Citation Nr: 1612926	
Decision Date: 03/30/16    Archive Date: 04/07/16

DOCKET NO.  13-05 870	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Milwaukee, Wisconsin


THE ISSUES

1.  Entitlement to service connection for a bilateral foot disorder, to include bunions.

2.  Entitlement to service connection for a bilateral hearing loss disability.

3.  Entitlement to service connection for bilateral carpal tunnel syndrome.

4.  Entitlement to service connection for a bilateral wrist disability.

5.  Entitlement to service connection for a bilateral elbow disability.

6.  Entitlement to service connection for a bilateral knee disability.

7.  Entitlement to service connection for hemorrhoids.




REPRESENTATION

Veteran represented by:	Wisconsin Department of Veterans Affairs


ATTORNEY FOR THE BOARD

L. Pelican, Associate Counsel


INTRODUCTION

The Veteran served on active duty from July 1975 to March 1981.  The Veteran was awarded inter alia the M-16 Expert Marksman Badge.  

This case comes before the Board of Veterans' Appeals (the Board) from June 2011 and September 2012 rating decisions of a Department of Veterans Affairs (VA) Regional Office (RO) in Milwaukee, Wisconsin.

The Board remanded the Veteran's claims in April 2015 for further development.  As part of the requested development, the Board instructed the RO to contact the Veteran to clarify whether he still desired a hearing before a Veterans' Law Judge and if so, to schedule one.  The RO sent the Veteran and his representative a letter in April 2015 seeking clarification; neither party responded.  Accordingly, the Board finds the Veteran's request has been withdrawn.  38 C.F.R. § 20.704 (e) (2015).  However, for the reasons discussed in the remand section, further development is required on the Veteran's service connection claim for a bilateral foot disability.  Stegall v. West, 11 Vet. App. 268 (1998).  

This appeal was processed using the Virtual VA and Veterans Benefits Management System (VBMS) paperless claims processing systems.  Accordingly, any future consideration of this case should take into consideration the existence of these electronic records.

The issue of entitlement to service connection for a bilateral foot disability is addressed in the REMAND portion of the decision below and is REMANDED to the Agency of Original Jurisdiction (AOJ).


FINDINGS OF FACT

1.  The evidence shows that none of the Veteran's auditory thresholds in the 500 Hertz, 1000 Hertz, 2000 Hertz, 3000 Hertz, or 4000 Hertz frequencies exceed 26 decibels, or that the Veteran had speech recognition scores below 94 percent.

2.  The evidence does not show a current diagnosis of right or left upper extremity carpal tunnel syndrome, or an event, injury, or disease related to carpal tunnel syndrome.

3.  The evidence does not show a current diagnosis of a right or left wrist disability, or an event, injury, or disease related to a wrist disability.

4.  The evidence does not show a current diagnosis of a right or left elbow disability, or an event, injury, or disease related to an elbow disability.

5.  The evidence does not show a current diagnosis of right or left knee disability, or an event, injury, or disease related to a knee disability.

6.  The evidence does not show a current diagnosis of hemorrhoids, or an event, injury, or disease related to hemorrhoids.


CONCLUSIONS OF LAW

1.  A bilateral hearing loss disability for VA compensation purposes has not been shown.  38 U.S.C.A. §§ 1101, 1112, 1131, 1137 (West 2014); 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.385 (2015).

2.  Bilateral carpal tunnel syndrome was not incurred in or aggravated by service.  38 U.S.C.A. §§ 1101, 1112, 1131, 1137 (West 2014); 38 C.F.R. § 3.303 (2015).

3.  A bilateral wrist disability was not incurred in or aggravated by service.  38 U.S.C.A. §§ 1101, 1112, 1131, 1137 (West 2014); 38 C.F.R. § 3.303 (2015).

4.  A bilateral elbow disability was not incurred in or aggravated by service.  38 U.S.C.A. §§ 1101, 1112, 1131, 1137 (West 2014); 38 C.F.R. § 3.303 (2015).

5.  A bilateral knee disability was not incurred in or aggravated by service.  38 U.S.C.A. §§ 1101, 1112, 1131, 1137 (West 2014); 38 C.F.R. § 3.303 (2015).

6.  Hemorrhoids were not incurred in or aggravated by service.  38 U.S.C.A. §§ 1101, 1112, 1131, 1137 (West 2014); 38 C.F.R. § 3.303 (2015).


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

The Board has reviewed the Veteran's claims file.  Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, all the evidence submitted by or on behalf of the Veteran.  See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (noting that 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 claims.  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) (explaining that the law requires only that the Board address its reasons for rejecting evidence favorable to the Veteran).





Duties to Notify and Assist

VA satisfied its duty to notify the Veteran pursuant to the Veterans Claims Assistance Act of 2000 (VCAA).  38 U.S.C.A. §§ 5100, 5102-5103A, 5106, 5107, 5126 (West 2014); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a), 4.2 (2015).

The VCAA requires VA to assist a claimant at the time he or she files a claim for benefits.  As part of this assistance, VA is required to notify claimants of the evidence that is necessary, or would be of assistance, in substantiating their claim, and provide notice that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded.  38 U.S.C.A. § 5103(a) (West 2014); 38 C.F.R. § 3.159(b)(1) (2015); Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002); Dingess v. Nicholson, 19 Vet. App. 473, 486 (2006).  All notice under the VCAA should generally be provided prior to an initial decision on a claim by the agency of original jurisdiction (AOJ).  Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004).  Here, a letter from VA dated in July 2012 notified the Veteran of how to substantiate a service connection claim.  The letter notified the Veteran of the allocation of responsibilities between himself and VA, and of how ratings and effective dates are assigned.  Therefore, the duty to notify is satisfied.

VA's duty to assist under the VCAA includes helping the claimant obtain service treatment records and other pertinent records, as well as performing an examination or obtaining a medical opinion when one is necessary to make a decision on the claim.  See 38 U.S.C.A. § 5103A (West 2014); 38 C.F.R. § 3.159(c) (2015).
Here, the Veteran's service treatment records and employee health records are in the claims file.  He has not identified any other records or evidence that remains outstanding.  Thus, the duty to obtain relevant records on the Veteran's behalf is satisfied.  See 38 C.F.R. § 3.159(c) (2015).

The Veteran was provided a VA audiological examination in March 2013.  As will be discussed in greater detail below, the examiner reviewed the Veteran's past medical history, considered the Veteran's present complaints, examined the Veteran, and provided a medical finding such that the Board can render an informed determination.  The Board, therefore, concludes that the examination reports are adequate for the purposes of rendering a decision in the instant appeal.  See 38 C.F.R. § 4.2 (2015); see also Barr v. Nicholson, 21 Vet. App. 303, 312 (2007).

The Veteran has not been afforded VA examinations to assess the nature and etiology of his claimed carpal tunnel syndrome, hemorrhoids, or arthritis of the bilateral wrists, elbows, and knees.  In the case of McLendon v. Nicholson, 20 Vet. App. 79 (2006), the Court held that an examination is required 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; (3) an indication that the disability or persistent or recurrent symptoms of a disability may be associated with the veteran's service; and (4) insufficient competent medical evidence on file for VA to make a decision on the claim.

Here, a medical examination or opinion addressing the Veteran's claimed carpal tunnel syndrome, hemorrhoids, and arthritis of the wrists, elbows, and knees is unnecessary.  As discussed in more detail below, the evidence of record is against a finding that the Veteran has current diagnoses for the claimed conditions, or that events occurred in service that could be related to those conditions.  As there is no credible evidence that the Veteran has current diagnoses or in-service events as required by first and second McLendon elements to support his claims, a remand to afford the Veteran examinations is not necessary.  See also Bardwell v. Shinseki, 24 Vet. App. 36, 39-40 (2010) (finding that VA is not required to provide a medical examination when there is not credible evidence of an event, injury, or disease in service).  The Board observes that the act of filing a claim and simply stating the condition is related to service is not enough to trigger the duty to provide an examination.  Waters v. Shinseki, 601 F.3d 1274 (Fed. Cir. 2010).

The Board additionally observes that all appropriate due process concerns have been satisfied.  See 38 C.F.R. § 3.103 (2015).  The Veteran declined the opportunity to present testimony before a Veterans' Law Judge.  The Veteran has been accorded the opportunity to present evidence and argument in support of his claims.  Thus, the Board finds that VA has satisfied its duties to inform and assist the Veteran at every stage of this case, and may proceed to the merits of the Veteran's claims.
Legal Criteria

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. § 1131 (West 2014).  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) (2015).  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) (2015).

For veterans who have served 90 days or more of active service during a war period or after December 31, 1946, certain chronic disabilities, including sensorineural hearing loss, are presumed to have been incurred in service if manifest to a compensable degree within one year of discharge from service.  38 U.S.C.A. §§ 1101, 1112, 1137 (West 2014); 38 C.F.R. §§ 3.307, 3.309 (2015).  In the instant case, there is no presumed service connection because the Veteran's hearing loss disability did not manifest to a compensable degree within one year of service and, indeed, was not diagnosed until many years after service.

In the absence of presumptive service connection, to establish a right to compensation for a present disability on a direct basis, a Veteran must show: (1) 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) 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).

The Board is required to assess the credibility and probative weight of all relevant evidence, and may consider factors such as facial plausibility, bias, self-interest, and consistency with other evidence of record.  McClain v. Nicholson, 21 Vet. App. 319, 325 (2007) (Greene, J., concurring in part and dissenting in part) (noting that the Board has the duty to assess credibility and probative weight of evidence); see Jandreau v. Nicholson, 492 F.3d 1372, 1376 (Fed. Cir. 2007) (affirming that the Board retains discretion to make credibility determinations and otherwise weigh the evidence submitted, including lay evidence); Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006) (holding that the Board, as fact finder, is obligated to, and fully justified in, determining whether lay evidence is credible in and of itself, i.e., because of possible bias, conflicting statements, etc.).  The Court has also held that contemporaneous records are more probative than history as reported by a Veteran.  See Curry v. Brown, 7 Vet. App. 59, 68 (1994).

The Veteran is competent to provide testimony concerning factual matters of which he has firsthand knowledge, such as experiencing a physical symptom such as pain.  Barr v. Nicholson, 21 Vet. App. 303 (2007); Washington v. Nicholson, 19 Vet. App. 362 (2005) (holding that the Veteran was competent to report hip disorder, pain, rotated foot; limited duty, physical therapy, and treatment in service).  Further, under certain circumstances, lay statements may support a claim for service connection by supporting the occurrence of lay-observable events or the presence of disability, or symptoms of disability, susceptible of lay observation.  Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Jandreau, 492 F.3d 1372 (holding that a layperson is competent to identify a simple condition such as a broken leg).  Competency of evidence, however, differs from weight and credibility.  The former is a legal concept determining whether testimony may be heard and considered by the trier of fact, while the latter 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, 74 (1997); Layno v. Brown, 6 Vet. App. 465, 469 (1994); see also Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991) (noting that "although interest may affect the credibility of testimony, it does not affect competency to testify").

The Board has the authority to "discount the weight and probity of evidence in the light of its own inherent characteristics and its relationship to other items of evidence."  See Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997 ), cert. denied, 523 U.S. 1046 (1998) (affirming Board decision affording higher probative value to a contemporaneous written by the Veteran during service than a subsequent assertion years later).  In evaluating the probative value of competent medical evidence, the Court has stated that the probative value of medical opinion evidence is based on the medical expert's personal examination of the patient, the physician's knowledge and skill in analyzing the data, and the medical conclusion that the physician reaches.  See Guerrieri v. Brown, 4 Vet. App. 467, 470-71 (1993).  As such, the Board may appropriately favor the opinion of one competent medical authority over another.  See Owens v. Brown, 7 Vet. App. 429, 433 (1995); Wensch v. Principi, 15 Vet. App. 362, 367 (2001).

Bilateral Hearing Loss Disability

With respect to claims for service connection for hearing loss, the United States Court of Appeals for Veterans Claims (the Court) has held that the threshold for normal hearing is from 0 to 20 decibels, and that higher threshold levels indicate some degree of hearing loss.  Hensley v. Brown, 5 Vet. App. 155, 157 (1993).  The Court further opined that 38 C.F.R. § 3.385 (2015), discussed below, then operates to establish when a hearing loss disability can be service connected.  Id at 159.

For the purposes of applying the laws administered by VA, impaired hearing will be considered to be a disability when the auditory threshold in any of the frequencies 500, 1000, 2000, 3000, 4000 Hertz is 40 decibels or greater; or when the auditory thresholds for at least three of the frequencies 500, 1000, 2000, 3000, 4000 Hertz are 26 decibels or greater; or when speech recognition scores using the Maryland CNC Test are less than 94 percent.  38 C.F.R. § 3.385 (2015).

The Veteran's military occupational specialty was electronic warfare analyst, and he earned the M16 expert marksmanship badge, therefore traumatic noise exposure during service is conceded.  This claim turns on whether the Veteran has a hearing loss disability for VA compensation purposes.  The record shows he does not.

The Veteran was provided a VA audiological examination in March 2013.  Audiometry revealed puretone thresholds, in decibels, were:






HERTZ



500
1000
2000
3000
4000
RIGHT
15
20
20
25
25
LEFT
15
20
20
25
25

The Veteran had 94 percent speech recognition in both ears.  

As shown above, none of the March 2013 puretone measurements, at any frequency, exceeded 40 decibels, let alone 26 decibels.  Moreover, the Veteran had no speech recognition scores below 94 percent.  Thus, he has not been shown to have a hearing loss disability for VA compensation purposes.  38 C.F.R. § 3.385 (2015).  Accordingly, service connection for hearing loss is not warranted, and this claim must be denied.

Other Service Connection Claims

The Veteran seeks service connection for carpal tunnel syndrome, arthritis of the wrists, elbows, and knees, and hemorrhoids.  He attributed his carpal tunnel syndrome and hemorrhoids to typing and frequent sitting, respectively, during "the last three years."  See June 2012 claim.  The Veteran provided no information relating to the in-service circumstances of his claimed arthritis disabilities.

The Veteran's service treatment records are silent for complaints or treatment for carpal tunnel syndrome, arthritis or any injuries involving the wrist, elbow, or knee joints, and hemorrhoids.  In his October 2012 notice of disagreement, the Veteran wrote that his service records contained no information regarding these conditions because going for any treatment of any condition was grounds for punishment; consequently, he wrote, no one went for treatment and those that did "ended up with extra duty or worse."  However, review of the Veteran's service treatment records shows he was seen on several occasions for a variety of conditions, including treatment for episodic shortness of breath in June 1977, for back pain in January 1979, for an upper respiratory infection in February 1979, and a groin injury in March 1979.  A form dated October 1, 1980 shows the Veteran elected not to undergo a separation examination; however a November 1980 record notes that the Veteran's health record was reviewed and that no information was shown that would preclude separation.  Moreover, an April 1980 periodic examination report is of record and shows the Veteran's clinical evaluation was normal throughout.  Thus, the Veteran's service treatment records appear complete, and it is reasonable to conclude that they would include reference to the Veteran's claimed conditions given that the Veteran sought care for a variety of other conditions.  

The Board also finds the Veteran's statement that he did not seek care for the claimed disabilities for fear of being punished to be not credible, given that when the Veteran filed service connection claims in 1998 for asthma and a dental disability, he reported receiving treatment for those conditions during service.  See September 1998 VA Form 21-526, pp. 1-2.  Together, this evidence belies the Veteran's assertion that his service records would not show complaints or treatment because he feared punishment and did not seek any care.  Given the inconsistencies in the Veteran's statements regarding any care received during service, the Board finds his assertions regarding in-service events to be not credible. 

Moreover, the Veteran has provided no evidence that he presently receives care for any of his claimed conditions, or that they have existed since service.  A handwritten note on a February 2013 deferred rating decision indicated that there were no downloadable VA medical center records, only "employee entries."  The employee treatment records requested by the AOJ do not show complaints of or treatment for any of the claimed conditions.  As noted above, the Veteran was provided notice in an April 2012 letter regarding VA's duties to assist him with the development of his claims, and was asked to provide any information that could either support his claims or enable VA to obtain evidence in support of his claims.  The Veteran offered no such evidence.  

Congress has specifically limited entitlement to service-connected benefits to cases where there is a current 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).  Here, because there is no credible evidence of carpal tunnel syndrome, wrist, elbow, knee, and hemorrhoid disabilities during service or at present, the Board finds that service connection for those claimed conditions is not warranted.
ORDER

Entitlement to service connection for a bilateral hearing loss disability is denied.

Entitlement to service connection for carpal tunnel syndrome is denied.

Entitlement to service connection for a bilateral wrist disability is denied.

Entitlement to service connection for a bilateral elbow disability is denied.

Entitlement to service connection for a bilateral knee disability is denied.

Entitlement to service connection for hemorrhoids is denied.


REMAND

In the April 2015 remand, the Board instructed the AOJ to provide the Veteran with a VA examination to identify any diagnosed bilateral foot disabilities and determine whether any such disability was incurred in service.  The examiner was also directed to provide an opinion addressing whether the Veteran's preexisting pes planus disability, noted on his April 1975 enlistment examination report, was aggravated during service.

The Veteran was afforded a VA examination in July 2015.  However, the examiner's opinion is inadequate for rating purposes.  Specifically, the examiner's opinion only stated that there was no evidence to support in-service aggravation.  To the extent that the examiner commented on whether the Veteran's other diagnosed foot disabilities, including metatarsalgia, hallux valgus, hallux rigidus, and plantar fasciitis, his opinion is unclear.  Thus, an addendum opinion is necessary.

The Board stresses that as the Veteran's April 1975 enlistment examination noted the existence of his pes planus, the presumption of soundness does not apply to the Veteran's claim for that specific condition.  Where a preexisting disease or injury is noted on an entrance examination, that preexisting injury or disease will be considered to have been aggravated by active service, where there is an increase in disability during such service, unless there is a specific finding that the increase in disability is due to the natural progress of the disease.  See 38 U.S.C.A. § 1153 (West 2014); 38 C.F.R. § 3.306(a) (2015).  Temporary or intermittent flare-ups of a preexisting injury or disease are not sufficient to be considered "aggravation in service" unless the underlying condition itself, as contrasted with mere symptoms, has worsened.  See Jensen v. Brown, 4 Vet. App. 304, 306-07 (1993); Green v. Derwinski, 1 Vet. App. 320, 323 (1991); Hunt v. Derwinski, 1 Vet. App. 292, 297 (1991).  

Thus, the threshold question is whether the evidence shows there was an increase in disability during service.  The Veteran's service treatment records do not indicate the receipt of treatment for his pes planus, and contain no mention of the condition but for the Veteran's April 1975 entrance examination and report of medical history.  An April 1980 periodic examination report made no reference to the Veteran's pes planus and did not note any problems with his feet.  In his June 2011 Notice of Disagreement, the Veteran stated that the constant drilling, marching, long marches, formations, physical training, and running in the military aggravated his condition, and that he was not offered or given any foot supports.  Additionally, during his June 2015 VA examination, the examiner indicated the Veteran received no treatment for his feet during service, but reported that his feet kept getting worse.  

Under certain circumstances, lay statements may support a claim for service connection by supporting the occurrence of lay-observable events or the presence of disability, or symptoms of disability, susceptible of lay observation.  Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Jandreau, v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007) (holding that a layperson is competent to identify a simple condition such as a broken leg).  The Veteran's statement that his feet grew worse in service is entitled to some weight.  However, the Veteran's more recent assertions are outweighed by other evidence of record, including the April 1980 periodic medical examination, which was silent as to whether the Veteran's pes planus had undergone an increase in disability.  In his June 2011 Notice of Disagreement, the Veteran stated that the military was aware of his foot problems and did not offer him foot supports or other care.  As noted in the above decision, the service treatment records show the Veteran was seen on several occasions for a variety of conditions, including treatment for episodic shortness of breath in June 1977, for back pain in January 1979, for an upper respiratory infection in February 1979, and a groin injury in March 1979.  Had the Veteran's pes planus increased in disability as he suggests, it is reasonable to conclude that the Veteran would have sought care for his feet; however, the records show no such request on the part of the Veteran.  The Board affords more probative weight to the in-service records than the Veteran's recent lay assertions, and finds that the evidence does not show the Veteran's pes planus increased in disability.  Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997) (upholding Board decision giving higher probative value to a contemporaneous letter the veteran wrote during treatment than to his subsequent assertion years later).  Thus, the presumption of aggravation is not for application.  

Nevertheless, the Veteran may still receive service connection in the absence of the presumption of aggravation.  See Combee v. Brown, 34 F.3d 1039, 1042 (Fed. Cir. 1994); Ramey v. Brown, 9 Vet. App. 40, 44 (1996), aff'd sub nom. Ramey v. Gober, 120 F.3d 1239 (Fed. Cir. 1997), cert. denied, 118 S. Ct. 1171 (1998).  Thus, an opinion should be obtained on whether the Veteran's preexisting pes planus was aggravated by his active military service.

Accordingly, the case is REMANDED for the following actions:

1.  Forward the Veteran's claims file to the examiner who rendered the July 2015 opinion (or a suitable substitute if this individual is unavailable) for an addendum opinion.  The examiner is requested again to review the claims folder, to include this remand.  Unless the examiner finds that a new examination is required, the Veteran need not be examined again.

Following review of the claims file, the examiner should provide an opinion on the following:

a.  For pes planus, which preexisted service, is it at least as likely as not (a probability of 50 percent or greater) that the Veteran's pes planus was aggravated (i.e., permanently increased in severity) beyond the natural progression of the disability during active service?

Temporary or intermittent flare-ups of a preexisting injury or disease are not sufficient to be considered "aggravation in-service."  If aggravation is found, please identify to the extent possible the baseline level of disability prior to the aggravation and determine what degree of additional impairment is attributable to aggravation of the pes planus by the Veteran's active duty service.

b.  For each diagnosed foot disorder, other than pes planus, whether it is at least as likely as not (a probability of 50 percent or greater) that the disorder is caused by or related to service?

The examiner is asked to explain the reasons behind any opinions expressed and conclusions reached.  The phrase "as likely as not" does not mean "within the realm of medical possibility," but rather that the evidence of record is so evenly divided that, in the examiner's expert opinion, it is as medically sound to find in favor of the proposition as it is to find against it.  

If the examiner is unable to offer any requested opinion, it is essential that the examiner offer a rationale for the conclusion that an opinion could not be provided without resort to speculation, together with a statement as to whether there is additional evidence that could enable an opinion to be provided, or whether the inability to provide the opinion is based on the limits of medical knowledge.  See Jones v. Shinseki, 23 Vet. App. 382 (2011).

2.  Ensure completion of the foregoing and any other development deemed necessary, then readjudicate the Veteran's claim.  If the claim remains denied, the Veteran and his representative should be provided with a Supplemental Statement of the Case and an opportunity to respond.  The case should then be returned to the Board for appropriate appellate consideration.

The Veteran 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 2014).




______________________________________________
MICHAEL A. PAPPAS
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs