Citation Nr: 18141941 Decision Date: 10/11/18 Archive Date: 10/11/18 DOCKET NO. 16-29 872 DATE: October 11, 2018 ORDER Entitlement to service connection for tinnitus is denied. Entitlement to service connection for hypertension is denied. Entitlement to service connection for diabetes mellitus is denied. REMANDED Entitlement to service connection for an acquired psychiatric disorder, to include unspecified depressive disorder is remanded. Entitlement to service connection for sleep apnea, to include as secondary to acquired psychiatric disorders is remanded. Entitlement to service connection for headaches, to include as secondary to sleep apnea and acquired psychiatric disorders is remanded. Entitlement to service connection for infectious hepatitis is remanded. FINDINGS OF FACT 1. The Veteran was exposed to acoustic trauma while in-service; however, the weight of the competent and credible lay and medical evidence shows that the currently reported tinnitus manifested many years after service separation, and is not causally or etiologically related to service. 2. Hypertension did not have its onset in service, was not manifested to a compensable degree within one year following service discharge, and is not otherwise related to service. 3. Diabetes mellitus did not have its onset in service, was not manifested to a compensable degree within one year following service discharge, and is not otherwise related to service. CONCLUSIONS OF LAW 1. The criteria to establish service connection for tinnitus have not been met. 38 U.S.C. §§ 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. 2. The criteria to establish service connection for hypertension have not been met. 38 U.S.C. §§ 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. 3. The criteria to establish service connection for diabetes mellitus have not been met. 38 U.S.C. §§ 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from July 1981 to July 1986. The Board has limited the discussion below to the relevant evidence required to support its finding of fact and conclusion of law, as well as to the specific contentions regarding the case as raised directly by the Veteran and those reasonably raised by the record. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015); Robinson v. Peake, 21 Vet. App. 545, 552 (2008); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016). Initial Matters It appears that the claims of entitlement to service connection for infectious hepatitis and an acquired psychiatric disorder were previously denied by the RO. However, because the claims folder has been rebuilt, and all pertinent adjudicatory evidence is not of record, the Board finds that, to ensure that the Veteran is afforded all due process under the law, his claims should be analyzed on the merits. The Board concludes that the Veteran is not prejudiced by a decision on the merits because, in so doing, the Veteran is afforded more consideration than would be accorded if the case were decided on a new and material basis. See Bernard v. Brown, 4 Vet. App. 384 (1993). Additionally, the Board notes that the issues of entitlement to service connection for headaches and tinnitus were not listed on his June 2016 substantive appeal (VA Form 9). However, these two issues were adjudicated under a separate statement of the case (SOC) and subsequent supplemental statement of the case (SSOC), both which were issues on the same day as the SOC and SSOC for the remaining five issues on appeal. In addition, the attorney’s indication in the cover letter that the VA Form 9 was submitted for the May 2016 SOC, without specifying the issues, is suggestive that the Veteran intended to appeal all issues. All issues were certified to the Board, and the Board finds that it has jurisdiction over all of the issues on appeal. See Percy v. Shinseki, 23 Vet. App. 37, 45 (2009). Although service personnel records are available, the Veteran’s service treatment records are not available for review. Although the response to the RO’s request noted that all available records were mailed, only two-pages were received without any medical information contained. VA has a heightened duty to assist him in development of his claim. See O’Hare v. Derwinski, 1 Vet. App. 365, 367 (1991); Cuevas v. Principi, 3 Vet. App. 542 (1992). VA met this heightened duty here, advising the Veteran of the lack of availability of his service treatment records; informing him of the alternative forms of evidence that can be developed to substantiate the claim; and otherwise expending exhaustive efforts to obtain those treatment records. Additional efforts would be futile. As such, no further AOJ action in this regard is warranted. Lastly, the Veteran identified private treatment records from Dr. Olden and Dr. Schmell. The record shows that the RO made numerous attempts to obtain these records, but the providers did not respond. The RO notified the Veteran and encouraged him to obtain and submit those records; however, to-date, the Veteran did not respond to any of these inquiries, and the records were not received. Nevertheless, given the RO’s multiple attempts to obtain the records, the Board finds that the duty to assist was fulfilled regarding these records. Accordingly, given that over five-years past and the records were not furnished by the Veteran, the Board will not delay this appeal any further in the hope that the record will be added at a later time. Service Connection Service connection will be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). 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). Establishing service connection generally requires competent evidence of three things: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship, i.e., a nexus, between the claimed in-service disease or injury and the current disability. Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2009). The record shows that the Veteran has diagnoses of diabetes, hypertension, and tinnitus, which are a “chronic disease” under 38 C.F.R. § 3.309(a); therefore, the presumptive provisions of 38 C.F.R. § 3.303(b) for “chronic” in-service symptoms and “continuous” post-service symptoms apply. Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). For a showing of a chronic disorder in service, the mere use of the word chronic will not suffice; rather, there is a required combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time, as distinguished from merely isolated findings. 38 C.F.R. § 3.303(b). Continuity of symptomatology after service is required where a condition noted during service is not, in fact, chronic, or where a diagnosis of chronicity may be legitimately questioned. Id. The presumptive service connection provisions based on “chronic” in-service symptoms and “continuity of symptomatology” after service under 38 C.F.R. § 3.303(b) have been interpreted as an alternative to service connection only for the specific chronic diseases listed in 38 C.F.R. § 3.309(a). See Walker v. Shinseki, 718 F.3d 1331 (Fed. Cir. 2013) (holding that the “chronic” in service and “continuous” post-service symptom presumptive provisions of 38 C.F.R. § 3.303(b) only apply to “chronic” diseases at 3.309(a)). The Board must analyze the credibility and probative value of the evidence, account for the evidence that it finds persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant. Kahana v. Shinseki, 24 Vet. App. 428, 433 (2011). This includes weighing the credibility and probative value of lay evidence against the remaining evidence of record. See King v. Shinseki, 700 F.3d 1339 (Fed. Cir. 2012). A Veteran bears the evidentiary burden to establish all elements of a service connection claim, including the nexus requirement. Fagan v. Shinseki, 573 F.3d 1282, 1287 (Fed. Cir. 2009). In making its ultimate determination, the Board must give a veteran the benefit of the doubt on any issue material to the claim when there is an approximate balance of positive and negative evidence. Id. at 1287 (quoting 38 U.S.C. § 5107 (b)). Applicable to all Issues Denied Herein The Veteran has asserted that these claimed disabilities of tinnitus, hypertension, and diabetes are related to military service. However, he has not identified any in-service incurrence of a disease or injury. Nor has he provided any explanation for why or how he believes the claimed conditions are related to service. A mere conclusory generalized lay statement that a service event or illness caused the claimant’s current condition is insufficient to establish medical etiology or nexus. Waters v. Shinseki, 601 F.3d 1274 (2010). Therefore, the Board finds the Veteran’s lay opinion regarding nexus is not competent or probative on any of the three issues denied below. The Veteran has not been provided with VA examinations for any of the claimed disabilities denied below. Under McLendon v. Nicholson, 20 Vet. App. 79 (2006), in initial service connection claims, the VA must provide a VA medical examination where there is (1) competent evidence of a current disability or persistent or recurrent symptoms of a disability; (2) evidence establishing that an event, injury, or disease occurred in service; (3) an indication that the disability or persistent or recurrent symptoms of a disability may be associated with the veteran’s service; and (4) insufficient competent medical evidence on file for VA to make a decision on the claim. Here, there is simply no lay or medical evidence establishing that an event, injury, or disease occurred in service for either hypertension or diabetes, and the evidence does not show an indication that his tinnitus is related to service. A mere conclusory generalized lay statement that military service caused the claimant’s current condition is insufficient to require an examination under McLendon; Waters, 601 F.3d at 1278-79 (rejecting appellant’s argument that his “conclusory generalized statement that his service illness caused his present medical problems was enough to entitle him to a medical examination under the standard of [38 U.S.C. § 5103A(d)(2)(B).]”). Tinnitus The Veteran generally asserts that he has tinnitus that is related to his active duty service. Initially, the Board notes that the Veteran can competently self-diagnose tinnitus because its symptoms are observable through the senses. Next, exposure to hazardous noise during service is conceded based on the Veteran’s military specialty occupation of ammunition specialist. On review however, the weight of the evidence demonstrates that symptoms of tinnitus have not been continuous since service separation. A careful review of the Veteran’s post service medical records, contain a March 2011 VA PC History & Physical New Patient report, at which time he reported that he had no hearing impairment and no ringing in the ears. Notably, a review of all the evidence both lay and medical shows no complaints, treatment, or reports of tinnitus or ringing in the ears. The only available evidence is the Veteran’s September 2014 claim for “tinnitus” not supported by any lay assertions. In his December 2014 notice of disagreement, he provided no additional information, and in his June 2016 substantive appeal, he did not even mention tinnitus. Even if the Board is to accept the Veteran’s September 2014 claim as a self-reported diagnosis of tinnitus, this is the earliest evidence on record for a current diagnosis of the disability. The approximately 28-year period between service and the onset of tinnitus is one factor that weighs against a finding of service incurrence and continuity, but is not the only factor relied upon in this decision. As noted above, in 2011, the Veteran specifically denied a history of tinnitus/ringing in the ears. Indeed, the Board’s reliance on multiple factors, only one of which is an absence of complaints or treatment during service or after service, is consistent with the statutory and regulatory requirements to consider all evidence of record, as well as the Court’s precedential decisions. See Buchanan v. Nicholson, 451 F.3d 1336 (Fed. Cir. 2006) (the lack of contemporaneous medical records is one fact the Board can consider and weigh against the other evidence, although the lack of such medical records does not, in and of itself, render the lay evidence not credible); see also Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000) (the passage of many years between discharge from active service and the medical complaint of a claimed disability is one factor to consider as evidence against a claim of service connection). Inasmuch as the Veteran now asserts that his tinnitus incurred in-service or has been continuous ever since, those statements completely contradict the statement made to the medical professional in March 2011. The Board assigns more probative weight to the Veteran’s contemporaneous statements provided to the medical professional in 2011 than his assertion that his tinnitus is related to service made to VA in support of this appeal of the denial of compensation benefits. See Fed. R. Evid. 803(4) (recognizing that statements made for the purpose of medical treatment generally are reliable); Rucker v. Brown, 10 Vet. App. 67, 73 (1997) (“[R]ecourse to the [Federal] Rules [of Evidence] is appropriate where they will assist in the articulation of the Board’s reasons.”)); Pond v. West, 12 Vet. App. 341, 345 (1999) (interest may affect the credibility of testimony). Thus, the Board finds the Veteran’s statements as to continuity of tinnitus symptomatology since service not to be credible. For these reasons, the criteria for presumptive service connection under 38 C.F.R. § 3.303(b) based on either “chronic” symptoms in service or “continuous” symptoms since service have not been met. Additionally, for the same reasons, the evidence does not show that tinnitus manifested to a compensable (i.e., at least 10 percent) degree within one year of service separation. Service connection on a direct basis is also not warranted in this case. The Board finds that other a claim form for tinnitus, the Veteran provided absolutely no evidence in support of his claim. The mere fact that the Veteran filed a claim for tinnitus cannot serve as an opinion as to the etiology of his tinnitus, which involves making findings based primarily on medical knowledge of auditory disorders. It is a complex medical question dealing with the neurologic system (acoustic trauma and nerve damage). As aforementioned, the Veteran was not provided with a VA examination for tinnitus; however, even if the Board is to accept the mere filing of a claim for benefits as evidence of a current diagnosis of tinnitus, a VA examination is not required because there is no competent evidence even suggesting that the reported tinnitus may be associated with service. See 38 U.S.C. § 5103A(a)(2) (VA “is not required to provide assistance to a claimant... if no reasonable possibility exists that such assistance would aid in substantiating the claim”); 38 C.F.R. § 3.159(d) (VA to discontinue assistance where there is “no reasonable possibility that further assistance would substantiate the claim”). Notably, a Veteran bears the evidentiary burden to establish all elements of a service connection claim, including the nexus requirement. Fagan v. Shinseki, 573 F.3d 1282, 1287 (Fed. Cir. 2009). Accordingly, the Board finds that the competent and credible evidence weighs against finding that the Veteran’s tinnitus was causally or etiologically related to service; therefore, the appeal is denied and the benefit-of-the-doubt doctrine does not apply. Hypertension and Diabetes Mellitus The Veteran generally asserts that his hypertension and diabetes are related to service; however, he provided no evidence in support of this assertion. Initially, the Board notes that the Veteran has a current diagnosis of hypertension and diabetes. See e.g., VA treatment records dated from 2007, forward. On review however, the weight of the evidence demonstrates that symptoms of hypertension and diabetes have not been continuous since service separation, and hypertension and diabetes were not diagnosed within a year of separation from service, or manifested to a compensable degree within a year of service. Post-service VA treatment records dated in August 2004 indicates that the Veteran denied any medical problems, “but is presently HTN.” Thereafter, VA treatment records dated in January 2007 note family history of hypertension. The medical professional noted that the Veteran had a history of alcohol and drug dependence in remission since 2000 and obesity. Blood pressure readings at the time was 114/84, and the medical professional indicated this result was elevated, and encouraged the Veteran diet modification to avoid salt and coffee, as well as exercise and weight-loss. Additional VA treatment records dated in March 2007 indicate that the Veteran denied a history of hypertension and diabetes mellitus, but noted that he had elevated blood pressure, obesity, and a history of alcohol and drug abuse. Subsequently, in April 2007 the medical professional rendered a diagnosis of hypertension and prescribed medication. Subsequent VA treatment records dated in October 2007 indicate that fasting lab results showed that the Veteran was “non-diabetic.” VA treatment records dated in March 2011 indicate that the Veteran came in for an evaluation of hypertension, Vitamin D deficiency, and morbid obesity. It noted that the Veteran requested blood pressure medications. The medical professional noted that he had no history of diabetes mellitus. VA treatment records dated in October 2011 show negative medical history for diabetes and positive medical history for hypertension. A note dated in August 2012 indicates that the Veteran had a new onset of diabetes mellitus. Additional records dated in October 2012 indicate that the Veteran, who was morbidly obese had a history of hypertension. VA treatment records dated in December 2013 indicate that the Veteran had family history of diabetes. Additional VA treatment records dated in June 2015 note: “DM – A1C 7.1, Low card diet is advised.” Thereafter, VA treatment records dated in April 2016 show negative medical history for diabetes and positive medical history for hypertension. Here, it is unclear whether the 2004 note indicates that the Veteran had a diagnosis of hypertension, there is no lay or medical evidence to suggest that he had an elevated blood pressure at an earlier date. Furthermore, while treatment records in 2016 show negative history for diabetes, the Board resolves all doubt in the Veteran’s favor to conclude that he has a current diagnosis of diabetes based on prior records; however, the earliest record to suggest a diagnosis of diabetes is not until 2012, where a referral note indicates that he had a new onset of diabetes. Thus, the approximately 18-year and 26-year period between service and the onset of hypertension and diabetes is one factor that weighs against a finding of service incurrence and continuity, but is not the only factor relied upon in this decision. As noted above, in 2011, the Veteran specifically denied a history of hypertension and diabetes. Furthermore, the Veteran did not report any symptoms of either disability, or provided any evidence that either disability incurred in-service or was related to it. Notably, while the Veteran and his attorney made arguments on the issues being remanded, no lay or medical evidence was submitted in support of his claims for hypertension or diabetes. Indeed, the Board’s reliance on multiple factors, only one of which is an absence of complaints or treatment during service or after service, is consistent with the statutory and regulatory requirements to consider all evidence of record, as well as the Court’s precedential decisions. See Buchanan v. Nicholson, 451 F.3d 1336 (Fed. Cir. 2006) (the lack of contemporaneous medical records is one fact the Board can consider and weigh against the other evidence, although the lack of such medical records does not, in and of itself, render the lay evidence not credible); see also Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000) (the passage of many years between discharge from active service and the medical complaint of a claimed disability is one factor to consider as evidence against a claim of service connection). Inasmuch as the Veteran now asserts that his hypertension and or diabetes incurred in-service or has been continuous ever since, those statements completely contradict the competent objective medical evidence on record. Service connection on a direct basis is also not warranted in this case. The Board finds that the objective medical evidence specifically shows family history for both diabetes and hypertension and at least some medical records attribute the diseases to the Veteran’s lifestyle, specifically his morbid obesity. The Veteran provided absolutely no evidence in support of his claim. The mere fact that the Veteran filed a claim for the disabilities cannot serve as an opinion as to their etiology, which involves making findings based primarily on medical knowledge of the cardiovascular and endocrine systems. As aforementioned, the Veteran was not provided with a VA examination for his disabilities. Notably, a Veteran bears the evidentiary burden to establish all elements of a service connection claim, including the nexus requirement. Fagan v. Shinseki, 573 F.3d 1282, 1287 (Fed. Cir. 2009). Here, there is absolutely no evidence even suggesting that the Veteran’s hypertension or diabetes are related to his active duty service. Accordingly, the Board finds that the competent and credible evidence weighs against finding that the Veteran’s hypertension or diabetes were causally or etiologically related to service; therefore, the appeal is denied and the benefit-of-the-doubt doctrine does not apply. REASONS FOR REMAND The Board finds that a remand is necessary to provide the Veteran with VA examinations for his claimed psychiatric disorders and infectious hepatitis. In addition, since his claims for sleep apnea and headaches are made secondary to his claim for service connection for a psychiatric disorder, the Board must defer its decision on these issues pending subsequent development. Psychiatric Disorder The available military personnel records show that the Veteran had numerous behavioral problems in-service for which he received disciplinary actions. In addition, although he received a discharge under honorable conditions, the discharge code of JKK is noted. Such code is given for Character or Behavior Disorder/Drug use. The Board observes that compensation shall not be paid if a disability is the result of the Veteran’s own willful misconduct or abuse of alcohol or drugs. 38 U.S.C. §§ 105, 1110; 38 C.F.R. § 3.301. VA’s General Counsel has confirmed that direct service connection for a disability that is a result of a claimant’s own abuse of alcohol or drugs is precluded for purposes of all VA benefits for claims filed after October 31, 1990. See VAOPGCPREC 7-99; 64 Fed. Reg. 52375 (1999); Allen v. Principi, 237 F.3d 1368, 1377 (Fed. Cir. 2001). In Allen v. Principi, 237 F.3d 1368 (Fed. Cir. 2001), the United States Court of Appeals for the Federal Circuit (Federal Circuit Court) held that compensation could not be awarded pursuant to 38 U.S.C. § 1110 and 38 C.F.R. § 105(a) either for a primary alcohol/drug abuse disability incurred during service or for any secondary disability that resulted from primary alcohol/drug abuse during service. Id. at 1376. However, the Federal Circuit Court further held that there can be service connection for compensation for an alcohol/drug abuse disability acquired as secondary to, or as a symptom of, a non-willful misconduct, service-connected disability. But in further clarifying this, the Federal Circuit Court explained that Veterans may only recover if they can “adequately establish that their alcohol or drug abuse disability is secondary to or is caused by their primary service-connected disorder.” Id., at 1381. An award of compensation on such a basis would only result “where there is clear medical evidence establishing that the alcohol or drug abuse disability is indeed caused by a Veteran’s primary service-connected disability, and where the alcohol or drug abuse disability is not due to willful wrongdoing.” Id. In support of his claim, the Veteran submitted statements from family members indicating a change in behavior upon his return from service, as well as a private May 2015 disability benefit questionnaire (DBQ) authored by a licensed psychologist. The psychologist opined that the Veteran suffered from “unspecified depressive disorder more likely than not beginning in service and continuing uninterrupted to present.” A rationale was not provided; however, supportive evidence included an April 1986 General Counseling Form indicating that the Veteran had an inability to maintain control of his temper and a June 1986 Recommendation for Discharge letter due to positive urinalysis and misconduct on and of duty. Nevertheless, the Board finds this opinion to be inadequate for VA purposes. First, the psychologist failed to address the significance of the alcohol and drug abuse in-service or explain what documented symptoms, lay assertions, or stressors suggest that the Veteran’s depression preceded his alcohol and drug abuse or is otherwise causally or etiologically related to service. Second, while the psychologist noted that the Veteran denied any mental health issues prior to service, a review of the post-service treatment records shows that in October 1998 the Veteran sought treatment for substance abuse, alcohol and cocaine. He reported positive family history of substance abuse (both his father and brother) and reported that he had his first alcoholic drink when he was five-years-old. He further stated that his drug and alcohol abuse increased after his father was murdered when he was 18-years-old (approximately in 1978, prior to his enlistment). He further noted that he beat up a retiring sergeant in-service after the sergeant directed racial slurs toward him. The admitted alcohol and drug abuse prior to service were not noted by the supporting lay evidence by the Veteran’s mother and friend nor by the private psychologist. Nevertheless, given the Veteran’s identified stressor of being racially harassed in-service, the Board finds that a VA examination is warranted to determine the nature and etiology of any currently diagnosed psychiatric disorder. Infectious Hepatitis A review of the post-service treatment records shows that the Veteran had diagnoses of hepatitis A and B. He reported that he had hepatitis A and food poisoning while in the army. Given the unavailability of his service treatment records and VA’s heightened duty to assist in such cases, the Board finds that a VA examination is necessary. Notably, the record shows that a December 2014 VA examination for GU kidney nephrology was cancelled due to the Veteran’s failure to report. The Veteran is reminded that he must report for scheduled examinations and that any future failure to report on his part could have adverse consequences on the outcome of his appeal. See 38 C.F.R. § 3.655; Wood v. Derwinski, 1 Vet. App. 190 (1991). The matters are REMANDED for the following action: 1. Ensure that all outstanding VA treatment records since the February 2018 SSOC are associated with the claims file. 2. Provide the Veteran with an appropriate VA examination to determine the nature and etiology of any currently diagnosed psychiatric disorders. The claims file and a copy of this Remand must be made available to the reviewing examiner, and the examiner shall indicate in the examination report that the claims file was reviewed. After a review of the record and examination of the Veteran, the examiner is asked to respond to the following: (a) Elicit from the Veteran and the record the history of symptoms and onset of his claimed psychiatric disorders. (b) Identify all currently diagnosed psychiatric disorders, to include unspecified depressive disorder. (c) For each currently diagnosed psychiatric disorder, provide an opinion as to whether it is at least as likely as not (50 percent probability or more) it had its onset during active duty. In doing so, please consider (i) the Veteran’s lay reports during the examination, as well as his reports of being racially harassed in-service; (ii) May 2015 private DBQ VBMS entry titled “other” on 06/22/2016; (iii) October 1998 VA mental health records showing reports of alcohol and drug abuse prior to service; and (iv) lay assertions by the Veteran’s mother and friend VBMS entry titled correspondence on 05/07/2018. (d) If the examiner opines that the Veteran’s psychiatric disorder is related to service, please address diagnoses of alcohol and drug abuse to determine whether those were self-medicating for an already existing mental disorder and or due to willful misconduct. In doing so, please review all military personnel records and post-service mental health records especially those dated in October 1998. The examiner should provide a complete rationale for all opinions. The examiner is asked NOT to rely on the lack of service treatment records for a rationale, but rather address the Veteran’s lay assertions and the available military personnel records and post-service lay and medical records. 3. Provide the Veteran with an appropriate VA examination to determine the nature and etiology of any currently diagnosed infectious hepatitis. The claims file and a copy of this Remand must be made available to the reviewing examiner, and the examiner shall indicate in the examination report that the claims file was reviewed. After a review of the record and examination of the Veteran, the examiner is asked to respond to the following: (a) Elicit from the Veteran and the record the history of symptoms and onset of his claimed hepatitis diseases. (b) Identify all currently diagnosed infectious hepatitis diseases, to include hepatitis A and B. (c) For each currently diagnosed infectious hepatitis disease, provide an opinion as to whether it is at least as likely as not (50 percent probability or more) had its onset during active duty. In doing so, please address the Veteran’s lay assertions that he had hepatitis A and food poisoning in-service. The examiner should provide a complete rationale for all opinions. The examiner is asked NOT to rely on the lack of service treatment records for a rationale. N. RIPPEL Acting Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD A. Yaffe, Associate Counsel