Citation Nr: 1325816 Decision Date: 08/15/13 Archive Date: 08/26/13 DOCKET NO. 11-01 518 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Atlanta, Georgia THE ISSUES 1. Entitlement to service connection for Post-Traumatic Stress Disorder (PTSD). 2. Entitlement to service connection for an acquired psychiatric disorder, other than PTSD, to include Adjustment Disorder with Anxious Mood. 3. Entitlement to service connection for a low back disability. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD Antoinette Chance, Associate Counsel INTRODUCTION The Veteran served on active duty with the United States Army from July 1966 to July 1969. He is in receipt of the Combat Infantryman's Badge based upon his service in the Republic of Vietnam. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a June 2007 rating decision by the Atlanta, Georgia, Regional Office (RO) of the United States Department of Veterans Affairs (VA), which denied service connection for Post-Traumatic Stress Disorder (PTSD) and arthritis of the back. It is noted that the RO had certified on appeal an October 2008 rating decision that had determined that the requisite new and material evidence had not been received to reopen previously denied claims of entitlement to service connection for PTSD and arthritis of the back based upon a finding that the June 2007 rating decision had become final. The Board notes, however, that in August 2007, the Veteran had submitted to the RO what he characterized as a "request for reconsideration" of his claims of service connection for PTSD and arthritis of the back, explicitly stating that the reasoning of the June 2007 rating decision was "not true." This statement can be reasonably construed as a disagreement with the determination ("not true") and a desire for appellate review ("request for reconsideration"). As such, the Board finds the Veteran's August 2007 request to be a Notice of Disagreement (NOD) with the June 2007 rating decision. See 38 U.S.C.A. § 20.201 (2012). Consequently, the June 2007 rating decision did not become final. As such, the Board will address these as original claims on the merits obviating the necessity to conduct analyses under the new and material evidence criteria. For reasons that will be explained in greater detail below, the Board has included an issue of service connection for a disability characterized as "an acquired psychiatric disorder other than PTSD" in order to include all possible disorders. See Clemons v. Shinseki, 23 Vet. App. 1, 5 (2009) (holding that when a claimant makes a claim, he is seeking service connection for symptoms regardless of how those symptoms are diagnosed or labeled). In addition, the Board has re-characterized the issue of arthritis of the back as a "low back disability" to comport with the evidence of record, the Veteran's allegations, and the applicable law. The Board has not only reviewed the Veteran's physical claims file but also the electronic records maintained in the Virtual VA system to ensure review of the totality of the evidence. Although the Veteran initially requested a Board hearing in Washington, DC, he later cancelled this request and as such his request is considered withdrawn. The issue of entitlement to service connection for PTSD is addressed in the REMAND portion of the decision below and is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDINGS OF FACT 1. The Veteran has a current diagnosis of Adjustment Disorder with Anxious Mood that has been related by competent evidence to his period of military service. 2. A chronic low back disability was not shown in service or for many years thereafter, and the Veteran's current low back disability is not related to service. CONCLUSIONS OF LAW 1. An Adjustment Disorder with Anxious Mood was incurred in or aggravated by service. 38 U.S.C.A. §§ 1101, 1110, 5107 (West 2002 & Supp. 2012); 38 U.S.C.A. §§ 3.102, 3.303, 3.304 (2012). 2. A low back disability was not incurred in or aggravated by service and may not be presumed to have been so incurred. 38 U.S.C.A. §§ 1101, 1110, 1131, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304, 3.307, 3.309 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duties to Notify and Assist With respect to the Veteran's claims, VA has met all statutory and regulatory notice and duty to assist provisions. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012). The Board is granting in full the benefit sought on appeal pertaining to the Adjustment Disorder with Anxious Mood. Accordingly, any error committed with respect to either the duty to notify or the duty to assist was harmless and will not be further discussed. With respect to the low back disability, under the VCAA, when VA receives a complete or substantially complete application for benefits, it is required to notify the Veteran and his or her 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); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002). In Pelegrini v. Principi, 18 Vet. App. 112, 120-21 (2004) (Pelegrini II), the United States Court of Appeals for Veterans Claims (Court) held that VA must inform the Veteran of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; (3) that the Veteran is expected to provide; and (4) request that the Veteran provide any evidence in his or her possession that pertains to the claim. The requirement of requesting that the Veteran provide any evidence in his possession that pertains to the claim was eliminated by the Secretary during the course of this appeal. See 73 Fed. Reg. 23353 (final rule eliminating fourth element notice as required under Pelegrini II, effective May 30, 2008). Thus, any error related to this element is harmless. VCAA letters dated in February and October 2007 fully satisfied the duty to notify provisions. See 38 U.S.C.A. § 5103(a) (West 2002 & Supp. 2012); 38 C.F.R. § 3.159(b)(1) (2012); Quartuccio, at 187. The Veteran was advised that it was ultimately his responsibility to give VA any evidence pertaining to the claim. The letters informed him that additional information or evidence was needed to support his claim, and asked him to send the information or evidence to VA. See Pelegrini II, at 120-121. The February 2007 letter also explained to the Veteran how disability ratings and effective dates are determined. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). The Board also concludes VA's duty to assist has been satisfied. The Veteran's service treatment records, VA medical treatment records, and private treatment records from Dr. M have been obtained. The Veteran has at no time referenced outstanding records that he wanted VA to obtain or that he felt were relevant to the claim. 38 U.S.C.A. § 5103A, 38 C.F.R. § 3.159. The Veteran has not indicated, and the record does not contain evidence, that he is in receipt of disability benefits from the Social Security Administration. 38 C.F.R. § 3.159(c)(2). The duty to assist also includes providing a medical examination or obtaining a medical opinion when such is necessary to make a decision on the claims, as defined by law. See 38 C.F.R. § 3.159(c)(4). A VA spine examination was conducted in September 2008; the Veteran has not argued, and the record does not reflect, that this examination was inadequate for rating purposes. 38 C.F.R. § 3.159(c) (4); Barr v. Nicholson, 21 Vet. App. 303, 307 (2007). The September 2008 examiner performed all of the required testing needed to determine presence of a low back disability and its origin. As will be discussed in greater detail below, the examiner's opinion was based on review of the claims file and available medical records, the Veteran's reported history, his current symptoms, and a physical examination. The Board, therefore, finds the September 2008 VA examination report to be thorough, complete, and sufficient upon which to base a decision with respect to the Veteran's claim for service connection. See Barr v. Nicholson, 21 Vet. App. 303, 312 (2007) (when VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate). There is no indication in the record that any additional evidence, relevant to the Veteran's back disability is available and not part of the claims file. See Pelegrini v. Principi, 18 Vet. App. 112 (2004). Although the Veteran explicitly states in his VA Form 9 that additional treatment records relevant to his PTSD claim exists, he makes no indication of outstanding records pertaining to his back. As there is no indication that any failure on the part of VA to provide additional notice or assistance reasonably affects the outcome of the case, the Board finds that any such failure is harmless. See Mayfield v. Nicholson, 20 Vet. App. 537 (2006); see also Dingess/Hartman, 19 Vet. App. at 486; Shinseki v. Sanders/Simmons, 129 S. Ct. 1696 (2009). Merits of the Claims The Veteran alleges that his current psychiatric disorder is related to in-service combat-related stressors sustained while on active duty, and that his current low back disability is related to a January 1968 injury that he sustained during combat service. The Veteran believes that he is thus entitled to service connection for his acquired psychiatric disorder and his low back disability. 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, 1131 (West 2002). 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) (2012). Service connection may also be granted for any injury or disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease or injury was incurred in service. 38 C.F.R. § 3.303(d). Service connection may be established for a current disability on the basis of a presumption under the law that certain chronic diseases, to include arthritis, manifesting themselves to a certain degree within a certain time after service must have had their onset in service. 38 U.S.C.A. §§ 1112, 1113, 1137 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.303, 3.304, 3.307, 3.309(a) (2012). To establish a right to compensation for a present disability on a direct basis, a Veteran must show: "(1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service." Davidson v. Shinseki, 581 F.3d 1313, 1315-16 (Fed. Cir. 2009); Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). If there is no evidence of a chronic condition during service or during an applicable presumptive period, then a showing of continuity of symptomatology after service is required to support the claim. The U.S. Court of Appeals for the Federal Circuit recently clarified that the continuity of symptomatology language in § 3.303(b) is limited to chronic diseases such as arthritis found in 38 C.F.R. § 3.309(a). Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Service connection may also be granted for disease that is diagnosed after discharge from active service, when the evidence establishes that such disease was incurred in service. 38 C.F.R. § 3.303(d). 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). Competent lay evidence is 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). This may include some medical matters, such as describing symptoms or relating a contemporaneous medical diagnosis. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). In determining whether service connection is warranted for a disability, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. 38 U.S.C.A. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination, the benefit of the doubt is afforded the claimant. Adjustment Disorder with Anxious Mood In the instant case, the Veteran has a current diagnosis of adjustment disorder with anxious mood. This diagnosis was rendered during the Veteran's September 2008 VA examination. Thus, the first element of service connection is satisfied- current disability. Next, the Veteran must have endured an in-service injury or event. As the Veteran was actively engaged in combat during the time of the alleged stressors, the combat presumption is considered. The combat presumption means that in the case of a Veteran who engaged in combat with the enemy in a period of war, lay evidence of in-service incurrence or aggravation of a disease or injury shall be accepted if consistent with the circumstances, conditions, or hardships of such service, notwithstanding the lack of official record of such incurrence or aggravation. 38 U.S.C.A. § 1154(b); 30 C.F.R. §3.304 (d); Libertine v. Brown, 9 Vet. App. 521, 524 (1996). The phrase "engaged in combat with the enemy" requires that the Veteran have personally participated in events constituting an actual fight or encounter with a military foe or hostile unit or instrumentality. VAOPGCPREC 12-99 (October 18, 1999); Gaines v. West, 11 Vet. App. 353 (1998). Although 38 U.S.C. 1154(b) lowers the evidentiary burden for establishing the presence of a disease or injury in service, it does not negate the need for medical evidence of a current disability and medical evidence of a nexus between a current disability and honorable service. Libertine, 9 Vet. App. at 524. In the present case, the Veteran was an armor specialist/gunner in the United States Army. He received the Combat Infantry Badge (CIB) and the Army Commendation Medal with Valor for his combat service and bravery. The Veteran alleges that while in combat, he witnessed multiple gruesome killings, was charged with the duties of identifying the bodies of his fellow soldiers and placing them in body bags to be returned to the states, as well as other disturbing tasks. In light of the Veteran's combat, the Board will presume that the Veteran's allegations of the events taking place are true because they are consistent with his combat service. Therefore, the Veteran has successfully satisfied the second element of service connection with the combat presumption- an in-service event. Finally, there must be a nexus or a relationship between the Veteran's current disability and the combat-related stressors that he endured. The Veteran was afforded a VA examination in September 2008 in which the examiner opined that the current diagnosis of adjustment disorder with anxious mood was probably (indicating a greater than 50 percent possibility) caused by traumatic events in the military service. There is no contrary evidence or medical opinion. As such, the final element of service connection is satisfied. In summary, the evidence of record supports a finding that an acquired psychiatric disorder, specifically an adjustment disorder with anxious mood, was incurred in service. Low Back Disability As noted, to be successful in a claim of direct service connection there is generally required three elements: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) competent evidence of a causal relationship between the present disability and the disease or injury incurred or aggravated during service. The Veteran has a current diagnosis of chronic lumbosacral strain. This diagnosis was rendered during the Veteran's September 2008 VA spine examination. Thus, the first element of service connection is satisfied - current disability. Next, the Veteran must have endured an in-service injury or event. The Veteran contends that his current low back disability is a result of a January 1968 incident in which his military vehicle hit a booby trapped 8 inch artillery round causing an explosion underneath the vehicle. The Veteran contends that he was knocked to the floor of the vehicle and landed on ammo boxes. As the Veteran was actively engaged in combat during the time of the alleged event, the Board will presume that the allegations are true because they are consistent with his combat service. 38 U.S.C.A. § 1154(b). Therefore, the Veteran has successfully satisfied the second element of service connection - an in-service injury or event. Thus, this case turns upon whether there is a nexus or relationship between the Veteran's current low back disability and service, including the combat-related event that he endured. In order to address that question, the Veteran was afforded a VA spine examination in September 2008. Following the examination of the Veteran and a review the claims file, the examiner opined that the Veteran's back disability was not at least as likely as not caused by his military service because of the delayed onset and due to the lack of evidence of treatment during service. Specifically, the examiner noted that the history given by the Veteran was that he started having back pain almost 15 years after the alleged incident in service and there was no evidence in his service treatment records to indicate any treatment or complaint of a back injury following the January 1968 incident. The examiner explained that "with no original complaints of back pain to connect this to and a delay of a number of years before the symptoms were first noted, does not indicate any connection [of the current low back disability] with the incident in [January] 1968." As this opinion was based upon a review of the record and examination of the Veteran, and is supported by a sound rationale with reference to the medical evidence, it has high probative value. The Veteran has offered no other medical evidence or opinions regarding whether his current low back disability is related to service. The Board has, however, considered his contentions that it is so related. In that regard, the Board acknowledges that the Veteran can attest to observed physical symptoms, such as back problems and his assertions in that regard are entitled to some probative weight. See Washington v. Nicholson, 19 Vet. App. 362, 368 (2005). That said, there is no evidence of record that the Veteran has any medical expertise. As to non-expert or lay opinions with regard to diagnoses or a relationship of a condition to service ("nexus"), whether such opinions are competent evidence depends on the question at issue and the particular facts of the case. Although it is error to categorically reject a non-expert nexus opinion, not all questions of nexus are subject to non-expert opinion. See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009). In Davidson, the U.S. Court of Appeals for the Federal Circuit (Federal Circuit) drew from its earlier decision in Jandreau v. Nicholson to explain its holding. Id. In that earlier decision, the Federal Circuit stated as follows: "[l]ay 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). The Federal Circuit provided an example, stating that a layperson would be competent to identify a simple condition such as a broken leg, but not competent to provide evidence as to a more complex medical question such as a form of cancer. Id at n.4. Also of note is that the Court has explained that non-expert witnesses are competent to report that which they have observed with their own senses. See Layno v. Brown, 6 Vet. App. 465, 469 (1994). Taking that decision together with the explanation in Layno, leads the Board to the conclusion that whether a non-expert nexus opinion or diagnosis is competent evidence depends on the complexity of the particular question and whether a nexus opinion could be rendered based on personal observation. Here, the question of whether his current low back disability is due a January 1968 injury during service, or any other incident of service, is a complex question and answering that question is not possible from mere observation with the five senses. The Board finds such a conclusion particularly appropriate in this case, given the complex nature of the Veteran's low back symptomatology. As such, the Board ascribes far more weight to the conclusions of the September 2008 medical professional who concluded that the Veteran's current low back disability was not related to his in-service injury. In efforts to support his claim for entitlement to service connection for his low back disability, the Veteran offers lay evidence in the form of two buddy statements from fellow soldiers who were also present aboard that vehicle that endured the explosion. Such evidence is competent to corroborate the Veteran's allegation that the 1968 event took place, however it is not competent to set forth a cause or etiology for the Veteran's current back disability. See Layno v. Brown, 6 Vet. App. 465, 471(1994) (finding that competent evidence is limited to that which the witness has actually observed, and is within the realm of his personal knowledge); See also Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). In fact, the September 2008 VA examiner specifically considered these statements and indicated that they did not provide any medical evidence to confirm the Veteran's claim. Additionally, the Veteran has submitted private medical records from his chiropractor, Dr. M, showing treatment for his low back from 1999 to 2004. These medical records reflect treatment over 31 years after service. At best, the Veteran didn't report the onset of chronic back complications until no earlier than 20 years following service, when he confirmed to the September 2008 VA examiner that the onset was in the early 1990's. These records suggest that even if the Veteran had sustained a back injury in connection with the 1968 incident, it was acute and transitory and resolved with no residual effects. In summary, although it is presumed that the Veteran did sustain a low back injury in January 1968, the record contains no evidence of treatment for back problems during service or for many years thereafter. Furthermore, the Veteran's separation examination report dated in May 1969 indicated that his spine was normal and the Veteran indicated that had not had then nor had he ever had back trouble of any kind. Private medical records document back complaints no earlier than 20 years after service, and treatment of the back no earlier than 30 years after service. Further, the September 2008 examination opinion is afforded far greater probative weight than the Veteran's lay evidence. The Board finds that the Veteran's low back disability was not incurred in service, and that any injury that could have been sustained as a result of the 1968 in-service injury was acute and resolved completely. For the sake of completeness, it is noted that the Veteran has asserted that his current low back disability includes arthritis. Arthritis is considered to be a chronic disease for VA purposes (See 38 C.F.R. § 3.309(a)), and would be subject to presumptive service connection if it were shown within one year from separation of service. Although the presence of current arthritis of the low back has not been shown by required x-ray evidence (See Diagnostic Code 5003), even if there was such evidence, there is no documentation of a low back disability, including arthritis, within the first post-service year or for many years thereafter. As such, service connection for low back arthritis on a presumptive basis is not for application. Notwithstanding it is noted that continuity of symptomatology in 38 C.F.R § 3.303(b) is applicable to certain chronic diseases such as arthritis found in 38 C.F.R. § 3.309(a). Walker, supra. In the instant case, however, the Veteran has not alleged that there has been continuity of symptomatology of low back symptoms since service, but instead has consistently asserted that the earliest manifestation of post-service back symptomatology was in the early 1990's over 20 years after service. For the reasons stated above, the Board concludes that the weight of the evidence is against a finding that there is a nexus between the current low back disability and the Veteran's active military service. In reaching this conclusion, the Board considered the applicability of the benefit of the doubt doctrine. However, that doctrine is not applicable in the instant appeal as the preponderance of the evidence is against the claim. See 38 U.S.C.A. § 5107(b); Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001); Gilbert v. Derwinski, 1 Vet. App. 49, 55-57 (1990); 38 C.F.R. § 3.102 (2012). ORDER Service connection for Adjustment Disorder with Anxious Mood is granted. Service connection for a low back disability is denied. REMAND Remand for the claim of service connection for PTSD is required for compliance with VA's duty to assist the Veteran in substantiating his claim. 38 U.S.C.A. §§ 5103; 5103A; 38 C.F.R. § 3.159. A review of the claims file reveals that the Veteran indicated on his VA Form 9 that outstanding treatment records from VAMC Augusta and Dublin from 2009 through 2010 exist that pertain to his alleged PTSD. It appears that these VA treatment records are not associated with the claims file. The duty to assist requires that VA make all necessary efforts to obtain relevant records in the possession of a Federal agency. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. Further, VA records are considered to be constructively of record and VA is charged with knowledge of their contents. Bell v. Derwinski, 2 Vet. App. 611(1992) (VA medical records are in constructive possession of the agency, and must be obtained if the material could be determinative of the claim). On remand, appropriate steps must be taken to associate with the claims file complete VA treatment records regarding psychiatric treatment. VA's duty to assist includes a duty to provide a medical examination or to obtain a medical opinion where it is deemed necessary to make a decision on the claims. 38 U.S.C.A. § 5103A (d) (West 2002); 38 C.F.R. § 3.159(c) (4) (2012). In a claim for service connection, medical evidence that suggests a nexus but is too equivocal or lacking in specificity to support a decision on the merits still triggers the duty to assist if it indicates that the Veteran's condition may be associated with service. McLendon v. Nicholson, 20 Vet. App. 79 (2006) (recognizing that 38 C.F.R. § 3.159(c) (4) presents a low threshold for the requirement that evidence indicates that the claimed disability may be associated with in-service injuries for the purposes of a VA examination). As noted above, the record shows that outstanding treatment records exist with regard to the Veteran's PSTD claim. The Veteran's claimed stressors have previously been conceded in light of his active combat service. The Veteran was afforded a psychiatric examination in September 2008, in which the examiner opined that the Veteran did not meet the criteria for a PTSD diagnosis. However, if the outstanding records from 2009 and 2010 contain an earlier diagnosis of PTSD, a new medical opinion must be obtained that specifically addresses whether a nexus between the PTSD diagnosis and the in-service stressors exists and to resolve any conflict with the September 2008 PTSD examination and opinion. Accordingly, the case is REMANDED for the following action: 1. VA must associate with the claims file all VA medical records and examination reports relative to the Veteran's PTSD disability that are not already included in the claims file. Specifically, VA must obtain all records from VAMC Augusta and Dublin from 2009 to the present. All efforts must be documented in the record, and must include specific requests to search and/or recall any archived or otherwise stored records. 2. AFTER COMPLETION OF THE ABOVE, arrange for any additional development, to include a review of the claims file by the same examiner who had examined the Veteran in September 2008, if available, for the purpose of a complete review of any additional pertinent evidence associated with the claims file since September 2008 and providing an opinion as to whether the Veteran has a current diagnosis of PTSD, and if so, whether it is at least as likely as not (50 percent probability or greater) that it was caused or aggravated by his combat-related stressors. If the examiner believes that such an opinion cannot be made without an additional examination of the Veteran then such an examination should be scheduled. A full and complete rationale for any opinion expressed is required. The examiner must address the allegations in the lay evidence of record in light of the fact that lay testimony can be sufficient to establish a nexus. If the examiner feels that the requested opinion cannot be rendered without resorting to speculation, the examiner must state whether the need to speculate is caused by a deficiency in the state of general medical knowledge (i.e. no one could respond given the medical science and the known facts) or by a deficiency in the record or the examiner (i.e. additional facts are required, or the examiner does not have the needed knowledge or training). Jones v. Shinseki, 23 Vet. App. 382 (2010). If the examiner who conducted the September 2008 examination is no longer available, another examiner skilled in the diagnosis and treatment of psychiatric disorders should be enlisted to provide such an opinion. If any examiner believes that it would be essential to conduct an examination of the Veteran prior to rendering an opinion, such an examination should be scheduled. 3. Review the claims file to ensure that all of the foregoing requested development is completed, and arrange for any additional development indicated. Then re-adjudicate the claim on appeal. If the benefit sought remains denied, issue an appropriate supplemental statement of the case and provide the Veteran and his representative the requisite period of time to respond. The case should then be returned to the Board for further appellate review, if otherwise in order. 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). ______________________________________________ MICHAEL A. PAPPAS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs