Citation Nr: 1800649	
Decision Date: 01/05/18    Archive Date: 01/19/18

DOCKET NO. 15-35 515	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Philadelphia, Pennsylvania


THE ISSUES

1. Entitlement to a rating in excess of 10 percent prior to June 20, 2016 and a rating in excess of 20 percent thereafter, for service-connected diabetes mellitus type II with residuals, transient ischemic attack and erectile dysfunction.

2. Entitlement to a rating in excess of 30 percent prior to January 19, 2017 and a rating in excess of 60 percent thereafter, for service-connected ischemic heart disease associated with herbicide exposure. 

3. Entitlement to a rating in excess of 10 percent for service-connected tinnitus.

4. Entitlement to a compensable rating for service-connected bilateral defective hearing.

5. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU), prior to January 19, 2017.  

6. Entitlement to service connection for an acquired psychiatric disability, other than service-connected adjustment disorder with depressed mood associated with ischemic heart diease associated with herbicide exposure. 

7. Entitlement to service connection for a respiratory disability, claimed as chronic obstructive pulmonary disease (COPD), to include as secondary to service-connected diabetes mellitus, type II.

8. Entitlement to service connection for a right breast disability.

9. Entitlement to service connection for a thyroid disability.

10. Whether new and material evidence has been submitted to reopen a claim of entitlement to service connection for leukocytosis/lymphoma. 

11. Entitlement to service connection for leukocytosis/lymphoma.

12. Whether new and material evidence has been submitted to reopen a claim of entitlement to service connection for a back disability. 

13. Entitlement to service connection for a back disability.


REPRESENTATION

Appellant represented by:	J. Michael Woods, Attorney


ATTORNEY FOR THE BOARD

A.M. Clark, Counsel



INTRODUCTION

The Veteran served on active duty from December 1960 to December 1964. 

The current matter comes before the Board of Veterans' Appeals (BVA or Board) from a September 2013 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Philadelphia, Pennsylvania.

The Board notes there are additional issues on appeal that the Veteran has perfected, but that are not yet ripe for Board review. When an appeal is certified to the Board for appellate review and the appellate record is transferred to the Board, the appellant and his or her representative, if any, will be notified in writing of the certification and transfer and of the time limit for requesting a change in representation, for requesting a personal hearing, and for submitting additional evidence. See 38 C.F.R. §§ 19.36, 20.1304(a). As the required notifications have not been sent in regard to claims for earlier effective dates for the grant of service connection for an adjustment disorder with depressed mood and for residuals of a transient ischemic attack, or for increased ratings for an adjustment disorder with depressed mood and residuals of a transient ischemic attack, the Board declines to take any further action on these issues at this time. This delay is needed to ensure that the Veteran is afforded full due process in the matter. See 38 C.F.R. § 3.103; Gray v. McDonald, 27 Vet. App. 313, 327 (2015) (Due Process protections apply to disability compensation proceedings before the Board) (citing Cushman v. Shinseki, 576 F.3d 1290 (Fed. Cir. 2009)); see also Carter v. McDonald, 794 F.3d 1342, 1346 (Fed. Cir. 2015) (regulatory requirement of notice in § 1.525(d) can only sensibly be construed to require that the notice to counsel be timely, which requires, at a minimum, notice before the expressly stated deadline has passed). These issues will be the subject of a later Board decision as appropriate.

With respect to the Veteran's COPD claim, the Board has considered that the RO in April 2007 denied service connection for bronchitis claimed as shortness of breath. The RO indicated that a review of service treatment records was negative for treatment for shortness of breath and current treatment records only reflected acute bronchitis. As the RO specifically limited the discussion to bronchitis and did not address the Veteran's contentions of COPD related to service, the Board finds that consideration of whether new and material evidence has been submitted with respect to the current claim for a respiratory disability, claimed as COPD, is not necessary. Rather, a new decision on the merits is required. Ephraim v. Brown, 82 F.3d 399 (Fed. Cir. 1996) (A claim based on a new diagnosis is a new claim, and is adjudicated without regard to prior denials that did not consider that diagnosis.); cf. Velez v. Shinseki, 23 Vet. App. 199 (2009) (in determining whether new and material evidence is required, the focus of the Board's analysis must be on whether the evidence presented truly amounts to a new claim based upon distinctly diagnosed diseases or injuries). Here the claim is based on an entirely different diagnosis. As such, the claim for a respiratory disability, claimed as COPD, has been properly characterized on the title page of this decision. 

This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2017). 38 U.S.C. § 7107(a)(2) (2012).

The issues of entitlement to service connection for a respiratory disability, leukocytosis/lymphoma, and a back disability are addressed in the REMAND portion of the decision below and are REMANDED to the AOJ.


FINDINGS OF FACT

1. The competent medical evidence shows that, prior to June 20, 2016, the Veteran's service-connected diabetes mellitus was managed by restricted diet only and did not require an oral hypoglycemic agent or insulin.

2. The competent medical evidence shows that, since June 20, 2016, the Veteran's service-connected diabetes mellitus is managed by an oral hypoglycemic agent and restricted diet; it does not require insulin or regulation of activities.

3. Prior to January 19, 2017, the Veteran's ischemic heart disease did not result in one episode of acute congestive heart failure, or more nearly approximate a workload greater than 3 metabolic equivalents (METs) but not greater than 5 METs resulting in dyspnea, fatigue, angina, dizziness, or syncope or reflect evidence of left ventricular dysfunction with ejection fraction of 30 to 50 percent. 

4. Since January 19, 2017, the Veteran's ischemic heart disease did not result in chronic congestive heart failure; or, workload of 3 METs or less resulting in dyspnea, fatigue, angina, dizziness, or syncope, or; left ventricular dysfunction with an ejection fraction of less than 30 percent. 

5. 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.

6. Throughout the rating period on appeal, the Veteran's bilateral defective hearing was manifested by hearing impairment corresponding to no higher than an auditory acuity of Level II in the right ear and Level II in the left ear. 

7. The Veteran's service-connected disabilities preclude him from securing or following a substantially gainful occupation, prior to January 19, 2017.

8. The competent and credible evidence of record does not support a finding that the Veteran has an acquired psychiatric disability, other than service-connected adjustment disorder with depressed mood, causally related to, or aggravated by, service. 

9. A right breast disability was not shown in service. The competent and credible evidence fails to establish an etiological relationship between the Veteran's right breast disability and his active service. 

10. A thyroid disability was not shown in service. The competent and credible evidence fails to establish an etiological relationship between the Veteran's thyroid disability and his active service. 

11. A July 2007 rating decision last denied service connection for a back disability; and a July 2010 rating decision last denied service connection for leukocytosis/ lymphoma. 

12. Evidence pertaining to the Veteran's back disability and leukocytosis/ lymphoma since the last final rating decisions was not previously submitted, relates to unestablished facts necessary to substantiate the claims, is neither cumulative nor redundant, and raises a reasonable possibility of substantiating the claims.


CONCLUSIONS OF LAW

1. The criteria for a rating in excess of 10 percent for diabetes mellitus, type II, prior to June 20, 2016, had not been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 4.1, 4.2, 4.7, 4.119, Diagnostic Code (DC) 7913 (2017).

2. The criteria for a rating in excess of 20 percent for diabetes mellitus, type II, since June 20, 2016 have not been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 4.1, 4.2, 4.7, 4.119, DC 7913 (2017).

3. The criteria for a rating in excess of 30 percent for ishemic heart disease associated with herbicide exposure, prior to January 19, 2017, had not been met. 38 U.S.C. § 1155 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.321(b), 4.1, 4.3, 4.7, 4.10, 4.104, DC 7005 (2017).

4. The criteria for a rating in excess of 60 percent for ischemic heart disease associated with herbicide exposure, since January 19, 2017, have not been met. 38 U.S.C. § 1155 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.321(b), 4.1, 4.3, 4.7, 4.10, 4.104, DC 7005 (2017).

5. The criteria for rating in excess of 10 percent for tinnitus have not been met. 38 U.S.C. § 1155 (2012); 38 C.F.R. § 4.87, DC 6260 (2017).

6. The criteria for a compensable evaluation for bilateral defective hearing have not been met. 38 U.S.C. §§ 1155, 5103(a), 5103A, 5107(b) (2012); 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.85, DC 6100 (2017).

7. The criteria for a total disability rating based on individual unemployability have been met, prior to January 19, 2017. 38 U.S.C. §§ 1155, 5103A, 5107 (2012); 38 C.F.R. §§ 3.340, 3.341, 4.16 (2017).

8. The criteria for service connection for an acquired psychiatric disorder other than service-connected adjustment disorder with depressed mood have not been met. 38 U.S.C. §§ 1110, 1111, 1131, 5103, 5103A, 5107 (2012); 38 C.F.R. § 3.303 (2017). 

9. A right breast disability was not incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131, 5103(a), 5103A (2012); 38 C.F.R. §§ 3.159, 3.303 (2017).

10. A thyroid disability was not incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131, 5103(a), 5103A (2012); 38 C.F.R. §§ 3.159, 3.303 (2017).

11. The July 2007 rating decision that last denied service connection for a back disability is final. 38 U.S.C. § 7105 (2012); 38 C.F.R. § 20.1103 (2017).

12. The July 2010 rating decision that last denied service connection for leukocytosis/lymphoma is final. 38 U.S.C. § 7105 (2012); 38 C.F.R. § 20.1103 (2017).

13. The evidence received since the last final July 2007 rating decision is new and material, and the claim for service connection for a back disability is reopened. 38 U.S.C. § 7105 (2012); 38 C.F.R. §§ 3.156, 20.1103 (2017).

14. The evidence received since the last final July 2010 rating decision is new and material, and the claim for service connection for leukocytosis/lymphoma is reopened. 38 U.S.C. § 7105 (2012); 38 C.F.R. §§ 3.156, 20.1103 (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. § 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. 

Next, the Veteran was afforded VA examinations for his hearing loss and tinnitus in July 2013 and January 2017. The Veteran was afforded VA examinations for his diabetes mellitus in May 2013 and January 2017, and for his ischemic heart disease in May 2013, January 2017, and April 2017. The duty to assist does not require that a claim be remanded solely because of the passage of time as an otherwise adequate examination was conducted. VAOPGCPREC 11-95. Here, there is no objective evidence indicating that there has been a material change in the severity of the Veteran's hearing loss, tinnitus, diabetes mellitus, or ischemic heart disease since the most recent VA examinations. The Veteran and his representative have not made such allegations. The Board finds the examinations to be thorough and adequate upon which to base a decision with regard to the Veteran's claims. The VA examiners personally interviewed and examined the Veteran (including eliciting a history from him), and provided the information necessary to evaluate his disabilities under the applicable rating criteria.

With respect to his claim for an acquired psychiatric disability, other than service-connected adjustment disorder with depressed mood, the Veteran was afforded VA examinations in September 2013, and January 2017. A private June 2016 Disability Benefits Questionnaire (DBQ) was submitted by the Veteran. The VA examination reports reflect that the VA examiners reviewed the Veteran's past medical history, recorded his current complaints, conducted appropriate evaluations of the Veteran, and rendered appropriate diagnosis and opinions consistent with the remainder of the evidence of record. Additionally, with respect to his acquired psychiatric disability claim, the VA examiners considered all of the pertinent evidence of record, as well as the statements of the appellant, and determined that the Veteran did not exhibit a psychiatric disability other than his already service-connected acquired psychiatric disability. 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).

With respect to his service connection claims for a right breast disability and thyroid disability, the Board notes that VA examinations and medical opinions were not obtained. The Board finds that an additional remand to obtain such opinions is not warranted. In determining whether the duty to assist requires that a VA medical examination be provided or medical opinion obtained with respect to a veteran's claim for benefits, there are four factors for consideration. These four factors are: (1) whether there is competent evidence of a current disability or persistent or recurrent symptoms of a disability; (2) whether there is evidence establishing that an event, injury, or disease occurred in service, or evidence establishing certain diseases manifesting during an applicable presumption period; (3) whether there is an indication that the disability or symptoms may be associated with the veteran's service or with another service-connected disability; and (4) whether there otherwise is sufficient competent medical evidence of record to make a decision on the claim. 38 U.S.C. § 5103A(d); 38 C.F.R. § 3.159(c)(4).

With respect to the third factor above, the Court has stated that this element establishes a low threshold and requires only that the evidence "indicates" that there "may" be a nexus between the current disability or symptoms and the veteran's service. The types of evidence that "indicate" that a current disability "may be associated" with military service include, but are not limited to, medical evidence that suggests a nexus but is too equivocal or lacking in specificity to support a decision on the merits, or credible evidence of continuity of symptomatology such as pain or other symptoms capable of lay observation. McLendon v. Nicholson, 20 Vet. App. 79 (2006).

The Federal Circuit has addressed the appropriate standard to be applied in determining whether an examination is warranted. In Waters v. Shinseki, 601 F.3d 1274 (Fed. Cir. 2010) and Colantonio v. Shinseki, 606 F.3d 1378 (Fed. Cir. 2010), the Federal Circuit held that while there must be "medically competent" evidence of a current disability, "medically competent" evidence is not required to indicate that the current disability may be associated with service. Colantonio, 606 F.3d at 1382; Waters, 601 F.3d at 1277. On the other hand, a conclusory, generalized lay statement suggesting a nexus between a current disability and service (as in this case) would not suffice to meet the standard as this would, contrary to the intent of Congress, result in medical examinations being "routinely and virtually automatically" provided to all veterans claiming service connection. Waters, 601 F.3d at 1278-1279.

Here, the only evidence of current right breast and thyroid disabilities related to service is the Veteran's own conclusory, generalized lay statements, which are unsupported by the medical evidence. Although the Veteran believes that these claimed disabilities should be service connected, the fact remains that none of his arguments have been bolstered by the opinion of any medical professional, or the record as a whole, which provides highly probative evidence against these claims. Accordingly, the Board finds that referral for a VA medical examination or opinion is not warranted with respect to these issues. 

As such, the lay statements that are of record are simply insufficient to trigger VA's duty to provide examinations with opinions. See Waters, 601 F.3d 1274.

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 Ratings

Disability evaluations are determined by the application of a schedule of ratings which is based on average impairment of earning capacity. Generally, the degrees of disability specified are considered adequate to compensate for considerable loss of working time from exacerbations or illnesses proportionate to the severity of the several grades of disability. 38 C.F.R. § 4.1 (2017). Separate diagnostic codes identify the various disabilities. 38 U.S.C. § 1155 (2012); 38 C.F.R. Part 4 (2017). The Board should consider only those factors contained in the rating criteria. Massey v. Brown, 7 Vet. App. 204 (1994).

Where there is a question as to which of two ratings shall be applied, the higher rating will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7 (2017).

Where entitlement to compensation has already been established and an increase in the disability rating is at issue, it is the present level of disability that is of primary concern. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994). Nevertheless, where the evidence contains factual findings that show a change in the severity of symptoms during the course of the rating period on appeal, assignment of staged ratings would be permissible. Hart, 21 Vet. App. 505.

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).

Diabetes Mellitus

The Veteran's service-connected diabetes mellitus currently is evaluated as 10 percent disabling prior to June 20, 2016, and as 20 percent disabling thereafter, under 38 C.F.R. § 4.119, DC 7913. 

A 10 percent rating is assigned under DC 7913 for diabetes mellitus manageable by restricted diet only. A 20 percent rating is assigned for diabetes mellitus requiring insulin and a restricted diet or an oral hypoglycemic agent and a restricted diet. A 40 percent rating is assigned for diabetes mellitus requiring insulin, a restricted diet, and regulation of activities. A 60 percent rating is assigned for diabetes mellitus requiring insulin, a restricted diet, and regulation of activities with episodes of ketoacidosis or hypoglycemic reactions requiring one or two hospitalizations per year or twice a month visits to a diabetic care provider, plus complications that would not be compensable if separately evaluated. A maximum 100 percent rating is assigned for diabetes mellitus requiring more than one daily injection of insulin, a restricted diet, and regulation of activities (avoidance of strenuous occupational and recreational activities) with episodes of ketoacidosis or hypoglycemic reactions requiring at least three hospitalizations per year or weekly visits to a diabetic care provider plus either progressive loss of weight and strength or complications that would be compensable if separately evaluated. Id.

Note (1) to DC 7913 provides that compensable complications of diabetes will be evaluated separately unless they are part of the criteria used to support a 100 percent evaluation. Non-compensable complications are considered part of the diabetic process. Note (2) to DC 7913 states that, when diabetes mellitus has been diagnosed conclusively, a glucose tolerance test should be not requested solely for rating purposes. See 38 C.F.R. § 4.119, DC 7913, Notes (1), (2) (2017). 

"Regulation of activities" has been defined as the situation where the Veteran has been prescribed or advised to avoid strenuous occupational and recreational activities. 61 Fed. Reg. 20,440, 20,446 (May 7, 1996) (defining "regulation of activities," as used by VA in DC 7913). Medical evidence is required to show that occupational and recreational activities have been restricted. Camacho v. Nicholson, 21 Vet. App. 360 (2007).

The Board finds that the preponderance of the evidence is against the Veteran's claim for an initial rating in excess of 10 percent prior to June 20, 2016, and in excess of 20 percent thereafter, for his diabetes mellitus.

Prior to June 20, 2016

The competent medical evidence shows that, prior to June 20, 2016, the Veteran's service-connected diabetes mellitus was manifested by symptoms manageable by a restricted diet only. For example, a May 2013 VA examination noted that the Veteran had been diagnosed with diabetes mellitus, type II, in 2009. The VA examiner indicated that it was managed by restricted diet. It was noted that the Veteran did not require regulation of activities as part of the medical management of his diabetes mellitus. No hospitalizations for episodes of ketoacidosis or hypoglycemic reasons in the past 12 months were noted. At a June 20, 2016 treatment visit the Veteran reported that his diabetes mellitus was no longer diet controlled and he had been put on Metformin. There is no objective evidence indicating that the Veteran's diabetes mellitus required an oral hypoglycemic agent or insulin prior to June 20, 2016, which is required for an initial rating greater than 10 percent under DC 7913. See 38 C.F.R. § 4.119, DC 7913 (2017). Moreover, the Veteran has not contended that he had been taking such oral hypoglycemic agent or insulin during the time period in question, prior to June 20, 2016. 

In summary, the Board finds that the criteria for a rating in excess of 10 percent, prior to June 20, 2016, for diabetes mellitus is not warranted.


Since June 20, 2016

The Veteran also is not entitled to a rating in excess of 20 percent for diabetes mellitus effective June 20, 2016. As noted above, a VA treatment record reflects a report by the Veteran on June 20, 2016 that he was now taking Metformin. This appears to be the basis for the higher initial 20 percent rating assigned effective June 20, 2016. A June 2017 VA examination noted that the Veteran's diabetes mellitus was managed by restricted diet and he had been prescribed an oral hypoglycemic agent, Metformin, since June 2016. The VA examiner noted that the Veteran did not require regulation of activities as part of the medical management of his diabetes mellitus. The Veteran reported that he visits his diabetic care provider for episodes of ketoacidosis and hypoglycemia less than two times per month and had not had hospitalizations over the past 12 months because of these issues. The VA examiner noted that a complication of the Veteran's diabetes mellitus was diabetic peripheral neuropathy. The Board notes that the Veteran has been separately service-connected for peripheral neuropathy of the upper and lower extremities. The VA examiner also noted that the Veteran had erectile dysfunction related to his diabetes mellitus. The Veteran is currently receiving special monthly compensation for loss of use of a creative organ. 

The competent medical evidence shows that, at most, the Veteran's service-connected diabetes mellitus has required an oral hypoglycemic agent and a restricted diet since June 20, 2016. Absent evidence that the Veteran's service-connected diabetes mellitus also requires insulin and regulation of activities, the Board finds that the criteria for a rating greater than 20 percent effective June 20, 2016, for diabetes mellitus have not been met.

The Board recognizes that, under Note (1) to Diagnostic Code 7913, the rater is to evaluate compensable complications of diabetes separately unless they are part of the criteria used to support a 100 percent rating. As noted above, the Veteran is currently receiving special monthly compensation for loss of use of a creative organ. He is additionally separately service-connected for peripheral neuropathy of the upper and lower extremities. Significantly, the Veteran has not perfected appeals regarding the ratings assigned for these disabilities. Thus, evaluations of such residuals are not for appellate consideration at this time. Additionally, while a February 2017 rating decision granted service connection for residuals of a transient ischemic attack (claimed as stroke), a noncompensable rating was assigned because there were no compensable symptoms. The disability was included in combination with his service-connected diabetes mellitus because a compensable rating is not warranted under the diagnostic code. The Veteran has separately appealed the rating for this disability, and it is not currently before the Board. No other complications related to his diabetes have been diagnosed. 

Ischemic Heart Disease

The Veteran is currently assigned a 30 percent disability rating for ischemic heart disease pursuant to DC 7005, prior to January 19, 2017. In June 2017, the rating was increased to 60 percent, effective January 19, 2017. The effective date for the increased rating corresponds to a VA examination that demonstrated METs between 3 and 5.  

Diagnostic Code 7005 provides ratings for arteriosclerotic heart disease (coronary artery disease), and requires documented coronary artery disease. Arteriosclerotic heart disease resulting in workload of greater than 5 METs but not greater than 7 METs results in dyspnea, fatigue, angina, dizziness, or syncope, or; evidence of cardiac hypertrophy or dilatation on electrocardiogram, echocardiogram, or X-ray, is rated 30 percent disabling. Arteriosclerotic heart disease resulting in more than one episode of acute congestive heart failure in the past year, or; workload of greater than 3 METs but not greater than 5 METs results in dyspnea, fatigue, angina, dizziness, or syncope, or; left ventricular dysfunction with an ejection fraction of 30 to 50 percent, is rated 60 percent disabling. Arteriosclerotic heart disease resulting in chronic congestive heart failure, or; workload of 3 METs or less results in dyspnea, fatigue, angina, dizziness, or syncope, or; left ventricular dysfunction with an ejection fraction of less than 30 percent, is rated 100 percent disabling. 38 C.F.R. § 4.104, DC 7005 (2017).

A Note to Diagnostic Code 7005 provides that, if non-service-connected arteriosclerotic heart disease is superimposed on service-connected valvular or other non-arteriosclerotic heart disease, the adjudicator is to request a medical opinion as to which condition is causing the current signs and symptoms. 38 C.F.R. § 4.104.

Prior to January 19, 2017

At a May 2013 VA examination, the VA examiner noted no congestive heart failure. Testing at that time revealed METs of 7.7. It was noted that left ventricular ejection fraction (LVEF) was greater than 50 percent. The Veteran has submitted private treatment records. An October 2015 private treatment record noted a LVEF of 51 percent. The Veteran's ischemic heart disease prior to January 19, 2017 thus does not meet the criteria for an increased rating under DC 7005. See 38 C.F.R. § 4.104. Prior to January 19, 2017 (the date of the Veteran's most recent VA examination), there is simply no evidence that his CAD was sufficiently severe to warrant a disability rating in excess of 30 percent. His symptoms did not manifest in more than one episode of acute congestive heart failure in the past year, or workload of greater than 3 METs but not greater than 5, nor did he have left ventricular dysfunction with an ejection fraction of 30 to 50 percent.

The preponderance of the evidence is against the claim. The benefit-of-the-doubt rule does not apply, and entitlement to a schedular rating for ischemic heart disease in excess of 30 prior to January 19, 2017 is denied. See 38 U.S.C. § 5107(b); 38 C.F.R. §§ 3.102; 4.3 (2017); Gilbert, 1 Vet. App. at 55.

Since January 19, 2017

Since January 19, 2017, the evidence does not demonstrate METs 3 or less, or an ejection fraction of less than 30 percent, or chronic congestive heart failure, which would warrant a 100 percent disability rating. At a January 2017 VA examination it was noted that the Veteran did not have congestive heart failure. The VA examiner indicated that the Veteran was on continuous medication to control his heart condition. An ejection fraction of 51 percent was noted. The VA examiner noted that the Veteran reported difficulty with prolonged walking, ascending/descending stairs, bending, lifting, and repetitive movements.  In an April 2017 addendum, the VA examiner noted that the Veteran's METs were between 3 and 5. 

The Board finds that the Veteran's symptoms do not more closely approximate the criteria for a 100 percent rating since January 19, 2017. The medical evidence is clear on this point. 

The Board is sympathetic to the Veteran's position that higher ratings are warranted for his service-connected ishemic heart disease. However, the evidence of record, as compared to the rating criteria, does not warrant an increased rating during the period on appeal. The Board does not find that entitlement to a 60 percent rating is warranted since January 19, 2017. 

Tinnitus

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 for the entire period on appeal, which is the maximum schedular rating available for tinnitus. 38 C.F.R. §4.87, Diagnostic Code 6260.

In a July 2013 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 a January 2017 VA examination report, regarding the impact of the tinnitus on the activities of daily life and work, the examiner noted yes but then stated to see the previous VA examination report. 

The Veteran's tinnitus is rated 10 percent under DC 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. § 1155 (2012); 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 to this claim, 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).

Bilateral Defective Hearing

Disability ratings for hearing impairment are derived by a mechanical application of the rating schedule to the numeric designations assigned after audiometric evaluations are made. Bruce v. West, 11 Vet. App. 405 (1998); Lendenmann v. Principi, 3 Vet. App. 345 (1992). The regulations set forth eleven auditory acuity levels, designated from Roman numerals I to XI, in escalating order of hearing impairment. 38 C.F.R. § 4.85 (2017). The appropriate auditory acuity level is determined based on a combination of the percentage of speech discrimination and the puretone threshold average. 

Additional considerations apply when exceptional patterns of hearing loss are demonstrated, which are defined as either a) puretone averages of 55 or greater at 1000, 2000, 3000, and 4000 Hertz, or; b) a puretone threshold of 30 decibels or less at 1000 Hertz and 70 decibels or more at 2000 Hertz. 38 C.F.R. § 4.86 (2017). Once an acuity level is established for each ear, Table VII, Percentage Evaluations for Hearing Impairment, is used to determine the appropriate disability evaluation. The appropriate rating is determined based on a combination of the levels of hearing impairment established for each ear.

The Veteran underwent a July 2013 audiological examination. The examination revealed the following puretone thresholds, in decibels:




HERTZ



500
1000
2000
3000
4000
RIGHT
25
35
40
65
85
LEFT
30
40
45
80
90

His puretone average for the right ear was 56 dB; his puretone average for the left ear was 64 dB. 38 C.F.R. § 4.85(d) (2016). Speech recognition was 96 percent in the right ear and 98 percent in the left ear. 

Applying the findings of the examination to the rating criteria for hearing impairment, the Board finds that the criteria for a compensable evaluation for bilateral hearing loss have not been met. Considering that the Veteran's right ear manifested an average puretone threshold of 56 dB, with a 96 percent speech discrimination, reference to 38 C.F.R. § 4.85, Table VI, shows his right ear hearing loss was Level I impairment. With respect to his left ear, considering his left ear manifested an average puretone threshold of 64 dB, with an 98 percent speech discrimination, reference to 38 C.F.R. § 4.85, Table VI, shows his left ear hearing loss to be Level II impairment. Applying these results to Table VII, a noncompensable evaluation is assigned. 

The Veteran underwent another audiological examination in January 2017. The examination revealed the following puretone thresholds, in decibels:
	



HERTZ



500
1000
2000
3000
4000
RIGHT
25
35
45
70
85
LEFT
25
40
50
85
90

His puretone average for the right ear was 59 dB; his puretone average for the left ear was 66 dB. 38 C.F.R. § 4.85(d) (2017). Speech recognition was 96 percent in the right ear and left ear. 

Applying the findings of the examination to the rating criteria for hearing impairment, the Board finds that the criteria for a compensable evaluation for bilateral hearing loss have not been met. Considering that the Veteran's right ear manifested an average puretone threshold of 59 dB, with a 96 percent speech discrimination, reference to 38 C.F.R. § 4.85, Table VI, shows his right ear hearing loss was Level II impairment. With respect to his left ear, considering his left ear manifested an average puretone threshold of 66 dB, with a 96 percent speech discrimination, reference to 38 C.F.R. § 4.85, Table VI, shows his left ear hearing loss to be Level II impairment. Applying these results to Table VII, a noncompensable evaluation is assigned. 

The Board is limited in evaluating hearing loss to the mechanical application of the rating schedule under the specified testing methods. For example, any impact of the hearing loss on the Veteran's daily life cannot be accounted for outside the rating tables of 38 C.F.R. § 4.85. The noncompensable evaluation assigned for his bilateral hearing loss accurately reflects his disability picture as contemplated under the VA rating criteria throughout the rating period on appeal. 

Throughout the period on appeal, the manifestations of the service-connected bilateral hearing loss disability did not equate with, or more nearly approximate, the criteria for a compensable rating. The Board finds that a preponderance of the evidence is against a finding that the service-connected bilateral hearing loss disability warranted a compensable rating during the period on appeal. 

The Board is mindful that an audiologist must provide a description of the functional effects caused by a hearing loss disability. Martinak v. Nicholson, 21 Vet. App. 447 (2007). The July 2013 VA examiner noted that the Veteran's hearing loss did not impact his ordinary conditions of daily life including his ability to work. The January 2017 VA examiner indicated that the Veteran's hearing loss impacted his ordinary conditions of daily life including his ability to work. The Board finds these comments are sufficient to comply with the applicable VA policies. Martinak v. Nicholson, 21 Vet. App. 447 (2007) (VA audiologist's indication in report that Veteran's hearing loss affected his ability to sleep was sufficient to comply with requirements of VA's own internal guidance documents that VA audiologists describe the effects of a hearing disability on occupational functioning and daily activities). Additionally, the Board has considered lay statements from the Veteran attesting to the impact of his hearing loss. The Board finds that the functional effects of the Veteran's bilateral hearing loss disability are adequately addressed by the record.

The Board is sympathetic to the Veteran's position that a higher rating is warranted for his service-connected bilateral hearing loss. However, while the Veteran may have problems with his hearing, the audiometric examination results, as compared to the rating criteria, do not warrant a compensable rating during the period on appeal. Accordingly, the Board finds that the preponderance of the evidence is against the claim for a compensable schedular rating for bilateral hearing loss. 38 U.S.C. § 5107(b) (2012); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). 

III. TDIU prior to January 19, 2017

Total disability is considered to exist when there is any impairment which is sufficient to render it impossible for the average person to follow a substantially gainful occupation. 38 C.F.R. § 3.340(a)(1). TDIU is granted where a Veteran's service-connected disabilities are rated less than total, but prevent him from obtaining or maintaining all gainful employment for which his education and occupational experience would otherwise qualify him. 38 C.F.R. § 4.16 (2017). The Veteran was granted TDIU effective January 19, 2017 in a June 2017 rating decision. The Veteran service-connected disabilities meet the threshold schedular criteria for consideration of a TDIU since April 18, 2012 (his date of claim). 38 C.F.R. § 4.16(a).

Evidence of record reflects that the Veteran last engaged in substantially gainful employment in March 2010. See VA Form 21-8940. The evidence reflects that the Veteran suffers from service-connected ischemic heart disease, an adjustment disorder with depressed mood, peripheral neuropathy of the right upper extremity, peripheral neuropathy of the left upper extremity, diabetes mellitus type II, peripheral neuropathy of the left lower extremity, peripheral neuropathy of the right lower extremity, tinnitus and bilateral defective hearing. 

The Veteran has submitted a June 2016 evaluation by Dr. H-G. She noted that the Veteran could not sustain the stress from a competitive work environment or be expected to engage in gainful activity due to his adjustment disorder. Additionally, she noted that his ischemic heart disease, tinnitus, diabetes mellitus II and defective hearing loss, in turn, continue to manifest as an adjustment disorder. She noted consideration of the Veteran's VA examinations and VA treatment records and supporting medical literature. She concluded that it was her belief that the Veteran's ischemic heart disease, tinnitus, diabetes mellitus II and defective hearing are more likely than not causing his adjustment disorder and preventing him from maintaining substantially gainful full-time employment. Earlier in the report she notes that the severity of his symptom complex relates back to his original claim date of April 18, 2012. 
 
In light of the Veteran's occupational background and functional limitations, and giving him the benefit of the doubt, the Board finds that the Veteran's service-connected disabilities are sufficient to render him unable to obtain and maintain any form of substantially gainful employment in accordance with his occupational background and education level throughout the period on appeal.

Accordingly, based on all of the foregoing, the Board finds that entitlement to a TDIU is warranted, prior to January 19, 2017. 38 U.S.C. § 5107; 38 C.F.R. § 3.102.

IV. Service Connection

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. §§ 1110, 1131 (2012). Generally, the 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. § 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).

Acquired Psychiatric Disorder, 
Other than Adjustment Disorder with Depressed Mood 

The Veteran is currently service-connected for adjustment disorder with depressed mood associated with ischemic heart disease associated with herbicide exposure. He asserts that service connection is additionally warranted for posttraumatic stress disorder (PTSD). 

Service treatment records do not reflect treatment for an acquired psychiatric disability. A September 1964 separation examination noted a normal psychiatric clinical evaluation. Importantly, the Veteran denied depression or excessive worry, or nervous trouble of any sort, in a report of medical history completed at that time, providing factual evidence against his claim. 

The Board has also considered the statements of the Veteran regarding continuity of symptoms of his acquired psychiatric disability, other than adjustment disorder with depressed mood, since service. However, the Federal Circuit has held that the theory of continuity of symptomatology can be used only in cases involving those conditions explicitly recognized as chronic. 38 C.F.R. § 3.309(a). Although psychoses is a disease identified under § 3.309(a), the Veteran does not have this diagnosis. As the Veteran has not exhibited a psychiatric disability listed under § 3.309, continuity of symptomatology is simply not applicable in the present case.

Having determined that service connection based on the Veteran's alleged clinical history regarding onset and continuity of an acquired psychiatric disability, other than adjustment disorder with depressed mood, is inapplicable, the Board next considers that service connection may be granted when the evidence establishes a medical nexus between active duty service and current complaints. 

A September 2013 VA Disability Benefits Questionnaire (DBQ) was completed. The Veteran was diagnosed with adjustment disorder with mixed emotional features. The VA examiner noted that the Veteran's symptoms did not meet the diagnostic criteria for PTSD. An additional DBQ was completed in June 2016 by the Veteran's private treating practitioner. A diagnosis of adjustment disorder with mixed anxiety and depressed mood was provided. It was noted that the Veteran did not have more than one mental disorder diagnosed. The Veteran underwent an additional DBQ in January 2017. The Veteran was diagnosed with adjustment disorder with depressed mood. The VA examiner noted that the Veteran did not have more than one mental disorder diagnosed. 

The Veteran might sincerely believe that he has an acquired psychiatric disability, other than adjustment disorder with depressed mood, that is related to his active service, as a lay person he is not competent to relate any current acquired psychiatric diagnosis to his active service, to include any treatment therein, as that is outside the common knowledge of a lay person and would require medical expertise. Kahana v. Shinseki, 24 Vet. App. 428 (2011); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). In any event, his medical opinion is outweighed by the DBQs of record, which have all determined that the Veteran did not have PTSD and found that he only had one mental disability. The Board finds that the Veteran's acquired psychiatric symptoms are all already attributed to his already service-connected adjustment disorder with depressed mood. 

The Board thus finds that the preponderance of the evidence is against the claim and that entitlement to service connection for an acquired psychiatric disability, other than adjustment disorder with depressed mood, is not warranted. Therefore, the claim must be denied. 38 U.S.C. § 5107(b) (2002); Gilbert v. Derwinski, 1 Vet. App. 49 (1990).

Right Breast and Thyroid Disabilities

The Veteran asserts that he has a right breast disability and a thyroid disability related to service. 

As an initial matter, the Board notes that the service treatment records reflect no complaints of, treatment for, or a diagnosis related to his right breast or thyroid. Next, and more importantly, post-service evidence does not reflect complaints of problems associated with his right breast until 2010, when he sought treatment for a right breast with bloody nipple discharge. An ultrasound at that time was negative with no evidence of malignancy. With respect to his claim for a thyroid disability, treatment records first note hypothyroidism around 2004. Such tends to negate a finding for service connection based on direct service incurrence. The evidence clearly shows that the Veteran's right breast issues and thyroid problems did not develop until many years following separation from service. 

The Board has also considered the Veteran's statements regarding continuity of symptoms since service. However, the Federal Circuit has held that the theory of continuity of symptomatology can be used only in cases involving those conditions explicitly recognized as chronic 38 C.F.R. § 3.309(a). As the Veteran's right breast disability and thyroid disability are not listed under § 3.309(a), continuity of symptomatology is simply not applicable in the present case.

The Board next considers that service connection may be granted when the evidence establishes a medical nexus between active duty service and current complaints. 

The service and post-service evidence provide particularly negative evidence against these claims. The Board has closely reviewed the medical and lay evidence in the Veteran's claims file and finds no evidence that may serve as a medical nexus between the Veteran's service and his right breast disability or his thyroid disability. Although the Board recognizes that the Veteran is competent to report breast pain, the evidence in this case clearly demonstrates that his right breast disability and thyroid disability developed many years following separation from service. There is simply nothing in the record to support a finding that his right breast disability or thyroid disability began in or are otherwise in any way related to service. 

In light of the above discussion, the Board concludes that the preponderance of the evidence is against the claims for service connection for a right breast disability and a thyroid disability, and there is no doubt to be otherwise resolved. As such, the appeal is denied.

V. New and Material Evidence

The Veteran most recently filed requests to reopen his claims for entitlement to service connection for a back disability and leukocytosis/lymphoma in April 2012. 

At the time of the last final denial of the Veteran's claim for service connection for a back disability in July 2007, evidence of record included prior rating decisions and a VA examination. At the time of the last denial of the Veteran's claim for service connection for leukocytosis/lymphoma in July 2010, evidence of record included service treatment records, post service records and a July 2010 VA examination. 

Evidence associated with the claims file since the previous July 2007 and July 2010 denials includes statements from the Veteran's friends attesting to continuity of symptoms of back pain since service. The evidence additionally suggests that the Veteran suffers from lymphoma.

Based on a review of this new evidence, the Board finds that the new and material criteria under 38 C.F.R. § 3.156(a) have been satisfied, and the claims for service connection for a back disability and leukocytosis/lymphoma are reopened. 


ORDER

A rating in excess of 10 percent, prior to June 20, 2016, and a rating in excess of 20 percent thereafter, for service-connected diabetes mellitus type II with residuals, transient ischemic attack and erectile dysfunction, is denied.

A rating in excess of 30 percent prior to January 19, 2017, and a rating in excess of 60 percent thereafter, for service-connected ischemic heart disease associated with herbicide exposure is denied. 

A rating in excess of 10 percent for service-connected tinnitus is denied.

A compensable rating for service-connected bilateral defective hearing is denied.

Entitlement to a TDIU is granted, prior to January 19, 2017. 

Service connection for an acquired psychiatric disability, other than service-connected adjustment disorder with depressed mood associated with ischemic heart disease associated with herbicide exposure, is denied. 

Service connection for a right breast disability is denied.

Service connection for a thyroid disability is denied.

The claim for service connection for leukocytosis/lymphoma is reopened. 

The claim for service connection for a back disability is reopened. 


REMAND

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

Respiratory Disability- With respect to his claim for COPD, in May 2013, the Veteran underwent a VA examination that addressed his COPD. This examination is not adequate. Specifically, although the May 2013 VA examiner concluded that the Veteran's COPD was not related to his service-connected diabetes mellitus, the examiner did not discuss whether the Veteran's service-connected diabetes mellitus aggravated (worsened) his COPD. 38 C.F.R. § 3.310(b). Further, as additional records have since been associated with the claims file, the Board finds a new examination and opinion should be obtained. 

Leukocytosis/ Lymphoma- The Veteran underwent a lymphatic disorders examination in July 2010. After an examination, the Veteran was assigned a provisional diagnosis of lymphoma. The VA examiner stated that the Veteran continues to have the work-up for leukocytosis and lymph node enlargement but to date a definitive diagnosis has not been made. The Board has also considered a February 2008 VA psychology treatment record which noted the Veteran's reports that he had recently been diagnosed with non-Hodgkin's lymphoma. A confirmed diagnosis has not been provided. 

Significantly, the Veteran's Agent Orange exposure while serving in the Republic of Vietnam during the Vietnam era has been conceded. Non-Hodgkin's lymphoma is listed among the diseases that are presumed to be related to herbicide exposure.38 C.F.R. § 3.309(e). As the record is unclear as to whether the Veteran is currently diagnosed with a lymphatic disorder, the Board finds that an additional VA examination and opinion should be obtained. 

Back Disability- The Veteran asserts that he has suffered from back problems since service. He has submitted several statements from his friends attesting that he exhibited back problems since shortly after service. The Veteran continues to suffer from a back disability. 

Based on the credible statements submitted by the Veteran and his friends regarding his longstanding back problems and his current allegations of continuity of symptomatology since service, the Board finds that a remand for a VA examination and opinion regarding the claim of service connection for a back disability is necessary. 38 U.S.C. § 5103A(d)(2); McLendon v. Nicholson, 20 Vet. App. 79 (2006).

Accordingly, the case is REMANDED for the following actions:

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

1. Arrange for the Veteran to undergo VA examinations to determine the nature and etiology of any respiratory, leukocytosis/lymphoma, and back disabilities found to be present, and their relationship, if any, to his military service or service-connected disability. 

Any necessary testing should be conducted. The claims file must be reviewed in conjunction with such examinations, and the examiners must indicate that such review occurred. 

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

(a) Whether it is at least as likely as not (i.e., there is at least a 50% probability) that any respiratory disability, to include COPD, had its onset in service or is otherwise medically related to in-service injury or disease. 

(b) Whether it is at least as likely as not (a probability of 50 percent or greater) that the Veteran's respiratory disability, to include COPD, is caused by his service-connected diabetes mellitus, type II.  

(c) Whether it is at least as likely as not (a probability of 50 percent or greater) that the Veteran's respiratory disability, to include COPD, is aggravated by his service-connected diabetes mellitus, type II. 

The term "aggravated" in the above context refers to a permanent worsening of the underlying condition, as contrasted to temporary or intermittent flare-ups of symptomatology which resolve with return to the baseline level of disability. 
   
Leukocytosis/Lymphoma examination- The VA examiner is asked to address the following questions:

(a) Is the Veteran diagnosed with non-Hodgkin's lymphoma?

(b) Whether it is at least as likely as not (i.e., there is at least a 50% probability) that any leukocytosis/ lymphoma disability had its onset in service or is otherwise medically related to in-service injury or disease. 

Back examination- The VA examiner is asked to address the following question:
   
Whether it is at least as likely as not (i.e., there is at least a 50% probability) that any back disability had its onset in service or is otherwise medically related to in-service injury or disease. 

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. 

2. After completing the above, and any other development as may be indicated by any response received as a consequence of the actions taken in the preceding paragraphs, the Veteran's claims should be readjudicated based on the entirety of the evidence. If the claims remain denied, the Veteran and his representative should be issued a supplemental statement of the case. An appropriate period of time should be allowed for response. 

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. §§ 5109B, 7112 (2012).



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


Department of Veterans Affairs