Citation Nr: 1808420 Decision Date: 02/09/18 Archive Date: 02/20/18 DOCKET NO. 16-44 859 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Montgomery, Alabama THE ISSUES 1. Entitlement to service connection for an acquired psychiatric disability, to include posttraumatic stress disorder (PTSD), major depressive disorder, and an anxiety disorder. 2. Entitlement to service connection for bilateral hearing loss. 3. Entitlement to service connection for tinnitus. 4. Entitlement to service connection for a chronic cervical spine disability. 5. Entitlement to service connection for a chronic thoracolumbar spine disability. 6. Entitlement to service connection for obstructive sleep apnea. 7. Entitlement to service connection for a cardiac disability, to include coronary artery disease. WITNESSES AT HEARING ON APPEAL Appellant and L.C. ATTORNEY FOR THE BOARD P. Olson, Counsel INTRODUCTION The Veteran had active duty service from August 1981 to December 1981, April 1999 to July 1999, from September 22, 2001 to September 23, 2001, from October 20, 2001 to November 17, 2001, and from January 2002 to September 2002; he also served with the Alabama Air National Guard from August 1985 to December 2003. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a December 2014 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Montgomery, Alabama. In August 2017, the Veteran testified at a Central Office hearing. A transcript of that hearing is of record. The claims file is now entirely in VA's secure electronic processing systems, Virtual VA and Veterans Benefits Management System (VBMS). This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2016). 38 U.S.C. § 7107(a)(2) (West 2012). The issues of entitlement to service connection for an acquired psychiatric disability, tinnitus, a chronic cervical spine disability, a chronic thoracolumbar spine disability, and obstructive sleep apnea are addressed in the REMAND portion of the decision below and are REMANDED to the Agency of Original Jurisdiction (AOJ). FINDINGS OF FACT 1. Sensorineural hearing loss of the right ear did not have its onset during a period of active service, within a year of separation from active service, and is not otherwise shown to be related to a period of active service. 2. The Veteran does not have a diagnosis of left ear hearing loss disability for VA purposes either in service or thereafter. 3. The Veteran does not have a cardiac disability that had its onset during a period of active service, within a year of separation from active service, or that is otherwise shown to be related to a period of active service. CONCLUSIONS OF LAW 1. Right ear hearing loss was not incurred in or aggravated by a period of active service and may not be presumed to have been so incurred. 38 U.S.C. §§ 1101, 1110, 1112, 1113 (2012); 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.385 (2017). 2. The Veteran does not have a diagnosis of left ear sensorineural hearing loss disability that was incurred in or aggravated by a period of active service. 38 U.S.C. § 1110; 38 C.F.R. §§ 3.303, 3.385. 3. The Veteran does not have a diagnosis of a cardiac disability that was incurred in or aggravated by a period of active service, nor may such disorder be presumed to have been incurred in service. 38 U.S.C. §§ 1101, 1110, 1112, 1113; 38 C.F.R. §§ 3.303, 3.307, 3.309. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), the United States Department of Veterans Affairs (VA) has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2017). The requirements of 38 U.S.C. §§ 5103 and 5103A have been met. There is no issue as to providing an appropriate application form or completeness of the application. VA notified the Veteran of the information and evidence needed to substantiate and complete a claim, to include notice of what part of that evidence is to be provided by the claimant, what part VA will attempt to obtain, and how disability ratings and effective dates are determined. VA fulfilled its duty to assist the Veteran in obtaining identified and available evidence needed to substantiate a claim, and as warranted by law, affording VA examinations. There is no evidence that additional records have yet to be requested, or that additional examinations are in order. Moreover, during the August 2017 Board hearing, the undersigned explained the issues on appeal and asked questions designed to elicit evidence that may have been overlooked with regard to the claim. These actions provided an opportunity for the Veteran to introduce material evidence and pertinent arguments, in compliance with 38 C.F.R. § 3.103(c)(2) and consistent with the duty to assist. Service connection means that the facts establish that a particular injury or disease resulting in disability was incurred in the line of duty in the active military service or, if pre-existing such service, was aggravated during service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). Service connection may be granted for disability resulting from disease or injury incurred during active duty for training (ACDUTRA), or injuries suffered during inactive duty training (INACDUTRA) to include when a cardiac arrest or a cerebrovascular accident occurs during such training. See 38 U.S.C. §§ 101(24), 106. Reserve and National Guard service generally means ACDUTRA and INACDUTRA. ACDUTRA is full time duty for training purposes performed by Reservists and National Guardsmen pursuant to 32 U.S.C. §§ 316, 502, 503, 504, or 505. 38 U.S.C. § 101(22); 38 C.F.R. § 3.6(c). Basically, this refers to the two weeks of annual training, sometimes referred to as "summer camp," that each Reservist or National Guardsman must perform each year. It can also refer to the Reservist's or Guardsman's initial period of training. INACDUTRA includes duty, other than full-time duty, performed for training purposes by Reservists and National Guardsmen pursuant to 32 U.S.C. §§ 316, 502, 503, 504, or 505. 38 U.S.C. § 101(23); 38 C.F.R. § 3.6(d). Basically, this refers to the twelve four-hour weekend drills that each Reservist or National Guardsman must perform each year. These drills are deemed to be part-time training. In this case, the record suggests that the Veteran was a full-time member of the Air National Guard of Alabama from 1986 to 2003. Under 38 U.S.C. § 101 (22) (c) ACDUTRA means, in pertinent part, full-time duty as members of the Army National Guard or Air National Guard of any State. Id. The Board notes that the Veteran's full-time National Guard dates have yet to be verified; however, as this verification is inconsequential to the issues decided herein, the Board may continue with the adjudication of the issues. With respect to claims for service connection for hearing loss, the United States Court of Appeals for Veterans Claims (hereafter "the Court"), has held that the threshold for normal hearing is from 0 to 20 decibels, and that higher threshold levels indicate some degree of hearing loss. Hensley v. Brown, 5 Vet. App. 155, 157 (1993). The Court further opined that 38 C.F.R. § 3.385 then operated to establish when a hearing loss disability could be service connected. Hensley, 5 Vet. App. at 159. For the purposes of applying the laws administered by the VA, impaired hearing is considered to be a disability when the auditory threshold in any of the frequencies 500, 1000, 2000, 3000, 4000 Hertz is 40 decibels or greater; or when the auditory thresholds for at least three of the frequencies 500, 1000, 2000, 3000, or 4000 Hertz are 26 or greater; or when word recognition scores using the Maryland CNC test are less than 94 percent. 38 C.F.R. § 3.385. To prevail on the issue of service connection there must be medical evidence of a current disability; medical evidence, or in certain circumstances, lay evidence of in-service occurrence or aggravation of a disease or injury; and medical evidence of a nexus between an in-service injury or disease and the current disability. See Hickson v. West, 12 Vet. App. 247, 253 (1999); see also Pond v. West, 12 Vet App. 341, 346 (1999). In this case, the medical evidence fails to show that the Veteran currently suffers from left ear hearing loss disability for VA purposes or a cardiac disability, including coronary artery disease. 38 U.S.C. § 1110; 38 C.F.R. §§ 3.303, 3.385. The Veteran underwent VA examination in November 2014 at which time pure tone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 25 25 15 25 40 LEFT 25 20 15 15 25 Speech discrimination score for the right ear was 96 percent; speech discrimination for the left ear was 96 percent. The Veteran was diagnosed as having sensorineural hearing loss in the frequency range of 6000 Hertz or higher. Audiometric results in September 2016 indicated normal left ear hearing except for a mild loss at 8000 Hertz and speech discrimination score of 100 percent. A December 2007 electrocardiogram (ECG) from Trinity Medical Center which noted normal sinus rhythm and normal ECG. There is a handwritten note which states, "non-specific ST [sinus tachycardia] changes --> V1" and "[no] evidence of acute ischemia." Non-specific is defined as not specific or definite; not having a specific cause or target. See Dorland's Illustrated Medical Dictionary 1309 (31st ed. 2007). As such, the cause of the non-specific ST changes was not determined. In addition, these changes were seen in 2007, prior to the Veteran filing his claim. Further, the record indicate that an licensed practical nurse noted in a July 2013 primary care annual evaluation note that the Veteran had a diagnosis of heart failure; however, the balance of the Veteran's medical records indicate no cardiovascular history. A September 2004 stress ECG was negative for ischemia. As such, the Board concludes that there is no evidence of a current cardiac disability. In the absence of competent medical evidence that a left ear hearing loss disability for VA purposes or a cardiac disability exists, and that such disability was caused by or aggravated by the Veteran's military service, the criteria for establishing service connection for left ear hearing loss disability and coronary artery disease have not been established. 38 C.F.R. §§ 3.303, 3.385. In contrast, the Veteran clearly has a current diagnosis of right ear hearing loss for VA purposes. The Board notes that the Veteran's military occupational specialty was a jet engine mechanic, and as such, VA concedes military noise exposure and acoustic trauma. The service treatment records, however, are absent complaints of hearing difficulties and absent findings or diagnoses of hearing loss for VA purposes during military service. Thus, there is no competent evidence that shows that the Veteran suffered from a right ear hearing loss during service. As for statutory presumptions, service connection may also be established for a current disability on the basis of a presumption under the law that certain chronic diseases manifesting themselves to a compensable degree within a certain time after service must have had their onset in service. 38 U.S.C. §§ 1101, 1110, 1112, 1113; 38 C.F.R. §§ 3.303(a), 3.307 and 3.309(a). Sensorineural hearing loss can be service-connected on such a basis. However, the first showing of right ear sensorineural hearing loss for VA purposes was not until years after the Veteran's discharge from service. As such, service connection is not warranted under 38 C.F.R. § 3.303(a). Alternatively, when a chronic disease is not present during service, service connection may be established under 38 C.F.R. § 3.303(b) by evidence of continuity of symptomatology. Continuity of symptomatology may be established if a claimant can demonstrate (1) that a condition was "noted" during service; (2) evidence of post-service continuity of the same symptomatology; and (3) medical or, in certain circumstances, lay evidence of a nexus between the present disability and the post-service symptomatology. Savage v. Gober, 10 Vet. App. 488, 495-97 (1997); 38 C.F.R. § 3.303(b). Such evidence is lacking here. Although the Veteran reports continuity of post-service symptoms, the Board finds his allegations to be of limited probative value. He is competent to give evidence about what he experienced; for example, he is competent to report that he engaged in certain activities in service and currently experiences certain symptomatology. See, e.g., Layno v. Brown, 6 Vet. App. 465 (1994). Competency, however, must be distinguished from weight and credibility, which are factual determinations going to the probative value of the evidence. Rucker v. Brown, 10 Vet. App. 67, 74 (1997); see also Cartwright v. Derwinski, 2 Vet. App. 24, 25 (1991) ("although interest may affect the credibility of testimony, it does not affect competency to testify"). The Board acknowledges that it cannot determine that lay evidence lacks credibility merely because it is unaccompanied by contemporaneous medical evidence. See Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006). However, such lack of contemporaneous evidence is for consideration in determining credibility. In this regard, the Board notes that the record is devoid of objective evidence of complaints of hearing loss until 2014, more than 10 years after the Veteran's service. As such, the Board finds that any assertions by the Veteran as to the continuity of symptomatology of his hearing loss since service to be less than credible. As such, service connection is not warranted under 38 C.F.R. § 3.303(b). The remaining question, therefore, is whether there is medical evidence of a relationship between the Veteran's current right ear hearing loss and his active duty service. The November 2014 VA examiner opined that the Veteran's right ear hearing loss was not at least as likely as not caused by or a result of an event in military service. The examiner noted that the hearing test completed for the Veteran's enlistment examination in July 1981 revealed hearing within normal limits at all test frequencies in the right ear. The hearing test completed for his full time Air National Guard hire examination in September 1986 also revealed hearing within normal limits at all test frequencies in the right ear. A hearing test completed in February 2003 revealed hearing within normal limits from 500 to 3000 Hertz, sloping to a mild hearing loss from 4000 to 6000 Hertz in the right ear. The examiner stated, When forming an opinion regarding the etiology of his right ear hearing loss, the examinations from 1986 and 2003 will be compared as these are the years that he was solely an ANG employee. Between his initial enlistment in 1981 and 1986, he was also working civilian jobs that exposed him to loud noise. Therefore, when comparing the exams from 1986 and 2003, there are no significant threshold shifts at any test frequency in the right ear. It is this examiner's opinion that it is less likely than not that his right ear hearing loss is a result of military noise exposure. In support of his claim, the Veteran submitted an August 2016 letter from Dr. Davis which states in pertinent part, [The Veteran] reports he worked on jet engines in the Air National Guard for 25 years, during which time he consistently wore hearing protection. He finds he has challenges hearing on the phone, difficulty hearing when he is in groups of people and has to turn the TV up louder to hear. His hearing test results show ... a mild low and mid frequency and moderate high frequency sensorineural hearing loss for the right ear. ... It is possible that his time spent in the Air National Guard had an effect on his hearing loss ... symptoms. The Board notes that there is a difference of opinion among the medical professionals. In deciding whether the Veteran's right ear hearing loss is related to his active duty service, it is the responsibility of the Board to weigh the evidence and decide where to give credit and where to withhold the same and, in so doing, accept certain medical opinions over others. Evans v. West, 12 Vet. App. 22, 30 (1998). That responsibility is particularly onerous where medical opinions diverge. At the same time, the Board is mindful that it cannot make its own independent medical determinations and that there must be plausible reasons for favoring one medical opinion over another. Id. Here, there are legitimate reasons for accepting the VA examiner's unfavorable medical opinion over Dr. Davis' favorable medical opinion. With regard to medical evidence, an assessment or opinion by a health care provider is never conclusive and is not entitled to absolute deference. Indeed, the courts have provided guidance for weighing medical evidence. They have held, for example, that a bare conclusion, even one reached by a health care professional, is not probative without a factual predicate in the record. Miller v. West, 11 Vet. App. 345, 348 (1998). In addition, an examination that does not take into account the records of prior medical treatment is neither thorough nor fully informed. Green v. Derwinski, 1 Vet. App. 121, 124 (1991). A bare transcription of lay history, unenhanced by additional comment by the transcriber, is not competent medical evidence merely because the transcriber is a health care professional. LeShore v. Brown, 8 Vet. App. 406, 409 (1995). A medical opinion based on speculation, without supporting clinical data or other rationale, does not provide the required degree of medical certainty. Bloom v. West, 12 Vet. App. 185, 187 (1999). Also, a medical opinion is inadequate when unsupported by clinical evidence. Black v. Brown, 5 Vet. App. 177, 180 (1995). In sum, the weight to be accorded the various items of medical evidence in this case must be determined by the quality of the evidence and not necessarily by its quantity or source. In this case, Dr. Davis' opinion is speculative and, at most, does little more than propose that it is possible that the Veteran's right ear hearing loss is related to military noise exposure. Such opinion is too tenuous and speculative in nature to provide the requisite nexus. In comparison, the November 2014 VA examiner provided a rationale for the opinion in conjunction with examination of the Veteran and a review of the claims file, including the Veteran's service treatment records and numerous in-service audio examinations. Thus, the Board finds that the November 2014 VA examiner's reasoned medical opinion is accordingly more probative than the speculative opinion of Dr. Davis. As such, the Board finds that the medical evidence of record indicating the Veteran's current right ear hearing loss is not related to conceded military noise exposure outweighs the medical evidence in favor of the claim. A prolonged period without medical complaint can be considered, along with other factors concerning a claimant's health and medical treatment during and after military service, as evidence of whether an injury or a disease was incurred in service which resulted in any chronic or persistent disability. See Maxson v. West, 12 Vet. App. 453 (1999), aff'd, 230 F.3d 1330 (Fed. Cir. 2000) [service incurrence may be rebutted by the absence of medical treatment for the claimed condition for many years after service]. In this case, the medical evidence does not show treatment or diagnosis of hearing loss until more than ten years after service. The Board must also consider the Veteran's own opinion that he has bilateral hearing loss and coronary artery disease related to active service. In this case, the Board does not find him competent to provide a diagnosis with respect to left ear hearing loss and coronary artery disease or to provide an opinion regarding the etiology of his right ear hearing loss as these questions are of the type that the courts have found to be beyond the competence of lay witnesses. Lay statements may be competent to support a claim for service connection by supporting the occurrence of lay-observable events or the presence of disability or symptoms of disability subject to lay observation. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); see also Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006) (addressing lay evidence as potentially competent to support presence of disability even where not corroborated by contemporaneous medical evidence). Some medical issues, however, require specialized training for a determination as to diagnosis and causation, and such issues are, therefore, not susceptible of lay opinions on etiology, and the statements of the Veteran therein cannot be accepted as competent medical evidence. Accordingly, the Board concludes that the preponderance of the evidence is against the claims for service connection, and the benefit of the doubt rule enunciated in 38 U.S.C. § 5107(b) is not for application. ORDER Entitlement to service connection for bilateral hearing loss is denied. Entitlement to service connection for a cardiac disability, to include coronary artery disease is denied. REMAND As noted above, the record suggests that the Veteran was a full-time member of the Air National Guard of Alabama from 1986 to 2003. Service treatment records indicate that the Veteran underwent a reference audiogram in September 1986 at which time the reviewer remarked "new full time hire." Under 38 U.S.C. § 101 (22) (a) and (c), ACDUTRA means, in pertinent part, full-time duty as members of the Army National Guard or Air National Guard of any State. Id. In this case, the actual dates of the Veteran's full-time service in the Air National Guard have not been verified. Because this is essential to the remaining issues on appeal, an attempt to verify all periods of ACDUTRA and INACDUTRA. With respect to the issue of entitlement to service connection for an acquired psychiatric disorder, the Veteran claims that his psychiatric symptoms are related to threats of harm, including threats of attempted suicide bombings and mortar attacks, during his active duty service in Turkey. The Veteran also contends that his psychiatric symptoms are related to the treatment he received at the end of his National Guard service after he neglected to pay a $192 tariff tax for guns purchased in Turkey which culminated in a one-year incarceration at a federal prison. The Veteran underwent VA examination in November 2014 at which time he was diagnosed as having unspecified depressive disorder with anxious distress. The examiner found the Veteran did not meet the criteria for a diagnosis of PTSD. The examiner noted that the Veteran's incarceration occurred after his discharge from active duty. The record suggests, however, that the Veteran's psychiatric symptoms began before his incarceration. An attending physician's July 2003 statement indicates that the Veteran's psychiatric symptoms began in February 2003 while the Veteran was still in the National Guard. In support of his claim, the Veteran has submitted a mental disorders disability benefits questionnaire (DBQ) completed by Dr. L. in April 2017 which states that the Veteran's major depressive disorder is linked to his incarceration for failure to pay a tariff while deployed in Turkey and that as a result, he was incarcerated for a year in federal prison leading to physical harm by prisoners, loss of his family, divorce, financial ruin, and homelessness. An injury or disease incurred during active service is presumed to have been incurred in the line of duty unless the evidence establishes that the injury or disease resulted from willful misconduct or abuse of alcohol or drugs or during unauthorized absence, court-martial, or felony imprisonment. 38 U.S.C. § 105 (2012). Willful misconduct means an act involving conscious wrongdoing or known prohibited action. 38 C.F.R. § 3.1 (n) (2017). It involves deliberate or intentional wrongdoing with knowledge of or wanton and reckless disregard of its probable consequences. 38 C.F.R. § 3.1 (n)(1) (2017). In this case, the Board may have to determine whether the Veteran's incarceration, and thus any disability related to it, was the result of his willful misconduct. The Board notes that the Veteran's complete personnel records pertaining to his service in the Air National Guard do not appear to be associated with the file. As such, an attempt should be made to obtain and associate with the file the Veteran's complete service personnel records pertaining to his service in the Air National Guard, and in particular records related to his arrest, conviction, and incarceration due to his not declaring guns purchased in Turkey and brought into the U.S. as well as a failure to pay the tariff tax. With respect to entitlement to service connection for tinnitus and obstructive sleep apnea, the Veteran contends that these disorders are secondary to psychiatric disorders. In fact, an April 2017 letter from Dr. Levine states, "[The Veteran] suffers from obstructive sleep apnea which more likely due to the traumatic events that led to his major depressive disorder." As such, they are inextricably intertwined with the issue of entitlement to service connection for an acquired psychiatric disorder. In addition, as noted above, the Veteran underwent VA examination in November 2014. The examiner, however, stated, Regarding relationship of tinnitus to noise exposure in the military, this examiner cannot resolve this issue without resort to mere speculation. Although there is one report of tinnitus during a hearing conservation exam on [August 4, 1992] in his STRs, there are multiple other exams after that date in which the Veteran denied the presence of tinnitus. Also, he was unable to attribute the onset of tinnitus to a military noise-related event. Once VA undertakes the effort to provide an examination when developing a service-connection claim, even if not statutorily obligated to do so, it must provide an adequate one. Barr v. Nicholson, 21 Vet. App. 303-313 (2007). It is "essential, both in the examination and in the evaluation of the disability, that each disability be viewed in relation to its history." 38 C.F.R. § 4.1. A service connection claim for tinnitus raises unique issues because the readily observable nature of this disorder means lay evidence must be considered when rendering an opinion. See, e.g., Charles v. Principi, 16 Vet. App. 370, 374 (2002) (finding a Veteran competent to testify as to in-service acoustic trauma, in-service symptoms or tinnitus, and post-service continuous symptoms of tinnitus "because ringing in the ears is capable of lay observation"). Thus, when providing an examination in a tinnitus claim, the examiner must consider and directly address the Veteran's lay statements regarding continuity of tinnitus symptoms through the years. See, e.g., Buchanan v. Nicholson, 451 F.3d 1331, 1337 (2006). In this case, the Veteran reported intermittent bilateral tinnitus that had been present for many years. As such, it is the Board's opinion that additional etiology opinions regarding the Veteran's tinnitus and obstructive sleep apnea be obtained. With respect to entitlement to service connection for a chronic cervical spine and a chronic thoracolumbar spine disability, the Board notes that service treatment records indicate that the Veteran complained of low back pain on the right in January 1989, taking flexeril for a pulled nerve in his back in February 1989, upper back and neck pain for two days in February 2002, and neck and back pain in March 2002. In August 2002, the provider noted that the Veteran's neck was fine, that he did not complain of significant pain, just occasional pain over the right side of his neck, that x-rays were negative, and that a diagnosis was basically a myofascial pain. A June 2003 medical record noted that the Veteran suffered a work-related injury in September 1986 when a telephone pole broke and he fell 30 feet. In addition, medical records dated in November 2011 report that the Veteran was involved in a high speed rollover with marked damage to the cabin of his vehicle and that he had pain in the back of his head and neck and suffered a C-6 fracture and multiple thoracic vertebral fractures. As such, the Board finds that an etiology opinion in conjunction with the review of the entire record and examination of the Veteran is warranted. 38 C.F.R. § 3.159(c)(4). Accordingly, the case is REMANDED for the following action: (Please note, this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c). Expedited handling is requested.) 1. The Veteran should be requested to indicate if he has received any VA or non-VA medical treatment for his psychiatric disorders, tinnitus, spine disorders, and obstructive sleep apnea that is not evidenced by the current record. If so, the Veteran should be provided with the necessary authorizations for the release of any treatment records not currently on file, to include any medical records from the Federal Correctional Institution in Yazoo, Mississippi. These records should then be obtained and associated with the file. The Veteran should be advised that he may also submit any evidence or further argument relative to the claim at issue. 2. An attempt should be made to obtain all of the Veteran's National Guard service personnel records, in particular records related to his arrest, conviction, and incarceration. Any negative reply must be documented, in which case the Veteran must be notified that these records cannot be located and he must be given an opportunity to respond. 3. After all attempts necessary have been made to obtain additional personnel records, an attempt should be made to verify all periods of the Veteran's ACDUTRA and INACDUTRA while serving in the Alabama Air National Guard. A determination should then be made as to whether the Veteran's stressors occurred during a period of ACDUTRA or INACDUTRA and, if so, whether such stressors resulted from willful misconduct, court-martial, or felony imprisonment. 4. The Veteran should be afforded an additional VA psychiatric examination, preferably by a VA psychiatrist or a VA psychologist, to determine the nature and etiology of all current chronic psychiatric disorders. The examiner is to be provided access to Virtual VA and VBMS and must specify in the report that Virtual VA and VBMS records have been reviewed. All pertinent symptomatology and findings should be reported in detail. Any indicated diagnostic tests and studies should be accomplished. The examiner should be advised as to the stressor(s) established by the record and whether the Veteran's service was such that he could have been placed in fear of hostile military activity. The examiner should identify all current chronic psychiatric disorders with consideration of the current diagnostic criteria and provide an opinion as to whether it is at least as likely as not that any such disorder had its onset in service or is otherwise related to the Veteran's active duty service (including any periods of ACDUTRA and INACDUTRA), to include his fear of hostile military or terrorist activity in service, if so determined. If a diagnosis of PTSD is rendered, the examiner should specify (1) whether each alleged stressor found to be established by the evidence of record was sufficient to produce PTSD; (2) whether the remaining diagnostic criteria to support the diagnosis of PTSD have been satisfied; and (3) whether there is a link between the current symptomatology and one or more of the in-service stressors found to be established by the record and found to be sufficient to produce PTSD by the examiner and/or whether the diagnosis of PTSD is based on the Veteran's fear of hostile military action. The opinion of the examiner must reconcile the conflicting opinions as to whether the Veteran experiences psychiatric symptoms which meet the diagnostic criteria to support a diagnosis of PTSD. 5. The Veteran should be afforded a VA examination to determine the nature and etiology of the Veteran's tinnitus and obstructive sleep apnea. The examiner is to be provided access to Virtual VA and VBMS and must specify in the report that these records have been reviewed. All pertinent symptomatology and findings should be reported in detail. Any indicated diagnostic tests and studies should be accomplished. The examiner should provide an opinion as to whether it is at least as likely as not that the Veteran's tinnitus and obstructive sleep apnea had its onset in service or is otherwise related to the Veteran's active duty service (including any periods of ACDUTRA or INACDUTRA) taking into consideration and addressing the lay statements of record concerning the onset of tinnitus and symptoms of obstructive sleep apnea. 6. The Veteran should be afforded a VA orthopedic examination, preferably by an examiner with expertise in diagnosing and treating spinal disorders, to determine the nature and etiology of the Veteran's cervical and thoracolumbar spine disorders. The examiner is to be provided access to Virtual VA and VBMS and must specify in the report that these records have been reviewed. All pertinent symptomatology and findings should be reported in detail. Any indicated diagnostic tests and studies should be accomplished. The examiner should identify all current chronic cervical spine and thoracolumbar spine disorders and provide an opinion as to whether it is at least as likely as not that any such disorder had its onset in service or is otherwise related to the Veteran's active duty service (including any periods of ACDUTRA). 7. It would be helpful if the examiners would use the following language, as may be appropriate: "more likely than not" (meaning likelihood greater than 50%), "at least as likely as not" (meaning likelihood of at least 50%), or "less likely than not" or "unlikely" (meaning that there is a less than 50% likelihood). The term "at least as likely as not" does not mean "within the realm of medical possibility." Rather, it means that the weight of medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of that conclusion as it is to find against it. The examiner should provide a complete rationale for any opinion provided. 8. The Veteran is hereby notified that it is his responsibility to report for the examinations and to cooperate in the development of the claim. The consequences for failure to report for a VA examination without good cause may include denial of the claim. In the event that the Veteran does not report for the aforementioned examinations, documentation should be obtained which shows that notice scheduling the examinations was sent to the last known address. It should also be indicated whether any notice that was sent was returned as undeliverable. 9. After the development requested has been completed, the examination reports should be reviewed to ensure that they are in complete compliance with the directives of this REMAND. If any report is deficient in any manner, corrective procedures should be implemented at once. 10. The case should be reviewed on the basis of the additional evidence. If the benefit sought is not granted in full, the Veteran should be furnished a Supplemental Statement of the Case and be afforded a reasonable opportunity to respond before the record is returned to the Board for further review. The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C. §§ 5109B, 7112 (West 2012). ______________________________________________ MICHAEL D. LYON Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs