Citation Nr: 18143823 Decision Date: 10/22/18 Archive Date: 10/22/18 DOCKET NO. 16-30 474 DATE: October 22, 2018 ORDER Entitlement to service connection for hypertension is denied. Entitlement to an initial rating in excess of 10 percent for tinnitus is denied. Entitlement to an effective date earlier than December 18, 2013, for the grant of service connection for right ear hearing loss is denied. Entitlement to an effective date earlier than December 18, 2013, for the grant of service connection for tinnitus is denied. REMANDED Entitlement to an initial compensable rating for right ear hearing loss is remanded. Entitlement to service connection for left ear hearing loss is remanded. Entitlement to service connection for headaches is remanded. Entitlement to service connection for sleep apnea is remanded. Entitlement to service connection for diabetes mellitus is remanded. Entitlement to service connection for peripheral neuropathy, left upper extremity; claimed as neuropathy, is remanded. Entitlement to service connection for peripheral neuropathy, right upper extremity; claimed as neuropathy, is remanded. Entitlement to service connection for peripheral neuropathy sciatic nerve, left lower extremity; claimed as neuropathy, is remanded. Entitlement to service connection for peripheral neuropathy sciatic nerve, right lower extremity; claimed as neuropathy, is remanded. Entitlement to service connection for peripheral neuropathy femoral nerve, left lower extremity; claimed as neuropathy, is remanded. Entitlement to service connection for peripheral neuropathy femoral nerve, right lower extremity; claimed as neuropathy, is remanded. FINDINGS OF FACT 1. The competent evidence of record fails to show that the Veteran’s hypertension was incurred in active duty or manifested within one year of his separation from service. 2. The current 10 percent initial disability rating for tinnitus is the maximum schedular rating. 3. Service connection for right ear hearing loss was granted effective December 18, 2013, one year prior to the date the Veteran’s claim was received. 4. Service connection for tinnitus was granted effective December 18, 2013, one year prior to the date the Veteran’s claim was received. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for hypertension have not been met. 38 U.S.C. §§ 1110, 1131, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.307, 3.309 (2017). 2. The claim for an initial rating in excess of 10 percent for tinnitus is without legal merit. 38 U.S.C. § 1155 (2012); 38 C.F.R. § 4.87, Diagnostic Code 6260 (2017). 3. The criteria for an effective date earlier than December 18, 2013, for the grant of service connection for right ear hearing loss have not been met. 38 U.S.C. §§ 5107, 5110 (2012); 38 C.F.R. §§ 3.102, 3.400 (2017). 4. The criteria for an effective date earlier than December 18, 2013, for the grant of service connection for tinnitus have not been met. 38 U.S.C. §§ 5107, 5110 (2012); 38 C.F.R. §§ 3.102, 3.400 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from September 1988 to September 1992, with service in the Southwest Asia theater of operations. Service Connection Service connection may be established for disability resulting from personal injury suffered or disease contracted in the line of duty, or for aggravation of a preexisting injury suffered or disease contracted in line of duty, in the active military, naval, or air service. 38 U.S.C. §§ 1110, 1131. Service connection may also 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). To establish service connection for a disability resulting from a disease or injury incurred in service, or to establish service connection based on aggravation in service of a disease or injury which pre-existed service, there must be (1) of the current existence of the disability for which service connection is being claimed; (2) competent evidence of incurrence or aggravation of a disease or injury in active service; and (3) competent evidence of a nexus or connection between the current disability and the disease or injury incurred or aggravated in service. Horn v. Shinseki, 25 Vet. App. 231, 236 (2010); Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. Sept. 14, 2009); cf. Gutierrez v. Principi, 19 Vet. App. 1, 5 (2004) (citing Hickson v. West, 12 Vet. App. 247, 253 (1999)). In many cases, medical evidence is required to meet the requirement that the evidence be “competent”. However, when a condition may be diagnosed by its unique and readily identifiable features, the presence of the disorder is not a determination “medical in nature” and is capable of lay observation. Barr v. Nicholson, 21 Vet. App. 303, 309 (2007). Some chronic diseases, including hypertension, may be presumed to have been incurred in service if they become manifest to a degree of 10 percent or more within a specified period of time post-service (one year for hypertension). 38 U.S.C. § 1112; 38 C.F.R. §§ 3.307, 3.309. In rendering a decision on appeal, the Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant. See Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the benefit of the doubt shall be given to the claimant. 38 U.S.C. § 5107(b). When a reasonable doubt arises regarding service origin, such doubt will be resolved in the favor of the claimant. Reasonable doubt is doubt which exists because of an approximate balance of positive and negative evidence which does not satisfactorily prove or disprove the claim. 38 C.F.R. § 3.102. The question is whether the evidence supports the claim or is in relative equipoise with the claimant prevailing in either event, or whether a fair preponderance of the evidence is against the claim, in which event the claim must be denied. See Gilbert, 1 Vet. App. at 5. 1. Entitlement to service connection for hypertension The Veteran is seeking service connection for hypertension which he contends is related to his active service. The Veteran’s service treatment records (STRs) are negative for treatment for symptoms of high blood pressure in service. Although the Veteran waived his separation examination, a treatment record dated March 1992 reflects his blood pressure was recorded as 110/80. The earliest clinical evidence of post-service hypertension is a notation in the Veteran’s VA records indicating he was diagnosed with hypertensive disorder in March 2015. A July 2015 VA treatment record indicates the Veteran was a known hypertensive and was on lisinopril. The Veteran’s blood pressure was recorded as 120/70. In October 2017, the Veteran sought treatment for his blood pressure, which was recorded as 176/105 and 181/93. The Board concludes that, while the Veteran has hypertension, which is a chronic disease under 38 C.F.R. § 3.309(a), it did not manifest to a compensable degree in service or within a presumptive period, and continuity of symptomatology is not established. 38 U.S.C. §§ 1101(3), 1112, 1113, 1137; Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013); 38 C.F.R. §§ 3.303 (b), 3.307, 3.309(a). The Board finds that the preponderance of the evidence is against the claim for service connection for hypertension on a presumptive basis because there was no indication that the chronic disease of hypertension was “shown as such in service” or that it manifested itself to a degree of 10 percent or more within one year from the date of the Veteran’s separation from service. 38 C.F.R. § 3.303(b). There is no competent evidence of hypertension being noted during service or during the presumptive period but not “shown to be chronic” because there is no evidence establishing hypertension was noted during service or within the presumptive period. Therefore, service connection in this case may not be shown by a continuity of symptomatology after discharge. See Walker, 708 F.3d at 1336 (where a chronic disease is noted during service or during the presumptive period but not “shown to be chronic,” then a showing of continuity of symptomatology after discharge is required to support a claim for disability compensation for the chronic disease). 38 C.F.R. §§ 3.307(a)(3), 3.309(a). Furthermore, the Board finds that the preponderance of the evidence is also against the claim for service connection for hypertension on a direct basis. There is no competent evidence of the presence of hypertension during active duty. There is no evidence associated with the file that establishes the Veteran complained of or was treated for hypertension while in service and testing conducted during service was not interpreted as having elevated blood pressure readings. Although the Veteran’s post-service medical records clearly establish that he has a current disability of hypertension, there is no probative evidence to establish that hypertension had its onset in service or is otherwise the result of service. The first diagnosis of the disorder is dated 23 years after the Veteran’s discharge and there is no competent evidence of record linking the current diagnosis to active duty in any way. Therefore, service connection for hypertension on direct basis is not warranted. 38 C.F.R. § 3.303(a), (d). Accordingly, service connection for hypertension is not warranted. In reaching this conclusion, the Board has given consideration to the doctrine of reasonable doubt; however as the preponderance of the evidence is against the Veteran’s claim for service connection for hypertension, the doctrine is not applicable. See 38 C.F.R. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49, 56 (1990). Increased Rating Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (Rating Schedule) and are intended to represent the average impairment of earning capacity resulting from disability. 38 U.S.C. § 1155 (2012); 38 C.F.R. § 4.1 (2016). Disabilities must be reviewed in relation to their history. 38 C.F.R. § 4.1. Other applicable, general policy considerations are interpreting reports of examination in light of the whole recorded history; reconciling the various reports into a consistent picture so that the current rating may accurately reflect the elements of disability, 38 C.F.R. § 4.2; resolving any reasonable doubt regarding the degree of disability in favor of the claimant, 38 C.F.R. § 4.3; where there is a question as to which of two evaluations apply, assigning a higher of the two where the disability picture more nearly approximates the criteria for the next higher rating, 38 C.F.R. § 4.7; and, evaluating functional impairment on the basis of lack of usefulness, and the effects of the disabilities upon the person’s ordinary activity, 38 C.F.R. § 4.10. See Schafrath v. Derwinski, 1 Vet. App. 589 (1991). Where an increase in the level of a service connected disability is at issue, the primary concern is the present level of disability. Francisco v. Brown, 7 Vet. App. 55 (1999). The Court has held that in determining the present level of a disability for any increased evaluation claim, the Board must consider the application of staged ratings. See Hart v. Mansfield, 21 Vet. App. 505, 509-510 (2007). That is to say, the Board must consider whether there have been times when his service-connected disability has been more severe than at others, and rate it accordingly. 2. Entitlement to an increased initial rating in excess of 10 percent for tinnitus Service connection has been established for tinnitus, effective December 18, 2013, 2004. The Veteran was granted an initial 10 percent evaluation pursuant to 38 C.F.R. § 4.87, Diagnostic Code 6260, the maximum evaluation assignable under that diagnostic code. A single evaluation is assigned for recurrent tinnitus whether it is present in one or both ears. 38 C.F.R. § 4.87, Diagnostic Code 6260, Note (2) (2017). Neither Diagnostic Code 6260, nor any other Diagnostic Code allows the assignment of a schedular evaluation in excess of 10 percent for tinnitus affecting both ears. Therefore, the claim for a higher initial schedular evaluation for tinnitus must be denied as a matter of law. Smith v. Nicholson, 451 F.3d 1344 (Fed. Cir. 2006). Effective Date In general, the effective date of an award of disability compensation, in conjunction with a grant of entitlement to service connection, shall be the day following separation from active service or the date entitlement arose if the claim is received within one year of separation from service; otherwise, the effective date shall be the date of receipt of the claim, or the date entitlement arose, whichever is later. 38 U.S.C. § 5110; 38 C.F.R. § 3.400(b)(2)(i). 3. Effective date earlier than December 18, 2013 for the grant of service connection for right ear hearing loss and 4. Effective date earlier than December 18, 2013 for the grant of service connection for tinnitus The Veteran is seeking an earlier effective date for the award of service connection for right ear hearing loss and for tinnitus. Unless Chapter 38 of the United States Code specifically provides otherwise, the effective date of an evaluation and grant of pension, compensation, or dependency and indemnity compensation based on an original claim, a claim reopened after final disallowance, or a claim for increase will be the date of receipt of the claim or the date entitlement arose, whichever is the later. See 38 U.S.C. § 5110(a) (2012); 38 C.F.R. § 3.400 (2017). An earlier effective date may be granted prior to the date of the filing of the claim for a rating increase if it is ascertainable that an increase in disability occurred within one year prior to the filing of the claim. See 38 U.S.C. § 5110(b)(2) (2012); 38 C.F.R. § 3.400(o)(2) (2017). The effective date for a grant of service connection is the day following the date of separation from active service or the date entitlement arose, if the claim is received within one year after separation from active service; otherwise date of receipt of claim, or date entitlement arose, whichever is later. See 38 U.S.C. § 5110(a) (2012); 38 C.F.R. § 3.400(b)(2)(i) (2016). A “claim” is a formal or informal communication in writing requesting a determination of entitlement or evidencing a belief in entitlement to a benefit. See 38 C.F.R. § 3.1(p) (2017). “Date of receipt” of a claim, information, or evidence means the date on which a claim, information, or evidence was received by VA. See 38 C.F.R. § 3.1(r) (2016). Any documented communication from, or action by, a veteran indicating intent to apply for a benefit under laws administered by VA may be considered an informal claim. See 38 C.F.R. § 3.155(b) (2016). To determine when a claim was received, the Board must review all communications in the claims file that may be construed as an application or claim. See Quarles v. Derwinski, 3 Vet. App. 129, 134 (1992). A review of the claims file reveals that VA received the Veteran’s formal claim for service connection for hearing loss and tinnitus on December 18, 2014. Generally, the effective date for service connection is not based on the date a disability began, but rather on the date of receipt of the claim. See Lalonde v. West, 12 Vet. App. 377, 382 (1999). The Veteran asserts he is entitled to an earlier effective date for the award of service connection for right ear hearing loss and tinnitus. The Veteran underwent a VA hearing loss and tinnitus examination on March 11, 2015. The examiner determined that it was at least as likely as not that the Veteran’s right ear hearing loss was caused by or was a result of an event in military service. Additionally, the examiner determined that it was at least as likely as not that the Veteran’s tinnitus was the result of in-service noise exposure. Based on the findings of this examination, the AOJ issued a rating decision in April 2015 which assigned a noncompensable rating for right ear hearing loss and a 10 percent rating for tinnitus effective December 18, 2013. After a careful consideration, the Board finds that the entitlement to an earlier effective date for service connection for right ear hearing loss and for tinnitus is not warranted. No communication was received from the Veteran, his representative or his congressman indicating an intent to claim service connection for these disabilities prior to December 18, 2014. To the extent that effective dates of December 18, 2013 have already been assigned by the AOJ, these dates will not be disturbed by the Board. The appeal for earlier effective dates for grants of service connection for right ear hearing loss and for tinnitus must be denied. See 38 U.S.C. § 5110 (2012); 38 C.F.R. § 3.400 (2017). There is no reasonable doubt to be resolved as to these issues. See 38 U.S.C. § 5107(b) (2012); 38 C.F.R. § 3.102 (2016); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). REASONS FOR REMAND 1. Entitlement to an initial compensable evaluation for right ear hearing loss The Veteran’s VA treatment records note that at a November 2017 audiology appointment, the Veteran reported that he felt his hearing had declined bilaterally since his prior VA examination (March 2015). The Veteran should be provided an opportunity to report for a VA examination to ascertain the current severity and manifestations of his right ear hearing loss disability. VA’s duty to assist includes providing a new VA examination where the evidence suggests that the condition has materially worsened since the last VA examination of record. See 38 C.F.R. §§ 3.326, 3.327 (reexaminations will be requested whenever VA determines there is a need to verify the current severity of a disability, such as when the evidence indicates there has been a material change in a disability or that the current rating may be incorrect); Snuffer v. Gober, 10 Vet. App. 400, 403 (1997). On remand, the Veteran should be scheduled for a VA examination to determine the current nature and severity of his right ear hearing loss. 2. Entitlement to service connection for left ear hearing loss The Veteran underwent a VA audio examination in March 2015. Audiometric testing revealed hearing loss in both ears. While the VA examiner determined that the Veteran’s right ear hearing loss was related to in-service noise exposure, she opined that it was less likely than not that the Veteran’s left ear hearing loss was related to noise exposure during military service because no permanent positive threshold shift in the Veteran’s left ear hearing was recorded during service. The Board finds that this opinion is inadequate as the examiner used a lack of evidence showing hearing loss upon separation to support the opinion that the Veteran’s left ear hearing loss is not related to his period of active service. Under 38 C.F.R. § 3.385, service connection for a current hearing disability is not precluded where hearing was within normal limits at separation. See Hensley v. Brown, 5 Vet. App. 155, 159-60 (1993). Thus, as this opinion is inadequate, another opinion should be obtained on remand. 3. Entitlement to service connection for headaches The Veteran underwent a VA headache examination in March 2015. The examiner noted the Veteran’s report that he developed headaches during service, with onset during his deployment in support of Operation Desert Shield/Operation Desert Storm. The Veteran reported receiving no formal treatment for headaches for this condition. The examiner noted that there is no formal diagnosis of a headache condition. The examiner noted that the Veteran endorses multiple symptoms suggestive of migraine/migraine variant headaches and reports self-care since service to include over the counter Tylenol products. The examiner determined that there is no formal diagnosis of any headache condition despite symptoms which are suggestive of a current headache disorder. The examiner stated “there has been no formal evaluation for this condition endorsed by the Veteran today during interview.” The examiner further stated “I am unable to opine with respect to a causal association to his service, particularly in SWA, without resorting to mere speculation due to a paucity of evidence and based merely on a single evaluation for disability without other medical evidence to support and confirm diagnosis and treatment of a headache condition.” The Board finds that this opinion is inadequate for adjudication purposes as it did not address the Veteran’s statements regarding onset of symptoms, nor did the examiner conduct an evaluation of the Veteran for headaches, nor did she furnish a rationale sufficient to allow the Board to make an informed decision. Generally, when VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). On remand, the Veteran should be afforded a VA examination to determine whether or not he has a headache disorder that is related to his time in service. 4. Entitlement to service connection for sleep apnea The Veteran was afforded a VA sleep apnea examination in March 2015. The examiner noted that the Veteran had not been diagnosed with sleep apnea; but that the Veteran reported symptoms consistent with sleep apnea, to include sonorous sleep, apneic sleep, and excessive daytime somnolence. The examiner noted that “there is no formal diagnosis of sleep apnea despite the endorsement of symptoms suggestive of a sleep apnea disorder. There has been no formal evaluation and no formal sleep study. I am unable to opine with respect to a causal association to his service, particularly in SWA, without resorting to mere speculation based on the paucity of evidence and based on a single evaluation for disability without other medical evidence to formally support and confirm the diagnosis and treatment.” The Board finds that this opinion is inadequate for adjudication purposes. Generally, when VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). On remand, the Veteran should be afforded a VA examination to determine the current nature and etiology of any diagnosed sleep disorder. 5. Entitlement to service connection for diabetes mellitus and 6. Entitlement to service connection for peripheral neuropathy, left upper extremity; claimed as neuropathy and 7. Entitlement to service connection for peripheral neuropathy, right upper extremity; claimed as neuropathy and 8. Entitlement to service connection for peripheral neuropathy sciatic nerve, left lower extremity; claimed as neuropathy and 9. Entitlement to service connection for peripheral neuropathy sciatic nerve, right lower extremity; claimed as neuropathy and 10. Entitlement to service connection for peripheral neuropathy femoral nerve, left lower extremity; claimed as neuropathy and 11. Entitlement to service connection for peripheral neuropathy femoral nerve, right lower extremity; claimed as neuropathy The Veteran is seeking service connection for diabetes mellitus, type II and peripheral neuropathies of the upper and lower extremities. The Veteran underwent a VA diabetic sensory-peripheral neuropathy examination in March 2015. The examiner noted that the Veteran endorsed a formal diagnosis of diabetes mellitus type II in 2010, at which time he had been experiencing to both feet to include toes of burning pain, numbness, tingling and loss of sensation. The examiner noted that formal evaluation for the Veteran's diabetes provided treatment by his primary care physician, which included recommendations for treatment of peripheral nerve condition symptoms. The examiner opined that it “did not appear that the Veteran’s diabetes mellitus condition was caused by or was a result of his military service.” The Board finds this opinion is inadequate for adjudication purposes as it did not include a rationale for its conclusion. Generally, when VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). On remand, an addendum opinion should be obtained which addresses the nature and etiology of the Veteran’s diabetes mellitus type II. The peripheral neuropathy claims are intertwined with the diabetes mellitus claim. No rationale was provide for that opinion either. The matter is REMANDED for the following action: 1. Obtain any outstanding VA Medical treatment records and associate them with the electronic file. All record/responses received should be associated with the electronic file. All efforts to obtain the records should be fully documented, and the facility must provide a negative response if records are not available. 2. Provide the Veteran an opportunity to submit any outstanding private treatment records relating to his claimed left ear hearing loss, headaches, sleep apnea, diabetes mellitus and peripheral neuropathies of the upper and lower extremities disabilities and his service-connected right ear hearing loss disability. Provide the Veteran with the appropriate authorization for release form(s). For any outstanding private treatment records identified and authorized by the Veteran, make at least two (2) attempts to obtain such records. All attempts made must be documented in the electronic file, to include the unavailability of any identified records. For any identified records that are not obtained, notify the Veteran of such and provide him with an opportunity to submit those records directly. 3. Schedule Veteran for a VA audiologic examination to determine the current nature and severity of his service-connected right ear hearing loss; and for an opinion regarding the nature and etiology of the Veteran’s left ear hearing loss. The claims file should be made available to the examiner for review. Any indicated audiologic studies should be performed and the results should be reported in detail. The examiner should state whether it is at least as likely as not that the Veteran’s current left ear hearing loss is causally or etiologically related to his military service, including noise exposure. The term “as likely as not” does not mean within the realm of possibility, but rather that the medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of a conclusion as it is to find against it. The examiner must include in the medical report the rationale for any opinion expressed, based on the reviewer’s clinical experience, medical expertise, and established medical principles. However, if the examiner cannot respond to an inquiry without resort to mere speculation, he or she should so state, and further explain why it is not feasible to provide a medical opinion, stating what, if any, additional evidence would permit such an opinion to be made. 4. Schedule the Veteran for an examination by an appropriate clinician to determine the nature and etiology of any headache disability. The electronic file and a copy of this Remand must be made available to the examiner. The examiner should note in the examination report that the electronic file and the Remand have been reviewed. All testing deemed necessary must be conducted and the results should be reported in detail. The examiner is asked render opinions as to the following: a) Please identify any current diagnosis for any and all headache disorders found b) Please state whether the symptoms of any headache disorder are attributable to a known clinical diagnosis. c) If no diagnosis can be made, then the examiner shall provide an opinion regarding whether it is at least as likely as not (50 percent or greater probability) that the Veteran manifests signs and symptoms of any undiagnosed illness, primarily manifested by headaches, due to service in Southwest Asia. d) If no diagnosis can be made, then the examiner shall also provide an opinion regarding whether it is at least as likely as not (50 percent or greater probability) that the Veteran has a medically unexplained chronic multi-symptom illness, primarily manifested by headaches, due to service in Southwest Asia. e) Please provide an opinion as to whether it is at least as likely as not (50 percent or greater probability) any diagnosed headache disorder is related to his active military service, including service in Southwest Asia during the Persian Gulf War. The term “at least as likely as not” does not mean within the realm of medical possibility, but rather that the medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of the conclusion as it is to find against it. The examiner is asked not to rely solely on the absence of evidence relating to medical treatment as the basis for an opinion. A discussion of the underlying reasons for all opinions expressed must be included in the examiner’s report, to include reference to pertinent evidence of record and medical literature or treatises where appropriate. If the examiner is unable to provide an opinion without resorting to mere speculation, he or she must provide an explanation for the basis of that determination. 5. Schedule the Veteran for an examination by an appropriate clinician to determine the nature and etiology of any sleep disorder. The electronic file and a copy of this Remand must be made available to the examiner. The examiner should note in the examination report that the electronic file and the Remand have been reviewed. All testing deemed necessary must be conducted and the results should be reported in detail. The examiner is asked render opinions as to the following: a) Please identify any current diagnosis for any and all sleep disorders found. b) Please state whether the symptoms of any sleep disorder are attributable to a known clinical diagnosis. c) If no diagnosis can be made, then the examiner shall provide an opinion regarding whether it is at least as likely as not (50 percent or greater probability) that the Veteran manifests signs and symptoms of any undiagnosed illness, primarily manifested by sleep problems, due to service in Southwest Asia. d) If no diagnosis can be made, then the examiner shall also provide an opinion regarding whether it is at least as likely as not (50 percent or greater probability) that the Veteran has a medically unexplained chronic multi-symptom illness, primarily manifested by sleep problems, due to service in Southwest Asia e) Please provide an opinion as to whether it is at least as likely as not (50 percent or greater probability) any diagnosed sleep disorder headache disorder is related to his active military service, including service in Southwest Asia during the Persian Gulf War. The term “at least as likely as not” does not mean within the realm of medical possibility, but rather that the medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of the conclusion as it is to find against it. The examiner is asked not to rely solely on the absence of evidence relating to medical treatment as the basis for an opinion. A discussion of the underlying reasons for all opinions expressed must be included in the examiner’s report, to include reference to pertinent evidence of record and medical literature or treatises where appropriate. If the examiner is unable to provide an opinion without resorting to mere speculation, he or she must provide an explanation for the basis of that determination. 6. Schedule the Veteran for a VA examination to determine the nature and etiology of his claimed diabetes mellitus, type II. The electronic file must be reviewed by the examiner prior to examination. All testing deemed necessary must be conducted and results reported in detail. The examiner is asked to provide opinions as to the following: a) The examiner should first confirm whether the Veteran has a diagnosis of diabetes mellitus, type 2, based on laboratory testing. b) Is it is at least as likely as not (50 percent probability or more) that the Veteran’s diabetes mellitus, type 2, had its onset during, or is otherwise etiologically related to, his military service? c) Is it at least as likely as not (50 percent probability or more) that the Veteran’s diabetes mellitus, type 2, manifested within one year of his August 1992 separation from service, i.e., by August 1993, and, if so, describe the manifestations. The term “at least as likely as not” does not mean within the realm of medical possibility, but rather that the medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of the conclusion as it is to find against it. A discussion of the underlying reasons for all opinions expressed must be included in the examiner’s report, to include reference to pertinent evidence of record and medical literature or treatises where appropriate. If the examiner is unable to provide an opinion without resorting to mere speculation, (s)he must provide an explanation for the basis of that determination. 7. Schedule the Veteran for an examination by an appropriate clinician to determine the nature and etiology of any peripheral neuropathy, to include the bilateral upper extremities, and the sciatic nerve and the femoral nerve of the bilateral lower extremities. The electronic file and a copy of this Remand must be made available to the examiner. The examiner should note in the examination report that the electronic file and the Remand have been reviewed. All testing deemed necessary must be conducted and the results should be reported in detail. The examiner is asked render opinions as to the following: a) Please identify any current diagnosis for any and all peripheral neuropathy of the extremities found. b) Please state whether the symptoms of each peripheral neuropathy found is attributable to a known clinical diagnosis. c) If no diagnosis can be made, then the examiner shall provide an opinion regarding whether it is at least as likely as not (50 percent or greater probability) that the Veteran manifests signs and symptoms of any undiagnosed illness, primarily manifested by peripheral neuropathy, due to service in Southwest Asia. d) If no diagnosis can be made, then the examiner shall also provide an opinion regarding whether it is at least as likely as not (50 percent or greater probability) that the Veteran has a medically unexplained chronic multi-symptom illness, primarily manifested by peripheral neuropathy, due to service in Southwest Asia e) Please provide an opinion as to whether it is at least as likely as not (50 percent or greater probability) any diagnosed peripheral neuropathy disorder is related to his active military service, including service in Southwest Asia during the Persian Gulf War. The term “at least as likely as not” does not mean within the realm of medical possibility, but rather that the medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of the conclusion as it is to find against it. The examiner is asked not to rely solely on the absence of evidence relating to medical treatment as the basis for an opinion. A discussion of the underlying reasons for all opinions expressed must be included in the examiner’s report, to include reference to pertinent evidence of record and medical literature or treatises where appropriate. If the examiner is unable to provide an opinion without resorting to mere speculation, he or she must provide an explanation for the basis of that determination. G. A. WASIK Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD M. M. Lunger, Associate Counsel