Citation Nr: 21013338 Decision Date: 03/09/21 Archive Date: 03/09/21 DOCKET NO. 20-19 976 DATE: March 9, 2021 ORDER Reopening of the claim for service connection for mixed hyperlipidemia is denied. Entitlement to service connection for a bilateral hearing loss disability is granted. Entitlement to service connection for tinnitus is denied. REMANDED Entitlement to service connection for anemia is remanded. Entitlement to service connection for chronic kidney disease is remanded. Entitlement to service connection for hepatitis C is remanded. Entitlement to service connection for a respiratory disability is remanded. Entitlement to service connection for rheumatoid arthritis is remanded. Entitlement to service connection for a psychiatric disability is remanded. FINDINGS OF FACT 1. A February 2014 rating decision denied reopening of the claim for service connection for hyperlipidemia. The Veteran was notified of his rights but did not appeal or submit new and material evidence during the applicable one-year appellate period. 2. The evidence associated with the claims file subsequent to the February 2014 rating decision does not relate to a previously unestablished fact necessary to substantiate the claim of service connection for hyperlipidemia. 3. A bilateral hearing loss disability is shown to be causally related to an in-service injury or disease. 4. Tinnitus manifested more than one year after separation and is not shown to be causally related to an in-service injury or disease. CONCLUSIONS OF LAW 1. The February 2014 rating decision is final. 38 U.S.C. §§ 7104, 7105; 38 C.F.R. §§ 3.104, 20.302, 20.1103. 2. New and material evidence sufficient to reopen the claim of service connection for hyperlipidemia has not been received. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. 3. The criteria for service connection for a bilateral hearing loss disability have been met. 38 U.S.C. §§ 1101, 1110, 1154(b), 5107; 38 C.F.R. §§ 3.102, 3.303. 4. The criteria for service connection for tinnitus have not been met. 38 U.S.C. §§ 1101, 1110, 1112, 1113, 1131, 1137, 1154(b), 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from January 1967 to January 1969. This matter is before the Board of Veterans’ Appeals (Board) on appeal from a rating decision issued in October 2017 by a Department of Veterans Affairs (VA) Regional Office (RO). The Board notes that the claims for service connection for a bilateral hearing loss disability, tinnitus, anemia, hepatitis C, chronic kidney disease, a respiratory disability, rheumatoid arthritis and a psychiatric disability have all been previously denied, most recently in February 2014. At the time of the February 2014 decision, the RO noted that the Veteran’s service treatment records were not available for review. Since that decision, additional service department records have been associated with the file. These records, specifically the Veteran’s personnel records, reflect that he was stationed in Vietnam during his period of service and therefore that he was presumptively exposed to herbicide agents, thus establishing an in-service injury. 38 C.F.R. § 3.307(a)(6)(iii). Further the records reflect that the Veteran was awarded the Purple Heart and Bronze Star. These awards establish combat service and thus make the Veteran’s lay statements, on their own, sufficient to establish the Veteran’s reported in-service injury of his jeep hitting a mine in Vietnam. 38 U.S.C. § 1154(b). As noted, these service department records were not previously of record and are relevant as they relate to the previously unestablished fact that the Veteran had an in-service injury or disease to which the hearing loss, tinnitus, anemia, hepatitis C, chronic kidney disease, a respiratory disability, rheumatoid arthritis and a psychiatric disability may be related. Kisor v. Wilkie, 969 F.3d 1333, 1341–43 (Fed. Cir. 2020). Further, there is no evidence that these records could not have been obtained at the time of the February 2014 denial. As new, relevant service department records have been associated with the file, new and material evidence is not required to reopen the claims of service connection for hearing loss, tinnitus, anemia, hepatitis C, chronic kidney disease, a respiratory disability, rheumatoid arthritis and a psychiatric disability. 38 C.F.R. § 3.156(c). The Veteran testified at a hearing before the undersigned Veterans Law Judge (VLJ) in November 2020. A transcript of the hearing is of record. New and Material Evidence Where a claim has been finally adjudicated, a claimant must present new and material evidence to reopen the previously denied claim. 38 U.S.C. § 5108; 38 C.F.R. § 3.156(a). New evidence is evidence not previously submitted to agency decision makers. 38 C.F.R. § 3.156(a). Material evidence is evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. Id. New and material evidence cannot be either cumulative or redundant of the evidence of record at the time of the last prior final denial and must raise a reasonable possibility of substantiating the claim. Id. New and material evidence received prior to the expiration of the appeal period following a decision, will be considered as having been filled in connection with the claim which was pending at the beginning of the appeal period. 38 C.F.R. § 3.156(b). The definitions of the terms “new” and “material” for the purposes of this provision are the same as those discussed above. Voracek v. Nicholson, 421 F.3d 1299, 1304 (Fed. Cir. 2005). If evidence received during the appellate period following a decision is new and material, the claim will remain pending until VA issues another decision re-adjudicating the claim and addressing the new and material evidence. Bond v. Shinseki, 659 F.3d 1362, 1367–68 (Fed. Cir. 2011). New and material evidence is not required to reopen a claim when, at any time after VA issues a decision on a claim, VA receives or associates with the claims file relevant official service department records that existed and had not been associated with the claims file when VA first decided the claim. 38 C.F.R. § 3.156(c). “Relevant” means service records that speak to a matter in issue or in dispute. Kisor, 969 F.3d at 1341–43. In other words, to be relevant the new service department records must pertain to the basis of the prior final denial. Id. For the purposes of reopening a claim, newly submitted evidence is generally presumed to be credible. Justus v. Principi, 3 Vet. App. 510, 513 (1992). New and material evidence is not required as to each previously unproven element of a claim in order to reopen. Shade v. Shinseki, 24 Vet. App. 110, 120 (2010). There is a low threshold for determining whether evidence raises a reasonable possibility of substantiating a claim. Id. at 117–18. 1. Reopening of the claim for service connection for mixed hyperlipidemia. The RO last denied reopening of a claim for service connection for hyperlipidemia in February 2014, stating that it was a laboratory finding and not a disability for which compensation may be granted. The Veteran was notified of the decision but did not file a notice of disagreement. 38 C.F.R. §§ 20.201, 20.302, 20.1103 (2014). The Board notes that since the February 2014 rating decision, additional service department records which existed but were not previously of record have been associated with the file. However, these records are not relevant to the issue of entitlement to service connection for hyperlipidemia. As noted above, the matter in dispute with respect to this specific claim is that hyperlipidemia is a laboratory finding and not a disability for which compensation may be paid. 61 Fed. Reg. 20,440, 20,445 (May 7, 1996) (stating that diagnoses of hyperlipidemia, elevated triglycerides, and elevated cholesterol are actually laboratory results and are not, in and of themselves, disabilities and are therefore not appropriate for the rating schedule). Thus, in order to be considered relevant the new service department records must reflect a diagnosis of a disability in conjunction with the noted hyperlipidemia or show that the hyperlipidemia results in functional impairment of earning capacity. Kisor, 969 F.3d at 1341–43; see Saunders v. Wilkie, 886 F.3d 1356, 1367–68 (Fed. Cir. 2018); Wait v. Wilkie, No. 18-4349, 2020 U.S. App. Vet. Claims LEXIS 1609, *16–*19 (Vet. App. Aug. 26, 2020). As the service department records do not show a diagnosed disability or impairment of earning capacity associated with the hyperlipidemia, they are not relevant and new and material evidence is still required to reopen the claim for service connection for hyperlipidemia. 38 C.F.R. § 3.156(c); see Kisor, 969 F.3d at 1341–43. The Board further notes that treatment records from the Veteran’s reserve service were associated with the file within the one year period following the February 2014 rating decision. However, as noted above these records do not relate to the previously unestablished fact that the Veteran has a formally diagnosed disability in conjunction with the noted hyperlipidemia. As such, the records are not material, and the February 2014 rating decision is final. 38 C.F.R. § 3.156(b). The evidence of record in February 2014 consisted of statements from the Veteran and private treatment records. The evidence of record did not establish that the Veteran had a disability for which disability compensation may be paid. Evidence received since the rating decision includes VA treatment records, VA examination reports and the Veteran’s November 2020 testimony. However, none of the evidence reflects that the Veteran is diagnosed with a disability in conjunction with his hyperlipidemia or that the hyperlipidemia results in impairment of earning capacity. Indeed, during the November 2020 hearing the Veteran and his representative elected to offer no testimony on the issue after noting that hyperlipidemia was not a disability for VA compensation purposes. While records reflect elevated cholesterol, this fact was previously established at the time of the February 2014 rating decision and further as noted is considered a laboratory finding and not a disability. In sum, the evidence associated with the file since the February 2014 record, while new, is not material as it does not relate to the previously unestablished fact of a current disability for which compensation may be paid. As new and material evidence has not been submitted, reopening of the claim of service connection for hyperlipidemia is denied. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. Service Connection Generally, to establish service connection a Veteran must show: “(1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service.” Davidson v. Shinseki, 581 F.3d 1313, 1315–16 (Fed. Cir. 2009); Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Service connection may also be granted for any injury or disease diagnosed after discharge, when all the evidence establishes that the disease or injury was incurred in service. 38 C.F.R. § 3.303(d). Service connection may also be established for a current disability on the basis of a presumption that certain chronic diseases manifesting themselves to a certain degree within a certain time after service must have had their onset in service. 38 U.S.C. §§ 1112, 1113, 1137; 38 C.F.R. §§ 3.303, 3.304, 3.307, 3.309(a). Generally, the disease must have manifested to a degree of 10 percent or more within one year of service. 38 C.F.R. § 3.307(a)(3). For the showing of chronic disease in service there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time, as distinguished from merely isolated findings or a diagnosis including the word “Chronic.” 38 C.F.R. § 3.303(b). When the disease identity is established, there is no requirement of evidentiary showing of continuity. Id. Continuity of symptomatology is required only where the condition noted during service (or in the presumptive period) is not, in fact, shown to be chronic or where the diagnosis of chronicity may be legitimately questioned. Id. When the fact of chronicity in service is not adequately supported, then a showing of continuity after discharge is required to support the claim. Id. Continuity of symptomatology is only applicable to those diseases recognized as chronic for VA purposes. Walker v. Shinseki, 708 F.3d 1331 (2013); 38 C.F.R. §§ 3.303(b), 3.309. VA is required to give due consideration to all pertinent medical and lay evidence in evaluating a claim for disability benefits. 38 U.S.C. § 1154(a). Lay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). Lay evidence cannot be determined to be not credible merely because it is unaccompanied by contemporaneous medical evidence. Buchanan v. Nicholson, 451 F.3d 1331, 1336–37 (Fed. Cir. 2006). If the evidence establishes that the Veteran engaged in combat with the enemy and the in-service injury is related to that combat, in the absence of clear and convincing evidence to the contrary, and provided that the claimed injury is consistent with the circumstances, conditions, or hardships of the Veteran’s service, the Veteran’s lay testimony alone may establish the occurrence of the claimed in-service injury. 38 U.S.C. § 1154(b). When records have been lost due to no fault of the Veteran, there is a heightened obligation to assist the Veteran in the development of the case, a heightened obligation to explain findings and conclusions, and a heightened duty to consider carefully the benefit of the doubt rule. See Washington v. Nicholson, 19 Vet. App. 362, 369–70 (2005); Cromer v. Nicholson, 19 Vet. App. 215, 217 (2005) (citing O’Hare v. Derwinski, 1 Vet. App. 365, 367 (1991)); Cuevas v. Principi, 3 Vet. App. 542, 548 (1992). 2. Entitlement to service connection for a bilateral hearing loss disability. A September 2018 VA examination reports shows that the Veteran has bilateral hearing loss considered to be disabling for VA purposes. 38 C.F.R. § 3.385. Concerning an in-service injury, the Board notes that the Veteran’s service treatment records corresponding with his service in Vietnam are unavailable. However, if the evidence establishes that the Veteran engaged in combat with the enemy and the claimed in-service injury is related to that combat, in the absence of clear and convincing evidence to the contrary, and provided that the claimed injury is consistent with the circumstances, conditions, or hardships of the Veteran’s service, the Veteran’s lay testimony alone may establish the occurrence of the claimed in-service injury. 38 U.S.C. § 1154(b). Here, the Veteran is in receipt of both the Purple Heart and the Bronze Star, and his personnel records show that he served in a combat zone in Vietnam. Therefore, the evidence of record establishes that the Veteran engaged in combat with the enemy. Id. Further, the Veteran’s reported in-service noise exposure, specifically exposure to gunfire and explosions, is consistent with the nature of his combat service. As there is no clear and convincing evidence to the contrary, the Veteran’s lay statements concerning noise exposure, specifically gunfire and explosions, are sufficient to establish such exposure. Id. In addition to the reports of exposure to gunfire and explosions, the Veteran has also reported that he was exposed to significant noise from heavy machinery while stationed in a quarry as an engineer. This account is also corroborated by the Veteran’s personnel records. As such, an in-service injury, specifically noise exposure, has been shown. During the course of the appeal, the Veteran has asserted that his hearing loss has been continuous since his separation from service. This assertion is competent as a lay person may testify to the onset and persistence of lay observable symptoms such as decreased hearing acuity, and there is no evidence that the statements are not credible. Jandreau, 492 F.3d 1372. As such, they are entitled to significant probative weight as to the continuity of hearing loss since service. VA attempted to obtain a medical opinion concerning the etiology of the Veteran’s hearing loss in October 2017. The examiner stated that the Veteran’s hearing loss was less likely than not related to service, as the Veteran’s hearing was within normal limits according to a 1972 audiogram. The examiner further stated that there was no evidence of a noise injury that permanently affected hearing sensitivity. However, the examiner did not address the Veteran’s reports of noise exposure in service, and further based the opinion entirely on the absence of evidence in the record. Dalton v. Peake, 21 Vet. App. 23 (2007). As such, the opinion is entitled to no probative weight. No other opinions concerning the etiology of the hearing loss are of record. Based on the foregoing, the only probative evidence of record is the Veteran’s statements that he has experienced continuous hearing loss since his combat service in Vietnam. The October 2017 opinion is entitled to no probative weight as it did not address the Veteran’s statements concerning noise exposure and relied on the absence of contemporaneous medical evidence. Id. Further, in cases where service records are unavailable there is a heightened duty to consider the benefit of the doubt rule. See Washington, 19 Vet. App. at 369–70. As such, in the interest of affording the Veteran the full benefit of the doubt, the Board finds that the evidence of record shows that the Veteran has continuously experienced hearing loss since his in-service noise exposure. Therefore, service connection for a bilateral hearing loss disability is granted. 38 C.F.R. §§ 3.102, 3.303(b). 3. Entitlement to service connection for tinnitus. The Veteran has stated that he currently has tinnitus, which he is competent to report. Jandreau, 492 F.3d at 1377; Charles v. Principi, 16 Vet. App. 370, 374 (2002). As with the claimed bilateral hearing loss above, the Veteran has reported that he was exposed to a large amount of machinery noise during service, which is corroborated by his personnel records. Further, the Veteran has reported that he was exposed to gunfire and explosions, which is consistent with his combat service. 38 U.S.C. § 1154(b). The Veteran is competent to report such noise exposure, and there is no evidence that his statements are not credible. Jandreau, 492 F.3d at 1377. As such, the Board finds that the Veteran was exposed to noise during service. With respect to a nexus, the Veteran has argued that his tinnitus is due to his noise exposure in service. However, the Veteran is not competent to opine as to the presence of a causal relationship between his service and tinnitus, as to do so requires medical expertise. Jandreau, 492 F.3d 1372. The Veteran has not indicated that his tinnitus has been persistent since service. Indeed, the Veteran stated during his hearing that his tinnitus did not start until well after his period of both active and reserve service. Walker, 708 F.3d 1331. A VA opinion was obtained in October 2017. The examiner stated that the Veteran’s tinnitus was less likely than not related to service. In support of that opinion, the examiner first noted that the Veteran reported an onset of tinnitus within the past ten years. The examiner then stated that there was otherwise no evidence of tinnitus in service and further that current medical research indicates that noise-induced tinnitus generally develops immediately after the exposure, and that the length of time between the Veteran’s service and the onset of tinnitus in this case made it more likely that tinnitus was due to other factors. There is no evidence that the examiner was not competent or credible, and as the opinion is based on a review of the Veteran’s medical records and current medical research, the Board finds the opinion to be of significant probative weight. Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). No other opinions are of record. Based on the foregoing, the preponderance of the evidence is against a finding that the Veteran’s tinnitus is causally related to his period of service. The only medical opinion of record is the October 2017 VA opinion, which stated that the Veteran’s tinnitus was less likely than not due to noise exposure in service. Further, the Veteran himself stated that his tinnitus had its onset within the past ten years, which is well after his active and reserve service. There are no post-service treatment records establishing continuous symptoms of tinnitus since service. Walker, 708 F.3d 1331. As the preponderance of the evidence is against the presence of a nexus, service connection for tinnitus is not warranted on a direct basis. 38 C.F.R. §§ 3.102, 3.303. The Board notes that tinnitus is considered an organic disease of the nervous system, which is a chronic disease for VA purposes. 38 C.F.R. § 3.309(a). However, there is no evidence of manifestation to a compensable degree within one year following separation. The Veteran’s separation records do not reflect a diagnosis of, or reports of symptoms associated with, tinnitus, and the Veteran informed the October 2017 examiner that his tinnitus did not have its onset until after his separation. As such, service connection based on the presumption in favor of chronic diseases is not warranted in this case. 38 C.F.R. §§ 3.307, 3.309(a). The preponderance of the evidence weighs against a finding that the Veteran’s tinnitus is causally related to his service. Since the preponderance of the evidence is against the claim, the benefit of the doubt rule is not applicable. 38 U.S.C. § 5107(b); Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001); Gilbert v. Derwinski, 1 Vet. App. 49, 55–57 (1990); 38 C.F.R. § 3.102. For these reasons, the claim is denied. REASONS FOR REMAND 1. Entitlement to service connection for anemia and chronic kidney disease. As discussed earlier, the Veteran’s complete service treatment records are not available for review in this case. Under such circumstances, there is a heightened obligation to assist the Veteran in the development of the case. See Washington v. Nicholson, 19 Vet. App. 362, 369–70 (2005); Cromer v. Nicholson, 19 Vet. App. 215, 217 (2005) (citing O’Hare v. Derwinski, 1 Vet. App. 365, 367 (1991)); Cuevas v. Principi, 3 Vet. App. 542, 548 (1992). In this case, the Veteran is currently diagnosed with anemia and chronic kidney disease. Further, personnel records establish that the Veteran served in Vietnam during his period of service and therefore is presumed to have been exposed to herbicide agents. 38 C.F.R. § 3.307(a)(6)(iii). Finally, during his hearing testimony the Veteran indicated that his doctors had told him that his anemia and chronic kidney disease may be related to his herbicide agent exposure in service. In light of the above, and in light of VA’s heightened duty to assist in cases where service treatment records are unavailable through no fault of the Veteran, the Board finds that a remand is warranted to obtain medical opinions concerning the nature and etiology of the claimed anemia and chronic kidney disease. McLendon v. Nicholson, 20 Vet. App. 79 (2006). 2. Entitlement to service connection for hepatitis C. With respect to hepatitis C, VA treatment records reflect that the Veteran has a current diagnosis. Further, the Veteran has reported that while in service he was riding in a jeep that hit a mine, resulting in him being thrown from the vehicle and sustaining shrapnel wounds. The Veteran further stated that he received blood transfusions while being treated for his injuries. As discussed earlier, the Veteran has been awarded both the Purple Heart and the Bronze Star, and therefore is considered to have engaged in combat with the enemy. 38 U.S.C. § 1154(b). Thus, his lay statements alone are sufficient to establish the reported in-service injuries. The Veteran has further asserted that he contracted hepatitis C as a result of the blood transfusions in service, and in support of this contention submitted a private hepatitis C examination which noted a risk factor of a pre-1992 blood transfusion. Based on the above, the Board finds that a remand is necessary to obtain an opinion concerning the etiology of the Veteran’s hepatitis C. McLendon, 20 Vet. App. 79. 3. Entitlement to service connection for a respiratory disability and rheumatoid arthritis. In January 2021 the Veteran submitted letters from his private physicians stating that he was currently being treated for rheumatoid arthritis and interstitial pneumonitis. Both letters then further stated that the disabilities may be related to the Veteran’s herbicide agent exposure while in Vietnam. See Bostain v. West, 11 Vet. App. 124, 127–28 (1998) (quoting Obert v. Brown, 5 Vet. App. 30, 33 (1993)). As noted, the Veteran is presumed to have been exposed to herbicide agents based on his qualifying service in Vietnam. 38 C.F.R. § 3.307(a)(6)(iii). As such, the Board finds that a remand is warranted to obtain opinions concerning the etiology of the Veteran’s rheumatoid arthritis and respiratory disability. McLendon, 20 Vet. App. 79. 4. Entitlement to service connection for a psychiatric disability. VA obtained a psychiatric examination in October 2017. In the examination report, the examiner stated that the Veteran had a diagnosis of PTSD that conformed to the DSM-5 criteria based on the examination conducted that day. However, the examiner then stated that the Veteran had no current diagnoses of a mental disorder, and further stated that the Veteran did not meet criteria B, D, E, and G for a diagnosis of PTSD. As such, the October 2017 examination is internally inconsistent, and therefore inadequate for adjudicatory purposes. Therefore, a remand is necessary so that a new examination and opinion may be obtained. The matters are REMANDED for the following action: 1. Contact the Veteran and request that he submit or authorize for release all private treatment records relevant to his claimed disabilities. For all records authorized for release, if the search for these records is negative, that should be documented in the claims file, and the Veteran must be informed of this in writing in accordance with 38 C.F.R. § 3.159(e). 2. Schedule the Veteran for a VA examination to determine the nature and etiology of the Veteran’s anemia. The examiner should answer the following: Is it at least as likely as not (a fifty percent probability or greater) that the anemia is causally related to the Veteran’s active service, to include exposure to herbicide agents? A detailed rationale for the opinion must be provided. The examiner is reminded that the term “as likely as not” does not mean “within the realm of medical possibility,” but rather that the evidence of record is so evenly divided that, in the examiner’s expert opinion, it is as medically sound to find in favor of the proposition as against it. 3. Schedule the Veteran for a VA examination to determine the nature and etiology of the Veteran’s chronic kidney disease. The examiner should answer the following: Is it at least as likely as not (a fifty percent probability or greater) that the chronic kidney disease is causally related to the Veteran’s active service, to include exposure to herbicide agents? A detailed rationale for the opinion must be provided. The examiner is reminded that the term “as likely as not” does not mean “within the realm of medical possibility,” but rather that the evidence of record is so evenly divided that, in the examiner’s expert opinion, it is as medically sound to find in favor of the proposition as against it. 4. Schedule the Veteran for a VA examination to determine the nature and etiology of the Veteran’s hepatitis C. The examiner should answer the following: Is it at least as likely as not (a fifty percent probability or greater) that the hepatitis C is causally related to the Veteran’s active service, to include exposure to herbicide agents or blood transfusions following an in-service injury? For the purposes of answering the above question, the examiner should accept as true the Veteran’s reports that he was injured in Vietnam when his jeep hit a mine and received blood transfusions due to his injuries (labelled “Hearing Transcript” – pgs. 16-18 – uploaded 11/24/20) ); and a private examination noting past risk factors of blood transfusions (labelled “VA Examination” – uploaded 5/31/19). A detailed rationale for the opinion must be provided. The examiner is reminded that the term “as likely as not” does not mean “within the realm of medical possibility,” but rather that the evidence of record is so evenly divided that, in the examiner’s expert opinion, it is as medically sound to find in favor of the proposition as against it. 5. Schedule the Veteran for a VA examination to determine the nature and etiology of the Veteran’s respiratory disability. The examiner should answer the following: a) Identify all current respiratory or lung disabilities. b) For each disability so identified, is it at least as likely as not (a fifty percent probability or greater) that the disability is causally related to the Veteran’s active service, to include exposure to herbicide agents? In answering question (b), attention is invited to a January 2021 private opinion stating that the diagnosed respiratory disability may be related to herbicide agent exposure (labelled “Medical Treatment Record - Non-Government Facility” – uploaded 1/15/21). A detailed rationale for the opinion must be provided. The examiner is reminded that the term “as likely as not” does not mean “within the realm of medical possibility,” but rather that the evidence of record is so evenly divided that, in the examiner’s expert opinion, it is as medically sound to find in favor of the proposition as against it. 6. Schedule the Veteran for a VA examination to determine the nature and etiology of the Veteran’s rheumatoid arthritis. The examiner should answer the following: a) Is it at least as likely as not (a fifty percent probability or greater) that the rheumatoid arthritis was caused by a respiratory disability? b) If not, is it at least as likely as not (a fifty percent probability or greater) that the rheumatoid arthritis was aggravated (worsened) by a respiratory disability? c) If not, is it at least as likely as not (a fifty percent probability or greater) that the rheumatoid arthritis is causally related to the Veteran’s active service, to include exposure to herbicide agents or an incident where the Veteran’s jeep hit a mine? For the purposes of answering the above, the examiner should accept as true the Veteran’s report that while stationed in Vietnam his jeep hit a mine, injuring him and killing his driver (labelled “Hearing Transcript” – pg. 22 – uploaded 11/24/20). Further, attention is invited to a January 2021 private opinion stating that the Veteran’s rheumatoid arthritis may be aggravated by his respiratory disability or directly related to herbicide agent exposure (labelled “Medical Treatment Record - Non-Government Facility” – uploaded 1/4/21). A detailed rationale for the opinion must be provided. The examiner is reminded that the term “as likely as not” does not mean “within the realm of medical possibility,” but rather that the evidence of record is so evenly divided that, in the examiner’s expert opinion, it is as medically sound to find in favor of the proposition as against it. 7. Schedule the Veteran for a VA examination to determine the nature and etiology of the Veteran’s psychiatric disability. The examiner should answer the following: a) Identify all current psychiatric disabilities. b) If a diagnosis of PTSD is warranted, is it at least as likely as not (a fifty percent probability or greater) that the PTSD is causally related to an in-service stressor, to include fear of hostile military activity? c) For all diagnoses other than PTSD, is it at least as likely as not (a fifty percent probability or greater) that the disability is causally related to the Veteran’s active service? For the purposes of answering questions (b) and (c) above, the examiner should accept as true the Veteran’s report that while stationed in Vietnam his jeep hit a mine, injuring him and killing his driver (labelled “Hearing Transcript” – pgs. 32–34 – uploaded 11/24/20). A detailed rationale for the opinion must be provided. The examiner is reminded that the term “as likely as not” does not mean “within the realm of medical possibility,” but rather that the evidence of record is so evenly divided that, in the examiner’s expert opinion, it is as medically sound to find in favor of the proposition as against it. LESLEY A. REIN Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board C. Wendell, 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.