Citation Nr: 1337698 Decision Date: 11/19/13 Archive Date: 12/06/13 DOCKET NO. 10-30 164 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Columbia, South Carolina THE ISSUES 1. Entitlement to service connection for an acquired psychiatric disorder to include posttraumatic stress disorder (PTSD), anxiety, and/or depression. 2. Entitlement to service connection for a traumatic brain injury (TBI) with concussion and resulting headaches and nausea. 3. Entitlement to service connection for temporomendibular (TMJ) disorder. 4. Entitlement to service connection for fibromyalgia, to include as due to undiagnosed illness. 5. Entitlement to service connection for allergic rhinitis. 6. Entitlement to service connection for insomnia, to include as due to undiagnosed illness. 7. Entitlement to service connection for a left knee disability, to include as secondary to a service-connected right knee disability. 8. Entitlement to service connection for migraines. 9. Entitlement to service connection for memory loss, to include a due to undiagnosed illness. 10. Entitlement to service connection for pain on the left side of the jaw, to include as due to undiagnosed illness. 11. Entitlement to service connection for numbness in the hands, to include as due to undiagnosed illness. 12. Entitlement to service connection for tinnitus. 13. Entitlement to service connection for spinal degeneration. 14. Entitlement to service connection for herniated disc. 15. Entitlement to service connection for unspecified arthritis. 16. Entitlement to service connection for muscle cramps and joint pains, to include as due to undiagnosed illness. 17. Entitlement to service connection for neck problems now claimed as neck injury, to include soft tissue damage, to include as secondary to the service-connected disability of residuals of left biceps long head rupture. REPRESENTATION Veteran represented by: Disabled American Veterans WITNESSES AT HEARING ON APPEAL The Veteran and his spouse ATTORNEY FOR THE BOARD C. Kedem, Counsel INTRODUCTION The Veteran served on active duty from July 1989 to June 1994 to include service in the Persian Gulf. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a June 2009 rating decision by which the RO, in pertinent part, denied entitlement to service connection for the alleged disabilities enumerated above. In February 2011, the Veteran and his spouse testified at a hearing before the undersigned, which was held at the RO. A complete transcript of the hearing has been associated with the claims file. The Board notes that the June 2009 rating decision included a denial of service connection for "unspecified joint pain." The Board has merged this issue with the separate issue of service connection for muscle cramps and joint pains, to include as due to undiagnosed illness, as these issues essentially overlap. The Board further notes that in its June 2009 rating decision, it denied service connection for PTSD, anxiety, and depression, which the Veteran claimed as separate issues. The Board has combined these issues into a single issue in keeping with the holding of the United States Court of Appeals for Veterans Claims (Court), stating that when a claimant makes a claim, he is seeking service connection for symptoms regardless of how those symptoms are diagnosed or labeled. Clemons v. Shinseki, 23 Vet. App. 1 (2009) (claim for benefits based on PTSD encompassed benefits based on other psychiatric disabilities). Therefore, the Board construes the Veteran's claim for service connection for PTSD as encompassing entitlement to service connection for anxiety and depression. The issues of entitlement to service connection for a TBI with concussion and resulting headaches and nausea; entitlement to service connection for TMJ disorder; entitlement to service connection for fibromyalgia, to include as due to undiagnosed illness; entitlement to service connection for allergic rhinitis; entitlement to service connection for insomnia, to include as due to undiagnosed illness; entitlement to service connection for a left knee disability, to include as secondary to a service-connected right knee disability; entitlement to service connection for migraines; entitlement to service connection for memory loss, to include a due to undiagnosed illness; entitlement to service connection for pain on the left side of the jaw, to include as due to undiagnosed illness; entitlement to service connection for numbness in the hands, to include as due to undiagnosed illness; entitlement to service connection for tinnitus; entitlement to service connection for spinal degeneration; entitlement to service connection for herniated disc; entitlement to service connection for unspecified arthritis; entitlement to service connection for muscle cramps and joint pains, to include as due to undiagnosed illness; and entitlement to service connection for neck problems now claimed as neck injury, to include soft tissue damage, to include as secondary to the service-connected disability of residuals of left biceps long head rupture 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 record reflects a diagnosis of PTSD based on an in-service stressor. CONCLUSION OF LAW The criteria for service connection for PTSD are met. 38 U.S.C.A. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304, 4.125 (2013). REASONS AND BASES FOR FINDING AND CONCLUSION Veterans Claims Assistance Act of 2000 (VCAA) As provided for by 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 and 3.326(a) (2013). In this case, the Board is granting in full the benefit sought on appeal. Accordingly, assuming, without deciding, that any error was committed with respect to either the duty to notify or the duty to assist, such error was harmless and will not be further discussed. Standard of Review After the evidence has been assembled, it is the Board's responsibility to evaluate the entire record. 38 U.S.C.A. § 7104(a) (West 2002). When there is an approximate balance of 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; 38 C.F.R. § 3.102 (reasonable doubt to be resolved in veteran's favor). In Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990), the Court stated that "a veteran need only demonstrate that there is an 'approximate balance of positive and negative evidence' in order to prevail." To deny a claim on its merits, the preponderance of the evidence must be against the claim. See Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert, 1 Vet. App. at 54. Law and Regulations Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active military, naval, or air service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303(a). For the showing of chronic disease in service, there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time. With chronic disease as such in service, subsequent manifestations of the same chronic disease at any later date, however remote, are service connected, unless clearly attributable to intercurrent causes. If a condition noted during service is not shown to be chronic, then generally, a showing of continuity of symptoms after service is required for service connection. 38 C.F.R. § 3.303(b). Service connection may also be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). The Board notes that 38 C.F.R. § 3.303(b) applies only to "chronic diseases" as defined in 38 C.F.R. § 3.309(a). Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). The Board notes that psychoses constitute chronic diseases within the meaning of 38 C.F.R. § 3.309(a). Establishing service connection generally requires (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 present disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). The Court has held that "Congress specifically limits entitlement for service-connected disease or injury to cases where such incidents have resulted in a disability. In the absence of proof of a present disability there can be no valid claim." Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992); see also Rabideau v. Derwinski, 2 Vet. App. 141, 143-44 (1992). To establish entitlement to service connection for PTSD, in particular, there must be: (1) medical evidence diagnosing this condition in accordance with 38 C.F.R. § 4.125(a) , which requires the condition be diagnosed in accordance with the Fourth Edition of the Diagnostic and Statistic Manual of Mental Disorders (DSM-IV); (2) credible supporting evidence that the claimed in-service stressor actually occurred; and, (3) medical evidence of a link between current symptomatology and the claimed in-service stressor. 38 C.F.R. § 3.304(f). See also Cohen v. Brown, 10 Vet. App. 128 (1997). A "clear" diagnosis of PTSD is no longer required. Rather, as mentioned, a diagnosis of PTSD need only be in accordance with 38 C.F.R. § 4.125(a), which simply mandates that, for VA compensation purposes, all mental disorder diagnoses must conform to the DSM-IV. See 38 C.F.R. § 3.304(f). In Cohen, the Court held that a medical opinion diagnosing PTSD does not suffice to verify the occurrence of the claimed in-service stressor. Cohen, 10 Vet. App. at 142. That is, generally speaking, a stressor cannot be established as having occurred merely by after-the-fact medical nexus evidence. See also Moreau v. Brown, 9 Vet. App. 389, 395-396 (1996). This is not a hard-and-fast rule, however, as exceptions are made for certain types of claims depending on the type of particular stressor alleged, which is reflected in the several subparts of 38 C.F.R. § 3.304(f)(1) through (f)(5). The evidence necessary to establish the occurrence of a stressor during service varies. One factor that affects the amount of evidence required is whether the Veteran "engaged in combat with the enemy." Hayes v. Brown, 5 Vet. App. 60, 66 (1993). If it is adequately shown that a Veteran engaged in combat and the claimed stressor is related to combat, then lay testimony regarding the reported stressors must be accepted as conclusive evidence of their actual occurrence, provided the testimony is found to be satisfactory, e.g., credible and "consistent with the circumstances, conditions, or hardships of such service." In such cases, no further developmental or corroborative evidence is necessary. 38 C.F.R. § 3.304(f)(2). See also more generally 38 U.S.C.A. § 1154(b) and 38 C.F.R. § 3.304(d) . Similarly, corroboration of stressors is not required for stressors that are related to the Veteran's "fear of hostile military or terrorist activity." This regulatory provision requires that: (1) a VA psychiatrist or psychologist, or contract equivalent, confirm the claimed stressor is adequate to support a diagnosis of PTSD; (2) the claimed stressor is consistent with the places, types, and circumstances of the Veteran's service; and, (3) the Veteran's symptoms are related to the claimed stressor. See 38 C.F.R. § 3.304(f)(3) (effective July 13, 2010); see also 75 Fed. Reg. 39,843 (July 13, 2010). Competency of evidence differs from weight and credibility. Competency is a legal concept determining whether testimony may be heard and considered by the trier of fact, while credibility is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted. Rucker v. Brown, 10 Vet. App. 67 (1997); Layno v. Brown, 6 Vet. App. 465 (1994); Cartwright v. Derwinski, 2 Vet. App. 24 (1991) (although interest may affect the credibility of testimony, it does not affect competency to testify). A veteran is competent to report symptoms because this requires only personal knowledge, not medical expertise, as it comes to him through the senses. See Layno, 6 Vet. App. 465. The Board is charged with the duty to assess the credibility and weight given to evidence. Wensch v. Principi, 15 Vet. App. 362, 367 (2001); Wood v. Derwinski, 1 Vet. App. 190, 193 (1992). In weighing credibility, VA may consider interest, bias, inconsistent statements, bad character, internal inconsistency, facial plausibility, self interest, consistency with other evidence of record, malingering, desire for monetary gain, and demeanor of the witness. Caluza v. Brown, 7 Vet. App. 498 (1995). The Board may weigh the absence of contemporaneous medical evidence against the lay evidence in determining credibility, but the Board cannot determine that lay evidence lacks credibility merely because it is unaccompanied by contemporaneous medical evidence. Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). Generally, the degree of probative value which may be attributed to a medical opinion issued by a VA or private treatment provider takes into account such factors as its thoroughness and degree of detail, and whether there was review of the veteran's claims file. See Prejean v. West, 13 Vet. App. 444, 448-9 (2000). Also significant is whether the examining medical provider had a sufficiently clear and well-reasoned rationale, as well as a basis in objective supporting clinical data. See Bloom v. West, 12 Vet. App. 185, 187 (1999); Hernandez-Toyens v. West, 11 Vet. App. 379, 382 (1998); see also Claiborne v. Nicholson, 19 Vet. App. 181, 186 (2005) (rejecting medical opinions that did not indicate whether the physicians actually examined the veteran, did not provide the extent of any examination, and did not provide any supporting clinical data). The Court has held that a bare conclusion, even one reached by a health care professional, is not probative without a factual predicate in the record. Miller v. West, 11 Vet. App. 345, 348 (1998). Medical evidence that is speculative, general or inconclusive in nature cannot support a claim. See Obert v. Brown, 5 Vet. App. 30, 33 (1993); see also Beausoleil v. Brown, 8 Vet. App. 459, 463 (1996); Libertine v. Brown, 9 Vet. App. 521, 523 (1996). A physician's statement framed in terms such as "may" or "could" is not probative. See Warren v. Brown, 6 Vet. App. 4, 6 (1993). A significant factor to be considered for any opinion is the accuracy of the factual predicate, regardless of whether the information supporting the opinion is obtained by review of medical records or lay reports of injury, symptoms and/or treatment. See Harris v. West, 203 F.3d 1347, 1350-51 (Fed. Cir. 2000) (examiner opinion based on accurate lay history deemed competent medical evidence in support of the claim); Kowalski v. Nicholson, 19 Vet. App. 171, 177 (2005) (holding that a medical opinion cannot be disregarded solely on the rationale that the medical opinion was based on history given by the veteran); Reonal v. Brown, 5 Vet. App. 458, 461 (1993) (holding that the Board may reject a medical opinion based on an inaccurate factual basis). The Board has reviewed all the evidence in the Veteran's claims file. Although the Board has an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that the evidence submitted by a veteran or obtained on his behalf be discussed in detail. Rather, the Board's analysis below will focus specifically on what evidence is needed to substantiate the claim and what the evidence in the claims file shows, or fails to show, with respect to the claim. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000); Timberlake v. Gober, 14 Vet. App. 122, 128-30 (2000). Factual Background The service treatment records indicate that the Veteran sustained a left upper extremity injury in November 1990 as a result of a "parachute incident." A July 2001 VA progress note reflects a diagnosis of "depression?" The examiner indicated that the Veteran needed a referral to the mental health clinic. The Board notes that the Veteran reported left upper extremity problems but also recounted problems in his personal life to include a divorce and his current wife's recent miscarriage. In August 2001, the Veteran presented for an initial mental health evaluation. On evaluation, the Veteran reported a depressed mood and amotivation and reported "stressors" that were unrelated to service. The Veteran spoke of two failed attempts at starting a business, his wife's recent miscarriage, conflict between his mother and wife, and disappointment in his father. He reported symptoms such as poor sleep, low self esteem, low energy, and poor concentration. He denied suicidal and homicidal ideation and indicated that he was hopeful. He denied symptoms of mania, anxiety, and PTSD. The Veteran revealed that he was diagnosed with attention deficit hyperactivity disorder (ADHD) as a child and was currently taking medication for ADHD symptoms to include hyperactivity, impulsivity, and an inability to complete tasks. The examiner diagnosed adjustment disorder, rule out major depressive episode, history of ADHD, and rule out bipolar disorder. A November 2001 VA progress note indicates a diagnosis of rule out adjustment disorder, rule out major depressive episode, and a history of ADHD. In November 2008, an assessment of depression, anxiety, and PTSD was rendered. A mental health referral was recommended. A January 2009 VA treatment note indicated that the Veteran felt physically and emotionally drained. He reportedly had 14 jobs since service separation and was currently between jobs. Most recently, he had been working in business development for a local chiropractor. Before that position, he conducted sales and promotions for radio stations He indicated that he had good years and bad years. During bad periods, he had confrontations with colleagues and engaged in reportedly self destructive behavior such as viewing pornography and watching news about the war in Iraq that made him angry. He was unable to handle criticism and felt rage when people spoke about the Middle East. The examiner noted that the Veteran moved from topic to topic with the only clear connection being his associative process and a goal of maintaining control and direction in the discussion. When presented with this observation, the Veteran stated that the interview made him nervous. The Veteran denied suicidal and homicidal ideation. He described intense feelings of negativity as apparent from fleeting thoughts of retaliation. There were no auditory or visual hallucinations. The examiner noted that the Veteran was alert and fully oriented. Memory was intact. The examiner observed that the Veteran feared being seen in a negative light. The Veteran moved from specific to abstract ideas with no apparent purpose other than thinking out loud. Insight and judgment were fair. The report mentions a TBI in service. The Axis I diagnosis was of a mood disorder due to general medical condition: TBI and PTSD by history, but additional data were necessary for a diagnosis. On February 2009 VA mental disorders examination, the Veteran reported racing thoughts and guilt because he enjoyed the prospect of killing people while he was in service. He had mood swings, and he felt extremely mad and extremely sad. He reported sleeplessness and hopelessness. He described feeling anxious and panicked at times. The Veteran indicated that he had been out of service for 14 years and that he had held 14 jobs in the interim. He was currently unemployed. Objectively, there was some memory impairment. The diagnosis was of adjustment disorder with mixed anxiety and depressed mood. The examiner indicated that despite the long period since separation, the Veteran was having problems adjusting to his post-Army life. These adjustment problems resulted in depression and anxiety. In May 2009, a VA psychiatrist presented a written statement in which he indicated that the Veteran was being assessed for a mood disorder due to TBI as well as PTSD that resulted from a parachute accident ion service. In October 2009, the same VA psychiatrist who authored the May 2009 letter diagnosed PTSD and TBI. The Veteran reported feeling "keyed up," worried about the dangers of the world, and feelings of panic. There was no suicidal homicidal ideation although he did think about the release offered by death. There were no hallucinations. Intrusive thoughts about his military service remained a frequent issue, which disrupted sleep and daytime activities. The diagnosis was of a mood disorder due to TBI and PTSD. Discussion The Veteran has been variously diagnosed with depression, anxiety, and PTSD. However, regarding these acquired psychiatric disorders, the record contains only one definitive opinion regarding etiology. Specifically, the May 2009 VA opinion, rendered by a VA psychiatrist who was apparently familiar with the Veteran, indicated that the Veteran suffered from PTSD that was due to a parachute accident in service. The elements of service connection for PTSD are met. 38 C.F.R. § 3.304(f). First, the record contains a diagnosis of PTSD rendered by a VA psychiatrist. The Board presumes, therefore, that PTSD was diagnosed in according with the applicable criteria. Cohen, supra. Furthermore, there is credible supporting evidence that the claimed in-service stressor upon which the diagnosis of PTSD is based actually occurred. Indeed, the service treatment records reflect explicitly that a parachute jump causing injury occurred. Finally, there is competent medical evidence of a link between an in-service stressor, namely the parachute incident, and the current diagnosis of PTSD. Again, therefore, the criteria for service connection for PTSD are met. 38 C.F.R. § 3.304(f). Service connection for PTSD, therefore, is granted. Id.; 38 C.F.R. § 3.303. The Board is aware that the Veteran filed claims of service connection for depression and anxiety. The Board notes that PTSD is an anxiety disorder. Regardless, the nexus opinion of record reflects only that PTSD is related to service. In any event, as explained above, the Veteran is competent to provide only evidence of symptoms. See Layno, supra. Indeed, although lay persons are competent to provide opinions on some medical issues, see Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011), the diagnosis of specific psychiatric disorders 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)." Further, when a claimant makes a claim, he is seeking service connection for symptoms regardless of how those symptoms are diagnosed or labeled. Clemons, supra. Here, the Veteran's service-connected symptomatology has been attributed to PTSD. As such, the preponderance of the evidence reflects that PTSD is due to service, and the Board is therefore granting symptoms for PTSD and the symptomatology associated with it. 38 U.S.C.A. § 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304. ORDER Service connection for PTSD is granted. REMAND A remand is required in this case to ensure that there is a complete record upon which to decide the Veteran's claims. VA has a duty to make reasonable efforts to assist a claimant in obtaining evidence necessary to substantiate a claim for the benefit sought, unless no reasonable possibility exists that such assistance would aid in substantiating the claim. 38 U.S.C.A. § 5103A(a); 38 C.F.R. § 3.159(c), (d). To ensure that the Veteran has received proper notice under VCAA, an amended VCAA notice letter must be sent that includes information on establishing service connection based on an undiagnosed illness as well as on a secondary basis. 38 U.S.C.A. § 5103; 38 C.F.R. § 3.159; see also 38 C.F.R. §§ 3.310, 3.317 (2013). Next, the Veteran has reported recent treatment by M.F. Ambrose, M.D. After securing the requisite release, information on dates of treatment, and contact information, the RO must make efforts to secure the identified records from Dr. Ambrose. The record contains VA clinical records dated through May 11, 2010. As such, VA clinical records dated from May 11, 2010 to the present must be associated with the claims file. See 38 C.F.R. § 3.159(c)(2); Murphy v. Derwinski, 1 Vet. App. 78, 81-82 (1990) (holding that all VA treatment records that could potentially be helpful in resolving a claim must be obtained); see also Dunn v. West, 11 Vet. App. 462, 466-67 (1998); Bell v. Derwinski, 2 Vet. App. 611, 613 (1992) (records generated by VA facilities that may have an impact on the adjudication of a claim are considered in the constructive possession of VA adjudicators during the consideration of a claim, regardless of whether those records are physically on file). A detailed review of this claims file indicates that the Veteran is receiving disability benefits from the Social Security Administration (SSA). The information available to the Board does not state the disability or disabilities for which SSA disability benefits have been granted. As such, VA's duty to assist mandates that all necessary efforts be made to secure the medical records upon which the Veteran's SSA disability benefits were awarded. See Golz v. Shinseki, 590 F.3d 1317 (Fed. Cir. 2010) (Fed. Cir. Jan. 4, 2010) (VA is required to obtain SSA records in instances when they may be relevant to the claim). The Veteran sustained a head injury in service. The evidence is equivocal as to whether there are any residuals of a TBI. Thus, a neurological examination must be scheduled in order to determine whether the Veteran has any manifestations of TBI residuals to include headaches and nausea. The Veteran is seeking service connection for migraines. The examiner must opine regarding whether it is at least as likely as not that these migraines, if diagnosed, are a result of or aggravated by the TBI or whether they are directly related to service. The Veteran is claiming entitlement to service connection for tinnitus, presumably due to noise exposure in service. He is competent to provide evidence regarding the presence of tinnitus. Charles v. Principi, 16 Vet. App. 370, 374 (2002). He must be afforded a VA examination for an opinion regarding the etiology of his tinnitus. The Veteran is alleging the presence of several orthopedic disabilities that are allegedly related to service. These include a left knee disability, to include as secondary to a service-connected right knee disability; spinal degeneration; herniated disc; and neck problems now claimed as neck injury, to include soft tissue damage, to include as secondary to the service-connected disability of residuals of left biceps long head rupture. The examiner must determine whether these disabilities are present. If so, an opinion regarding etiology is needed. Finally, an examination regarding the claims that are based on undiagnosed illness symptoms must be scheduled. The examination instructions are contained below. Accordingly, the case is REMANDED to the RO/AMC for the following action: 1. Send the Veteran an amended VCAA notice letter that includes information on establishing service connection based on an undiagnosed illness as well as on a secondary basis. 2. Send the Veteran a release form in which he is to include dates of treatment and contact information regarding treatment by Dr. Ambrose. After securing the requisite release, information on dates of treatment, and contact information, the RO must make efforts to secure the identified records. 3. Associate with the claims file all VA clinical records dated from May 11, 2010 to the present. 4. Obtain from SSA the records pertinent to the Veteran's claim for Social Security disability benefits as well as the medical records relied upon concerning that claim. 5. Schedule a VA neurological examination to determine (1) whether the Veteran, at least as likely as not (50 percent or greater likelihood) has any TBI residuals to include headaches and nausea. The Veteran is also claiming entitlement to service connection for migraines. The examiner must determine (2) whether the Veteran suffers from migraines. If so, the examiner must opine regarding whether it is at least as likely as not (50 percent or greater likelihood) that these migraines are a result of or aggravated by the TBI or whether they are directly related to service. Note: As used above, the term "at least as likely as not" does not mean merely within the realm of medical possibility, but rather that the weight of medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of causation as it is to find against it. The examiner must review all pertinent records in the claims file in conjunction with the examination. All opinions are to be accompanied by a rationale consistent with the evidence of record. If the requested medical opinion cannot be given, the examiner should state the reason(s) why. 6. Schedule an appropriate VA examination to determine whether it is at least as likely as not (50 percent or greater likelihood) that the Veteran's tinnitus is related to service. Note: As used above, the term "at least as likely as not" does not mean merely within the realm of medical possibility, but rather that the weight of medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of causation as it is to find against it. The examiner must review all pertinent records in the claims file in conjunction with the examination. All opinions are to be accompanied by a rationale consistent with the evidence of record. If the requested medical opinion cannot be given, the examiner should state the reason(s) why. 7. Schedule a VA orthopedic examination to determine whether the Veteran has a left knee disability, spinal degeneration, herniated disc, and/or neck problems. If so, the examiner must opine regarding whether any diagnosed disability is at least as likely as not (50 percent or greater likelihood) related to service. Regarding the alleged left knee disability, the examiner must also opine regarding whether it is at least as likely as not (50 percent or greater likelihood) due to or aggravated by the service-connected right knee disability. Regarding the neck disability, the examiner must also opine regarding whether it is at least as likely as not (50 percent or greater likelihood) due to or aggravated by the service-connected disability of residuals of left biceps long head rupture. Note: As used above, the term "at least as likely as not" does not mean merely within the realm of medical possibility, but rather that the weight of medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of causation as it is to find against it. The examiner must review all pertinent records in the claims file in conjunction with the examination. All opinions are to be accompanied by a rationale consistent with the evidence of record. If the requested medical opinion cannot be given, the examiner should state the reason(s) why. 8. Schedule a VA examination regarding the claim of entitlement to service connection for muscle cramps and joint pains, to include as due to undiagnosed illness. To this end, the examiner should review the entire claims file and indicate whether there have been objective indications of chronic muscle cramps and joint pain, which cannot be attributed to any known clinical diagnosis. "Objective indications of chronic disability" include both "signs," in the medical sense of objective evidence perceptible to a physician, and other, non-medical indicators that are capable of independent verification. To fulfill the requirement of chronicity, the symptoms must have persisted for a period of six months. The examiner must review all pertinent records in the claims file in conjunction with the examination. All opinions are to be accompanied by a rationale consistent with the evidence of record. If the requested medical opinion cannot be given, the examiner should state the reason(s) why. 9. The issues remaining on appeal should then be readjudicated. If any determination remains less than fully favorable, the Veteran and his representative must be furnished with a Supplemental Statement of the Case and given an opportunity to respond before this case is returned to the Board. 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 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. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2013). _________________________________________________ T. D. JONES Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs