Citation Nr: 18153815 Decision Date: 11/29/18 Archive Date: 11/28/18 DOCKET NO. 16-49 965 DATE: November 29, 2018 ORDER Entitlement to a rating in excess of 20 percent for diabetes mellitus II with correctable early renal disease, erectile dysfunction and diabetic retinopathy (diabetes) is denied. Entitlement to an initial rating in excess of 10 percent for peripheral neuropathy, femoral nerve, of the left lower extremity is denied. Entitlement to an initial rating in excess of 10 percent for peripheral neuropathy, femoral nerve, of the right lower extremity is denied. Entitlement to a rating in excess of 50 percent for posttraumatic stress disorder (PTSD) is denied. Entitlement to an effective date prior to February 28, 2013, for the grant of service connection for posttraumatic stress disorder is denied REMANDED Entitlement to service connection for hearing loss is remanded. Entitlement to service connection for tinnitus is remanded. FINDINGS OF FACT 1. The Veteran’s diabetes mellitus II with correctable early renal disease, erectile dysfunction and diabetic retinopathy (diabetes) is manifested by insulin and restricted diet, but does not require regulation of activities. 2. The Veteran’s peripheral neuropathy, femoral nerve, of the left lower extremity is manifested by mild incomplete paralysis. 3. The Veteran’s peripheral neuropathy, femoral nerve, of the right lower extremity is manifested by mild incomplete paralysis. 4. The Veteran’s service-connected posttraumatic stress disorder is manifested by symptoms such as depressed mood, anxiety, suspiciousness, chronic sleep impairment, difficulty in establishing and maintaining effective work and social relationships, resulting in occupational and social impairment with reduced reliability and productivity. 5. The Veteran filed an original claim for entitlement to service connection for posttraumatic stress disorder in December 2005, which was denied in a September 2006 rating decision. The Veteran did not appeal the denial and therefore, the denial is final. 6. The Veteran filed to reopen his claim for entitlement to service connection for posttraumatic stress disorder in February 2013. A January 2014 rating decision granted the Veteran’s claim and assigned an effective date of February 28, 2013. 7. No formal or informal claim to reopen the claim for entitlement to service connection for PTSD was received prior to February 28, 2013. CONCLUSIONS OF LAW 1. The criteria for entitlement to a rating in excess of 20 percent for diabetes mellitus II with correctable early renal disease, erectile dysfunction and diabetic retinopathy (diabetes) have not been met. 38 U.S.C. § 1155, 5107; 38 C.F.R. §§ 3.321, 4.119, Diagnostic Code 7913. 2. The criteria for entitlement to an initial rating in excess of 10 percent for peripheral neuropathy, femoral nerve, of the left lower extremity have not been met. 38 U.S.C. § 1155, 5107; 38 C.F.R. §§ 3.321, 4.124a, Diagnostic Code 8526. 3. The criteria for entitlement to an initial rating in excess of 10 percent for peripheral neuropathy, femoral nerve, of the right lower extremity have not been met. 38 U.S.C. § 1155, 5107; 38 C.F.R. §§ 3.321, 4.124a, Diagnostic Code 8526. 4. The criteria for entitlement to a rating in excess of 50 percent for posttraumatic stress disorder (PTSD) have not been met. 38 U.S.C. § 1155, 5107; 38 C.F.R. §§ 3.321, 4.130, Diagnostic Code 9411. 5. The criteria for entitlement to an effective date for the grant of service connection for posttraumatic stress disorder prior to February 29, 2013, have not been met. 38 U.S.C. § 5110; 38 C.F.R. § 3.400. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served in the United States Army from October 1967 to June 1969, to include service in the Republic of Vietnam. During the pendency of the Veteran’s appeal, his claims for entitlement to service connection for hypertension and for a total disability rating based on individual unemployability (TDIU) were granted in a July 2016 rating decision. Additionally, the Veteran indicated on his April 2015 Notice of Disagreement that a 20 percent rating for his peripheral neuropathy, sciatic nerve, of the bilateral extremities would satisfy his appeal. The July 2016 rating decision also granted the Veteran a 20 percent rating for peripheral neuropathy, sciatic nerve, of the bilateral extremities. As the July 2016 rating decision represents a full grant of benefits for the Veteran’s hypertension and TDIU and satisfies the Veteran’s claim for peripheral neuropathy, sciatic nerve, of the bilateral extremities, these claims are no longer in controversy and are therefore not before the Board. A.B. v. Brown, 6 Vet. App. 35 (1993). Increased Rating Disability evaluations are determined by the application of a schedule of ratings, which is based on average impairment of earning capacity. Separate diagnostic codes identify the various disabilities. See 38 U.S.C. § 1155; 38 C.F.R. Part 4. The percentage ratings in VA’s Schedule for Rating Disabilities (Rating Schedule) represent as far as can practicably be determined the average impairment in earning capacity resulting from such disabilities and their residual conditions in civil occupations. See 38 C.F.R. § 4.1. Where there is a question as to which of two ratings shall be applied, the higher rating will be assigned if the disability more closely approximates the criteria for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. When there is an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C. § 5107 (b); 38 C.F.R. §§ 3.102, 4.3. Where entitlement to compensation has already been established and increase in disability is at issue, the present level of disability is of primary concern. See Francisco v. Brown, 7 Vet. App. 55 (1994). However, “staged” ratings are appropriate where the factual findings show distinct time periods when the service-connected disability exhibits symptoms that would warrant different ratings. See Hart v. Mansfield, 21 Vet. App. 505 (2007). The Board observes that the words “slight,” “moderate,” and “severe” are not defined in the Rating Schedule. Rather than applying a mechanical formula, the Board must evaluate all of the evidence to the end that its decisions are “equitable and just.” 38 C.F.R. § 4.6 (2016). It should also be noted that use of descriptive terminology such as “mild” by medical examiners, although an element of evidence to be considered by the Board, is not dispositive of an issue. All evidence must be evaluated in arriving at a decision regarding an increased rating. 38 U.S.C. § 7104 (a); 38 C.F.R. §§ 4.2, 4.6. Once the evidence has been assembled, it is the Board’s responsibility to evaluate the evidence. 38 U.S.C. § 7104 (a). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). 1. Entitlement to a rating in excess of 20 percent for diabetes mellitus II with correctable early renal disease, erectile dysfunction and diabetic retinopathy (diabetes) The Veteran and his representative assert that he is entitled to a rating in excess of 20 percent for his service-connected diabetes. The Veteran’s service-connected diabetes is rated under Diagnostic Code 7913. Under Diagnostic Code 7913, a 20 percent rating is warranted where insulin and restricted diet, or; use of oral hypoglycemic agent and restricted diet is required. A 40 percent rating is warranted where insulin, restricted diet, and regulation of activities is required. A 60 percent rating is warranted for diabetes mellitus requiring insulin, restricted diet, and regulation of activities with episodes of ketoacidosis or hypoglycemic reactions requiring one or two hospitalizations per year or twice a month visits to a diabetic care provider, plus complications that would not be compensable if separately evaluated. A 100 percent rating is warranted for diabetes mellitus requiring more than one daily injection of insulin, restricted diet, and regulations of activities (avoidance of strenuous occupational and recreational activities) with episodes of ketoacidosis or hypoglycemic reactions requiring at least three hospitalizations per year or weekly visits to a diabetic care provider, plus either progressive loss of weight and strength or complications that would be compensable if separately evaluated. Id. Note (1) to Diagnostic Code 7913 provides that compensable complications of diabetes are to be rated separately unless they are part of the criteria used to support a 100 percent rating (under Diagnostic Code 7913). 38 C.F.R. § 4.119. Non-compensable complications are considered part of the diabetic process under Diagnostic Code 7913. Id. The United States Court of Appeals for Veterans Claims (Court) has held that the use of the conjunctive “and” in Diagnostic Code 7913 means that all criteria must be met to establish entitlement to a 40 percent rating. Camacho v. Nicholson, 21 Vet. App. 360, 366 (2007). The Court has also held that medical evidence is required to support the “regulation of activities” criterion of a 40 percent disability rating. Id. at 364. The Veteran most recently received a VA examination in connection with his increased rating claim for diabetes in July 2014. At this examination, it was noted that the Veteran was prescribed oral hypoglycemic agents and required more than one insulin injection per day. See, July 2014 VA examination. The examination report further indicated that the Veteran does not require regulation of activities as part of medical management of diabetes mellitus and that the Veteran visits his diabetic care provider less than two times per month for episodes of ketoacidosis and hypoglycemia. Further, the examination noted that the Veteran did not have any episodes of ketoacidosis or hypoglycemic reactions that required hospitalization over the past twelve months. Id. The Board has also reviewed the Veteran’s post-service VA treatment records for the pendency of the appeal, which indicate similar symptoms that the Veteran endorsed during his July 2014 VA examination. Again, there was no indication that regulation of activities was required for medical management of diabetes and no episodes of ketoacidosis or hypoglycemic reactions requiring hospitalizations. Accordingly, the Board finds that the preponderance of the evidence is against a finding that the Veteran’s service-connected diabetes mellitus with complications is entitled to a rating in excess of 20 percent. The competent medical evidence of record is consistent with the criteria for the Veteran’s current rating of 20 percent based on the need for insulin use and a restricted diet or oral hypoglycemic agent and restricted diet. The lack of medical evidence of regulation of activities prohibits a rating of 40 percent or greater, in that the conjunction “and” makes this symptom a requirement for a rating of 40 percent or greater. Further, the lack of evidence of hospitalizations for ketoacidosis or hypoglycemic reactions further weighs against a rating of 60 percent or greater. The consistent evidence of only requiring one daily injection of insulin further weighs against a rating of 100 percent. Therefore, the Board finds that the evidence of record is against a finding that the Veteran’s service-connected diabetes with complications warrants a rating in excess of 20 percent. 2. Entitlement to an initial rating in excess of 10 percent for peripheral neuropathy, femoral nerve, of the left lower extremity 3. Entitlement to an initial rating in excess of 10 percent for peripheral neuropathy, femoral nerve, of the right lower extremity With regard to the issues of entitlement to an increased evaluation of the right and left lower extremities, the Board notes that as the two issues involve application of similar facts to the same law, it will address these two issues together. The Veteran and his representative have asserted that he is entitled to an initial rating in excess of 10 percent for peripheral neuropathy, femoral nerve, of the bilateral lower extremities. The neurologic diagnostic code applicable to the Veteran’s bilateral lower extremity peripheral neuropathy associated with his service-connected diabetes is Diagnostic Code 8526, concerning the evaluation of femoral nerve paralysis. 38 C.F.R. § 4.124a, Diagnostic Code 8526. Under Diagnostic Code 8526, a 10 percent rating is assigned for mild incomplete paralysis of the femoral nerve; a 20 percent rating is assigned for moderate incomplete paralysis; a 30 percent rating is assigned for severe incomplete paralysis; and a 40 percent rating is assigned for complete paralysis of quadriceps extensor muscle. The term “incomplete paralysis,” with this and other peripheral nerve injuries, indicates a degree of lost or impaired function substantially less than the type picture for complete paralysis given with each nerve, whether due to varied level of the nerve lesion or to partial regeneration. When the involvement is wholly sensory, the rating is for the mild, or at most, the moderate degree. The disability ratings for the peripheral nerves are for unilateral involvement; when bilateral, the ratings combine with application of the bilateral factor. 38 C.F.R. § 4.124a. Neither the Rating Schedule nor the regulations provide definitions for words such as “moderately severe.” Rather than applying a mechanical formula, the Board must instead evaluate all of the evidence to the end that its decisions are “equitable and just.” 38 C.F.R. § 4.6 (2016). The Veteran was most recently evaluated for his bilateral lower extremity peripheral neuropathy, femoral nerve, in July 2014. During this examination, there was no constant or intermittent pain in the Veteran’s bilateral lower extremities. However, mild paresthesias and/or dysesthesias and mild numbness was noted in the bilateral lower extremities. See, July 2014 VA examination. Strength in the bilateral lower extremities was noted to be normal. Deep tendon reflex was decreased in the Veteran’s knees and absent in the Veteran’s ankles. Light touch/monofilament testing results were normal for the knees/thighs and decreased for the ankles/lower legs and feet/toes. Vibration sensation was absent in the right lower extremity and decreased in the left lower extremity. Cold sensation was normal in the bilateral lower extremities. Overall, the VA examiner concluded that the Veteran’s peripheral neuropathy, femoral nerve, of the bilateral lower extremities was manifested by mild incomplete paralysis. Id. Accordingly, the Board finds that the preponderance of the evidence is against a finding that the Veteran is entitled to a rating in excess of 10 percent for peripheral neuropathy, femoral nerve, of the bilateral lower extremities. The most competent evidence of record is consistent with the criteria for the Veteran’s current rating of 10 percent. The Board finds the opinion of the July 2014 VA examiner to be highly probative, as it was rendered following a review of the Veteran’s claims file and an in-person examination and the conclusion is consistent with the Veteran’s reported symptoms. Further, there is no conflicting medical evidence of record. Colvin v. Derwinski, 1 Vet. App. 171 (1991). The Board further notes that the Veteran did not receive treatment for his bilateral lower extremity peripheral neuropathy, femoral nerve, during the pendency of the appeal. As outlined above, in order to be entitled to a rating in excess of 10 percent, more than mild incomplete paralysis must be demonstrated and that is not present in the current case. Therefore, the Board finds that the evidence of record is against a finding that the Veteran’s peripheral neuropathy, femoral nerve, of the bilateral lower extremities warrants a disability rating in excess of 10 percent for either lower extremity. 4. Entitlement to a rating in excess of 50 percent for posttraumatic stress disorder (PTSD) The Veteran and his representative have asserted that the severity of his PTSD symptoms warrant an initial evaluation in excess of 50 percent. Under 38 C.F.R. § 4.130, Diagnostic Code 9411, a 50 percent evaluation is warranted when there is occupational and social impairment with reduced reliability and productivity due to such symptoms as: flattened affect; circumstantial, circumlocutory, or stereotyped speech; panic attacks more than once a week; difficulty in understanding complex commands; impairment of short-and long-term memory (e.g., retention of only highly learned material, forgetting to complete tasks); impaired judgment; impaired abstract thinking; disturbances of motivation and mood; the Veteran’s difficulty in establishing and maintaining effective work and social relationships. Id. A 70 percent disability evaluation is warranted when there is occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood, due to such symptoms as: suicidal ideation; obsessional rituals which interfere with routine activities; speech intermittently illogical, obscure, or irrelevant; near-continuous panic or depression affecting the ability to function independently, appropriately, and effectively; impaired impulse control (such as unprovoked irritability with periods of violence); spatial disorientation; neglect of personal appearance and hygiene; difficulty in adapting to stressful circumstances (including work or work-like setting); inability to establish and maintain effective relationships. Id. A 100 percent disability evaluation is warranted when there is total occupational and social impairment, due to such symptoms as: gross impairment in thought processes or communication; persistent delusions or hallucinations; grossly inappropriate behavior; persistent danger of hurting self or others; intermittent inability of the Veteran to perform activities of daily living (including maintenance of minimal personal hygiene); disorientation to time and place; memory loss for names of close relatives, own occupation, or own name. Id. The use of the phrase “such symptoms as,” followed by a list of examples, provides guidance as to the severity of symptomatology contemplated for each rating. The use of such terminology permits consideration of items listed and other symptoms and contemplates the effect of those symptoms on the Veteran’s social and work situation. See Mauerhan v. Principi, 16 Vet. App. 436 (2002). The Board acknowledges that symptoms recited in the criteria in the rating schedule for evaluating mental disorders are “not intended to constitute an exhaustive list, but rather are to serve as examples of the type and degree of the symptoms, or their effects, that would justify a particular rating.” Id, at 442. In adjudicating a claim for a higher rating, the adjudicator must consider all symptoms of a claimant’s service-connected mental condition that affect the level of occupational or social impairment. Id, at 443. The Veteran was most recently evaluation for his PTSD by a VA examiner in January 2014. At this examination, the Veteran’s diagnosis of PTSD was confirmed. The Veteran endorsed symptoms such as depressed mood, anxiety, suspiciousness, chronic sleep impairment, mild memory loss, flattened affect, and disturbances of motivation and mood. See, January 2014 VA examination. Overall, the examiner found that the Veteran’s PTSD symptoms were manifested by occupational and social impairment with occasion decrease in work efficiency and intermittent periods of inability to perform occupational tasks, although generally functioning satisfactorily, with normal routine behavior, self-care and conversation. Id. The Veteran received post-service VA treatment for his PTSD during the pendency of the appeal, and his symptoms were consistent with the symptoms that he endorsed during his January 2014 VA examination. It was consistently reported that the Veteran’s symptoms were controlled with his medication. He had occasional nightmares and intrusive recurrent thoughts. The Veteran had numerous normal mental status examinations; oriented to time, place and person, no psychosis, no homicidal or suicidal ideations, no hygiene issues, normal insight and normal impulse control. The Veteran reported a good relationship with his family and stated that he takes care of animals around his home. See, post-service treatment records dated May 2013, September 2013, January 2014, May 2014, February 2015, July 2015, and November 2015. The Board notes one report in May 2014 where the Veteran reported hearing voices, but this was determined to be a symptom of two medications interacting poorly and the symptom stopped as soon as one of the medications was stopped. See, post-service treatment record dated May 2014. Based on the above, the Board finds that the Veteran is not entitled to an initial rating in excess of 50 percent. The Veteran does not endorse the symptoms that are required for a 70 or 100 percent rating. In this regard, the Board notes that the symptoms listed are not meant to be an exclusive list, but the severity of the Veteran’s symptoms are more closely approximated by his current 50 percent rating. As outlined above, in order to be granted a higher disability evaluation of 70 percent, occupational and social impairment with deficiencies in most areas must be shown. A 100 percent rating is warranted when there is total occupational and social impairment. Specifically, the Board notes that the Veteran does not endorse symptoms such as suicidal ideation, obsessional rituals with interfere with routine activities, illogical, obscure or irrelevant speech, neglect of appearance and hygiene, or the inability to establish and maintain effective relationships as outlined in the criteria for a 70 percent rating. Additionally, the Veteran also does not endorse persistent delusions or hallucinations, does not present with grossly inappropriate behavior, is not noted to be disoriented to time or place, has not shown an inability to perform activities of daily living and does not show gross impairment in thought processes or communication as outlined in the criteria for a 100 percent rating. The severity of the Veteran’s most consistently reported symptoms such as anxiety, suspicion, chronic sleep impairment, mild memory loss, disturbances of motivation and mood, and flattened affect are more closely approximated by his current rating of 50 percent. Accordingly, based on the above, the Board finds that the evidence of record is against entitlement to an initial rating in excess of 50 percent for the Veteran’s service-connected PTSD. Earlier Effective Date The statutory guidelines for the determination of an effective date of an award are set forth in 38 U.S.C. § 5110. Except as otherwise provided, the effective date of an evaluation and award of compensation based on an original claim, a claim reopened after a final disallowance, or a claim for increase will be the date of receipt of the claim, or the date entitlement arose, whichever is the latter. 38 C.F.R. § 3.400. Under 38 C.F.R. § 3.400 (b)(2)(i), the effective date for a grant of direct service connection will be the day following separation from active service or the date entitlement arose if the claim is received within one year after separation from service. Under 38 C.F.R. § 3.400 (b)(2)(ii), the effective date for presumptive service connection will be the date entitlement arose, if a claim is received within one year after separation from active service. Otherwise, the effective date will be the date of receipt of the claim, or the date entitlement arose, whichever is later. VA amended its adjudication regulations on March 24, 2015, to require that all claims governed by VA’s adjudication regulations be filed on standard forms prescribed by the Secretary, regardless of the type of claim or posture in which the claim may arise. See 79 Fed. Reg. 57660 (Sept. 25, 2014). The amendments, however, are only effective for claims and appeals filed on or after March 24, 2015. As the claims in this case were filed prior to that date, the amendments are not applicable in this instance and the regulations in effect prior to March 24, 2015, will be applied. Under the old regulations, any communication or action, indicating an intent to apply for one or more benefits under laws administered by VA, from a claimant or the claimant’s representative, may be considered an informal claim. Such informal claim must identify the benefit sought. Upon receipt of an informal claim, if a formal claim has not been filed, an application form will be forwarded to the claimant for execution. If received within one year from the date it was sent to the claimant, it will be considered filed as of the date of receipt of the informal claim. 38 C.F.R. § 3.155 (a) (in effect prior to March 24, 2015). There is no set form that an informal written claim must take. All that is required is that the communication indicates an intent to apply for one or more benefits under the laws administered by VA, and identify the benefits sought. Rodriguez v. West, 189 F.3d 1351 (1999). Case law is clear that this means the claimant must describe the nature of the disability for which he is seeking benefits, such as by describing a body part or symptom of the disability. Brokowski v. Shinseki, 23 Vet. App. 79, 86-87 (2009). 5. Entitlement to an effective date for the grant of service connection for posttraumatic stress disorder prior to February 28, 2013 The Veteran and his representative have asserted that that he is entitled to an effective date prior to February 28, 2013, for the grant of service connection for PTSD. The Board notes that the Veteran originally filed a claim for entitlement to service connection in December 2005, which was denied in a September 2006 rating decision. The Veteran did not formally appeal the September 2006 rating decision and therefore, the denial became final. Prior to February 28, 2013, there is no evidence of a formal or informal claim received by the RO following the Veteran’s September 2006 denial. The Board further notes that it is bound by law on this matter, and is without authority to grant the benefit sought on an equitable basis. As no statutory or regulatory exceptions to the rule governing the effective date here is for application, there is no legal basis to grant the appeal. Based on this record, no effective date earlier than February 28, 2013, is warranted for service connection for the Veteran’s PTSD. As this appeal must be denied as a matter of law, the benefit of the doubt rule is not for application. Sabonis v. Brown, 6 Vet. App. 426 (1994). REASONS FOR REMAND While the Board sincerely regrets further delay, additional development is necessary before the Veterans remaining claims may be adjudicated on the merits. 1. Entitlement to service connection for hearing loss is remanded. 2. Entitlement to service connection for tinnitus is remanded. The Veteran was afforded a VA examination in connection with his hearing loss and tinnitus claims in July 2014. However, the Board finds that the VA examination reports are incomplete. Specifically, the Board notes that the July 2014 VA examination indicates that the Veteran does have hearing loss for VA purposes, but the VA examiner concluded that the Veteran’s hearing loss is less likely than not related to his active duty service because there was no evidence of significant shift in threshold levels while the Veteran was in service. See, July 2014 VA examination. The Board notes that the absence of a significant threshold shift during service does not preclude service connection. Dalton v. Nicholson, 12 Vet. App. 23. Accordingly, a new audiological examination is warranted. Barr v. Nicholson, 21 Vet. App. 303 (2007). As the Veteran’s claim for tinnitus is closely intertwined with the Veteran’s claim for hearing loss and will be examined during the Veteran’s audiological examination, the Board will defer action on this claim at this time. The matters are REMANDED for the following action: 1. Obtain any outstanding VA treatment records and associate them with the Veteran’s claims file. 2. After obtaining any outstanding records, the Veteran should be scheduled for a VA examination with the appropriate medical personnel to provide an etiological opinion for his bilateral hearing loss and tinnitus. The entire claims file, to include a copy of this remand, should be made available to the examiner. Following a complete review of the record, the examiner is asked to provide the following opinions: a. Whether it is at least as likely as not that the Veteran’s bilateral hearing loss had its onset during service or is otherwise etiologically related to his active duty service. The absence of a threshold shift in-service or other documented findings of any hearing loss in service is not, by itself, an adequate rationale to base a conclusion. b. Whether it is at least as likely as not that the Veteran’s tinnitus had its onset during service or is otherwise etiologically related to his active duty service. A complete rationale must be provided for all findings and conclusions reached. The examiner should discuss any lay statements made by the Veteran with respect to the etiology of his claimed disabilities. If the examiner must resort to speculation for any of the requested opinions, an explanation as to why this is so is required. If the examiner determines that an opinion cannot be provided without resort to speculation, the examiner should explain the inability to provide an opinion, identifying precisely what facts could not be determined. In particular, he/she should comment on whether an opinion could not be rendered because the limits of medical knowledge have been exhausted regarding the etiology of any diagnosed disorder or whether additional testing or information could be obtained that would lead to a conclusive opinion. The AOJ should ensure that any additional evidentiary development suggested by the examiner is undertaken so that a definite opinion can be obtained. Michael J. Skaltsounis Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD P. Daugherty, Associate Counsel