Citation Nr: 1330268	
Decision Date: 09/20/13    Archive Date: 09/25/13

DOCKET NO.  13-08 772	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Muskogee, Oklahoma


THE ISSUES

1.  Entitlement to service connection for hearing loss.

2.  Entitlement to service connection for tinnitus.

3.  Entitlement to service connection for posttraumatic stress disorder (PTSD).

4.  Entitlement to service connection for depression.

5.  Entitlement to service connection for hypertension.

6.  Entitlement to service connection for a right shoulder disability.

7.  Entitlement to service connection for a left shoulder disability.

8.  Entitlement to service connection for a heart condition.

9.  Entitlement to service connection for a stomach disorder/residuals of gallbladder removal.

10.  Entitlement to a total disability rating based on individual unemployability due to service-connected disability (TDIU).


REPRESENTATION

Appellant represented by:	Robert C. Brown, Jr. Attorney at Law


WITNESS AT HEARING ON APPEAL

The Veteran


ATTORNEY FOR THE BOARD

K. Neilson, Counsel


INTRODUCTION

The Veteran served on active duty from January 1945 to August 1946.

This matter comes before the Board of Veterans' Appeals (Board) on appeal from an August 2012 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Muskogee, Oklahoma.

On August 15, 2013, the Veteran testified at a hearing before the undersigned Veterans Law Judge, sitting at the RO.  A transcript of that hearing is associated with the claims file.  

This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2010).  38 U.S.C.A. § 7107(a)(2) (West 2002).

(The decision below addresses the Veteran's claims of service connection for hearing loss, tinnitus, and PTSD.  The remaining claims are addressed in the remand that follows the Board's decision.)


FINDINGS OF FACT

1.  The Veteran has bilateral hearing loss that is likely attributable to noise exposure in service.

2.  The Veteran suffers from tinnitus that is likely related to noise exposure in service.

3.  At no time during the current appeal has the Veteran been found to have PTSD based on the Diagnostic and Statistical Manual of Mental Disorders (DSM-IV) criteria, as required by 38 C.F.R. § 4.125.


CONCLUSIONS OF LAW

1.  The Veteran has bilateral hearing loss that is the result of disease or injury incurred during active military service.  38 U.S.C.A. §§ 1110, 5107 (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.385 (2013).

2.  The Veteran has tinnitus that is the result of disease or injury incurred during active military service.  38 U.S.C.A. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304 (2013).

3.  PTSD was not incurred in or aggravated by active service.  38 U.S.C.A. §§ 1110, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304 (2013).



REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

I.  Notice and Assistance

At the outset, the Board notes that given the favorable outcome regarding the Veteran's claims of service connection for hearing loss and tinnitus, the Board's analysis of whether VA complied with its duties to notify and assist will be limited to whether those duties were met with respect to the Veteran's claim of service connection for PTSD.

The Veterans Claims Assistance Act of 2000 (VCAA), codified in pertinent part at 38 U.S.C.A. §§ 5103, 5103A (West 2002 & Supp. 2013), and the pertinent implementing regulation, codified at 38 C.F.R. § 3.159 (2013), provides that VA will assist a claimant in obtaining evidence necessary to substantiate a claim.  They also require VA to notify the claimant and the claimant's representative, if any, of any information, and any medical or lay evidence, not previously provided to the Secretary that is necessary to substantiate the claim.  As part of the notice, VA is to specifically inform the claimant and the claimant's representative, if any, of which portion, if any, of the evidence is to be provided by the claimant and which part, if any, VA will attempt to obtain on behalf of the claimant.

The VCAA notice requirements apply to all five elements of a service connection claim.  These are: (1) veteran status; (2) existence of a disability; (3) a connection between a veteran's service and the disability; (4) degree of disability; and (5) effective date of the disability.  Dingess v. Nicholson, 19 Vet. App. 473 (2006).

Here, the RO received the Veteran's claim for service connection in July 2008.  In August 2008, the RO sent to him a letter notifying him of the evidence required to substantiate his claim.  The letter advised the Veteran of the information already in VA's possession and the evidence that VA would obtain on his behalf, as well as of the evidence that he was responsible for providing to VA, to include any records not in the possession of a Federal agency.  The RO further advised the Veteran on the types of evidence he could submit that would support his service connection claim, such as records related to treatment of his claimed disability.  The RO also informed the Veteran that he should submit specific details regarding the stressful incident(s) in service that led to his PTSD.  The notice letter further included the notice elements required by Dingess for how VA determines disability ratings and effective dates.  

The Veteran has not disputed the contents of the VCAA notice in this case.  Further, the Board finds that the August 2008 notice letter complies with the requirements of 38 U.S.C.A. § 5103(a), and afforded the Veteran a meaningful opportunity to participate in the development of his service connection claims.  Thus, the Board is satisfied that the duty-to-notify requirements under 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) were satisfied.  

Further, the Board finds that VA has fulfilled its obligation to assist the Veteran.  All available evidence pertaining to his claims has been obtained.  The evidence includes his lay statements and hearing testimony, private treatment records, certain personnel records supplied by the Veteran, and VA examination reports.  In this regard, the Board notes that it was determined by the National Personnel Records Center (NPRC) that the Veteran's service treatment records (STRs) and personnel records were destroyed in the 1973 fire at the NPRC.  The Veteran was apprised of this finding by a letter dated in May 2012.  The Veteran has not identified any outstanding potentially obtainable records, and the Board is aware of none.  Accordingly, VA has properly assisted the Veteran in obtaining any relevant evidence.

Further, the Veteran was afforded a VA PTSD examination in June 2012.  The examiner reviewed the claims folder, recorded the Veteran's statements regarding his alleged stressors, and reviewed the medical evidence of record.  Overall, the Board finds that the examination obtained in this case was adequate.  Notably, the examiner's finding that the Veteran does not meet the DSM-IV criteria for a diagnosis of PTSD is sufficiently supported and the lacking criteria are clearly identified.  The Board thus concludes the Veteran was provided with an adequate VA examination in this case.  See Barr v. Nicholson, 21 Vet. App. 303, 311 (2007).


II.  Analysis

The law provides that service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active military service.  38 U.S.C.A. § 1110 (West 2002); 38 C.F.R. §§ 3.303, 3.304 (2010).  In addition, certain chronic diseases, including organic disease of the nervous system such as sensorineural hearing loss, may be presumed to have been incurred during service if the disorder becomes manifest to a compensable degree within one year of separation from active duty.  38 U.S.C.A. §§ 1101, 1112, 1113 (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.307, 3.309 (2013).  Service connection may be granted for any disease diagnosed after discharge when all the evidence, including that pertinent to service, establishes that the disease was incurred in service.  38 C.F.R. § 3.303(d).

Generally, establishing service connection requires medical or, in certain circumstances, lay 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 disability.  See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); Hickson v. West, 12 Vet. App. 247, 253 (1999).  

A.  Hearing Loss & Tinnitus

For purposes of a hearing loss claim, impaired hearing will be considered a disability for VA purposes when the auditory threshold in any of the frequencies 500, 1,000, 2,000, 3,000, 4,000 Hertz is 40 decibels or greater, or when the auditory thresholds for at least three of the frequencies 500, 1,000, 2,000, 3,000, or 4,000 Hertz are 26 decibels or greater, or when speech recognition scores using the Maryland CNC Test are less than 94 percent.  38 C.F.R. § 3.385 (2013).

In August 2012, the Veteran was afforded a VA contract (QTC) audiological examination.  A review of the audiogram shows that the Veteran has a current hearing loss disability for VA purposes, based on both required auditory thresholds and speech recognition scores.  See 38 C.F.R. § 3.385.  The examiner also diagnosed tinnitus and recorded the Veteran's assertions that he first experienced ringing in his ears in service.

With regard to the second element of service connection, the evidence of record is insufficient to support a finding that that the Veteran suffered hearing loss in service or sensorineural hearing loss within one year of separation from service, so as to afford the Veteran presumptive service connection.  See 38 C.F.R. §§ 3.307, 3.309.

Although no hearing loss disability was shown to have existed in service, or within one year of the Veteran's separation from service, service connection can still be established on the basis of post-service evidence of a nexus between current hearing loss and service.  38 C.F.R. § 3.303(d); see Hensley v. Brown, 5 Vet. App. 155 (1993).  In determining whether such a nexus exists, the Board is mindful that it must consider the Veteran's contentions in conjunction with the circumstances of his service.  38 U.S.C.A. § 1154(a) (West 2002).  

In this case, the Veteran contends that he was exposed to loud noises during service.  He states, among other things, that while stationed in Japan, he was exposed to acoustic trauma from bomber planes, fighter jets, and gunfire.  The Veteran's DD Form 214 shows that his military occupational specialty was that of a shipping and receiving checker and also that was qualified as a sharpshooter.  The Veteran also submitted copies of certain personnel records indicating that he was stationed in Iwo Jima and his DD Form 214 reveals that he received the Army Occupation Ribbon, which is also evidence of his overseas service in Japan during World War II.  Based on this evidence, the Board finds credible the Veteran's account of noise exposure in service, as it is consistent with the circumstances of his service.  The Board also finds no basis upon which to refute the Veteran's assertions regarding the onset and continuity of his tinnitus symptomatology.  Thus, the question as to both claimed disabilities is one of nexus.

In the instant case, the audiologist who examiner the Veteran concluded that it was at least as likely as not that the Veteran's hearing loss and tinnitus were related to his acoustic trauma sustained in service.  The audiologist relied on the Veteran's complaints of in-service noise exposure, his assertions of ringing in his ears at that time, and the report of a private hearing examination that suggested that the Veteran's symmetric sensorineural hearing loss and tinnitus were likely related to service.  A review of the private hearing examination shows that the audiologist's opinion was based on the Veteran's alleged in-service noise exposure, post-service work history, and lack of any significant post-service ear injuries or diseases.  

The Board notes that the RO denied service connection for hearing loss and tinnitus upon finding that the Veteran was never in Iwo Jima as alleged.  However, the Veteran subsequently submitted copies of personnel records that substantiate his allegations in this regard.  According, given the credible account of in-service noise exposure and after reviewing all the evidence on file, the Board finds no adequate basis to reject the medical evidence of record that is favorable to the Veteran, based on a lack of credibility or probative value, especially in light of the fact that there exists no contrary evidence of record.  Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997); Evans v. West, 12 Vet. App. 22, 26 (1998).  Thus, resolving reasonable doubt in the Veteran's favor, the Board concludes that service connection for bilateral hearing loss and tinnitus is warranted.  38 U.S.C.A. § 5107(b) (West 2002); 38 C.F.R. § 3.102 (2013).

B.  PTSD

The Veteran also seeks service connection for PTSD, which he believes is attributable to his period of active military service.  The Veteran has alleged various stressors said to have occurred while stationed overseas in Japan during World War II.  During his August 2013 hearing, the Veteran stated that he was currently taking anti-depressant medication to treat his PTSD and depressive symptoms, but denied treatment specifically related to PTSD.  

Establishing service connection for PTSD requires:  (1) a medical diagnosis of PTSD utilizing the DSM-IV criteria, in accordance with 38 C.F.R. § 4.125(a); (2) credible supporting evidence that the claimed in-service stressor actually occurred; and (3) medical evidence of a causal nexus between current symptomatology and the specific claimed in-service stressor.  See Cohen v. Brown, 10 Vet. App. 128, 138 (1997); 38 C.F.R. § 3.304(f).

The Veteran was afforded a VA contract (QTC) examination in June 2012 to determine whether he suffered from PTSD as a result of an in-service stressor.  The examiner reviewed the claims folder and interviewed the Veteran regarding his alleged in-service stressors, which included Japanese soldiers hiding in caves and occasionally stealing food from the Veteran's camp and an incident involving a plane flight.  The examiner concluded that the stressor involving the Japanese soldiers was sufficient to meet Criterion A of the DSM-IV criteria, but that the second stressor was not.  Regardless, however, of whether either stressor met Criterion A, the examiner concluded that the Veteran did not have a diagnosis of PTSD the conformed to the DSM-IV criteria because the Veteran's persistent avoidance of stimuli associated with the trauma (Criterion C) was indicated by only efforts to avoid thoughts, feelings, or conversations associated with the trauma, whereas Criterion C requires a showing of three or more indicators.  

The Veteran also failed to exhibit a sufficient number of persistent symptoms of increased arousal related to PTSD (Criterion D).  Notably, the examiner indicated only the presence of hypervigilance under Criterion D; however, the examiner later indicated chronic sleep impairment, which raises a question as to whether the examiner should have also noted difficulty falling or staying asleep under Criterion D.  In any event, the examiner went on to discuss the fact that the Veteran explained that his hypervigilance, described as jumpiness and hyperawareness, developed in conjunction with his work as a high-voltage electrician.  Thus, regardless of whether the Veteran experiences sleep difficulties related to his alleged PTSD, it seems apparent that his hypervigilance is unrelated.  Further, given that the Veteran failed to demonstrate a sufficient number of Criterion C indicators, a diagnosis of PTSD would not conform with the DSM-IV criteria whether Criterion D was met or not.  

As to whether service connection is warranted for PTSD, the Board finds that the evidence fails to confirm a current diagnosis of PTSD according to the DSM-IV criteria, as required by 38 C.F.R. § 4.125.  Without evidence of a current diagnosis of PTSD, there can be no award of service connection, as there is no current disability as defined by regulation.  See Davidson and Cohen, both supra; 38 C.F.R. § 4.125; see also Caluza v. Brown, 7 Vet. App. 498, 506 (1995) (stating that without "competent evidence of current disability," there can be no award of service connection); Degmetich v. Brown, 104 F.3d 1328, 1329, 1333 (Fed.Cir.1997) (affirming that 38 U.S.C.A. § 1131 requires a presently existing disability in order for a veteran to be entitled to compensation under that statute).  Accordingly, because the evidence of record fails to reveal a diagnosis of PTSD that meets the regulatory requirements, there is simply no basis upon which to award service connection.  38 C.F.R. §§ 4.135(b); see Cohen, Caluza, and Degmetich, all supra.

In this regard, the Board is aware that in certain situations, lay evidence may be sufficient to diagnose a medical condition.  See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir 2007) (discussing when lay evidence is sufficient to establish a diagnosis).  While the Veteran has asserted that he currently suffers from PTSD, his statements are not considered competent evidence of a diagnosis because PTSD is not the type of disability that a lay person is competent to diagnose PTSD, as a diagnosis of PTSD requires a certain set of symptoms, indicators, and responses that meet a defined set of criteria.  Id.  Further, the objective evidence of record does not support a diagnosis of PTSD.

Under the circumstances, the Board finds that a preponderance of the evidence is against the Veteran's claim for service connection for PTSD.  Because the evidence fails to establish that the Veteran has, at any point during the pendency of his claim, met the requisite criteria for a diagnosis of PTSD, his claim must be denied.  See Cohen, supra.  In finding that service connection for PTSD is not warranted, the Board has considered the applicability of the benefit-of-the-doubt doctrine.  However, as the preponderance of the evidence is against the claim, that doctrine is not applicable. See 38 U.S.C.A. § 5107(b) (West 2002); Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990); 38 C.F.R. § 3.102 (2013).  The Board notes that its finding in this regard does not preclude an award of service connection for depression, which claim is being remanded, if depression is found on examination and determined to be related to the Veteran's service.



ORDER

Entitlement to service connection for PTSD is denied.

Entitlement to service connection for bilateral hearing loss is granted.

Entitlement to service connection for tinnitus is granted.


REMAND

The Veteran is seeking service connection for depression, hypertension, right and left shoulder disabilities, a heart condition, and stomach problems/residuals of gallbladder surgery.  He also asserts entitlement to TDIU.  Specifically, the Veteran contends that he developed disabilities of both shoulders as a result of the jobs to which he was assigned during service, including the unloading of supplies and equipment from barges.  He also asserts that the constant worry and stress associated with serving overseas in Japan during World War II led to his development of hypertension, depression, and heart conditions.  He also suggests that his hypertension may be secondary to depression and that his heart condition, to include coronary artery disease (CAD) may be secondary to his hypertension and/or depression.  The Veteran also indicated that the food that he ate in service caused stomach problems and heartburn, which contributed to him having his gallbladder removed.  He further asserts that as a result of his disabilities, he is unemployable.

The Board observes that the Veteran has not been afforded VA examinations in connection with his claims of service connection for depression, hypertension, right and left shoulder disabilities, a heart condition, and stomach problems/residuals of gallbladder surgery.  In accordance with the duty-to-assist provisions codified at 38 U.S.C.A § 5103A(d) and by regulation found at 38 C.F.R. § 3.159(c)(4), a medical opinion or examination is required if the information and evidence of record does not contain sufficient medical evidence to decide the claim, but there is-

(1) competent evidence of a current disability or persistent or recurrent symptoms of a disability; and (2) evidence establishing that an event, injury, or disease occurred in service or establishing certain diseases manifesting during an applicable presumptive period for which the claimant qualifies; and (3) an indication that the disability or persistent or recurrent symptoms of a disability may be associated with the veteran's service or with another service-connected disability.

See McLendon v. Nicholson, 20 Vet. App. 79 (2006).  

At the outset, the Board notes that the Veteran's medical records show current diagnoses of CAD, among other heart conditions, hypertension, and a left rotator cuff tear; a previous surgery on the right shoulder; gallstones and prior gallbladder surgery; complaints of diarrhea and abdominal pain; and that the Veteran is currently taking Zoloft.  The Veteran has also proffered his theories for why these disabilities should be service connected, which included several assertions regarding the onset of symptoms in service and continuity of such symptoms since that time.  

Based on this evidence, and in consideration of the fact that where records are missing, VA has a heightened duty to assist, see Moore v. Derwinski, 1 Vet. App. 401, 406 (1991), the Board has determined that the "low threshold" necessary to establish entitlement to a VA medical examination has been satisfied.  See McLendon, 20 Vet. App. at 83.  Accordingly, the Board finds that the claims of service connection for depression, hypertension, right and left shoulder disabilities, a heart condition, and stomach problems/residuals of gallbladder surgery must be remanded for VA medical examinations that address the nature and etiology of the Veteran's current claimed disabilities, to include consideration of whether any disability may be secondary to another.  

Regarding the issue of entitlement to TDIU, that matter it is inextricably intertwined with the claims being remanded because the outcome of these claims may have a bearing upon whether TDIU is warranted.  As such, the Board will defer action on the issue of entitlement to a TDIU until after the remanded issues are readjudicated.  See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991) (two issues are "inextricably intertwined" when they are so closely tied together that a final Board decision cannot be rendered unless both issues have been considered).

Accordingly, the case is REMANDED to the agency of original jurisdiction (AOJ) for the following action:

(Please note, this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012).  Expedited handling is requested.)

1.  The AOJ should send to the Veteran a new VCAA notice letter.  The letter should specifically notify him of the information and evidence necessary to substantiate his claims for service connection for hypertension and a heart condition on a secondary basis.  The Veteran should be given an opportunity to respond to the notice, and any additional information or evidence received should be associated with the claims file.

2.  Schedule the Veteran for a VA examination in connection with his claim of service connection for depression.  The claims folder, and a copy of this remand, must be provided to and reviewed by the examiner as part of the examination.  

The examiner must review the record, interview the Veteran, and provide an opinion as to whether he has depression or any other acquired psychiatric disorder, other than PTSD as that claim has been denied.  The examiner should take note that the Veteran presented with symptoms of depression in February 2009 and has been prescribed Zoloft and should discuss whether this indicates a diagnosis of depression.  

The examiner must then provide an opinion as to as to whether it is more likely than not that any diagnosed depression or other acquired psychiatric disability had its clinical onset in service or is otherwise related to the Veteran's active duty.  The examiner should take note of the fact that the Veteran's STRs are fire related and thus should pay particular attention to the Veteran's lay statements regarding the onset and continuity of symptoms.

The examiner should also comment on the Veteran's employment and employability.  (A detailed history of education and employment should be taken.)  The examiner is requested to provide an opinion as to whether the Veteran is unable to secure or follow substantially gainful employment consistent with his education and occupational experience on account of any diagnosed acquired psychiatric disorder.

Regardless of whether the examiner's opinion as to any question is favorable or negative, the examiner must provide support for his/her opinion that includes reference to lay or medical evidence contained in the claims folder or to known medical principles relied upon in forming his/her opinion.  

3.  Schedule the Veteran for a VA orthopedic examination in connection with his claim of service connection for a bilateral shoulder disability.  The claims folder, and a copy of this remand, must be provided to and reviewed by the examiner as part of the examination.  All necessary tests, to include x-rays, should be performed and the results of any testing should be included in the claims folder.

The examiner should be asked to review the entire record, take a detailed history from the Veteran, and identify all current left or right should disabilities, to include any residuals of the Veteran's previous shoulder surgeries.

The examiner should then provide an opinion as to whether any currently diagnosed left or right shoulder disability, or any prior disability leading to the Veteran's previous shoulder surgeries, is at least as likely as not related to his period of military service.  

The examiner should take note of the fact that the Veteran's STRs are fire related and thus should pay particular attention to the Veteran's lay statements regarding the onset and continuity of symptoms.  As part of that opinion, the examiner must specifically consider the impact of the Veteran's service jobs on his shoulders.  

The examiner should also comment on the Veteran's employment and employability.  (A detailed history of education and employment should be taken.)  The examiner is requested to provide an opinion as to whether the Veteran is unable to secure or follow substantially gainful employment consistent with his education and occupational experience on account of any diagnosed shoulder disability.

Regardless of whether the examiner's opinion as to any question is favorable or negative, the examiner must provide support for his/her opinion(s).  This includes reference to lay or medical evidence contained in the claims folder, if appropriate, or to known medical principles relied upon in forming his/her opinion.  

4.  Schedule the Veteran for a VA examination in connection with his claim of service connection for stomach problems/residuals of gallbladder surgery.  The claims folder, and a copy of this remand, must be provided to and reviewed by the examiner as part of the examination.  All necessary tests should be performed and the results of any testing should be included in the claims folder.

The examiner should be asked to review the entire record, take a detailed history from the Veteran, and identify all current gastrointestinal disorders and any residuals of the Veteran's previous gallbladder surgery.  

The examiner should then provide an opinion as to whether any currently diagnosed gastrointestinal disability, or the Veteran's development of gallstones and subsequent gallbladder removal, is at least as likely as not related to his period of military service.  

The examiner should take note of the fact that the Veteran's STRs are fire related and thus should pay particular attention to the Veteran's lay statements regarding the onset and continuity of symptoms.  Medical reasons to accept or reject the Veteran's assertion that the food he ate in service caused his stomach disorder(s) and led to the development of gallstones should be set forth.

The examiner should also comment on the Veteran's employment and employability.  (A detailed history of education and employment should be taken.)  The examiner is requested to provide an opinion as to whether the Veteran is unable to secure or follow substantially gainful employment consistent with his education and occupational experience on account of any diagnosed stomach disorder or residual of gallbladder surgery.

Regardless of whether the examiner's opinion as to any question is favorable or negative, the examiner must provide support for his/her opinion(s).  This includes reference to lay or medical evidence contained in the claims folder, if appropriate, or to known medical principles relied upon in forming his/her opinion.  

5.  After the development ordered in paragraphs 1and 2 above is completed, schedule the Veteran for a VA examination in connection with his claim of service connection for hypertension.  The claims folder, and a copy of this remand, must be provided to and reviewed by the examiner as part of the examination.  All necessary tests should be performed and the results of any testing should be included in the claims folder.

The examiner should be asked to review the entire record and take a detailed history from the Veteran.  The examiner should then opine as to whether it is as least as likely as not that the Veteran's hypertension had its onset during the Veteran's active duty or is otherwise causally or etiologically related to his active service or any incident therein.  In this regard, the examiner should also provide an opinion as to the whether the Veteran's hypertension manifested to a compensable degree within a year of his active duty service.  

An opinion should also be rendered as to whether it is at least as likely as not the Veteran's depression or any other acquired psychiatric disorder, if diagnosed, has caused or made chronically worse the Veteran's hypertension.

The examiner should take note of the fact that the Veteran's STRs are fire related and thus should pay particular attention to the Veteran's lay statements regarding the onset and continuity of symptoms.  Medical reasons to accept or reject the Veteran's assertion that the worry and stress associated with his military service caused his hypertension should be set forth.

The examiner should also comment on the Veteran's employment and employability.  (A detailed history of education and employment should be taken.)  The examiner is requested to provide an opinion as to whether the Veteran is unable to secure or follow substantially gainful employment consistent with his education and occupational experience on account of his hypertension.

Regardless of whether the examiner's opinion as to any question is favorable or negative, the examiner must provide support for his/her opinion that includes reference to lay or medical evidence contained in the claims folder, if appropriate, or to known medical principles relied upon in forming his/her opinion.  

6.  After the development ordered in paragraphs 1and 2 above is completed, the Veteran should be scheduled for an appropriate VA examination to determine the nature and etiology of his claimed heart conditions, to include CAD.  The claims folder, and a copy of this remand, must be provided to and reviewed by the examiner as part of the examination.  Any and all studies, tests, and evaluations deemed necessary by the examiner should be performed.

The examiner should identify all heart related disabilities and provide an opinion as to whether the Veteran's current CAD, or any other heart disorder, had its(their) onset during the Veteran's active duty or is(are) otherwise causally or etiologically related to his active service or any incident therein.  

An opinion should also be rendered as to whether it is at least as likely as not the Veteran's depression, if diagnosed, and/or hypertension, has caused or made chronically worse any identified heart disorder, to include CAD.  

The examiner should take note of the fact that the Veteran's STRs are fire related and thus should pay particular attention to the Veteran's lay statements regarding the onset and continuity of symptoms.  Medical reasons to accept or reject the Veteran's assertion that the worry and stress associated with his military service caused his heart conditions should be set forth.

The examiner should also comment on the Veteran's employment and employability.  (A detailed history of education and employment should be taken.)  The examiner is requested to provide an opinion as to whether the Veteran is unable to secure or follow substantially gainful employment consistent with his education and occupational experience on account of any his CAD or any other diagnosed heart condition.

A full and complete rationale for all opinions expressed is required.  Regardless of whether the examiner's opinion is favorable or negative, he/she must provide support for all opinions rendered that includes reference to lay or medical evidence contained in the claims file, if appropriate, or to known medical principles relied upon in forming his opinion.  

7.  The AOJ should review the reports prepared by examiners, and if any examiner determines that he/she cannot provide an opinion on any issue at hand without resorting to speculation, the examiner should be asked to explain the inability to provide an opinion, identifying precisely what facts could not be determined.  In particular, he/she should comment on whether an opinion could not be rendered because the limits of medical knowledge have been exhausted regarding the etiology of any diagnosed disorder or whether additional testing or information could be obtained that would lead to a conclusive opinion.  See Jones v. Shinseki, 23 Vet. App. 382, 389 (2010).  (The AOJ should ensure that any additional evidentiary development suggested by the examiner should be undertaken so that a definite opinion can be obtained.)

The AOJ must ensure that all medical examination reports and opinion reports comply with this remand and the questions presented in the request.  If any report is insufficient, it must be returned to the examiner for necessary corrective action, as appropriate.

8.  After undertaking any other development deemed appropriate, the AOJ should review the record and re-adjudicate the issues remaining on appeal.  If any benefit sought is not granted, the Veteran should be furnished with a supplemental statement of the case (SSOC) and afforded an opportunity to respond before the record is returned to the Board for further review.

Thereafter, the case should be returned to the Board for further appellate review.  By this remand, the Board intimates no opinion as to any final outcome warranted. No action is required of the Veteran until he is notified.  The Veteran has the right to submit additional evidence and argument on the matters the Board has remanded.  Kutscherousky v. West, 12 Vet. App. 369 (1999).

This case must be afforded expeditious treatment.  The law requires that all claims that are remanded by the Board 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. 2013).



______________________________________________
J. A. MARKEY
Veterans Law Judge, Board of Veterans' Appeals


Department of Veterans Affairs