Citation Nr: 1634630 Decision Date: 09/02/16 Archive Date: 09/09/16 DOCKET NO. 14-28 714 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUES 1. Whether new and material evidence has been presented to reopen the claim of service connection for left ear hearing loss. 2. Whether new and material evidence has been presented to reopen the claim of service connection for a psychiatric disorder including post-traumatic stress disorder (PTSD). 3. Entitlement to service connection for left ear hearing loss. 4. Entitlement to service connection for right ear hearing loss. 5. Entitlement to service connection for type II diabetes mellitus including as secondary to herbicide exposure. 6. Entitlement to service connection for right knee arthritis. 7. Entitlement to service connection for a psychiatric disorder including post-traumatic stress disorder (PTSD). 8. Entitlement to an initial disability evaluation in excess of 10 percent for low back strain. REPRESENTATION Appellant represented by: Texas Veterans Commission WITNESS AT HEARING ON APPEAL The Veteran and his spouse ATTORNEY FOR THE BOARD G. Slovick, Counsel INTRODUCTION The Veteran served on active duty from February 1982 to February 1985 with additional service in the Army Reserves. These matters come before the Board of Veterans' Appeals (Board) on appeal from a January 2012 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas. Of note, the issue of entitlement to service connection for right ear hearing loss was previously considered as a new and material evidence issue. However, a review of the claims file demonstrates that the Veteran submitted a valid notice of disagreement following an April 2005 denial of service connection. As no statement of the case was issued, this rating decision was not final. Accordingly, the issue is considered on its merits below. Additionally, the issue of whether new and material evidence had been submitted in support of the Veteran's left ear hearing loss claim was not addressed in the Veteran's June 2016 videoconference hearing, however as the issue is reopened, the Veteran is not prejudiced by the new and material analysis below. The Veteran testified before the Board at a June 2016 videoconference at the RO in Waco, Texas. A transcript of that hearing is of record. At his hearing, the Veteran waived initial RO consideration of the additional evidence. See 38 C.F.R. § 20.1304(c) (2015). In a September 2009 correspondence, the Veteran indicated that he wished to assign his father as his fiduciary. At that time, the Veteran was contacted and informed that as he was not receiving benefits at that time, the request could not be addressed. Since that time, service connection has been established for multiple disabilities, and as such the issue referred to the AOJ for appropriate action so that the Veteran may be contacted in order to determine whether he still wishes a fiduciary. 38 C.F.R. § 19.9(b) (2015); see 79 Fed. Reg. 57,660 (Sept. 24, 2014) (codified in 38 C.F.R. § Parts 3, 19 , and 20 (2015)). The issues of entitlement to service connection for a psychiatric disorder and entitlement to an increased rating for a low back disorder are addressed in the REMAND portion of the decision below and are REMANDED to the Agency of Original Jurisdiction (AOJ). FINDINGS OF FACT 1. In a September 2008 rating decision, the RO denied a claim of service connection for left ear hearing loss; the Veteran did not appeal the rating decision, and no new and material evidence was submitted within one year of the rating determination. 2. Evidence received since September 2008 rating decision relates to an unestablished fact necessary to substantiate the claim for service connection for left ear hearing loss. 3. In a September 2008 rating decision, the RO denied a claim of service connection for a psychiatric disorder; the Veteran did not appeal the rating decision, and no new and material evidence was submitted within one year of the rating determination. 4. Evidence received since September 2008 rating decision relates to an unestablished fact necessary to substantiate the claim for service connection for a psychiatric disorder. 5. The Veteran does not have a left ear disability as defined by VA regulations at any time during the period on appeal, and hearing loss is not related to service. 6. Right ear hearing loss is not related to service. 7. The preponderance of the evidence shows that the Veteran's diabetes mellitus, type II, was not present in service or until many years thereafter and is not related to service or to an incident of service origin. 8. A current right knee arthritis disability, or any other right knee disorder, is not demonstrated by the evidence of record. CONCLUSIONS OF LAW 1. The criteria for reopening a previously denied claim of service connection for left ear hearing loss are met. 38 U.S.C.A. § 5108 (West 2014); 38 C.F.R. § 3.156 (2015). 2. The criteria for reopening a previously denied claim of service connection for a psychiatric disability are met. 38 U.S.C.A. § 5108 (West 2014); 38 C.F.R. § 3.156 (2015). 3. The criteria for service connection for left ear hearing loss have not been met. 38 U.S.C.A. §§ 1112, 1113, 1131,5107 (West 2014); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.385 (2015). 4 The criteria for service connection for right ear hearing loss have not been met. 38 U.S.C.A. §§ 1112, 1113, 1131, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.385 (2015). 5. The criteria for service connection for diabetes mellitus, type II have not been met. 38 U.S.C.A. §§ 1113, 1131, 5107 (West 2014); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2015). 6. A right knee disorder (including arthritis) was not incurred or aggravated in service, nor is a right knee disorder related to a service-connected disability. 38 U.S.C.A. §§ 1101, 1131, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.307, 3.309, 3.310 (2015). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his or her representative, if any, of any information and medical or lay evidence that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b). In accordance with 38 C.F.R. § 3.159(b)(1), proper notice must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide. Such notice should also address VA's practices in assigning disability evaluations and effective dates for those evaluations. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). While the required notice should be furnished prior to the issuance of the appealed rating decision, any initial errors of notice will not be prejudicial if: 1) corrective actions (e.g., issuance of a post-adjudication notice letter containing the required information) are taken, and 2) the appeal is readjudicated (e.g., in a Supplemental Statement of the Case). See Mayfield v. Nicholson, 499 F.3d 1317 (Fed. Cir. 2007). VA's duty to notify was satisfied prior to the January 2012 rating decision through a June 2011 notice letter sent to the appellant that fully addressed all notice elements. This letter informed the appellant of what evidence was required to substantiate his claims and of the appellant's and VA's respective duties for obtaining evidence. The Veteran has been afforded a meaningful opportunity to participate effectively in the processing of his claims and given ample time to respond. In light of the above, the Board finds that the Veteran was provided all required notice and that no useful purpose would be served by delaying appellate review to send out additional notice letters. VA also has a duty to assist the Veteran with the development of facts pertinent to the appeal. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159(c). This duty includes the obtaining of "relevant" records in the custody of a Federal department or agency under 38 C.F.R. § 3.159(c)(2), as well as records not in Federal custody (e.g., private medical records) under 38 C.F.R. § 3.159(c)(1). VA will also provide a medical examination if such examination is determined to be "necessary" to decide the claim. 38 C.F.R. § 3.159(c)(4). Service treatment records as well as post-service treatment records are associated with claims file. 38 C.F.R. § 3.159(c)(2). While additional issues are remanded below in order to obtain personnel records, such records, if existent, would not materially change the findings in the analyses below and would only serve to further delay adjudication. In July 2011 the Veteran was afforded a VA examination for hearing loss. The Board finds the examination adequate for the purposes of the instant claim as it involved a review of the Veteran's pertinent medical history as well as a clinical evaluation of the Veteran and provided an adequate rationale for the etiological opinion provided. See generally Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). The Board notes that the Veteran has not been afforded a VA examination to determine the nature and etiology of his diabetes mellitus or claimed right knee arthritis. A VA examination or opinion is deemed necessary only if the evidence of record (a) contains competent evidence that the claimant has a current disability, or persistent or recurrent symptoms of disability; (b) establishes that the Veteran suffered an event, injury, or disease in service; (c) indicates that the claimed disability or symptoms may be associated with the Veteran's service or other service- connected disability, and (d) does not contain sufficient medical evidence for VA to make a decision on the claim. See 38 U.S.C.A. § 5103A (West 2014); 38 C.F.R. § 3.159 ; McClendon v. Nicholson, 20 Vet. App. 79 (2006). In this case, the requirement to examine the Veteran is not triggered as the evidence of record does not meet these initial evidentiary thresholds as the preponderance of the evidence weighs against a finding of in service diabetes mellitus and right knee arthritis and there is no competent evidence otherwise suggesting a relationship between the Veteran's current diabetes mellitus type II or claimed right knee arthritis and his military service. Therefore, VA's duty to further assist the Veteran in locating additional records has been satisfied. See 38 U.S.C.A. § 5103A; see also 38 C.F.R. § 3.159 (2015); Wells v. Principi, 327 F. 3d 1339, 1341 (Fed. Cir. 2002). In light of the foregoing, the Board is satisfied that all relevant facts have been adequately developed to the extent possible; no further assistance to the appellant in developing the facts pertinent to the issues on appeal is required to comply with the duty to assist. 38 U.S.C.A. §§ 5103, 5103A; 38 C.F.R. § 3.159. New and Material Evidence New evidence means existing 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. New and material evidence received prior to the expiration of the appeal period will be considered as having been filed in connection with the claim which was pending at the beginning of the appeal period. 38 C.F.R. § 3.156(a). For the purpose of establishing whether new and material evidence has been submitted, the credibility of the evidence, although not its weight, is to be presumed. Justus v. Principi, 3 Vet. App. 510, 513 (1992). In determining whether the evidence is new and material, the specified basis for the last final disallowance must be considered. Hodge v. West, 155 F.3d 1356 (Fed. Cir. 1998). Despite the determination reached by the RO, the Board must find new and material evidence in order to establish its jurisdiction to review the merits of a previously denied claim. See Barnett v. Brown, 83 F.3d 1380 (Fed. Cir. 1996); Jackson v. Principi, 265 F.3d 1366 (Fed. Cir. 2001). The issue of entitlement to service connection for a psychiatric disorder and entitlement to service connection for left ear hearing loss were denied in a September 2008 rating decision which found that new and material evidence had not been submitted to reopen the claims. Evidence added to the claims file since the September 2008 rating decision includes the transcript from the Veteran's June 2016 Board hearing, in which the Veteran went into greater detail about his claimed stressors, noting that he had to pick up rockets which had not exploded and that he carried briefcases via handcuffs to give to his General which frightened him. He further described in greater detail symptoms he attributed to PTSD. Regarding the Veteran's left ear claim, evidence added to the claims file since the September 2008 rating decision includes the report of a July 2011 VA examination, in which a VA examiner tested the Veteran's hearing and provided a medical opinion as to whether the Veteran's claimed left ear hearing loss was related to service. The evidence additionally now includes the June 2016 testimony of the Veteran describing his in-service noise exposure. As the additional evidence relates to unestablished facts necessary to substantiate the claims, namely whether the Veteran has a verifiable stressor or whether left ear hearing loss is related to service, the lack of such evidence was in part the basis for the previous denial of the claim, the additional evidence is new and material under 38 C.F.R. § 3.156(a). For this reason, the claims of service connection for a psychiatric disorder and service connection for left ear hearing loss is reopened. 38 U.S.C.A. § 5108. The Veteran's left ear hearing loss claim was reopened in the Veteran's January 2012 rating decision and considered on its merits at that time and again in the May 2014 statement of the case. Thus the Veteran is not prejudiced by consideration of the issue on the merits, below. The psychiatric disorder claim is addressed further in the remand section. Service Connection Service connection may be granted for disability resulting from disease or injury incurred or aggravated during active military service. 38 U.S.C.A. § 1131. Generally, service connection requires (1) the existence of a present disability, (2) in-service incurrence or aggravation of an injury or disease, and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service. Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004). Pursuant to 38 C.F.R. § 3.303(b), when a chronic condition is present, a claimant may establish the second and third elements by demonstrating continuity of symptomatology. Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Certain chronic diseases to include sensorineural hearing loss, diabetes mellitus, type II and arthritis may be also presumptively service connected if they become manifest to a degree of 10 percent or more within one year of leaving qualifying military service. 38 C.F.R. §§ 3.307(a)(3); 3.309(a) (2015). Service connection may be granted for a disability that is proximately due to or the result of a service-connected disease or injury. 38 C.F.R. § 3.310(a) (2015). Additional disability resulting from the aggravation of a nonservice-connected condition by a service-connected condition is also compensable under 38 C.F.R. § 3.310(a). Allen v. Brown, 7 Vet. App. 439 (1995). The Board notes that "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. §1131. In the absence of proof of present disability there can be no valid claim." Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992); Degmetich v. Brown, 104 F.3d 1328 (1997); Wamhoff v. Brown, 8 Vet. App. 517, 521 (1996). Lay assertions may serve to support a claim for service connection by supporting the occurrence of lay-observable events or the presence of disability or symptoms of disability subject to lay observation. 38 U.S.C.A. § 1153(a) ; 38 C.F.R. § 3.303(a) ; Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); see Buchanan v. Nicholson, 451 F. 3d 1331, 1336 (Fed. Cir. 2006) (addressing lay evidence as potentially competent to support presence of disability even where not corroborated by contemporaneous medical evidence). Hearing Loss The United States Court of Appeals for Veterans Claims (Court) found 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). However, the Court held that 38 C.F.R. § 3.385, discussed below, operates to establish when there exists a hearing disability for VA purposes. Id. at 159. For VA purposes, impaired hearing will be considered to be a disability when the auditory threshold for any of the frequencies of 500, 1000, 2000, 3000, or 4000 Hertz is 40 decibels or greater; or when the auditory thresholds for at least three of the frequencies 500, 1000, 2000, 3000, and 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. To be considered for service connection, a claimant must first have a disability. Congress specifically limited entitlement for service-connected disease or injury to cases where the disease or injury has resulted in a disability. Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992); Rabideau v. Derwinski, 2 Vet. App. 141, 143 (1992). So long as the Veteran had a diagnosed disability during the pendency of the claim, the service connection criteria requiring a present disability are satisfied. McClain v. Nicholson, 21 Vet. App. 319 (2007). The Veteran contends that he has a bilateral hearing loss disability related to military service. The service treatment records contain no findings or complaints of hearing loss. The Veteran is shown to have reported left ear discomfort and was found to have a right ear infection in August 1982; however, hearing loss was not reported. At a June 2011 VA examination, the Veteran reported that he was exposed to gunfire and indirect artillery fire during service. He reported post-service noise exposure to include occupational noise at Bell Helicopter and recreational noise exposure from hunting and firearms. A diagnosis of sensorineural hearing loss, mild in the left ear and moderate in the right ear was assigned. The Maryland CNC test results showed 96 percent accuracy for both the right and left ears. VA audiometric examination which included an audiological evaluation noting pure tone thresholds, in decibels, as follows: HERTZ A 500 B 1000 C 2000 D 3000 E 4000 B+C+D+E AVG. RIGHT 25 30 30 40 45 36 LEFT 20 30 25 25 20 25 The examiner stated that based on the available evidence, it was his opinion that the Veteran's current hearing loss was less likely than not the result of in-service noise exposure. In so finding, the examiner noted that the Veteran's hearing thresholds were within normal limits at enlistment and separation and did not demonstrate a significant hearing threshold shift during service. During his June 2016 videoconference hearing, the Veteran reported trouble hearing people when they spoke to him and reported that he used ear plugs for hearing protection during service, but that they did not work adequately because his ears rang. The Veteran's hearing is not shown to meet the criteria for a left ear hearing loss disability under 38 C.F.R. § 3.385. The Veteran's VA examination does not show that the Veteran's left ear hearing loss is 40 decibels or greater in the frequencies of 500, 1000, 2000, 3000, or 4000 Hertz nor are auditory thresholds for at least three of the frequencies 500, 1000, 2000, 3000, and 4000 Hertz 26 decibels or greater and the Veteran's speech recognition scores using the Maryland CNC Test is 96 percent. 38 C.F.R. § 3.385. While a right ear current hearing loss disability is shown, service connection cannot not be established without a showing of a causal nexus with service. Here, the most probative evidence of record weights against a causal nexus between the Veteran's hearing loss and service. The Board finds that the June 2011 examiner's opinion is of significant probative value in determining whether there is a relationship between the Veteran's minimal hearing loss disability and his military service. The June 2011 examiner determined that the Veteran's hearing loss was less likely due to service given that the service treatment records did not demonstrate a significant change in hearing. The Board has fully considered the Veteran's lay contentions. As a general matter, lay witnesses are competent to testify as to their observations. Barr v. Nicholson, 21 Vet. App. 303 (2007) (lay testimony is competent to establish the presence of observable symptomatology, where the determination is not medical in nature and is capable of lay observation). However, the diagnosis of a hearing loss disability, as defined under section 3.385, and a determination as to etiology of a hearing loss disability are medical matters beyond a layperson's comprehension. See Jandreau v. Nicholson, 492 F.3d 1372 (2007). Specifically, testing for whether the Veteran's hearing loss is a disability for VA purposes and determining whether a hearing loss disability is etiologically related to noise exposure in service require specialized medical training and testing. Therefore, the Veteran is not competent to provide an opinion as to the diagnosis of a hearing loss disability or when such diagnosis was first manifest. For the above reasons, the preponderance of the evidence is against the Veteran's claim of entitlement to service connection for a left ear or right ear hearing loss disability. Therefore, the appeal is denied as to these matters. See 38 U.S.C.A. § 5107. Diabetes Mellitus The Veteran seeks service connection for diabetes mellitus, type II, including as secondary to herbicide exposure. Additionally, service connection will be presumed for certain chronic diseases such as diabetes mellitus if manifested to a compensable degree within a year of separation of service. See 38 U.S.C.A. § 1101, 1112 (West 2014); 38 C.F.R. §§ 3.307, 3.309 (2015). A Veteran who served in the Republic of Vietnam during the Vietnam era (beginning on January 9, 1962, and ending on May 7, 1975) is presumed to have been exposed to certain herbicide agents. 38 U.S.C.A. § 1116 (West 2014); 38 C.F.R. § 3.307 (2015). While all Veterans who served in the Republic of Vietnam during the Vietnam Era are presumed to have been exposed to an herbicide agent, the Veteran had no service during the periods in question. Service treatment records show no evidence of treatment for or diagnosis of diabetes. A November 1999 consultation note from private physician Dr. E.C. noted that the Veteran denied a history of diabetes. A January 2001 history and physical examination from Dr. P.O. noted that the Veteran had not been diagnosed with diabetes. A December 2004 VA medical center treatment note reported that the Veteran did not have a history of diabetes. VA treatment records dated in October 2009 note diabetes mellitus. A March 2013 treatment note reported that the Veteran had reported diabetes since March 2010. A June 2013 VA medical center treatment note reported a diagnosis of diabetes mellitus, type II or unspecified without complications. The Veteran, as a layperson, does not have the medical or scientific training or expertise to identify herbicides or render a competent opinion as to whether his diabetes, shown by glucose testing (see 38 C.F.R. § 4.119, Diagnostic Code 7913) is etiologically related to his active duty service. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007) (observing that a layperson can be competent to identify conditions that are simple, such as a broken leg, but is not competent to identify more complex conditions such as a form of cancer); Barr v. Nicholson, 21 Vet. App. 303, 309 (2011) (holding that lay testimony is competent as to matters capable of lay observation, but not with respect to determinations that are "medical in nature"); Layno v. Brown, 6 Vet. App. 465, 469 (1994) (holding that in order for testimony to be probative of any fact, the witness must be competent to testify as to the facts under consideration, and that lay testimony is not competent to prove that which would require specialized knowledge, training, or medical expertise). In this case, there is no basis to conclude that the Veteran was exposed to herbicides during his military service. The Board finds that the Veteran's service did not involve circumstances under which herbicide exposure may have taken place. Moreover, the Veteran has presented no competent evidence linking diabetes mellitus to service, and, as noted above, under such circumstances an examination is not warranted. The Veteran's post-service treatment records specifically note that the Veteran did not have diabetes until October 2009, decades after his service. Accordingly, the evidence of record does not establish that presumptive service connection for diabetes mellitus, type II, may not be awarded pursuant to 38 C.F.R. § 3.307. Because the preponderance of the evidence is against the claim, the benefit of the doubt doctrine is not for application. See 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102. The service connection claim must therefore be denied. Right Knee Arthritis The Veteran contends that he has right knee arthritis that is due to service or due to his service-connected right ankle disability. The Veteran's service treatment records include a single, undated, record of the Veteran's complaints of right knee pain for five days. The Veteran was instructed to take aspirin. After service, the Veteran is shown to have trace edema in the knees in January 2004 VA medical center treatment records. The Veteran is shown to complain of right knee pain for ten days in August 2013 and stated in April 2014 that his knee pain was related to his right ankle disorder. The Veteran has not been diagnosed with any right knee disorder. Arthritis of the right knee is not shown. At his June 2016 Board hearing, the Veteran testified that he had some right knee problems during service which he related to the weight of his ruck sack. He stated that he found out that he had arthritis in the right knee about four years after service. Having reviewed the complete record, the Board concludes that the preponderance of the evidence is against finding that entitlement to service connection is warranted for a right knee disability. In order to warrant service connection, the threshold requirement is competent medical evidence of the existence of the claimed chronic disability at some point during a veteran's appeal. See McClain v. Nicholson, 21 Vet. App. 319 (2007) (requirement that a current disability be present is satisfied "when a claimant has a disability at the time a claim for VA disability compensation is filed or during the pendency of that claim...even though the disability resolves prior to the Secretary's adjudication of the claim"); Degmetich v. Brown, 104 F.3d 1328 (1997); Brammer v. Derwinski, 3 Vet. App. 223 (1992). Although the Board recognizes the Veteran's sincere belief in his right knee claim and description of his symptoms, the most competent medical evidence of record does not show that the Veteran has a current right knee disability during any period of his appeal. Finally, the Board acknowledges the Veteran's reports that he was diagnosed with right knee arthritis four years after service. That said, there is no evidence of such a diagnosis, and no diagnosis rendered during the appeal period by any of the Veteran's treating medical professionals, as discussed, mere symptoms such as pain and weakness without an underlying disability may not be service connected. See Sanchez-Benitez v. West, 13 Vet. App. 282 (1999), appeal dismissed in part and vacated and remanded in part sub nom., Sanchez-Benitez v. Principi, 259 F.3d 1356 (Fed. Cir. 2001). As the preponderance of the competent evidence is against finding a current right knee disability, the Board concludes that the preponderance of the evidence is against the claim and service connection must be denied. ORDER New and material evidence has been received, and the claim for service connection for an acquired psychiatric disorder is reopened. New and material evidence, not having been received, the claim for service connection for left ear hearing loss is reopened. Entitlement to service connection for left ear hearing loss is denied. Entitlement to service connection for right ear hearing loss is denied. Entitlement to service connection for type II diabetes mellitus is denied. Entitlement to service connection for a right knee arthritis is denied. REMAND The Veteran has asserted that he has a psychiatric disorder, to include PTSD, which is due to service. He has asserted that he has a Combat Infantryman Badge; however, his DD Form 214 does not reflect this. In a January 2005 VA medical treatment record the Veteran reported combat in Grenada for four to five weeks during his reserve service. Service treatment records include an individual sick slip dated in June 1987 in which the Veteran is shown to have served in the 223rd Maintenance Company. In August 2006, a formal finding of unavailability of personnel records was made following a request from the Personnel Information and Exchange System (PIES) for personnel records and requests to the Veteran for stressor statements and copies of any personnel records in his possession. Additional development is necessary. Initially, the Veteran should be contacted again in order to request the dates of his reserve service. The Veteran is reminded that if he wishes help in developing his claim, he cannot passively wait for it in those circumstances where he may or should have information that is essential in obtaining putative evidence. See Wood v. Derwinski, 1 Vet. App. 190, 193 (1991). Additionally, it is unclear whether the Veteran's records might have been retained by his Reserve unit. Such inquiry should be made. Further, during the Veteran's June 2016 Board hearing, the Veteran reported that his back pain radiated down his right leg and his spouse suggested that the Veteran had increased trouble moving around. As the Veteran was last afforded a VA examination for his spine in July 2011, he should be afforded a new VA examination in order to determine the current severity of his low back disorder. See VAOPGCPREC 11-95 (1995) (a new examination is appropriate when there is an assertion of an increase in severity since the last examination); Caffrey v. Brown, 6 Vet. App. 377 (1995); Green v. Derwinski, 1 Vet. App. 121 (1991). Accordingly, the case is REMANDED for the following action: 1. Contact the Veteran in order to request the dates of his reserve service. The AOJ should contact the Veteran's Reserve installation and any other potential resource for this information. . The AOJ should again contact the appropriate government entities, including the National Personnel Records Center (NPRC) as well as any other appropriate State or Federal agency, and obtain documented verification of the exact dates the Veteran was on ACDUTRA in the U.S. Army Reserves. Efforts to obtain verification must continue until it is received, unless it is reasonably certain that records verifying such service do not exist, or that further efforts to obtain such records would be futile. 2. If the Veteran is not determined to have combat service, the RO must contact the Veteran and request that he provide a detailed stressor statement. 3. If the Veteran responds with a detailed stressor statement, the RO should undertake all appropriate development effort to corroborate the Veteran's alleged stressor. 4. Obtain outstanding VA treatment records dated since May 2014. If these records are not available, a negative reply is required. 5. Afford the Veteran a VA psychiatric examination, with an examiner who has reviewed his claims file. If stressor corroboration has been accomplished, request an opinion as to whether it is at least as likely as not (a 50 percent or greater probability that a PTSD diagnosis is etiologically related to such in-service stressor. The examiner must also provide an opinion as to whether any other diagnosed psychiatric disorder is at least as likely as not etiologically related to service. The examiner must provide a complete rationale for all opinions stated. 6. Schedule the Veteran for a VA spine examination, with an examiner who has reviewed the claims file. After performing all necessary testing, including neurological testing, the examiner is asked to address the current nature, severity, and all symptoms of thoracolumbar spine disability. For purposes of the opinion, the examiner is specifically asked to address the following: (a) Note the extent of limitation of the lumbar spine in terms of degree of limited range of active and passive motion. The examiner should also set forth the extent of any functional loss present due to weakened movement, excess fatigability, incoordination, or pain on use. Any additional impairment on use or in connection with any flare-up should be described in terms of the degree of additional range-of-motion loss. This information must be derived from joint testing for pain in weight-bearing and nonweight-bearing. The examination report must confirm that all such testing has been made and reflect those testing results. (b) Indicate the frequency and duration of any incapacitating episodes in the past 12 months. Note that an incapacitating episode is a period of acute signs and symptoms that requires bed rest prescribed by a physician and treatment by a physician. (c) After review of the record, provide an opinion as to each objective neurological abnormality associated with the lumbar spine disability at any point during the entire appeal period. Indicate the nerve roots involved for each objective neurological impairment found and the severity of the symptoms (e.g., mild, moderate, severe). 7. After conducting the above development and any additional development deemed necessary, the RO should review the Veteran's claims. If the benefits sought on appeal cannot be granted, the Veteran and his representative must be furnished a supplemental statement of the case and provided an appropriate opportunity to respond. Thereafter, if indicated, the case should be returned to the Board for further appellate action. The appellant has the right to submit additional evidence and argument on the matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This 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). ______________________________________________ A. C. MACKENZIE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs