Citation Nr: 1801763 Decision Date: 01/10/18 Archive Date: 01/23/18 DOCKET NO. 16-35 153 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Houston, Texas THE ISSUES 1. Entitlement to an increased evaluation of tinnitus, currently evaluated as 10 percent disabling. 2. Entitlement to service connection for a right shoulder condition. 3. Entitlement to service connection for pes planus. 4. Entitlement to service connection for a lower back condition, to include as secondary to pes planus. 5. Entitlement to service connection for a neck condition, to include as secondary to his lower back condition. 6. Entitlement to an increased evaluation of bilateral hearing loss, currently evaluated as 10 percent disabling. 7. Entitlement to service connection for an acquired psychiatric disorder. 8. Entitlement to service connection for erectile dysfunction, to include as secondary to an acquired psychiatric disorder. 9. Entitlement to service connection for head trauma, to include as secondary to an acquired psychiatric disorder. 10. Entitlement to service connection for scars, to include as secondary to head trauma. 11. Entitlement to service connection for headaches as secondary to head trauma. 12. Entitlement to service connection for gastroesophageal reflux disease (GERD) and hiatal hernia. 13. Entitlement to service connection for sleep disorder. 14. Entitlement to service connection for a pulmonary condition. 15. Entitlement to service connection for a prostate condition, to include as secondary to herbicide exposure. 16. Entitlement to service connection for a heart condition, to include as secondary to herbicide exposure. 17. Entitlement to service connection for hypertension, to include as secondary to herbicide exposure. REPRESENTATION Appellant represented by: John S. Berry, Esquire ATTORNEY FOR THE BOARD B. Gabay INTRODUCTION The Veteran served on active duty in the United States Navy from June 1964 to June 1968. The matters of increased ratings for tinnitus and bilateral hearing loss, as well as service connection for pes planus, hypertension, GERD and hiatal hernia, breathing problems, sleep disorder, lower back condition, acquired psychiatric disorder, head trauma, scars, and headaches, come before the Board of Veterans Appeals (Board) on appeal from a May 2013 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Houston, Texas. The matters of service connection for erectile dysfunction, heart condition, prostate condition, neck condition, and right shoulder condition come before the Board on appeal from a March 2014 rating decision by the Houston RO. 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 bilateral hearing loss, acquired psychiatric disorder, erectile dysfunction, head trauma, head scarring, headaches, GERD and hiatal hernia, sleep disorder, pulmonary condition, prostate condition, heart condition, and hypertension are addressed in the REMAND portion of the decision below and are REMANDED to the Agency of Original Jurisdiction (AOJ). FINDINGS OF FACT 1. The current 10 percent disability rating for tinnitus is the maximum schedular rating. 2. The most probative medical evidence indicates that the Veteran does not have a current diagnosis of a right shoulder condition. 3. The most probative medical evidence indicates that the Veteran does not have a current diagnosis of pes planus. 4. The evidence of record does not relate the Veteran's lower back condition to his military service or a service connected disability. 5. The evidence of record does not relate the Veteran's neck condition to his military service or a service connected disability. CONCLUSIONS OF LAW 1. The claim for an evaluation in excess of 10 percent rating for service-connected tinnitus is without legal merit. 38 U.S.C. § 1155 (2012); 38 C.F.R. § 4.87, Diagnostic Code 6260 (2017). 2. The criteria for entitlement to service connection for a right shoulder condition have not been met. 38 U.S.C. §§ 1110, 5107(b) (2012); 38 C.F.R. §§ 3.102, 3.303 (2017). 3. The criteria for entitlement to service connection for pes planus have not been met. 38 U.S.C. §§ 1110, 5107(b) (2012); 38 C.F.R. §§ 3.102, 3.303 (2017). 4. The criteria for service connection for a lower back condition have not been met. 38 U.S.C.A. §§ 1110, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSION Duties to Notify and Assist Neither the Veteran nor his representative has raised any issues with the duty to notify or duty to assist. See Scott v McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that "the Board's obligation to read filings in a liberal manner does not require the Board... to search the record and address procedural arguments when the Veteran fails to raise them before the Board."); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to duty to assist argument). Merits of the Claim I. Increased Rating Disability evaluations are determined by the application of the VA Schedule for Rating Disabilities (Rating Schedule), 38 C.F.R. Part 4 (2017). The percentage ratings contained in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and their residual conditions in civil occupations. 38 U.S.C. § 1155 (2012); 38 C.F.R. § 4.1 (2017). Service connection has been established for tinnitus, effective July 30, 2010. As to tinnitus as a disease entity, the disorder is rated as 10 percent disabling under 38 C.F.R. § 4.87, DC 6260, the maximum evaluation assignable under that diagnostic code. A single evaluation is to be assigned recurrent tinnitus whether it is present in one or both ears. 38 C.F.R. § 4.87, DC 6260, Note (2) (2017). Neither Diagnostic Code 6260, nor any other Diagnostic Code allows the assignment of a schedular evaluation in excess of 10 percent for tinnitus affecting both ears. The claim for a higher schedular evaluation must be denied as a matter of law. Smith v. Nicholson, 451 F.3d 1344 (Fed. Cir. 2006). I. Service Connection The Veteran contends that he has a right shoulder condition that is related to his active duty service. Service connection may be established for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303. Regulations also provide that service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability was incurred in service. 38 C.F.R. § 3.303(d). Generally, to prevail on a claim of service connection on the merits, there must be competent evidence of (1) a current disability; (2) medical, or in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence or other competent evidence of a nexus between the claimed in-service disease or injury and the present disease or injury. See, e.g., Hickson v. West, 12 Vet. App. 247 (1999); Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004). In evaluating the evidence in any given appeal, it is the responsibility of the Board to weigh the evidence and decide where to give credit and where to withhold the same and, in so doing, accept certain medical opinions over others. Schoolman v. West, 12 Vet. App. 307, 310-11 (1999). In this regard, the Board has been charged with the duty to assess the credibility and weight given to evidence. Davidson v. Shinseki, 581 F. 3d 1313 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007). In doing so, the Board is free to favor one medical opinion over another, provided it offers an adequate basis for doing so. Owens v. Brown, 7 Vet. App. 429, 433 (1995). When there is an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C.A. § 5107(b) (West 2014); 38 C.F.R. § 3.102 (2016). When all of the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the veteran prevailing in either event, or whether a fair preponderance of the evidence is against the claim, in which case the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). a. Right Shoulder, Pes Planus The Veteran claims that he has a right shoulder condition and pes planus that are etiologically related to service. As stated above, Congress specifically limits entitlement for service-connected disease or injury to cases where such incidents have resulted in a disability. See 38 U.S.C.A. §§ 1110, 1131 (West 2014). In the absence of proof of present disability, there can be no valid claim. Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). Service connection presupposes a diagnosis of a "current disability." See Rabideau v. Derwinski, 2 Vet. App. 141 (1992). A "current disability" means a disability shown by competent evidence to exist. See Chelte v. Brown, 10 Vet. App. 268 (1997). The Board finds there to be no evidence of record supporting a contention that the Veteran has a current right shoulder condition. Throughout the entire evidence of record, the only medical treatment pertaining to the Veteran's right shoulder is an August 2011 chiropractic note stating that the Veteran has moderate spinal pain that radiates into his right shoulder. The Veteran has not received a medical diagnosis relating to his right shoulder, nor has he specifically detailed how, if at all, his alleged right shoulder condition pertains to his active duty service. The presence of a mere symptom (such as pain) alone, absent evidence of a diagnosed medical pathology or other identifiable underlying malady or condition that causes the symptom, does not qualify as disability for which service connection is available. See generally Sanchez-Benitez v. West, 13 Vet. App. 282, 285 (1999). Likewise, there is no evidence of record suggesting that the Veteran has a current diagnosis of pes planus. The extent of the evidence that relate an alleged pes planus diagnosis and active service is a July 2012 statement from the Veteran in which he reports, "I was told while in the military that my feet were flat." This statement, without more, is insufficient to satisfy the requirement of a current diagnosis of pes planus, and to link any such diagnosis to service. Further, because there is no current diagnosis of pes planus, the Board need not address whether any such diagnosis was aggravated by the Veteran's active duty service. After consideration of the lay and medical evidence of record, the Board finds that the preponderance of the evidence indicates that the Veteran does not have a current diagnosis of a right shoulder condition or pes planus that is etiologically related to an in-service event or injury. Accordingly, service connection for these conditions is not warranted. See 38 C.F.R. § 3.303 (2017). In reaching this conclusion, the Board has considered the applicability of the benefit-of-the-doubt doctrine. However, as the preponderance of the evidence is against the claims, that doctrine is not applicable. See 38 U.S.C. § 5107(b) (2012); 38 C.F.R. § 3.102 (2017); Gilbert, 1 Vet. App. at 53-56. b. Lower Back and Neck The Veteran contends that he has lower back and neck conditions that are etiologically related to service. Aside from the general requirements, service connection may also be established on a secondary basis for a disability which is "proximately due to or the result of a service-connected disease or injury." 38 C.F.R. § 3.310(a) (2016). Establishing service connection on a secondary basis requires evidence sufficient to show the following: (1) that a current disability exists, and (2) that the current disability was either (a) proximately caused by or (b) proximately aggravated by a service-connected disability. Allen v. Brown, 7 Vet. App. 439, 448 (1995) (en banc). Where a service-connected disability aggravates a nonservice-connected condition, a Veteran may be compensated for the degree of disability (but only that degree) over and above the degree of disability existing prior to the aggravation. Id.; 38 C.F.R. § 3.310(b) (2016). In March 2009, the Veteran underwent a spine examination at Baptist Beaumont Hospital which revealed degenerative disc disease at the L4-L5 and L5-S1 levels, as well as an annular tear involving posterior disc margin at L4-L5. Additionally, the examiner noted mild degrees of osteoarthropathy from L3 to S1 bilaterally. There is no indication that the Veteran sought treatment for his cervical spine. Further, treatment notes from Lampe Chiropractic recorded in August 2011 conclude that the Veteran has experienced disc degeneration and arthritic changes. X-rays revealed disc degeneration at C6-C7 and L5-S1, and arthritic changes at T12-L1, L4-S1, and C6. These findings supported the Veteran's complaints of moderate pain and muscle spasms in the lumbar and cervical regions. Thus, the Board finds that the Veteran has a current diagnosis of low back and neck conditions. Regarding the requirement of an in-service incurrence or injury, the Veteran offered inconsistent statements. In September 2010, the Veteran indicated that his back pain was secondary to his pes planus. Specifically, the Veteran stated that his back started to hurt during boot camp and that he was given foot pads to help with the pain. However, because the Board has already denied service connection for pes planus, service connection for a low back condition secondary to pes planus is without legal merit, as it could not have been proximately caused or aggravated by a service connected disability. 38 C.F.R. § 3.310(b). In a July 2012 statement, the Veteran offered a different explanation, which tended to suggest that his lower back and neck conditions arose at the same time. The Veteran reported that these conditions stemmed from a fall during his service at North Island Naval Base in San Diego, California, in 1966 or 1967. However, service treatment records (STRs) are silent as to complaints, treatment, or diagnoses stemming from this fall. Rather, there is no medical evidence of record indicating that the Veteran sought treatment for a lower back or neck condition until September 2005, at which time he underwent chiropractic treatment. There is no evidence of continuity of symptomatology, and the first evidence of a spinal condition was 37 years after military discharge. Further, the Veteran does not contend any symptoms, aside from pain, or that he received treatment for his low back or neck conditions earlier than documented in the record. See Mense v. Derwinski, 1 Vet. App. 354, 356 (1991). There is no medical evidence or other competent evidence relating the Veteran's lower back or neck condition to his military service. Thus, a VA medical examination addressing the etiology of these condition is not required. See McLendon v. Nicholson, 20 Vet. App. 79 (2006). 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. Waters v. Shinseki, 601 F.3d 1274, 1277 (Fed. Cir. 2010); Colantonio v. Shinseki, 606 F.3d 1378, 1382 (Fed. Cir. 2010). On the other hand, a conclusory generalized lay statement suggesting a nexus between a current disability and service would not suffice to meet the standard of subsection (B), 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, there is no medically competent evidence or credible lay evidence that any low back or neck condition shown in service and no competent evidence of a link to service. While the Veteran is seeking service connection for a lower back and neck condition and has been diagnosed with degenerative disc disease and arthritis of the spine, the only evidence that it is related to his military service is the unsupported lay assertion of a connection inherent in any service connection claim. Since there is no competent and credible evidence of a low back condition or neck in service and no competent suggestion of a link to service, referral for a VA medical examination is not warranted. ORDER An increased evaluation of tinnitus, currently evaluated as 10 percent disabling, is denied. Service connection for a right shoulder condition is denied. Service connection for pes planus is denied. Service connection for a lower back condition, to include as secondary to pes planus, is denied. Service connection for a neck condition is denied. REMAND a. Hearing Loss The Veteran is service-ceonnected for bilateral hearing loss. The Veteran last underwent a VA examination to determine the current status of his condition in March 2012. Findings from that examination showed the left ear with 80 percent discrimination. Decibel (dB) loss at the puretone threshold of 500 Hertz (Hz) was 30 with a 25 dB loss at 1000 Hz, a 30 dB loss at 2000 Hz, a 70 dB loss at 3000 Hz, and a 75 dB loss at 4000 Hz. The average decibel loss was 50 in the left ear. The right ear showed a speech discrimination of 80 percent. Decibel loss at the puretone threshold of 500 Hertz (Hz) was 30 with a 35 dB loss at 1000 Hz, a 25 dB loss at 2000 Hz, a 65 dB loss at 3000 Hz, and a 80 dB loss at 4000 Hz. The average decibel loss was 51 in the right ear. The Board finds that for the purposes of evaluating the current degree of severity of the Veteran's condition, the March 2012 examination does not represent objective contemporaneous evidence upon which a decision can lie. VA's duty to assist includes providing a new medical examination when the available evidence is too old for an adequate evaluation of the current condition and the disability may have worsened. Weggenmann v. Brown, 5 Vet. App. 281, 284 (1993). As such, the Board finds that a new VA examination is warranted. b. Acquired psychiatric disorder, erectile dysfunction, head trauma, headaches, head scarring The Veteran asserts that he has an acquired psychiatric disorder that is etiologically related to service. Specifically, in a July 2013 Notice of Disagreement (NOD) the Veteran detailed two separate in-service stressors that lead to his claim. First, the Veteran stated that in March 1966, while on active duty leave, he was robbed at knife point and hit over the head with a lead pipe. The Veteran says he was treated at Humble Hospital in Houston, Texas. Service medical records are silent for this event. The Veteran detailed another in-service stressor throughout his appeal, most recently in a January 2017 statement, where he states was beaten and nearly sexually assaulted while in a prison in Tijuana, Mexico, in September 1966, while on leave from active duty. An August 2014 VA treatment record notes that the Veteran displays symptoms that could meet the criteria for a diagnosis of PTSD under the Diagnostic and Statistical Manual of Mental Disorders, Fifth Edition (DSM-5), criteria. He has also undergone counseling for depression and anxiety for several years. However, the Veteran is yet to undergo a VA examination to determine the nature and etiology of his psychiatric disorder. As a nexus opinion needs to be provided for any diagnosed acquired psychiatric disorder, the Board finds that a VA examination is required. See 38 C.F.R. § 3.159(c)(4)(i) (2016); McLendon v. Nicholson, 20 Vet. App. 79 (2006); Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). He further asserts that his erectile dysfunction and head trauma are secondarily related to his psychiatric disorder, and that his head scarring and headaches are secondarily related to his head trauma. As these claims are inextricably intertwined with the Veteran's claim for an acquired psychiatric disorder, the Board finds that examinations are warranted to determine the nature and etiology of these claims. c. Gastroesophageal Reflux Disease (GERD) and Hiatal Hernia, and Sleep Disorder In a May 2012 statement, the Veteran contended that he was diagnosed with GERD in 1968 by Dr. Guru Redding at the Humble Hospital in Houston, Texas. Records of this diagnosis are not in the claims file. In a 2002 private report the Veteran was noted to have epigastric discomfort that has lasted for some 30 years. In an April 2003 private report, the Veteran was noted to have dyspepsia several times a day. Meanwhile, in a February 2003 private sleep study, the Veteran was diagnosed with parasomnia problems, nightmares. He was also found to have allergic rhinitis. The Veteran states that he only sleeps two to three hours each night. This is in part due to choking and breathing problems, which the February 2003 sleep study indicates could be associated to the Veteran's hiatal hernia. The Veteran has also indicated his belief that the nightmares may be due to his in-service stressors. The Board finds that VA examinations are warranted to differentiate the symptoms, if possible, between GERD, hiatal hernia, and sleep disorder. It is necessary to determine the nature and etiology of each of these conditions in order to properly adjudicate the Veteran's claims. See Mittleider v. West, 11 Vet. App. 181 (1998). d. Pulmonary Condition The Veteran contends that his breathing problems stem from asbestos exposure while aboard the USS Kawiskini. He underwent a radiology report in August 2005 that found hyperinflation of the lungs and calcified granulomas. There is no specific statutory or regulatory guidance with regard to claims for service connection for asbestos-related diseases. However, VA issued a circular on asbestos-related diseases in 1998 which provided guidelines for considering asbestos compensation claims and which are now included in the amended/rewritten VA Adjudication Procedure Manual (Manual). See M21-1, Part IV, Subpart ii, Chapter 1, Section I, Paragraph 3, "Developing Claims for [Service Connection] for Asbestos-Related Diseases." The Manual provides that Veterans who were exposed to asbestos while in service and developed a disease related to that asbestos exposure may receive compensation benefits. Claims based on exposure to asbestos require a military occupational skill with exposure to asbestos or other exposure event associated with service sufficient to request an examination with medical opinion as described in M21-1, IV.ii.1.I.3.f, and a diagnosed disability that has been associated with in-service asbestos exposure. The Manual also provides a table to determine the probability of asbestos exposure by military occupational specialty (MOS). The Manual further states that, if an MOS is listed as minimal, probable, or highly probable in the table, concede asbestos exposure for purposes of scheduling an examination. In the instant case, the Veteran's MOS reflects he was a personnel clerk. Upon a review of the Manual, a MOS of a personnel clerk reflects that exposure to asbestos is minimal. See IV.ii.1.I.3.c. However, the Manual further directs that if an MOS is listed as minimal, probable, or highly probable, asbestos exposure for the purposes of scheduling an examination should be conceded. See IV.ii.1.I.3.e. Thus, the Board finds that an examination is warranted to determine whether the Veteran's current pulmonary condition is related to asbestos exposure while on active duty. e. Prostate condition, heart condition, hypertension The Veteran contends that he has a prostate condition, a heart condition, and hypertension that are etiologically related to service. Specifically, the Veteran states that these conditions warrant presumptive service connection deriving from herbicide exposure in the Republic of Vietnam. In March 2017, VA submitted a request to the Joint Services Records Research Center (JSRRC) to determine whether the USS Kawishiwi docked in Da Nang. However, to date, the JSRRC has not provided a response to the request. As such, the Board finds a remand necessary in order for the JSRRC to process its response. Accordingly, the case is REMANDED for the following action: (Please note, this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c). Expedited handling is requested.) 1. Attempt to obtain and associate with the claims file any outstanding VA or private medical evidence pertaining to the Veteran's claims. Specifically, attempt to obtain any outstanding medical records from the Humble Hospital in Houston, Texas. If these records do not exist or cannot be obtained, the claims file should be documented accordingly. 38 C.F.R. § 3.159. 2. Schedule the Veteran for a new medical examination with an appropriate clinician. The purpose of the examination is to determine the current degree of severity of his service-connected bilateral hearing loss. The claims file must be made available to the VA examiner, and the examiner should review the file prior to the examination. Any and all studies, tests, and evaluations deemed necessary by the examiner should be performed. A clear rationale for all opinions would be helpful and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. Copies of all pertinent records in the Veteran's claims file, or in the alternative, the claims file, must be made available to the examiner for review. 3. Schedule the Veteran for a VA psychiatric examination by an examiner with appropriate expertise. The purpose of the examination is to determine the etiology of any acquired psychiatric disorder and whether any acquired psychiatric disorder is related to the Veteran's active duty service. The claims file and a copy of this remand must be made available to the examiner, who must acknowledge receipt and review of these materials in any report generated. The examiner must review all medical evidence associated with the claims file. In particular, the Board draws the examiner's attention to the Veteran's lay statements regarding his acquired psychiatric disorder and his contention that it is related to incidents during his active duty service should be noted and considered. The examiner then should address the following questions: a. Is it at least as likely as not (50 percent or greater probability) that any acquired psychiatric disorder began during or was otherwise caused by the Veteran's active service? Why or why not? b. Is it at least as likely as not (50 percent or greater) that any acquired psychiatric disorder was caused by a service connected disability? Why or why not? c. Is it at least as likely as not (50 percent or greater) that any acquired psychiatric disorder was aggravated (i.e. permanently made worse beyond the natural progression of the disability) by a service connected disability? Why or why not? In addition, the examination report must include a complete rationale for any opinions expressed. If the examiner feels that the requested opinions cannot be rendered without resorting to speculation, the examiner must state whether the need to speculate is caused by a deficiency in the state of general medical knowledge (i.e. no one could respond given medical science and the known facts) or by a deficiency in the record or the examiner (i.e. additional facts are required, or the examiner does not have the needed knowledge or training). Note: The term "at least as likely as not" does not mean merely within the realm of medical possibility, but rather that the weight of medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of causation as it is to find against it. Note: 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. 4. If the Veteran's acquired psychiatric disorder is found to be service-connected, then schedule the Veteran for a VA examination to determine the nature and etiology of his currently diagnosed erectile dysfunction, as well as any head trauma. The examiner then should address the following questions: a. Is it at least as likely as not (50 percent or greater probability) that any erectile dysfunction or head trauma, either began during or was otherwise caused by the Veteran's active service? Why or why not? b. Is it at least as likely as not (50 percent or greater) that any erectile dysfunction or head trauma was caused by a service connected disability? Why or why not? c. Is it at least as likely as not (50 percent or greater) that any erectile dysfunction or head trauma was aggravated (i.e. permanently made worse beyond the natural progression of the disability) by a service connected disability? Why or why not? If aggravation is found, the examiner should attempt to quantify the degree of additional disability resulting from the aggravation. 5. If the Veteran's head trauma is found to be service-connected, then schedule the Veteran for a VA examination to determine the nature and etiology of his headaches and head scarring. The examiner then should address the following questions: a. Is it at least as likely as not (50 percent or greater probability) that any headaches or head scarring began during or was otherwise caused by the Veteran's active service? Why or why not? b. Is it at least as likely as not (50 percent or greater) that any headaches or head scarring was caused by a service connected disability? Why or why not? c. Is it at least as likely as not (50 percent or greater) that any headaches or head scarring was aggravated (i.e. permanently made worse beyond the natural progression of the disability) by a service connected disability? Why or why not? If aggravation is found, the examiner should attempt to quantify the degree of additional disability resulting from the aggravation. 6. Schedule the Veteran for a VA medical examination by an examiner with appropriate expertise. The purpose of the examination is to determine the etiology of the Veteran's GERD and hiatal hernia and whether either condition is related to the Veteran's active duty service. The claims file and a copy of this remand must be made available to the examiner, who must acknowledge receipt and review of these materials in any report generated. The examiner must review all medical evidence associated with the claims file. In particular, the Board draws the examiner's attention to the 2002 and 2003 reports of the Veteran's epigastric discomfort, as well as the Veteran's lay statements regarding his nightly choking and gasping, and his contention that the condition is related to incidents during his active duty service should be noted and considered. The examiner must provide an opinion as to whether the Veteran has a diagnosis of GERD and hiatal hernia that is related to his active duty service. In all conclusions, the examiner must identify and explain the medical bases of his or her opinion with reference to the claims file. The examiner is also advised that by law, the mere statement that the claims file was reviewed by an examiner with expertise is not sufficient to find an examination or the opinion adequate. The examiner then should address the following questions: a. Is it at least as likely as not (50 percent or greater probability) that any GERD or hiatal hernia began during or was otherwise caused by the Veteran's active service? Why or why not? b. Is it at least as likely as not (50 percent or greater) that any GERD or hiatal hernia was caused by a service connected disability? Why or why not? c. Is it at least as likely as not (50 percent or greater) that any GERD or hiatal hernia was aggravated (i.e. permanently made worse beyond the natural progression of the disability) by a service connected disability? Why or why not? In addition, the examination report must include a complete rationale for any opinions expressed. If the examiner feels that the requested opinions cannot be rendered without resorting to speculation, the examiner must state whether the need to speculate is caused by a deficiency in the state of general medical knowledge (i.e. no one could respond given medical science and the known facts) or by a deficiency in the record or the examiner (i.e. additional facts are required, or the examiner does not have the needed knowledge or training). 7. Schedule the Veteran for a VA medical examination by an examiner with appropriate expertise. The purpose of the examination is to determine the etiology of the Veteran's sleep disorder and whether the condition is related to the Veteran's active duty service. The claims file and a copy of this remand must be made available to the examiner, who must acknowledge receipt and review of these materials in any report generated. The examiner must review all medical evidence associated with the claims file. In particular, the Board draws the examiner's attention to the Veteran's diagnosis of allergic rhinitis, as well as the Veteran's lay statements that the condition is related to incidents during his active duty service should be noted and considered. The examiner must provide an opinion as to whether the Veteran has a diagnosis of sleep disorder that is related to his active duty service. In all conclusions, the examiner must identify and explain the medical bases of his or her opinion with reference to the claims file. The examiner is also advised that by law, the mere statement that the claims file was reviewed by an examiner with expertise is not sufficient to find an examination or the opinion adequate. The examiner then should address the following questions: a. Is it at least as likely as not (50 percent or greater probability) that any sleep disorder began during or was otherwise caused by the Veteran's active service? Why or why not? b. Is it at least as likely as not (50 percent or greater) that any sleep disorder was caused by a service connected disability? Why or why not? c. Is it at least as likely as not (50 percent or greater) that any sleep disorder was aggravated (i.e. permanently made worse beyond the natural progression of the disability) by a service connected disability? Why or why not? In addition, the examination report must include a complete rationale for any opinions expressed. If the examiner feels that the requested opinions cannot be rendered without resorting to speculation, the examiner must state whether the need to speculate is caused by a deficiency in the state of general medical knowledge (i.e. no one could respond given medical science and the known facts) or by a deficiency in the record or the examiner (i.e. additional facts are required, or the examiner does not have the needed knowledge or training). 8. Schedule the Veteran for a VA examination with a pulmonologist to determine the nature and etiology of all pulmonary disabilities identified, to include any condition deriving from asbestos exposure. The examiner should review all pertinent evidence of record, conduct any tests deemed appropriate, and provide an opinion regarding whether it is at least as likely as not (50% degree of probability or higher) that the Veteran has a pulmonary disability that is related to service, to include exposure to asbestos. If the examiner is unable to specifically attribute current pulmonary disability, to include asbestosis, to in-service asbestos exposure as compared to postservice asbestos exposure, this should be indicated in the report. A complete rationale for all opinions must be provided. 9. Request that the JSRRC conduct research to verify whether the USS Kawiskini docked at Da Nang, Vietnam, anytime between June 1964 and June 1968. 10. After completing the above actions and any other development as may be indicated as a consequence of the actions taken in the preceding paragraphs, the case should be reviewed by the AOJ on the basis of additional evidence. If the benefits sought are not granted, the Veteran should be furnished a Supplemental Statement of the Case and be afforded a reasonable opportunity to respond before the record is returned to the Board for further review. The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West 2014). ______________________________________________ Cynthia M. Bruce Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs