Citation Nr: 1805812 Decision Date: 01/30/18 Archive Date: 02/07/18 DOCKET NO. 14-15 069 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Oakland, California THE ISSUES 1. Whether new and material evidence has been received to reopen a claim for service connection for diabetes mellitus, to include as due to herbicide agent and/or chemical exposure. 2. Whether new and material evidence has been received to reopen a claim for service connection for peripheral neuropathy, to include as due to herbicide agent exposure, chemical exposure, and/or diabetes mellitus. 3. Entitlement to service connection for peripheral vestibular disability (claimed as loss of balance), to include as due to herbicide agent exposure, chemical exposure, or secondary to service-connected disability. 4. Entitlement to service connection for an acquired psychiatric disability, to include posttraumatic stress disorder (PTSD). REPRESENTATION Appellant represented by: California Department of Veterans Affairs WITNESS AT HEARING ON APPEAL Appellant and spouse (F.J.) ATTORNEY FOR THE BOARD T. Wishard, Counsel INTRODUCTION The Veteran had active military service from October 1961 to October 1964, and February 1965 to February 1974. These matters come before the Board of Veterans' Appeals (Board) from a September 2012 rating decision of the Department of Veterans Affairs (VA), Regional Office (RO) in Oakland, California. In June 2007 the Veteran and a witness testified at a videoconference hearing before the undersigned Veterans Law Judge. A transcript of that hearing is of record. The issues of entitlement to service connection for diabetes mellitus, peripheral neuropathy, an acquired psychiatric disability, and a vestibular disability are addressed in the REMAND portion of the decision below and are REMANDED to the Agency of Originals Jurisdiction (AOJ). FINDINGS OF FACT 1. In an August 2007 decision, the RO denied the Veteran's claim for entitlement to service connection for diabetes mellitus. 2. New and material evidence to reopen a claim of entitlement to service connection for diabetes mellitus has been received. 3. In an August 2007 decision, the RO denied the Veteran's claim for entitlement to service connection for peripheral neuropathy. 4. New and material evidence to reopen a claim of entitlement to service connection for peripheral neuropathy has been received. CONCLUSIONS OF LAW 1. Evidence received since the August 2007 RO decision that denied service connection for diabetes mellitus, which was the last final denial with respect to this issue, is new and material; the claim is reopened. 38 U.S.C.A. §§ 1154 (a), 5108, 7105 (West 2014); 38 C.F.R. § 3.156, 20.200 (2017). 2. Evidence received since the August 2007 RO decision that denied service connection for peripheral neuropathy, which was the last final denial with respect to this issue, is new and material; the claim is reopened. 38 U.S.C.A. §§ 1154 (a), 5108, 7105; 38 C.F.R. § 3.156, 20.200. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Legal Criteria New and Material Evidence (NME) In general, RO decisions that are not timely appealed are final. See 38 U.S.C.A. § 7105; 38 C.F.R. § 20.200. An exception to this rule is 38 U.S.C.A. § 5108, which provides that if new and material evidence is presented or secured with respect to a claim which has been disallowed, the Secretary shall reopen the claim and review the former disposition of the claim. The Board must consider the question of whether new and material evidence has been received because it goes to the Board's jurisdiction to reach the underlying claim and adjudicate the claim de novo. See Jackson v. Principi, 265 F.3d 1366 (Fed. Cir. 2001); Barnett v. Brown, 83 F.3d 1380 (Fed. Cir. 1996). If the Board finds that no such evidence has been offered, that is where the analysis must end, and what the RO may have determined in that regard is irrelevant. Barnett, supra. Further analysis, beyond consideration of whether the evidence received is new and material is neither required nor permitted. Id. at 1384. See also Butler v. Brown, 9 Vet. App. 167, 171 (1996). "New" evidence is existing evidence not previously submitted to agency decision makers. "Material" evidence is existing evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. New and material evidence can be neither cumulative nor redundant of the evidence of record at the time of the last prior denial of the claim sought to be reopened, and must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156 (a). In determining whether evidence is new and material, the "credibility of the evidence is to be presumed." Justus v. Principi, 3 Vet. App. 510, 513 (1992). In order for evidence to be sufficient to reopen a previously disallowed claim, it must be both new and material. If the evidence is new, but not material, the inquiry ends and the claim cannot be reopened. See Smith v. West, 12 Vet. App. 312, 314 (1999). If it is determined that new and material evidence has been submitted, the claim must be reopened. The VA may then proceed to evaluate the merits of the claim on the basis of all evidence of record, but only after ensuring that the duty to assist the appellant in developing the facts necessary for the claim has been satisfied. See Elkins v. West, 12 Vet. App. 209 (1999), but see 38 U.S.C.A. § 5103A (eliminating the concept of a well-grounded claim). Analysis The Board has reviewed all of the evidence in the Veteran's claims file, with an emphasis on the evidence relevant to this appeal. Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, the extensive evidence of record. Indeed, the Federal Circuit has held that the Board must review the entire record, but does not have to discuss each piece of evidence. Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000). Therefore, the Board will summarize the relevant evidence where appropriate, and the Board's analysis below will focus specifically on what the evidence shows, or fails to show, as to the claims. NME - Diabetes Mellitus Historically, the Veteran's claim for service connection for diabetes was denied in an unappealed August 2007 RO rating decision because the evidence did not reflect that he had service in Vietnam, and there was no evidence of exposure in any other period of service, nor evidence that diabetes was incurred in service, aggravated by service, or manifested to a compensable degree within one year of separation from service. Evidence at time of the last final denial At the time of the last final denial, the Veteran's STRs were negative for diabetes. His Reports of Medical Examination in October 1961, August 1964, May 1970, January 1974, all reflect that his urine was negative for sugar. Moreover, his corresponding Reports of Medical History reflect that he denied sugar in his urine. The evidence was against a finding that the Veteran served in Vietnam, or in an area and time for which presumptive exposure and service-connection is warranted (e.g. he did not serve in or near the Korean DMZ between April 1, 1968 and August 31, 1971). The evidence also reflected that the Veteran had diabetes and reported the diagnosis in the 1980s. The earliest clinical record is from 2002. A September 2002 record also reflects that the Veteran reported that his mother had diabetes mellitus. At the time of the last final denial, the Veteran asserted that his diabetes was related to Agent Orange in Korea. Evidence added to the record since the last final denial The evidence added to the record since the last final denial includes the Veteran's testimony that he was diagnosed with diabetes in Illinois when he was 38 years old. He testified that in Korea he saw chemicals, which left a "white-ish" powder residue on plants, being sprayed to kill plants and which "puffed up in a powdery form" when he walked on it. The record also contains a statement from the Veteran's wife (F.J.) who contends that she has studied and worked as a chemist in the Philippines and has a medical background. She contends that in her opinion the Veteran's disabilities are related to chemical exposure in service (i.e. gasoline fumes inside a military tank, and a cleaning solution to maintain his military tank) and an accident in service which has resulted in episodes of fainting, dizziness, loss of balance, ankle and foot issues, and neuropathy (see August 2017 typed statement). The claims file also includes a September 2017 letter from Dr. D. Chapman in which he listed 29 medical issues of the Veteran. Dr. Chapman opined that the Veteran's car injury in service and exposure to harmful chemicals in Korea is linked to his current medical issues, to include his diabetes. New and Old evidence taken together The Board finds, given the low threshold espoused in Shade v. Shinseki, 24 Vet. App. 110 (2010), that new and material evidence has been received. At the time of the last final denial, the claims file did not include positive nexus opinions. In determining whether evidence is new and material, the "credibility of the evidence is to be presumed." Justus v. Principi, 3 Vet. App. 510, 513 (1992). Based on the foregoing, the claim is reopened. NME - Peripheral Neuropathy Historically, the Veteran's claim for service connection for peripheral neuropathy was denied in an unappealed August 2007 RO rating decision because the evidence did not reflect that he had service in Vietnam, and there was no evidence of exposure in any other period of service, nor evidence that diabetes was incurred in service, aggravated by service, or manifested to a compensable degree within one year of separation from service. Evidence at time of the last final denial At the time of the last final denial, the Veteran asserted that his peripheral neuropathy was related to Agent Orange in Korea. His STRs were negative for peripheral neuropathy. His Reports of Medical Examination in October 1961, August 1964, May 1970, January 1974, all reflect that normal pertinent physical systems. The evidence was against a finding that the Veteran served in Vietnam or in an area and time for which presumptive exposure and service-connection is warranted. A September 2002 record reflects that the Veteran had diabetes and that upon examination, he had normal pulses, normal sensation, no edema, and no varicosities. His gait was normal. He had ulcers to both feet. A September 2004 VA record (general medicine clinic) reflects that the Veteran "states that for some time has noticed his legs feel weak, is not exactly sure how long it has been going on, maybe of couple of [years]." A January 2007 VA record reflects that the Veteran has diabetes and known peripheral neuropathy with chronic proximal lower extremity weakness. A March 2007 VA record reflects that the examiner wrote that he suspected that the Veteran's leg weakness was multi-factorial, and that some of the weakness is suspected to be coming from deconditioning. It was noted that the Veteran was morbidly obese. Evidence added to the record since the last final denial The evidence added to the record since the last final denial includes the Veteran's testimony that he has suffered from nerve damage to his feet and ankles since he was 22 years old right after he got back from serving in Korea. He testified that his feet would go numb for no reason while he was a drill sergeant despite being in "tremendous physical condition". He has also alleged that his peripheral neuropathy is due to cold weather exposure in Korea, and/or an alleged car accident. As noted above, the record also contains a statement from the Veteran's wife (F.J.) who contends that she has studied and worked as a chemist in the Philippines and has a medical background. She contends that in her opinion the Veteran's disabilities are related to chemical exposure in service (i.e. gasoline fumes inside a military tank, and a cleaning solution to maintain his military tank) and an alleged in-service car A September 2015 neurology record from Dr. L. Panossian stated, in pertinent part, as follows: [The Veteran] [r]elates old car accident where he was pedestrian hit by car, brief LOC for 5-6 minutes, then developed acute numbness in both feet and hammertoes per patient. A May 2016 VA clinical opinion reflects that the Veteran had no residuals from his in-service ankle complaints, which were acute injuries. The claims file also includes a September 2017 letter from Dr. D. Chapman in which he listed 29 medical issues of the Veteran. Dr. Chapman opined that the Veteran's car injury in service and exposure to harmful chemicals in Korea is linked to his current medical issues. The claims file includes an August 2017 statement from J. Barlow (DPM) in which she states that the onset of the Veteran's peripheral neuropathy was at age 22 and that his current condition of peripheral neuropathy and ankle instability was caused by an injury in service. An August 2017 statement by Dr. M. Khauv states that the Veteran's recurrent ankle injuries in service contributed to his peripheral neuropathy in his feet. As noted above, a September 2017 statement by Dr. D. Chapman reflects that based on the Veteran's "VA military records", he had an injury of being hit by a car and exposure to harmful chemical in Korea which probably contributed to his peripheral neuropathy and caused his diabetes. New and Old evidence taken together The Board finds, given the low threshold espoused in Shade v. Shinseki, 24 Vet. App. 110 (2010), that new and material evidence has been received. At the time of the last final denial, the claims file did not include positive nexus opinions. In determining whether evidence is new and material, the "credibility of the evidence is to be presumed." Justus v. Principi, 3 Vet. App. 510, 513 (1992). Based on the foregoing, the claim is reopened. ORDER As new and material evidence has been received to reopen the claim of entitlement to service connection for diabetes, the claim is reopened, and the claim is granted to that extent only. As new and material evidence has been received to reopen the claim of entitlement to service connection for peripheral neuropathy, the claim is reopened, and the claim is granted to that extent only. REMAND Diabetes Peripheral Neuropathy As noted above, the Veteran has contended that his diabetes and/or peripheral neuropathy are due to in-service cold weather, a car accident, Agent Orange, fuel and cleaning chemicals, and/or ankle sprains. The Veteran contends that he was diagnosed with peripheral neuropathy in 1966 when experiencing numbness in both feet and diagnosed with diabetes in 1978 at the North Chicago, VA medical facility. May 1962 STRs reflect that the Veteran was seen on May 18 and May 27 after he fell on his foot two months earlier. He had a normal examination and was advised to have hot and cold soaks after complaining of bilateral soreness on the soles. This was several years prior to service in Korea. November 1963 records reflect that the Veteran tripped in a hole and sprained his ankle. It was further noted that x-ray revealed only soft tissue swelling; there was no fracture. A January 1964 STR reflects that the Veteran's was seen for a follow-up for a casted right ankle. It was noted that he was improving from the sprain of the ankle several weeks early, but still had pain and swelling. The Veteran's August 1964 Report of Medical History for Separation reflects that he reported that he was in "good health". He denied all problems; it was only noted that he wore glasses and had had a hand laceration. The Veteran's May 1970 Report of Medical History for Separation purposes reflects that he reported numerous complaints (mumps, eye trouble, ear, nose and throat trouble, hearing loss, tooth trouble, history of head injury, reaction to medication, a cyst, foot trouble, paralysis, depression or excessive worry, and loss of memory or amnesia). It was noted that he had an operation on his toes because of "drawn up" tendons. The foot trouble was noted to be "tinea pedis". The paralysis was related to poliomyelitis at age 9 months. His corresponding Report of Medical Examination notes "varicosity of ankles, bilaterally, and hammertoes, bilaterally." It was noted that the Veteran had fractured his left ankle on January 4, 1970. An August 1971 STR reflects that the Veteran had hammertoes and was requesting a profile. A September 1971 STR reflects that the Veteran's left foot had persistent extension about the metatarsal phalangeal joints, and persistent flexion at the level of the proximal interphalangeal joints. It was noted that there were no other abnormalities noted. A September 1971 STR reflects that the Veteran's right foot had persistent extension at the level of the metatarsal phalangeal joints with persistent flexion at the level of the proximal interphalangeal joints. There was a localized area of sclerosis about the 3rd metatarsal. There were no other abnormalities noted upon x-ray. Notably, the Veteran requested a profile due to hammertoes; there is no indication in the STRs that he requested a profile due to numbness or lack of sensation of the lower extremities. An August 1972 STR reflects hammertoes, and an April 1973 STRs reflect that the Veteran had hammertoes and was placed on profile. As noted above, there are several privately obtained nexus opinions; however, the Board finds, at this time, that they are based on an unsupported history provided by the Veteran, and that they lack an adequate rationale. The evidence contemporaneous to service is negative for complaints of numbness of the feet in the Veteran's more than a decade of service. (The earliest clinical evidence of peripheral neuropathy is not for approximately three decades after service.) They are also negative for a car accident with injuries in service, complaints of cold weather injuries to the feet, and exposure to harmful chemicals. The opinions fail to adequately address how an alleged in-service car accident with injuries to the lower extremities, hammertoes, or a sprained ankle, could cause peripheral neuropathy of the upper extremities, or how they could cause peripheral neuropathy at all. The opinions also appear to rely substantially on the Veteran's unsupported history of neuropathy in service, which is at this time, not found as probative as the records contemporaneous to service. Moreover, Dr. Chapman's opinion appears to be merely a blanket opinion that all of the Veteran's 29 medical issues (which include a variety of conditions to include obesity, sleep apnea, flat feet, urinary tract infection, and COPD) are related to his alleged in-service car accident and exposure to harmful chemicals in Korea. The opinions also fail to recognize that in 2004, prior to filing a claim for service connection, the Veteran reported that he had had weakness in his legs for maybe a couple of years, and certainly he did not report weakness or symptoms since service, and fail to recognize the VA records which note that the suffers from diabetic neuropathy. The records reflect that the Veteran is in receipt of Social Security Administration (SSA) benefits; thus, VA should attempt to obtain all records used by the SSA to grant or deny benefits. (A March 2007 VA record reflects that the Veteran reported that he was applying for SSA benefits due to no longer being able to work due to bilateral wrist/hand issues, leg weakness, and difficulty getting around and hip pain.) VA should also attempt to associate with the claims file all VA records for the Veteran from his alleged diagnosis and treatment in 1978 at the North Chicago VA medical facility. The evidence of record does not include competent credible evidence that the Veteran was exposed to herbicide agent 2,4-D; 2,3,5-T and its contaminant TCDD, cacodylic acid; and/or picloram while in service, and he has not been presumed to have had such exposure based on his dates of service and place of service. Although the Veteran is competent to state that he saw people spraying a substance in Korea, residue of some sort of powder or chemical, and dying plants, he has not been shown to be competent to state the chemical nature of the substance. Moreover, he served in Korea prior to the dates for which VA recognizes that an herbicide agent was used on the DMZ. Based on the above, the Board finds that a VA clinical opinion addressing the issues is warranted. The clinician should consider the pertinent evidence of record. The clinician should not consider that the Veteran had exposure to herbicide agents as such has not been found by competent credible evidence. The clinician may consider that the Veteran had incidental exposure to some types of fuel or chemicals as a tank driver. Peripheral Vestibular Disability The earliest evidence in the claims file of a balance problem is not for several decades after separation from service. A 2002 audiological record specifically notes that the Veteran was negative for vertigo. Subsequent VA records reflect that the Veteran's balance is likely from a combination of multifactorial issues to include: a broken hip, unequal vision, benign paroxysmal positional vertigo (BPPV), peripheral neuropathy, back pain, hypotension, shingles treatment, and lightheadedness/orthostatic (see June and August 2015 VA records.) The record also contains a statement from the Veteran's wife (F.J.) who, as noted above, contends that she has studied and worked as a chemist in the Philippines and has a medical background. She provided an opinion that the Veteran's disabilities are related to chemical exposure in service (i.e. gasoline fumes inside a military tank, and a cleaning solution to maintain his military tank) and his in-service car accident which has resulted in episodes of fainting, dizziness, and loss of balance (see August 2017 typed statement). In addition, the September 2017 letter from Dr. D. Chapman, in which he listed 29 medical issues of the Veteran, to include vertigo, reflects his opinion that the Veteran's disabilities are linked to his service. Dr. Chapman's opinion does not provide an adequate rationale based on the record as a whole, but it is sufficient to require VA to obtain a VA opinion. McLendon v. Nicholson, 20 Vet. App.79, 81 (2006). An Acquired Psychiatric Disability The Board finds that the record, at this time, does not support a finding that service-connection for an acquired psychiatric disability is warranted, but that further development may be useful. The Veteran asserts that he has PTSD due to service in Korea. He testified at the Board hearing that he was on a clandestine operation in Korea and that he was wounded but that no recognition was allowed because the anti-Vietnam War public protests in the United States kept the Army from wanting the public to know about fighting in Korea. He contends he was injured in a grenade blast, was in an ambush patrol, was in a hunter-killer patrol, worked guard duty, witnessed the torture of captured North Korean soldier by the South Korean army, saw the aftermath of such torture, inflicted lethal force, saw the after-effects of torture by the South Korean Army, and was involved in a fire-fight, in which he fired at the enemy, was fired upon by the enemy, heard screaming and yelling but that the next morning, there was no evidence of the incident. He also indicated that there was the stress of an "attack of psychological warfare" on a nightly basis by having been "blasted with speakers" of a woman stating that service members were going to die a slow cold death in a country that did not want them there (see Board hearing transcript, page 19, and September 2010 VA mental health note,) The Veteran's spouse submitted a statement that her husband left Korea in the "middle of the war". The US Army and Joint Service Records Research Center (JSSRRC) could not verify the Veteran's alleged stressors, and the Board finds that they are not consistent with his service. The Veteran's assertions as to combat or enemy action are not consistent with his service as a tank driver in Korea from April 1965 to May 1966. VA recognizes the Korean Conflict as occurring from June 27, 1950 through January 31, 1955. 38 C.F.R. § 3.2. Thus, it ended more than a decade before the Veteran's service in Korea. In addition, the Veteran's specialty as a tank driver is not consistent with missions to ambush, hunt, and/or kill. There is no competent credible evidence of record to support the Veteran's assertions as to having been in combat, in a fire-fight, or under any sort of attack, to include a grenade attack. With regard to his assertions of psychological warfare on a nightly basis by a woman's voice over a loudspeaker, no competent credible evidence supports this contention. Again, the Board notes that the Veteran served in Korea more than a decade after the end of the Korean conflict. Moreover, the Board finds that the Veteran's assertions are not sufficient to meet the definition of "fear of hostile military or terrorist activity" as contemplated by 38 C.F.R. § 3.304(3). Propaganda messages, assuming arguendo the Veteran is credible, are not synonymous with experiencing, witnessing, or being confronted with an event or circumstance that involved actual or threatened death or serious injury such as from an actual or potential improvised explosive device, vehicle-imbedded explosive device, incoming artillery, rocket, or mortar fire, grenade, small arms fire, or sniper fire. Incoming propaganda messages from a woman over a loudspeaker simply do not rise to the level of incoming artillery or the other examples listed in § 3.304. VA records reflect diagnoses of PTSD based on the Veteran's unconfirmed personal history/stressors, and thus, they lack probative value. The records also reflect a diagnosis of depression and traits of borderline personality disorder. A September 2014 VA record reflects that the Veteran reported that he wanted to be in receipt of service connection and that a motivation was that if he ever moves to the Philippines with his wife, he can only get care there if he is in receipt of service-connection. The Veteran's STRs include a May 1970 Report of Medical History in which he reported that he had had depression; it was noted that there had been no hospitalization, but no other information was provided. The VA should attempt to obtain all mental health VA records for the Veteran, to include records by Dr. Dominguez in 2010 (noted in a 2010 record but not in evidence), from the Martinez Clinic, and records from Livermore and Palo Alto, from which he contends that he was banned by his provider who "had it in for him" (see April 2015 VA record). If additional VA records and/or SSA records indicate that the Veteran's depression may be causally related to service, the Veteran should be scheduled for a VA examination. Accordingly, the case is REMANDED for the following action: 1. Attempt to associate with the claims file all outstanding VA and non-VA treatment regarding the issues on appeal, including VA records from the North Chicago VA medical facility (Jesse Brown VA) from 1978 to present, to include records by Dr. Dominguez in 2010 (noted in a 2010 record but not in evidence), from the Martinez Clinic, and records from Livermore and Palo Alto. 2. Contact the Social Security Administration (SSA) and attempt to obtain all SSA records used in making an SSA decision, to include clinical records. Associate all records with the claims file. 3. Obtain a clinical opinion which addresses: a. Whether it is as likely as not (50 percent or greater) that the Veteran's diabetes is related to service; and b. Whether it is as likely as not (50 percent or greater) that the Veteran's diabetes is related to a service-connected disability; and c. Whether it is as likely as not (50 percent or greater) that the Veteran's diabetes is aggravated by a service-connected disability d. Whether it is as likely as not (50 percent or greater) that the Veteran's peripheral neuropathy is related to service; and e. Whether it is as likely as not (50 percent or greater) that the Veteran's peripheral neuropathy is related to a service-connected disability; and f. Whether it is as likely as not (50 percent or greater) that the Veteran's peripheral neuropathy is aggravated by a service-connected disability. The clinician should consider the pertinent evidence of record, to include the following: a.) the STRs which note that the Veteran's urine was negative for sugar, and which are negative for complaints of numbness or tingling of the extremities; b.) the STRs which note ankle injuries, and soreness of the soles of the feet after a fall; c.) the STRs which are negative for cold weather injuries; d.) a September 2002 record which reflects that upon examination the Veteran had normal pulses, normal sensation, no edema, and normal gait; e.) a September 2004 VA record which reflects that the Veteran had noticed his legs had felt weak for "maybe a couple of years"; f.) the earliest clinical evidence of record of diabetes; g.) the earliest clinical evidence of record of peripheral neuropathy; h.) the Veteran's morbid obesity; i.) the Veteran's family history of diabetes; j.) the Veteran's history of alcohol use; k.) the Veteran's history of gout; l.) that the Veteran has been diagnosed with peripheral neuropathy of the upper and lower extremities and m.) the Veteran's reported history of polio as an infant. The clinician should not consider that the Veteran had exposure to herbicide agents as such has not been found by competent credible evidence. The clinician may consider that the Veteran had incidental exposure to some types of fuel or chemicals as a tank driver, but that his specialty was not as a mechanic, working in a motor pool, or working in a chemical field. The examiner should provide an adequate rationale for all opinions offered. 4. Obtain a clinical opinion as to whether it is as likely as not (50 percent or greater) that the Veteran has a disability manifested by imbalance which is (a) causally related to service or (b) caused by a service-connected disability or (c) aggravated by a service-connected disability. The clinician should consider the pertinent evidence of record to include: a.) the earliest evidence in the claims file of a balance problem; b.) a 2002 audiological record specifically notes that the Veteran was negative for vertigo; c) VA record which note that the Veteran's balance is likely from a combination of multifactorial issues to include: a broken hip, unequal vision, benign paroxysmal positional vertigo (BPPV), peripheral neuropathy, back pain, hypotension, shingles treatment, and lightheadedness/orthostatic (see June and August 2015 VA records); d.) that the Veteran is in receipt of service connection for bilateral hearing loss and tinnitus. The clinician should not consider that the Veteran had exposure to herbicide agents as such has not been found by competent credible evidence. The clinician may consider that the Veteran had incidental exposure to some types of fuel or chemicals as a tank driver, but that his specialty was not as a mechanic, working in a motor pool, or working in a chemical field. If a competent opinion cannot be rendered without an examination, the Veteran should be scheduled for such. 5. If, and only if, additional VA records and/or SSA records indicate that the Veteran's depression may be causally related to, or aggravated by, service or a service-connected disability, the Veteran should be scheduled for a VA examination. If an examination is scheduled, the clinician should opine as to whether it is as likely as not (50 percent or greater) that he has an acquired psychiatric disability causally related to service or caused or aggravated by a service-connected disability. The examiner should only consider those facts which are supported by competent credible evidence. The examiner should not consider as true that the Veteran had service in combat, or was involved in a fire-fight, an ambush patrol, a hunt-kill patrol, that he witnessed torture of soldiers, or that he was injured by a grenade as these contentions have not been verified and are not consistent with the circumstances of the Veteran's service. The examiner should provide an adequate rationale for all opinions offered. If the examiner finds that it is as likely as not that the Veteran has an acquired psychiatric disability causally related to, or aggravated by, service or a service-connected disability, the clinician must state in the opinion the event or events which are the etiology for the diagnosed disability. 6. Following completion of the above, adjudicate the issues on appeal. If a benefit sought is not granted, issue a Supplemental Statement of the Case and afford the appellant and his representative an appropriate opportunity to respond. Thereafter, the case should be returned to the Board, as appropriate for further appellate consideration. The appellant has the right to submit additional evidence and argument on the matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). 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). ______________________________________________ M.C. GRAHAM Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs