Citation Nr: 21068307 Decision Date: 11/09/21 Archive Date: 11/09/21 DOCKET NO. 19-00 827 DATE: November 9, 2021 ORDER New and material evidence having been presented, the claim of entitlement to service connection for a right knee disorder is reopened. New and material evidence having been presented, the claim of entitlement to service connection for a left knee disorder is reopened. New and material evidence having been presented, the claim of entitlement to service connection for sleep apnea is reopened. The claim of entitlement to revision of January 1986 and August 2015 rating decisions, which denied entitlement to service connection for a right knee disorder, on the basis of clear and unmistakable error (CUE) is denied. The claim of entitlement to revision of a November 2011 rating decision, which denied entitlement to service connection for a left knee disorder, on the basis of CUE is denied. The claim of entitlement to revision of a May 2013 rating decision, which denied entitlement to service connection for sleep apnea, on the basis of CUE is denied. REMANDED The claim of entitlement to service connection for a right knee disorder is remanded. The claim of entitlement to service connection for a left knee disorder is remanded. The claim of entitlement to service connection for sleep apnea is remanded. The claim of entitlement to a respiratory disorder, to include chronic obstructive pulmonary disease and asthma, is remanded. FINDINGS OF FACT 1. An August 2015 rating decision denied the claim to reopen the issue of entitlement to service connection for a right knee disorder; the Veteran did not appeal the decision or submit any pertinent evidence within the appeal period and the decision is now final. 2. Evidence received subsequent to the expiration of the appeal period is not cumulative or redundant of the evidence previously of record and relates to an unestablished fact necessary to substantiate the claim of entitlement to service connection for a right knee disorder. 3. A November 2011 rating decision denied the claim of entitlement to service connection for a left knee disorder; the Veteran did not file a substantive appeal and the decision is now final. 4. Evidence received subsequent to the expiration of the appeal period is not cumulative or redundant of the evidence previously of record and relates to an unestablished fact necessary to substantiate the claim of entitlement to service connection for a left knee disorder. 5. A May 2013 rating decision denied the claim of entitlement to service connection sleep apnea; the Veteran did not file a substantive appeal and the decision is now final. 6. Evidence received subsequent to the expiration of the appeal period is not cumulative or redundant of the evidence previously of record and relates to an unestablished fact necessary to substantiate the claim of entitlement to service connection for sleep apnea. 7. The January 1986 and August 2015 rating decisions that denied service connection for a right knee disorder are final decisions. 8. The correct facts, as known at the time, were before the adjudicators in January 1986 and August 2015, and the statutory and regulatory provisions extant at the time were correctly applied. 9. The November 2011 rating decision that denied service connection for a left knee disorder is a final decision. 10. Although the November 2011 rating decision contained an undebatable error, the error was not outcome-determinative. 11. The May 2013 rating decision that denied service connection for sleep apnea is a final decision. 12. The correct facts, as known at the time, were before the adjudicators in May 2013, and the statutory and regulatory provisions extant at the time were correctly applied. CONCLUSIONS OF LAW 1. New and material evidence has been presented to reopen the claim of entitlement to service connection for a right knee disorder. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. 2. New and material evidence has been presented to reopen the claim of entitlement to service connection for a left knee disorder. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. 3. New and material evidence has been presented to reopen the claim of entitlement to service connection for sleep apnea. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. 4. The criteria for entitlement to revision of the January 1986 and August 2015 rating decisions on the basis of CUE have not been met. 38 U.S.C. § 5109A; 38 C.F.R. §§ 3.104, 3.105(a). 5. The criteria for entitlement to revision of the November 2011 rating decision on the basis of CUE have not been met. 38 U.S.C. § 5109A; 38 C.F.R. §§ 3.104, 3.105(a). 6. The criteria for entitlement to revision of the May 2013 rating decision on the basis of CUE have not been met. 38 U.S.C. § 5109A; 38 C.F.R. §§ 3.104, 3.105(a). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had a verified period of active duty for training (ACDUTRA) with the Air National Guard from December 1977 to July 1978, as well a period of active duty service with the United States Coast Guard from July 1980 to July 1984. In Clemons v. Shinseki, 23 Vet. App. 1, 5 (2009), the United States Court of Appeals for Veterans Claims (Court) held that the scope of a mental health disability claim includes any mental health disability that could reasonably be encompassed by the claimant's description of the claim, reported symptoms, and the other information of record. In Brokowski v. Shinseki, 23 Vet. App. 79 (2009), the Court extended the holding of Clemons to include disabilities outside of psychiatric disorders. In compliance with this case law, the Veteran's respiratory claims have been combined to a single issue of entitlement to service connection for a respiratory disorder. In November 2020, the Veteran testified at a virtual hearing before the undersigned Veterans Law Judge (VLJ). A transcript of the hearing is of record. New and Material Evidence Generally, if a claim of entitlement to service connection has been previously denied and that decision became final, the claim can be reopened and reconsidered only if new and material evidence is presented with respect to that claim. 38 U.S.C. § 5108. "New" evidence is defined as existing evidence not previously submitted to agency decision-makers. "Material" evidence means evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. New and material evidence can be neither cumulative, nor redundant of the evidence previously of record, and must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156 (a). The threshold to reopen a claim is low. Shade v. Shinseki, 24 Vet. App. 110 (2010). 1. Whether new and material evidence has been submitted to reopen the claim of entitlement to service connection for a right knee disorder. Please see discussion in paragraph 3. 2. Whether new and material evidence has been submitted to reopen the claim of entitlement to service connection for a left knee disorder. Please see discussion in paragraph 3. 3. Whether new and material evidence has been submitted to reopen the claim of entitlement to service connection for sleep apnea. The Agency of Original Jurisdiction (AOJ) initially denied service connection for a right knee disorder in a January 1986 rating decision. The AOJ determined that the right knee disorder was constitutional or developmental and not subject to service connection. In an August 2015 rating decision, the AOJ denied the Veteran's claim to reopen the issue of entitlement to service connection for a right knee disorder. The Veteran did not appeal the denials or submit any pertinent evidence within the appeal periods. Therefore, the decisions are final. See 38 U.S.C. § 7105; 38 C.F.R. § § 20.201, 20.302, 20.1103. The AOJ initially denied service connection for the left knee disorder in a November 2011 rating decision. It was determined that his current left knee disorder was not related to the in-service left knee treatment. The Veteran submitted a notice of disagreement in October 2012 and a statement of the case (SOC) was issued in October 2014. The Veteran did not perfect his appeal and the decision is final. 38 C.F.R. § 20.302. To the extent the Veteran argues that his January 1986 claim included a claim of entitlement to service connection for a left knee disorder, the Board finds that the November 2011 denial extinguished any pending claim. See Jones v. Shinseki, 619 F.3d 1368, 1371-74 (Fed. Cir. 2010) ("a pending claim for benefits can be resolved by a later adjudication of an identical claim or a related claim because the later decision provides sufficient notice to the claimant that the pending claim has been finally resolved"). The AOJ initially denied service connection for sleep apnea in a May 2013 rating decision. It was determined that his sleep apnea was not secondary to his service-connected anxiety disorder and that there was no evidence of sleep apnea during his military service. The Veteran submitted a notice of disagreement in June 2013 and a statement of the case (SOC) was issued in October 2014. The Veteran did not perfect his appeal and the decision is final. 38 C.F.R. § 20.302. Thereafter, the Veteran filed a claim to reopen the issues of entitlement to service connection for a left knee disorder, a right knee disorder, and sleep apnea in March 2018. Evidence received since the November 2011, May 2013, and August 2015 rating decision includes a March 2017 private treatment record from R.B., M.D. stating that the Veteran's bilateral knee pain was certainly related to service. The evidence also includes a March 2015 statement from the Veteran that he experienced sleep problems during service due to working long shifts, which resulted in weight gain and fatigue. The evidence constitutes new and material evidence. This follows because the evidence relates to a previously unestablished element that is necessary to grant entitlement to service connection. Accordingly, reopening of the claims of service connection for a left knee disorder, a right knee disorder, and sleep apnea is warranted. CUE Claims Generally, an unappealed rating decision becomes final within one year of its issuance. 38 C.F.R. § 20.1103. An exception to this finality rule is when CUE is found in the rating decision; a finding of CUE has the same effect as if the correct decision had been made on the date of the prior decision. 38 U.S.C. § 5109A; 38 C.F.R. §§ 3.104 (a), 3.105(a). CUE is a very specific and rare kind of error. 38 C.F.R. § 20.1403 (a). It is the kind of error of fact or law which, when called to the attention of later reviewers, compels the conclusion, to which reasonable minds could not differ, that the result would have been manifestly different but for the error. 38 C.F.R. § 20.1403 (a); see Russell v. Principi, 3 Vet. App. 310, 313-14 (1992) (en banc); see also Bustos v. West, 179 F.3d 1378, 1380-81 (Fed. Cir. 1999). Simply to claim CUE on the basis that previous adjudications had improperly weighed and evaluated the evidence can never rise to the stringent definition of CUE. Similarly, neither can broad-brush allegations of "failure to follow the regulations" or "failure to give due process," or any other general, nonspecific claim of "error." Fugo v. Brown, 6 Vet. App. 40, 43-44 (1993). In addition, failure to address a specific regulatory provision involves harmless error unless the outcome would have been manifestly different. Id. at 44. To establish CUE, the appellant must show: (1) that either the facts known at the time were not before the adjudicator or the law then in effect was incorrectly applied, (2) that an error occurred based on the record and the law that existed at the time the decision was made, and (3) that, had the error not been made, the outcome would have been manifestly different. See Bouton v. Peake, 23 Vet. App. 70, 71 (2008); Grover v. West, 12 Vet. App. 109, 112 (1999); Damrel v. Brown, 6 Vet. App. 242, 245 (1994); Russell, 3 Vet. App. at 313-14. If it is not absolutely clear that a different result would have ensued, the error complained of cannot be CUE. See 38 C.F.R. § 20.1403 (b), (c); see also Bustos, 179 F.3d 1378. Even when the premise of error is accepted, if it is not absolutely clear that a different result would have ensued, the error complained of cannot be ipso facto clear and unmistakable. Fugo, 6 Vet. App. at 43-44. The error must be of a type that is outcome-determinative, and subsequently developed evidence may not be considered in determining whether an error existed in the prior decision. See Porter v. Brown, 5 Vet. App. 233, 235-36 (1993); Glover v. West, 185 F.3d 1328 (Fed. Cir. 1999). A manifest change in the outcome of an adjudication means that, absent the alleged CUE, the benefit sought would have been granted at the outset. King v. Shinseki, 26 Vet. App. 433, 441 (2014). The standard is not whether it is reasonable to conclude that the outcome would have been different. Id. at 442. A determination of CUE must be based on the record and the law that existed at the time of the prior adjudication. Baldwin v. West, 13 Vet. App. 1 (1999); Caffrey v. Brown, 6 Vet. App. 377 (1994). A claim of CUE is a collateral attack on an otherwise final rating decision. Smith v. Brown, 35 F.3d 1516, 1527 (Fed. Cir. 1994). As such, there is a presumption of validity that attaches to a final decision, and when such a decision is collaterally attacked, the presumption becomes even stronger. Fugo, 6 Vet. App. at 44. Therefore, one who seeks to obtain retroactive benefits based on CUE has a much heavier burden than that placed on a claimant who seeks to establish prospective entitlement to VA benefits. Akins v. Derwinski, 1 Vet. App. 228, 231 (1991). 4. Entitlement to revision of the January 1986 and August 2015 rating decisions that denied service connection for a right knee disorder. Please see discussion in paragraph 6. 5. Entitlement to revision of the November 2011 rating decision that denied service connection for a left knee disorder. Please see discussion in paragraph 6. 6. Entitlement to revision of the May 2013 rating decision that denied service connection for sleep apnea. The Veteran asserts that there were CUE in the prior decisions that denied entitlement to service connection for a right knee disorder, a left knee disorder, and sleep apnea. He argues that the evidence provided by his physician was not properly weighed. With regard to the November 2011 rating decision, he explained that the September 2011 VA examiner incorrectly noted that he had a left knee x-ray in 1985. The Board finds that revision of the January 1986, November 2011, May 2013, and August 2015 rating decisions based on CUE is not warranted. With respect to the November 2011 rating decision, the Regional Rffice (RO) adjudicated his left knee claim and incorrectly stated that the Veteran had a negative x-ray on July 30, 1985. The claims file does not contain a July 1985 x-ray of the left knee, only the right knee. The evidence at the time included the Veteran's service treatment records showing treatment for left knee problems during service, including a March 1978 left knee strain. The evidence also included a September 2011 VA examination and opinion, which found that the left knee disorder was not related to service. The opinion was supported by the fact that the Veteran injured his left knee in a post-service accident and subsequently underwent surgery for the knee. The examiner also noted that Veteran had an x-ray in 1985 that was normal. The Board finds that the RO's error was not outcome determinative and did not constitute CUE. Even if the RO had not considered the inaccurate finding regarding the knee x-ray, this alone would not have resulted in a grant of service connection at the time of the November 2011 rating decision. To the extent the Veteran argues that the November 2011 rating decision contained CUE because it relied on an inadequate VA examination, an inadequate VA examination is the result of a failure of the duty to assist and cannot be the basis of a CUE claim as a matter of law. See 38 C.F.R. § 3.105 (a)(vi). With respect to the January 1986, May 2013, and August 2015 rating decisions, the Veteran's argument is essentially a disagreement as to how the evidence was weighed. As noted, a disagreement as to how the evidence was weighed does not constitute CUE. The Board notes that the Veteran also asserted there was CUE in the June 2018 rating decision on appeal. A claim of CUE is a collateral attack on an otherwise final rating decision. Smith v. Brown, 35 F.3d 1516, 1527. As the rating decision on appeal is not final, the Board will not address his claim of CUE in the June 2018 rating decision. Accordingly, a revision of the January 1986, November 2011, May 2013, and August 2015 rating decisions on the basis of CUE must be denied. REASONS FOR REMAND 1. The claim of entitlement to service connection for a right knee disorder is remanded. Please see discussion in paragraph 2. 2. The claim of entitlement to service connection for a left knee disorder is remanded. The Board finds that a remand is required to obtain another VA examination and opinion. Service treatment records showed treatment for the Veteran's knees. In March 1978 he was treated for a left knee medial sprain. He was unable to extend his leg and was placed on crutches. In September 1980, he presented with right knee pain and an inability to straighten his right leg. The assessment was muscle tightening. The most recent VA examinations for the knees were conducted in July 1985 and September 2011 for the right knee and left knee, respectively. The July 1985 VA examination included a right knee x-ray that was unremarkable. The physical examination of the right knee revealed 10 degrees of recurvatum in the supine position. Range of motion and stability was normal. The diagnosis was right knee pain. The VA examiner did not provide a medical opinion. The September 2011 VA examination included a diagnosis of mild osteoarthritis of the left knee. The Veteran described the March 1978 incident during his National Guard service where his knee locked on him and a physician had to manually unlocked it. He denied left knee problems during his Coast Guard service from 1980 to 1984. He reported that he injured his knee in a post-service 1996 motor vehicle accident and subsequently had arthroscopic debridement of left knee cartilage. The examiner opined that the left knee disorder was less likely than not incurred in or caused by service. The rationale was that the Veteran had an intervening injury in 1996 with subsequent surgery in 1997 due to a motor vehicle accident. The examiner noted that the Veteran had a left knee x-ray in 1985 that was negative. The Board finds that a remand is required to obtain another VA examination and opinion. The July 1985 VA examiner noted 10 degrees of recurvatum of the right knee, as well as right knee pain. However, the examiner did not provide an opinion. The September 2011 VA examiner incorrectly noted that the Veteran underwent a left knee x-ray in 1985. A review of the record shows a right knee x-ray was completed as part of the July 1985 VA examination. However, there is no evidence of a 1985 left knee x-ray. Moreover, the examiner related the Veteran's left knee disorder to the post-service motor vehicle accident. The examiner did not sufficiently explain why the current left knee disorder was more likely related to the post-service accident, instead of the in-service left knee problems. Additionally, a January 2009 private treatment record indicated that the Veteran's weight aggravated his knee problems. The Veteran has stated that his service-connected anxiety disorder caused him to gain weight. The Board notes that obesity can be considered an "intermediate step" in determining whether secondary service connection is warranted. Accordingly, a remand is needed to obtain another VA medical opinion. 3. The claim of entitlement to service connection for sleep apnea is remanded. The Veteran asserts that his sleep apnea manifested during service. Alternatively, he asserts that his sleep apnea was caused by in-service asbestos exposure. Service treatment records noted that the Veteran was overweight and in August 1980 he requested a special diet to lose weight. August 1983 service treatment records showed that the Veteran presented with complaints of fatigue and a short temper. He stated that he worked long hours and was waking up all day and night. He was prescribed Elavil for sleep disturbance. In February 2013, the Veteran's ex-wife stated that the Veteran worked 80+ hours per week during active duty service, which resulted in stress and sleep problems. His ex-wife reported that the Veteran snored, jerked, and gasped for air in his sleep. In an October 2014 VA medical opinion, the reviewing examiner opined that the Veteran's sleep apnea was less likely than not related to the events witnessed and described by his ex-wife. The rationale was that the symptoms were not specific to sleep apnea and that there were no supporting complaints in the service treatment records. The examiner also opined that his sleep apnea was less likely than not caused or related to his service-connected anxiety disorder. The rationale was that obstructive sleep apnea is caused by a structural defect in the upper airway. A September 2018 VA medical opinion addressed whether the Veteran's sleep apnea was caused by his in-service exposure to asbestos or his in-service upper respiratory infections. The examiner provided negative opinions and explained that the medical literature did not support the given hypotheses. At the November Board 2020 hearing, the Veteran testified that his sleep quality was poor during service and that he felt like he was choking in his sleep. He explained that he worked long hours and did not get adequate sleep, which also caused him to eat and gain weight. The Veteran's son testified that during his childhood he noticed his father having sleep issues and gasping for air. The Board finds that a remand is required to obtain another VA medical opinion. Initially, the Board notes that the October 2014 VA examiner found that there were no supporting complaints in the service treatment records. However, August 1983 service treatment records documented the Veteran's complaints of fatigue and a short temper, as well as his report that he worked long hours and was waking up throughout the day and night, which caused him to gain weight. Therefore, a remand is required to address whether the Veteran's sleep apnea had its onset in service. With respect to whether the Veteran's sleep apnea is secondary to his anxiety, the examiner did not address whether his anxiety disorder aggravated his sleep apnea. Accordingly, a remand is required to obtain another VA medical opinion. 4. The claim of entitlement to a respiratory disorder, to include chronic obstructive pulmonary disease and asthma, is remanded. The Board finds a remand is required to obtain another VA medical opinion. The September 2018 and October 2018 VA medical opinions were that the Veteran's respiratory disorder was not related to service, to include his in-service asbestos exposure and his upper respiratory infections during service. The examiner acknowledged the Veteran's multiple upper respiratory infections during service and found that there was no documentation that they were anything more than acute and self-limiting occurrences. Also, medical literature did not support acute upper respiratory infections as being the etiology of asthma or COPD. The Board finds that an addendum opinion is needed to determine whether the in-service upper respiratory infections, bronchitis, and tonsillitis, were manifestations of the Veteran's current respiratory disorder. The matters are REMANDED for the following action: 1. The AOJ should undertake appropriate development to obtain any outstanding records pertinent to the Veteran's claims. If the AOJ deems the records do not exist or that any additional attempts to obtain these records would be futile, the record should be annotated to reflect such and the Veteran should be notified in accordance with 38 C.F.R. § § § 3.159 (e). 2. Thereafter, the AOJ should afford the Veteran a VA examination by an examiner with sufficient expertise, to determine the nature and etiology of the Veteran's bilateral knee disorder. All pertinent evidence of record must be made available to and reviewed by the examiner. Any indicated tests and studies should be accomplished. The examiner must identify all knee disorders present during the period of the claim. Following an examination of the Veteran, and a thorough review of the record, the appropriate examiner is requested to provide an opinion as to the following: (a) With respect to each knee disorder, the examiner should state an opinion as to whether it clearly and unmistakably (undebatable based upon evidence that cannot be misinterpreted and misunderstood) existed prior to the Veteran's entrance onto active duty in July 1980. (b) If the disorder is found to have clearly and unmistakably preexisted service, the examiner should state an opinion as to whether there is clear and unmistakable (undebatable based upon evidence that cannot be misinterpreted and misunderstood) evidence that the preexisting disorder did not permanently increase in severity as a result of the Veteran's active duty service. (c) If the disorder is found not to have clearly and unmistakably existed prior to the Veteran's entrance onto active duty, then the examiner should state an opinion as to whether it is at least as likely as not (50 percent probability or greater) that the disorder is etiologically related to the Veteran's active duty service. (d) The examiner should state an opinion as to whether it is at least as likely as not (50 percent probability or greater) that the disorder is due to a disease or injury incurred in or aggravated in the line of duty during a period of ACDUTRA, to include his period of ACDUTRA from December 1977 to July 1978. (e) The examiner should specifically discuss each of the following: (1) whether the Veteran's service-connected anxiety disorder caused or aggravated the Veteran's obesity or weight gain; (2) whether the obesity or weight gain as a result of the service-connected anxiety disorder, or, the aggravation of the obesity or the weight gain as a result of the service-connected anxiety disorder, was a substantial factor in causing the knee disorder; and (3) whether the knee disorder would not have occurred but for the obesity or weight gain caused or aggravated by the service-connected anxiety disorder. In providing the opinion, the examiner must consider and discuss the following: (1) the March 1978 service treatment records showing that the Veteran was unable to fully extend his left leg and was given crutches; (2) the September 1980 service treatment record that the Veteran had problems straightening the back of his right leg; (3) the December 1980 service treatment record showing that the Veteran fell and skinned his knee; (4) the July 1985 VA examination report noting the Veteran's report that his right knee problem began his first year of service; (5) the July 1985 VA examination showing 10 degrees of recurvatum of the right knee; (6) the April 2012 VA treatment record noting bilateral knee pain and an inability to fully extend the left knee; (7) the April 2015 statement that anxiety disorder is linked to weight gain; (8) the October 2016 private medical records noting the Veteran's long history of knee problems dating back to 1978 and his multiple recurrent knee injuries; (9) the March 2017 statement from Dr. B. that the Veteran's bilateral knee pain was certainly related to military service; and (10) the Veteran's November 2020 hearing testimony, including his statements that his left knee was manually straightened during service and that his knee problems caused him to fall. The examiner must provide a complete rationale for all proffered opinions. If the examiner is unable to provide any required opinion, he or she should explain why. If the examiner cannot provide an opinion without resorting to mere speculation, he or she shall provide a complete explanation as to why this is so. If the inability to provide a more definitive opinion is the result of a need for additional information, the examiner should identify the additional information that is needed. 3. Thereafter, the AOJ should afford the Veteran a VA examination by an examiner with sufficient expertise, to determine the nature and etiology of the Veteran's sleep apnea. All pertinent evidence of record must be made available to and reviewed by the examiner. Any indicated tests and studies should be accomplished. Following an examination of the Veteran, and a thorough review of the record, the appropriate examiner is requested to provide an opinion as to the following: (a) Whether it is at least as likely as not (50 percent probability or greater) that the disorder is etiologically related to the Veteran's active service, to include his in-service sleep problems, fatigue, and weight gain. (b) Whether it is at least as likely as not (50 percent probability or greater) that the Veteran's sleep apnea was caused or aggravated by his service-connected anxiety disorder. (c) The examiner should specifically discuss each of the following: (1) whether the Veteran's service-connected anxiety disorder caused or aggravated the Veteran's obesity or weight gain; (2) whether the obesity or weight gain as a result of the service-connected anxiety disorder, or, the aggravation of the obesity or the weight gain as a result of the service-connected anxiety disorder, was a substantial factor in causing sleep apnea; and (3) whether his sleep apnea would not have occurred but for the obesity or weight gain caused or aggravated by the service-connected anxiety disorder. The examiner must provide a complete rationale for all proffered opinions. If the examiner is unable to provide any required opinion, he or she should explain why. If the examiner cannot provide an opinion without resorting to mere speculation, he or she shall provide a complete explanation as to why this is so. If the inability to provide a more definitive opinion is the result of a need for additional information, the examiner should identify the additional information that is needed. 4. Thereafter, the AOJ should afford the Veteran a VA examination by an examiner with sufficient expertise, to determine the nature and etiology of the Veteran's respiratory disorder. All pertinent evidence of record must be made available to and reviewed by the examiner. Any indicated tests and studies should be accomplished. The examiner must identify all respiratory disorders present during the period of the claim. Following an examination of the Veteran, and a thorough review of the record, the appropriate examiner is requested to provide an opinion as to the following: (a) With respect to each respiratory disorder, the examiner should state an opinion as to whether it clearly and unmistakably (undebatable based upon evidence that cannot be misinterpreted and misunderstood) existed prior to the Veteran's entrance onto active duty in July 1980. (b) If the disorder is found to have clearly and unmistakably preexisted service, the examiner should state an opinion as to whether there is clear and unmistakable (undebatable based upon evidence that cannot be misinterpreted and misunderstood) evidence that the preexisting disorder did not permanently increase in severity as a result of the Veteran's active duty service. (c) If the disorder is found not to have clearly and unmistakably existed prior to the Veteran's entrance onto active duty, then the examiner should state an opinion as to whether it is at least as likely as not (50 percent probability or greater) that the disorder is etiologically related to the Veteran's active duty service. (d) The examiner should state an opinion as to whether it is at least as likely as not (50 percent probability or greater) that the disorder is due to a disease or injury incurred in or aggravated in the line of duty during a period of ACDUTRA, to include his period of ACDUTRA from December 1977 to July 1978. (e) The examiner must address whether the in in-service upper respiratory infections, bronchitis, and tonsillitis were manifestations of his current respiratory disorder. The examiner must provide a complete rationale for all proffered opinions. If the examiner is unable to provide any required opinion, he or she should explain why. If the examiner cannot provide an opinion without resorting to mere speculation, he or she shall provide a complete explanation as to why this is so. If the inability to provide a more definitive opinion is the result of a need for additional information, the examiner should identify the additional information that is needed. (Continued on the next page) 5. Then, the AOJ should readjudicate the issues on appeal. If the benefits sought on appeal are not granted to the Veteran's satisfaction, the Veteran and his representative should be furnished an appropriate supplemental statement of the case and be afforded the requisite opportunity to respond. Thereafter, the case should be returned to the Board for further appellate action. B. MULLINS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board A. McKinley, Counsel The Board's decision in this case is binding only with respect to the instant matter decided. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.