Citation Nr: 1327088 Decision Date: 08/23/13 Archive Date: 08/29/13 DOCKET NO. 03-22 768 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Albuquerque, New Mexico THE ISSUES 1. Entitlement to service connection for an acquired psychiatric disorder, to include post-traumatic stress disorder (PTSD) with mental strain, nervousness, anxiety, and a sleeping problem. 2. Entitlement to service connection for a hernia. 3. Entitlement to service connection for a back disorder, including a twisted spine. WITNESS AT HEARINGS ON APPEAL Appellant REPRESENTATION Appellant represented by: Paralyzed Veterans of America, Inc. ATTORNEY FOR THE BOARD K. Fitch, Counsel INTRODUCTION The Veteran had active service from October 1960 to October 1964. These claims come before the Board of Veterans' Appeals (Board) on appeal of a September 2002 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Albuquerque, New Mexico. In February 2007, the Board reopened the claim of entitlement to service connection for a back disorder, including a twisted spine, and remanded the back claim and the other remaining claims for further development and adjudication. In July 2012, the Veteran testified at a hearing before the undersigned at the RO. A transcript of these proceedings has been associated with the claims file. In December 2012, the Board dismissed claims of entitlement to service connection for joint problems, arthritis, rheumatism, and bursitis; skin fungus, psoriasis, rashes, loss of toenails and hair; loss of teeth; a stomach disorder manifested by digestive problems; a right knee disorder; and a left knee disorder, and remanded the remaining claims for additional development. In addition to the Veteran's claims file, the Veteran has a Virtual VA paperless claims file, which is a highly secured electronic repository that is used to store and review documents involved in the claims process. The Board has reviewed the contents of the paperless file as well as the Veteran's claims file and will proceed with review of the claims based upon all relevant evidence. The issues of entitlement to service connection for an acquired psychiatric disorder other than PTSD, hernia, and a back disorder are addressed in the REMAND portion of the decision below and are REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDING OF FACT The Veteran does not currently have PTSD. CONCLUSION OF LAW The criteria for an award of service connection for PTSD have not been met. 38 U.S.C.A. §§ 1110, 1131 (West 2002); 38 C.F.R. §§ 3.303, 3.304 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. VCAA. As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), VA has a 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 & Supp. 2013); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012). Proper notice from VA must inform the claimant of any information and medical or lay 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); Quartuccio v. Principi, 16 Vet. App. 183 (2002). In addition, the notice requirements of the VCAA apply to all elements of a service-connection claim, including the degree of disability and the effective date of the disability. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). Further, this notice must include information that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. Id. at 486. VCAA notice must be provided prior to an initial unfavorable 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). Where complete notice is not timely accomplished, such error may be cured by issuance of a fully compliant notice, followed by readjudication of the claim. See Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); see also Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006). Here, the Veteran was sent letters dated in December 2001, August 2003, March 2005, and February 2007 that provided information as to what evidence was required to substantiate the claim and of the division of responsibilities between VA and a claimant in developing an appeal. New regulations have been implemented during the pendency of this appeal with regard to the evidence needed to show a stressor in certain PTSD claims. See 38 C.F.R. § 3.304(f)(3); 75 Fed. Reg. 39843-39852 (July 13, 2010). No notice was provided to the Veteran concerning this new regulation. However, as more fully developed below, the matter of entitlement to service connection for PTSD is denied due to the lack of a diagnosed condition during the appeal period. As such, notice regarding the stressor element is rendered moot since the stressor element would not serve to establish the claim in the absence of a confirmed diagnosis. In this regard, the Board notes that, except in cases where VA has failed to inform the appellant of the information and evidence necessary to substantiate the claim, 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 the present case, the notice error at issue did not affect the essential fairness of the adjudication. The notice deficiency in this case constitutes harmless error and does not unfairly prejudice the appellant. Thus, no additional development is required with respect to the duty to notify. Next, VA has a duty to assist the Veteran in the development of the claims. This duty includes assisting him in the procurement of service treatment records and pertinent treatment records and providing an examination when necessary. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. The Board finds that all necessary development has been accomplished, and therefore appellate review may proceed without prejudice to the appellant. See Bernard v. Brown, 4 Vet. App. 384 (1993). The claims file contains the Veteran's service treatment records, Social Security Administration disability records, as well as post-service reports of VA and private treatment and examination. Moreover, his statements in support of the claim are of record, including testimony provided at a July 2012 hearing before the undersigned. The Board has carefully reviewed such statements and concludes that no available outstanding evidence has been identified. The Board has also perused the medical records for references to additional treatment reports not of record, but has found nothing to suggest that there is any outstanding evidence with respect to the Veteran's claim. This case was remanded in December 2012 in part in order that the deck logs for the USS Braine, for the period from February to April 1962, could be requested and reviewed for any documented incidents similar to the stressful reports outlined by the Board in the remand request. The Board also asked that the Veteran be afforded a VA examination in connection with his PTSD claim. In response to these requests, a review of the deck logs from the USS Braine for the period February through April 1962 was ordered. A January 2013 response from the Textual Archives Services Division was obtained, enclosing copies of log entries mentioning the Veteran. The response also indicated that a review of the February through April 1962 deck logs was conducted. In addition, the Veteran was afforded a VA examination in connection with his PTSD claim in which the examiner found that the Veteran did not meet the criteria for a diagnosis of PTSD. Based on the foregoing, the Board finds that the December 2012 remand requests were substantially fulfilled. D'Aries v. Peake, 22 Vet. App. 97, 105 (2008); see also Dyment v. West, 13 Vet. App. 141, 146-47 (1999) (holding that there was no Stegall v. West, 11 Vet. App. 268 (1998), violation when the examiner made the ultimate determination required by the Board's remand, because such determination "more than substantially complied with the Board's remand order"). The Veteran was offered a hearing at the RO before a decision review officer and a Board hearing in connection with this claim and he testified at a Travel Board hearing before the undersigned in July 2012. A transcript of these proceedings has been associated with the claims file. In Bryant v. Shinseki, 23 Vet. App. 488 (2010), the Court held that 38 C.F.R. § 3.103(c)(2) requires that the individual who chairs a hearing must fully explain the issues and to suggest the submission of evidence that may have been overlooked. In the present case, the undersigned fully identified the issues on appeal and asked specific questions directed at identifying any pertinent evidence not currently associated with the claims folder that might have been overlooked or was outstanding and might substantiate the claim currently on appeal. There was an extensive discussion as to evidence that might be available to support the claim. Additionally, neither the Veteran nor his representative has asserted that VA failed to comply with 38 C.F.R. § 3.103(c)(2), nor has he identified any prejudice in the conduct of the Board hearing. As such, the Board finds that, consistent with Bryant, there is compliance with the duties set forth in 38 C.F.R. § 3.103(c)(2). For the above reasons, no further notice or assistance to the appellant is required to fulfill VA's duty to assist the appellant in the development of the claim. 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, 16 Vet. App. 183 (2002). II. Service Connection. Service connection will be granted for a disability resulting from disease or injury incurred in or aggravated by active military service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. §§ 3.303, 3.304. In addition, service connection may be granted for any disease diagnosed after discharge, when all of the evidence, including that pertinent to service, establishes that a disease was incurred in service. 38 C.F.R. § 3.303(d). Establishing service connection generally requires evidence of (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the present disease or injury. Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); Hickson v. West, 12 Vet. App. 247 (1999); Caluza v. Brown, 7 Vet. App. 498 (1995); 38 C.F.R. § 3.303(a). Under § 3.303(b), an alternative method of establishing the second and/or third element is through a demonstration of continuity of symptomatology. See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013) (38 C.F.R. § 3.303(b) does not apply to any condition that has not been recognized as chronic under 38 U.S.C.A. § 1101; 38 C.F.R. § 3.309(a). PTSD is not listed as a chronic disease. Lay persons may provide evidence of diagnosis and nexus under 38 U.S.C.A. § 1154(a). Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); "[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). 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. An appellant need only demonstrate that there is an "approximate balance of positive and negative evidence" in order to prevail. Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). The Court has also stated, "It is clear that to deny a claim on its merits, the evidence must preponderate against the claim." Alemany v. Brown, 9 Vet. App. 518, 519 (1996). Service connection for PTSD requires (i) medical evidence establishing a diagnosis of the condition, (ii) credible supporting evidence that the claimed in-service stressor occurred, and (iii) a link, established by medical evidence, between current symptomatology and the claimed in-service stressor, is required. See 38 C.F.R. § 3.304(f). If VA determines that the Veteran engaged in combat with the enemy and the alleged stressor is combat-related, then the Veteran's lay testimony or statement is accepted as conclusive evidence of the stressor's occurrence and no further development or corroborative evidence is required, provided that such testimony is found to be "satisfactory," i.e., credible, and "consistent with the circumstances, conditions or hardships of service." See 38 U.S.C.A. § 1154(b); 38 C.F.R. § 3.304(f); Dizoglio v. Brown, 9 Vet. App. 163, 164 (1996). If, however, VA determines that the Veteran did not engage in combat with the enemy or that the Veteran engaged in combat with the enemy, but the alleged stressor is not combat-related, the Veteran's lay testimony, by itself, is generally insufficient to establish the occurrence of the alleged stressor. Instead, the record must contain credible supporting evidence that corroborates the Veteran's statements or testimony. Cohen v. Brown, 10 Vet. App. 128, 142 (1993). Effective July 13, 2010, VA amended its adjudication regulations governing service connection for PTSD by liberalizing, in certain circumstances, the evidentiary standard for establishing the required in-service stressor as follows: (f)(3) If a stressor claimed by a Veteran is related to the Veteran's fear of hostile military or terrorist activity and a VA psychiatrist or psychologist, or a psychiatrist or psychologist with whom VA has contracted, confirms that the claimed stressor is adequate to support a diagnosis of [PTSD] and that the Veteran's symptoms are related to the claimed stressor, in the absence of clear and convincing evidence to the contrary, and provided the claimed stressor is consistent with the places, types, and circumstances of the Veteran's service, the Veteran's lay testimony alone may establish the occurrence of the claimed in-service stressor. For purposes of this paragraph, "fear of hostile military or terrorist activity" means that a Veteran experienced, witnessed, or was confronted with an event or circumstance that involved actual or threatened death or serious injury, or a threat to the physical integrity of the Veteran or others, such as from an actual or potential improvised explosive device; vehicle-imbedded explosive device; incoming artillery, rocket, or mortar fire; grenade; small arms fire, including suspected sniper fire; or attack upon friendly military aircraft, and the Veteran's response to the event or circumstance involved a psychological or psycho-physiological state of fear, helplessness, or horror. 38 C.F.R. § 3.304(f)(3). The provisions of this amendment apply to applications for service connection for PTSD that were pending as of July 13, 2010. 75 Fed. Reg. 39,843 (July 13, 2010), with correcting amendments at 75 Fed. Reg. 41,092 (July 15, 2010). A Veteran need not substantiate his actual presence during the stressor event; the fact that the Veteran was assigned to and stationed with a unit that was present while such an event occurred strongly suggests that he was, in fact, exposed to the stressor event. See Pentecost v. Principi, 16 Vet. App. 124 (2002). The Veteran testified that he injured his back in service when he slipped and fell while carrying live ammunition projectiles. He stated that he never went to sick call, but self-medicated with alcohol, because he did not want to be discharged from service. He contends that he has PTSD related to this fall and that he was in fear of the live ordinance exploding when dropped. In addition to the incident with the fall, the Veteran also stated that he worked around torpedoes and that parts broke on one occasion and he had to duck out of the way or be hit in the head. Again, he expressed fear of being hit and fear of the live ammunition exploding. Finally, the Veteran reported a stressor involving a man that nearly went overboard and was injured. He expressed his fear of possibly going overboard himself. In order to determine whether the incidents related by the Veteran occurred, the deck logs for the USS Braine for September through November 1961 were obtained and associated with the Veteran's claims file. In addition, a CURR response dated in March 2010 indicated that the ships history of the USS Braine through 1962 was reviewed and did not document the incident of the man nearly going overboard. And a review of the deck logs from November 20 through December 31, 1961 also did not document the incident described. Finally, a January 2009 response from the National Archives and Records Administration indicated that the deck logs for the USS Braine were reviewed for December 1961 and January 1962 and that there was no information located documenting an incident in which a sailor by the name of Benda fell overboard. Finally, a review of the deck logs from the USS Braine for the period February through April 1962 was ordered. A January 2013 response from the Textual Archives Services Division was obtained, enclosing copies of log entries mentioning the Veteran. The response also indicated that a review of the February through April 1962 deck logs was conducted and that this review identified no mention of an accident. Records from the Social Security Administration dated in 1981; show that the Veteran was found to have depression and anxiety. Records dated prior to August 2003 do not mention PTSD. The Veteran was given a diagnosis of PTSD at an August 2003 Vet Center intake examination and also claimed symptoms of nervousness and anxiety since his time in the military. On testing he scored above the cut offs for a diagnosis of PTSD. The Veteran reported the three stressors noted above; but the Vet Center therapist reported that he had been "in war zones" during the "Cuban crisis" in that he escorted ships through the Panama Canal and "during the conflict" between "Formosa and China" he had been on patrol on the Taiwan straits. The psychosocial stressors listed on Axis IV included "exposure to life threatening situations in Vietnam." In August 2003, the Veteran's uncle and brother reported changes that they observed during and after service. At the RO hearing in October 2003, the Veteran reported the three stressors of slip and falling on deck while carrying armament and injuring his back; seeing an "old salt" knocked over the side of a ship; and seeing a sling break and a torpedo come loose. At the Board hearing the Veteran repeated these stressors, but provided the last name for the "old salt" and clarified that this person was recovered and sent to sick bay. He also said that he had received no treatment for PTSD other than the Vet Center intake. The Veteran was afforded a VA examination dated in February 2013. The examiner indicated that the Veteran's claims file had been reviewed in connection with the examination and report. The examiner found that although the Veteran met the testing threshold for PTSD, he did not have a diagnosis of PTSD that conformed to DSM-IV criteria. Three stressors were considered' namely (i) slipping and landing on his back while loading 54 pound projectiles (he landed on his back and caught the projectile - fear that it would explode), (ii) being near arcane used to load torpedoes when the guide broke and dropped the torpedo (fear that the torpedo would explode), and (iii) being hit by rough seas and seeing a young sailor lose his footing and slide toward the shock (fear that he may get swept overboard). The examiner found that none of these stressors met criterion A of the DSM IV for a diagnosis of PTSD, nor did they relate to a fear of hostile military terrorist activity. The examiner found that the Veteran had not been exposed to a traumatic event in service. The examiner concluded that claimed stressors were not adequate to support the diagnosis of PTSD, but then stated that the Veteran's PTSD was at least as likely as not (50/50 probability) caused by or a result of his identified combat-related stressors. The examiner diagnosed a mood disorder. In March 2013 the examiner provided an addendum to his February 2013 report. The examiner stated that it was his professional opinion that the Veteran's claimed PTSD was less likely as not (less than 50/50 probability) caused by or a result of his claimed stressors. He indicated that in the first two instances, the Veteran feared detonation which did not occur. The Veteran also feared being swept overboard during rough seas, a reasonable fear and one which other sailors are trained to address, but again this did not happen to the Veteran. This record includes conflicting opinions as to whether the Veteran meets the criteria for a diagnosis of PTSD. In determining the probative value to be assigned to a medical opinion, the Board must consider three factors. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). The initial inquiry in determining probative value is to assess whether a medical expert was fully informed of the pertinent factual premises (i.e., medical history) of the case. A review of the claims file is not required, since a medical professional can also become aware of the relevant medical history by having treated a Veteran for a long period of time or through a factually accurate medical history reported by a Veteran. Nieves-Rodriguez, 22 Vet. App. at 303-04. The second inquiry involves consideration of whether the medical expert provided a fully articulated opinion. See Id. A medical opinion that is equivocal in nature or expressed in speculative language does not provide the degree of certainty required for medical nexus evidence. See McLendon v. Nicholson, 20 Vet. App. 79 (2006). The third and final factor in determining the probative value of an opinion involves consideration of whether the opinion is supported by a reasoned analysis. The most probative value of a medical opinion comes from its reasoning. Therefore, a medical opinion containing only data and conclusions is not entitled to any weight. In fact, a review of the claims file does not substitute for a lack of a reasoned analysis. See Nieves-Rodriguez, 22 Vet. App. at 304; see also Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007) ("[A] medical opinion ... must support its conclusion with an analysis that the Board can consider and weigh against contrary opinions"). The Vet Center report included an opinion that was not equivocal and included an explanation for its conclusions; but it seems to have been influenced by the incredible reports that the Veteran had been in a "war zone" while in the Panama Canal, and involved in a "conflict" between China and Formosa. The examiner also erroneously reported that the Veteran had been exposed to life threatening events in Vietnam; while there is no evidence that he was ever in Vietnam. Thus, the Vet Center report was not fully informed. It is of limited probative value. The February VA examiner also provided an opinion that was not equivocal and supported by a reasoned analysis. After explaining why the Veteran did not meet the criteria for the PTSD diagnosis, the examiner inexplicably provided a favorable nexus opinion based on unspecified "combat related stressors." The examiner corrected this deficiency in the March 2013, addendum and ultimately considered the pertinent facts. This opinion is; therefore, of greater probative value. The Court has recently held that in situations where one medical expert diagnoses a current disability, but a subsequent examiner finds no current disability, VA may have a duty to get an opinion as to whether the initial diagnosis was made in error, or the earlier diagnosed condition was in remission. Romanowsky v. Shinseki, No. 11-3272 (Vet. App. July 10, 2013). The instant case differs from Romanowsky in two ways. First the VA examiner had the opportunity to consider the Vet Center report and provided the negative opinion on the basis of the sufficiency of the stressors. A determination as to the sufficiency of the stressor is within the purview of the examiner; indeed, the Board is required to rely on the opinions of mental health professionals as to the sufficiency of a stressor. Cohen. Second, the finding that the stressors were insufficient is essentially a finding that the earlier diagnosis made on the basis of those stressors was erroneous; therefore, clarification is not required. In addition, the Veteran has contended on his own behalf that he has PTSD; is not consistent with the situations listed in Jandreau. PTSD is diagnosed on the basis of criteria contained in the DSM IV. 38 C.F.R. § 4.125(a) (2012). Medical expertise is required to determine whether a claimant meets those criteria. See Cohen. Although the claimant is competent in certain situations to provide a diagnosis of a simple condition such as a broken leg or varicose veins, the claimant is not competent to provide evidence as to more complex medical questions. Woehlaert v. Nicholson, 21 Vet. App. 456 (2007). The Veteran is therefore, not competent to provide a diagnosis of PTSD. In summary, the most probative evidence is against a finding that the Veteran meets the criteria for a diagnosis of PTSD. The preponderance of the evidence is against service connection for PTSD. As such, reasonable doubt does not arise and the claim is denied. 38 U.S.C.A. § 5107(b). ORDER Service connection for PTSD is denied. REMAND Upon the last remand, the Veteran was afforded the February 2013 VA examination. The examiner stated that the diagnosed mood disorder, was less likely as not (less than 50/50 probability) caused by or a result of his claimed military-related stressors. However, the examiner did not provide a rationale for this opinion. It is therefore inadequate. Nieves-Rodriguez. The Veteran was provided two VA examinations to evaluate his claims for service connection for a back disability. In May 2011, the Veteran was diagnosed with lumbosacral spinal stenosis. The examiner provided a negative nexus opinion, because a review of the service treatment records did not disclose evaluation or treatment for a low back condition. In addition, the examiner found that there was considerable time between military discharge in 1964 and the Veteran's spinal laminectomy and fusion surgery in 1976. The examiner found that there was no continuity in the medical records in the 1964 to 1976 time frame to support a strong connection between the events in the Veteran's military career and the spinal surgery. At the second back examination in February 2013, the same examiner again provided a negative nexus opinion and stated that the rational for this opinion remained the same as that provided in May 2011. These opinions are inadequate, because they did not take into account the Veteran's reports. Dalton v. Nicholson, 21 Vet. App. 23 (2007). The hernia claim was also remanded in December 2012 in order to afford the Veteran a VA examination. The examiner was asked to opine regarding whether any diagnosed hernia disability had its onset during active duty, within one year of active duty, or was otherwise related to the Veteran's military service. Specifically, the Veteran contends that his hernia disability may be related to a fall that he had in service. The Veteran was afforded a VA examination in February 2013. The examiner noted that the Veteran had operative repair on an umbilical hernia in 2001, but had not been seen or evaluated for the same or other hernia condition since that time. On examination, the Veteran was found to have a 1.5 cm umbilical hernia that was nontender, soft and reducible. No scars were evident. The examiner did not offer a nexus opinion. When medical evidence is inadequate, VA must supplement the record by seeking an advisory opinion or ordering another medical examination. Colvin v. Derwinski, 1 Vet. App. 171 (1991); Hatlestad v. Derwinski, 3 Vet. App. 213 (1992). Assistance by VA includes providing a medical examination or obtaining a medical opinion when such an examination or opinion is necessary to make a decision on a claim. 38 U.S.C.A. § 5103A(d); 38 C.F.R. § 3.159(c)(4). The Board also notes that a remand by the Board confers on the Veteran or other claimant, as a matter of law, the right to compliance with the remand orders. Stegall v. West, 11 Vet. App. 268, 271 (1998). Records relating to the Veteran's reported hernia surgery in 1970, as identified by the February 2013 VA examiner, are not of record. Records generated by VA facilities that may have an impact on the adjudication of a claim are considered to be constructively in the possession of VA adjudicators during the consideration of a claim, regardless of whether those records are physically on file. See Dunn v. West, 11 Vet. App. 462, 466-67 (1998); Bell v. Derwinski, 2 Vet. App. 611, 613 (1992). Pursuant to the VCAA, VA must obtain outstanding VA and private records. See 38 U.S.C.A. § 5103A(b-c); 38 C.F.R. § 3.159(c). Accordingly, the case is REMANDED for the following action: 1. Obtain records relating to the Veteran's reported hernia surgery in 1970, as identified by the February 2013 VA examiner. 2. After all available treatment records have been associated with the claims file, ask the February 2013 VA psychiatric examination provider to review the claims file, including a copy of this remand. If the February 2013 VA examiner is not available, schedule the Veteran for another VA examination to determine whether any current psychiatric disability is related to service. The examiner should respond to the following questions: Did the Veteran diagnosed mood disorder, have its onset during active duty, within one year of active duty, or is such condition otherwise related to the Veteran's military service (including any reported in-service stressor)? Reasons must be provided for all opinions. In offering any opinion, the examiner must consider the Veteran's lay statements regarding the incurrence of his claimed disorder and the continuity of symptomatology. If the examiner finds that he or she cannot provide a nexus opinion without resorting to speculation, the examiner must explain why he or she is unable to provide an opinion without speculation, and sufficiently explain the reasons for that inability. 3. . After all available treatment records have been associated with the claims file, ask the February 2013 VA back examination provider to review the claims file, including a copy of this remand. If the February 2013 VA examiner is not available, schedule the Veteran for another VA examination to determine whether any current back disability is related to service. The examiner should respond to the following questions: Did the Veteran diagnosed back disability have its onset during active duty, within one year of active duty, or is such condition otherwise related to the Veteran's military service (including any reported in-service stressor)? Reasons must be provided for all opinions. In offering any opinion, the examiner must consider the Veteran's lay statements regarding the incurrence of his claimed disorder and the continuity of symptomatology. The absence of supporting treatment records is not sufficient by itself to discount the Veteran's reports, unless the reported injury is such that it would have required medical treatment that would have been documented. The examiner should assume the credibility of the Veteran's reports of back injury in service. If the examiner finds that he or she cannot provide a nexus opinion without resorting to speculation, the examiner must explain why he or she is unable to provide an opinion without speculation, and sufficiently explain the reasons for that inability. 4. . After all available treatment records have been associated with the claims file, ask the February 2013 VA hernia examination provider to review the claims file, including a copy of this remand. If the February 2013 VA examiner is not available, schedule the Veteran for another VA examination to determine whether any current hernia disability or residual is related to service. The examiner should respond to the following questions: Did any current hernia disability, including the previously diagnosed scar have its onset during active duty, within one year of active duty, or is such condition otherwise related to the Veteran's military service? In this regard, the examiner is asked to comment on the Veteran's service and post-service medical treatment records, including the Veteran's report that he fell in service and that this fall may have caused his disability. In offering any opinion, the examiner must consider the Veteran's lay statements regarding the incurrence of his claimed disorders and the continuity of symptomatology. The reasons for all opinions should be provided. If the examiner finds that he or she cannot provide a nexus opinion without resorting to speculation, the examiner must explain why he or she is unable to provide an opinion without speculation, and sufficiently explain the reasons for that inability. 5. If any benefit sought on appeal remains denied, issue a supplemental statement of the case; and return the case to the Board, 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). The purpose of the examination requested in this remand is to obtain information or evidence (or both) which may be dispositive of the appeal. Therefore, the Veteran is hereby placed on notice that, pursuant to 38 C.F.R. § 3.655, failure to cooperate by attending a requested VA examination may result in an adverse determination. See Connolly v. Derwinski, 1 Vet. App. 566, 569 (1991). 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). ______________________________________________ Mark D. Hindin Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs