Citation Nr: 1801045	
Decision Date: 01/09/18    Archive Date: 01/19/18

DOCKET NO.  14-21 776	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Detroit, Michigan


THE ISSUES

1.  Basic eligibility for nonservice-connected pension benefits.  

2.  Entitlement to service connection for a bilateral eye disability.  

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

4.  Entitlement to service connection for a bilateral foot disability, to include flat feet, chronic corns, and bone spurs.  

5.  Entitlement to service connection for scars, to include the right side of the neck and left jaw.  

6.  Entitlement to service connection for arthritis, to include the arms, hands, back, legs, and feet. 

7.  Entitlement to service connection for lung cancer.  

8.  Entitlement to service connection for sleep apnea.  

9.  Entitlement to service connection for tinnitus.  

10.  Entitlement to service connection for sinusitis.  

11.  Entitlement to service connection for fibromyalgia, to include of the arms, hands, legs, and feet with dyspnea.  

12.  Entitlement to service connection for a neck disability, to include arthritis, disc replacement, and fused vertebrae.  

13.  Entitlement to service connection for hypertension.  

14.  Entitlement to service connection for an acquired psychiatric disorder, to include posttraumatic stress disorder (PTSD), depressive disorder, and anxiety disorder.  

15.  Entitlement to total disability based on individual employability (TDIU).  


REPRESENTATION

Veteran represented by:	The American Legion


WITNESS AT HEARING ON APPEAL

The Veteran


ATTORNEY FOR THE BOARD

J.A. Gelber, Associate Counsel


INTRODUCTION

The Veteran served on active duty from January 1976 to August 1979.  The Veteran had an additional period of service from August 1979 to January 1982; however, the Veteran received a discharge under other than honorable conditions for the latter period of service, which was determined to not constitute active duty service for VA compensation purposes.  

These matters come before the Board of Veterans' Appeals (Board) on appeal from a March 2011 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO).  

In January 2017, the Veteran testified before the undersigned at a Board hearing in Detroit, Michigan.  A transcript of that hearing has been associated with the virtual file and reviewed. 

The Veteran claimed service connection for replaced discs and fused vertebrae.  The evidence demonstrates a 1999 procedure in which the cervical discs were replaced and vertebrae were fused together; however, the procedure was performed to treat the Veteran's neck symptoms.  Additionally, the record contains diagnoses of a cervical disc disorder and arthritis.  Accordingly, the Board has recharacterized and broadened the claim of service connection to encompass all potential disorders which may be causing the symptoms claimed by the Veteran and which may have led to the disc replacement and vertebrae fusion procedure.  See Clemons v. Shinseki, 23 Vet. App. 1, 4-5 (2009) (finding that what constitutes a claim is not limited by a lay veteran's assertion of his condition in the application, but must be construed based on the reasonable expectations of the non-expert claimant and the evidence developed in processing the claim).  

In June 2008 VAF 21-526, the Veteran submitted a claim of service connection for a dental disorder (to include jaw pain, missing teeth, and gum disease), and in May 2009 (VAF 21-4138) submitted a claim of service connection for asbestosis.  However, these claims have not been adjudicated by the Agency of Original Jurisdiction (AOJ).  Therefore, the Board does not have jurisdiction over them, and they are referred to the AOJ for appropriate action.  38 C.F.R. § 19.9(b) (2017). 

The issues of service connection for arthritis, fibromyalgia, a neck disability, a bilateral knee disability, a bilateral foot disability, a bilateral eye disability, tinnitus, sinusitis, lung cancer, sleep apnea, hypertension, scars, and an acquired psychiatric disorder, and TDIU are addressed in the REMAND portion of the decision below and are REMANDED to the AOJ.


FINDING OF FACT

The Veteran did not serve in the active military, naval, or air service during a period of war.  


CONCLUSION OF LAW

The criteria for basic eligibility for nonservice-connected disability pension benefits have not been met. 38 U.S.C. §§ 1501, 1521 (2012); 38 C.F.R. §§ 3.2, 3.3 (2017).


REASONS AND BASES FOR FINDING AND CONCLUSION

I.  Duties to Notify and Assist (Veterans Claims Assistance Act of 2000 (VCAA))

When the law, and not the evidence, is dispositive of the claim, the VCAA is not applicable.  38 C.F.R. § 3.159(b)(3)(ii); see Mason v. Principi, 16 Vet. App. 129, 132 (2002) (finding that the VCAA is not applicable to a claim for nonservice-connected pension when the claimant did not serve on active duty during a period of war).  As the law is dispositive with regard to the pension issue, the VCAA is not applicable.


II.  Nonservice-Connected Pension

The Veteran seeks entitlement to nonservice-connected pension benefits.  By statute, VA shall pay to each veteran of a period of war who meets the service requirements specified, and who is permanently and totally disabled from a nonservice-connected disability not the result of the veteran's willful misconduct, 
a pension at the rate prescribed.  38 U.S.C. § 1521; see 38 C.F.R. § 3.3.  

A veteran meets the service requirements for pension if he or she served in active military, naval, or air service (1) for 90 days or more during a period of war; 
(2) during a period of war and was discharged or released from service for a service-connected disability; (3) for a period of 90 consecutive days or more and such period began or ended during a period of war; or (4) for an aggregate of 
90 days or more in two or more separate periods of service during more than one period of war. 38 U.S.C. § 1521(j); 38 C.F.R. § 3.3(a)(3).  

The term "period of war" for pension purposes means the Mexican Border Period, World War I, World War II, the Korean conflict, the Vietnam era, the Persian Gulf War, and the period beginning on the date of any future declaration of War by the Congress and ending on the date prescribed by Presidential proclamation or concurrent resolution of the Congress.  38 U.S.C. § 1501(4); 38 C.F.R. § 3.2.  
Most pertinent to this case, the Vietnam era is defined as the period beginning on February 28, 1961, and ending on May 7, 1975, for Veterans who served in the Republic of Vietnam during that period.  In all other cases, the wartime period for the Vietnam era is defined as beginning on August 5, 1964, and ending on May 7, 1975.  The term "Persian Gulf War" means the period beginning on August 2, 1990, and ending on the date thereafter prescribed by Presidential proclamation or by law.  38 U.S.C. § 101(29), (33); 38 C.F.R. § 3.2(f?), (i).

Based on a review of the record, the Board finds that the criteria for nonservice-connected pension benefits have not been met because the Veteran did not serve during a period of war.  See 38 U.S.C.A. §§ 1501, 1521; 38 C.F.R. §§ 3.2, 3.3.  

The Veteran's DD 214 forms show that the Veteran had active duty from January 1976 to August 1979, with an additional period of service from August 1979 to January 1982; however, the Veteran received a discharge under other than honorable conditions for the latter period of service, which was determined to not constitute active duty for VA compensation purposes.  In any event, the service record clearly shows that the Veteran does not have active military service during a period of war (including his second period of service which was found not to constitute active duty service for VA compensation purposes), as the Veteran served after the Vietnam era and before the Persian Gulf War period.  See 38 C.F.R. § 3.2.  Accordingly, in this case, the Veteran's service does not meet the threshold criteria for basic eligibility for nonservice-connected pension benefits.  38 U.S.C. § 1521(j); 38 C.F.R. § 3.3.

Where the service department records fail to show threshold eligibility, the claim lacks legal merit or legal entitlement, and must be denied as a matter of law.  Because the Veteran's service does not meet the criteria described, he does not meet the basic eligibility requirements for nonservice-connected pension, and the claim must be denied as a matter of law.  


ORDER

Basic eligibility for nonservice-connected pension benefits is denied.


REMAND

A letter regarding VA's duties to notify and assist was sent to the Veteran in December 2008, however it was returned as undeliverable.  The Board makes no finding in regards to whether the duty to notify was satisfied, but nevertheless directs the AOJ to resend the Veteran a letter regarding VA's duty to assist.  

The Veteran has stated that he received VA treatment from 1984 to present at 
VA medical facilities in Fargo, North Dakota; Minneapolis, Minnesota; New Port Richey, Florida; and Tampa, Florida, as well as at the Beaumont Medical Center.  He also testified that he received treatment at the medical facility in Groton, Connecticut while in service.  The virtual file contains VA treatment records from April 2006 to August 2009 from VA medical systems in Alabama and Michigan.  Accordingly, the AOJ should obtain all outstanding VA treatment records identified by the Veteran.  

In January 2017, the Veteran testified that he is in receipt of Social Security Agency (SSA) disability benefits; however, SSA records have not been associated with the virtual file.  The AOJ should obtain all SSA records for the Veteran.  

In January 2017, the Veteran testified that his military occupational specialty involved crawling while moving boxing weighing 70 pounds, and that this led to arthritis, fibromyalgia, and bilateral knee disabilities.  He also testified that in October 1978 he slammed his head into the wall due to a jammed submarine dive, which led to problems with his neck and eyes.  The Veteran claims that his feet disabilities stem from an incident during boot camp when he experienced severe foot pain and was told his arch had fallen.  The Veteran contends that his psychiatric disorder is due to in-service racial discrimination, as well as guilt due to his closest friends dying in a drunken driving accident during service.  He also testified that he began experiencing chest pain in service and x-rays revealed a spot on his lower lung, which turned out to be lung cancer.  

Regarding his claims for tinnitus and hypertension, he testified that he noticed his ears ringing in service and that he was diagnosed with hypertension in service.  Accordingly, the Board finds that the evidence indicates a possible nexus between his claimed disabilities and service.  See McLendon v. Nicholson, 20 Vet. App. 79, 83 (2006) (stating that "[t]his is a low threshold" for meeting the requirement to trigger VA's duty to assist to provide an examination).  Accordingly, the Veteran should be afforded examinations to determine the etiology of the claimed disorders.  

In August 2010, a VA examiner declined to give an opinion as to the etiology of tinnitus without resorting to mere speculation because she was unable to obtain valid reliable threshold data.  Accordingly, the Board finds the opinion to be inadequate and the AOJ should cure any identified deficiencies and obtain a new nexus opinion supported by a sufficient rationale.  See Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007); Sharp v. Shulkin, 29 Vet. App. 26, 33 (2017).

In September 2010, a VA examiner opined that it is not likely that sinusitis or arthritis of the left hip and left ankle are related to his period of active service.  In support, the VA examiner cited to the lack of related problems in post-service medical records.  However, as previously noted, it appears that there are outstanding post-service treatment records which have not been associated with the virtual file.  Additionally, the VA examiner could not address the Veteran's January 2017 testimony and did not provide an adequate rationale in support of the opinions.  See Stefl, 21 Vet. App. at 124.  

The AOJ should also attempt to verify the Veteran's statement that two of his friends and co-servicemembers died in a drunken driving accident during service.  

The Veteran contends that he is unable to secure and maintain gainful employment due, at least in part, to the claimed disabilities currently on appeal.  The Board finds that the Veteran's claim of entitlement to TDIU is inextricably intertwined with the service connection claims on appeal, and will defer consideration of the TDIU matter.  See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991) (stating that two issues are "inextricably intertwined" when they are so closely tied together that a final Board decision on one issue cannot be rendered until the other issue has been considered).

Accordingly, the case is REMANDED for the following actions:

1.  Notify the Veteran of the information and evidence not of record that is necessary to substantiate his claims and indicate which information and evidence VA will obtain and which information and evidence the Veteran is expected to provide.   

2.  Request that the Veteran identify all VA medical facilities from which he has received treatment and the dates of treatment.  Then, obtain and associate with the virtual file all outstanding VA treatment records.  Specifically, request treatment records from the Beaumont Medical Center and VA medical facilities in Fargo, North Dakota; Minneapolis, Minnesota; New Port Richey, Florida; and Tampa, Florida.  Also request in-service treatment records from the medical facility in Groton, Connecticut.  If such records are missing or are otherwise unavailable, this fact should be documented and a formal finding of unavailability should be made with notice to the Veteran.  

3.  Obtain and associate with the virtual file the Veteran's SSA records.  Requests for federal records should continue until the records are obtained or deemed unavailable.  If such records are missing or are otherwise unavailable, this fact should be documented and a formal finding of unavailability should be made with notice to the Veteran.  

4.  Through all appropriate sources seek to verify whether the two individuals identified by the Veteran died in a drunken driving during his period of active service.  If those efforts prove unsuccessful, prepare a memorandum of unavailability and associate it with the virtual file.

5.  After completing directives #1-3, schedule the Veteran for an examination with an appropriate examiner to provide an opinion as to the etiology of the following claims:  arthritis, fibromyalgia, a neck disability, and a bilateral knee disability.  The examiner should review the virtual file, including a copy of this Remand.  
The examiner should address the following:  

a.  Identify all neck/cervical spine disorders that are currently present (or present during the period of June 5, 2008, to present).  Specifically, the examiner should identify any disorders which caused the Veteran to need a cervical disc replacement and vertebral fusion procedure in 1999.  

If the examiner disagrees with a diagnosis already established in the medical records, he/she should so state and explain why.  The Board notes that the record contains diagnoses of cervical disc disorder and arthritis of the cervical spine.  

b.  For all diagnosed disorders of the neck/cervical spine, is it at least as likely as not (50 percent or greater probability) that the disorder manifested during or is otherwise related to the Veteran's period of active service (January 8, 1976, to August 20, 1979)?  

c.  Whether it is at least as likely as not (50 percent or greater probability) that arthritis of the cervical spine manifested to a compensable degree within one year of August 20, 1979.  

d.  Identify all disorders related to the Veteran's back/lumbar spine symptoms that are currently present 
(or present during the period of June 5, 2008, to present).  Specifically, the examiner should state whether arthritis is present.  

If the examiner disagrees with a diagnosis already established in the medical records, he/she should so state and explain why.  The Board notes that the record contains a diagnosis of degenerative disc disease of the lumbar spine.  

e.  For all diagnosed disorders of the back/lumbar spine, is it at least as likely as not (50 percent or greater probability) that the disorder manifested during or is otherwise related to the Veteran's period of active service (January 8, 1976, to August 20, 1979)?  

f.  If arthritis of the back/lumbar spine is diagnosed, is it at least as likely as not (50 percent or greater probability) that arthritis manifested to a compensable degree within one year of August 20, 1979?  

g.  For all diagnosed disorders of the back/lumbar spine, is it at least as likely as not (50 percent or greater probability) that the disorder was caused by the Veteran's neck disorder, to include the 1999 disc replacement and vertebral fusion procedure?  

h.  For all diagnosed disorders of the back/lumbar spine, is it at least as likely as not (50 percent or greater probability) that the disorder has been aggravated (i.e., worsened beyond the normal progression of that disease) by the Veteran's neck disorder, to include the 1999 disc replacement and vertebral fusion procedure?  

The term "aggravated" refers to a worsening of the underlying condition beyond the natural progression of the disease, as opposed to temporary or intermittent flare-ups or symptoms that resolve with return to the baseline level of disability.  

If aggravation is found, please state, to the extent possible, the baseline level of disability prior to aggravation.  

i.  Identify all disorders related to the Veteran's bilateral hand symptoms that are currently present (or present during the period of June 5, 2008, to present).  Specifically, the examiner should state whether arthritis and/or fibromyalgia are present.  

If the examiner disagrees with a diagnosis already established in the medical records, he/she should so state and explain why.  The Board notes that the record contains a diagnosis of fibromyalgia.  

j.  For all diagnosed disorders of the bilateral hands, is it at least as likely as not (50 percent or greater probability) that the disorder manifested during or is otherwise related to the Veteran's period of active service (January 8, 1976, to August 20, 1979)?  

k.  If arthritis of the bilateral hands is diagnosed, is it at least as likely as not (50 percent or greater probability) that arthritis manifested to a compensable degree within one year of August 20, 1979?  

l.  Identify all disorders related to the Veteran's bilateral upper extremities that are currently present (or present during the period of June 5, 2008, to present).  Specifically, the examiner should state whether arthritis and/or fibromyalgia are present.  

If the examiner disagrees with a diagnosis already established in the medical records, he/she should so state and explain why.  The Board notes that the record contains a diagnosis of fibromyalgia.

m.  For all diagnosed disorders of the bilateral upper extremities, is it at least as likely as not (50 percent or greater probability) that the disorder manifested during or is otherwise related to the Veteran's period of active service (January 8, 1976, to August 20, 1979)?  

n.  If arthritis of the bilateral upper extremities is diagnosed, is it at least as likely as not (50 percent or greater probability) that arthritis manifested to a compensable degree within one year of August 20, 1979?  

o.  Identify all disorders related to the Veteran's bilateral lower extremities that are currently present (or present during the period of June 5, 2008, to present).  Specifically, the examiner should state whether arthritis and/or fibromyalgia are present.  

If the examiner disagrees with a diagnosis already established in the medical records, he/she should so state and explain why.  The Board notes that the record contains a diagnosis of fibromyalgia.

p.  For all diagnosed disorders of the bilateral lower extremities, is it at least as likely as not (50 percent or greater probability) that the disorder manifested during or is otherwise related to the Veteran's period of active service (January 8, 1976, to August 20, 1979)?  

q.  If arthritis of the bilateral lower extremities is diagnosed, is it at least as likely as not (50 percent or greater probability) that arthritis manifested to a compensable degree within one year of August 20, 1979?  

r.  Identify all disorders of the bilateral knees that are currently present (or present during the period of June 5, 2008, to present).  

If the examiner disagrees with a diagnosis already established in the medical records, he/she should so state and explain why.  

s.  For all diagnosed disorders of the bilateral knees, is it at least as likely as not (50 percent or greater probability) that the disorder manifested during or is otherwise related to the Veteran's period of active service (January 8, 1976, to August 20, 1979)?  

t.  If arthritis of the bilateral knees is diagnosed, is it at least as likely as not (50 percent or greater probability) that arthritis manifested to a compensable degree within one year of August 20, 1979?  

A comprehensive rationale for all opinions is to be provided.  All pertinent evidence, including both lay and medical, should be considered.  If an opinion cannot be given without resorting to speculation, the examiner should explain why and state whether the need to speculate is due to a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts), the record (additional facts are required), or the examiner (does not have the knowledge or training).  

If the inability to provide an opinion without resorting to speculation is due to a deficiency in the record (additional facts are required), the AOJ should develop the claim to the extent it is necessary to cure any such deficiency.  If the inability to provide an opinion is due to the examiner's lack of requisite knowledge or training, then the AOJ should obtain an opinion from a medical professional who has the knowledge and training needed to render such an opinion.  

6.  After completing directives #1-3, schedule the Veteran for an examination with an appropriate examiner to provide an opinion as to the etiology of any diagnosed disorders of the bilateral feet.  The examiner should review the virtual file, including a copy of this Remand.  The examiner should address the following:  

a.  Identify all disorders of the bilateral feet that are currently present (or present during the period of June 5, 2008, to present).  Specifically, the examiner should state whether pes planus, chronic corns, bone spurs, arthritis, and/or fibromyalgia are present.  

If the examiner disagrees with a diagnosis already established in the medical records, he/she should so state and explain why.  The Board notes that the record contains diagnoses of bone spurs and fibromyalgia.  

b.  For all diagnosed disorders of the bilateral feet, is it at least as likely as not (50 percent or greater probability) that the disorder manifested during or is otherwise related to the Veteran's period of active service (January 8, 1976, to August 20, 1979)?  

c.  If arthritis of the bilateral feet is diagnosed, is it at least as likely as not (50 percent or greater probability) that arthritis manifested to a compensable degree within one year of August 20, 1979?  

A comprehensive rationale for all opinions is to be provided.  All pertinent evidence, including both lay and medical, should be considered.  If an opinion cannot be given without resorting to speculation, the examiner should explain why and state whether the need to speculate is due to a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts), the record (additional facts are required), or the examiner (does not have the knowledge or training).  

If the inability to provide an opinion without resorting to speculation is due to a deficiency in the record (additional facts are required), the AOJ should develop the claim to the extent it is necessary to cure any such deficiency.  If the inability to provide an opinion is due to the examiner's lack of requisite knowledge or training, then the AOJ should obtain an opinion from a medical professional who has the knowledge and training needed to render such an opinion.  

7.  After completing directives #1-3, schedule the Veteran for an examination with an appropriate examiner to provide an opinion as to the etiology of any diagnosed disorders of the bilateral eyes.  The examiner should review the virtual file, including a copy of this Remand.  The examiner should address the following:  

a.  Identify all disorders of the bilateral eyes that are currently present (or present during the period of June 5, 2008, to present).  Specifically, the examiner should state whether cataracts, blurred vision, retina damage, and/or nerve damage are present.  

If the examiner disagrees with a diagnosis already established in the medical records, he/she should so state and explain why.  The Board notes that the record contains diagnoses of cataracts and hyperopia/presbyopia.  

b.  For all diagnosed disorders of the bilateral eyes, is it at least as likely as not (50 percent or greater probability) that the disorder manifested during or is otherwise related to the Veteran's period of active service (January 8, 1976, to August 20, 1979)?  

A comprehensive rationale for all opinions is to be provided.  All pertinent evidence, including both lay and medical, should be considered.  If an opinion cannot be given without resorting to speculation, the examiner should explain why and state whether the need to speculate is due to a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts), the record (additional facts are required), or the examiner (does not have the knowledge or training).  

If the inability to provide an opinion without resorting to speculation is due to a deficiency in the record (additional facts are required), the AOJ should develop the claim to the extent it is necessary to cure any such deficiency.  If the inability to provide an opinion is due to the examiner's lack of requisite knowledge or training, then the AOJ should obtain an opinion from a medical professional who has the knowledge and training needed to render such an opinion.  

8.  After completing directives #1-3, schedule the Veteran for an examination with a VA audiologist to provide an opinion as to the etiology of tinnitus.  The examiner should review the virtual file, including a copy of this Remand.  The examiner should address the following:  

a.  Whether it is at least as likely as not (50 percent or greater probability) that tinnitus manifested during or is otherwise related to the Veteran's period of active service (January 8, 1976, to August 20, 1979).  

b.  Whether it is at least as likely as not (50 percent or greater probability) that tinnitus manifested to a compensable degree within one year of August 20, 1979.

A comprehensive rationale for all opinions is to be provided.  All pertinent evidence, including both lay and medical, should be considered.  If an opinion cannot be given without resorting to speculation, the examiner should explain why and state whether the need to speculate is due to a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts), the record (additional facts are required), or the examiner (does not have the knowledge or training).  

If the inability to provide an opinion without resorting to speculation is due to a deficiency in the record (additional facts are required), the AOJ should develop the claim to the extent it is necessary to cure any such deficiency.  If the inability to provide an opinion is due to the examiner's lack of requisite knowledge or training, then the AOJ should obtain an opinion from a medical professional who has the knowledge and training needed to render such an opinion.

9.  After completing directives #1-3, schedule the Veteran for an examination with an appropriate examiner to provide an opinion as to the etiology of sinusitis.  The examiner should review the virtual file, including a copy of this Remand.  The examiner should address the following:  

Whether it is at least as likely as not (50 percent or greater probability) that sinusitis manifested during or is otherwise related to the Veteran's period of active service (January 8, 1976, to August 20, 1979).  

A comprehensive rationale for all opinions is to be provided.  All pertinent evidence, including both lay and medical, should be considered.  If an opinion cannot be given without resorting to speculation, the examiner should explain why and state whether the need to speculate is due to a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts), the record (additional facts are required), or the examiner (does not have the knowledge or training).  

If the inability to provide an opinion without resorting to speculation is due to a deficiency in the record (additional facts are required), the AOJ should develop the claim to the extent it is necessary to cure any such deficiency.  If the inability to provide an opinion is due to the examiner's lack of requisite knowledge or training, then the AOJ should obtain an opinion from a medical professional who has the knowledge and training needed to render such an opinion.

10.  After completing directives #1-3, schedule the Veteran for an examination with an appropriate examiner to provide an opinion as to the etiology of lung cancer, if diagnosed.  The examiner should review the virtual file, including a copy of this Remand.  The examiner should address the following:  

a.  State whether lung cancer (or any residuals) is currently present (or present during the period of May 28, 2009, to present).  

If the examiner disagrees with a diagnosis already established in the medical records, he/she should so state and explain why.  

b.  If lung cancer (or any residuals) is diagnosed, is it at least as likely as not (50 percent or greater probability) that the disorder manifested during or is otherwise related to the Veteran's period of active service (January 8, 1976, to August 20, 1979), to include due to claimed asbestos exposure?  

A comprehensive rationale for all opinions is to be provided.  All pertinent evidence, including both lay and medical, should be considered.  If an opinion cannot be given without resorting to speculation, the examiner should explain why and state whether the need to speculate is due to a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts), the record (additional facts are required), or the examiner (does not have the knowledge or training).  

If the inability to provide an opinion without resorting to speculation is due to a deficiency in the record (additional facts are required), the AOJ should develop the claim to the extent it is necessary to cure any such deficiency.  If the inability to provide an opinion is due to the examiner's lack of requisite knowledge or training, then the AOJ should obtain an opinion from a medical professional who has the knowledge and training needed to render such an opinion.

11.  After completing directives #1-3, schedule the Veteran for an examination with an appropriate examiner to provide an opinion as to the etiology of sleep apnea, if diagnosed.  The examiner should review the virtual file, including a copy of this Remand.  The examiner should address the following:  

a.  State whether sleep apnea is currently present (or present during the period of June 5, 2008, to present).  

If the examiner disagrees with a diagnosis already established in the medical records, he/she should so state and explain why.  

b.  If sleep apnea is diagnosed, is it at least as likely as not (50 percent or greater probability) that the disorder manifested during or is otherwise related to the Veteran's period of active service (January 8, 1976, to August 20, 1979), to include due to claimed asbestos exposure?  

A comprehensive rationale for all opinions is to be provided.  All pertinent evidence, including both lay and medical, should be considered.  If an opinion cannot be given without resorting to speculation, the examiner should explain why and state whether the need to speculate is due to a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts), the record (additional facts are required), or the examiner (does not have the knowledge or training).  

If the inability to provide an opinion without resorting to speculation is due to a deficiency in the record (additional facts are required), the AOJ should develop the claim to the extent it is necessary to cure any such deficiency.  If the inability to provide an opinion is due to the examiner's lack of requisite knowledge or training, then the AOJ should obtain an opinion from a medical professional who has the knowledge and training needed to render such an opinion.

12.  After completing directives #1-3, schedule the Veteran for an examination with an appropriate examiner to provide an opinion as to the etiology of hypertension.  The examiner should review the virtual file, including a copy of this Remand.  The examiner should address the following:  

a.  Whether it is at least as likely as not (50 percent or greater probability) that hypertension manifested during or is otherwise related to the Veteran's period of active service (January 8, 1976, to August 20, 1979).  

b.  Whether it is at least as likely as not (50 percent or greater probability) that hypertension manifested to a compensable degree within one year of August 20, 1979.

A comprehensive rationale for all opinions is to be provided.  All pertinent evidence, including both lay and medical, should be considered.  If an opinion cannot be given without resorting to speculation, the examiner should explain why and state whether the need to speculate is due to a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts), the record (additional facts are required), or the examiner (does not have the knowledge or training).  

If the inability to provide an opinion without resorting to speculation is due to a deficiency in the record (additional facts are required), the AOJ should develop the claim to the extent it is necessary to cure any such deficiency.  If the inability to provide an opinion is due to the examiner's lack of requisite knowledge or training, then the AOJ should obtain an opinion from a medical professional who has the knowledge and training needed to render such an opinion.

13.  After completing directives #1-3, schedule the Veteran for an examination with an appropriate examiner to provide an opinion as to the etiology of scars, if diagnosed.  The examiner should review the virtual file, including a copy of this Remand.  The examiner should address the following:  

a.  State whether scars are currently present (or present during the period of June 5, 2008, to present) on the right side of the neck and/or left jaw.  

If the examiner disagrees with a diagnosis already established in the medical records, he/she should so state and explain why.  

b.  If scars are present, is it at least as likely as not 
(50 percent or greater probability) that the scars manifested during or are otherwise related to the Veteran's period of active service (January 8, 1976, to August 20, 1979)?  

A comprehensive rationale for all opinions is to be provided.  All pertinent evidence, including both lay and medical, should be considered.  If an opinion cannot be given without resorting to speculation, the examiner should explain why and state whether the need to speculate is due to a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts), the record (additional facts are required), or the examiner (does not have the knowledge or training).  

If the inability to provide an opinion without resorting to speculation is due to a deficiency in the record (additional facts are required), the AOJ should develop the claim to the extent it is necessary to cure any such deficiency.  If the inability to provide an opinion is due to the examiner's lack of requisite knowledge or training, then the AOJ should obtain an opinion from a medical professional who has the knowledge and training needed to render such an opinion.

14.  After completing directives #1-4, request an opinion from a VA psychologist or psychiatrist as to the nature and etiology of any current psychiatric disorder(s).  The examiner should review the virtual file, including a copy of this Remand.  The examiner should address the following:  

a.  Identify all acquired psychiatric disorders that are currently present (or present during the period of June 5, 2008, to present).  Specifically, the examiner should state whether posttraumatic stress disorder (PTSD), depressive disorder, and/or anxiety disorder are present.  

For each diagnosis, the examiner should clearly explain how the diagnostic criteria have been met under the Diagnostic and Statistical Manual of Mental Disorders, Fifth Edition (DSM-5).  If the examiner disagrees with a diagnosis already established in the medical records, he/she should so state and explain why.  The Board notes that the record contains diagnoses depressive disorder, anxiety disorder, and antisocial personality disorder.  

b.  If the Veteran is diagnosed with PTSD, is it at least as likely as not (50 percent or greater probability) that PTSD manifested during service or is otherwise related to the Veteran's period of active service (January 8, 1976, to August 20, 1979), to include due to racial discrimination and/or the death of two close friends?  

c.  For any diagnosed psychiatric disorder other than PTSD, to include depressive disorder and anxiety disorder, is it at least as likely as not (50 percent or greater probability) that the disorder manifested during or is otherwise related to the Veteran's period of active service (January 8, 1976, to August 20, 1979)?  

A comprehensive rationale for all opinions is to be provided.  All pertinent evidence, including both lay and medical, should be considered.  If an opinion cannot be given without resorting to speculation, the examiner should explain why and state whether the need to speculate is due to a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts), the record (additional facts are required), or the examiner (does not have the knowledge or training).  

If the inability to provide an opinion without resorting to speculation is due to a deficiency in the record (additional facts are required), the AOJ should develop the claim to the extent it is necessary to cure any such deficiency.  If the inability to provide an opinion is due to the examiner's lack of requisite knowledge or training, then the AOJ should obtain an opinion from a medical professional who has the knowledge and training needed to render such an opinion.

15.  Thereafter, if any benefit sought on appeal remains denied, issue a supplemental statement of the case.  Then, return the case to the Board, if otherwise in order.


The Veteran 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).




______________________________________________
Paul Sorisio
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs