Citation Nr: 1510829 Decision Date: 03/16/15 Archive Date: 03/27/15 DOCKET NO. 10-32 192 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Columbia, South Carolina THE ISSUES 1. Entitlement to service connection for hypertension. 2. Entitlement to service connection for a lumbar spine disability. 3. Entitlement to service connection for depression, to include as secondary to service-connected posttraumatic stress disorder (PTSD). 4. Entitlement to service connection for a benign growth of the lung. 5. Entitlement to service connection for migraine headaches. 6. Entitlement to service connection for lung cancer. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD E. Joyner, Counsel INTRODUCTION The Veteran served on active duty from July 1966 to July 1968. This case comes before the Board of Veterans' Appeals (Board) on appeal from rating decisions dated in September 2003 and March 2009 of the Department of Veterans Affairs (VA) Regional Office (RO) in Columbia, South Carolina. In August 2012 the Veteran testified before the undersigned at a Travel Board hearing. A transcript of that hearing is of record. The issues of entitlement to service connection for depression, a lung disability currently diagnosed as aspergillus, and migraine headaches are addressed in the REMAND portion of the decision below and are REMANDED to the Agency of Original Jurisdiction (AOJ). FINDINGS OF FACT 1. Hypertension was not shown in service or for many years thereafter, and the most probative, competent evidence fails to link the Veteran's current hypertension to service. 2. The competent and credible evidence of record reflects that a lumbar spine disability was not present during service or within one year of service, and the competent and credible evidence of record reflects that the Veteran is not diagnosed with any disability of the lumbar spine that is etiologically related to service. 3. A September 2004 rating decision denied the Veteran's claim for entitlement to service connection for lung cancer; notice of the determination and his appellate rights were provided, and a timely substantive appeal was not filed. 4. Evidence received subsequent to the September 2004 rating decision is not new and material, as it does not raise a reasonable possibility of substantiating the claim for service connection for lung cancer. CONCLUSIONS OF LAW 1. The criteria for a grant of service connection for hypertension are not met. 38 U.S.C.A. §§ 1110, 1131, 5107 (West 2014); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2014). 2. The criteria for a grant of service connection for a lumbar spine disability are not met. 38 U.S.C.A. §§ 1110, 1131, 5107 (West 2014); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2014). 3. The September 2004 rating decision denying service connection for lung cancer is final. 38 U.S.C.A. § 7105 (West 2014); 38 C.F.R. §§ 20.302, 20.1103 (2014). 4. New and material evidence has not been received to reopen the claim of entitlement to service connection for lung cancer. 38 U.S.C.A. §§ 5103, 5103A, 5108, 7105(c) (West 2014); 38 C.F.R. §§ 3.156, 3.159, 20.302, 20.1103 (2014). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duties to Notify and Assist VA has met all statutory and regulatory notice and duty to assist provisions. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2014); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326 (2012). A November 2008 letter satisfied the duty to notify provisions and included proper notice to the Veteran regarding the regulations pertinent to the establishment of an effective date and of the disability rating. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b)(1); Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002); Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). The case of Kent v. Nicholson, 20 Vet. App. 1 (2006), requires that, prior to the adjudication of claims to reopen previously denied service connection claims, the appellant be given notice of the elements of service connection, the elements of new and material evidence, and the reasons for the prior denial. The November 2008 VCAA letter provided notice of the elements of service connection and new and material evidence, and the reasons for the prior denial of the claim. Thus, the criteria of Kent are satisfied. See Kent, 20 Vet. App. at 9. In attempts to reopen previously denied claims for service connection, the duty to assist does not include provision of a medical examination or opinion, unless new and material evidence has been secured. See 38 C.F.R. § 3.159 (c)(4)(iii). As discussed below, the Board concludes that new and material evidence has not been received on the claim to reopen the previously denied claim of entitlement to service connection for lung cancer. As such, no duty to assist examination provisions could have been violated. See id. The Board finds that VA examinations/opinions with regard to the claims of entitlement to service connection for a lumbar spine disability and hypertension are not warranted. The Secretary's obligation under 38 U.S.C. § 5103A(d) to provide the Veteran with a medical examination or to obtain a medical opinion occurs when there is (1) competent evidence of a current disability or persistent or recurrent symptoms of a disability, (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, but (4) insufficient competent evidence on file for the Secretary to make a decision on the claim. McLendon v. Nicholson, 20 Vet. App.79, 81 (2006). As is discussed in greater detail below, the service treatment records are negative for any complaint or finding of hypertension or a disability of the lumbar spine. Although the Veteran alleges that his hypertension is causally related to service and that he has a disability of the lumbar spine that is etiologically related to service, he has not been shown to be competent to render a diagnosis of lumbar spine disability or make such etiological findings. His suggestion that he has a disability of the lumbar spine and of such an etiological connection between any lumbar spine disability or hypertension and service is not a sufficient "indication" that his hypertension and alleged lumbar spine disability may be causally related to service to warrant VA examinations. Importantly, the medical evidence of record does not even reflect that the Veteran has ever complained of or been diagnosed with any disability of the lumbar spine. Although the standard under McLendon to obtain a VA examination is low, the Board finds that a claim of etiology by someone without the required medical or scientific expertise and without any supporting evidence, is insufficient. In this case, there is no competent medical evidence that finds a causal link between the Veteran's hypertension and any incident of active service, and there is no competent medical evidence that the Veteran has a disability of the lumbar spine that is etiologically related to service. Therefore, the Board concludes that there is no duty to provide a medical opinion on these issues. 38 U.S.C.A. § 5103A(d); 38 C.F.R. § 3.159(c)(4); McLendon v. Nicholson, 20 Vet. App. 79 (2006). There is no indication in the record that any additional evidence relevant to the issues decided herein is available and not part of the claims file. See Pelegrini v. Principi, 18 Vet. App. 112 (2004). As there is no indication that any failure on the part of VA to provide additional notice or assistance reasonably affects the outcome of the case, the Board finds that any such failure is harmless. See Mayfield v. Nicholson, 20 Vet. App. 537 (2006); see also Dingess/Hartman, 19 Vet. App. at 486; Shinseki v. Sanders/Simmons, 129 S. Ct. 1696 (2009). In Bryant v. Shinseki, the United States Court of Appeals for Veterans Claims (Court) recently held that 38 C.F.R. 3.103(c)(2) (2014) requires that the VLJ who conducts a hearing fulfill two duties to comply with the above the regulation. Bryant v. Shinseki, 23 Vet. App. 488 (2010). These duties consist of (1) the duty to fully explain the issue or issues on appeal and (2) the duty to suggest the submission of evidence that may have been overlooked. In this case, the Veteran was assisted at the Board hearing by an accredited representative from The American Legion. During the Veteran's hearing, the undersigned and the Veteran's representative asked the Veteran questions to ascertain the extent of any in-service event and/or symptoms. They also asked questions regarding current treatment. The hearing focused on the elements necessary to substantiate the claims. Neither the Veteran nor his representative has asserted that VA failed to comply with 38 C.F.R. 3.103(c)(2) nor identified any prejudice in the conduct of the Board hearing. As such, the Board finds that the undersigned complied with the duties set forth in 38 C.F.R. 3.103(c)(2), consistent with Bryant, and that any error in notice provided during the Veteran's hearing constitutes harmless error. Legal Analysis New and Material Evidence In general, rating decisions that are not timely appealed are final. See 38 U.S.C.A. § 7105 (West 2002); 38 C.F.R. § 20.1103 (2014). If new and material evidence is presented or secured with respect to a claim that has been finally disallowed, the claim shall be reopened and reviewed. See 38 U.S.C.A. § 5108 (West 2002); 38 C.F.R. § 3.156 (2014). The question of whether new and material evidence has been received to reopen each claim must be addressed in the first instance by the Board because the issue goes to the Board's jurisdiction to reach the underlying claim and adjudicate it on a de novo basis. See Jackson v. Principi, 265 F.3d 1366 (Fed. Cir. 2001); see also Barnett v. Brown, 83 F.3d 1380, 1383 (Fed. Cir. 1996), aff'g 8 Vet. App. 1 (1995). If the Board finds that no such evidence has been offered, this is where the Board's analysis must end; hence, what the RO may have determined in this regard is irrelevant. Jackson, 265 F.3d at 1369; Barnett, 83 F.3d at 1383. "New" evidence is defined as evidence not previously submitted to agency decision-makers. "Material" evidence means existing evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. New and material evidence can be neither cumulative nor redundant of the evidence of record at the time of the last prior final denial of the claim sought to be reopened, and must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a). In order for evidence to be sufficient to reopen a previously disallowed claim, it must be both new and material. If the evidence is new, but not material, the inquiry ends and the claim cannot be reopened. See Smith v. West, 12 Vet. App. 312, 314 (1999). If it is determined that new and material evidence has been submitted, the claim must be reopened. The VA may then proceed to evaluate the merits of the claim on the basis of all evidence of record, but only after ensuring that the duty to assist the veteran in developing the facts necessary for his claim has been satisfied. See Elkins v. West, 12 Vet. App. 209 (1999). In Shade v. Shinseki, 24 Vet. App. 110, 120 (2010), the United States Court of Appeals for Veterans Claims (Court) interpreted the phrase 'raises a reasonable possibility of substantiating the claim' as "enabling rather than precluding reopening." The Court held that 38 C.F.R. § 3.159(c)(4)(iii) does not require new and material evidence as to each previously unproven element of a claim. See Shade, 24 Vet. App. at 120. Even if no appeal is filed, a rating decision is not final if new and material evidence is submitted within the appeal period and has not yet been considered by VA. 38 C.F.R. § 3.156(b) (2013); Bond v. Shinseki, 659 F.3d 1362, 1367-68 (Fed. Cir. 2011). The appellant contends that he is entitled to service connection for lung cancer. For the reasons that follow, the Board finds that new and material evidence has not been received to reopen the Veteran's claim. The Board notes that in a September 2003 rating decision the RO denied service connection for lung cancer on the basis that there was no diagnosis of lung cancer. After the Veteran was notified of the decision in September 2003, additional VA treatment records relevant to the issue on appeal were received. As such, the September 2003 rating decision is not final. 38 C.F.R. § 3.156(b). Thereafter, in a September 2004 the RO readjudicated the claim of entitlement to service connection for lung cancer. Subsequent to being notified of the denial of the claim in a September 2004 letter, the Veteran did not submit any evidence addressing the basis of the denial of his service connection claim within one year of the September 2004 rating action, nor did he file a timely appeal to the September 2004 rating action. Therefore, the September 2004 rating action is final. 38 U.S.C. § 7105(c) (West 2002); 38 C.F.R. §§ 3.104, 20.302, 20.1103 (2004); currently 38 U.S.C.A. § 7105 (West 2014); 38 C.F.R. §§ 3.104, 20.302, 20.1103 (2014). Consequently, the September 2004 rating decision is the last final prior decision denying the claim of entitlement to service connection for lung cancer. The evidence added to the record since the September 2004 rating decision denying the Veteran's claim for service connection for lung cancer, includes VA treatment records which do not reflect any diagnosis of lung cancer. The remaining evidence added to the record, including the Veteran's testimony at the Board hearing, reflects that the Veteran is not and has never been diagnosed with lung cancer. Specifically, at the Board hearing the Veteran testified that he does not now have, nor has he ever had, a diagnosis of lung cancer. As this service connection claim was denied on the basis of no diagnosis of lung cancer, this evidence is not new and material because it shows definitively that the Veteran does not have a diagnosis of lung cancer. Without such a diagnosis, and with definitive evidence that such a diagnosis does not exist, new and material evidence has not been received, and reopening of the claim of entitlement to service connection for lung cancer is not in order. Service Connection Service connection may be established for disability resulting from personal injury suffered or disease contracted in line of duty in the active military, naval, or air service. 38 U.S.C.A. §§ 1110, 1131. That an injury or disease occurred in service is not enough; there must be chronic disability resulting from that injury or disease. If there is no showing of a resulting chronic condition during service, then a showing of continuity of symptomatology after service is required to support a finding of chronicity. 38 C.F.R. § 3.303(b). 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). Other specifically enumerated disorders, including hypertension and arthritis, will be presumed to have been incurred in service if manifested to a compensable degree within the first year following separation from active duty. 38 U.S.C.A. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309. In Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013), the Federal Circuit held that the theory of continuity of symptomatology can be used only in cases involving those conditions explicitly recognized as chronic in 38 C.F.R. § 3.309(a). Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). In relevant part, 38 U.S.C.A. § 1154(a) requires that VA give 'due consideration' to 'all pertinent medical and lay evidence' in evaluating a claim for disability benefits. In order to establish direct service connection for a disorder, there must be (1) competent evidence of the current existence of the disability for which service connection is being claimed; (2) competent evidence of a disease contracted, an injury suffered, or an event witnessed or experienced in active service; and (3) competent evidence of a nexus or connection between the disease, injury, or event in service and the current disability. Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. Sept. 14, 2009); cf. Gutierrez v. Principi, 19 Vet. App. 1, 5 (2004) (citing Hickson v. West, 12 Vet. App. 247, 253 (1999)). In many cases, medical evidence is required to meet the requirement that the evidence be "competent." However, when a condition may be diagnosed by its unique and readily identifiable features, the presence of the disorder is not a determination "medical in nature" and is capable of lay observation. Barr v. Nicholson, 21 Vet. App. 303, 309 (2007). In rendering a decision on appeal, the Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant. See Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the benefit of the doubt shall be given to the claimant. 38 U.S.C.A. § 5107(b). When a reasonable doubt arises regarding service origin, such doubt will be resolved in the favor of the claimant. Reasonable doubt is doubt which exists because of an approximate balance of positive and negative evidence which does not satisfactorily prove or disprove the claim. 38 C.F.R. § 3.102. The question is whether the evidence supports the claim or is in relative equipoise, with the claimant prevailing in either event, or whether a fair preponderance of the evidence is against the claim, in which event the claim must be denied. See Gilbert, 1 Vet. App. at 54. Hypertension Initially, the Board notes that, for VA purposes, hypertension means that the diastolic pressure is predominantly 90 or greater, and isolated systolic hypertension means that the systolic pressure is predominantly 160 or greater with a diastolic pressure of less than 90. See 38 C.F.R. § 4.104, Diagnostic Code 7101. As such, specific medical testing is required to determine if a person has hypertension. Therefore, competent medical evidence is required to diagnose this disability and determine the etiology thereof. The Veteran claims that he is entitled to service connection for hypertension because it began in service. At the Board hearing he testified that while he was serving in Vietnam, his blood pressure went up and down. He further testified that he was not diagnosed with hypertension until he began seeking medical care through VA in 2004. A review of the service treatment records reflects that the Veteran was not diagnosed with hypertension in service. There is also no record of elevated blood pressure readings in service. The June 1968 separation examination report notes that blood pressure was 134/80. The separation examination report of medical history reflects that the Veteran denied having high or low blood pressure. The post service medical evidence reflects that the Veteran is currently diagnosed with hypertension, but there is no medical opinion as to the etiology of the hypertension. The Veteran, as a lay person, is not competent to establish a diagnosis of hypertension in service based on his senses alone. Blood pressure is measured using a sphygmomanometer, and hypertension is detected from those readings. As a result, hypertension is not a condition that one could identify through senses alone, and the Veteran is not competent to identify it without a sphygmomanometer and the resulting blood pressure readings. See Jandreau, 492 F.3d at 1376-77. Furthermore, the Veteran's blood pressure was taken at his separation from service, and was shown to be within normal limits. There is no indication in the service treatment records that the Veteran was ever found to have high blood pressure at that time, nor is there any evidence that he was found to have high blood pressure within a year after service. The Veteran has further stated that he was not found to have hypertension until 2004, over 30 years after his separation from service. While the post-service medical evidence reflects a diagnosis of hypertension, there is no evidence as to its etiology. The Board finds that no remand for such an opinion is required in this case because the evidence does not indicate that hypertension may be associated with service, for the following reasons. The Veteran's service treatment records are negative for any complaints, diagnoses, or treatment of hypertension. The Veteran has not provided any medical evidence indicating that his hypertension is related to service, and while he has stated that he believes he might have had high blood pressure in service, the normal blood pressure reading taken at separation provides medical evidence that he did not. The evidence thus indicates that the Veteran did not have hypertension in service or a diagnosis of hypertension within one year of service, nor does it suggest that a nexus exists between the Veteran's current disability and an in-service event. In short, as there is no competent and credible evidence that hypertension was incurred in service or within a year of separation from service, the preponderance of the evidence is against the claim for service connection for hypertension. The Board has again considered the applicability of the benefit of the doubt doctrine. However, the preponderance of the evidence is against the appellant's claim and that doctrine is not applicable. See 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; see also Fagan, 573 F.3d at 1287. Lumbar Spine Disability The Veteran testified at the Board hearing that he is entitled to service connection for arthritis of the spine because he hurt his back in service in Vietnam in 1967 or 1968. He indicated that he hurt his low back from going in tunnels and overloading himself, overdoing himself, and pulling people out. He stated that he went on sick call for his low back pain and got pain pills in service. After service he stated that he treated his back with over-the-counter medication. A review of the service treatment records reflects no complaints or findings of any back problems whatsoever. The service separation examination report reflects that spine examination was normal. The separation examination report of medical history reflects that the Veteran denied back trouble of any kind, as well as arthritis, and bone, joint, or other deformity. Likewise, the VA treatment records are negative for any complaints or findings with respect to the Veteran's lumbar spine. At the Board hearing the Veteran testified that he had been treated for his low back problems through VA, beginning in 2004. The Veteran specifically stated that he received all kinds of pills from his VA physician but that his VA physician had never opined that the Veteran's back disability was related to service. Based upon the Veteran's statements that he had received treatment through VA for his low back, and the lack of any record of a single complaint or finding of a low back problem, the Veteran is found not credible about his back and as such, the Board finds no competent and credible evidence of a low back disability. Congress specifically limits entitlement for service-connected disease or injury to cases where such incidents have resulted in a disability. See 38 U.S.C.A. §§ 1110; 1131. In the absence of proof of present disability there can be no valid claim. Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992); see also Degmetich v. Brown, 104 F.3d 1328 (1997) (38 U.S.C.A. § 1131 requires existence of present disability for VA compensation purposes); see also Wamhoff v. Brown, 8 Vet. App. 517, 521 (1996). The Veteran, as a lay person, is not competent to establish a diagnosis of a lumbar spine disability, or degenerative arthritis of the lumbar spine as he claims, based on his senses alone. Arthritis is diagnosed via X-ray studies. As a result, degenerative arthritis of the lumbar spine is not a condition that one could identify through senses alone, and the Veteran is not competent to identify it without an X-ray study. Furthermore, the Veteran's spine was examined at his separation from service, and was shown to be within normal limits. There is no indication in the service treatment records that the Veteran was ever found to have a lumbar spine disability at that time, nor is there any evidence that he was found to have arthritis of the lumbar spine within a year after service. The Veteran has further stated that he was not found to have arthritis of the lumbar spine until 2004, over 30 years after his separation from service. While the post-service medical evidence reflects a diagnosis of degenerative arthritis of the cervical spine in April 2004, the Veteran's testimony was that he injured his low back in service and that he is seeking service connection for a disability of the lumbar spine. If the Veteran wishes to file a claim for service connection for a cervical spine disability, he is free to do so. The Board finds that no remand for a medical opinion is required in this case because the evidence does not indicate that the Veteran's has a lumbar spine disability at all, let alone one that may be associated with service, for the following reasons. The Veteran's service treatment records are negative for any complaints, diagnoses, or treatment of a spine disability. The Veteran has not provided any medical evidence indicating that any current disability of the lumbar spine exists or is related to service, and while he has stated that he believes he injured his low back in service, the normal spine examination found at separation and the denial of back trouble at any sort on the report of medical history at separation provides medical and lay evidence that he did not. The evidence thus indicates that the Veteran did not have a disability of the lumbar spine in service or a diagnosis of arthritis of the lumbar spine within one year of service, nor does it suggest that the Veteran has a current lumbar spine disability that is etiologically related to an in-service event. In short, as there is no competent and credible evidence that a lumbar spine disability was incurred in service or within a year of separation from service, the preponderance of the evidence is against the claim for service connection for a lumbar spine disability. The Board has again considered the applicability of the benefit of the doubt doctrine. However, the preponderance of the evidence is against the appellant's claim and that doctrine is not applicable. See 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; see also Fagan, 573 F.3d at 1287. ORDER Entitlement to service connection for a lumbar spine disability is denied. Entitlement to service connection for hypertension is denied. New and material evidence not having been received, the claim of entitlement to service connection for lung cancer is not reopened. REMAND Although the Board regrets the additional delay, a remand is necessary to ensure that due process is followed and that there is a complete record upon which to decide the Veteran's remaining claims so that he is afforded every possible consideration. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. The Veteran claims that he is entitled to service connection for depression because it is due to his service-connected PTSD. A review of the VA treatment records dated in March 2009, March 2012, August 2012, June 2013, and August 2013 reflects that the Veteran has a diagnosis of depression. At the VA mental health examinations in March 2010, October 2012 and February 2014, the Veteran was not diagnosed with any mental health disability other than PTSD, but he reported moderate depression in March 2010 and was found to have depressed mood in October 2012 and February 2014. While the depressed mood appears to have been taken into account in the rating of PTSD, to the extent that the Veteran is diagnosed with a separate disability, that of depression, there is no evidence as to whether such disability is etiologically related to service or caused or aggravated by the service-connected PTSD. Therefore, a remand is necessary in order to obtain such an opinion. With regard to the Veteran's claim for service connection for migraine headaches, the Veteran testified that he first had headaches in service in Vietnam. He stated that he went on sick call and then treated himself with over-the-counter medication after service until he first received treatment for his migraines through VA in 2004. The VA treatment records reflect that the Veteran was first seen for headaches in May 2003. The Board finds that the Veteran is competent to report having had headaches in service and ever since service, despite the lack of medical documentation of such in the service treatment records or until May 2003 when the Veteran was first seen for his headaches in May 2003. See Layno v. Brown, 6 Vet. App. 465, 470 (1994) (finding that the appellant is competent to report on matters observed or within his personal knowledge). Regarding the Veteran's lung disability, which is currently diagnosed as aspergillus, the Veteran contends that it is related to service, to include exposure to herbicides therein. A review of the record confirms that the Veteran served in Vietnam, and therefore was exposed to Agent Orange during service. However, as a layperson not shown to possess appropriate medical training and expertise, the Veteran is not competent to render an opinion on the etiology of his headaches or his lung condition, as such requires medical expertise to determine the etiology of these disorders. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007) (noting general competence to testify to symptoms but not provide medical diagnosis). Therefore, a remand is necessary to obtain medical opinions as to the etiology of such disabilities. The claims file contains the Veteran's VA treatment records dated to March 2013. As such, up-to-date VA treatment records should also be obtained. 38 U.S.C.A. § 5103A(c) (West 2002); see also Bell v. Derwinski, 2 Vet. App. 611 (1992) (VA medical records are in constructive possession of the agency, and must be obtained if the material could be determinative of the claim). [As an aside, the Board points out that although a September 2004 rating decision appears to have denied pulmonary aspergillus, previously claimed as lung and throat cancer, the RO has developed the instant claim of entitlement to service connection for a benign growth of the lung on the merits. Moreover, the Board hearing was held on the service connection issue on the merits. Importantly, the Veteran was not advised that a claim for benign growth of the lung was previously denied. See Kent. Because it is more favorable to the Veteran to treat this claim as a direct service connection claim, and no prejudice will result if the claim is considered as such, the Board has found that the claim should be considered as a direct service connection claim on the merits.] Accordingly, the case is REMANDED for the following action: 1. Obtain the Veteran's VA treatment records dating from March 2013 through the present, and associate them with the claims file. 2. Return the claims file, to include a copy of this remand, to the February 2014 mental health VA examiner and request that the examiner provide an opinion as to the etiology of the Veteran's depression. Regardless of the lack of a diagnosis of depression at the February 2014 VA examination, the examiner must provide an opinion as to whether it is at least as likely as not (50 percent or better probability) that the Veteran's depression (diagnosed as a separate disability in VA treatment records dated in March 2009, March 2012, August 2012, June 2013, and August 2013) is etiologically related to service, or caused or aggravated (permanently increased in severity beyond the normal progression of the disease) by the Veteran's service-connected PTSD. A complete rationale must be provided. If the February 2014 mental health VA examiner is unavailable, the requested opinion must be obtained from another suitable examiner. If the new examiner determines that a new VA examination is warranted, one should be scheduled. 3. Schedule the Veteran for an appropriate VA examination in order to determine the nature and etiology of his current headaches. The claims file and a copy of this remand must be made available to and reviewed by the examiner. The examiner must provide an opinion as to whether it is at least as likely as not (50 percent or better probability) the Veteran's currently diagnosed headaches are etiologically related to active service. In rendering the opinion, the examiner must address the Veteran's lay contentions that he had headaches in service and ongoing headaches ever since service. A complete rationale for all opinions must be provided. 4. Schedule the Veteran for an appropriate VA examination in order to determine the nature and etiology of his current aspergillus. The claims file and a copy of this remand must be made available to and reviewed by the examiner. The examiner must provide an opinion as to whether it is at least as likely as not (50 percent or better probability) the Veteran's currently diagnosed aspergillus is etiologically related to active service, to include his exposure to herbicides in service. (The Veteran served in Vietnam and is therefore presumed to have been exposed to herbicides.) A complete rationale for all opinions must be provided. 5. The Veteran must be advised of the importance of reporting to the scheduled VA examinations and of the possible adverse consequences, to include the denial of his claim, of failing, without good cause, to so report. See 38 C.F.R. § 3.655 (2014). A copy of the notification letter sent to the Veteran advising him of the time, date, and location of the scheduled examinations must be included in the claims folder and must reflect that it was sent to his last known address of record. If he fails to report, the claims folder must indicate whether the notification letter was returned as undeliverable. 6. The RO must then readjudicate the claims and, thereafter, if the claims on appeal remain denied, the Veteran and his representative must be provided a supplemental statement of the case. After the Veteran and his representative have 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 or matters 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 2014). ______________________________________________ L. M. BARNARD Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs