Citation Nr: 1329650 Decision Date: 09/16/13 Archive Date: 09/20/13 DOCKET NO. 09-42 134 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Chicago, Illinois THE ISSUE Entitlement to service connection for stuttering (also claimed as speech block). WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD J.M. Seay, Counsel INTRODUCTION The Veteran served on active duty from May 1951 to October 1951. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a November 2008 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Chicago, Illinois. In February 2011, the Veteran testified before a Decision Review Officer in Chicago, Illinois. A transcript of that hearing is of record. In July 2012, the Veteran testified at a video conference hearing before the undersigned Veterans Law Judge. A transcript of that hearing is of record. This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). 38 U.S.C.A. § 7107(a)(2) (West 2002). The appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the appellant if further action is required. REMAND Initially, the record reflects that the Veteran submitted additional evidence in June 2013 which was forwarded to the Board without RO review. The evidence included duplicative records already considered by the RO, a signed rebuttal to the April 2013 VA examination report, and the Veteran's various assertions regarding the manifestations of his claimed disability. The Veteran contended that there were inaccuracies in the VA examination report. This evidence was not considered by the originating agency, and the Veteran has not waived his right to such consideration. 38 C.F.R. § 20.1304(c) (2012). In a July 2013 letter, the Board solicited a waiver from the Veteran. He was informed that if he did not respond within 45 days, it would be assumed that he wished the case to be returned to the AOJ for preliminary review of the new evidence. A response was not received during the 45 day time period. Therefore, the case must be remanded so that the evidence can be considered. In addition, the Board finds that an addendum opinion must be obtained with respect to the Veteran's claim. In September 2012, the Board remanded the Veteran's claim to obtain a VA examination and opinion. The Board requested that the examination be performed by a speech pathologist. The examiner was asked to express an opinion as to whether the Veteran had a current disability and, if so, whether the disability was congenital, developmental, or a familial defect. The examiner was asked to express an opinion as to whether "there is clear and unmistakable evidence that the stuttering which pre-existed service was NOT permanently aggravated or worsened due to active service." A VA note dated in October 2012 indicated that there was no speech pathologist to perform the examination. The Veteran was provided a VA examination in December 2012 with a psychologist. The examiner opined: "the claimed condition, which clearly and unmistakably existed prior to service, was clearly and unmistakably not aggravated beyond its natural progression by an in-service injury, event, or illness." The examiner indicated that there was no evidence of aggravation due to his four months of active service in 1951. The Veteran contended that the December 2012 VA examination was inadequate because the examiner was not qualified and was not a speech pathologist. In response, the Veteran was afforded a VA examination in April 2013 by a speech pathologist. The examiner did not indicate review of the claims file at the time of the examination. The examiner opined: "It is more likely than not that the military service did not permanently aggravate or worsen the pt's stuttering." The examiner stated that the Veteran presented with very mild neurological stuttering as a result of a fall when he was four years old, in which he hit his head. The examiner explained that dysfluent moments would increase with increased anxiety or during stressful situations, which may have occurred in regard to the Veteran's time in the service. It was offered that the increase would have been temporary. A May 2013 addendum to the examination report indicated that the examiner reviewed the claims file. Unfortunately, the Board must remand the Veteran's claim for an addendum opinion. While the April 2013 VA examiner addressed the Veteran's history and noted that the Veteran had a current disability of neurological stuttering, the examiner did not use the correct standard in addressing whether the Veteran's pre-existing disability was NOT permanently aggravated by active service. In this regard, the Board's remand requested that the examiner provide an opinion as to "whether there is clear and unmistakable evidence that the stuttering which pre-existed service was NOT permanently aggravated or worsened due to active service." The April 2013 examiner stated that it was "more likely" that the disability was not permanently aggravated. The Board emphasizes that the "clear and unmistakable evidence" standard is a more formidable evidentiary burden than the preponderance of the evidence standard. See Vanerson v. West, 12 Vet. App. 254, 258 (1999) (noting that the "clear and convincing" burden of proof, while a higher standard than a preponderance of the evidence, is a lower burden to satisfy than that of "clear and unmistakable evidence.") "Clear and unmistakable evidence" is an "onerous" evidentiary standard, requiring that the preexistence of a condition and the no-aggravation result be "undebatable." Cotant v. Principi, 17 Vet. App. 116, 131 (2003) citing Laposky v. Brown, 4 Vet. App. 331, 334 (1993). The April 2013 examiner's opinion is inadequate because it does not use the standard incorporated by law and requested by the Board's September 2012 remand. The Board acknowledges that the December 2012 VA examiner used the correct standard; however, the opinion was not provided by a speech pathologist as specifically requested by the Board's remand. When VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). Since the April 2013 VA opinion has been found inadequate, the Board concludes that another remand is necessary because the September 2012 remand directives have not been substantially completed. Stegall v. West, 11 Vet. App. 268 (1998) (Where remand orders of the Board are not complied with, the Board errs as a matter of law when it fails to ensure compliance.); see also D'Aries v. Peake, 22 Vet. App. 97, 106 (2008). Accordingly, the case is REMANDED for the following action: (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. Refer the Veteran's claims file to the speech pathologist that performed the April 2013 VA examination or, if she is unavailable, to another suitably qualified speech pathologist for an addendum opinion as to the nature and etiology of the Veteran's stuttering disability. The examiner should note the Veteran's contentions regarding the inaccuracies with the April 2013 VA examination. The examiner is asked to address the following: a. Provide an opinion, if possible, as to whether the Veteran's disability should be considered a congenital, developmental, or familial defect, or whether the stuttering was the result of some other causation. b. Provide an opinion as to whether there is CLEAR AND UNMISTAKABLE evidence that the stuttering which pre-existed service was NOT permanently aggravated or worsened due to active service. A flare-up or temporary exacerbation does not represent or constitute chronic aggravation of a disability. The examiner is also advised that the "clear and unmistakable evidence" standard in regard to this requested opinon requires that a finding of no- aggravation be "undebatable." The examiner should consider the Veteran's statements that he was denied enlistment in 1948 due to his stuttering and his current state of any stuttering. In addition, discuss the Veteran's statements regarding the inaccuracies of the April 2013 VA examination report to include his assertion that his stuttering is not random and that his disability worsened because he required years of speech therapy after service. The examiner must provide a complete rationale for any stated opinion. 2. The Veteran's claim must be readjudicated with consideration of all of the evidence in the Veteran's claims file, including the evidence received since the May 2013 supplemental statement of the case (SSOC). If the claim remains denied, a SSOC must be provided to the Veteran and his representative. After the Veteran has had an adequate opportunity to respond, the appeal must be returned to the Board for appellate review. The appellant has the right to submit additional evidence and argument on the matter the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2012). _________________________________________________ U.R. POWELL Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the Board of Veterans' Appeals is appealable to the United States Court of Appeals for Veterans Claims. This remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of your appeal. 38 C.F.R. § 20.1100(b) (2012).