Citation Nr: 1751372	
Decision Date: 11/09/17    Archive Date: 11/17/17

DOCKET NO. 14-38 119	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in San Juan, the Commonwealth of Puerto Rico


THE ISSUES

1. Entitlement to an initial rating in excess of 10 percent for tinnitus. 

2. Entitlement to service connection for bilateral hearing loss.

3. Entitlement to service connection for diabetes mellitus, type II, to include as due to herbicide exposure. 

4. Entitlement to service connection for gastroparesis, claimed as secondary to diabetes mellitus, type II.

5. Entitlement to service connection for erectile dysfunction, claimed as secondary to diabetes mellitus, type II.

6. Entitlement to service connection for carpal tunnel syndrome, claimed as secondary to diabetes mellitus, type II.

7. Entitlement to service connection for diabetic cystopathy, claimed as secondary to diabetes mellitus, type II.

8. Entitlement to service connection for hypertension, claimed as secondary to diabetes mellitus, type II.

9. Entitlement to service connection for an eye disability, claimed as diabetic retinopathy, claimed as secondary to diabetes mellitus, type II.

10. Entitlement to service connection for nephropathy, claimed as secondary to diabetes mellitus, type II.

11. Entitlement to service connection for a bladder dysfunction, claimed as secondary to diabetes mellitus, type II.

12. Entitlement to service connection for peripheral vascular disease, claimed as secondary to diabetes mellitus, type II.

13. Entitlement to service connection for peripheral neuropathy of the right upper extremity, claimed as secondary to diabetes mellitus, type II.

14. Entitlement to service connection for peripheral neuropathy of the left upper extremity, claimed as secondary to diabetes mellitus, type II.

15. Entitlement to service connection for peripheral neuropathy of the right lower extremity, claimed as secondary to diabetes mellitus, type II.

16. Entitlement to service connection for peripheral neuropathy of the left lower extremity, claimed as secondary to diabetes mellitus, type II.

17. Entitlement to service connection for coronary artery disease, claimed as secondary to diabetes mellitus, type II.

18. Entitlement to service connection for a lumbar spine disability.

19. Entitlement to service connection for a left hip disability.

20. Entitlement to service connection for a right hip disability. 

21. Entitlement to service connection for an acquired psychiatric disability, to include major depression and posttraumatic stress disorder (PTSD).

22. Entitlement to service connection for a bilateral shoulder disability.

23. Entitlement to special monthly pension based on aid and attendance or housebound status.


ATTORNEY FOR THE BOARD

A.M. Clark, Counsel


INTRODUCTION

The Veteran served on active duty from April 1972 to April 1974.

This matter comes before the Board of Veterans' Appeals (Board) on appeal from a December 2012 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in San Juan, the Commonwealth of Puerto Rico. This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2017). 38 U.S.C.A. § 7107(a)(2) (West 2014).

The Board notes that the RO separately adjudicated service connection claims for major depression and PTSD (see December 2012 rating decision). In Clemons v. Shinseki, 23 Vet. App. 1, 5 (2009) the Court of Appeals for Veterans Claims clarified how the Board should analyze claims for PTSD and other acquired psychiatric disorders. As emphasized in Clemons, though a veteran may only seek service connection for PTSD, the veteran's claim "cannot be a claim limited only to that diagnosis, but must rather be considered a claim for any mental disability that may be reasonably encompassed." Id. Therefore, the Board will address whether service connection is warranted for an acquired psychiatric disorder, however diagnosed. These issues have been recharacterized accordingly as noted on the title page.

The Board also notes that the Veteran submitted private treatment records in August 2017, which were not considered by the RO at the time of the issuance of the most recent October 2014 statement of the case (SOC). The Honoring America's Veterans and Caring for Camp Lejeune Families Act of 2012, Public Law No. 112-154, 126 Stat. 1165, amended 38 U.S.C. § 7105 to provide for an automatic waiver of initial AOJ review of evidence submitted to the AOJ or to the Board at the time of or subsequent to the submission of a substantive appeal filed on or after February 2, 2013, unless the claimant or claimant's representative requests in writing that the AOJ initially review such evidence. Here, the Veteran filed a Form 9 substantive appeal in October 2014, after February 2, 2013. Therefore, the AOJ is not required to issue a supplemental statement of the case considering such evidence.

The issues of entitlement to service connection for diabetes mellitus, type II, gastroparesis, erectile dysfunction, carpal tunnel syndrome, diabetic cystopathy, hypertension, an eye disability, nephropathy, bladder dysfunction, peripheral vascular disease, peripheral neuropathy of the right upper extremity, peripheral neuropathy of the left upper extremity, peripheral neuropathy of the right lower extremity, peripheral neuropathy of the left lower extremity, coronary artery disease, a lumbar spine disability, a left hip disability, a right hip disability, an acquired psychiatric disability, a bilateral shoulder disability, and entitlement to special monthly pension based on aid and attendance or housebound status are addressed in the REMAND portion of the decision below and are REMANDED to the Agency of Original Jurisdiction (AOJ).



FINDINGS OF FACT

1. The Veteran's service-connected tinnitus is assigned a 10 percent rating, which is the maximum schedular rating authorized for tinnitus under Diagnostic Code 6260, for either a unilateral or a bilateral condition.

2. The preponderance of the evidence weighs against a finding that the Veteran has bilateral hearing loss for VA purposes at any time during the current appeal.


CONCLUSIONS OF LAW

1. The criteria for rating in excess of 10 percent for tinnitus have not been met. 38 U.S.C.A. § 1155 (West 2014); 38 C.F.R. § 4.87, Diagnostic Code 6260 (2017).

2. The criteria for entitlement to service connection for bilateral hearing loss have not been met. 38 U.S.C.A. §§ 1110, 5103, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309, 3.385 (2017).


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

I. Duties to Assist and Notify

The record reflects that the Veteran received 38 U.S.C.A. § 5103(a)-compliant notice in connection with his claims. There is no indication in this record of a failure to notify. See Scott v. McDonald, 789 F.3rd 1375 (Fed. Cir. 2015). 

Pursuant to the duty to assist, VA must obtain "records of relevant medical treatment or examination" at VA facilities. 38 U.S.C.A. § 5103A(c)(2). All records pertaining to the conditions at issue are presumptively relevant. See Moore v. Shinseki, 555 F.3d 1369, 1374 (Fed. Cir. 2009); Golz v. Shinseki, 590 F.3d 1317 (Fed. Cir. 2010). In addition, where the Veteran "sufficiently identifies" other VA medical records that he or she desires to be obtained, VA must also seek those records even if they do not appear potentially relevant based upon the available information. Sullivan v. McDonald, 815 F.3d 786, 793 (Fed. Cir. 2016) (citing 38 C.F.R. § 3.159(c)(3)). In this case, the Veteran has referenced no such records, and all pertinent records have been obtained. Specifically, the information and evidence that has been associated with the claims file includes the Veteran's service treatment records, post-service treatment records, and written assertions. Moreover, documents in the claims file written in Spanish have been translated to English. The Board has reviewed the Veteran's Virtual VA (VVA) claims file and Veterans Benefits Management System (VBMS) file. 

Next, the Veteran was afforded VA examinations for his hearing loss and tinnitus in December 2012 and April 2013. The VA examination reports reflect that the VA examiners reviewed the Veteran's past medical history, recorded his current complaints, conducted an appropriate evaluation of the Veteran, and rendered an appropriate diagnosis and opinion consistent with the remainder of the evidence of record. Significantly, as will be noted below, there is no current diagnosis related to his hearing loss. As such, the Board finds that the VA examinations are sufficient upon which to base a decision with regard to these claims. See 38 C.F.R. § 4.2 (2017); see also Barr v. Nicholson, 21 Vet. App. 303, 312 (2007).

The Board concludes that all the available records and medical evidence have been obtained in order to make adequate determinations as to these claims. Hence, no further notice or assistance is required to fulfill VA's duty to assist in the development of the claims. Smith v. Gober, 14 Vet. App. 227 (2000), aff'd, 281 F.3d 1384 (Fed. Cir. 2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); see also Quartuccio v. Principi, 16 Vet. App. 183 (2002).

II. Increased Rating-Tinnitus

Disability ratings are determined by the application of the VA's Schedule for Rating Disabilities. Separate diagnostic codes identify the various disabilities, which are based, as far as practically can be determined, on average impairment in earning capacity. 38 U.S.C.A. § 1155 (West 2014); 38 C.F.R. Part 4 (2017). When rating a service-connected disability, the entire history must be borne in mind. Schafrath v. Derwinski, 1 Vet. App. 589 (1991). The Board will also consider entitlement to staged ratings to compensate for times since filing the claim when the disability may have been more severe than at other times during the course of the claim on appeal. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007).

Where there is a question as to which of two ratings shall be applied, the higher rating will be assigned if the disability more closely approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7 (2017). When, after careful consideration of all procurable and assembled data, a reasonable doubt arises regarding the degree of disability, that reasonable doubt will be resolved in favor of the Veteran. 38 C.F.R. § 4.3 (2017).

The evaluation of the same disability under various diagnoses is to be avoided. 38 C.F.R. § 4.14 (2017). However, § 4.14 does not preclude the assignment of separate evaluations for separate and distinct symptomatology where none of the symptomatology justifying an evaluation under one diagnostic code is duplicative of or overlapping with the symptomatology justifying an evaluation under another diagnostic code. Esteban v. Brown, 6 Vet. App. 259, 262 (1994).

The Veteran has requested an increased rating for his service-connected tinnitus.

The Veteran's service-connected tinnitus has been assigned a 10 percent rating, which is the maximum schedular rating available for tinnitus. 38 C.F.R. §4.87, Diagnostic Code 6260.

In a December 2012 VA examination report, the VA examiner stated that the Veteran's tinnitus did not impact ordinary conditions of daily life, including his ability to work. In an April 2013 VA examination report, regarding the impact of the tinnitus on the activities of daily life and work, the examiner noted no impact in these areas due to tinnitus.

The Veteran's tinnitus is rated 10 percent under Diagnostic Code 6260. 38 C.F.R. § 4.87 (2017). Under that diagnostic code, a single 10 percent rating is assigned for tinnitus, whether the sound is perceived as being in one ear, both ears, or in the head. The maximum schedular rating available for tinnitus is 10 percent. 38 U.S.C.A. § 1155 (West 2014); 38 C.F.R. § 4.87 (2017); Smith v. Nicholson, 451 F.3d. 1344 (Fed. Cir. 2006). As there is no legal basis upon which to award a higher schedular rating, or separate schedular ratings for each ear, the appeal must be denied. Sabonis v. Brown, 6 Vet. App. 426 (1994). 

The Board further finds that referral for consideration of an extraschedular rating is not warranted, as the evidence regarding the Veteran's tinnitus does not show such an exceptional disability picture that would render the available schedular rating inadequate. Thun v. Peake, 22 Vet. App. 111 (2008). The Veteran has not provided any evidence that his tinnitus is of such a degree that the 10 percent schedular disability rating is insufficient. The evidence does not show frequent hospitalization or marked interference with employment as a result of tinnitus. Therefore, the Board finds that the schedular rating of 10 percent for the Veteran's tinnitus is adequate, and no referral is required for extraschedular consideration. 38 C.F.R. § 3.321(b) (2017).

III. Service Connection-Bilateral Hearing Loss

Under the relevant laws and regulations, service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C.A. § 1110 (West 2014). Evidence must show: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; 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, 1166 -67 (Fed. Cir. 2004); Caluza v. Brown, 7 Vet. App. 498, 505 (1995). 

Under 38 C.F.R. § 3.303(b), an alternative method of establishing the second and third Shedden/Caluza element is through a demonstration of continuity of symptomatology if the disability claimed qualifies as a chronic disease listed in 38 C.F.R. § 3.309(a). Regulations also provide that service connection may be granted for a disability diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability is due to disease or injury which was incurred in or aggravated by service. 38 C.F.R. § 3.303(d). 

Finally, 38 U.S.C.A. § 1154(a) requires that VA give "due consideration" to "all pertinent medical and lay evidence" in evaluating a claim for disability or death benefits. Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). Specifically, "[l]ay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional." Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); see also Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006).

As noted above, service connection may only be granted for a current disability; when a claimed condition is not shown, there may be no grant of service connection. See 38 U.S.C.A. § 1110 (West 2014); Rabideau v. Derwinski, 2 Vet. App. 141 (1992) (Congress specifically limits entitlement for service-connected disease or injury to cases where such incidents have resulted in a disability). "In the absence of proof of a present disability there can be no valid claim." See Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). 

A hearing loss disability is defined by regulation. For 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; when the auditory thresholds for at least three of the above frequencies 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 (2017). An examination for hearing impairment for VA purposes must be conducted by a state-licensed audiologist and must include a controlled speech discrimination test (Maryland CNC) and a puretone audiometry test. Examinations will be conducted without the use of hearing aids. See 38 C.F.R. § 4.85(a) (2017). 

In this case, however, there is no evidence of bilateral hearing loss for VA purposes at any time during the period under appellate review. In this regard, the Board has reviewed the evidence of record and finds that the Veteran has not demonstrated that he has hearing loss for VA purposes. For example, the Board has reviewed a December 2012 VA examination which reflects normal hearing. Audiometric thresholds recorded were:




HERTZ



500
1000
2000
3000
4000
RIGHT
20
20
20
30
35
LEFT
25
25
15
30
35

Speech recognition was 100 percent in the right ear and 100 percent in his left ear. This evidence does not support hearing loss for VA purposes under 38 C.F.R. § 3.385. Significantly, treatment records in the claims file do not reflect audiometric thresholds commensurate with a hearing loss disability for VA purposes. 38 C.F.R. § 3.385. 

The Board has also reviewed an April 2013 VA examination which reflects normal hearing. Audiometric thresholds recorded were:




HERTZ



500
1000
2000
3000
4000
RIGHT
20
20
20
25
35
LEFT
20
25
20
30
35

Speech recognition was 100 percent in the right ear and 100 percent in his left ear. This evidence does not support hearing loss for VA purposes under 38 C.F.R. § 3.385. 

As set forth above, one of the elements necessary for service connection is medical evidence of a current disability. The Board has considered the Veteran's contentions with respect to his reduced hearing acuity. The Board acknowledges that the Veteran is certainly competent to report that he experiences difficulty hearing. Layno v. Brown, 6 Vet. App. 465, 470 (1994). However, the evidence during the period on appeal fails to establish that he currently has hearing loss for VA compensation purposes. The presence of a current disability is paramount. As such, the claim of entitlement to service connection for hearing loss is denied. 

It is important for the Veteran to understand that although he may have been exposed to loud noise during service and although his hearing may not be as good as it once was, those facts do not necessarily support a finding that he has "hearing loss" for VA purposes at this time. The Veteran's hearing, while perhaps not as good as it once was, is still within a range of normal. As there is no evidence that the Veteran currently has a bilateral hearing loss disability for VA purposes, entitlement to service connection for hearing loss must be denied. The evidence in this case is not so evenly balanced as to allow application of the benefit-of- the-doubt rule. Gilbert v. Derwinski, 1 Vet. App. 49 (1990); 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102 (2017).


ORDER

Entitlement to a rating in excess of 10 percent for tinnitus is denied.

Service connection for bilateral hearing loss is denied.


REMAND

Further evidentiary development is required prior to review of the remaining issues on appeal.

With respect to his claim for service connection for diabetes mellitus, type II, the Veteran contends that this disability is related to exposure to herbicides in service. In a November 2012 statement, the Veteran claims that he was stationed at the Demilitarized Zone (DMZ) in Korea from 1972 to 1973. His DD 214 confirms one year of foreign service in Korea. In a September 2012 statement, the Veteran alleged that he was exposed to Agent Orange while serving in the DMZ. 

VA has adopted specific procedures to determine whether a claimant was exposed to herbicides along the DMZ in Korea. VA's Adjudication Procedure Manual, M21-1, Part IV, Subpart ii, Chapter 1, Section H, Paragraph 4(c), directs, that where a claimant alleges exposure to herbicides in Korea and the service was not between April 1, 1968 and August 31, 1971 or the service was not in a unit or entity listed in M21-1, Part IV, Subpart ii, Chapter 1, Section H, Paragraph 4(b), a request will be sent to the U.S. Army and Joint Services Records Research Center (JSRRC) for verification of the claimant's exposure to herbicides. If the claim and available records do not provide sufficient details of the Veteran's Korean DMZ service, a development letter is to be sent to the claimant. If the claimant fails to provide sufficient information to complete a JSRRC request, the claim will be referred to the JSRRC coordinator to make a formal finding that sufficient information required to verify herbicide exposure does not exist.

The United States Court of Appeals for Veterans Claims (Court) has consistently held that evidentiary development procedures provided in VA's Adjudication Procedure Manual are binding. See Campbell v. Gober, 14 Vet. App. 142, 144 (2000) (holding that VA was obligated, as part of its duty to assist, to comply with the applicable M21-1 provisions concerning service-connected death claims and remanding for compliance with that provision and applicable regulations); Patton v. West, 12 Vet. App. 272, 282 (1999) (holding that the Board failed to comply with the duty to assist requirement when it failed to remand the case for compliance with the evidentiary development called for by the M21-1).

The AOJ has not completed the necessary development as required by M21-1 to attempt to verify the Veteran's claimed exposure to herbicides in service. March 2006 and April 2006 Personnel Information Exchange System (PIES) requests reflected there was no evidence to substantiate any service in the Republic of Vietnam. The Veteran has not alleged service in Vietnam. No development as to any herbicide exposure while the Veteran was stationed in Korea was completed. Such development should be accomplished on remand.

In addition, the Veteran's service personnel records may contain information to corroborate his alleged exposure to herbicides in service. Hence, on remand, the AOJ should attempt to obtain a complete copy of the Veteran's Official Military Personnel File. The AOJ should follow the current procedures prescribed in 38 C.F.R. § 3.159 (c) as regards requests for records from Federal facilities.

With respect to his service connection claims for gastroparesis, erectile dysfunction, carpal tunnel syndrome, diabetic cystopathy, hypertension, an eye disability, nephropathy, bladder dysfunction, peripheral vascular disease, peripheral neuropathy of the right upper extremity, peripheral neuropathy of the left upper extremity, peripheral neuropathy of the right lower extremity, peripheral neuropathy of the left lower extremity, and coronary artery disease, all claimed as secondary to diabetes mellitus, the Court has held that when a determination on one issue could have a significant impact on the outcome of another issue, such issues are considered inextricably intertwined and VA is required to decide those issues together. Harris v. Derwinski, 1 Vet. App. 180 (1991). 

As the Veteran has claimed that his gastroparesis, erectile dysfunction, carpal tunnel syndrome, diabetic cystopathy, hypertension, eye disability, nephropathy, bladder dysfunction, peripheral vascular disease, peripheral neuropathy of the right upper extremity, peripheral neuropathy of the left upper extremity, peripheral neuropathy of the right lower extremity, peripheral neuropathy of the left lower extremity, and coronary artery disease may be related to his diabetes mellitus, the Board finds his claims to be inextricably intertwined with the development related to the Veteran's claim for entitlement to service connection for diabetes mellitus.

The Veteran asserts that he currently suffers from lumbar spine, left hip, right hip, bilateral shoulder and acquired psychiatric disabilities related to service. Available service treatment records do not reflect treatment for his lumbar spine, left hip, right hip, bilateral shoulders or for a psychiatric disability, providing evidence against these claims. 

The post-service medical evidence includes a July 2012 private medical opinion loosely relating his back, bilateral hips, and shoulder disabilities to service. Unfortunately, the opinion lacks any clear rationale to support the opinions provided. Additionally, the private treating physician appears to relate the Veteran's acquired psychiatric disability to his overall poor medical health. The Board finds that none of these opinions are adequate for adjudication purposes. 

In light of this evidence, the Veteran should be afforded VA examinations to determine the nature and etiology of any back, bilateral hips, shoulder, and acquired psychiatric disabilities found. 38 U.S.C.A. § 5103A(d); McLendon v. Nicholson, 20 Vet. App. 79 (2006). 

Finally, the issue of entitlement to special monthly pension based on aid and attendance or housebound status is inextricably intertwined with the Veteran's service connection claims being remanded herein. As such, the claim must be deferred pending resolutions of the service connection claims. Harris v. Derwinski, 1 Vet. App. 180 (1991).

Accordingly, the case is REMANDED for the following actions:

(Please note, this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c). Expedited handling is requested.)

1. Obtain a copy of the Veteran's complete Official Military Personnel File. Follow the procedures set forth in 38 C.F.R. § 3.159 (c) (2017) with respect to requesting records from Federal facilities. All records/responses received should be associated with the file.

2. Complete all required development to attempt to verify the Veteran's alleged exposure to herbicides in Korea pursuant to M21-1, Part IV, Subpart ii, Chapter 1, Section H, Paragraph 4(c). All such evidentiary development must be documented in the file.

3. Following the development outlined in the first two paragraphs of this remand, arrange for the Veteran to undergo VA examinations to determine the nature and etiology of any lumbar spine, left hip, right hip, bilateral shoulder and acquired psychiatric disabilities found to be present, and their relationship, if any, to his military service. 

Any necessary testing should be conducted. The claims file must be reviewed in conjunction with such examination(s), and the examiner(s) must indicate that such review occurred. 

Psychiatric examination-The VA examiner is asked to address the following questions:

(a) The VA examiner should determine whether any of the stressors claimed by the Veteran are related to his fear of hostile military or terrorist activity. Thereafter, the VA examiner should confirm whether any of the claimed stressors are adequate to support a diagnosis of PTSD and whether the Veteran's symptoms are related to the claimed stressor(s). If a diagnosis of PTSD is deemed appropriate, the examiner must identify the specific stressor(s) underlying the diagnosis, and should comment upon the link between the current symptomatology and the Veteran's claimed stressor(s).

(b) If the examiner determines that the clinical evidence does not support a diagnosis of PTSD, to include that the claimed stressors do not support the diagnosis, the examiner should list all diagnosed psychiatric disorders and specifically state whether it is at least as likely as not (a 50 percent probability of greater) that any diagnosed psychiatric disorder, to include any diagnosed during the period on appeal, either began during or was otherwise caused by the Veteran's military service. 

(c) Whether it is at least as likely as not (a probability of 50 percent or greater) that any acquired psychiatric disability is caused by any service-connected disability.  

(d) Whether it is at least as likely as not (a probability of 50 percent or greater) that any acquired psychiatric disability is aggravated by any service-connected disability. 

Orthopedic examination-The VA examiner is asked to address the following questions:

(a) Whether it is at least as likely as not (a probability of 50 percent or greater) that the Veteran's lumbar spine disability (if any) had its onset during the Veteran's active service or is otherwise causally related to his service. 

(b) Whether it is at least as likely as not (a probability of 50 percent or greater) that the Veteran's left hip disability (if any) had its onset during the Veteran's active service or is otherwise causally related to his service. 

(c) Whether it is at least as likely as not (a probability of 50 percent or greater) that the Veteran's right hip disability (if any) had its onset during the Veteran's active service or is otherwise causally related to his service. 

(d) Whether it is at least as likely as not (a probability of 50 percent or greater) that the Veteran's bilateral shoulder disability (if any) had its onset during the Veteran's active service or is otherwise causally related to his service. 

All opinions offered must be accompanied by a clear rationale consistent with the evidence of record. If the examiner finds it impossible to provide any part of the requested opinions without resort to pure speculation, he or she should so indicate and provide a rationale as to why such a finding is made. 

4. The RO should then readjudicate the claims. If any benefit sought is not granted, the Veteran should be furnished a supplemental statement of the case and be afforded an opportunity to respond. The case should then be returned to the Board for appellate review.

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).

These claims 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).



______________________________________________
CAROLINE B. FLEMING
Veterans Law Judge, Board of Veterans' Appeals


Department of Veterans Affairs