Citation Nr: 21025399 Decision Date: 04/28/21 Archive Date: 04/28/21 DOCKET NO. 09-44 899 DATE: April 28, 2021 ORDER The application to reopen the claim for service connection for erectile dysfunction is granted. Entitlement to service connection for temporomandibular joint (TMJ) disorder is denied. Entitlement to service connection for a respiratory disorder to include sleep apnea is denied. Entitlement to service connection for hypertension is denied. REMANDED Entitlement to service connection for erectile dysfunction to include as secondary to service-connected disease or injury is remanded. Entitlement to service connection for bilateral pes planus is remanded. Entitlement to a total rating based on individual unemployability due to service-connected disability (TDIU) is remanded. FINDINGS OF FACT 1. In an unappealed August 2005 rating decision, the RO denied the Veteran’s claim of entitlement to service connection for erectile dysfunction. 2. The evidence received since the August 2005 rating decision, by itself or in conjunction with previously considered evidence, relates to an unestablished fact necessary to substantiate the claim for service connection for erectile dysfunction. 3. A TMJ disorder is not currently manifest and did not manifest at any point during the appeal period. 4. Hypertension did not manifest in service and is not attributable to service; hypertension did not manifest within one year of separation from active service. 5. A respiratory disorder diagnosed as allergic rhinitis as well as sleep apnea did not manifest in service and is not attributable to service. CONCLUSIONS OF LAW 1. The August 2005 rating decision denying service connection for erectile dysfunction is final. 38 U.S.C. § 7105 (2012); 38 C.F.R. §§ 20.302, 20.1103 (2020). 2. Since the August 2005 rating decision, new and material evidence has been received with respect to the Veteran’s claim of entitlement to service connection for erectile dysfunction; therefore, the claim is reopened. 38 U.S.C. § 5108 (2012); 38 C.F.R. § 3.156 (2020). 3. TMJ disorder was not incurred or aggravated during service. 38 U.S.C. § 1131 (2012); 38 C.F.R. § 3.303 (2020). 4. Hypertension was not incurred or aggravated during service, nor may hypertension be presumed to have been incurred therein. 38 U.S.C. §§ 1101, 1112, 1113, 1131 (2012); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2020). 5. A respiratory disorder to include sleep apnea was not incurred or aggravated during service. 38 U.S.C. § 1131 (2012); 38 C.F.R. § 3.303 (2020). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had a period of active duty for training (ACDUTRA) from October 1974 to February 1975 as well as a period of active service from July 1978 to February 1980. These matters come to the Board of Veterans’ Appeals (Board) on appeal from rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO). In April 2018, the Veteran testified before the undersigned Veterans Law Judge (VLJ) at a Board hearing held via videoconference; a transcript of that hearing is of record. During the April 2018 Board hearing, the VLJ clarified the issues on appeal; clarified the concept of new and material evidence, service connection, and TDIU claims; identified potential evidentiary defects which included evidence of a nexus between the Veteran’s current disabilities on appeal and his service as well as the effect of the Veteran’s service-connected disabilities on his employment; clarified the type of evidence that would support the Veteran’s claim; enquired as to the existence of potential outstanding records; and held the record open for 60 days to allow for the submission of additional evidence. Thus, the actions of the VLJ supplement the VCAA and comply with any related duties owed during a hearing set forth in 38 C.F.R. § 3.103. The Veteran was also afforded hearings before RO personnel in December 2008 and June 2015; transcripts of those hearings are of record. In October 2018, the Board remanded the Veteran’s claims. The Veteran’s claims folder has returned to the Board for further appellate consideration. In October 2018, the Board also remanded a claim of service connection for an acquired psychiatric disorder. In a subsequent rating decision dated October 2020, the acquired psychiatric disorder claim was granted. In view of the foregoing, this issue has been resolved and is no longer before the Board. See generally Grantham v. Brown, 114 F.3d 116 (Fed. Cir. 1997). New and Material Evidence Pertinent legal criteria In general, rating decisions that are not timely appealed are final. See 38 U.S.C. §§ 7104, 7105 (2012); 38 C.F.R. §§ 20.1100, 20.1103 (2019). Pursuant to 38 U.S.C. § 5108, a finally disallowed claim may be reopened when new and material evidence is presented or secured to that claim. “New” evidence means evidence not previously submitted to the agency decision-maker. “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 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. See 38 C.F.R. § 3.156(a) (2020). The threshold for determining if there is new and material evidence is low. See Shade v. Shinseki, 24 Vet. App. 110 (2010). In the determination of whether new and material evidence has been received, the credibility of the evidence is to be presumed. See Justus v. Principi, 3 Vet. App. 510, 513 (1992). The VA is not, however, bound to consider credible that which is the patently incredible. See Duran v. Brown, 7 Vet. App. 216 (1994). Application to reopen erectile dysfunction The RO denied service connection for erectile dysfunction in an unappealed August 2005 rating decision. In essence, there was no evidence of a relationship between the Veteran’s erectile dysfunction and his service. As the Veteran did not file a timely notice of disagreement to the August 2005 rating decision, that rating decision is final. At the time of the prior final rating decision in August 2005, the record in pertinent part included the Veteran’s service treatment records as well as postservice medical records. The Veteran’s service treatment records were absent complaints of or treatment for erectile dysfunction. Postservice medical records documented treatment for erectile dysfunction. As the August 2005 rating decision is final, new and material evidence is therefore required to reopen the claim. In reviewing the evidence added to the claims folder since the August 2005 denial, the Board finds that additional evidence has been submitted which is sufficient to reopen the Veteran’s claim. Specifically, the Veteran now contends that his erectile dysfunction is secondary to his adjustment disorder with depression. See, e.g., the April 2018 Board hearing transcript, page 15. Pertinently, the Veteran is service connected for adjustment disorder with depression and the Veteran contends that the erectile dysfunction has continued since service. As indicated above, the Veteran’s previous claim was denied because there was no evidence of erectile dysfunction that was related to service. As the new evidence potentially indicates such relationship, the Board finds that the new evidence relates to an unestablished fact necessary to substantiate the claim. As new and material evidence has been received, the claim for service connection for erectile dysfunction is reopened. Service Connection Pertinent legal criteria Veterans are entitled to compensation from VA if they develop a disability “resulting from personal injury suffered or disease contracted in line of duty, or for aggravation of a preexisting injury suffered or disease contracted in line of duty.” 38 U.S.C. § 1110 (wartime service), 1131 (peacetime service). To establish a right to compensation for a present disability, 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”-the so-called “nexus” requirement. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed.Cir. 2004). For certain chronic disorders, including hypertension, service connection may be granted if the disease becomes manifest to a compensable degree within one year following separation from service. 38 U.S.C. §§ 1101, 1112, 1113, 1137 (2012); 38 C.F.R. §§ 3.307, 3.309 (2020). With chronic disease shown as such in service (or within the presumptive period under § 3.307) so as to permit a finding of service connection, subsequent manifestations of the same chronic disease at any later date, however remote, are service connected unless clearly attributable to intercurrent causes. This rule does not mean that any manifestation of joint pain, any abnormality of heart action or heart sounds, any urinary findings of casts, or any cough, in service will permit service connection of arthritis, disease of the heart, nephritis, or pulmonary disease, first shown as a clearcut clinical entity, at some later date. 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.” When the disease identity is established (leprosy, tuberculosis, multiple sclerosis, etc.), there is no requirement of evidentiary showing of continuity. 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. When the fact of chronicity in service is not adequately supported, then a showing of continuity after discharge is required to support the claim. 38 C.F.R. § 3.303(b). Service connection is warranted for an injury incurred or aggravated during a period of inactive duty for training (INACDUTRA). 38 U.S.C. § 101(24)(C) (2012); 38 C.F.R. § 3.6(a) (2020). In contrast, service connection may be granted for an injury or disease incurred or aggravated during a period of ACDUTRA. 38 U.S.C. § 101(24)(B) (2012); 38 C.F.R. § 3.6(a) (2020). The Board notes that the Veteran has not claimed that his disabilities on appeal are the result of combat with the enemy. Therefore, the combat provisions of 38 U.S.C. § 1154 (2012) are not for consideration. After the evidence is assembled, it is the Board’s responsibility to evaluate the entire record. See 38 U.S.C. § 7104(a) (2012). When there is an approximate balance of evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each issue shall be given to the claimant. See 38 U.S.C. § 5107 (2012); 38 C.F.R. §§ 3.102, 4.3 (2020). TMJ disorder The Veteran contends that he has TMJ disorder that is related to service. The Board acknowledges the Veteran’s report of pain in his jaw. However, the evidence of record establishes that the Veteran does not have current TMJ disorder due to disease or injury. In this regard, the Veteran was provided a VA examination in January 2017 for his claimed TMJ disorder. After examination of the Veteran and consideration of the Veteran’s medical history, the VA examiner declined to find that the Veteran had a current TMJ disorder. Pertinently, the VA examiner reported no finding of functional impairment and while pain was noted, it did not result in or cause functional loss. In this case, the Board finds that the most probative evidence weighs against finding that the criteria have been met for a current TMJ disorder. In this regard, the Board finds it highly probative that the January 2017 VA examination report does not document any objective evidence of such and that such findings were based on thorough examination. Also, there are no medical findings contrary to the January 2017 VA examination as to whether the Veteran has a current TMJ disorder. The Board has considered the Veteran’s statements that he has TMJ disorder. The Veteran is competent to provide evidence of that which he experiences, including his symptomatology and medical history. Layno v. Brown, 6 Vet. App. 465, 469 (1994). In addition, 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)); Kahana v. Shinseki, 24 Vet. App. 428, 433, n.4 (2011). However, competence must be distinguished from probative weight. Although the Veteran is competent to relate what he experiences through the senses, the lay evidence is lacking in detail to support the conclusion that there is a current TMJ disorder. More importantly, even if a report of pain is accepted as disability, there remains no competent evidence of disease or residual of injury. The law is clear under sections 1110 and 1131, there must be disability and there must be disease or injury to account for the disability. The Veteran’s lay assertions are therefore afforded less probative weight, and less credibility than the VA examination findings. In this instance, the Board concludes that the most probative evidence establishes that the Veteran does not have a TMJ disorder due to disease or injury. The existence of a current disability is the cornerstone of a claim for VA disability benefits. See Degmetich v. Brown, 104 F.3d 1328 (Fed. Cir. 1997). Therefore, in the absence of current disability, there can be no valid claim. See Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). In this case, there is no disability that resulted from a disease or injury. Under the circumstances, the Veteran has not met the regulatory requirements to establish service connection for TMJ disorder under any theory of entitlement and service connection must be denied. In reaching this conclusion, the Board has considered the applicability of the benefit-of-the-doubt doctrine. Here, however, as the preponderance of the evidence is against the claim, that doctrine is not applicable. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). Hypertension and respiratory disorder With regard to the Veteran’s claim of service connection for hypertension, the Veteran claims that he has hypertension that is related to his service, to include from being in gas chambers. The Board notes that the Veteran’s service treatment records are absent complaints of or treatment for hypertension or symptoms related to such. However, the Veteran is competent to report back pain after running during service and from motor vehicle accidents. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007) (laypersons are competent to report observable symptomatology such as pain and limitation). The Veteran has indicated that he has had high blood pressure since service and following separation from active service, he has taken blood pressure medication. Moreover, the medical evidence of record documents a finding of hypertension. See, e.g., a December 2019 VA examination report. With respect to the Veteran’s claim of service connection for a respiratory disorder, the Veteran contends that he has a respiratory disorder to include sleep apnea that is related to his service. The Board notes that the Veteran’s service treatment records document treatment for chest pain in August 1978 and he reported sinus congestion in February 1979. On his January 1980 report of medical history, the Veteran reported shortness of breath and chest pain or pressure. Further, the Veteran and his wife testified that the Veteran had daytime fatigue during service and thereafter which he attributed to his sleep apnea. The Veteran also reported during a December 2019 VA examination that he has been bothered by nasal congestion, rhinorrhea, eye irritation and watering for many years. Indeed, the current medical evidence documents treatment for sleep apnea as well as allergic rhinitis for many years. The Board has carefully evaluated the evidence and finds that a preponderance of the evidence of record is against a finding that the Veteran’s current hypertension is related to his service on a direct or presumptive basis and that finds that a preponderance of the evidence of record is against a finding that the Veteran’s current allergic rhinitis and sleep apnea are related to his service. Specifically, the Veteran was afforded VA examinations in December 2019 for his hypertension, allergic rhinitis, and sleep apnea. The VA examiner documented the Veteran’s aforementioned report of exposure to gas chambers during service as well as in-service respiratory treatment and the Veteran’s report that he has had high blood pressure and respiratory symptoms since service. After examination of the Veteran and consideration of his medical history, the VA examiner concluded that the Veteran has hypertension, allergic rhinitis, and sleep apnea that are less likely than not incurred in or caused by service. With regard to the VA examiner’s opinion that the Veteran’s hypertension is not related to service, the examiner’s rationale for her conclusion was based on her finding that the Veteran’s January 1980 separation examination revealed normal blood pressure findings and the Veteran denied high or low blood pressure. There was also no initial treatment for hypertension for many years following separation from service. The examiner further noted that the gas used in gas chambers is chlorobenzylidene malonitrile, or CS gas, a non-lethal substance that is used in all branches of the military and police departments as a riot control agent. Further, each recruit spends approximately 3-5 minutes in the chamber, depending on how well they cooperate. The examiner noted that it is an irritant and will not stay in a person’s system. She reported that there are no studies to indicate that short term exposure to CS gas will cause hypertension many years after exposure. The examiner finally noted that hypertension has many risk factors including age, being overweight, male gender, and African American race and that the Veteran has all of these factors. With respect to the VA examiner’s opinion that the Veteran’s current allergic rhinitis and sleep apnea are not related to service, the examiner’s rationale for her conclusion was based on her finding that the Veteran was not treated for sleep apnea or a respiratory disorder while on active duty. Further, the January 1980 separation examination was negative for any problems sleeping and there was a negative response to hay fever. She also identified no problems associated with allergic rhinitis or sleep apnea for many years following the Veteran’s separation from service. She further noted risk factors for sleep apnea are male gender, increasing age, and obesity. Although the Veteran complained of chest pain and shortness of breath during service, the examiner noted a September 1978 chest X-ray was normal and at separation, the Veteran had no problems in the past 7-8 months. The examiner also acknowledged the Veteran’s treatment for allergic rhinitis for many years, but such condition was not related to or aggravated by service. The December 2019 VA medical opinions were based on upon thorough review of the record and analysis of the Veteran’s entire history. See Bloom v. West, 12 Vet. App. 185, 187 (1999) [the probative value of a physician’s statement is dependent, in part, upon the extent to which it reflects “clinical data or other rationale to support his opinion”]. Additionally, the VA examiner’s opinions are consistent with the Veteran’s documented medical history, which is absent any report of symptomatology consistent with hypertension, allergic rhinitis, or sleep apnea for many years after active service. The examiners also noted the Veteran’s in-service report of exposure to gas chambers, sleep problems, and treatment for chest pain and shortness of breath which they determined to be less likely as not related to the Veteran’s current hypertension, allergic rhinitis, and sleep apnea. The Veteran has not submitted a medical opinion to contradict the VA examiner’s opinions that his current hypertension, allergic rhinitis, and sleep apnea are not related to service. The Veteran has been accorded ample opportunity to present competent medical evidence in support of his claims. He has not done so. See 38 U.S.C. § 5107(a) (2012) [it is the claimant’s responsibility to support a claim for VA benefits]. In relevant part, 38 U.S.C. § 1154(a) (2012) requires that VA give “due consideration” to “all pertinent medical and lay evidence” in evaluating a claim for disability or death benefits. Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). “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); see also Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006) (“[T]he Board cannot determine that lay evidence lacks credibility merely because it is unaccompanied by contemporaneous medical evidence”). To the extent the Veteran himself asserts his current hypertension, allergic rhinitis, and sleep apnea are related to his service, the Veteran is competent to report that he has a current diagnosis (as that is documented in the record). He is also competent to report that he has had symptoms since service. However, hypertension, allergic rhinitis, and sleep apnea were not noted during service. In as much as the January 1980 separation examination reveals normal blood pressure, he did not have characteristic manifestations sufficient to identify the chronic disease entity, hypertension, during service or within one year of separation. 38 C.F.R. § 3.303(b). The Board observes that the Veteran has reported longstanding high blood pressure and respiratory problems as well as difficulty sleeping upon separation from service. The Board also notes that the Veteran is competent to report his symptoms both current and past. However, this lay evidence is inconsistent with the normal blood pressure findings and respiratory examination upon separation from service in January 1980 as well as the Veteran’s denial of frequent trouble sleeping on his report of medical history. Further, the in-service examination is more credible and more probative than his lay assertions. We conclude that the objective evidence is more probative and credible than the lay evidence submitted in support of a claim for benefits. The Board must find that the Veteran’s statements with regard to a nexus between his hypertension, allergic rhinitis, and sleep apnea and service to be of minimal probative value and outweighed by the VA opinions, prepared by a skilled neutral professional. We again note that the Veteran reports that he was exposed to gas chambers during service that caused his current hypertension. However, chronic pathology was not noted during service and his blood pressure was normal upon separation from service in June 1980. In addition, chronic pathology was not identified within one year of separation and has been attributed to events unrelated to service. In short, the credible and probative evidence establishes that hypertension was not manifest during service or within one year of separation. Under the circumstances, the Veteran has not met the regulatory requirements to establish service connection for hypertension and a respiratory disorder to include sleep apnea under any theory of entitlement and service connection must be denied. In reaching this conclusion, the Board has considered the applicability of the benefit-of-the-doubt doctrine. Here, however, as the preponderance of the evidence is against the claims, that doctrine is not applicable. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). REASONS FOR REMAND Service connection for erectile dysfunction and pes planus and TDIU With regard to the Veteran’s claim of service connection for erectile dysfunction, the Veteran contends that he has erectile dysfunction that is related to service or is alternatively secondary to his service-connected adjustment disorder with depression. See, e.g., the April 2018 Board hearing transcript, page 15. The Veteran was provided a VA examination for his erectile dysfunction in September 2020. After examination of the Veteran and consideration of his medical history, the VA examiner concluded that it is less likely than not that the Veteran’s erectile dysfunction is proximately due to or the result of the Veteran’s service-connected adjustment disorder with depression. However, no opinion was rendered as to whether the Veteran’s erectile dysfunction was aggravated by the adjustment disorder with depression. There is no medical opinion of record which addresses such. In light of the foregoing, the Board finds that a medical opinion for such should be obtained on remand. With regard to the Veteran’s claim of service connection for pes planus, the Veteran contends that his pes planus preexisted service and was aggravated therein. Then Examination for service in June 1974 disclosed pes planus. The Board notes that the Veteran’s enlistment examination prior to his period of active service beginning in July 1978 is not associated with the claims folder and that the Veteran is therefore presumed sound upon entrance. However, pes planus was noted on a June 1974 enlistment examination prior to the Veteran’s period of ACDUTRA. Moreover, medical professionals have indicated that the Veteran’s pes planus preexisted his active service. See, e.g., a private treatment record dated November 2020 from S.R., DPM. A February 1979 service examination noted normal feet as did the January 1980 separation examination. A clinical note dated in February 1979 contained a notation “has pes planus.” As to whether there is clear and unmistakable evidence that the pes planus was not aggravated during service, the Board acknowledges that the Veteran submitted a private medical opinion dated November 2020 from S.R., DPM who opined after review of the Veteran’s postservice treatment records that the Veteran’s preexisting pes planus was aggravated during service. However, other than noting a review of postservice treatment records, S.R., DPM did not provide any rationale for the opinion. Also, although a VA examiner similarly opined in a February 2005 report after examination of the Veteran that it is more likely than not that the Veteran’s pes planus was worsened during service, no rationale was provided for this opinion. Finally, the Board notes that a VA examiner opined in a September 2012 opinion report that it is less likely than not that the Veteran’s pes planus was caused by or a result of service. However, as indicated above, the evidence indicates that the Veteran’s pes planus preexisted active service and the examiner indicated that the pes planus did not preexist service. Moreover, the examiner noted that the Veteran did not have pes planus of the right foot which is contrary to the finding of S.R., DPM who found such in the November 2020 opinion report. In light of these ambiguities, the Board finds that on remand, a medical opinion should be obtained as to the etiology of the Veteran’s pes planus. The Board finally notes that the claim of entitlement to TDIU is inextricably intertwined with the claims remanded herein. In other words, development of these claims may impact his TDIU claim. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991) [two or more issues are inextricably intertwined if one claim could have significant impact on the other]. The matters are REMANDED for the following action: 1. Forward the Veteran’s claims folder to the VA examiner who provided the VA examination for the Veteran’s erectile dysfunction in September 2020. If that VA examiner is not available forward the Veteran’s claims folder to another appropriate medical professional. If the examiner determines that an opinion cannot be rendered without examination of the Veteran, then the Veteran should be scheduled for an examination. The examiner must provide an opinion as to whether it is at least as likely as not (50 percent or greater probability) that the Veteran’s erectile dysfunction is caused or aggravated by the Veteran’s service-connected adjustment disorder with depression. If the examiner finds that the erectile dysfunction is aggravated by the service-connected adjustment disorder with depression, then he/she should quantify the degree of aggravation, if possible. A rationale for all opinions expressed should be provided. 2. Schedule the Veteran for a VA examination to determine the nature and etiology of his pes planus. The claims folder must be made available to the examiner. All tests and studies deemed necessary by the examiner should be performed. Based on a review of the claims folder and the clinical findings of the examination, the examiner must provide an opinion as to the following: a. Confirm the presence or absence of pes planus. b. Whether there is clear and unmistakable evidence that the Veteran had pes planus prior to his period of active service from July 1978 to February 1980. In this regard, the examiner should note the finding of pes planus on the Veteran’s June 1974 service examination prior to his period of ACDUTRA. c. If it is determined that the Veteran’s pes planus pre-existed his period of active service, provide an opinion as to whether there is clear and unmistakable evidence that it was NOT aggravated during service. The examiner should consider the entire record, to include service examiantions in February 1979 and January 1980, and the clinical record noting he has pes planus. d. If it is determined that the Veteran’s pes planus did not pre-exist his period of active service, provide an opinion as to whether it is at least as likely as not (i.e. 50 percent or greater probability) that the Veteran’s current pes planus is related to his period of active service. The examiner must provide a rationale for his or her opinion. 3. Review the claims file to ensure that all the foregoing requested development is completed, and arrange for any additional needed development. Then readjudicate the claims on appeal. If the benefits sought remain denied, issue an appropriate supplemental statement of the case and provide the Veteran and his representative with the requisite period of time to respond. H. N. SCHWARTZ Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Arif Syed, 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.