Citation Nr: 1331656 Decision Date: 10/02/13 Archive Date: 10/07/13 DOCKET NO. 08-39 825 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Detroit, Michigan THE ISSUES 1. Entitlement to an initial disability rating in excess of 10 percent for diabetes mellitus, type II. 2. Entitlement to service connection for a low back disability. 3. Entitlement to service connection for hypertension, to include as secondary to service-connected diabetes mellitus, type II. 4. Entitlement to service connection for peripheral neuropathy of the bilateral upper and lower extremities, to include as secondary to service-connected diabetes mellitus, type II. 5. Entitlement to service connection for erectile dysfunction, to include as secondary to service-connected diabetes mellitus, type II. 6. Entitlement to special monthly compensation based on loss of use of a creative organ. 7. Entitlement to service connection for an inguinal hernia. 8. Entitlement to service connection for obstructive sleep apnea, to include as secondary to service-connected diabetes mellitus, type II. 9. Entitlement to service connection for an acquired psychiatric disorder, to include dysthymia, depression, and anxiety. REPRESENTATION Veteran represented by: The American Legion WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD M. Moore, Associate Counsel INTRODUCTION The Veteran served on active duty from April 1969 to April 1973 with service in the Republic of Vietnam from November 1969 to November 1970. These matters come before the Board of Veterans' Appeals (Board) on appeal from a February 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Detroit, Michigan, which granted service connection for diabetes mellitus, type II (DM), assigning a 10 percent evaluation effective June 27, 2006; a June 2008 rating decision from the Detroit RO, which continued a 10 percent evaluation for DM and denied service connection for chronic lumbar strain with degenerative disc disease at the L5-S1 level, hypertension, hypercholesteremia, and peripheral neuropathy of the upper and lower extremities; a March 2010 rating decision from the Detroit RO, which denied service connection for erectile dysfunction (ED) and an inguinal hernia and denied entitlement to special monthly compensation (SMC) based on loss of use; and an April 2012 rating decision from the Detroit RO, which denied service connection for dysthymic disorder with alcohol abuse and sleep apnea. In June 2008, March 2010, and May 2012, the Veteran submitted notices of disagreement with the evaluation assigned for DM and all of the denials except the denial of service connection for hypercholesteremia. He subsequently perfected his appeals in December 2008, October 2011, and October 2012. In May 2013, the Veteran presented sworn testimony during a Travel Board hearing in Detroit, Michigan, which was chaired by the undersigned Acting Veterans Law Judge. A transcript of the hearing has been associated with the Veteran's claims file. On his October 2012 VA Form 9, the Veteran indicated that he had been diagnosed with kidney disease, calculi of the kidneys, and calculi of the gall bladder which he seemed to attribute to his military service or service-connected DM. Thus, the issues of entitlement to service connection for kidney disease, calculi of the kidneys, and calculi of the gall bladder have been raised by the record, but have not been adjudicated by the Agency of Original Jurisdiction (AOJ). Therefore, the Board does not have jurisdiction over them, and they are referred to the AOJ for appropriate action. The issue of entitlement to service connection for a low back disability, hypertension, peripheral neuropathy of the bilateral upper and lower extremities, ED, an inguinal hernia, and sleep apnea and entitlement to SMC based on loss of use 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. VA will notify the Veteran if further action on his part is required. FINDINGS OF FACT 1. At his May 2013 Board hearing, prior to the promulgation of a decision, the Veteran indicated on the record that he wished to withdraw his appeal for an increased initial rating for DM. 2. The evidence does not establish that the Veteran experienced psychiatric symptoms or was diagnosed with a psychiatric disorder in service. 3. There is no medical evidence showing a causal link between the Veteran's current psychiatric disability and any in-service disease or injury. CONCLUSIONS OF LAW 1. The criteria for withdrawal of a Substantive Appeal on the issue of entitlement to an increased initial rating for DM by the Veteran have been met and the appeal is withdrawn. 38 U.S.C.A. § 7105(b)(2), (d)(5) (West 2002); 38 C.F.R. § 20.204 (2013). 2. An acquired psychiatric disorder was not incurred in or aggravated by the Veteran's active duty service. 38 U.S.C.A. §§ 1110, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.159, 3.303, 3.304 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Board has thoroughly reviewed all the evidence in the Veteran's claims file. While the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, the evidence submitted by the Veteran or on his behalf. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (the Board must review the entire record, but does not have to discuss each piece of evidence). The analysis below focuses on the most salient and relevant evidence and on what this evidence shows, or fails to show, on the claim. The Veteran must not assume that the Board has overlooked pieces of evidence that are not explicitly discussed herein. See Timberlake v. Gober, 14 Vet. App. 122 (2000) (the law requires only that the Board address its reasons for rejecting evidence favorable to the Veteran). The Board must assess the credibility and weight of all evidence, including the medical evidence, to determine its probative value, accounting for evidence which it finds to be persuasive or unpersuasive, and providing reasons for rejecting any evidence favorable to the Veteran. Equal weight is not accorded to each piece of evidence contained in the record; every item of evidence does not have the same probative value. When all the evidence is assembled, the Board 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 a claim, in which case, the claim is denied. See Gilbert v. Derwinski, 1 Vet. App. 49 (1990). I. Veterans Claims Assistance Act of 2000 (VCAA) With respect to the Veteran's dismissed increased rating for DM claim, as the claim is being dismissed, any issues regarding VCAA notice are irrelevant. With respect to the Veteran's claim for service connection for an acquired psychiatric disorder, VA has a duty to notify and a duty to assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5103, 5103A; 38 C.F.R. §§ 3.159, 3.326(a) (2013). Proper notice from VA must inform the claimant and his representative, if any, prior to the initial unfavorable decision on a claim by the AOJ of any information and any 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 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004); Quartuccio v. Principi, 16 Vet. App. 183 (2002). These notice requirements apply to all five elements of a service-connection claim (Veteran status, existence of a disability, a connection between the Veteran's service and the disability, degree of disability, and effective date of the disability). Dingess v. Nicholson, 19 Vet. App. 473 (2006). Information that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded must be included. Id. A May 2011 letter provided all required notice elements, including information regarding disability ratings and effective dates. The Board also concludes VA's duty to assist has been satisfied. The Veteran's service treatment records, VA examination reports, and VA treatment records are in the file. The Veteran has not identified any private or other treatment records that he believes are relevant to this claim. The record indicates that the Veteran underwent a VA examination to address his psychiatric disorder in August 2011. The report from that examination has been included in the claims file for review. The examination involved a review of the claims file, a thorough examination of the Veteran, and a conclusion that was supported by sufficient rationale. Therefore, the Board finds that the August 2011 examination is adequate for to decide the Veteran's psychiatric disorder claim. See Barr v. Nicholson, 21 Vet. App. 303, 311 (2007) (affirming that a medical opinion is adequate if it provides sufficient detail so that the Board can perform a fully informed evaluation of the claim). Some discussion of the Veteran's May 2013 personal hearing finally is necessary. The individual presiding over a hearing must comply with the duties set forth in 38 C.F.R. § 3.103(c)(2). See Bryant v. Shinseki, 23 Vet. App. 488 (2010). These duties consist of (1) fully explaining the issues and (2) suggesting the submission of evidence that may have been overlooked. They were met here. The issues on appeal were identified. Information was also elicited from the Veteran concerning his contentions regarding the etiology of his psychiatric disorder. As there is no indication that any failure on the part of VA to provide additional notice or assistance reasonably affects the outcome of this claim, the Board finds that any such failure is harmless. See Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). II. Merits of the Claims A. Increased Rating for DM Under 38 U.S.C.A. § 7105, the Board may dismiss any appeal which fails to allege specific error of fact or law in the determination being appealed. A Substantive Appeal may be withdrawn in writing at any time before the Board promulgates a decision. 38 C.F.R. § 20.202 (2013). Withdrawal may be made by the veteran or by his or her authorized representative. 38 C.F.R. § 20.204 (2013). On the record at his May 2013 hearing, the Veteran expressly withdrew his appeal for an increased initial rating for DM. This withdrawal was effective immediately upon receipt by the Board at the May 2013 hearing. 38 C.F.R. § 20.204(b)(3) (2013). Hence, there remain no allegations of errors of fact or law for appellate consideration for this issue. Accordingly, the Board does not have jurisdiction to review this appeal and it is dismissed. B. Service Connection for an Acquired Psychiatric Disorder The Veteran claims that his acquired psychiatric disorder is the result of his military service. Therefore, he believes service connection is warranted. Service connection may be established for a 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 (West 2002). However, that an injury or disease occurred in service is not enough; there must also be a chronic disability resulting from that injury or disease. If there is no showing of the chronic disability during service, then a showing of continuous symptoms after service is required to support a finding of chronicity. 38 C.F.R. § 3.303(b) (2013). For this purpose, a chronic disease is one listed at 38 C.F.R. § 3.309(a). See Walker v. Shinseki, 708 F.3d 1331, 1338-39 (Fed. Cir. Feb. 21, 2013) (holding that the term "chronic disease in 38 C.F.R. § 3.309(b) is limited to a chronic disease listed at 38 C.F.R. § 3.309(a)). A grant of service connection under 38 C.F.R. § 3.303(b) does not require proof of the nexus element; it is presumed. Id. 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) (2013). In order to establish service connection for a disability, there must be (1) medical evidence of a current disability; (2) medical or, in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the current disability. See Hickson v. West, 12 Vet. App. 247, 253 (1999). Post-service VA treatment records show diagnoses of depression and dysthymia. Additionally, an August 2011 VA psychiatric examiner diagnosed the Veteran with dysthymic disorder and alcohol abuse. As such, the first element of Hickson is met. A review of the service treatment records is negative for any psychiatric diagnoses or complaints. Although the Veteran has claimed that he was treated for hives caused by his "nerves" in service, there are no service treatment records to corroborate this contention. However, the Board finds that a lay person is not capable of relating hives to a case of "nerves" or other psychiatric disorder. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Even if the Board were to ignore the lack of an in-service disease or injury, the Veteran's claim would still fail as there is no evidence to support a medical nexus between his military service and his current psychiatric disability. The Veteran was afforded a VA psychiatric examination in August 2011. At the time, he complained of depression, anxiety, panic attacks, and sleep impairment. The examiner noted his report of treatment for nerves-related hives in service, but upon review of the service treatment records was unable to find any such diagnosis of hives or anxiety. In fact, in service it was noted that his skin problems were instead related to "infected chigger bites" and "jock rash." The examiner also noted the Veteran's mental health treatment and medication since 2010. The examiner diagnosed him with dysthymic disorder and alcohol abuse and concluded that his psychiatric disorder was less likely than not related to his military service because there was no documentation of any in-service psychiatric complaints, symptoms, treatment, or diagnoses. Without any evidence of psychiatric complaints in service or until nearly 40 years after discharge, the examiner was unable to link current psychiatric disability to his military service. The Board also finds that the opinion is based on more than just the absence of treatment for a psychiatric condition in service. It is also based on the fact that in-service treatment for skin problems was not related to a nervous condition or other psychiatric disability. The medical evidence also includes VA psychiatric treatment records. These records show the Veteran's diagnoses of depression and dysthymia and are generally consistent with the VA examination. However, none of the treatment records link the Veteran's psychiatric disability to his military service. The only other evidence which purports to link the Veteran's current psychiatric disability to his military service consists of the statements of the Veteran and his representative. Although lay persons are competent to provide opinions on some medical issues, see Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011), as to the specific issue in this case, the etiology of a psychiatric disability falls outside the realm of common knowledge of a lay person. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007) (lay persons not competent to diagnose cancer). Although the Board readily acknowledges that Veteran is competent to report psychiatric symptoms such as depressed mood and anxiety, there is no indication that the Veteran is competent to etiologically associate these symptoms to his military service. The Veteran has not been shown to possess the requisite medical training, expertise, or credentials needed to render a diagnosis or a competent opinion as to medical causation. Nothing in the record demonstrates that the Veteran received any special training or acquired any medical expertise in evaluating psychiatric disorders. See King v. Shinseki, 700 F.3d 1339, 1345 (Fed.Cir.2012). This lay evidence does not constitute competent medical evidence and lacks probative value. The Board is also aware of the provisions of 38 C.F.R. § 3.303(b), referenced above, relating to chronicity and continuity of symptomatology. However, the Board notes that the provisions of 38 C.F.R. § 3.303(b) only apply to chronic diseases as listed in 38 C.F.R. § 3.309(a). See Walker, supra. Depression and dysthymia are not on the list of chronic diseases. Although psychosis is on the list of chronic diseases, the Veteran has not been diagnosed with psychosis. As such, the Board finds that the medical nexus element of Hickson cannot be met via continuity of symptomatology. As explained above, the more competent medical evidence of record does not demonstrate that there is a relationship between the Veteran's active duty service and his current psychiatric disability. Although the Board notes the Veteran's current disability and claimed in-service complaints, without sufficiently probative evidence of a medical nexus, service connection cannot be granted. Accordingly, the Board finds that the claim of entitlement to service connection for an acquired psychiatric disorder, to include dysthymia, depression, and anxiety, must be denied. In reaching this conclusion, the Board has considered the applicability of the benefit-of-the-doubt doctrine. However, as the preponderance of the evidence is against the Veteran's claim of entitlement to service connection, that doctrine is not applicable. 38 U.S.C.A. § 5107(b) (West 2002); 38 C.F.R. § 3.102 (2012); see also Ortiz v. Principi, 274 F.3d 1361, 1365 (Fed. Cir. 2001). ORDER The appeal of the February 2008 rating decision assigning a 10 percent initial evaluation for diabetes mellitus, type II, is dismissed. Entitlement to service connection for an acquired psychiatric disorder, to include dysthymia, depression, and anxiety, is denied. REMAND After a thorough review of the Veteran's claims file, the Board has determined that additional evidentiary development is necessary prior to the Board's adjudication of the Veteran's claims of entitlement to service connection for service connection for a low back disability, hypertension, peripheral neuropathy of the bilateral upper and lower extremities, ED, an inguinal hernia, and sleep apnea and entitlement to SMC based on loss of use. With regard to the Veteran's claim for service connection for a low back disability, an April 2012 VA treatment record indicates that the Veteran now receives disability benefits for his back. Although the treatment record does not specifically indicate that these are Social Security Administration (SSA) disability benefits, an October 2010 VA treatment record indicates that the Veteran was considering applying for SSA disability benefits. As such, the Board finds that this at least raises the possibility that the Veteran has applied for and now receives SSA disability benefits for his low back disability. Under the duty to assist, VA will make as many requests as are necessary to obtain relevant records from a Federal department or agency, to include SSA. 38 C.F.R. § 3.159(c)(2) (2012); see also Golz v. Shinseki, 590 F.3d 1317 (Fed. Cir. 2010). When VA has actual notice of the existence of records held by SSA that appear relevant to the claim before VA, VA has a duty to assist by requesting those records from SSA. See Murincsak v. Derwinski, 2 Vet. App. 363, 369-70 (1992). As the April 2012 VA treatment record indicates that there may be outstanding SSA records that are relevant to the Veteran's low back claim, the AMC should attempt to obtain any relevant SSA records on remand. The Veteran also identified private treatment records that are potentially relevant to his low back claim at his May 2013 Board hearing. Specifically, he indicated that he received treatment for his low back in the form of traction within a few years of discharge at Receiving or Harpers Hospital. However, the claims file is negative for any treatment records from either of these hospitals, and there appears to have been no effort made to obtain these treatment records. On remand, the Veteran should be asked to complete a release of information for these records, and any such available records should be associated with the claims file. With regard to the Veteran's claims for service connection for hypertension and ED and SMC for loss of use, he was afforded a VA examination to address his DM and any associated complications in May 2008 and a VA genitourinary examination in April 2009. The May 2008 and April 2009 VA examiners concluded that the Veteran's hypertension and ED were not secondary to his DM because they predated his DM diagnosis. However, the examiners failed to provide an opinion on whether the Veteran's hypertension or ED was aggravated by his service-connected DM. Additionally, the May 2008 VA examiner failed to address the Veteran's August 1973 reserves examination, months after his separation from active duty, which showed a blood pressure reading of 150/80 and whether this demonstrated the onset of hypertension within the presumptive one year period after discharge or supported a nexus between the Veteran's current hypertension and his military service. In light of these deficiencies, the opinions of record are not sufficient for the Board to render a decision on the issues of service connection for hypertension and ED, to include as secondary to service-connected DM, and SMC for loss of use of a creative organ. See Barr, supra. With regard to the Veteran's claim for service connection for sleep apnea, he was afforded a VA examination in August 2011. The examiner diagnosed him with mild obstructive sleep apnea and concluded that it was not related to his military service or service-connected DM. However, the only rationale he provided for this conclusion was "review of records and medical literature." Although the review of the medical evidence and literature is imperative to an adequate rationale, it is not a rationale within itself. As the examiner failed to provide an adequate rationale for his conclusion, this opinion is not sufficient to render a decision on the issue of service connection for sleep apnea. See Barr, supra. With regard to the Veteran's claim for service connection for peripheral neuropathy of the bilateral upper and lower extremities, this claimed disability was addressed in the above-referenced May 2008 VA DM examination. The Veteran denied any history of tingling or numbness in his hands or feet or other symptoms of peripheral neuropathy. As the Veteran had no complaints of peripheral neuropathy, the examiner did not provide an opinion on whether any peripheral neuropathy was secondary to service-connected DM. However, at his May 2013 Board hearing, the Veteran testified that he now experiences tingling in his hands when his blood sugar is elevated. As he now complains of possible peripheral neuropathy symptoms, the Board finds that a new VA opinion/examination on whether he has peripheral neuropathy secondary to his service-connected DM is warranted. Finally, with regard to the claim for service connection for an inguinal hernia, the Veteran has not been afforded a VA examination to address this claimed disability. The Veteran claims that he first experienced an inguinal hernia in service and that it was misdiagnosed as food poisoning. His service treatment records are negative for any treatment for an inguinal hernia or food poisoning. However, his April 1973 separation examination notes a 3-inch scar in the right inguinal region. This scar was not noted on his April 1969 entrance examination. Additionally, an August 1973 report of medical history indicates that the Veteran had a hernia that was surgically repaired at birth with no residuals. The duty to assist includes providing a medical examination or obtaining a medical opinion when such is necessary to make a decision on the claim, as defined by law. The case of McLendon v. Nicholson, 20 Vet. App. 79 (2006), held that an examination is required when there is: (1) evidence of a current disability, (2) evidence establishing an "in-service event, injury or disease," or a disease manifested in accordance with presumptive service connection regulations occurred which would support incurrence or aggravation, (3) an indication that the current disability may be related to the in-service event, and (4) insufficient evidence to decide the case. In light of the evidence showing an in-service notation of an right inguinal region scar, the Veteran's current complaints of inguinal hernia symptoms, and his contention that his current complaints are the result of his military service, the Board finds that an examination and medical nexus opinion are necessary in order to properly resolve the claim of entitlement to service connection for an inguinal hernia. 38 U.S.C.A. § 5103A(d) (West 2002 & Supp. 2012); see also McLendon, supra. Additionally, the Veteran claims that he was treated for his inguinal hernia in 1986 at Blaine Clinic. He submitted a release of information for these records and VA attempted to obtain them. However, it does appear that VA was successful in obtaining these records or confirming that they are unavailable. On remand, the AMC should again try to obtain these records. As the United States Court of Appeals for Veterans Claims (Court) explained in Colvin v. Derwinski, 1 Vet. App. 171, 175 (1991), the Board may consider only independent medical evidence to support its medical findings. The Court went on to say that, if the medical evidence of record is insufficient, the Board is free to supplement the record by seeking an advisory opinion, ordering a medical examination or citing recognized medical treatises in its decisions that clearly support its ultimate conclusions. See Colvin at 175. For the reasons described above, the Veteran's claims of entitlement to service connection for hypertension, peripheral neuropathy of the bilateral upper and lower extremities, ED, an inguinal hernia, and sleep apnea and SMC for loss of use of a creative organ must be remanded for new VA examinations/addendum opinions. As the case is being remanded, the Board will take the opportunity to obtain any VA treatment records not yet associated with the claims file. Accordingly, the case is REMANDED for the following actions: 1. Copies of all outstanding VA treatment records from the Detroit VA Medical Center, and any other VA facility identified by the Veteran, should be obtained and added to the claims folder. 2. Appropriate efforts should be taken to obtain a complete copy of the Veteran's SSA disability determination with all associated medical records. After making reasonable efforts, if the AMC cannot obtain these records, it must specifically document the attempts that were made to obtain the records, and indicate in writing that further attempts to locate or obtain any such government records would be futile. The AMC must then: (a) notify the Veteran and his representative of the records that it is unable to obtain; (b) explain the efforts VA has made to obtain that evidence; and (c) describe any further action it will take with respect to the claim. The Veteran and his representative must then be given an opportunity to respond. 3. Contact the Veteran and ask him to provide a signed release of information for treatment records from the Receiving and/or Harpers Hospital, Blaine Clinic, and any other facilities or treatment providers that are relevant to the remanded claims. If the Veteran returns completed release(s) of information, the AMC should obtain these records and associate them with the claims file. 4. Following completion of the above, the Veteran's claims file should be returned to the original May 2008 VA examiner, if possible, for an addendum opinion. The claims folder should be provided to the examiner for review of pertinent documents therein in connection with the examination, and the examination report should reflect that such a review was conducted. The Veteran may be recalled for a new examination if deemed necessary. Specifically, the examiner should provide an opinion on the following: a. Whether it is at least likely as not (a 50 percent probability or greater) that the Veteran's current hypertension had its onset in service or within one year of discharge, or is otherwise shown to be etiologically related to his active service. The examiner should specifically address the blood pressure reading of 150/80 in August 1973. b. If the examiner determines that the Veteran's hypertension is not directly related to service, s/he must state whether it is at least likely as not (a 50 percent probability or greater) that his hypertension was aggravated by his service-connected DM. c. Whether it is at least likely as not (a 50 percent probability or greater) that the Veteran's current ED was aggravated by his service-connected DM. The examiner should specifically address the Veteran's contentions that his ED worsened in 2004 after his DM diagnosis. d. Whether it is at least likely as not (a 50 percent probability or greater) that the Veteran currently has peripheral neuropathy of the bilateral upper and lower extremities that was caused or aggravated by his service-connected DM. The examiner should specifically address the Veteran's complaints at his May 2013 Board hearing that he experiences tingling in his hands when his blood sugar is elevated. If the May 2008 VA examiner is unavailable, the Veteran should be afforded an examination with an appropriate examiner in order to address the above questions. Rationale for all requested opinions shall be provided. If the examiner cannot provide an opinion without resorting to mere speculation, he or she shall provide a complete explanation stating why this is so. In so doing, the examiner shall explain whether the inability to provide a more definitive opinion is the result of a need for additional information or that he or she has exhausted the limits of current medical knowledge in providing an answer to that particular question(s). 5. Thereafter, the Veteran's claims file should be returned to the original August 2011 sleep apnea VA examiner, if possible, for an addendum opinion. The claims folder should be provided to the examiner for review of pertinent documents therein in connection with the examination, and the examination report should reflect that such a review was conducted. The Veteran may be recalled for a new examination if deemed necessary. The examiner must provide a complete rationale for his opinion that the Veteran's sleep apnea was not caused or aggravated by his military service or service-connected DM. If the August 2011 is unavailable, the Veteran's claims file should be provided to an appropriate VA examiner. The examiner should review pertinent documents therein in connection with the examination, and the examination report should reflect that such a review was conducted. The Veteran may be recalled for a new examination if deemed necessary. The examiner must state whether it is at least likely as not (a 50 percent probability or greater) that the Veteran's current sleep apnea was caused or aggravated by his military service or service-connected DM. Rationale for all requested opinions shall be provided. If the examiner cannot provide an opinion without resorting to mere speculation, he or she shall provide a complete explanation stating why this is so. In so doing, the examiner shall explain whether the inability to provide a more definitive opinion is the result of a need for additional information or that he or she has exhausted the limits of current medical knowledge in providing an answer to that particular question(s). 6. Thereafter, schedule the Veteran for a VA examination with an appropriate examiner to determine the nature and etiology of his claimed inguinal hernia. The examiner must review pertinent documents in the Veteran's claims file in conjunction with the examination. This must be noted in the examination report. The examiner should state whether the Veteran currently has an inguinal hernia, to include one that may have resolved during the appeals process. If the examiner diagnoses an inguinal hernia, s/he should state whether it is at least as likely as not (a 50 percent probability or greater) that the disability had its onset in service or is otherwise etiologically related to his active service. The examiner should specifically address the April 1973 notation of a scar in the right inguinal region and the Veteran's sister's statement that she recommended the Veteran seek medical care and wear a truss in 1986. Rationale for all requested opinions shall be provided. If the examiner cannot provide an opinion without resorting to mere speculation, he or she shall provide a complete explanation stating why this is so. In so doing, the examiner shall explain whether the inability to provide a more definitive opinion is the result of a need for additional information or that he or she has exhausted the limits of current medical knowledge in providing an answer to that particular question(s). 7. After completing the above actions and any other development that may be indicated by any response received as a consequence of the actions taken in the paragraphs above, the claims of entitlement to service connection for hypertension, peripheral neuropathy of the bilateral upper and lower extremities, ED, an inguinal hernia, and sleep apnea and entitlement to SMC based on loss of use of a creative organ should be readjudicated. If any of the claims remains denied, a supplemental statement of the case should be provided to the Veteran and his representative. After they have had an adequate opportunity to respond, all issue(s) properly on appeal should be returned to the Board for further appellate review. 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). No action is required of the Veteran until further notice. However, the Board advises him that the conduct of the efforts as directed in this remand, and any other development deemed necessary, is needed for a comprehensive and correct adjudication of his claims. His cooperation in VA's efforts to develop his claims, including reporting for any scheduled VA examination, is critical and appreciated. He is also advised that failure to report for any scheduled examination may result in the rating of the claim on the evidence of record if it is an original claim or denial if it is a claim to reopen or for increase. 38 C.F.R. § 3.655(b) (2013). These claims must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board or by the Court for additional development or other appropriate action must be handled in an expeditious manner. 38 U.S.C.A. §§ 5109B, 7112 (West 2002 & Supp. 2012). ______________________________________________ Michael J. Skaltsounis Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs