Citation Nr: 18143302 Decision Date: 10/18/18 Archive Date: 10/18/18 DOCKET NO. 15-30 026 DATE: October 18, 2018 ORDER Entitlement to service connection for coronary artery disease (claimed as ischemic heart disease), to include as due to designated herbicide exposure, is granted. Entitlement to service connection for type 2 diabetes mellitus, to include as due to designated herbicide exposure, is granted. Entitlement to service connection for neuropathy of the left upper extremity, as secondary to service-connected type 2 diabetes mellitus, is granted. Entitlement to service connection for neuropathy of the right upper extremity, as secondary to service-connected type 2 diabetes mellitus, is granted. Entitlement to service connection for neuropathy of the left lower extremity, as secondary to service-connected type 2 diabetes mellitus, is granted. Entitlement to service connection for neuropathy of the right lower extremity, as secondary to service-connected type 2 diabetes mellitus, is granted. Entitlement to service connection for tinnitus is granted. REMANDED Entitlement to service connection for erectile dysfunction is remanded. Entitlement to service connection for diabetic retinopathy is remanded. Entitlement to service connection for bladder cancer is remanded. Entitlement to service connection for prostate cancer is remanded. Entitlement to service connection for cause of death is remanded. Entitlement to dependency and indemnity compensation (DIC) benefits under 38 U.S.C. § 1318 is remanded. FINDINGS OF FACT 1. The Veteran served in the U.S. Air Force at Takhli Royal Thai Air Force Base during the Vietnam Era as a jet engine mechanic and had duties near the base perimeter. 2. The Veteran has a diagnosis of coronary artery disease status post stent placement. 3. The Veteran has a diagnosis of type 2 diabetes mellitus. 4. The Veteran’s neuropathy of the left upper extremity was caused by his service-connected type 2 diabetes mellitus. 5. The Veteran’s neuropathy of the right upper extremity was caused by his service-connected type 2 diabetes mellitus. 6. The Veteran’s neuropathy of the left lower extremity was caused by his service-connected type 2 diabetes mellitus. 7. The Veteran’s neuropathy of the right lower extremity was caused by his service-connected type 2 diabetes mellitus. 8. The Veteran’s tinnitus was manifest in service. CONCLUSIONS OF LAW 1. Coronary artery disease is presumed to have been incurred in service. 38 U.S.C. §§ 1110, 1113, 1116, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309(e) (2017). 2. Type 2 diabetes mellitus is presumed to have been incurred in service. 38 U.S.C. §§ 1110, 1113, 1116, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309(e) (2017). 3. Neuropathy of the left upper extremity is proximately due to the Veteran’s service connected type 2 diabetes mellitus. 38 U.S.C. §§ 1110, 5107 (2012); 38 C.F.R. §§ 3.102, 3.310 (2017). 4. Neuropathy of the right upper extremity is proximately due to the Veteran’s service connected type 2 diabetes mellitus. 38 U.S.C. §§ 1110, 5107 (2012); 38 C.F.R. §§ 3.102, 3.310 (2017). 5. Neuropathy of the left lower extremity is proximately due to the Veteran’s service connected type 2 diabetes mellitus. 38 U.S.C. §§ 1110, 5107 (2012); 38 C.F.R. §§ 3.102, 3.310 (2017). 6. Neuropathy of the right lower extremity is proximately due to the Veteran’s service connected type 2 diabetes mellitus. 38 U.S.C. §§ 1110, 5107 (2012); 38 C.F.R. §§ 3.102, 3.310 (2017). 7. Tinnitus was incurred in wartime service. 38 U.S.C. §§ 1110, 1112, 1113, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309(a) (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the U.S. Air Force from August 1963 to August 1967, including service in Thailand at Takhli Royal Thai Air Force Base from April 1965 to February 1966 during the Vietnam era. The Veteran died in April 2016. The appellant of record is the Veteran’s surviving spouse and has been granted substitution as appellant in the Veteran’s appeal pending at the time of his death. These matters come to the Board of Veterans’ Appeals (Board) on appeal from April 2013 and September 2016 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in Indianapolis, Indiana. Duty to Notify and Assist VA has a duty to notify and assist Veterans in substantiating a claim for VA benefits. 38 U.S.C. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.326(a) (2017). Neither the appellant nor her representative has raised any issues with the duty to notify or duty to assist. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that “the Board’s obligation to read filings in a liberal manner does not require the Board... to search the record and address procedural arguments when the veteran fails to raise them before the Board.”); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to duty to assist argument). Service Connection Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). Generally, to establish service connection a Veteran must show: “(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.” Davidson v. Shinseki, 581 F.3d 1313, 1315–16 (Fed. Cir. 2009); Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Pertinent VA law and regulations provide that a veteran who served in the Republic of Vietnam during the Vietnam era shall be presumed to have been exposed during such service to certain designated herbicide agents (i.e., Agent Orange). 38 U.S.C. § 1116; 38 C.F.R. § 3.307(a)(6)(iii). The diseases that are listed at 38 C.F.R. § 3.309(e) shall be presumptively service connected if there are circumstances establishing herbicide agent exposure during active military service, even though there is no record of such disease during service. Generally, the regulation applies where an enumerated disease becomes manifest to a degree of 10 percent or more at any time after service. 38 C.F.R. § 3.307(a)(6)(ii). Pursuant to its duty to assist, VA has established a procedure for Regional Offices to verify exposure to herbicides in Thailand during the Vietnam Era. See Compensation and Pension (C&P) Bulletin, May 2010. In the May 2010 bulletin, Compensation and Pension indicated that it had determined that there was significant use of herbicides on the fenced in perimeters of military bases in Thailand intended to eliminate vegetation and ground cover for base security purposes. A primary source for this information was the declassified Vietnam era Department of Defense (DOD) document titled Project CHECO Southeast Asia Report: Based Defense in Thailand. Although DOD indicated that the herbicide use was commercial in nature rather than tactical (such as Agent Orange), Compensation and Pension has determined that there was some evidence that herbicides of a tactical nature, or that of a “greater strength” commercial variant, were used. Given this information, Compensation and Pension has determined that special consideration should be given to veterans whose duties placed them on or near the perimeters of Thailand military bases. Consideration of herbicide exposure on a “facts found or direct basis” should be extended to those veterans. Significantly, Compensation and Pension stated that “[t]his allows for presumptive service connection of the diseases associated with herbicide exposure.” Compensation and Pension indicated that herbicide exposure should be acknowledged on a facts found or direct basis if a United States Air Force veteran served at one of the air bases as a security policeman, a security patrol dog handler, a member of a security police squadron, or otherwise served near the air base perimeter, as shown by military occupational specialty, performance evaluations, or other credible evidence. However, this applies only during the Vietnam era, from February 28, 1961, to May 7, 1975. In several briefs, the Veteran repeatedly cited this and other information issued by the Veterans Benefits Administration and contained in the in the VA Adjudicative Procedures Manual (M21-1). In DAV v. Secretary of Veterans Affairs, 859 F.3d 1072 (Fed. Cir. 2017), the Federal Circuit held the M21-1 is an internal manual used to guide VA adjudicators and does not establish substantive rules. The Federal Circuit specifically noted that the Board is not bound by the M21-1. See also Overton v. Wilkie, 2018 U.S. App. Vet Claims LEXIS 1251). When relying on any M21-1 provision, the Board must independently review the matter the M21-1 addresses and if, after such review, the Board chooses to rely on the M21-1 as a factor in its analysis or as the rule of decision, it must provide adequate reasons or bases for doing so. Service connection may also be warranted for disability proximately due to or the result of a service-connected disease or injury. 38 C.F.R. § 3.310(a). This permits service connection not only for a disability caused by a service-connected disability, but for the degree of disability resulting from aggravation of a disability by a service-connected disability. See Allen v. Brown, 7 Vet. App. 439, 448 (1995). In the case of aggravation by a service-connected disability, a Veteran may be compensated for the degree of disability over and above the degree of disability existing prior to the aggravation. Id.; see also 38 C.F.R. § 3.310(b). VA is required to give due consideration to all pertinent medical and lay evidence in evaluating a claim for disability benefits. 38 U.S.C. § 1154(a). Lay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). Lay evidence cannot be determined to be not credible merely because it is unaccompanied by contemporaneous medical evidence. Buchanan v. Nicholson, 451 F.3d 1331, 1336–37 (Fed. Cir. 2006). However, the lack of contemporaneous medical evidence can be considered and weighed against a Veteran’s lay statements. Id. Further, a negative inference may be drawn from the absence of complaints or treatment for an extended period. Maxson v. West, 12 Vet. App. 453, 459 (1999), aff’d sub nom. Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000). 1. Coronary Artery Disease, Diabetes Mellitus, and Diabetic Neuropathy of the Upper and Lower Extremities The appellant contends that the Veteran was entitled to service connection for coronary artery disease, type 2 diabetes mellitus, and diabetic neuropathy of the upper and lower extremities. The appellant contends that the disabilities were caused by exposure to designated herbicides when the Veteran was stationed in Thailand during the Vietnam era. There are two issues to determine if service connection is warranted in this claim on a presumptive basis: whether the Veteran was directly exposed to designated herbicide agents and whether the Veteran has an enumerated disease associated with designated herbicide exposure. In his Application for Compensation and or Pension received in August 2011, the Veteran stated that he was stationed with the 4522 Field Maintenance Squadron at the Takhli Royal Thai Air Force Base in Thailand. The Veteran also noted that he was frequently deployed to Da Nang in Vietnam to repair aircraft. He stated that he was sent about six times for three to four hours each time. The Veteran reported that while stationed at Takhli, he was frequently placed on guard duty, primarily at the ammunition depot. He further noted that Takhli was “a very small base” and that all the buildings were close to the perimeter. The Board notes that the evidence of record contains a signed affidavit from the Veteran dated July 2015. The Veteran stated that he was stationed at Takhli Royal Thai Air Force Base from April 1965 to February 1966. He reported that he worked on the air strip as a jet engine mechanic, and was 30 meters away from the perimeter of the base. The Veteran noted that the foliage in the area and near the airstrip was “dead” and that the grass was brown. The Veteran stated that it was defoliated “all the way” to the airstrip. During his shift, the Veteran stated that he would take his cigarette breaks at the perimeter because he was unable to smoke along the flight line. The Veteran further stated that he was also tasked with guarding the ammunition depot between three and five times while on base. He indicated that the detail lasted all evening and was on the perimeter of the base with no foliage or greenery. The Veteran stated that he resided in a “hooch” as the new barracks had not yet been constructed. The Veteran further stated that the “hooch” was 20 to 30 meters from the perimeter. He also noted that during his downtime, he would frequently travel into town and visit local bars. He further reported that there were heavy rain storms and monsoon season that lasted two to three months. The Veteran stated that the base would flood during monsoon season and the “entire place would wash out.” Service personnel records show that the Veteran’s primary occupation was jet engine mechanic. However, the records show that he served at Takhli Royal Thai Air Force Base from July 1966 to April 1967 in the 355 Field Maintenance Squadron. A performance evaluation from February 1966 (prior to his assignment at Takhli) through February 1967 reported that the Veteran was the airman in charge of bench stock and supply for the engine shop. There is no mention of work on aircraft engines on runways, guard duty, or travel to Vietnam on special missions, the latter being highly likely to have been recorded in the evaluation of a very junior airman had it occurred. The Board finds that the evidence is not sufficient to find that the Veteran visited Vietnam; and therefore, a presumption of exposure is not available. Upon review of the materials submitted by the Veteran in a January 2016 brief from the Departments of the Army and Air Force reporting the use of herbicides in Thailand, the Board that the weight of evidence is that herbicides of some formulation were used and applied by base management personnel using hand-held or vehicle mounted units either during the Veteran’s service at Takhli or with residue persisting in defoliated areas during that service. Resolving any doubt in the Veteran’s favor, the Board finds that in this case the designated herbicide agents may have been present in sufficient concentration and formulation to qualify as the agents for which the presumption of causation of certain diseases are available. The Veteran’s statements as to his service duties and living arrangements consistently bringing him near the perimeter of Takhli Royal Thai Air Force Base are consistent with the evidence of record. Contrary to the representative’s contention in a brief, the Board finds that “being near” defoliated areas, including the reference to the Army procedure of a potential 500 meter affected range, does not necessarily constitute physical contact with herbicide or its residue such that there was some causative effect. There is no presumption of exposure but rather the requirement that the Veteran demonstrate that his disability was caused by a disease or injury. 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). Here, it is physical contact of some nature with the herbicide agents that is necessary. Notwithstanding the absence of any report of runway engine repair duties or guard duties in his performance evaluation, the Board finds that the Veteran’s reports of the performance of runway area repair and guard duty are credible as they are consistent with his rank and occupation. It is reasonable that a supply airman be required to carry parts to an outdoor worksite and that junior airman be assigned occasional guard duty around aircraft. More importantly, the Veteran credibly reported entering the defoliated areas during breaks and on guard assignments. He also credibly reported living in open barracks where herbicide residue washed into the area during monsoons. As such, and with no evidence to weigh against those statements, the Board finds that the credible evidence of record supports a finding on a direct basis that the Veteran’s particularly described service as a jet engine mechanic required him to enter defoliated areas on the perimeter of Takhli Royal Thai Air Force Base and had physical contact with a designated herbicide agent. Private outpatient treatment records dated January 2002 to April 2011 reference diagnoses of type 2 diabetes mellitus with associated paresthesias, neuropathy, and coronary artery disease status post stent placement. The Board notes that an August 2011 Disability Benefits Questionnaire indicated that the Veteran had diagnoses of coronary artery disease, myocardial infarction, and type 2 diabetes mellitus. The Board finds the evidence of record establishes that the Veteran has coronary artery disease and type 2 diabetes mellitus and that there is no evidence to rebut the presumptive relationship of such disease to the Veteran’s designated herbicide exposure. 38 U.S.C. § 1113(a); 38 C.F.R. § 3.307(d). Additionally, as there is no affirmative evidence of non-exposure, the Veteran is deemed to have been so exposed. As the Board has found that the Veteran was exposed to a designated herbicide agent, service connection for coronary artery disease and type 2 diabetes mellitus is presumed. 38 C.F.R. §§ 3.307, 3.309. Service connection is therefore warranted for coronary artery disease and type 2 diabetes mellitus. 38 C.F.R. § 3.309(e). The Board further finds that service connection for diabetic neuropathy of the upper and lower extremities, to include as secondary to service-connected type 2 diabetes mellitus, is also warranted. 2. Tinnitus The appellant contends that the Veteran was entitled to service connection for tinnitus. Tinnitus is a condition that may be diagnosed by its unique and readily identifiable features, and the presence of the disorder is not a determination that is medical in nature and is capable of lay observation. Charles v. Principi, 16 Vet. App. 370 (2002). A layperson also is competent to testify as to the onset and continuity of symptomatology. Heuer v. Brown, 7 Vet. App. 379, 384 (1995); Falzone v. Brown, 8 Vet. App. 398, 403 (1995). The Board further notes that tinnitus may be subject to service connection on a presumptive basis as an “organic disease of the nervous system” under 38 C.F.R. § 3.309(a) where there is evidence of in-service acoustic trauma and a continuity of symptomatology from service. See Fountain v. McDonald, 27 Vet. App. 258 (2015); see also Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). In his August 2011 Application for Compensation and or Pension, the Veteran stated that he was exposed to noise in the course of his duties as a jet engine mechanic in service. The Veteran specifically cited to noise exposure from ground power units, generators, and aircraft. In a November 2012 private audiological evaluation, the Board notes that the Veteran endorsed tinnitus and a history of noise exposure. Thereafter, in a March 2015 VA audiological examination, the Veteran endorsed intermittent tinnitus. While the Veteran was reportedly not clear on frequency, he noted that it was not “as bad” as when he was younger. In this case, there is evidence of in-service acoustic exposure and reports of a continuity of symptomatology from service. As such, the Board concludes that entitlement to service connection for tinnitus is warranted. REASONS FOR REMAND Upon review of the record, the Board finds a remand is necessary to ensure that there is a complete record upon which to decide the appellant’s claim so that she is afforded every possible consideration. 38 U.S.C. § 5103A (2012); 38 C.F.R. § 3.159 (2017). 1. Erectile Dysfunction Regarding the Veteran’s claimed erectile dysfunction, the Veteran reported that the onset of the disability occurred in 1998 in his Application for Compensation and or Pension (VA Form 21-526) received in August 2011. He further indicated that the disability was not treated. A review of the current evidence of record does not contain a diagnosis of or treatment for erectile dysfunction. Therefore, additional development is required to determine the nature and etiology of the claimed disability. 2. Diabetic Retinopathy The appellant contends that the Veteran was entitled to service connection for diabetic retinopathy. The Veteran reported in his August 2011 Application for Compensation and or Pension (VA Form 21-526) that the disability began in 2006 and was treated for in Indianapolis, Indiana. The Board notes that upon review of the current evidence of record, private outpatient treatment records dated July 2009, October 2010, and April 2011 were reportedly negative for retinopathy. Therefore, additional development to associate treatment records that document such a diagnosis is required to determine the nature and etiology of the claimed disability. 3. Bladder Cancer and Prostate Cancer The appellant contends that the Veteran was entitled to service connection for bladder cancer and prostate cancer. A September 2012 Disability Benefits Questionnaire completed by the Veteran’s treating oncologist noted that the Veteran was diagnosed with bladder cancer in August 2012. Private oncology records reference an August 2012 cystoscopy and transurethral resection of bladder tumor (TURBT) procedure that identified poorly-differentiated, high-grade, transitional cell carcinoma that infiltrated into the prostate on biopsy. In September 2012, the Veteran’s private oncologist submitted a letter on behalf of the Veteran. The oncologist indicated that the Veteran had stage IV high-grade transitional cell carcinoma of the bladder. In January 2013, the Veteran underwent radical cystoprostatectomy, bilateral pelvic lymph node dissection, lysis of adhesions, and ileal loop urinary conduit due for bladder cancer with extension into the prostate. A February 2015 positron emission tomography (PET) scan identified findings consistent with metastatic disease in the supraclavicular region and mediastinum, metastatic disease in the left retroperitoneum, and diffuse stranding in the left kidney due to metastatic disease. A December 2015 computed tomography (CT) scan of the chest, abdomen, and pelvis showed increased metastatic disease with increased and new lung nodules, increased adenopathy in the chest and abdomen, and new liver lesions. In a subsequent January 2016 letter, the Veteran’s oncologist indicated that the Veteran was under his care for recurrent, metastatic bladder cancer. The oncologist further reported that the bladder cancer had spread to the Veteran’s liver, lungs, and lymph nodes with no available cure for the malignancy. A March 2016 chest x-ray identified lung lesions. The diagnostic report noted that a review of a CT scan of the chest showed that the lesions were metastases. The Board notes that in a March 2016 emergency department admission, the Veteran was diagnosed with bladder cancer with metastases to the liver, lungs, and adrenals. The Board further notes that the March 2016 CT scan showed pulmonary, hepatic, nodal, and potential left adrenal metastases. A March 2016 chest x-ray showed bilateral lung masses compatible with known metastatic disease. The Veteran’s death certificate lists the cause of death as metastatic malignant neoplasm or cancer of the bladder, lung, and liver. Based upon the evidence of record, the Veteran’s bladder cancer metastasized to the prostate, liver, lungs, and lymph nodes. Bladder cancer is not an enumerated disease entitled to presumptive service connection under 38 C.F.R. § 3.309(e) due to designated herbicide exposure. Therefore, a VA medical examiner opinion is warranted to determine the nature and etiology of the Veteran’s bladder cancer, to include designated herbicide exposure. McLendon v. Nicholson, 20 Vet. App. 79 (2006). 4. Cause of Death and DIC Benefits DIC benefits are payable to the surviving spouse of a Veteran if the Veteran died from service-connected disability. 38 U.S.C. § 1310 (2012). Service connection for the cause of a Veteran’s death is warranted if a service-connected disability either caused or contributed substantially or materially to the cause of the Veteran’s death. 38 C.F.R. § 3.312. The death of a Veteran will be considered as having been due to a service-connected disability when the evidence establishes that such disability was either the principal or a contributory cause of death. The issue involved will be determined by exercise of sound judgment, without recourse to speculation, after a careful analysis has been made of all the facts and circumstances surrounding the death of the Veteran, including, particularly, autopsy reports. 38 C.F.R. § 3.312(a). A service-connected disability will be considered as the principal, or primary, cause of death when such disability, singly or jointly with some other condition, was the immediate or underlying cause of death or was etiologically related thereto. 38 C.F.R. § 3.312(b). A contributory cause of death is inherently one not related to the principal cause. In determining whether the service-connected disability contributed to death, it must be shown that it contributed substantially or materially; that it combined to cause death; or that it aided or lent assistance to the production of death. It is not sufficient to show that it casually shared in producing death, but rather it must be shown that there was a causal connection. 38 C.F.R. § 3.312(c)(1); see also Gabrielson v. Brown, 7 Vet. App. 36, 39 (1994). As discussed above, the Veteran’s death certificate lists the cause of death as metastatic malignant neoplasm or cancer of the bladder, lung, and liver. Consequently, the appellant’s claims of service connection for cause of death and DIC benefits are intertwined with the claims of service connection for bladder cancer and prostate cancer. The matters are REMANDED for the following action: 1. If there is outstanding evidence, the appellant should be invited to submit such evidence. 2. Obtain opinions with appropriate VA clinicians to determine the existence and, if found, etiology of the Veteran’s erectile dysfunction, diabetic retinopathy, bladder cancer, and prostate cancer. The Veteran’s claims file must be made available to the examiner. The examiner should provide the following opinions: (a.) For each claim, is it at least as likely as not (probability of 50 percent or more) that the Veteran’s disability was caused or aggravated by a disease or injury in service, to include as due to herbicide exposure? Please explain why or why not. Please address the time of onset of the disease during or after service. (b.) For each claim, is it at least as likely as not (a 50 percent probability or greater) that the Veteran’s disability was caused by his service-connected disabilities? The Veteran was service connected for left ear hearing loss, coronary artery disease, type 2 diabetes mellitus, neuropathy of the upper and lower extremities, and tinnitus. (c.) For each claim, is it at least as likely as not (a 50 percent probability or greater) that the Veteran’s disability was aggravated (ie., permanently worsened beyond the natural progress) by the Veteran’s service-connected disabilities? The Veteran was service connected for left ear hearing loss, coronary artery disease, type 2 diabetes mellitus, neuropathy of the upper and lower extremities, and tinnitus. A detailed rationale for the opinion must be provided. If aggravation is found, please identify to the extent possible the baseline level of disability prior to the aggravation and determine what degree of additional impairment is attributable to aggravation of his progressive motor neuropathy by the service-connected disabilities. The availability of presumptive service connection for a disability based on exposure to herbicides does not preclude a Veteran from establishing service connection with proof of direct causation. Stefl v. Nicholson, 21 Vet. App. 120 (2007); see also Combee v. Brown, 34 F. 3d 1039 (Fed. Cir. 1994). The examiner is reminded that the term “as likely as not” does not mean “within the realm of medical possibility,” but rather that the evidence of record is so evenly divided that, in the examiner’s expert opinion, it is as medically sound to find in favor of the proposition as against it. The underlying reasons for any opinions expressed must be included in the report. If the examiner is unable to offer the requested opinion, it is essential that the examiner offer a rationale for the conclusion that an opinion could not be provided without resort to speculation, together with a statement as to whether there is additional evidence that could enable an opinion to be provided, or whether the inability to provide the opinion is based on the limits of medical knowledge. See Jones v. Shinseki, 23 Vet. App. 382 (2010). 3. Thereafter, readjudicate the issues on appeal. If the determinations remain unfavorable to the appellant, she and her representative should be furnished a supplemental statement of the case. J.W. FRANCIS Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD G. A. Ong, Associate Counsel