Citation Nr: 18151846 Decision Date: 11/20/18 Archive Date: 11/20/18 DOCKET NO. 16-41 120 DATE: November 20, 2018 ORDER The application to reopen a claim of service connection for hepatitis B and C is granted. Entitlement to service connection for lumbar spinal column syndrome, segmental dysfunction of the lumbar spinal column, with a rudimentary L5/S1 intervertebral disk syndrome (low back disability) is granted. Entitlement to service connection for sleep apnea is granted. Entitlement to service connection for hematuria, to include residuals thereof, claimed as blood in urine, is granted. REMANDED Entitlement to service connection for miscarriages and premature births is remanded. Entitlement to service connection for hepatitis B and C is remanded. Entitlement to service connection for a heart disability is remanded. FINDINGS OF FACT 1. In a September 2013 rating decision, the RO denied the Veteran’s service connection claim for hepatitis B and C. The Veteran did not appeal this decision and new and material evidence was not received within one year after it was issued. 2. Evidence received since the September 2013 rating decision relates to an unestablished fact and raises a reasonable possibility of substantiating the service connection claim for hepatitis B and C. 3. The evidence is at least evenly balanced as to whether the Veteran’s low back disability had its onset in service. 4. The evidence is at least evenly balanced as to whether the Veteran’s sleep apnea had its onset in service. 5. The evidence is at least evenly balanced as to whether the Veteran’s hematuria had its onset in service. CONCLUSIONS OF LAW 1. The September 2013 rating decision that denied the Veteran’s service connection claim for hepatitis B and C is final. 38 U.S.C. § 7105(c); 38 C.F.R. §§ 20.302, 20.1103. 2. Since the September 2013 rating decision, new and material evidence has been received to reopen the service connection claim for hepatitis B and C. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. 3. With reasonable doubt resolved in favor of the Veteran, the criteria for entitlement to service connection for a low back disability are met. 38 U.S.C. §§, 1110, 1131; 38 C.F.R. § 3.303. 4. With reasonable doubt resolved in favor of the Veteran, the criteria for entitlement to service connection for sleep apnea are met. 38 U.S.C. §§, 1110, 1131; 38 C.F.R. § 3.303. 5. With reasonable doubt resolved in favor of the Veteran, the criteria for entitlement to service connection for hematuria, to include residuals thereof, are met. 38 U.S.C. §§, 1110, 1131; 38 C.F.R. § 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from July 1969 to July 1991, including service in the Republic of Vietnam. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from September 2013, September 2014, and October 2015 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO). In the September 2013 rating decision, the RO denied service connection for a heart disability (characterized by the RO as chest pains) and hematuria (characterized by the RO as urine in blood). The RO also denied service connection for hepatitis B and C. The Veteran appealed only the denials of service connection for heart disability and hematuria. In the September 2014 rating decision, the RO denied service connection for a back disability and sleep apnea and confirmed and continued the previously denied service connection claim for hepatitis B and C. In the October 2015 rating decision, the RO denied entitlement to service connection for miscarriages and premature births. New and Material Evidence Generally, a claim that has been denied in a final unappealed rating decision may not thereafter be reopened and allowed. 38 U.S.C. § 7105(c). An exception to this rule is 38 U.S.C. § 5108, which provides that if new and material evidence is presented or secured with respect to a claim which has been disallowed, VA will reopen the claim and review it on the merits. The implementing regulation also provides that new and material evidence received prior to the expiration of the appeal period will be considered as having been filed in connection with the claim that was pending at the beginning of the appeal period. 38 C.F.R. § 3.156(b). New evidence is defined as existing evidence not previously submitted to agency decision makers. Material evidence means evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. New and material evidence can be neither cumulative nor redundant of the evidence previously of record, and must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a). In determining whether evidence is new and material, the credibility of the evidence is generally presumed. Justus v. Principi, 3 Vet. App. 510, 512-513 (1992). The United States Court of Appeals for the Federal Circuit (Federal Circuit) has held, however, that evidence that is merely cumulative of other evidence in the record cannot be new and material even if that evidence had not been previously presented. Anglin v. West, 203 F.3d 1343, 1347 (2000). In deciding whether new and material evidence has been received, the Board looks to the evidence submitted since the last final denial of the claim on any basis. Evans v. Brown, 9 Vet. App. 273, 285 (1996). The threshold for determining whether new and material evidence raises a reasonable possibility of substantiating a claim is “low.” Shade v. Shinseki, 24 Vet. App. 110, 117 (2010). Regardless of whether the RO determined new and material evidence had been submitted, the Board must address the issue of the receipt of new and material evidence in the first instance because it determines the Board’s jurisdiction to reach the underlying claims and to adjudicate the claims de novo. See Jackson v. Principi, 265 F.3d 1366, 1369 (2001) (the Board has a jurisdictional responsibility to consider whether it was proper for a claim to be reopened, regardless of whether the previous action denying the claim was appealed to the Board). Whether new and material evidence has been received to reopen a claim for entitlement to service connection for hepatitis B and C. In a September 2013 rating decision, the RO denied the Veteran’s original claim of service connection for hepatitis B and C on the basis that there was no current diagnosis of hepatitis B or C. The Veteran did not appeal that decision, nor was new and material evidence associated with the record within one year of its issuance. Accordingly, the September 2013 rating decision is final. See 38 U.S.C. § 7105(c); 38 C.F.R. §§ 3.104, 3.156(a)-(b), 20.302, 20.1103. The relevant evidence of record at the time of the September 2013 rating decision consisted of the Veteran’s service treatment records (STRs), his statements and private and VA treatment records. The Veteran’s service records revealed that he served in the Republic of Vietnam. His statements included his reports that his hepatitis C and or B is due to Agent Orange exposure. The Board notes that the Veteran’s private and VA treatment records did in fact reflect that the Veteran was diagnosed with hepatitis B and or C in 2000. See American Red Cross Letter dated February 2000 and VA treatment record dated June 2006. In October 2013, the Veteran submitted an application to reopen his previously denied claim of entitlement to service connection hepatitis B and C. Relevant evidence received after the September 2013 rating decision includes the Veteran’s statements that his hepatitis C is related to his Vietnam service and his August 2016 VA Form 9, in which he cited to medical literature that suggests that there is a relationship between Vietnam veterans and hepatitis C virus. See Veteran’s VA Form dated August 2016 (citing to a medical internet website that provides awareness to hepatitis C virus and exposure methods during service and a 1999 VHA medical study concerning hepatitis C). Accordingly, the evidence shows that since the September 2013 rating decision, the Veteran’s diagnosed hepatitis B or C may be due to his military service. Importantly, the Veteran’s citation to medical literature suggests that there is a relationship between Vietnam veterans and the hepatitis C virus and thus, the newly submitted evidence relates to an unestablished fact necessary to substantiate the claim, and raise a reasonable possibility of substantiating the claim. Accordingly, the evidence received since the September 2013 is new and material evidence, and reopening of the claim of service connection for hepatitis B and C is therefore warranted. Id.; 38 C.F.R. § 3.156. Service Connection Service connection will be granted if the evidence demonstrates that current disability resulted from an injury suffered or disease contracted in active military, naval, or air service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Establishing service connection generally requires competent evidence of three things: (1) current disability; (2) in-service injury or disease; and (3) a relationship between the two. Saunders v. Wilkie, 886 F.3d 1356, 1361 (Fed. Cir. 2018). Consistent with this framework, service connection is warranted for a disease first diagnosed after service when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). 1. Entitlement to service connection for a low back disability. The Veteran claims that his back disability is due to his military service and that he has had back pain in and since service. See, e.g., Veteran’s statement dated October 2013. Specifically, he reports that his low back disability is related to his in-service physical training, such as repetitive sit-ups and running in combat boots and other exercises involving the back. See VA Form 9 dated August 2016 and Veteran’s statement dated October 2013. He also indicated that his low back disability is due to his military occupational specialty (MOS) as a helicopter mechanic, as he was lifting heavy truck tires, climbing tall equipment ladders, and jumping in and out of vehicles. For the following reasons, entitlement to service connection for a low back disability is warranted. The medical evidence of record demonstrates a current low back disability, namely lumbar spinal column syndrome, segmental dysfunction of the lumbar spinal column, with a rudimentary L5/S1 intervertebral disk syndrome. See private treatment record dated December 2011. Thus, a current disability has been established. The Veteran’s DD Form 214 shows that his MOS was a helicopter and tank repairman. The Veteran acknowledges that his STRs do not contain any reports of low back pain. See VA Form 9 dated August 2016. He explains that during service, he did not report his low back pain because he self-medicated with over the counter medications. Id. Furthermore, as indicated above, the Veteran reports that he has had back pain beginning during service. A veteran is competent to report symptoms that he experiences at any time because this requires only personal knowledge as it comes to him through his senses. Layno v. Brown, 6 Vet. App. 465 (1994); Barr v. Nicholson, 21 Vet. App. 303, 309 (2007). Therefore, the in-service disease or injury element has been met. This case turns on the remaining element of service connection, which is whether the Veteran’s low back disability is related to, or had its onset during, his military service. See 38 C.F.R. § 3.303(a) (“service connection connotes many factors but basically it means that the facts, shown by evidence, establish that a particular injury or disease resulting in disability was incurred coincident with service in the Armed Forces”). The Veteran reports that his private treatment providers have informed him that his low back disability is the result of jumping out of vehicles repetitively during service. See Veteran’s statement dated October 2013. The Veteran is competent to report factually observable occurrences in service, the timing of the observable symptoms of a disability, and to receipt of medical treatment and what providers had related about the conditions. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). The Veteran has consistently asserted that he has experienced low back pain in and since service. Importantly, the Veteran, as a lay person, is competent to report problems with his back in service and continuous back problems since military service. See Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir 2006) (holding lay evidence concerning continuity of symptoms after service, if credible, is ultimately competent, regardless of the lack of contemporaneous medical evidence). His statements, regarding experiencing low back pain in and since service are credible and consistent with the evidence of record. For instances, he has provided consistent statements indicating that he began experiencing low back pain during service. See, e.g., Veteran’s statement dated October 2013. In sum, the competent and credible evidence of record establishes that the Veteran had low back pain and problems in service and that his low back disability has been ongoing since service. Furthermore, the Veteran has reported that his private treatment providers found that his low back disability is due to his in-service activities, namely jumping out of vehicles during the course of his MOS. There is no evidence to the contrary. The evidence is therefore at least evenly balanced as to whether the Veteran’s low back disability had its onset in service. Therefore, entitlement to service connection for low back disability is warranted. 2. Entitlement to service connection for sleep apnea. The Veteran claims that his sleep apnea is due to his Vietnam military service and that he has had symptoms of sleep apnea, such as snoring, in and since service. He asserts that his sleep apnea is related to Agent Orange exposure. See VA Form 9 dated August 2016 and Veteran’s statement dated October 2013. At the outset, sleep apnea is not among the presumed service connected disabilities in veterans who served in Vietnam. However, the Veteran is not precluded from establishing service connection for these disabilities based on the theory that they were caused by Agent Orange exposure. See 38 U.S.C.§ 1113(b); 38 C.F.R. § 3.303(d) (the availability of service connection on a presumptive basis does not preclude consideration of service connection on a direct basis); Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994) (Radiation Compensation Act does not preclude a veteran from establishing service connection with proof of actual direct causation). For the following reasons, entitlement to service connection for sleep apnea is warranted. The medical evidence of record demonstrates a current diagnosis, specifically obstructive sleep apnea. See private sleep study dated October 2014 and private medical report, signed by the Veteran’s three treating physicians, dated January 2016. Thus, a current disability has been established. The in-service disease or injury element has been met. The Veteran reports that he has experienced symptoms of sleep apnea during service, such as snoring. Furthermore, the Veteran asserts that his wife, whom he has been married to since service, informed him that during service he would stop breathing while sleeping. In a May 2014 statement, the Veteran’s wife stated that she has been married to the Veteran since his service, in March 1975, and that she has witnessed the Veteran’s snoring and inability to breathe while sleeping during his service. Also in a May 2014 statement, the Veteran’s daughter, whom is 37 years old, indicated that she also witnessed the Veteran’s snoring during service. The Veteran, his spouse, and his daughter are competent to report factually observable occurrences in service and the timing of the observable symptoms of a disability. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). The Veteran, his spouse, and his daughter’s statements, regarding the Veteran’s sleep apnea symptoms during service experiencing are credible and competent, as the statements are consistent with the evidence of record and that there is no evidence to contrary. Therefore, the in-service disease or injury element has been met. This case turns on the remaining element of service connection, which is whether the Veteran’s sleep apnea is related to, or had its onset during, his military service. The Veteran has asserted that he has experienced sleep apnea symptoms in since his period of active service. His family has provided statements that corroborates the assertions of the Veteran. Each is competent to report factually observable occurrences in service, the timing of the observable symptoms of a disability and to receipt of medical treatment. Jandreau, 492 F.3d at 1377 (Fed. Cir. 2007). The competent and credible lay evidence of record establishes that the Veteran had sleep apnea symptoms in service and that his sleep apnea symptoms has been ongoing since service. The private treatment records, in particular the October 2014 sleep study and related treatment notes, indicate that these same symptoms were at least part of the basis for the diagnosis of sleep apnea. The evidence is therefore at least evenly balanced as to whether the Veteran’s sleep apnea had its onset in service. Therefore, entitlement to service connection for sleep apnea is warranted. 2. Entitlement to service connection for hematuria. The Veteran claims that his hematuria, claimed as blood in urine, is due to his military service. Furthermore, he reports that he has had hematuria symptoms, such as blood in urine, in and since service. For the following reasons, entitlement to service connection for hematuria is warranted. The Veteran’s STRs shows multiple complaints of blood in his urine and diagnoses of hematuria. See STRs dated September 1986, October 1986, and May 1990. Specifically, his STRs show that in October 1986, he was referred to an urologist. The urologist diagnosed gross hematuria. See STR dated November 1986. Later that month, in a November 1986, STR, the physician diagnosed micro hematuria. In the May 1990 STR, the treating physician noted that the Veteran had blood in his urine for one week and was positive for hematuria. Therefore, the in-service disease or injury element has been met. In a March 2010 private treatment record, the private physician indicated that the Veteran was admitted to the emergency room in March 2010 due to macro hematuria and urinary obstruction. The Veteran underwent a procedure a to remove the urinary obstruction, which was successful. The private physician indicated that the cause of the macro hematuria and urinary obstruction could not be determined. In August 2012, the Veteran was afforded a VA examination. The examiner indicated that in March 2012, the Veteran was diagnosed with micro-hematuria. Moreover, the examiner indicated that in 2010 the Veteran underwent a left percutaneous trans-renal nephrostomy, uteroscopy and ureterolithiasis removal. The examiner noted that the Veteran’s micro-hematuria is no longer present since the Veteran had a kidney stone removal in March 2010. In sum, the August 2012 VA examiner, essentially, found that the Veteran’s micro-hematuria resolved. However, there is no evidence to support the August 2012 VA examiner’s findings that the Veteran’s micro-hematuria resolved, as there was no indication in the March 2010 private treatment record that the Veteran’s micro-hematuria resolved. Rather the March 2010 private treatment established that the Veteran’s urinary obstruction resolved. Therefore, the August 2012 opinion is afforded no probative value. Furthermore, the Veteran submitted his service connection claim for hematuria, claimed as blood in urine, in May 2012. Two years earlier, he was diagnosed with hematuria. McClain v. Nicholson, 21 Vet. App. 319, 321 (2007) (the presence of a disability at the time of filing of a claim or during its pendency warrants a finding that the current disability requirement has been met, even if the disability resolves prior to the Board’s adjudication of the claim); Romanowsky v. Shinseki, 26 Vet. App. 289, 293 (2013) (Board erred in failing to address pre-claim evidence in assessing whether a current disability existed, for purposes of service connection, at the time the claim was filed or during its pendency). Therefore, the medical evidence of record demonstrates that in March 2010, the Veteran was diagnosed with macro hematuria and a current disability has been established. This case turns on the remaining element of service connection, which is whether the Veteran’s low back disability is related to, or had its onset during, his military service. See 38 C.F.R. § 3.303(a). The remaining evidence shows that the Veteran has had the same symptoms and manifestations, such as blood in urine, in and since service. The Veteran reported during service, that he had blood in his urine and then he was diagnosed with hematuria multiple time during service. Presently, the Veteran has consistently reported complaints of blood in his urine and he was diagnosed, again, with macro hematuria. At this point, given that there is sufficient evidence as to grant the claim, further development is not necessary to obtain another medical opinion. 38 C.F.R. § 3.304(c) (“The development of evidence in connection with claims for service connection will be accomplished when deemed necessary but it should not be undertaken when evidence present is sufficient for this determination”). The evidence of record establishes that the Veteran had hematuria in service and that his hematuria has been ongoing since service. The evidence is therefore at least evenly balanced as to whether the Veteran’s hematuria had its onset in service. Therefore, entitlement to service connection for hematuria, to include residuals thereof, is warranted. REASONS FOR REMAND 1. Entitlement to service connection for miscarriages and premature births. In October 2015, the Veteran submitted a formal notice of disagreement (NOD) with the October 2015 rating decision that denied entitlement to service connection for miscarriages and premature births. However, to date, the RO has not addressed the Veteran’s October 2015 NOD or issued a statement of the case (SOC) on the matter. Accordingly, this issue has been added and is addressed in the remand section below. See 38 C.F.R. § 19.9 (c), codifying Manlincon v. West, 12 Vet. App. 238 (1999) (in cases before the Board in which a claimant has timely filed a NOD with a determination of the agency of original jurisdiction (AOJ) on a claim, but the record reflects that the AOJ has not subsequently granted the claim in full and has not furnished the claimant with a SOC, the Board shall remand the claim to the AOJ with instructions to prepare and issue a SOC). 2. Entitlement to service connection for hepatitis B and C. The Veteran claims that his hepatitis B and or C is related to his military service. Specifically, he asserts that he may have come into contact with a contaminant that caused hepatitis while flying infantry drop off and retrieval missions during his Vietnam service. He also contends that his hepatitis B or C is due to his agent Orange exposure. The Veteran’s service records indicate that he served in the Republic of Vietnam. Thus, Agent Orange exposure is conceded based on the circumstances of the Veteran’s military service. See 38 U.S.C. § 1116(f). Hepatitis B or C are not among the diseases presumed service connected in veterans who served in Vietnam. However, the Veteran is not precluded from establishing service connection for this dis disability based on the theory that they were caused by Agent Orange exposure. See 38 U.S.C.§ 1113(b); 38 C.F.R. § 3.303(d) (the availability of service connection on a presumptive basis does not preclude consideration of service connection on a direct basis); Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994) (Radiation Compensation Act does not preclude a veteran from establishing service connection with proof of actual direct causation). The evidence shows that the Veteran was first diagnosed with hepatitis B or C in 2000. See American Red Cross Letter dated February 2000. In a June 2006 VA treatment record, the private treatment record confirmed a diagnosis of hepatitis C. In the Veteran’s August 2016 VA Form 9, he cited to medical literature that suggest that there is a relationship between Vietnam veterans and the hepatitis C virus. Specifically, he cited to a medical internet website that provides awareness to hepatitis C virus and exposure methods during service. He also provided a medical study that suggested that Vietnam veteran tested positive for hepatitis C at a higher rate than other veterans. VA recognizes risk factors for contracting hepatitis C that include: transfusions of blood or blood products before 1992, hemodialysis, accidental exposure to blood, intravenous or intranasal cocaine use, high risk sexual activity, and other direct percutaneous (through the skin) exposure to blood such as tattooing, body piercing, acupuncture with non-sterile needles, and shared toothbrushes or shaving razors. The evidence of record suggests that the Veteran’s hepatitis B or C may be due to his military service. However, he has not been afforded a VA examination nor has an opinion been obtained to determine the etiology of his disability. Accordingly, a remand is necessary to obtain a VA medical opinion. See 38 U.S.C. § 5103A(d)(2); 38 C.F.R. § 3.159(c)(4)(i); McLendon v. Nicholson, 20 Vet. App. 79, 81 (2006). 3. Entitlement to service connection for a heart disability. The Veteran claims that his heart disability, claimed as chest pains, are due to his military service. Specifically, he asserts that his heart disability is due to his Agent Orange exposure, while stationed in Vietnam. As indicated above, his Agent Orange exposure is conceded. In the Veteran’s August 2016 VA Form 9, he suggested that he has experienced heart symptoms in and since service and that a private cardiologist indicated that the he has a current heart disability or the onset of a heart disability. The Veteran explained that the cardiologist found that the Veteran has an enlarged heart and initial stages of hardening of the arteries near the heart. To this extent, the Veteran’s private cardiology treatment records have not been associated with the claims file. Moreover, the evidence of record suggests that the Veteran may have a heart disability that is due to his military service. However, he has not been afforded a VA examination nor has an opinion been obtained to determine the etiology of his claimed heart disability. Accordingly, a remand is necessary to afford the Veteran a VA examination. Id. Lastly, the claims file is absent the Veteran’s DD Form 214 from September 1971 to December 1987. Therefore, such service record should be obtained upon remand. The matters are REMANDED for the following action: 1. Obtain and associate with the claims file the Veteran’s DD Form 214 from September 1971 to December 1987. Any effort to obtain this record must be documented in the file. Any actions taken shall continue until the record ais obtained or it is reasonably certain that they do not exist or that further efforts to obtain them would be futile. If unable to obtain the identified record, take action in accordance with 38 C.F.R. § 3.159 (e). If the Board is in error and these documents are located in the claims file, the Board apologizes and requests that the AOJ prepare a memorandum to the file indicating the location of these documents. 2. Ask the Veteran to identify the location and name of any private medical facility where he has received treatment for a heart disability, to include the dates of any such treatment. Ask the Veteran to complete an authorization for VA to obtain all records of his treatment. Attempt to obtain any relevant private treatment records. All efforts to obtain these records must be documented in the file. If unable to obtain any identified records, take action in accordance with 38 C.F.R. § 3.159 (e) (2017). 3. Issue a SOC addressing the issue entitlement to service connection for miscarriages and premature births. 4. Refer the claims file to an appropriate physician with expertise to address the etiology of the Veteran’s hepatitis B and C. The Veteran does not need to be examined, unless the physician determines otherwise. The physician is requested to review the claims file in its entirety including any recently obtained treatment records. The physician should provide an opinion whether it is as least as likely as not (50 percent probability or more) that the Veteran’s diagnosed hepatitis B and/or C had its onset in service or is otherwise related to service, to include his presumed exposure to an herbicide agent (Agent Orange) in the Republic of Vietnam. In addressing the above, the physician must comment on the Veteran’s citations to the medical literature that suggest that there is a relationship between Vietnam veterans and the hepatitis C virus. See Veteran’s VA Form dated August 2016 (citing to a medical internet website that provides awareness to Hepatitis C virus and exposure methods during service and a 1999 VHA medical study concerning hepatitis C). The physician should provide a complete rationale for any opinion given. The fact that hepatitis B or C is not on the list of those presumed service connected in veterans exposed to Agent Orange should not be the basis for a negative opinion, as a relationship may nevertheless be shown on a direct basis. 5. Schedule the Veteran for a VA examination to determine the nature and etiology of his claimed heart disability. The entire claims file, including a copy of this remand, must be made available to the examiner, and the examiner should confirm that such records were reviewed. The examiner should first identify any heart disability, since approximately the date of the Veteran’s claim in May 2012. As to any heart disability other than ischemic heart disease (which is presumed service connected in veterans exposed to Agent Orange), the examiner should indicate whether it is as least as likely as not (50 percent probability or more) that the disability had its onset in service or is otherwise related to service, or manifested within one year of his separation from service, to include as due to his presumed exposure to an herbicide agent (Agent Orange) in the Republic of Vietnam. The examiner should provide a complete rationale for any opinion given. If any identified heart disability is not listed as a presumed service connected disability in veterans exposed to Agent Orange, then it must not be the basis for a negative opinion, as a relationship may nevertheless be shown on a direct basis. The examiner is advised that the Veteran is competent to report his symptoms and history, and such statements by the Veteran must be specifically acknowledged and considered in formulating any opinions. Jonathan Hager Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD A. Castillo, Associate Counsel