (1996).

Duties to Assist and Notify

The Veterans Claims Assistance Act of 2000 (VCAA) describes VA's 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); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012). In Dingess v. Nicholson, 19 Vet.App. 473 (2006), the Court of Appeals for Veterans Claims (the Court) found that the VCAA notice requirements applied to all elements of a claim.

In this case, following the award of service connection, and the Veteran's notice of disagreement with the effective date assigned, the RO provided notice of the evidence necessary to substantiate a claim for an earlier effective date in a November 2009 letter and in a September 2011 Statement of the Case (SOC). The Court has held that, as in this case, once a NOD from a decision establishing service connection and assigning the rating and effective date has been filed, the notice requirements of 38 U.S.C.A. §§ 5104 and 7105 control as to the further communications with the appellant, including as to what "evidence [is] necessary to establish a more favorable decision with respect to downstream elements...." Goodwin v. Peake, 22 Vet.App. 128, 137 (2008). There is no duty to provide additional notice as to the issue on appeal.

Further, no VCAA notice is necessary in this case because, as is more thoroughly explained below, the outcome of this earlier effective date claim depends exclusively on documents which are already contained in the Veteran's VA claims folder. The Court has held that a veteran claiming entitlement to an earlier effective date is not prejudiced by failure to provide him with VCAA notice of the laws and regulations governing effective dates, if, based on the facts of the case, entitlement to an earlier effective date is not shown as a matter of law. See Nelson v. Principi, 18 Vet.App. 407, 410 (2004). No additional development could alter the evidentiary or procedural posture of this case. In the absence of potential additional evidence, no notice is necessary. See DelaCruz v. Principi, 15 Vet.App. 143, 149 (2001) (VCAA notice not required where there is no reasonable possibility that additional development will aid the claimant).

VA also has duty to assist veterans in obtaining evidence necessary to substantiate their claims unless no reasonable possibility exists that such assistance would aid in substantiating the claim. In this case, the resolution of the Veteran's claim is dependent on the Court's interpretation of the law and regulations pertaining to claims for VA benefits. As the outcome of this earlier effective date claim rests with evidence which is already in the claims folder, no further development under the VCAA is warranted. See Mason v. Principi, 16 Vet.App. 129, 132 (2002); see generally Dela Cruz v. Principi, 15 Vet.App. 143 (2001); Smith v. Gober, 14 Vet.App. 227, 231-32 (2000); see also Livesay v. Principi, 15 Vet.App. 165 (2001) (en banc) (holding that the VCAA is not applicable where it could not affect a pending matter and could have no application as a matter of law).

The Merits of the Claim

The Veteran contends that his claims for service connection for hearing loss and tinnitus should be granted back to the day after his separation from active duty service, because that was when he originally applied for benefits. Having carefully considered the claim in light of the record and the applicable law, the Board must deny the appeal. 

The provisions for the determination of an effective date of an award of disability compensation are set forth in 38 U.S.C.A. § 5110 (West 2002 & Supp. 2012). Except as otherwise provided, the effective date of the award of an evaluation based on an original claim, a claim reopened after a final disallowance, or a claim for an increase will be the date of receipt of the claim or the date entitlement arose, whichever is later. 38 U.S.C.A. § 5110 ; 38 C.F.R. § 3.400 (2012). Under VA laws and regulations, a specific claim in the form prescribed by the VA must be filed in order for benefits to be paid or furnished to any individual under laws administered by the VA. 38 U.S.C.A. § 5101(a); 38 C.F.R. § 3.151(a). Any communication or action indicating intent to apply for one or more benefits under laws administered by the VA, and identifying the benefits sought, may be considered an informal claim. 38 C.F.R. § 3.155(a).

A specific claim in the form prescribed by the Secretary of VA must be filed in order for benefits to be paid to any individual under the laws administered by the VA. 38 U.S.C.A. § 5101(a). Any communication or action indicating an intent to apply for one or more VA benefits may be considered an informal claim. 38 C.F.R. § 3.155. An informal claim must identify the benefit sought. An "application" is defined as a formal or informal communication in writing requesting a determination of entitlement or evidencing a belief in entitlement to a benefit. 38 C.F.R. § 3.1(p) (2012); see also Rodriguez v. West, 189 F.3d. 1351 (Fed. Cir. 1999).

The Veteran stated in an April 2009 letter that he wanted his benefits to be granted from January 9, 1978, the date on which he signed power of attorney over to the State Department of Veterans' Services. He further stated that this was when he initially filed a claim for benefits. The Veteran has also contended that his claims should be effective from the time he separated from active duty service.

In July 2002, the Veteran filed his original claim for service connection for left ear hearing loss and tinnitus. The RO granted the claims in a July 2004 rating action. The RO assigned a 10 percent disability rating for tinnitus and a noncompensable rating for left ear hearing loss, both claims were made effective from July 12, 2002.

The evidence of record clearly shows that the Veteran first filed a claim for hearing loss and tinnitus, on July 12, 2002. The Board has reviewed the claims file in an attempt to find a basis for the award of an earlier effective date. Prior to July 12, 2002, there is no document of record that could be construed as a formal or informal claim for service connection for left ear hearing loss or tinnitus, in accordance with the provisions of law as to the recognition of informal claims.

VA is not required to anticipate any potential claim for a particular benefit where no intention to raise it was expressed. See Brannon v. West, 12 Vet. App. 32, 35 (1998) (holding that before VA can adjudicate a claim for benefits, "the claimant must submit a written document identifying the benefit and expressing some intent to seek it"). See Talbert v. Brown, 7 Vet. App. 352, 356-57 (1995).

There is evidence showing that the Veteran stated that he had problems with hearing loss and tinnitus for more than 25 years prior to the filing of his claim. However, there is no document in the record noting the Veteran's intent to seek service connection for left ear hearing loss or tinnitus earlier than July 12, 2002. To support his claim, the Veteran provided a copy of a February 1985 letter from the VA which noted that his claim was being processed. The February 1985 letter was previously of record; however, the letter did not pertain to the issues of entitlement to service connection for tinnitus and left ear hearing loss, but rather to a claim for Chapter 34 benefits. 

In conclusion, as there is no document of record that constitutes a formal or informal claim for tinnitus or left ear hearing loss prior to July 12, 2002, the preponderance of the evidence is against the Veteran's claims for an earlier effective dates for the grant of service connection for tinnitus and service connection for left ear hearing loss. 38 U.S.C.A. § 5107(b). The appeal is denied.


ORDER

Entitlement to an effective date earlier than July 12, 2002, for the grant of service connection for tinnitus is denied.

Entitlement to an effective date earlier than July 12, 2002, for the grant of service connection for left ear hearing loss is denied.


REMAND

After review of the record, the Board finds that a remand for further development is warranted with respect to the issues of entitlement to a compensable rating for left ear hearing loss and entitlement to service connection for PTSD.

The Veteran's service-connected left hearing loss is currently evaluated as noncompensable. The Veteran's current noncompensable rating is based on a December 2002 VA examination. The RO scheduled the Veteran for a VA examination on June 5, 2009. However, on June 12, 2009, the Veteran requested that his claim be evaluated on treatment records from the VA Medical Center (VAMC) in Augusta, GA. Those records did not have the audiometric measurements necessary to adequately evaluate the Veteran's hearing. 

VA's duty to assist includes, when appropriate, the duty to conduct a thorough and contemporaneous examination of the Veteran. Green V. Derwinski, 1 Vet. App. 121 (1991). However, the Veteran failed to report for his VA examination. The duty to assist is not a one-way street. Olsen v. Principi, 3 Vet. App. 480 (1992). It is the Veteran's responsibility to present and support his claim. 38 U.S.C.A. § 5103 (West 2002 and Supp. 2009). 

The failure to report to a scheduled examination, without good cause, may result in a denial of claims for increased ratings. See 38 C.F.R. § 3.655 (2011). However, given that the claim must be remanded to obtain audiometric measurements to determine the Veteran's hearing loss, the Veteran will be afforded an additional opportunity to report for a VA examination. 

The Veteran contends he has PTSD as a result of his active duty service. Generally, service connection for PTSD requires medical evidence establishing a diagnosis of the disorder, credible supporting evidence that the claimed in-service stressor(s) occurred, and a link, established by medical evidence, between current symptomatology and the claimed in-service stressor(s). 38 C.F.R. § 3.304(f) (2012). With regard to the second PTSD element as set forth in 38 C.F.R. § 3.304(f), evidence of an in-service stressor, the evidence necessary to establish that the claimed stressor actually varies depending on the circumstances of the stressor and the nature of a Veteran's service.

The DSM-IV (American Psychiatric Association: Diagnostic and Statistical Manual of Mental Disorders (4th ed. 1994)) provides two requirements as to the sufficiency of a stressor: (1) A person must have been "exposed to a traumatic event" in which "the person experienced, witnessed, or was confronted with an event or events that involved actual or threatened death or serious injury, or a threat to the physical integrity of self or others" and (2) "the person's response [must have] involved intense fear, helplessness, or horror." DSM-IV at 427-28. These criteria are no longer based solely on usual experience and response but are individualized (geared to the specific individual's actual experience and response). Hence, under the DSM-IV, the mental illness of PTSD would be treated the same as a physical illness for purposes of VA disability compensation in terms of a predisposition toward development of that condition. Cohen v. Brown, 10 Vet. App. 128, 141 (1997).
In Zarycki v. Brown, 6 Vet. App. 91 (1993), the United States Court of Appeals for Veterans Claims (Court) held that the presence of a recognizable stressor is the essential prerequisite to support the diagnosis of PTSD.

The Veteran has claimed multiple stressors while he was stationed in an infantry unit in Germany. The Veteran alleges that je was assaulted and strangled by a Sergeant who was trying to provoke him into an altercation; that he was assigned to guard several soldiers who had been chained to their beds to undergo detoxification from heroin use; that a stabbing victim dropped dead in front of him; that he saw another accidental stabbing while someone was demonstrating a protective jacket; that he witnessed a serious accident on the Autobahn; that he observed an individual fall from a roof in front of him in the evening hours, after which he discovered their brain matter on his boots; and that he saw someone fall down stairs and break their neck. The Veteran's mother has stated that he called her from Germany after each of these stressful events. 

Currently, the Veteran's claimed stressors have not been verified. The Veteran's DD 214 shows that he was an infantryman in a peacetime environment and had 2 years, 4 months, 15 days of foreign service in Germany. He received the National Defense Service Medal. His DD 214 does not show that fear of hostile military action is consistent with the places, types, and circumstances of his service. The Veteran's personnel file is of record. The RO did not issue a Formal Finding with regard to verification of the Veteran's claimed stressors. 

The Board notes that there is evidence of discipline issues during active duty. The Veteran's service personnel records revealed two actions under Article 15 of the Uniform Code of Military Justice for failing to be at his appointed place of duty at the prescribed time; and disrespect towards a superior, noncommissioned officer. In December 1973 a physical profile noted that the Veteran had emotional and attitudinal problems which could compromise his judgment and reliability due to adjustment problem. It was further noted that transitional support might be required through the local CDAAC, alcohol and drug abuse rehabilitation program.

While the Veteran has not been diagnosed on Axis I with PTSD, there is evidence that he has had a positive screen for PTSD and has been diagnosed with minor PTSD. However, the basis of the physician's assessments are unknown, given the current state of the record with no substantiation of the claimed stressors. 
The Veteran has also been diagnosed with other Axis I diagnoses including depression and anxiety. Clemons v. Shinseki, 23 Vet. App. 1 (2009). 

Accordingly, the case is REMANDED for the following action:

1. Attempt to obtain any outstanding VA treatment records that may exist. In particular, obtain any available treatment records from Augusta, GA, VAMC. If no records are available, the claims folder must indicate this fact and the Veteran should be notified in accordance with 38 C.F.R. § 3.159(e) (2012).

2. The RO shall schedule the Veteran for a VA audiometric examination in order to determine the current severity of the Veteran's left ear hearing loss.

The following considerations will govern the examination:

(a) The claims file and a copy of this remand will be made available to the examiner, who will acknowledge receipt and review of these materials in any report generated as a result of this remand.

(b) If deemed appropriate by the examiner, the Veteran must be scheduled for further medical examinations. All indicated tests and studies must be performed, and any indicated consultations must be scheduled.

(c) The examination must include a controlled speech discrimination test (Maryland CNC) and a pure tone audiometric test. For the left ear, pure tone audiometric thresholds, in decibels, must be recorded for each of the frequencies of 1,000, 2,000, 3,000, and 4,000 Hertz, as well as controlled speech discrimination testing (Maryland CNC) (reported in percentages of discrimination). 

(d) The examiner must provide findings as to the impact of the Veteran's left ear hearing loss on his social and occupational functioning and his ordinary activities of daily living.

(e) In all conclusions, the examiner must identify and explain the medical basis or bases, with identification of the evidence of record.

(f) The examiner is requested to provide a FULLY REASONED EXPLANATION for his or her opinions, based on his or her clinical experience, medical expertise, and established medical principles.

(g) The examiner is advised that by law, an examiner's statement that an opinion is based on the medical expertise of the examiner, but without a fully reasoned explanation, is not a legally sufficient opinion and will likely result in a return of the claim to the examiner.

3. THE VETERAN WILL SUBMIT A DETAILED LISTING OF ALL CLAIMED STRESSORS, TO INCLUDE THE DATES, TIMES, AND LOCATIONS OF ALL INCIDENTS; THE NAMES, MILITARY UNITS, AND RANKS OF THE WITNESSES AND VICTIMS OF ANY ASSAULTS AND ACCIDENTS; WHETHER AND UNDER WHAT CIRCUMSTANCES HE PROVIDED WITNESS STATEMENTS OR TESTIFIED AT COURT-MARTIAL PROEEDINGS OR INVESTIGATION AND ANY OTHER INFORMATION DEEMED APPROPRIATE BY THE RO. 
 The RO/AMC should prepare a summary of Veteran's claimed stressors taking into account all information in the service records. The stressor summary should include whether there is evidence that: he was assaulted by a Sergeant who was trying to provoke him into an altercation, that soldiers who were under detoxification for heroin were chained to their beds, that he witnessed the death of multiple stabbing victims, that he witnessed a serious accident on the Autobahn, that he witnessed someone fall from a roof in front of him, or that he saw someone fall down stairs and break his neck. The stressor summary, together with a copy of the DD 214 and this remand, and all pertinent documents, should be sent to the U.S. Army and Joint Services Records Research Center (JSRRC). That agency should be asked to provide all information that might corroborate the Veteran's alleged stressors. To the extent the JSRRC is unable to confirm any claimed stressor, the RO should subsequently undertake any further steps necessary to attempt to verify the stressor.

All records and responses received must be associated with the claims file.

4. Then, the RO/AMC must schedule the Veteran for a VA psychiatric examination by a BOARD OF TWO MENTAL HEALTH CARE EXAMINERS. The purpose of the examination is to determine the nature of the Veteran's claimed psychiatric disorder and whether any identified disorder began during active service or is related to any incident of service.

The following considerations must govern the examination:

(a). The claims file and a copy of this remand must be made available to the physician, who must acknowledge receipt and review of these materials in any report generated.

(b). The examiners must review all medical evidence associated with the claims file. In particular, the Board draws the physicians' attention to the in-service, Article 15 hearings for failing to be at his appointed place of duty at the prescribed time and for disrespecting a superior, noncommissioned officer and the December 1973 a physical profile noted that the Veteran had emotional and attitudinal problems which could compromise his judgment and reliability due to adjustment problem. 

(c). ALL CLINICAL TESTING MUST BE ACCOMPLISHED. The physicians must consider the Veteran's lay testimony and the statements from the Veteran's mother which report ongoing psychiatric problems since service and determine and note in his or her report whether there is a medical basis for corroborating or discounting the credibility or reliability of the Veteran.

(d). All indicated tests and studies must be performed.

(e). The physician must provide a diagnosis for any psychiatric disorder found from considering the claims file and from examining the Veteran.

(f). For any psychiatric disability diagnosed, the physician must specifically opine whether that disability (1) began during service, or (2) is related to any incident of service.

(g). In all conclusions, the physician must identify and explain the medical bases of his or her opinion with reference to the claims file.

(h). The mere statement of the examiner's expertise and/or a bare summary conclusion is not alone sufficient under the law to accomplish VA's legal obligation to assist the Veteran. By law, the Board must evaluate multiple factors in determining whether medical opinions are sufficient to evaluate a claim. These factors include but are not limited to whether the examiner was aware of all facts of record; reviewed the claims folder; conducted any necessary clinical testing or interview with the Veteran, and whether the examiner explained the factual and medical bases for any opinion.

5. After completing all indicated development, the RO/AMC must readjudicate the Veteran's claims in light of all the evidence of record. If the benefits sought on appeal remain denied, then the Veteran and his representative must be furnished a fully responsive Supplemental Statement of the Case (SSOC) and afforded a reasonable opportunity for response. Thereafter, if indicated, the case must be returned to the Board for the purpose of appellate disposition.

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).

THE BOARD PRESENTLY REITERATES THAT THE VETERAN HAS THE RESPONSIBILITY UNDER THE LAW TO PRESENT AND SUPPORT A CLAIM FOR BENEFITS, TO INCLUDE COOPERATING WITH VA'S EFFORTS TO SUBSTANTIATE HIS CLAIMS. HE IS ADVISED THAT WITHOUT DETAILED INFORMATION AS REQUESTED ABOVE TO RESEARCH HIS CLAIMED STRESSORS, HIS APPLICATION IS NOT COMPLETE AND MAY BE DENIED. 

THE VETERAN IS ALSO ADVISED THAT HE SHOULD REPORT TO ANY SCHEDULED VA EXAMINATIONS, OR THE CLAIMS MAY BE DENIED. 

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).



______________________________________________
Vito A. Clementi
Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs