Citation Nr: 1621799	
Decision Date: 06/01/16    Archive Date: 06/13/16

DOCKET NO.  13-16 750	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Sioux Falls, South Dakota


THE ISSUE

Whether new and material evidence has been received sufficient to reopen a previously denied claim for entitlement to service connection for an acquired psychiatric disorder, to include depression and post-traumatic stress disorder (PTSD).

REPRESENTATION

Appellant represented by:	Disabled American Veterans


ATTORNEY FOR THE BOARD

J. Tunis, Associate Counsel






INTRODUCTION

The Veteran served on active duty from August 1980 to August 1983, and from July 2007 to November 2007. The Veteran had additional periods of service in the United States Army Reserve.

This matter comes before the Board of Veterans Appeals (Board) on appeal from a May 2013 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Sioux Falls, South Dakota.

The Veteran previously filed a claim for entitlement to service connection for depression. However, in Clemons v. Shinseki, 23 Vet. App. 1 (2009), the United States Court of Appeals for Veterans Claims held that the scope of a mental health disability claim includes any mental disability that may reasonably be encompassed by the claimant's reported symptoms and other information of record, i.e., that matters of service connection for diagnosed psychiatric disabilities other than PTSD are part and parcel of a service connection for PTSD claim. Accordingly, the Board has expanded the issues from service connection for depression and service connection for PTSD, to service connection for an acquired psychiatric disorder, as indicated on the title page.

In any case involving a finally denied claim, the Board must address whether new and material evidence has been received to reopen the claim before addressing the merits of the claim, regardless of whether or not the agency of original jurisdiction (AOJ) has already addressed the question. Jackson v. Principi, 265 F.3d 1366, 1369   (Fed. Cir. 2001); Wakeford v. Brown, 8 Vet. App. 237, 239-40 (1995). The question of whether new and material evidence has been received to reopen such a 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, 265 F.3d 1366; 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 new and material evidence has not been received, that is where the 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. The Board has characterized the claim accordingly.

The Board has reviewed the Veteran's electronic claims folder maintained in the Virtual VA paperless claims processing system and the Veterans Benefits Management System (VBMS).

The issue of entitlement to service connection for an acquired psychiatric disorder, to include PTSD and depression, is addressed in the REMAND portion of the decision below and is REMANDED to the Agency of Original Jurisdiction (AOJ).

FINDINGS OF FACT

1. In a May 1999 rating decision, the RO denied the Veteran's claim of entitlement to service connection for depression. The Veteran was notified of his appellate rights, but did not perfect an appeal.

2. Presuming its credibility, the evidence received since the May 1999 rating decision, by itself or in conjunction with previously considered evidence, relates to an unestablished fact necessary to substantiate the claim for service connection for an acquired psychiatric disorder, to include PTSD and depression, and raises a reasonable possibility of substantiating the claim.


CONCLUSIONS OF LAW

1. A May 1999 rating decision by the RO that denied the Veteran's claim for entitlement to service connection for depression, is final. 38 U.S.C.A. § 7105 (West 2014); 38 C.F.R. § 20.200 (2015). 

2. New and material evidence has been received to reopen the claim of service connection for an acquired psychiatric disorder, to include PTSD and depression. § 38 U.S.C.A. § 5108 (West 2014); § 38 C.F.R. § 3.156 (2014).


REASONS AND BASES FOR FINDINGS AND CONCLUSION

I. Duties to Notify and Assist (VCAA)

The Veterans Claims Assistance Act of 2000 (VCAA), 38 U.S.C.A. § 5100 et seq; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2015), eliminated the concept of a well-grounded claim, redefined the obligations of VA with respect to the duty to assist, and imposed on VA certain notification requirements. Without deciding whether the notice and development requirements of VCAA have been satisfied in the present case, it is the Board's conclusion that the VCAA does not preclude the Board from adjudicating the Veteran's claims as to whether new and material evidence has been received to reopen a claim of service for an acquired psychiatric disorder. This is so because the Board is reopening the claim and a decision at this point poses no risk of prejudice to the Veteran. See, e.g., Bernard v. Brown, 4 Vet. App. 384(1993); VAOPGCPREC 16-92, 57 Fed. Reg. 49,747 (1992).

II. Whether New and Material Evidence has Been Received to Reopen a Claim for Service Connection for an Acquired Psychiatric Disorder, to include PTSD and Depression.

A claim previously denied by the RO may be reopened if new and material evidence is presented. 38 U.S.C.A. § 5108, 7104, 7105; see 38 C.F.R. § 3.156 (2015). However, new and material evidence is not required as to each previously unproven element of a claim in order to reopen a claim. Shade v. Shinseki, 24 Vet. App. 110, 120 (2010). In determining whether evidence is new and material, the "credibility of the evidence is to be presumed." Justus v. Principi, 3 Vet. App. 510, 513 (1992). 

New evidence is defined as evidence not previously submitted to agency decision-makers. 38 C.F.R. § 3.156(a). 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. Id. 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. Id. 

The threshold for determining whether new and material evidence raises a reasonable possibility of substantiating a claim is "low." See Shade, 24 Vet. App. at 117. Furthermore, consideration is not limited to whether the newly submitted evidence relates specifically to the reason the claim was last denied, but instead should include whether the evidence could reasonably substantiate the claim were the claim to be reopened, either by triggering the Secretary's duty to assist or through consideration of an alternative theory of entitlement. Id. at 118. Additionally, the United States Court of Appeals for the Federal Circuit has noted that new evidence could be sufficient to reopen a claim if it could contribute to a more complete picture of the circumstances surrounding the origin of a claimant's injury or disability, even where it would not be enough to convince the Board to grant a claim. Hodge v. West, 155 F.3d 1356, 1363 (Fed. Cir. 1998).

Here, in a May 1999 decision, the AOJ denied the Veteran's claim of entitlement to service connection for depression. The claim was denied on the grounds that "[t]here is no record of treatment in service for depression. In order to establish a well-grounded claim, it is necessary to provide evidence which demonstrates that the claimed condition was incurred in or aggravated by military service." The Veteran was informed of his appellate rights with his denial, and did not file a timely appeal, nor submit new and material evidence within one year of the denial. Furthermore, the Veteran did not assert there was clear and unmistakable error. Therefore, the decision became final. 38 U.S.C.A. § 7105 (c) (West 2014); 38 C.F.R. §§ 3.104, 20.302, 20.1103 (2015). 

In considering the Veteran's claim in May 1999, the evidence of record relevant to the claim included VA treatment records from March 1984 that described an artillery explosion in service, and injury to his hands. Also of record was VA treatment records from January 1998 to November 1998 that discuss the Veteran's mood disorder, depressed mood, a diagnosis of major depression, borderline personality traits, and alcohol abuse and dependence. VA treatment records also indicated suicidal thoughts and previous hospitalization, with medication and therapy as treatment.

Since the May 1999 rating decision, the Veteran has filed a claim for entitlement to service connection for PTSD. However, as explained in the Introduction of this decision, the United States Court of Appeals for Veterans Claims has held that the scope of a mental health disability claim includes any mental disability that may reasonably be encompassed by the claimant's reported symptoms and other information of record, i.e., that matters of service connection for diagnosed psychiatric disabilities other than PTSD are part and parcel of a service connection for PTSD claim. See Clemons, 23 Vet. App. 1. Therefore, in accordance with Clemons, the Board has expanded the claim to service connection for an acquired psychiatric disorder, to include PTSD and depression, and, thus, construes the Veteran's new claim for PTSD to be a claim to reopen the previously denied claim for depression.

Following the May 1999 rating decision, the Veteran has submitted additional evidence to the record. In September 2010, the Veteran provided a statement in support of his claim that outlines five stressors and events from service. In the September 2010 statement the Veteran specifically notes the following events: (1) an event in 1981 at Fort Hood, Texas, when a grader flipped to the side and the driver was killed; (2) an event in 1981, when a soldier with the last name Rivera had a heart attack and died during physical training; (3) an event in 1982 in Illsham (sic), Germany, when a soldier was electrified on rail train lines; (4) events while in the Army Reserves in August 1983, when he was sent to Grenada and saw a plane "pinned down by a long sniper," which included casualties, and while in the Army Reserve in 1987, when he witnessed another soldier have a heart attack during physical training; and (5) an event in 2007 when he was providing security from Alasud in Iraq and witnessed a "Mum V hit an IED killing the driver and wounding the other three," and also while serving in Iraq, when he fired three rounds and killed a suspicious individual with permission. Furthermore, in March 2013, the Veteran submitted an additional statement regarding his in-service stressors, and noted another stressor-a March 1983 artillery simulator explosion that burned his hands and face.

The Veteran has also submitted statements in November 2012. In these statements the Veteran adds that he was in the "1st of the 6th Armor Division Winter Reforger" in January 1983, in Illesheim, Germany, and that E-4 C. D. and E-4 J. C. were witnesses to the electrocution he described. The Veteran reported that he still smells the burnt flesh at times. Also in the November 2012 statements, the Veteran mentions an "Operation Furry" in September 1983, which was the sniper fire of the 82 Airborne in Grenada, and identified M. Sgt. E. C. as a witness to the event. Last, the Veteran's November 2012 statement noted the date of August 2007 for the incidents that occurred in Iraq, and states that he was assigned to the 101st Airborne, with Sgt. C. G. and Sgt. Young. 

In addition to lay statements submitted by the Veteran, lay statements from witnesses have been added to the record. An August 2010 letter from the Veteran's brother, D. M., describes the Veteran's current symptoms of PTSD, which include fear of noises, fear of crowds, "night patrols" of the neighborhood, and sleep issues. D. M. further explains that the events in Grenada in the 80's were traumatic events for his brother. A September 2010 letter from T. E., a friend of the Veteran's, is also added to the record, and describes the Veteran's current symptoms, which include, tiredness due to lack of sleep, short temper, mood changes, and hypervigilance.

Additionally, a letter from Sgt. C. G., has been added to the record. The letter is dated September 2010, and states that the he served with the Veteran in Iraq, where there was constant gun fire and shelling off in the distance. The letter also indicates that he served with the Veteran during the Alasud event where the driver was killed and where the Veteran noted a suspicious individual and shot and killed him. Sgt. C. G. also states that since service the Veteran has not seemed the same in that he is now fearful, forgetful, and angry.

Last, a September 2010 letter from M. Sgt. E. C. has been added to the record. The letter states that he served alongside the Veteran in the Army Reserves in 1983 during Operation Furry. The letter indicates that they were attached to the 101 Airborne for Grenada and that the 82 Airborne was pinned down by a sniper. 

In addition to lay statements, medical evidence has been added to the claims file. An October 2010 statement from Dr. T. F. at the Johnson City Mountain Home, Tennessee VA notes that the Veteran is to be treated for PTSD, and that he is suffering from worsening depression and nightmares. VA treatment records from September 2010 to November 2010 have been added to the record and indicate a diagnosis and ongoing treatment for PTSD. The VA treatment records also note symptoms and describe combat stress and military trauma as reported by the Veteran. Ongoing VA treatment records from May 2013 to June 2014 are now of record. The treatment records describe the state of his mental health, including his moods, stress, depression, and anxiety, and also note his experiences in service, to include an incident where he burned his hands.

Moreover, since the last final rating decision, a VA examination has been submitted to the record. The VA examination was conducted in May 2013, and addressed the Veteran's diagnoses, symptoms, reported military history, and opined as to the nexus between the Veteran's current diagnoses and his noted stressor, specifically of the 1983 explosion that burned his hands and face.

In January 2011 the Veteran filed a Notice of Disagreement, and, after issuance of the SOC in May 2013, the Veteran filed a VA Form 9 in June 2013. 

The Board finds that since the May 1999 rating decision the Veteran has filed new and material evidence that warrants the reopening of the claim.

The Board reopens the claim because it finds that the Veteran's multiple statements and the witnesses' letters are all new and material evidence sufficient to reopen the claim. Assuming their credibility, the statements submitted by the Veteran and the witnesses are both new and material, and therefore, can serve to reopen the claim. Justus, supra. The above-mentioned statements note several events in service and note symptoms and manifestations that the Veteran has displayed since service. The Board finds that the statements are new evidence because they were not previously submitted to be considered in the May 1999 rating decision. 38 C.F.R. § 3.156(a).

This evidence is also material because the statements relate to the events in service and the symptoms and manifestations that the Veteran has experienced since service, all of which relate to the unestablished fact of nexus, which necessary to substantiate the Veteran's claim. This additional evidence is not redundant of the evidence of record at the time of the last prior final denial of the claim. The multiple and detailed statements regarding the Veteran's experiences in service add information that was not previously available for consideration, and therefore, the information provided by the Veteran is not duplicative. While evidence of the Veteran's suicidal ideations, depression, and 1983 explosion were of record prior to the May 1999 rating decision, the many statements added to the record since the last final decision provide details of the explosion, indicate additional in-service events, and provide further details that may link the Veteran's symptoms to his service that were not previously of record. In fact, this new evidence could certainly contribute to a more complete picture of the circumstances surrounding the origin of a claimant's disability, regardless of whether it would not be enough to convince the Board to grant a claim. See Hodge, 155 F.3d at 1363.

Furthermore, the Board reopens the claim because it finds that the Veteran's VA treatment records and the May 2013 VA examination are new and material evidence sufficient to reopen the claim. The Board finds that the VA treatment records and the VA examination are new evidence because they were not previously submitted to be considered in the May 1999 rating decision. 38 C.F.R. § 3.156(a). This evidence is also material because the VA treatment records and the VA examination not only note symptoms and diagnoses that the Veteran currently has, but also provide assertions from the Veteran regarding the experiences he had in service. Again, when considering whether to reopen the claim, the Board assumes the credibility of the Veteran's statements in the evidence provided. Justus, supra. Moreover, the VA examination contains an opinion regarding the nexus between the Veteran's noted in-service stressor, specifically the 1983 explosion that burned his hands and face, and his current disabilities. The Board finds that this additional evidence is not redundant of the evidence of record at the time of the last prior final denial of the claim. The VA treatment records contain statements regarding the Veteran's experiences in service that were not previously available for consideration and the VA examination contains diagnoses, military history assertions, and an opinion, that were also not previously available for consideration. Thus, the information is not duplicative, and the Board finds that the medical evidence contains evidence that relates to the unestablished fact of nexus, and the matter must be reopened.

As this evidence was not available at the time of the prior denial and as such evidence relates to unestablished facts necessary to further the Veteran's claim, it is sufficient to reopen the claim.


ORDER

Having determined that new and material evidence has been presented, the claim for entitlement to service connection for an acquired psychiatric disorder, to include depression and PTSD, is reopened; to this extent, the appeal is granted.


REMAND

The Veteran asserts that he has depression and PTSD as a result of his service. As explained in the decision above, the Veteran identifies multiple in-service incidents and stressors. 

Pursuant to 38 C.F.R. § 3.304(f), service connection for PTSD requires: medical evidence of a diagnosis of the condition, a medically established link between the current symptoms and an in-service stress, and credible supporting evidence that the claimed in-service stressor occurred. In adjudicating a claim for service connection for PTSD, the evidence necessary to establish the incurrence of a stressor during service to support a claim of entitlement to service connection for PTSD will vary depending on whether or not the Veteran was "engaged in combat with the enemy." See Hayes v. Brown, 5 Vet. App. 60, 66 (1993). If it is determined that a veteran did not engage in combat with the enemy, or the claimed stressor is not related to combat, a veteran's lay testimony alone will not be enough to establish the occurrence of the alleged stressor. In such cases, the record must contain service records or other corroborative evidence which substantiates or verifies a veteran's testimony or statements as to the occurrence of the claimed stressor. See Zarycki v. Brown, 6 Vet. App. 91, 98 (1993).

Specifically, the Veteran has asserted the following 6 in-service events in-service which he believes contributed to his current acquired psychiatric disorders: (1) an event in 1981 at Fort Hood, Texas, when a grader flipped to the side and the driver was killed; (2) an event in 1981, when a soldier with the last name Rivera had a heart attack and died during physical training; (3) an event in 1982 in Illesheim, Germany, when a soldier was electrified on rail train lines; (4) events while in the Army Reserves in August 1983, when he was sent to Grenada and saw a plane "pinned down by a long sniper," which included casualties, and while in the Army Reserve in 1987, when he witnessed another soldier have a heart attack during physical training; (5) an event in 2007 when he was providing security from Alasud in Iraq and witnessed a "Mum V hit an IED killing the driver and wounding the other three," and also while serving in Iraq, when he fired three rounds and killed a suspicious individual with permission; and (6) a March 1983 artillery simulator explosion that burned his hands and face.

However, in March 2013, the Veteran submitted a Statement in Support of Claim that states, "I would like to withdraw from consideration my claimed stressor events involving anything to do with Iraq and Grenada. At the moment I am unable to prove that I was there." Instead, the Veteran states that his only verifiable stressor is the artillery explosion that burnt his hands and face in March 1983. Therefore, he states that "[w]hile there are many events during my time in the service that may have contributed to my PTSD there is one event that I can prove happened that I would like to be considered."

The Board finds that the Veteran has not necessarily withdrawn his other identified stressors, for he has merely asserted that they in fact did occur but that they have not been verified. In fact, in May 2013, the Veteran asserted that although he could not prove the stressors to the VA's satisfaction, they do contribute significantly to his current psychiatric disorders. The Board also notes that the record contains detailed statements from both the Veteran and in-service witnesses that indicate that the Veteran did experience these events and that these events contributed to his current conditions. 

The record is unclear as to whether the AOJ has properly verified the Veteran's the assertion inservice incidents. A memorandum of formal findings on the matters are not included in the record. While the Veteran's experienced artillery explosion has been verified because the incident is well documented in the Veteran's service treatment records, the record does not indicate whether the AOJ has attempted to verify the multiple other events delineated in the record. 

Specifically, the Board notes that the Veteran's service treatment records and military personnel records show that the Veteran served in Ft. Hood, Texas. The Veteran's military personnel records and service treatment records also show that the Veteran served in Germany in 1982, and the Veteran has identified that he was part of the "1st of the 6th Armor Division Winter Reforger" in January 1983, in Illesheim, Germany. The Veteran's DD-214 notes an overseas service ribbon, and the Veteran has identified E-4 C. D. and E-4 J. C. as witnesses to the electrocution he described occurred in Germany. Service records also indicate that the Veteran became active in July of 2007 and that he was assigned to Operation Iraqi Freedom. The Veteran notes the that the incidents identified occurred in August 2007 and that he was assigned to the 101st Airborne, with Sgt. C. G. and Sgt. Young.

Additionally, the Veteran asserts that he was part of "Operation Furry" in September 1983, where he witnessed the sniper fire of the 82 Airborne in Grenada. The Veteran's military personnel records indicate that in September 1983 the Veteran volunteered for Operation Furry. A statement submitted by M. Sgt. E. C. states that he served with the Veteran in Grenada, and the statement submitted by the Veteran's brother, D. M., who says the Veteran served in Grenada. However, the AOJ has not verified or attempted to verify the Veteran's assertions.

Therefore, on remand, the Board directs the AOJ to seek verification of the Veteran's asserted military experience and identified stressors, with 38 C.F.R. § 3.304(f) in mind. A memorandum of formal findings on the matters are to be included in the record.

Furthermore, the Board notes that the Veteran has served on active and Army Reserve service. With regard to Reserve service, service connection may be granted for disability resulting from either disease or injury incurred in, or aggravated while performing, active duty for training (ACDUTRA). With respect to time periods of inactive duty training (INACDUTRA), service connection may only be granted for injury so incurred or aggravated. 38 U.S.C.A. §§ 101(24), 106, 1110, 1131 (West 2014). Therefore, upon remand, the AOJ is to seek verification of the Veteran's service and experiences also with his periods of ACDUTRA and INACDUTRA in mind. 

On remand, the AOJ should schedule the Veteran for a new VA examination. The Veteran was afforded a VA examination in May 2013. However, the Board finds that an additional examination is necessary to clarify both the nature and etiology of the Veteran's acquired psychiatric disorder. VA treatment records indicate a current diagnosis for PTSD. Specifically, VA treatment records from September 2010 to November 2010 show a diagnosis of PTSD, and VA treatment records from May 2013 to June 2014 show ongoing treatment for PTSD. However, the May 2013 VA examination found a diagnosis of depression, but did not find a diagnosis of PTSD. Therefore, on remand, the Board seeks an additional VA examination to clarify the current diagnoses of the Veteran's acquired psychiatric disorders.

Moreover, the Board remands this matter for a new VA examination to obtain an additional nexus opinion. The May 2013 examiner notes that the Veteran has "reported several different military-related traumatic events (seeing people die and seeing dead bodies) that his 2507 and claims file indicate are unverified at this time." Therefore, the VA examiner solely considered the artillery simulator explosion because that was the only verified military-related traumatic event at the time of the examination. However, on remand, the Board directs the AOJ to attempt to verify the Veteran's asserted stressors and experiences, and once completed, this information should be considered by the examiner. Additionally, the Board notes that the Veteran's claim has been expanded to acquired psychiatric disorder, to include both PTSD and depression. While a claim for PTSD, pursuant to 38 C.F.R. § 3.304(f), must contain the evidence of engaging in combat with the enemy or corroborative evidence which substantiates or verifies a veteran's testimony or statements as to the occurrence of the claimed stressor, depression is treated as any other service connection claim, and must only contain credible evidence of the occurrence of an in-service event or injury. Therefore, the examiner is to keep in mind that credible evidence of an in-service event or injury, rather than the verification standards set-forth in 38 C.F.R. § 3.304(f), are to be considered upon a psychiatric evaluation for depression.

The Board also seeks an additional medical nexus opinion because the May 2013 opinion did not specifically address whether the Veteran's acquired psychiatric disorders were incurred in or aggravated by the Veteran's service. The May 2013 examiner noted that the Veteran "received treatment for a depressive disorder while assigned to the National Guard in 1997 at the Tennessee Valley HCS and in 2005 at the Mountain Home VAMC." The examiner opined that, the Veteran's current diagnosis of depression "is consistent with a previous diagnosis of Depressive Disorder assigned in 2005 and is more likely than not a continuation of the same symptom presentation." However, on remand the Board directs the examiner to provide a nexus opinion specifically answering whether the Veteran's acquired psychiatric disorders were more likely than not incurred in or aggravated by the Veteran's service.

Last, the Board remands this matter for additional VA treatment records. The Veteran has stated that he receives ongoing treatment from Dr. S. K.. Therefore, on remand the AOJ should collect any updated VA treatment records from ongoing treatments. 

Accordingly, the case is REMANDED for the following action:

1. Obtain ongoing VA treatment records dated from June 2014 to present, and associate them with the claims file.

2.  To the extent possible, request verification of the dates of ACDUTRA and INACDUTRA during the Veteran's Army Reserve service.  Service records providing retirement points are usually not helpful in this regard.  The AOJ should prepare a summary of such dates.  All efforts to obtain these records should be fully documented. 

2. Complete efforts to corroborate the Veteran's stressors and/or make a determination as to any asserted combat stressors, and if it is not possible to do so, enter a formal finding on a lack of information required to verify
stressors outlining all efforts to corroborate the stressors. 

3. After completion of the above development, schedule a VA examination with a medical professional of sufficient expertise to determine the nature and etiology of any psychiatric disability found, to include PTSD and depressive disorder NOS.  The electronic claims file, to include the Veteran's service treatment records, lay statements, and treatment records, must be reviewed by the examiner. 

After reviewing the claims file and examining the Veteran, the examiner is to offer an opinion as to the following question: whether it is at least as likely as not (50 percent or more probability) that the any acquired psychiatric disability had its onset during service or is otherwise related to service.

Following a review of the claims file and examination of the Veteran, the examiner should clearly indicate whether the Veteran has a diagnosis of PTSD. If so, the examiner should clearly state whether the claimed stressor(s) support the diagnosis of PTSD, and provide an opinion as to whether it is at least as likely as not (50 percent or more probability) that PTSD is related to the stressors.

A detailed rationale for the opinions must be provided. The examiner is reminded that the term "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 against it.

In rendering the requested opinion, the examiner is instructed to specifically acknowledge the Veteran's assertions. The examiner should view the Veteran as a reliable historian as to his service and his report of his activities in service. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007).

If the examiner is unable to offer the 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 (2010).

4. Ensure that the examination report is adequate. If it is deficient in any manner, return the report to the examiner as inadequate. Then, after conducting any other development deemed necessary, readjudicate the Veteran's claim. If any benefit sought on appeal remains denied, provide the Veteran and his representative with a supplemental statement of the case (SSOC) and allow an appropriate period of time for response. Thereafter, the claims folder should be returned to the Board.


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).



______________________________________________
K. J. ALIBRANDO
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs