Citation Nr: 21009368 Decision Date: 02/22/21 Archive Date: 02/22/21 DOCKET NO. 19-22 939 DATE: February 22, 2021 ORDER An effective date prior to July 28, 2016, for the grant of service connection for posttraumatic stress disorder (PTSD) is denied. An effective date prior to July 28, 2016, for the grant of service connection for diabetes mellitus, type II (DMII) is denied. An effective date prior to July 28, 2016, for the grant of service connection for peripheral neuropathy (PN) of the left upper extremity (LUE) is denied. An effective date prior to July 28, 2016, for the grant of service connection for peripheral neuropathy (PN) of the right upper extremity (RUE) is denied. An effective date prior to July 28, 2016, for the grant of service connection for peripheral neuropathy (PN) of the left lower extremity (LLE) is denied. An effective date prior to July 28, 2016, for the grant of service connection for peripheral neuropathy (PN) of the right lower extremity (RLE) is denied. An effective date prior to July 28, 2016, for the grant of service connection for hypertension is denied. The request to reopen the claim of service connection for a tinnitus is denied. A 100 percent rating as of December 18, 2020, but no earlier for PTSD is granted. A rating higher than 20 percent for DMII is denied. A rating higher than 10 percent for PN LUE is denied. A rating higher than 10 percent for PN RUE is denied. A rating higher than 10 percent for PN LLE is denied. A rating higher than 10 percent for PN RLE is denied. A rating higher than 60 percent prior to February 19, 2020, and higher than 80 percent thereafter for diabetic nephropathy with hypertension is denied. A total disability rating based on individual unemployability due to service-connected disabilities (TDIU) for the period prior to December 18, 2020, is granted. REMANDED Service connection for a heart condition is remanded. FINDINGS OF FACT 1. No communication was received between issuance of the final January 2014 rating decision and the July 28, 2016, petition to reopen the previously denied claims that may reasonably be construed as a claim for entitlement to service connection for PTSD, DMII, bilateral upper and lower extremity neuropathy, and hypertension. 2. Evidence received since a final January 2014 rating decision does not relate to the unestablished fact of tinnitus being related to the Veteran’s active duty service. 3. As of December 18, 2020, the Veteran’s PTSD caused total occupational and social impairment. 4. The Veteran’s DMII did not require regulation of activities. 5. Prior to February 19, 2020, the Veteran did not have persistent edema and albuminuria with BUN 40 to 80mg; or creatinine 4 to 8mg; or generalized poor health characterized by lethargy, weakness, anorexia, weight loss, or limitation of exertion; thereafter he did not have renal dysfunction requiring regular dialysis; or when anything more than sedentary activity is precluded persistent edema or albuminuria, BUN more than 80mg, or creatinine more than 8mg; or markedly decreased kidney or other organ function, especially cardiovascular. 6. The Veteran’s bilateral upper and lower extremity peripheral neuropathy caused no greater than mild incomplete paralysis. 7. Prior to December 18, 2020, the Veteran’s service connected disabilities precluded him from obtaining or maintaining substantially gainful employment. CONCLUSIONS OF LAW 1. The criteria for an effective date prior to July 28, 2016, for the grants of service connection for PTSD, DMII, bilateral upper and lower extremity neuropathy, and hypertension are not met. 38 U.S.C. § 5110; 38 C.F.R. §§ 3.151, 3.155, 3.400. 2. The criteria to reopen the claim for service connection for tinnitus are not met. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. 3. The criteria for a 100 percent rating as of December 18, 2020, but no earlier, for the Veteran’s PTSD are met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.321, 4.1, 4.2, 4.7, 4.130, DC 9411. 4. The criteria for an initial rating higher than 20 percent for DMII are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.321, 4.1, 4.2, 4.7, 4.120, DC 7913. 5. The criteria for a rating higher than 60 percent prior to February 19, 2020, and higher than 80 percent thereafter for diabetic nephropathy with hypertension are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.321, 4.1, 4.2, 4.7, 4.115, 4.115a, DC 7451. 6. The criteria for ratings higher than 10 percent for the Veteran’s bilateral upper and lower extremity peripheral neuropathy are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.321, 4.1, 4.2, 4.7, 4.120, 4.124a, DCs 8516, 8520. 7. Prior to December 18, 2020, the criteria for a TDIU are met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.321, 4.16. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from April 1967 to March 1972. The Board notes that though the Veteran filed his claim for a TDIU in December 2020, his other claims have been pending since July 28, 2016. The Board finds that entitlement to a TDIU has been raised by the record, pursuant to Rice v. Shinseki, 22 Vet. App. 447 (2009), since July 28, 2016. Effective Date Generally, except as otherwise provided, the effective date of an award of compensation based on an original claim will be the day following separation from active service or the date of entitlement arose, if the claim is received within one year after separation from service; otherwise, the effective date will be the date of receipt of the claim, or the date entitlement arose, if the claim is received within one year after separation from service; otherwise, the effective date will be the date of receipt of the claim, or the date entitlement arose, whichever is later. 38 U.S.C. § 5110(a); 38 C.F.R. § 3.400(b)(2)(i). The effective date of an award of disability compensation based on new and material evidence under 38 C.F.R. § 3.156 (other than service department records) received after a final disallowance shall be the date of receipt of the new claim or the date entitlement arose, whichever is later. 38 U.S.C. § 5110; 38 C.F.R. § 3.400(q)(2). Similarly, the effective date of an award of disability compensation based on a reopened claim under the provisions of 38 C.F.R. §§ 3.109, 3.156, 3.157, and 3.160(e) shall be the date of receipt of the claim or the date entitlement arose, whichever is later. 38 C.F.R. § 3.400(r). The statutory framework does not allow for the Board to reach back to the date of the original claim as a possible effective date for an award of service-connected benefits that is predicated upon a reopened claim. Sears v. Principi, 16 Vet. App. 244 (2002). In order for the Veteran to be awarded an effective date based on an earlier claim, the Veteran has to show clear unmistakable error (CUE) in the prior denial of the claim. Flash v. Brown, 8 Vet. App. 332 (1995). PTSD DMII Bilateral Upper Extremity Neuropathy Bilateral Lower Extremity Neuropathy Hypertension The Veteran has sought an earlier effective date for the grants of service connection for PTSD, DMII, bilateral upper and lower extremity neuropathy, and hypertension. The Veteran’s claims for bilateral upper and lower extremity neuropathy and hypertension stem from the Veteran’s DMII, and as such, cannot have service connection prior to the date upon which service connection for DMII was granted. Historically, the Veteran sought service connection for PTSD, DMII, and hypertension in April 2013 and was denied service connection for those conditions in January 2014. The Veteran did not appeal this decision and it became final. In July 2016, the Veteran sought to reopen his claims for service connection for PTSD, DMII, and hypertension. After review of the record, the Board does not find that any written communication by or on behalf of the Veteran in which service connection PTSD, DMII, bilateral upper and lower extremity neuropathy, and hypertension was received from the date of the January 2014 final denial until his request to reopen his claim in July 2016. The record does not show that the Veteran filed any evidence which could be construed as seeking entitlement to service connection for an such conditions between the final January 2014 rating decision and the July 2016 formal claim. The Board also notes that neither the Veteran nor his representative have identified any evidence which would provide the basis for an effective date for service connection for PTSD, DMII, bilateral upper and lower extremity neuropathy, and hypertension prior to July 2016. Thus, an effective date of July 28, 2016, is the appropriate effective date for the grant of service connection for the Veteran’s PTSD, DMII, bilateral upper and lower extremity neuropathy, and hypertension. 38 U.S.C. § 5110 (b); 38 C.F.R. § 3.400. While the Board is sympathetic to the Veteran’s claim regarding the effective date of his grant of service connection for PTSD, DMII, bilateral upper and lower extremity neuropathy, and hypertension, the law is well settled that the statutory framework does not allow for the Board to reach back to the date of an original claim as a possible effective date for an award of service-connected benefits that is predicated upon a reopened claim. Sears v. Principi, 16 Vet. App. 244 (2002). In order for the Veteran to have been awarded an effective date based on an earlier claim, the Veteran had to show clear unmistakable error (CUE) in the prior denial of the claims. Flash v. Brown, 8 Vet. App. 332 (1995). In this matter, neither the Veteran nor his representative have made such claims. As the preponderance of the evidence is against the claims, the benefit-of-the-doubt rule is not for application, and the claims must be denied. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). New and Material Evidence New evidence is defined as existing evidence not previously submitted to agency decision makers. Material evidence is defined as existing 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 of record at the time of the last prior final denial of the claim sought to be reopened and must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156 (a). In determining whether evidence is "new and material," the credibility of the new evidence must be presumed. Justus v. Principi, 3 Vet. App. 510, 513 (1992). The threshold for determining whether new and material evidence raises a reasonable possibility of substantiating a claim is "low." See Shade v. Shinseki, 24 Vet. App. 110, 117 (2010). Furthermore, in determining whether this low threshold is met, VA should not limit its consideration to whether the newly received evidence relates specifically to the reason why the claim was last denied, but instead should ask whether the evidence could reasonably substantiate the claim were the claim to be reopened, either by triggering the VA Secretary's duty to assist or through consideration of an alternative theory of entitlement. The Board must address the issue of the receipt of new and material evidence in the first instance because it determines the Board's jurisdiction to reach the underlying claims and to adjudicate the claims de novo. See Woehlaert v. Nicholson, 21 Vet. App. 456, 460-61 (2007). Tinnitus The Veteran was previously denied service connection for tinnitus in January 2014 as there was no evidence that the Veteran’s condition was linked to his active duty service. The Veteran did not appeal the January 2014 rating decision and it became final. In July 2016, the Veteran sought to reopen his claim for service connection for tinnitus. Pertinent evidence added to the record since the final January 2014 rating decision includes VA and private medical records, duplicate copies of the Veteran’s service treatment records, and statements. However, while there is a large amount of new evidence, none of it pertains to the Veteran’s tinnitus. There is no evidence which has been identified or introduced by the Veteran or his representative which addresses the etiology of his tinnitus or provides a link between his tinnitus and his active duty service. As such, there is no evidence upon which the Board could base a decision to reopen his claim for service connection for tinnitus. As the preponderance of the evidence is against the claim, the benefit-of-the-doubt rule is not for application, and the claim must be denied. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Increased Rating Disability evaluations are determined by the application of a schedule of ratings which is based on average impairment of earning capacity. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Separate diagnostic codes identify the various disabilities. Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. Any reasonable doubt regarding the degree of disability is resolved in favor of the Veteran. 38 C.F.R. § 4.3. PTSD The Veteran’s PTSD is rated pursuant to the General Rating Formula for Mental Disorders (General Rating Formula), Diagnostic Code 9411. His PTSD was assigned a 30 percent rating as of his July 2016 grant of service connection. Pursuant to DC 9411, a 50 percent rating is warranted for occupational and social impairment with reduced reliability and productivity due to such symptoms as: flattened affect; circumstantial, circumlocutory, or stereotyped speech; panic attacks more than once a week; difficulty in understanding complex commands; impairment of short- and long-term memory (e.g., retention of only highly learned material, forgetting to complete tasks); impaired judgment; impaired abstract thinking; disturbances of motivation and mood; difficulty in establishing and maintaining effective work and social relationships. A 70 percent disability rating is warranted for occupational and social impairment, with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood, due to such symptoms as: suicidal ideation; obsessional rituals which interfere with routine activities; speech intermittently illogical, obscure, or irrelevant; near-continuous panic or depression affecting the ability to function independently, appropriately and effectively; impaired impulse control (such as unprovoked irritability with periods of violence); spatial disorientation; neglect of personal appearance and hygiene; difficulty in adapting to stressful circumstances (including work or a work-like setting); inability to establish and maintain effective relationships. A 100 percent disability rating is warranted for total occupational and social impairment, due to such symptoms as: gross impairment in thought processes or communication; persistent delusions or hallucinations; grossly inappropriate behavior; persistent danger of hurting self or others; intermittent inability to perform activities of daily living (including maintenance of minimal personal hygiene); disorientation to time or place; memory loss for names of close relatives, own occupation, or own name. The symptoms listed in the General Rating Formula are not intended to constitute an exhaustive list, but rather serve as examples of the type and degree of symptoms, or their effects, that would justify a particular rating. Mauerhan v. Principi, 16 Vet. App. 436 (2002). If the evidence demonstrates that the claimant’s psychiatric disorder produces symptoms and resulting occupational and social impairment equivalent to that set forth in the criteria for a given rating, then that rating will be assigned. Mauerhan, 16 Vet. App. at 443. There is no evidence of record which indicates that the Veteran undergoes mental health care treatment. As such, an October 2016 VA examination and December 2019 private examination provide the basis for the Veteran’s PTSD rating. The October 2016 VA examination found that the Veteran’s PTSD symptoms were anxiety, suspiciousness, chronic sleep impairment, and mild memory loss. The examiner also noted the Veteran had marked diminished interest or participation in significant activities, feelings of detachment or estrangement from others, irritable behavior, reckless or self-destructive behavior, hypervigilance, exaggerated startle response, problems with concentration, and sleep disturbance. The examiner noted that the Veteran was alert and oriented, that his memory was good, but that his delayed recall was very poor. He had no signs of delusions or hallucinations and suicidal and homicidal ideation was denied. Based on the October 2016 examination, the Board does not find that the Veteran’s PTSD warrants a rating higher than 30 percent. Symptoms associated with a 50 percent rating, or higher, include flattened affect; circumstantial, circumlocutory, or stereotyped speech; panic attacks more than once a week; difficulty in understanding complex commands; impairment of short- and long-term memory; impaired judgment; impaired abstract thinking; disturbances of motivation and mood; difficulty in establishing and maintaining effective work and social relationships. These symptoms, or those associated with higher ratings, were not found, noted, or reported in the Veteran’s 2016 examination. There is no indication that his PTSD caused occupational and social impairment with reduced reliability and productivity or more. As such, a rating higher than 30 percent for PTSD prior to December 18, 2020, is denied. However, as stated above, VA received a private medical examination in December 2020 which noted the Veteran’s PTSD caused total occupational and social impairment. The examiner provided a detailed report and discussion of the impact of the Veteran’s PTSD. Based on that examination, the Board finds that the Veteran’s PTSD warrants a 100 percent rating as of December 18, 2020. DMII The Veteran is currently assigned a 20 percent rating for his diabetes mellitus under 38 C.F.R. § 4.120, DC 7913. This code provides a 20 percent rating when diabetes requires a restricted diet plus either insulin or an oral hypoglycemic agent. A higher 40 percent rating is assigned when diabetes also requires the regulation of activities. A 60 percent rating requires one or more daily injection of insulin, restricted diet, and regulation of activities with at least one hospitalization for ketoacidosis or hypoglycemia, or twice monthly visits for a diabetic care provider. A 100 percent rating requires more than one daily injection of insulin, restricted diet, and regulation of activities (avoidance of strenuous occupational and recreational activities) with episodes of ketoacidosis or hypoglycemic reactions requiring at least three hospitalizations per year or weekly visits to a diabetic care provider, plus either progressive loss of weight and strength or complications that would be compensable if separately evaluated "Regulation of activities" is defined in the code as "avoidance of strenuous occupational and recreational activities." The Veteran’s VA examinations in 2016 and 2019 both show that the Veteran’s DMII required prescribed oral hypoglycemic agents and a restricted diet. The Veteran, in his 2016 examinations, indicated that he had restricted activities due to his DMII. He noted that this was because he was prohibited from his work certification due to elevated sugar levels. The Board does not find that this description fits the statutory definition of “regulation of activities” as provided in DC 7913. The Veteran did not have to or was advised to avoid strenuous occupational and recreational activity – he was prohibited from work activity due to his failure to control his blood sugar. As such, the Board does not find that the Veteran had regulation of his activities sufficient to support a rating higher than 20 percent at any time during the period on appeal. As the preponderance of the evidence is against the claim, the benefit-of-the-doubt rule is not for application, and the claim must be denied. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). The Veteran’s DMII caused nephropathy with hypertension and peripheral neuropathy, conditions which have been rated separately and are discussed below. Diabetic Nephropathy with Hypertension The Veteran’s nephropathy with hypertension was assigned a 60 percent rating as of his July 2016 grant of service connection and an 80 percent rating as of a February 19, 2020, VA examination, under DC 7541, which states that any renal involvement associated with diabetes is to be rated as renal dysfunction under 38 C.F.R. § 4.115a. An 80 percent rating is warranted for persistent edema and albuminuria with BUN 40 to 80mg; or creatinine 4 to 8mg; or generalized poor health characterized by lethargy, weakness, anorexia, weight loss, or limitation of exertion. A 100 percent rating is assigned when renal dysfunction requires regular dialysis; or when anything more than sedentary activity is precluded persistent edema or albuminuria, BUN more than 80mg, or creatinine more than 8mg. A 100 percent can also be assigned when there is markedly decreased kidney or other organ function, especially cardiovascular. VA medical records show the Veteran’s BUN level was 17mg and his creatinine was 1.64 in May 2016. In August 2016, the Veteran’s DMII was found to have caused hypertension for which he took continuous medication. He did not have a history of a diastolic blood pressure elevation to predominately 100 or more. A June 2018 VA record showed the Veteran’s BUN to be 35mg and his creatinine to be 2.5mg. A March 2019 record showed the Veteran’s BUN to be 29mg and his creatinine was 2.2mg. In August 2019, the Veteran’s VA examination noted that the Veteran’s treatment consisted of monitoring and controlling his blood pressure. He did not take continuous medication. His BUN was noted to be 20mg and his creatinine was .7-1.3mg. He did not have notation of generalized poor health characterized by lethargy, weakness, anorexia, weight loss, or limitation of exertion. He did not have require regular dialysis. A February 19, 2020, VA medical record showed the Veteran’s BUN was 40mg and his creatinine was 3.0mg. Based on the foregoing, there is no evidence in the record which supports a rating higher than 60 percent for the Veteran’s nephropathy with hypertension prior to February 2020, and no evidence which supports a rating higher than 80 percent thereafter. The medical findings of the Veteran’s VA medical records and VA examinations are clear and show that the Veteran’s nephropathy with hypertension did not have clinical findings necessary to support ratings higher than those currently assigned. The Board notes that the Veteran and his representative have not identified or introduced any evidence which would support higher ratings. As the preponderance of the evidence is against the claim, the benefit-of-the-doubt rule is not for application, and the claim must be denied. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). PN of the Bilateral Upper Extremities The Veteran’s PN of the bilateral upper extremities was assigned a 10 percent rating as of his July 2016 service connection under DC 8516. Under DC 8516, complete paralysis of the ulnar nerve is characterized by griffin claw deformity due to flexor contraction of the ring and little fingers, by very marked atrophy in the dorsal interspace and thenar and hypothenar eminences, by loss of extension, spreading, or the reverse of spreading in the ring and little fingers, by loss of adduction of the thumb, and by weakening of flexion of the wrist. Complete paralysis of the minor ulnar nerve is rated at 50 percent. Incomplete paralysis of the minor ulnar nerve is rated at 30 percent if severe, 20 percent if moderate, and 10 percent if mild. 38 C.F.R. § 4.124. The Veteran’s 2016 and 2019 VA examinations found his DMII caused mild incomplete paralysis of his ulnar nerve. There is no other evidence of record which addressed the severity of the Veteran’s bilateral upper extremity neuropathy and the Veteran and his representative have not identified or introduced any such evidence. As such, there is no basis upon which to grant a rating higher than 10 percent for his bilateral upper extremity neuropathy. As the preponderance of the evidence is against the claim, the benefit-of-the-doubt rule is not for application, and the claim must be denied. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). PN of the Bilateral Lower Extremities The Veteran’s PN of the bilateral lower extremities was assigned a 10 percent rating as of his July 2016 service connection under DC 8520. Under DC 8520, complete paralysis, with the foot dangles and drops, no active movement possible of muscles below the knee, flexion of knee weakened or (very rarely) lost is assigned an 80 percent rating. Incomplete paralysis of the sciatic nerve is rated at 60 percent if severe, with marked muscular atrophy, 40 percent if moderately severe, 20 percent if moderate, and 10 percent if mild. 38 C.F.R. § 4.124a. The Veteran’s 2016 and 2019 VA examinations found his DMII caused mild incomplete paralysis of his sciatic nerve. There is no other evidence of record which addressed the severity of the Veteran’s bilateral lower extremity neuropathy and the Veteran and his representative have not identified or introduced any such evidence. As such, there is no basis upon which to grant a rating higher than 10 percent for his bilateral lower extremity neuropathy. As the preponderance of the evidence is against the claim, the benefit-of-the-doubt rule is not for application, and the claim must be denied. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). TDIU TDIU may be assigned where the schedular rating is less than total, when it is found that the disabled person is unable to secure or follow a substantially gainful occupation because of a single service-connected disability ratable at 60 percent or more, or because of two or more disabilities, provided at least one disability is ratable at 40 percent or more, and there is sufficient additional service-connected disability to bring the combined rating to 70 percent or more. 38 C.F.R. §§ 3.340, 3.341, 4.16(a). As of July 28, 2016, and prior to the December 18, 2020, grant of a 100 percent rating for the Veteran’s PTSD contained in the Decision above, the Veteran has a combined rating of 90 percent with his diabetic nephropathy with hypertension rated at 60 percent. Hence, the Veteran meets the criteria for a schedular TDIU rating per 38 C.F.R. § 4.16(a). In December 2020, the Veteran submitted two private reports from medical personnel that reviewed the evidence of record, conducted interviews with the Veteran and his wife, and provided opinions that the Veteran’s service connected disabilities rendered him unemployable as of the July 2016 date he instituted his service connection claims. Based on these reports, the Board finds that entitlement to a TDIU is warranted prior to the December 18, 2020, grant for a 100 percent rating for the Veteran’s PTSD. It is clear that prior to December 18, 2020, the Veteran’s PTSD and other service connected disabilities prohibited him from maintaining substantially gainful employment. However, A 100 percent rating under the Schedule for Rating Disabilities means that a Veteran is totally disabled. Holland v. Brown, 6 Vet. App. 443, 446 (1994). If VA has found a veteran to be totally disabled as a result of a particular service-connected disability or combination of disabilities pursuant to the rating schedule, there is no need, and no authority, to otherwise rate that veteran totally disabled on any other basis. Herlehy v. Principi, 15 Vet. App. 33, 35 (2001). Thus, the Veteran’s claim for a TDIU is moot as of the December 18, 2020, 100 percent rating for PTSD contained in the Decision above as he has been awarded a 100 percent schedular rating as of that date. REASONS FOR REMAND Heart Condition The Veteran was provided a VA examination regarding his heart condition in August 2016. The examiner, however, did not provide a nexus opinion on the etiology of the Veteran’s diagnosed heart condition and its possible relation to the Veteran’s active duty service, to include his exposure to herbicides while in-service. As such, a new examination is warranted. The matter is REMANDED for the following action: Schedule the Veteran for an examination by an appropriate clinician to determine the nature and etiology of any and all diagnosed heart conditions. The claims file should be made available to the examiner for review. The examiner must opine whether it is at least as likely as not (50 percent or greater probability) that any diagnosed heart condition was incurred in, or due to, the Veteran's service. The examiner is asked to note that the Veteran’s exposure to herbicides while in-service has been conceded. The Veteran’s lay statements regarding onset and continuity of symptomology should be recorded and considered. A rationale for all opinions must be provided. JOHN Z. JONES Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board A. Parrish, 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.