Citation Nr: 18120012 Decision Date: 07/20/18 Archive Date: 07/19/18 DOCKET NO. 16-19 872 DATE: July 20, 2018 ORDER Entitlement to service connection for bilateral hearing loss is dismissed. Entitlement to service connection for a duodenal ulcer is dismissed. Entitlement to service connection for hepatitis C is denied. Entitlement to service connection for a chronic liver disability, to include as secondary to hepatitis C is denied. Entitlement to service connection for sleep apnea is denied. Entitlement to service connection for diabetes mellitus, to include as secondary to sleep apnea is dismissed. Entitlement to service connection for an acquired psychiatric disability, to include posttraumatic stress disorder (PTSD) and depression is dismissed. REMANDED Entitlement to service connection for tinnitus is remanded. Entitlement to service connection for hypertension. FINDINGS OF FACT 1. Prior to the promulgation of a decision, at the January 2018 Board hearing, the Veteran withdrew his appeal to entitlement to service connection for bilateral hearing loss. 2. Prior to the promulgation of a decision, at the January 2018 Board hearing, the Veteran withdrew his appeal to entitlement to service connection for a duodenal ulcer. 3. The Veteran does not have a current for hepatitis C diagnosis. 4. The evidence does not show that the Veteran’s chronic liver disability was caused by or is etiologically related to service. 5. The evidence does not show that the Veteran’s sleep apnea was caused by or is etiologically related to service. 6. Prior to the promulgation of a decision, at the January 2018 Board hearing, the Veteran withdrew his appeal to entitlement to service connection for diabetes mellitus, to include as secondary to sleep apnea. 7. Prior to the promulgation of a decision, at the January 2018 Board hearing, the Veteran withdrew his appeal to entitlement to service connection for an acquired psychiatric disability, to include posttraumatic stress disorder (PTSD) and depression. CONCLUSIONS OF LAW 1. The criteria for withdrawal of a substantive appeal as to entitlement to service connection for bilateral hearing loss have been met. 38 U.S.C. § 7105 (b)(2), (d)(5) (2012); 38 C.F.R. § 20.204 (2017). 2. The criteria for withdrawal of a substantive appeal as to entitlement to service connection for a duodenal ulcer have been met. 38 U.S.C. § 7105 (b)(2), (d)(5); 38 C.F.R. § 20.204. 3. The criteria for entitlement to service connection for hepatitis C have not been met. 38 U.S.C. §§ 1110, 1131, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304, 3.309, 3.385 (2017). 4. The criteria for entitlement to service connection for a chronic liver disability, to include as secondary to hepatitis C have not been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304, 3.309, 3.385. 5. The criteria for entitlement to service connection for sleep apnea have not been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304, 3.309, 3.385. 6. The criteria for withdrawal of a substantive appeal as to entitlement to service connection for diabetes mellitus, to include as secondary to sleep apnea have been met. 38 U.S.C. § 7105 (b)(2), (d)(5); 38 C.F.R. § 20.204. 7. The criteria for withdrawal of a substantive appeal as to entitlement to service connection for an acquired psychiatric disability, to include posttraumatic stress disorder (PTSD) and depression have been met. 38 U.S.C. § 7105 (b)(2), (d)(5); 38 C.F.R. § 20.204. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from October 1982 to October 1985. These matters come before the Board of Veterans’ Appeals (Board) on appeal from January 2015 and August 2015 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Nashville, Tennessee. The Veteran testified at a videoconference hearing before the undersigned Veterans Law Judge in January 2018. A transcript of the hearing is of record. Service Connection Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303 (a). Establishing service connection generally requires medical or, in certain circumstances, lay evidence of (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a link between the claimed in-service disease or injury and the present disability. Romanowsky v. Shinseki, 26 Vet. App. 289, 293 (2013). Service connection may also be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability was incurred in service. 38 C.F.R. § 3.303 (d). Notably, none of the disabilities have been identified as chronic in service and are not listed under 38 C.F.R. § 3.309, besides the Veteran’s hypertension, which as to be explained below is being remanded for further development. Given such, continuity of symptomatology is not applicable in this claim. In addition, service connection may be granted on a secondary basis for disability which is proximately due to or the result of a service-connected disease or injury. 38 C.F.R. § 3.310. Effective March 14, 2017, VA amended its adjudication regulations relating to presumptive service connection, adding eight diseases that are associated with contaminants present in the water supply at Camp Lejeune. 82 Fed. Reg. 4184-4185 (Jan. 13, 2017) (codified at 38 C.F.R. §§ 3.307, 3.309). In order to establish presumptive service connection for a disease associated with exposure to contaminated water at Camp Lejeune, a claimant must show the following: (1) that the veteran served at Camp Lejeune for no less than 30 days (either consecutive or nonconsecutive) from August 1, 1953 to December 31, 1987; (2) that the veteran suffered from a disease associated with exposure to contaminants in the water supply at Camp Lejeune enumerated under 38 C.F.R. § 3.309 (f); and (3) that the disease process manifested to a degree of 10 percent or more at any time after service. 38 C.F.R. §§ 3.307 (a)(7), 3.309(f). Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits. VA shall consider all information and lay and medical evidence of record, and when there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996). 1. Entitlement to service connection for bilateral hearing loss, a duodenal ulcer, diabetes mellitus, to include as secondary to sleep apnea, and an acquired psychiatric disability, to include posttraumatic stress disorder (PTSD) and depression The Board may dismiss any appeal which fails to allege specific error of fact or law in the determination being appealed. 38 U.S.C. § 7105 (2012). An appeal may be withdrawn as to any or all issues involved in the appeal at any time before the Board promulgates a decision. 38 C.F.R. § 20.204 (2017). Withdrawal may be made by the Veteran or by his or her authorized representative. 38 C.F.R. § 20.204. Here, at the January 2018 Board hearing, the Veteran indicated that he wanted to withdraw his appeal. Specifically, the Veteran asserted that he wanted to withdraw his appeal for entitlement to service connection for bilateral hearing loss, entitlement to service connection for a duodenal ulcer, entitlement to service connection for diabetes mellitus, to include as secondary to sleep apnea, and entitlement to service connection for an acquired psychiatric disability, to include PTSD and depression. As a result, no allegation of error of fact or law remains before the Board for consideration with regard to these issues. 38 C.F.R. § 20.204 (c). Accordingly, the Board does not have jurisdiction to review this appeal, and these claims must be dismissed. 2. Entitlement to service connection for hepatitis C The Veteran contends that he has a current hepatitis C disability which was caused by service. Specifically, he received air gun inoculations, a tattoo, and drank the water at Camp Lejeune. For the following reasons, the Board finds that service connection is not warranted. Service treatment records are silent for complaints, treatment, or diagnosis of hepatitis C. A July 2014 echocardiogram found that the Veteran had sonographic features of the liver suggesting element of fatty infiltration and/or other chronic liver disease. There was no hepatic mass, cholelithiasis or ascites currently appreciated. In a January 2015 VA examination, the examiner noted a diagnosis of hepatitis C in 2000, based on the Veteran’s report of history. The Veteran stated that he was treated for 1 year for hepatitis C but that there were no records available. The examiner noted that the Veteran had signs or symptoms attributable to infectious liver disease to include fatigue. Based on a July 2014 laboratory study, it was determined that the Veteran was negative for hepatitis C viral titers. The examiner opined that the Veteran’s hepatitis C was less likely than not incurred in or caused by the claimed in-service injury, event or illness. The examiner reasoned that the Veteran’s military records did not reflect any history of diagnosis or treatment for hepatitis. The examiner stated that the diagnosis came in 2000; however, there were no records available from any source the Veteran mentioned. He presented with a very convoluted story. He was currently in a VA homeless shelter. The examiner concluded that there was no evidence that established his onset of liver disease while he was on active duty. In a February 2015 statement, the Veteran’s ex-wife stated that the Veteran was diagnosed with hepatitis C in 2000 and he was referred to a specialist. She said that the specialist told him that his infection was exposed in his military service by injections, his tattoos and “some other junk.” The Veteran’s ex-wife stated that he had an ultrasound which revealed an enlarged liver and also a biopsy that revealed chronic level one with cirrhosis or liver damage. She said that he was selected for a research study and after 1 year of treatment his hepatitis C was in remission In a February 2015 statement, the Veteran’s pastor stated that the Veteran was diagnosed with hepatitis C in 2000. He stated that when he heard about the Veteran’s diagnosis, he assumed it was from the inoculation guns in bootcamp or some other cross contamination during service. The pastor stated that the Veteran did not smoke, drink or have any drug usage prior to his diagnosis. The pastor noted that he served in the Army as a medic. In a February 2015 private treatment record, the Veteran’s private physician stated that he had reviewed the Veteran’s record and it showed that he had hepatitis C in the past. The private physician further stated that this was a chronic ongoing condition typically and may result in cirrhosis. In a February 2015 statement, the Veteran’s fellow serviceman said that they would march down lines receiving air gun inoculations during bootcamp. He said everyone also shared each other’s kit in the field if needed. In an August 2015 VA treatment record, the Veteran reported that his hepatitis C had been in remission since 2009. In a March 2017 private treatment record, the Veteran’s private physician opined that it was more likely than not that the Veteran’s hepatitis C with fatty liver was contracted from air gun inoculations during his military service. In an April 2017 VA examination, the examiner noted that the Veteran had not been diagnosed with hepatitis C. In an April 2017 treatment record, the Veteran’s hepatitis C test was found to be negative. At the January 2018 Board hearing, the Veteran testified that he received air gun inoculations in service. After carefully reviewing the record, the Board finds that the weight of the evidence is against a finding of a current hepatitis C disability. The Board notes that although the Veteran has generally asserted that he is entitled to service connection for hepatitis C, the only provided information was that he was diagnosed in 2000 and has not had any diagnosis confirmed during the appeal period. In fact, the Veteran himself has asserted that he was in remission in 2009. The Veteran is competent to assert symptoms but is not competent to provide a diagnosis that would require medical expertise. See Layno, 6 Vet. App. at 469-70; Jandreau, 492 F.3d at 1377. Notwithstanding, the Board acknowledges that pain alone, even without an underlying diagnosis, can still constitute a current disability, for VA compensation purposes, if it reaches the level of a functional impairment of earning capacity. See Saunders v. Wilkie, No. 17-1466, 2018 U.S. App. Vet. Claims LEXIS 8467 (Apr. 3, 2018). However, the Veteran has not alleged, and the weight of the evidence does not reflect, that his claimed hepatitis C has had this effect. Congress has specifically limited entitlement to service-connected benefits to cases where there is a current disability. In the absence of proof of a present disability-i.e., a functional impairment of earning capacity-there can be no valid claim, on either a direct or secondary basis. See Brammer v. Derwinski, 3 Vet. App. 223 (1992); Saunders, 2018 U.S. App. Vet. Claims LEXIS 8467. Here, while the Board acknowledges that the Veteran has reported hepatitis C, the findings of VA medical professionals, based on physical examinations and blood tests of the Veteran weigh against his claim of a current disability. Moreover, the Board finds that the Veteran has not put forth probative evidence establishing that his claimed hepatitis C constitutes a functional impairment of his earning capacity. In sum, in light of the absence of probative evidence of a hepatitis C disability at any point during the pendency of the Veteran’s appeal, the claim for service connection must be denied. Given that the preponderance of the evidence is against the claim, the benefit of the doubt is not for application. 3. Entitlement to service connection for a chronic liver disability, to include as secondary to hepatitis C The Veteran contends that he has a current chronic liver disability which was caused by service and/or is secondary to hepatitis C. Specifically, he received air gun inoculations, a tattoo, and drank the water at Camp Lejeune. For the following reasons, the Board finds that service connection is not warranted. Initially, the Board notes that the Veteran is not service-connected for hepatitis C. Therefore, the Veteran’s chronic liver disability cannot be service-connected on a secondary basis; thus, the Board will consider the Veteran’s claim on a direct and presumptive basis. Service treatment records are silent for complaints, treatment, or diagnosis of a liver condition. The earliest evidence of liver abnormality is from many years after service. A July 2014 echocardiogram found that the Veteran had sonographic features of the liver suggesting element of fatty infiltration and/or other chronic liver disease. There was no hepatic mass, cholelithiasis or ascites currently appreciated. In a January 2015 VA examination, the examiner noted a diagnosis of hepatitis C in 2000, based on the Veteran’s report of history. The Veteran stated that he was treated for 1 year for hepatitis C but that there were no records available. The examiner further noted that the Veteran had signs and symptoms attributable to cirrhosis of the liver, biliary cirrhosis or cirrhotic phase of sclerosing cholangitis to include malaise. Based on a July 2013 endoscopic ultrasound, it was determined that the Veteran had fatty liver. In a January 2015 VA addendum, the examiner opined that there was not substantial evidence to make a diagnosis of fatty liver. There was an ultrasound that showed findings suggesting fatty liver; however, this was not a condition that was made by radiologic diagnosis and there was no biopsy. If one were to assume that the Veteran did have a fatty liver, it would be less likely as not caused by or the result of Camp Lejeune water exposure. Further, the examiner stated that assuming the Veteran did have a fatty liver, the most likely cause was the combination of hepatitis C, borderline obesity, and alcohol use. In a February 2015 statement, the Veteran’s ex-wife stated that he had an ultrasound which revealed an enlarged liver and also a biopsy that revealed chronic level one with cirrhosis or liver damage. She said that he was selected for a research study and after 1 year of treatment his hepatitis C was in remission. In a February 2015 private treatment record, the Veteran’s private physician stated that he had reviewed the Veteran’s record and it showed that he had hepatitis C in the past. The private physician further stated that this was a chronic ongoing condition typically and may result in cirrhosis. In an April 2017 VA examination, the examiner noted that the Veteran had a diagnosis of hepatic steatosis. There were no signs or symptoms of cirrhosis. After a review of the evidence of record, the Board finds no indication of an association between the Veteran’s chronic liver disability and service. The record in this case is negative for any indication, other than the Veteran’s own general assertions, that the is chronic liver disability was caused by service. In fact, it was noted by the January 2015 VA examiner that this was most likely caused by most likely cause was the combination of hepatitis C (which as discussed above is not found to be service-connected), borderline obesity, and alcohol use. Although lay persons are competent to provide opinions on some medical issues, as to the specific issue in this case, an opinion as to the cause of his chronic liver disability falls outside the realm of common knowledge of a lay person. Jandreau, 492 F.3d 1372 (Fed. Cir. 2007). Neither the Veteran nor his representative has produced competent evidence indicating an association between the Veteran’s chronic liver disability and service. In sum, in light of the absence of probative evidence of the Veteran’s chronic liver disability as caused by service, the claim for service connection must be denied. Given that the preponderance of the evidence is against the claim, the benefit of the doubt is not for application. 4. Entitlement to service connection for sleep apnea The Veteran asserts that his sleep apnea began in and was caused by service. In a March 1986 treatment record, it was noted that the Veteran had sinus trouble. In a November 2014 statement provided by the Veteran’s fellow serviceman, he described how the Veteran had a snoring problem in service. He stated that he would put the Veteran on watch in the night hours to curtail this problem. In another November 2014 statement provided by the Veteran’s fellow serviceman, he described how the Veteran snored and had other disruptive sleep which aggravated the other Marines. Marine would hit his bunk and make him roll over to stop snoring, and the Veteran was later placed on night security watch for noise discipline. In a January 2015 statement, provided by another fellow serviceman, it was described how the Veteran snored very loudly. He described it as sounding like a freight train. He also stated how the Veteran would be placed on night fire watch so that other Marines could sleep. In a January 2015 VA examination, the examiner opined that the Veteran’s sleep apnea was less likely than not incurred in or caused by the claimed in-service injury, event or illness. The examiner reasoned that the Veteran was diagnosed with obstructive sleep apnea in November 2014 by VA. He used a CPAP machine. The Veteran stated that his sleep apnea began in boot camp in 1982 because he was a loud snorer. The examiner stated that there was no documentation of any such issues in his military records. He was not diagnosed or treated for sleep apnea until 2014, 32 years after boot camp, and thus this condition was not service-connected. In a February 2015 statement, the Veteran’s ex-wife described how the Veteran was a “horrific snorer.” This got worse as the years went by and he would stop breathing at times. In another February 2015 statement, the Veteran’s friend from high school stated that the Veteran was a very loud snorer. Following service, the Veteran’s friend said that it was hard to get someone to room with him because of his snoring. In another February 2015 statement, the Veteran’s fellow serviceman stated that the Veteran was the only person in their squad bay that would snore. He said that the Veteran’s snoring would aggravate everyone and sometimes he sounded as if he were choking on puke or something. He took a lot of naps and once fell asleep on afternoon firewatch. In a February 2015 VA treatment record, the Veteran stated that he had suffered from sleep apnea since 1982. He said he was a horrific snorer since then, gasping for air. In a March 2016 private treatment record, the Veteran’s private physician opined that the Veteran’s sleep apnea developed during the Veteran’s service. The private physician based this on the testimonies of the Veteran’s fellow servicemen, friend and his ex-wife, as well as on recent medical literature. The private physician stated that since only a sleep apnea study could diagnose obstructive sleep apnea, and physical exam and laboratory exams were generally normal, the Veteran unfortunately went undiagnosed until having a study performed in 2014, finding sleep apnea requiring treatment by CPAP. In addition, the private physician noted that the Veteran’s service treatment records showed elevated blood pressure readings. The finding of hypertension in a young soldier was unusual; thus, the elevated blood pressure readings during the Veteran’s service suggested that the Veteran was suffering from sleep apnea while in service. The examiner concluded that based on a review of the Veteran’s medical and military records, it was more likely than not that the Veteran’s sleep apnea developed during his service. In an April 2016 VA opinion, the examiner noted that obesity was the greatest risk factor for obstructive sleep apnea and the Veteran was noted to have had a significant weight gain since leaving the service. He was noted to have weighed 155 pounds in January 1985 and around the time he was diagnosed with obstructive sleep apnea he was noted to weigh 222.6 pounds in November 2014. The examiner opined that it was less likely than not that the Veteran had obstructive sleep apnea in service or the beginning of symptoms of obstructive sleep apnea in service. The examiner stated that the medical opinion provided by the March 2016 private physician would be mere speculation in determining that the obstructive sleep apnea developed in service or that the Veteran’s hypertension was due to obstructive sleep apnea. A history of snoring would not be diagnostic of obstructive sleep apnea especially without a documented history of apneic episodes. At his January 2018 Board hearing, the Veteran testified that he started having snoring problems after bootcamp. He said that during service, he would snore loudly and sometimes stop breathing. He stated that he was fit at the time and athletic. The feeling of not breathing and choking has gone on his entire life. He said that he was not diagnosed following service and instead was treated for high blood pressure. He said during service he would fall asleep standing up. After a review of the evidence of record, the Board finds no credible and competent indication of an association between the Veteran’s sleep apnea and service. The Board notes that the numerous accounts of snoring in service. The Board also takes into account the March 2016 private physician’s opinion that the Veteran’s sleep apnea was caused by service. However, the Board finds that the most probative evidence of record is the April 2016 VA opinion which considered all evidence including that provided by the March 2016 private physician. The Board also notes that too the extent that the private opinion was based on a premise that the July 1982 blood pressure readings were elevated due to in-service sleep apnea, this is flawed logic as such blood pressure readings were shown on the Veteran’s entrance examination. Although lay persons are competent to provide opinions on some medical issues, as to the specific issue in this case, an opinion as to the cause of his sleep apnea falls outside the realm of common knowledge of a lay person. Jandreau, 492 F.3d 1372 (Fed. Cir. 2007). In sum, in light of the absence of probative evidence of the Veteran’s sleep apnea as caused by service, the claim for service connection must be denied. Given that the preponderance of the evidence is against the claim, the benefit of the doubt is not for application. REASONS FOR REMAND 1. Entitlement to service connection for tinnitus is remanded. In a November 2014 statement, the Veteran’s fellow serviceman reported how the Veteran was a Dragon Weapon Gunner which was a shoulder launched missile. He said how he and the Veteran were issued rubber foam ear plugs with no ear suppressors. In a November 2014 VA examination, the examiner found that the Veteran did report recurrent tinnitus. The examiner determined that it was difficult to provide an opinion regarding the etiology of the Veteran’s tinnitus without consistent and reliable test results. The examiner stated that the Veteran’s puretone thresholds decreased significantly, compared to an audiogram performed less than 3 months ago. This change was more than expected in that period of time. In a January 2015 statement, another fellow serviceman described how they shot a Dragon and did not wear rubber ear plugs or ear suppressors. He described how firing the Dragon felt like getting a concussion and your ears would start ringing. At the January 2018 Board hearing, the Veteran testified that he was a Dragon gunner which was an anti-tank missile shoulder launched weapon. He said they used foam ear protectors, but when the Dragon was fired your head rocked and ears blew. He immediately had ringing in his ears following this. He said his ears ring constantly now. The Board finds that another VA examination is warranted as the November 2014 VA examiner had unreliable test results. In addition, the Veteran’s DD 214 shows the Veteran’s military occupational specialty (MOS) as assaultman and he received a rifle expert badge. Thus, the Board concedes noise exposure in service. Finally, the Veteran has asserted ongoing ringing in his ears since service, and this statement must be considered by the examiner. 2. Entitlement to service connection for hypertension Service treatment records show that in 1982 on his enlistment examination, the Veteran had the following blood pressure readings: 164/80, 140/78 and 150/80. A service treatment record dated in January 1985 notes a blood pressure reading of 139/82. Another record dated in January 1985 notes a reading of 130/80. Upon separation in October 1985, the Veteran reported a history of high blood pressure. His blood pressure reading at that time was 128/82. In a February 2015 VA treatment record, the Veteran stated that he started taking medication for his hypertension in 1990. The Board finds that as there is evidence of elevated blood pressure readings on entrance and in service, the Veteran currently has a diagnosis of hypertension/high blood pressure, and no VA examination has been provided to determine the etiology of the Veteran’s high blood pressure, a VA examination should be provided. Mclendon v. Nicholson, 20 Vet. App. 79 (2006). The Board directs the examiner to consider the evidence above. The matter is REMANDED for the following actions: 1. Obtain any outstanding private or VA treatment records. Request that the Veteran assist with locating these records, if possible. Associate those records with the claims file. 2. Then, schedule the Veteran for a VA examination with an appropriate VA examiner to determine the etiology of the Veteran’s tinnitus claim. The claims file and a copy of this remand must be made available to the examiner for review. After reviewing all relevant evidence, the examiner is asked to opine whether it is at least as likely as not (50 percent or greater probability) that the Veteran’s tinnitus was caused by service. The examiner must consider the Veteran’s MOS as assaultman and note that the Board concedes noise exposure. The examiner must also consider the lay statements of record noting noise in service and continuous ringing since service. All opinions should be expressed with a clear rationale. If the examiner is not able to provide an opinion without resorting to mere speculation, then the examiner must state this and provide any information that would be needed to make an opinion, if possible. 3. Also, schedule the Veteran for a VA examination with an appropriate VA examiner to determine the etiology of the Veteran’s hypertension. The claims file and a copy of this remand must be made available to the examiner for review. After reviewing all relevant evidence, the examiner is asked to opine whether it is at least as likely as not (50 percent or greater probability) that the Veteran’s hypertension was caused by service. The examiner must consider the Veteran’s service treatment records, including the Veteran’s entrance examination that noted elevated blood pressure readings, his in-service blood pressure readings, and his separation examination on which he noted a history of high blood pressure. The examiner must also consider the lay statements of record. If the examiner concludes that hypertension was present upon entrance into service, he should provide an opinion regarding whether it increased in severity during service. All opinions should be expressed with a clear rationale. If the examiner is not able to provide an opinion without resorting to mere speculation, then the examiner must state this and provide any information that would be needed to make an opinion, if possible. 4. Thereafter, adjudicate the claims on appeal. If the benefit sought remains denied, issue the Veteran and his representative a supplemental statement of the case and provide a reasonable opportunity to respond before returning the matter to the Board for further appellate review. MICHAEL MARTIN Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Saudiee Brown, Associate Counsel