Citation Nr: 1803169	
Decision Date: 01/18/18    Archive Date: 01/29/18

DOCKET NO.  12-04 353	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Montgomery, Alabama


THE ISSUES

1. Entitlement to service connection for bilateral hearing loss.

2. Entitlement to service connection for tinnitus

3. Entitlement to service connection for gout, left toe.

4. Entitlement to service connection for restless leg syndrome.


REPRESENTATION

Appellant represented by:	Disabled American Veterans


WITNESS AT HEARING ON APPEAL

Appellant

ATTORNEY FOR THE BOARD

Michael J. O'Connor, Associate Counsel


INTRODUCTION

The Veteran served on active duty from November 1966 to November 1969.

This matter comes before the Board of Veterans' Appeals (Board) on appeal from a February 2010 rating decision by the Department of Veterans Affairs (VA) Regional Office in Montgomery, Alabama (RO). 

In October 2016, the Veteran appeared at a hearing before the undersigned Veterans Law Judge.  A transcript of the hearing has been associated with the record.

In July 2017, the Board requested expert medical opinion from the Veterans Health Administration (VHA).  The VHA opinion, dated September 2017, has been provided to the Veteran and his representative.

The issues of entitlement to service connection for gout and restless leg syndrome are addressed in the REMAND portion of the decision below and are REMANDED to the Agency of Original Jurisdiction (AOJ).


FINDINGS OF FACT

1. The Veteran did not exhibit bilateral hearing loss in service or within one year after discharge from service, and bilateral hearing loss is not otherwise shown to be associated with his active service.

2. The Veteran did not exhibit tinnitus in service or within one year from service, and tinnitus is not otherwise shown to be associated with his active service.

CONCLUSIONS OF LAW

1. The criteria for service connection for bilateral hearing loss have not been met. 38 U.S.C. §§ 1101, 1110, 1131, 5107(b) (2012); 38 C.F.R. §§ 3.102, 3.303, 3.385 (2017).

2. The criteria for the establishment of service connection for tinnitus have not been met. 38 U.S.C. §§ 1101, 1110, 1131, 5107(b) (2012); 38 C.F.R. §§ 3.303, 3.304, 3.307, 3.309 (2017).


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

Duties to Advise and Assist

The Board notes that VA has procedural requirements pursuant to The Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096(Nov. 9, 2000) (codified at 38 U.S.C. §§ 5100, 5102, 5103, 5103A, 5106, 5107, and 5126 (2012)) includes enhanced duties to notify and assist claimants for VA benefits.  VA regulations implementing the VCAA were codified as amended at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, and 3.326(a) (2017). A review of the record does not disclose that the Veteran and his representative have specifically raised any procedural issues to the AOJ or the Board, even when construing the Veteran's contentions liberally. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (Board required to address only those procedural arguments specifically raised by the Veteran, though at the same time giving the Veteran's pleadings a liberal construction). There has also been no argument raised as the adequacy of the Veterans Health Administration (VHA) opinion. Robinson v. Mansfield, 21 Vet. App. 545 (2008).





Relevant Laws and Regulations

Service Connection

Under applicable VA law, service connection may be established for disability resulting from personal injury suffered or disease contracted in line of duty in the active military, naval, or air service.  38 U.S.C.A. §§ 1110, 1131.  Service connection may also be granted for any injury or disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease or injury was incurred in service.  38 C.F.R. § 3.303(d).

In order to establish service connection, the following must be shown: (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, 1167 (Fed. Cir. 2004). 

In general, the relevant law provides that a veteran is entitled to service connection for a disability resulting from a disease or injury incurred or aggravated during active service. See 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Service connection also is permissible for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes the disease was incurred in service. 38 C.F.R. § 3.303(d).

Certain chronic diseases, including sensorineural hearing loss (as an organic disease of the nervous system), may be presumed to have been incurred in or aggravated by service if they become disabling to a compensable degree within one year of separation from active duty. 38 U.S.C. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309. Tinnitus is deemed an "organic disease of the nervous system" subject to presumptive service connection where there is evidence of acoustic trauma and nerve damage. Fountain v. McDonald, 27 Vet. App. 258 (2015).

The threshold for normal hearing is from 0 to 20 decibels, and higher threshold levels indicate some degree of hearing loss. Hensley v. Brown, 5 Vet. App. 155, 157 (1993). However, decreased hearing acuity does not equate as being a "disability" for VA purposes. McKinney v. McDonald, 28 Vet. App. 15, 24-5 (2016). The determination of whether a veteran has a service-connectable hearing loss is governed by 38 C.F.R. § 3.385, which states that hearing loss will be considered to be a "disability" when the threshold level in any of the frequencies 500, 1000, 2000, 3000 and 4000 Hertz is 40 decibels or greater; or the thresholds for at least three of these frequencies are 26 decibels or greater; or speech recognition scores are less than 94 percent. 38 C.F.R. § 3.385. 

The absence of in-service evidence of hearing loss, including one meeting the requirements of 38 C.F.R. § 3.385, is not always fatal to a service connection claim. See Ledford v. Derwinski, 3 Vet. App. 87 (1992). Hensley also provides that 38 C.F.R. § 3.385 does not preclude service connection for a current hearing disability where hearing was within normal limits on audiometric testing at separation from service if there is sufficient evidence to demonstrate a medical relationship between a Veteran's in-service exposure to loud noise and his current disability.

Tinnitus is a medical term referring to symptoms of noise in the ears, such as ringing, buzzing, roaring or clicking. DORLAND'S ILLUSTRATED MEDICAL DICTIONARY 1714 (28th ed. 1994). In adopting the current rating criteria for tinnitus under Diagnostic Code 6260, VA described tinnitus as follows:

Tinnitus is classified either as subjective tinnitus (over 95% of cases) or objective tinnitus. In subjective or "true" tinnitus, the sound is audible only to the patient. In the much rarer objective tinnitus (sometimes called extrinsic tinnitus or "pseudo-tinnitus"), the sound is audible to other people, either simply by listening or with a stethoscope.

67 Fed. Reg. 59033-01 (Sept. 19, 2002).

Thus, tinnitus is a rare type of disability that, in the vast majority of cases, may be established on the basis of lay evidence alone. See Charles v. Principi, 16 Vet. App. 370 (2002).

Once the evidence has been assembled, it is the Board's responsibility to evaluate the evidence. 38 U.S.C. § 7104(a). The Secretary shall consider all information and lay and medical evidence of record in a case before the Secretary with respect to benefits under laws administered by the Secretary. The Board must analyze the credibility and probative value of the evidence, account for the persuasiveness of the evidence, and provide reasons for rejecting any material evidence favorable to the claimant. Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd per curiam, 78 F.3d 604 (Fed.Cir.1996). The Board assesses both medical and lay evidence. In addressing lay evidence and determining its probative value, if any, attention is directed to both competency ("a legal concept determining whether testimony may be heard and considered") and credibility ("a factual determination going to the probative value of the evidence to be made after the evidence has been admitted"). See Layno v. Brown, 6 Vet. App. 465, 469 (1994).

The benefit of the doubt rule provides that a veteran will prevail in a case where the positive evidence is in a relative balance with the negative evidence. Therefore, the Veteran prevails in a claim when (1) the weight of the evidence supports the claim or (2) when the evidence is in equipoise. It is only when the weight of the evidence is against the claim that the claim must be denied. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). 

Entitlement to service connection for bilateral hearing loss.

The Veteran contends that he has bilateral hearing loss due to noise exposure during active duty. He asserts that his bilateral hearing loss is due to exposure to artillery fire during his service. He contends that he has had hearing problems since service.

In his February 1966 induction physical examination, the Veteran indicated that he never had hearing loss. The Veteran underwent an audiology examination which revealed the following pure tone thresholds (in decibels):


HERTZ
CNC

1000
2000
3000
4000
Avg
%
RIGHT
35
30
30
30
31.25
N/A
LEFT
15
0
0
5
5
N/A

The results of this examination did not allow the Veteran to enter service. He was retested in November 1966 and allowed to enter service. The examination revealed the following pure tone thresholds (in decibels):


HERTZ
CNC

1000
2000
3000
4000
Avg
%
RIGHT
25
25
20
15
21.25
N/A
LEFT
15
10
10
5
10
N/A

At his separation physical examination in May 1969, the Veteran indicated that he never had hearing loss. The examiner noted that the Veteran's PULHES (Physical capacity/stamina, Upper extremities, Lower extremities, Hearing/ear, Eyes, Stability) were all 1s, indicating good health and qualification for separation from service. Specifically, the examiner noted hearing as 1 which indicates no hearing problems. 

In addition, the separation physical contains results of an audiology examination. The findings are:


HERTZ
CNC

1000
2000
3000
4000
Avg
%
RIGHT
0
0
N/A
10
0
N/A
LEFT
0
0
N/A
10
0
N/A

However, the Board notes that the Veteran has contended that he did not undergo an audiology examination during his separation physical examination.




A November 2009 private examination revealed the following pure tone thresholds (in decibels):


HERTZ
CNC

1000
2000
3000
4000
Avg
%
RIGHT
35
35
45
60
43.75
100
LEFT
35
35
65
65
50
100

The physician diagnosed the Veteran with bilateral neurosensory hearing loss. The physician stated that "it is as likely as not that his hearing loss was in part due to him being exposed to artillery while he was serving in the Army."

In December 2009, the Veteran filed a claim for hearing loss and tinnitus. In February 2010, the Veteran underwent an audiology examination regarding his claim. The February 2010 VA examination revealed the following pure tone thresholds (in decibels):


HERTZ
CNC

1000
2000
3000
4000
Avg
%
RIGHT
30
25
30
60
36
96
LEFT
25
20
50
65
40
96

The examiner interpreted the enlistment physical audiometric examination as borderline normal for the right ear, and within normal limits (WNL) for the left ear.  The separation audiometric examination was interpreted as WNL bilaterally. As a result of these audiograms, the examiner opined that the Veteran's current hearing loss was not related to military noise exposure.

A January 2014 physician letter indicated that there was a nexus between the Veteran's exposure to artillery fire and his bilateral hearing loss.

In July 2017, the Board referred this claim for an independent expert medical opinion from an audiologist. The audiologist reviewed the Veteran's entire claims file, include service treatment records, post-service treatment records, and the previous findings discussed above. The expert opined that "it is less likely than not that the appellant's hearing loss and tinnitus had onset or are otherwise related to disease or injury in service...I am unaware of conclusive data to substantiate the claim that noise-induced hearing loss can progress from normal hearing after exposure (at discharge), to a clinically significant loss years later." See VHA Opinion, dated October 10, 2017.

The Board notes that there is medical evidence of record both in support of, and against, a finding that the Veteran's hearing loss is related to his active duty service. The Board must analyze the credibility and probative value of evidence, account for the persuasiveness of evidence, and provide reasons for rejecting material evidence favorable to the claimant. Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd per curiam, 78 F.3d 604 (Fed. Cir. 1996) (table).

The probative value of medical opinion evidence is based on the medical expert's knowledge and skill in analyzing the data and his or her medical conclusion. As is true with any piece of evidence, the credibility and weight to be attached to these opinions are within the province of the adjudicator. Guerrieri v. Brown, 4 Vet. App. 467, 470-71 (1993). Whether a physician provides a basis for his or her medical opinion goes to the weight or credibility of the evidence in the adjudication of the merits. See Hernandez-Toyens v. West, 11 Vet. App. 379, 382 (1998). Other factors for assessing the probative value of a medical opinion are the physician's access to the claims folder and the thoroughness and detail of the opinion. See Prejean v. West, 13 Vet. App. 444, 448- 9 (2000).

In this case, the Board places greater probative weight on the combined opinions of the February 2010 examiner and the VHA expert. The February 2010 examiner found that the Veteran's audiometric data in service was within normal limits bilaterally and that such results made it less likely than not that bilateral hearing loss had its onset in service or was related to service.  The VHA examiner agreed with this reasoning, and further explained that there was insufficient data to substantiate that noise-induced hearing loss can progress from normal hearing after exposure to a clinically significant loss years later.

On the other hand, the private medical opinions do not explain the rationale supporting the opinions that the Veteran's current hearing loss is related to military noise exposure. The examiners were aware of the military history of noise exposure, which is accepted by the Board. However, the examiners are not shown to have reviewed the audiometric data in service, and do not explain why the Veteran either manifested hearing loss in service or manifests delayed onset hearing loss. The combined opinions by the VA and VHA examiners explain why the audiometric data are importance considerations in arriving at an opinion. Based on these deficiencies, the Board finds these opinions hold significantly lower probative value than the combined opinions of the VA and VHA examiner.

The only other evidence capable of substantiating the claim consists of the Veteran's own perception to decreased hearing acuity since service and his opinion as to a causal relationship between hearing loss and in-service noise exposure.  With respect to causation, the Veteran is not shown to possess the requisite medical training and expertise to speak to the causal relationship between hearing loss and in-service noise exposure.  The Board places greater probative weight on the objective audiometric testing upon service separation which showed normal hearing, even under Hensley standards, and the VA and VHA opinions interpreting the entirety of the record.  

The Board observes that the Veteran does not recall undergoing an audiometric examination at separation, but finds no discrepancy to question the recording of audiometric results on the separation examination even though all frequencies are not recorded. The Veteran also argues that he manifested bilateral hearing loss upon entry into service. The Veteran initially had abnormal audiometric results which required retesting prior to his entry. His entrance audiometric data does not establish a hearing loss disability per VA standards.

With respect to establishing service connection based upon continuity under 38 C.F.R. § 3.303(b) or on a presumptive basis as being manifest to a compensable degree within one year of service discharge, the Veteran's perception of decreased hearing acuity since service does not adequately support a finding of actual sensorineural hearing loss disability being first manifested in service or within one year of service discharge as the existence of a "disability" is specifically defined at 38 C.F.R. § 3.385 in terms of specific levels of tone threshold perceptions and speech recognition which is beyond lay competence to measure.  McKinney, 28 Vet. App. at 24-5.  In short, the Veteran's recollections of decreased hearing acuity since service is not capable of showing it rose to the level of a "disability" for VA purposes in service, or to a ratable level of disability within one year of service discharge.

For all of the foregoing reasons, the Board finds that the claim for service connection for bilateral hearing loss must be denied. In reaching the conclusion to deny the claim, the Board has considered the applicability of the benefit-of-the-doubt doctrine. However, as the preponderance of the evidence is against the claim, that doctrine is not applicable. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert, 1 Vet. App. at 53-56.

Entitlement to service connection for tinnitus.

The Veteran contends that he has tinnitus due to noise exposure during active duty. He asserts that his tinnitus is due to exposure to artillery fire during his service.

As discussed above, the Veteran's service treatment records do not contain any evidence of hearing problems, to include tinnitus. In fact, the Veteran provided a negative response to whether he had hearing problems. He has also provided inconsistent recollections as to the onset of his tinnitus. 

At a VA examination in June 2010, the Veteran was unable to give a specific time frame regarding the onset of tinnitus other than "he feels it close to his separation from the military." As the Veteran was unable to define when his tinnitus began, the examiner was unable to provide an opinion without resort to speculation. 

However, after receiving a denial of his claim, the Veteran described bilateral tinnitus while in Germany in 1968. See VA Form 21-4138 received July 2010. In his Board testimony, the Veteran stated that "I had some ringing in my ear when I got discharged. I don't know what degree it was." See Board Hearing Transcript, 
The Veteran's post-service medical treatment records are silent regarding complaints of tinnitus until 2009.

As noted above, tinnitus is a unique disability largely capable of substantiation by lay claimant description of symptoms. See 67 Fed. Reg. 59033-01 (Sept. 19, 2002); Charles, 16 Vet. App. 370 (2002). Thus, to a certain extent, the claim rises and falls on the most credible recollection of the onset of tinnitus - in service or after service. The Board observes that the Veteran has demonstrated recollection difficulties with another service connection claim on appeal. With respect to his claim of service connection for gout, the Veteran's separation examination reflected his denial of having or ever having swollen or painful joints, or foot trouble. In a written statement from the Veteran, received in January 2013, the Veteran described his first "encounter" with gout in 1975 or 1976 - which is more than 5 years after service. However, at the hearing in October 2016, he specifically stated that he manifested gout symptoms in service. The January 2013 and October 2016 statements are directly contradictory.

The fact that the Veteran has recalled the actual onset of tinnitus differently several occasions, and has provided contradictory accounts as to the onset of his gout, tends to demonstrate either a failure of memory, or a lack of integrity, and in either event it weakens and impairs the value of his testimony. See generally State v. Spadafore, 220 S.E.2d 655, 661 (W. Va. 1975) ("Generally, after a proper foundation has been laid, a witness may be impeached by evidence of his declarations or statements which are either inconsistent or contradictory to his testimony at trial). See also Seng v. Holder, 584 F.3d 13, 19 (1st Cir.2009) (notwithstanding the declarant's intent to speak the truth, statement may lack credibility because of faulty memory).

Here, the Veteran is attempting to recollect events which occurred many decades ago. In the opinion of the Board, the Veteran's most accurate recollection is his first recollection to the VA examiner in February 2010 as it is his first statement in the matter made in the context of receiving an appropriate diagnosis and opinion. Notably, this recollection was not even clear as the Veteran only "felt" it must have been "close" to service discharge. On the other hand, the Veteran does not explain the reasons he revised his recollection to the June 2010 examiner, which first occurred after receiving a rating decision finding that there is no indication of tinnitus complaints in service. His overall recollection of tinnitus beginning in service or contemporaneous to service is not persuasive when viewed in the context of the entire record, including medical records and his lack of clarity in recalling the onset of tinnitus and his directly contradictory recollection of the onset of gout. Rather, the Board is persuaded from the entirety of the record that the Veteran cannot accurately recall the onset of his tinnitus.

Thus, the Board finds that the credible lay and medical evidence does not show that tinnitus first manifested after service or within one year from service. Thus, the claim cannot be granted based upon continuity under 38 C.F.R. § 3.303(b) or the presumptive provisions of 38 C.F.R. § 3.309(a).

The Board next notes that there insufficient evidence of a nexus between tinnitus and service. The private medical opinions state that the Veteran's hearing loss is related to service but does not specifically address tinnitus. The February 2010 VA examiner found that an inability to factually determine the onset of tinnitus rendered an opinion speculative. The VHA examiner agreed with this assessment. The Board finds the February 2010 opinion to be adequate as it explains that a factual matter - knowing the onset of tinnitus - is necessary for a proper opinion. The Board finds that the Veteran's inability to recall the onset of tinnitus in more than vague terms presents a barrier to obtaining an adequate opinion. See generally Clemons v. Shinseki, 23 Vet. App. 1, 6 (2009) (noting that the Board need not obtain further medical evidence where the medical evidence "indicates that determining the cause is speculative"); Jones (Michael) v. Shinseki, 23 Vet. App. 382, 390 (2010) (recognizing legitimacy of inconclusive medical opinion when "time for obtaining other information has passed"); Jones (Michael) v. Shinseki, 23 Vet. App. 382, 390 (2010) (examination opinion should clarify whether inability to come to conclusion was based on all "procurable and assembled data" and/or the whether the inability to provide a definitive opinion was due to a need for further information or because the limits of medical knowledge had been exhausted regarding the etiology of the disorder).

The Board recognizes the Veteran's statements made in support of his claim. He Veteran is competent to report having sustained acoustic trauma during active duty. Since his contentions are consistent with the circumstances of his service, such assertions are deemed to be credible. The Veteran is competent to provide testimony and statements concerning factual matters of which he has firsthand knowledge (i.e., experiencing or observing noise exposure during service and having tinnitus symptoms during or after service). However, as held above, the Veteran has not presented credible evidence that he manifested tinnitus in service or within one year from service. As a lay person, he is not competent to provide opinion as to the etiology of tinnitus as this requires medical nexus evidence which falls outside the realm of common knowledge of a lay person. See Kahana v. Shinseki, 24 Vet. App. 428 (2011); Jandreau, supra. As a result, his assertions cannot constitute competent medical evidence in support of his claim.

For all of the foregoing reasons, the Board finds that the claim for service connection for tinnitus must be denied. In reaching the conclusion to deny the claim, the Board has considered the applicability of the benefit-of-the-doubt doctrine. However, as the preponderance of the evidence is against the claim, that doctrine is not applicable. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert, 1 Vet. App. at 53-56.


ORDER

Entitlement to service connection for tinnitus is denied.

Entitlement to service connection for bilateral hearing loss is denied.


REMAND

Unfortunately, the remaining claims on appeal must be remanded.  While the Board regrets the additional delay in this regard, it is necessary to ensure a complete record.  The Board finds that two of the service connection claims require additional development.  

Under McLendon, in disability compensation claims, VA must provide a VA medical examination when there is (1) competent evidence of a current disability or persistent or recurrent symptoms of a disability, and (2) evidence establishing that an event, injury, or disease occurred in service or establishing certain diseases manifesting during an applicable presumptive period for which the claimant qualifies, and (3) an indication that the disability or persistent or recurrent symptoms of a disability may be associated with the Veteran's service or with another service-connected disability, but (4) insufficient competent medical evidence on file for the Secretary to make a decision on the claim. Id. In this case, there are two conditions that do not have sufficient competent medical evidence to properly adjudicate the claim.

In regards to the Veteran's claim for service connection for gout and restless leg syndrome, the Board notes that the Veteran had never been provided VA examinations for these disabilities. The Veteran has presented a private medical opinion attributing his gout and restless leg syndrome to heavy lifting and hours of laying on hard surfaces during the military. Therefore, the Board finds that the Veteran should be afforded a VA examination of his gout and restless leg syndrome in order to determine their nature and etiology.

Accordingly, the case is REMANDED for the following action:

1. Obtain any and all outstanding medical treatment records and associate these with the claims file.

2. The Veteran should be scheduled for a VA examination of his gout. The examiner must review the Veteran's electronic record, and the examination report must note that it has been reviewed. After the completion of the examination, record review, and interview with the Veteran, the examiner should attempt to answer the following question:

Is it at least as likely as not (50 percent or more probability) that the Veteran's gout had its onset in service or is otherwise related to a disease or injury in service; or, was manifested to a compensable degree within a year of service discharge?  In so doing, the examiner should directly address the theory that the Veteran's gout is related to heavy lifting and hours of laying on hard surfaces during the military.

In providing the opinion, the examiner's attention is directed towards the following:
* the Veteran's May 1969 separation examination wherein he denied a history swollen or painful joints as well as foot trouble;
* a January 2009 statement from Dr. K.M. opining that the Veteran has a history of gout "possibly due to time served in the military";
* a written statement from the Veteran, received in January 2013, wherein he described his first encounter with gout in 1975 or 1976; and
* a January 2014 opinion from Dr. B.G. opining that the Veteran's gout is long-standing and related to heavy lifting and hours of laying on hard surfaces during the military.

The examiner must provide the reasons and bases for the opinion, and must cite to the specific evidence used to support their conclusions. If the examiner is unable to provide any portion of the requested opinion without resorting to speculation, the reasons and bases for that opinion should be provided, and any missing evidence that might enable the opinion to be provided should be identified.

3. The Veteran should be scheduled for a VA examination of his claimed restless leg syndrome. The examiner must review the Veteran's electronic record, and the examination report must note that it has been reviewed. After the completion of the examination, record review, and interview with the Veteran, the examiner should attempt to answer the following question:

Is it at least as likely as not (50 percent or more probability) that the Veteran has restless leg syndrome that had its onset in service or is otherwise related to a disease or injury in service; or, was manifested to a compensable degree within a year of service discharge?  In so doing, the examiner should directly address the Veteran's report of leg cramps upon separation and the theory that the Veteran's gout is related to heavy lifting and hours of laying on hard surfaces during the military.

In providing this opinion, the examiner's attention is directed towards the following:
* the Veteran's May 1969 separation examination wherein he reported a history of leg cramps;
* a written statement from the Veteran received in December 2009 wherein he recalled that, approximately 1 or 2 years after service, he began noticing a strange sensation in his legs which he believed was a residual of leg cramps experienced during service;
* a January 2009 statement from Dr. K.M. opining that the Veteran has a history of restless leg syndrome "possibly due to time served in the military"; and
* a January 2014 opinion from Dr. B.G. opining that the Veteran's restless leg syndrome is long-standing and related to heavy lifting and hours of laying on hard surfaces during the military.

The examiner must provide the reasons and bases for the opinion, and must cite to the specific evidence used to support their conclusions. If the examiner is unable to provide any portion of the requested opinion without resorting to speculation, the reasons and bases for that opinion should be provided, and any missing evidence that might enable the opinion to be provided should be identified.

4. Finally, readjudicate the claims on appeal in light of all additional evidence received.  If any benefit sought on appeal is not granted, the Veteran and his representative should be furnished with a supplemental statement of the case and afforded an opportunity to respond before the file is returned to the Board for further appellate consideration.

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). This claim must be afforded expeditious treatment.  See 38 U.S.C. §§ 5109B, 7112 (2012).




______________________________________________
T. MAINELLI
Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs