Citation Nr: 1322505 Decision Date: 07/15/13 Archive Date: 07/24/13 DOCKET NO. 09-48 680 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Entitlement to service connection for an acquired psychiatric disorder, to include posttraumatic stress disorder (PTSD), on a direct basis or as secondary to the service-connected ischemic heart disease. 2. Entitlement to service connection for neuropathy of the right lower extremity. 3. Entitlement to service connection for neuropathy of the left lower extremity. REPRESENTATION Appellant represented by: Florida Department of Veterans Affairs WITNESSES AT HEARING ON APPEAL The Veteran and his spouse ATTORNEY FOR THE BOARD D. M. Casula, Counsel INTRODUCTION The Veteran had active service from August 1965 to January 1969. This matter comes before the Board of Veterans' Appeals (Board) from an October 2008 rating decision of the above Regional Office (RO) of the Department of Veterans Affairs (VA) which, in pertinent part, denied service connection for PTSD, for neuropathy of the right lower extremity, and for neuropathy of the left lower extremity. In August 2011, the Veteran testified at a Travel Board hearing, at the RO, before the undersigned Veterans Law Judge. In November 2011, the Board remanded this matter for further development, to include obtaining outstanding VA treatment records and scheduling the Veteran for VA examinations. Review of the record, including the Veteran's Virtual VA efolder, reveals that updated VA treatment records were obtained, and that he underwent VA examinations in June 2012. While there was substantial compliance with the portion of the Board's November 2011 remand regarding the VA examination for the claims for service connection for neuropathy of the lower extremities, for reasons set forth below, there was not substantial compliance with the portion of the Board's remand regarding the VA examination for the claim for service connection for an acquired psychiatric disorder; thus remand is warranted. Stegall v. West, 11 Vet. App. 268 (1998). The Board also notes that with regard to the claim for service connection for an acquired psychiatric disorder, this claim was last considered as a direct service connection claim, by the RO, in the September 2012 supplemental statement of the case (SSOC). However, as explained below, the Board finds the claim for service connection for an acquired psychiatric disorder, to include PTSD, must be considered not only on a direct basis, but also as secondary to his service-connected ischemic heart disease. All potential theories of entitlement to a benefit under the law and regulations implicated by the record must be considered. Floyd v. Brown, 9 Vet. App. 88 (1996). This new theory of entitlement does not constitute a new claim and must be considered as part of the entire claim for service connection for an acquired psychiatric disorder. Roebuck v. Nicholson, 20 Vet. App. 307, 313 (2006). For the Board to only address direct service connection would amount to piecemeal adjudication, which is to be avoided. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991). The issue of entitlement to service connection for an acquired psychiatric disorder, to include PTSD, on a direct or secondary basis, is addressed in the REMAND portion of the decision below, and is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the appellant if additional action is required on his part. FINDINGS OF FACT 1. The evidence of record shows that the Veteran served in the Republic of Vietnam during the Vietnam War Era; thus, his exposure to Agent Orange is presumed. 2. The weight of the probative (meaning competent and credible) evidence of record indicates the Veteran's current neuropathy of the right lower extremity began years after active service and was not caused by any incident of service, including herbicide exposure. 3. The weight of the probative (meaning competent and credible) evidence of record indicates the Veteran's current neuropathy of the left lower extremity began years after active service and was not caused by any incident of service, including herbicide exposure. CONCLUSIONS OF LAW 1. Neuropathy of the right lower extremity was not incurred in or aggravated by military service, and may not be presumed to have been. 38 U.S.C.A. § 1110 (West 2002); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2012). 2. Neuropathy of the left lower extremity was not incurred in or aggravated by military service, and may not be presumed to have been. 38 U.S.C.A. § 1110 (West 2002); 38 C.F.R. § 3.303, 3.307, 3.309 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Duty to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA) enhanced VA's duty to notify and assist claimants in substantiating a claim for VA benefits, as codified in pertinent part at 38 U.S.C.A. §§ 5103, 5103A, 5107, 5126; 38 C.F.R. §§ 3.102, 3.159, 3.326(a). Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his representative of any information, and any medical or lay evidence, that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002). Proper notice from 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. 38 C.F.R. § 3.159(b)(1), as amended, 73 Fed. Reg. 23,353 (April 30, 2008). This notice must be provided prior to an initial decision on a claim by the RO. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). The VCAA notice requirements apply to all five elements of a service connection claim: (1) veteran status; (2) existence of disability; (3) connection between service and the disability; (4) degree of disability; and (5) effective date of benefits where a claim is granted. Dingess v. Nicholson, 19 Vet. App. 473, 484 (2006). If complete notice is not provided until after the initial adjudication, such a timing error can be cured by subsequent legally adequate VCAA notice, followed by readjudication of the claim, as in a Statement of the Case or SSOC. Moreover, where there is an uncured timing defect in the notice, subsequent action by the RO which provides the claimant a meaningful opportunity to participate in the processing of the claim can prevent any such defect from being prejudicial. Mayfield v. Nicholson, 499 F.3d 1317, 1323-24 (Fed. Cir. 2007); Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006). The United States Court of Appeals for the Federal Circuit (Federal Circuit) held that any error in VCAA notice should be presumed prejudicial, and that VA bears the burden of proving that such an error did not cause harm. Sanders v. Nicholson, 487 F.3d 881 (Fed. Cir. 2007). However, the United States Supreme Court (Supreme Court) reversed that decision, finding it unlawful in light of 38 U.S.C.A. § 7261(b)(2). The Supreme Court held that - except for cases in which VA failed to meet the first requirement of 38 C.F.R. § 3.159(b) by not informing the claimant of the information and evidence necessary to substantiate the claim - the burden of proving harmful error rests with the party raising the issue, the Federal Circuit's presumption of prejudicial error imposed an unreasonable evidentiary burden upon VA and encouraged abuse of the judicial process, and determinations on the issue of harmless error should be made on a case-by-case basis. Shinseki v. Sanders, 129 S. Ct. 1696 (2009). In this case, the VCAA duty to notify was satisfied by way of letters sent to the Veteran in February 2008 and March 2009 that fully addressed the notice elements, and the first letter was sent prior to the initial RO decision in this matter. These letters informed the Veteran of what evidence was required to substantiate the claims decided herein and of his and VA's respective duties for obtaining evidence. The Board also notes that in these letters, the Veteran was advised of how disability ratings and effective dates are assigned. See Dingess v. Nicholson, supra. Moreover, he has not demonstrated any error in VCAA notice; thus the presumption of prejudicial error as to such notice does not arise in this case. See Sanders v. Nicholson, supra. The Board concludes that all required notice has been given to the Veteran. The Board also finds VA has satisfied its duty to assist the Veteran in the development of the claims decided herein. The RO has obtained all identified and available service and post-service treatment records for the Veteran. In addition, the Veteran underwent a VA examination in June 2012, which included a review of the claims folder and a history obtained from the Veteran, and examination findings were reported, along with diagnoses/opinions, which were supported in the record. The June 2012 VA DBQ (disability benefits questionnaire) examination report is adequate for rating purposes. See Barr v. Nicholson, 21 Vet. App. 303, 310-11 (2007). With regard to the Veteran's hearing in 2011, the Board notes that in Bryant v. Shinseki, the United States Court of Appeals for Veterans Claims (Court) held that 38 C.F.R. § 3.103(c)(2) requires the Veterans Law Judge who chairs a hearing to fulfill two duties: (1) the duty to fully explain the issues and (2) the duty to suggest the submission of evidence that may have been overlooked. Bryant v. Shinseki, 23 Vet. App. 488 (2010). Here, during the August 2011 Travel Board hearing, the undersigned Veterans Law Judge enumerated the issues on appeal, and information was solicited regarding the circumstances, nature of, and history of, the Veteran's neuropathy of the lower extremities, to include whether there were any outstanding medical records. Under these circumstances, nothing gave rise to the possibility that evidence had been overlooked with regard to the Veteran's claims. As such, the Board finds that, consistent with Bryant, the undersigned Veterans Law Judge complied with the duties set forth in 38 C.F.R. 3.103(c)(2) and that the Board may proceed to adjudicate the claims based on the current record. It appears that all obtainable evidence identified by the Veteran relative to his claims has been obtained and associated with the claims folder, and that neither he nor his representative has identified any other pertinent evidence, not already of record, which would need to be obtained for a fair disposition of this appeal. The Board concludes that no further notice or assistance to the Veteran is required to fulfill VA's duty to assist him in the development of the claims. Smith v. Gober, 14 Vet. App. 227 (2000), aff'd 281 F.3d 1384 (Fed. Cir. 2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); see also Quartuccio v. Principi, supra. The Board concludes that VA has satisfied its duty to assist the Veteran in apprising him as to the evidence needed, and in obtaining evidence pertinent to his claims under the VCAA. No useful purpose would be served in remanding this matter for yet more development. Such a remand would result in unnecessarily imposing additional burdens on VA, with no additional benefit flowing to the Veteran. The Court has held that such remands are to be avoided. Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). II. Factual Background Service treatment records (STRs) are negative for any report of or finding of any type of neuropathy of the lower extremities. Service personnel records show that the Veteran served in the Republic of Vietnam from December 1966 to December 1967. VA treatment records shows that in May 2007, the diagnoses included low back pain with neuropathy of the right thigh and right great toe. On a VA examination for Agent Orange in December 2007, the Veteran reported having meralgia paresthetica involving both legs, right leg greater than left. It was also noted that he had some back discomfort and that it was possible that his neurologic symptoms in the lower extremities may be "associated waxing and waning with that". It was also noted that he had problems with numbness involving his toes of both feet, and the examiner indicated that whether this represented peripheral neuropathy associated with metabolic syndrome could only be decided with further observation. In August 2011, the Veteran testified that the numbness in is feet and legs started in the last 10 years. On a VA DBQ examination in June 2012, the diagnosis was atypical sensory polyneuropathy of the bilateral lower extremities. For medical history, it was noted that the Veteran reported that 6 to 7 years prior he began having numbness of the anterior right thigh, big toe, and 2nd and 3rd toes. He also reported having pain in both legs for several years. After conducting a physical examination, the examiner indicated that there was no evidence of a peripheral neuropathy during or following the Veteran's service, and that there was nothing in the records suggesting acute or subacute peripheral neuropathy following Agent Orange exposure. The examiner opined that the Veteran's bilateral lower extremity peripheral neuropathy was not caused by, or a result of, or aggravated by, his active duty service, including his presumed exposure to herbicide agents in Vietnam. The examiner cited for rationale that the opinion was based on review of the medical records, medical literature, and his clinical experience. The examiner indicated that the Veteran denied any symptoms in service and for several years following service that would be consistent with an acute or subacute peripheral neuropathy that is seen with Agent Orange exposure. The examiner noted that the Veteran's neuropathic symptoms began 6 to 7 years ago - more than 35 years after his separation from service - and opined that a nexus could not be made in any manner to his presumed exposure to herbicides in Vietnam. The examiner further noted that the Veteran's clinical records were silent for any work up for this problem, other than lumbar spine x-rays, and the examiner could not determine the etiology of the neuropathy, noting that many cases of neuropathy were idiopathic; however, this could only be concluded after a full evaluation. Finally, the examiner noted that the findings on examination were atypical and he may have two separate conditions contributing to his leg symptoms - neuropathy and possible superimposed lumbar radiculopathy. III. Laws and Regulations Service connection may be granted for disability which is the result of disease or injury incurred in or aggravated by service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303(a). If a chronic disease is shown in service, subsequent manifestations of the same chronic disease at any later date, however remote, may be service connected, unless clearly attributable to intercurrent causes. 38 C.F.R. § 3.303(b). If a condition noted during service is not shown to be chronic, then generally a showing of continuity of symptomatology after service is required for service connection if the disability is one that is listed in 38 C.F.R. § 3.309(a). The Federal Circuit recently held that the theory of continuity of symptomatology under 38 C.F.R. § 3.303(b) does not apply to any condition that has not been recognized as chronic under 38 C.F.R. § 3.309(a). See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). However, peripheral neuropathy, as an organic disease of the nervous system, is such a chronic condition under 38 C.F.R. § 3.309(a). Further, 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 U.S.C.A. § 1113(b); 38 C.F.R. § 3.303(d). In order to prevail on the issue of service connection, there must be medical evidence of a (1) current disability; (2) medical, or in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the present disease or injury. Hickson v. West, 12 Vet. App. 247, 253 (1999). Additionally, for veteran who have served 90 days or more of active service during a war period or after December 31, 1946, certain chronic disabilities, including organic diseases of the nervous system, are presumed to have been incurred in or aggravated by service if manifest to a compensable degree within one year of discharge from service. 38 U.S.C.A. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309. A veteran who served in the Republic of Vietnam during the period from January 9, 1962, thru May 7, 1975, shall be presumed to have been exposed to an herbicide agent, unless there is affirmative evidence to establish that such veteran was not exposed to any such agent during that service. 38 C.F.R. § 3.307. If a veteran was exposed to an herbicide agent during active military, naval, or air service, certain diseases, to include acute and subacute peripheral neuropathy, shall be service-connected if the requirements of 38 C.F.R. § 3.307(a)(6) are met, even if there is no record of such disease during service, provided further that the rebuttable presumption provisions of 38 C.F.R. § 3.307(d) are also satisfied. 38 C.F.R. § 3.309(e). The term acute and subacute peripheral neuropathy means transient peripheral neuropathy that appears within weeks or months of exposure to an herbicide agent and resolves within two years of the date of onset. Id., note 2. VA has determined that a presumption of service connection based on exposure to herbicides used in the Republic of Vietnam during the Vietnam era is not warranted for any condition for which VA has not specifically determined a presumption of service connection is warranted. The Federal Circuit has held that when a claimed disorder is not included as a presumptive disorder, direct service connection may nevertheless be established by evidence demonstrating that the disease was in fact "incurred" during service. See Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994). Lay statements may serve to support a claim for service connection by supporting the occurrence of lay-observable events or the presence of disability or symptoms of disability subject to lay observation. 38 U.S.C.A. § 1153(a); 38 C.F.R. § 3.303(a); Jandreau v. Nicholson, 492 F.3d 1372 (Fed Cir. 2007); Buchanan v. Nicholson, 451 F.3d 1331, 1336 (Fed. Cir. 2006). Although lay persons are competent to provide opinions on some medical issues, see Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011), as to the specific issue in this case, the etiology of peripheral neuropathy falls outside the realm of common knowledge of a lay person. See Jandreau v. Nicholson, supra. Competency must be distinguished from weight and credibility, which are factual determinations going to the probative value of the evidence. Rucker v. Brown, 10 Vet. App. 67, 74 (1997). The Board must assess the credibility and weight of all the evidence, including the medical evidence, to determine its probative value, accounting for evidence which it finds to be persuasive or unpersuasive, and providing reasons for rejecting any evidence favorable to the claimant. See Masors v. Derwinski, 2 Vet. App. 181 (1992); Wilson v. Derwinski, 2 Vet. App. 614, 618 (1992). Equal weight is not accorded to each piece of evidence contained in the record; every item of evidence does not have the same probative value. In evaluating the evidence in any given appeal, it is the responsibility of the Board to weigh the evidence and decide where to give credit and where to withhold the same and, in so doing, accept certain medical opinions over others. Schoolman v. West, 12 Vet. App. 307, 310-11 (1999). In this regard, the Board has been charged with the duty to assess the credibility and weight given to evidence. Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). It is the Board's responsibility to evaluate the entire record on appeal. 38 U.S.C.A. § 7104(a). When there is an approximate balance in the evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. In Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990), the Court held that an appellant need only demonstrate that there is an "approximate balance of positive and negative evidence" in order to prevail. IV. Discussion The Veteran contends that he incurred peripheral neuropathy of the lower extremities due to Agent Orange exposure during his service in Vietnam. His exposure to Agent Orange/herbicides is presumed, as service records show he served in the Republic of Vietnam, during the Vietnam era. 38 C.F.R. § 3.2(f). Medical evidence on file shows a current disability of polyneuropathy of the bilateral lower extremities. The resolution of this appeal therefore turns on whether this disorder is attributable to the Veteran's active military service - either directly or presumptively. The Veteran's claimed disability, neuropathy of the bilateral lower extremities, is not classified as one of the enumerated diseases associated with herbicide exposure under 38 C.F.R. § 3.309(e). In accordance with section 3 of the Agent Orange Act of 1991, Pub. L. 102-4, 105 Stat. 11, the Secretary has entered into an agreement with the National Academy of Sciences (NAS) to review and summarize the scientific evidence concerning the association between exposure to herbicides used in support of military operations in the Republic of Vietnam during the Vietnam Era and each disease suspected to be associated with such exposure. As required by the statute and agreement, the NAS submits a report to the Secretary every two years regarding the results of their review and summarization of the medical literature. The Secretary of VA has determined, based upon Update 2010 and prior NAS reports, that a presumption of service connection based on exposure to herbicides in the Republic of Vietnam is not warranted for chronic peripheral nervous system disorders (other than early-onset peripheral neuropathy). NAS concluded that early onset peripheral neuropathy associated with herbicide exposure is not necessarily a transient condition. In Update 2010, NAS reaffirmed the conclusion in its prior reports that data did not suggest that exposure to herbicides led to the development of delayed-onset chronic peripheral neuropathy. In reviewing the record herein, the Board finds that there is no competent evidence of acute or subacute peripheral neuropathy, and that the VA examiner in 2012 specifically found that there was nothing in the record suggesting he had acute or subacute peripheral neuropathy following Agent Orange exposure. Thus, service connection is not warranted for the claimed neuropathy of the lower extremities based on presumed herbicide exposure under 38 C.F.R. § 3.309(e). Moreover, there is no evidence showing, nor does the Veteran allege, that an organic disease of the nervous system was manifested to a compensable degree within the first post-service year, and thus presumptive service connection is also not warranted under 38 C.F.R. § 3.309(a). Presumptive service connection is precluded in this matter. The Veteran may, however, still establish the necessary linkage for service connection with proof of direct causation. See Stefl v. Nicholson, 21 Vet. App. 120 (2007); see also Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994). In that regard, the Board notes that the Veteran's STRs are negative for any type of neuropathy. The post-service evidentiary record shows that the first medical evidence of any neuropathy was in 2007, and the Veteran testified in 2011 that his leg symptoms, including numbness, had an onset 10 years prior. After reviewing the evidence, the Board also finds that the evidence does not reflect, and the Veteran does not contend, that he had continuous neuropathy symptoms of the lower extremities from service until the present. The evidence does not reflect that any neuropathy was manifested in service or within the first post-service year, nor does the Veteran contend that it did. He has stated that his symptoms of numbness in the legs began in approximately 2001, over 30 years after his separation from service. Moreover, he has never reported continuous symptoms of these conditions since service, and since they were not noted or observed during his service, the provisions of 38 C.F.R. § 3.303(b) regarding continuity of symptomatology since service do not apply. What is missing from the record is competent evidence showing that the Veteran's current polyneuropathy of the lower extremities may be causally related to active service. 38 C.F.R. § 3.303. In that regard, on a VA examination in June 2012, the examiner opined that the Veteran's bilateral lower extremity peripheral neuropathy was not caused by, or a result of, or aggravated by, his active duty service, including his presumed exposure to herbicide agents in Vietnam. The Board finds that the VA examiner's opinion in 2012 was probative and persuasive on the issue of whether the Veteran's neuropathy of the lower extremities may be related to service, was supported with rationale, and also notes that the Veteran has not submitted any competent medical evidence to the contrary. The Board recognizes the Veteran has contended that his neuropathy of the lower extremities is related to Agent Orange exposure in active service. As noted above, lay statements may be competent to support a claim for service connection by supporting the occurrence of lay-observable events or the presence of disability or symptoms of disability subject to lay observation. Likewise, the Veteran is competent to describe symptoms he has experienced in his lower extremities - because this requires only personal knowledge as it comes to him through his senses. However, the Board does not believe that the etiology of neuropathy is subject to lay diagnosis, and, as a lay person, the Veteran is not competent to report that his neuropathy is related to Agent Orange exposure in active service or otherwise due to service. 38 U.S.C.A. § 1153(a); 38 C.F.R. §§ 3.303(a), 3.159(a); Jandreau v. Nicholson, supra; Buchanan v. Nicholson, supra. That is to say, the Board finds no basis for concluding that a lay person would be capable of discerning whether current neuropathy and symptoms had an onset in service, in the absence of specialized training, and the Veteran has not established any specialized training for such qualifications. For these reasons and bases, the Board finds that the weight of the competent and credible evidence of record is against the claim. Accordingly, the preponderance of the evidence is against the claims of service connection for neuropathy of the lower extremities. Consequently, the benefit-of-the-doubt rule does not apply and the claims must be denied. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, supra. ORDER Service connection for neuropathy of the right lower extremity is denied. Service connection for neuropathy of the left lower extremity is denied. REMAND Unfortunately, a remand is required with respect to the issue of service connection for an acquired psychiatric disorder, to include PTSD. First, the Board notes that the issue of entitlement to secondary service connection for an acquired psychiatric disorder has yet to be addressed. Further, the Board finds problematic the opinion rendered by the VA examiner in June 2012. With regard to the claim for service connection for an acquired psychiatric disorder, this claim was last considered as a direct service connection claim, by the RO, in the September 2012 SSOC. However, on the June 2012 VA DBQ examination, the Veteran reported that his depressed mood and anxiety were related to his heart condition, and the VA examiner indicated that the Veteran's "chronic health conditions and subsequent decreases in functioning" were contributing to his current anxiety disorder. Thus, the Board finds that an alternative theory of entitlement to service connection for an acquired psychiatric disorder has been raised. The claim for service connection for an acquired psychiatric disorder must therefore be considered not only on a direct basis, but also as secondary to his service-connected ischemic heart disease. See Floyd v. Brown, supra; see also Harris v. Derwinski, supra. With regard to the secondary service connection claim, the Board notes that under 38 C.F.R. § 3.310(a), any increase in severity of a nonservice-connected disease or injury that is proximately due to or the result of a service-connected disease or injury, and not due to the natural progress of the nonservice-connected disease, will be service connected. However, VA will not concede that a nonservice-connected disease or injury was aggravated by a service-connected disease or injury unless the baseline level of severity of the nonservice-connected disease or injury is established by medical evidence created before the onset of aggravation or by the earliest medical evidence created at any time between the onset of aggravation and the receipt of medical evidence establishing the current level of severity of the nonservice-connected disease or injury. The rating activity will determine the baseline and current levels of severity under the Schedule for Rating Disabilities (38 CFR Part 4) and determine the extent of aggravation by deducting the baseline level of severity, as well as any increase in severity due to the natural progress of the disease, from the current level. 38 C.F.R. § 3.310(a)(b). That regulation permits service connection not only for disability caused by service-connected disability, but also for the degree of disability resulting from aggravation to a nonservice-connected disability by a service-connected disability. 38 C.F.R. § 3.310 (2012); see also Allen v. Brown, 7 Vet.App. 439, 448 (1995). The Veteran essentially contends that he has a psychiatric disorder related to service, or, alternatively related to his service-connected ischemic heart disease. While he initially contended he had PTSD related to active service, on the VA examination in 2012, the examiner concluded that the Veteran did not meet the criteria for a diagnosis of PTSD, and the record does not show that he was ever diagnosed with PTSD. Thus, consideration of whether the Veteran has an acquired psychiatric disorder, other than PTSD, related to service or to a service-connected disability, is for consideration. VA treatment records and the VA examination in 2012 provided various psychiatric diagnoses, including adjustment disorder, bipolar affective disorder, cyclothymia, mood disorder, and anxiety disorder. Thus, the Veteran has a current psychiatric disability (other than PTSD). On the June 2012 VA DBQ examination, the only psychiatric diagnosis noted was anxiety disorder. The examiner noted that the Veteran reported he experienced a depressed mood and anxiety every day, related to his heart condition and the resulting reduction in physical activities and increase in chronic health concerns. The examiner opined that the Veteran's symptoms were not significant for a diagnosis of PTSD and concluded that his trauma-related symptoms were subclinical. The examiner also opined that the Veteran's intercurrent stressors of alcohol abuse, chronic health conditions, and subsequent decreases in functioning were contributing to his current anxiety disorder. The Board notes that once VA undertakes the effort to provide an examination when developing a service connection claim, even if not statutorily obligated to do so, it must provide an adequate one or, at a minimum, notify the claimant why one will not or cannot be provided. Barr v. Nicholson, 21 Vet. App. 303, 31 (2007). After reviewing the VA DBQ examination report from 2012, the Board concludes that such examination is inadequate and another is warranted. First, the VA examiner did not provide an opinion as to whether the Veteran's anxiety disorder was related to active service. Stegall v. West, supra. Second, while the Board acknowledges that the VA examiner indicated generally that the Veteran's chronic health conditions were contributing to his current anxiety disorder, the VA examiner did clarify what "chronic health conditions" were being referred to, and, likewise, the examiner not provide a specific opinion as to whether the Veteran's anxiety disorder was caused or aggravated/worsened by his service-connected ischemic heart disease. Thus, based on the foregoing, the Board concludes that a medical opinion, on the question of whether the Veteran's current psychiatric disorder, anxiety disorder, is as likely as not related to active service, or related to or aggravated by his service-connected ischemic heart disease, is needed. Barr v. Nicholson, supra. Accordingly, the case is REMANDED for the following action: 1. Ensure that the Veteran is properly notified of what evidence is needed to support his claim for secondary service connection under 38 C.F.R. § 3.310. 2. Copies of updated treatment records should be obtained and added to the claims folder. 3. Following completion of the above, forward the claims folder to the VA DBQ examiner from June 2012 for a supplemental opinion. The Veteran may be recalled for examination, if deemed warranted. The examiner should be asked to opine whether it is at least as likely as not (i.e. there is a 50 percent or greater probability) that the Veteran's current psychiatric disorder, anxiety disorder, had an onset in, or is otherwise causally related to, active service. The examiner should also be asked to opine as to whether it is at least as likely as not (i.e. there is a 50 percent or greater probability) that the Veteran's current psychiatric disorder, anxiety disorder (a) was caused, or (b) is aggravated (permanently increased in severity beyond the natural progression) by the Veteran's service-connected ischemic heart disease. If aggravation is found, the examiner should attempt to quantify the degree of additional disability resulting from the aggravation due to service-connected disability, consistent with 38 C.F.R. § 3.310. The examiner should provide supporting rationale for all opinions rendered. If the examiner cannot provide an opinion without resorting to mere speculation, such should be stated along with supporting rationale. In so doing, the examiner shall explain whether the inability to provide a more definitive opinion is the result of a need for additional information, or that he or she has exhausted the limits of current medical knowledge in providing an answer to the particular question. If the prior examiner is not available, or is unable to provide the requested opinion, arrange for the Veteran to undergo VA examination, by an examiner with the appropriate expertise, to obtain the requested medical opinions noted above. 4. Thereafter, readjudicate the claim. If any benefit remains denied, the Veteran and his attorney should be provided an SSOC and given an appropriate opportunity to respond. The case should then be returned to the Board for further consideration, if otherwise in order. The appellant has the right to submit additional evidence and argument on the matter 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). ______________________________________________ BARBARA B. COPELAND Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs