Citation Nr: 22005232 Decision Date: 02/01/22 Archive Date: 02/01/22 DOCKET NO. 20-14 118 DATE: February 1, 2022 ORDER Entitlement to an effective date earlier than June 28, 2018 for the grant of service connection for diabetes mellitus type 2 is denied. Entitlement to an effective date earlier than June 28, 2018 for the grant of service connection for diabetic peripheral neuropathy of the left upper extremity is denied. Entitlement to an effective date earlier than June 28, 2018 for the grant of service connection for diabetic peripheral neuropathy of the right upper extremity is denied. Entitlement to an effective date earlier than June 28, 2018 for the grant of service connection for diabetic peripheral neuropathy of the left lower extremity is denied. Entitlement to an effective date earlier than June 28, 2018 for the grant of service connection for diabetic peripheral neuropathy of the right lower extremity is denied. REMANDED The issue of whether new and material evidence has been received to reopen a claim of entitlement to service connection for skin cancer is remanded. The issue of whether new and material evidence has been received to reopen a claim of entitlement to service connection for residuals of right leg fracture, to include arthritis, is remanded. Entitlement to service connection for hypertension is remanded. Entitlement to service connection for a heart disorder is remanded. Entitlement to service connection for a disorder of the left leg, to include arthritis, is remanded. Entitlement to service connection for arthritis, feet and left leg, is remanded. Entitlement to service connection for PTSD is remanded. Entitlement to a rating in excess of 20 percent for diabetes mellitus type 2 is remanded. Entitlement to a rating in excess of 20 percent for diabetic peripheral neuropathy, left upper extremity, is remanded. Entitlement to a rating in excess of rating in excess of 20 percent for diabetic peripheral neuropathy, right upper extremity, is remanded. Entitlement to a rating in excess of rating in excess of 10 percent for diabetic peripheral neuropathy, left lower extremity, is remanded. Entitlement to a rating in excess of rating in excess of 10 percent for diabetic peripheral neuropathy, right lower extremity, is remanded. Entitlement to a total disability rating based upon individual unemployability due to service-connected disabilities (TDIU) is remanded. FINDINGS OF FACT 1. Diabetes was listed on the VA claim form received on June 28, 2018, and no communication received by VA prior to March 24, 2015 may be construed as an informal claim of entitlement to service connection for diabetes mellitus type 2. 2. Upper peripheral neuropathy was listed on the VA claim form received on June 28, 2018, and no communication received by VA prior to March 24, 2015 may be construed as an informal claim of entitlement to service connection for diabetic peripheral neuropathy of the left upper extremity. 3. Upper peripheral neuropathy was listed on the VA claim form received on June 28, 2018, and no communication received by VA prior to March 24, 2015 may be construed as an informal claim of entitlement to service connection for diabetic peripheral neuropathy of the right upper extremity. 4. Lower peripheral neuropathy was listed on the VA claim form received on June 28, 2018, and no communication received by VA prior to March 24, 2015 may be construed as an informal claim of entitlement to service connection for diabetic peripheral neuropathy of the left lower extremity. 5. Lower peripheral neuropathy was listed on the VA claim form received on June 28, 2018, and no communication received by VA prior to March 24, 2015 may be construed as an informal claim of entitlement to service connection for diabetic peripheral neuropathy of the right lower extremity. CONCLUSIONS OF LAW 1. The criteria for an effective date prior to June 28, 2018 for the grant of service connection for diabetes mellitus type 2 are not met. 38 U.S.C. § 5110; 38 C.F.R. §§ 3.155, 3.400. 2. The criteria for an effective date prior to June 28, 2018 for the grant of service connection for diabetic peripheral neuropathy of the left upper extremity are not met. 38 U.S.C. § 5110; 38 C.F.R. §§ 3.155, 3.400. 3. The criteria for an effective date prior to June 28, 2018 for the grant of service connection for diabetic peripheral neuropathy of the right upper extremity are not met. 38 U.S.C. § 5110; 38 C.F.R. §§ 3.155, 3.400. 4. The criteria for an effective date prior to June 28, 2018 for the grant of service connection for diabetic peripheral neuropathy of the left lower extremity are not met. 38 U.S.C. § 5110; 38 C.F.R. §§ 3.155, 3.400. 5. The criteria for an effective date prior to June 28, 2018 for the grant of service connection for diabetic peripheral neuropathy of the right lower extremity are not met. 38 U.S.C. § 5110; 38 C.F.R. §§ 3.155, 3.400. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from September 1966 to August 1968. This matter comes to the Board of Veterans' Appeals (Board) on appeal from rating decisions of September 2018 and January 2019. REASONS FOR REMAND Motions to Reopen Based on New and Material Evidence 1. Whether new and material evidence has been received to reopen a claim of entitlement to service connection for skin cancer. 2. Whether new and material evidence has been received to reopen a claim of entitlement to service connection for residuals of right leg fracture, to include arthritis. In November 2005, the Veteran filed a service-connection claim for basi- squamous carcinoma of the right arm with scar, which was denied by a rating decision of July 2006. He did not file a notice of disagreement (NOD) within one year of being notified of the decision, which became final. 8 U.S.C. § 7105; 38 C.F.R. §§ 20.302, 20.1103. In October 2018, the Veteran filed a service-connection claim for skin cancer. A rating decision of January 2019 denied service connection for skin cancer, nose (also claimed as surgery). The claim was implicitly reopened in that the merits of the claim were addressed in the rating decision. The Veteran filed a NOD in February 2019 and VA Form 9 in March 2020. In June 2015, the Veteran filed a service-connection claim for "right leg broke in service, arthritis." A rating decision of September 2015 denied service connection for residuals of right leg fracture, to include arthritis. The Veteran did not file a NOD within one year of being notified of the decision, which became final. 8 U.S.C. § 7105; 38 C.F.R. §§ 20.302, 20.1103. In June 2018, the Veteran filed a service-connection claim for "arthritis leg condition." A rating decision of September 2018 denied service connection for residuals of right leg fracture (now claimed as arthritis leg condition) on the basis that new and material evidence had not been received since the prior, final denial of the claim in September 2015. The Veteran filed a NOD in October 2018 and VA Form 9 in March 2020. In October 2018, the Veteran filed a service-connection claim for "arthritis feet and legs." A rating decision of January 2019, in relevant part, denied service connection for arthritis, feet and legs. The Veteran filed a NOD in February 2019 and VA Form 9 in March 2020. To the extent that the Veteran's October 2018 claim of entitlement to service connection for "arthritis feet and legs" relates to arthritis of the right leg, the receipt of new and material evidence following the final denial of the claim in September 2015 is required. The Board is neither required nor permitted to analyze the merits of a previously denied claim if new and material evidence has not been submitted. See Butler v. Brown, 9 Vet. App. 167, 171 (1996). Even if agency of original jurisdiction (AOJ) reopens and adjudicates a claim on the merits, the Board must first determine if new and material evidence was received and only thereafter adjudicate the merits of the claim. See Barnett v. Brown, 83 F.3d 1380 (Fed. Cir. 1996). The Veteran requested in his NOD of October 2019 that his Social Security records be obtained. Because any medical records relied upon by the Social Security Administration (SSA) in relation to an SSA disability claim may be relevant to the motion to reopen, they should be obtained, if possible, and reviewed. VA's duty to obtain relevant records from a Federal department or agency applies to motions to reopen a finally decided claim. 38 U.S.C. § 5103A(c); 38 C.F.R. § 3.159(c); see also Murincsak v. Derwinski, 2 Vet. App. 363, 369-703 (1992). Service Connection The Veteran's NOD of October 2019 suggests that he may be in receipt of Social Security Administration (SSA) disability benefits. The AOJ has not attempted to obtain any SSA administrative decision and any records upon which SSA relied in reaching the decision. VA's duty to assist encompasses obtaining medical records that support an SSA award of disability benefits as they may contain information relevant to VA claims. 38 U.S.C. § 5103A(c); 38 C.F.R. § 3.159(c); see also Murincsak v. Derwinski, 2 Vet. App. 363, 369-703 (1992). With respect to the service-connection claims currently on appeal before the Board, any SSA disability records should be requested and associated with the Veteran's claims file. 3. Entitlement to service connection for hypertension. 4. Entitlement to service connection for a heart disorder. By a claim filed in June 2018, the Veteran seeks service connection for hypertension and for a heart disorder. A rating decision of September 2018 denied service connection for high blood pressure, and a rating decision of January 2019 denied service connection for a heart disorder. The Veteran filed a NOD in February 2019 and VA Form 9 in March 2020. An October 2018 record of Dr. H. A. diagnosed grade I diastolic dysfunction on the basis of an echocardiogram. Hypertension was noted in a VA treatment record of November 2019. Cardiovascular-renal disease, including hypertension, is one of the listed chronic diseases for which service connection will be presumed, if the disease is shown in service (or within the presumptive period under 38 C.F.R. § 3.307) so as to permit a finding that the disorder was incurred during service or the presumptive period, and if there are subsequent manifestations of the same chronic disease at a later date, however remote. 38 U.S.C. §§ 1101, 1112; 38 C.F.R. §§ 3.303(b), 3.307, 3.309. For the listed chronic diseases, service connection may also be presumed based on a continuity of symptomatology from service or the presumptive period following service. 38 C.F.R. § 3.303(b); Walker v. Shinseki, 708 F. 3d 1331 (Fed. Cir. 2013). A September 2018 rating decision granted entitlement to service connection for diabetes mellitus type II based, in part, on a presumption of exposure to an herbicide agent during service in the Republic of Vietnam. Thus, the fact that the Veteran was exposed to an herbicide agent during service is established. Ischemic heart disease is listed among diseases that will be presumed to be service- connected if a veteran was exposed to an herbicide agent during active service, and if the requirements of 38 C.F.R. § 3.307(a)(6) are met, even though there is no record of the disease during service. 38 U.S.C. § 1116(a); 38 C.F.R. §§ 3.307(a)(6), 3.309(e). Hypertension is not one of the diseases listed under 38 C.F.R. § 3.309(e) for which service connection may be presumed based on herbicide exposure. Nonetheless, a claimant may establish service connection for a disability due to herbicide exposure with adequate evidence of actual causation. See Combee v. Brown, 34 F.3d 1039, 1042 (Fed. Cir. 1994). As indicated in Veterans and Agent Orange: Update 11 (2018), the Institute of Medicine (IOM) of the National Academy of Sciences (NAS) has updated its conclusion with respect to herbicide agents and hypertension, finding "sufficient" epidemiologic evidence to identify a positive association between hypertension and herbicide exposure. The Veteran underwent a VA examination for heart conditions in October 2018. Hypertension was the only diagnosis. The Veteran has not been examined by VA specifically with respect to hypertension. No VA nexus opinion has been obtained concerning the claimed heart condition or hypertension. VA's duty to assist include providing a medical examination or obtaining a medical opinion when necessary to make a decision on the claim. 38 U.S.C. § 5103A; 38 C.F.R. § 3.159; see also McLendon v. Nicholson, 20 Vet. App. 79, 83 (2006). A VA examination and nexus opinion must be adequate. See Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). The October 2018 VA examination report for heart conditions is inadequate for lack of clarity. Specifically, it is noted under Medical History, without explanation, that the onset of the heart condition as reported by the Veteran is both "s/c" (which may stand for "service connection" and indicate a report of an onset during service) and "year ago." The analysis is also incomplete in that the VA examiner was apparently not aware that grade I diastolic dysfunction had recently been diagnosed in private treatment. To date, no VA examination or medical opinion has been obtained as to the likelihood that the Veteran's hypertension is caused by a disease or injury of service, to include conceded exposure to an herbicide agent, or caused or aggravated by a service- connected disability, to include type 2 diabetes. The Board will remand for the scheduling of VA examinations as to the claimed heart disorder and hypertension and for nexus opinions. 38 C.F.R. § 19.9(a). A remand is also required in order for VA to attempt to obtain any relevant SSA records, as explained above. 5. Entitlement to service connection for a disorder of the left leg, to include arthritis. 6. Entitlement to service connection for arthritis, feet and legs. In June 2018, the Veteran filed a service-connection claim for "arthritis leg condition." The scope of the claim includes any disability that may reasonably be encompassed by the claimant's description of the claim, reported symptoms, and other information of record. See Clemons v. Shinseki, 23 Vet. App. 1 (2009). A rating decision of January 2019 denied service connection for arthritis left leg, also claimed as left leg condition. In October 2018, the Veteran filed a service-connection claim for "arthritis feet and legs." A rating decision of January 2019 denied service connection for "arthritis left leg, also claimed as left leg condition" and for "arthritis, feet and legs." To the extent that the Veteran's October 2018 claim of entitlement to service connection for "arthritis feet and legs" relates to arthritis of the right leg, the receipt of new and material evidence following the denial of September 2015 is required. As noted in the above section relating to the reopening of claims, the Veteran previously filed a service-connection claim for "right leg broke in service, arthritis" in June 2015. A rating decision of September 2015 denied service connection for residuals of right leg fracture, to include arthritis. The Veteran did not file a NOD within one year of being notified of the decision, which became final. 8 U.S.C. § 7105; 38 C.F.R. §§ 20.302, 20.1103. For the induction examination report of July 1966, the Veteran was found to have a normal musculoskeletal system upon examination. However, "occasional swelling left knee" was noted under the heading of "Physician's Summary and Elaboration of All Pertinent Data." The Veteran answered "yes" when asked as to past or current swollen or painful joints, cramps in legs, and foot trouble. For the separation examination report of August 1968, the Veteran was found to have a normal musculoskeletal system upon examination. He answered "yes" when asked as to past or current broken bones, swollen or painful joints, and foot trouble. The Veteran did not specifically mention a broken left leg, and such an injury is not noted in the service treatment records. A VA treatment record (VATR) of May 2015 notes that an x-ray shows degenerative joint disease in both knees. A VATR of July 2015 notes the Veteran's report that he fractured his right leg during service in 1966 or 1967. A VA treatment record of October 2015 notes that a right-knee, unicompartmental knee replacement (medial compartment) was performed in September 2015. In October 2018, the Veteran underwent a VA examination for knee and lower leg conditions. Old fracture deformity of the left distal fibular shaft was noted. Upon examination, the initial range of motion of the left knee and right knee was abnormal. The Veteran reported flare-ups of both knees characterized by increased pain at night. He complained of pain in his feet and ankle. He also stated his belief that he may have developed arthritis in his left leg from a fracture of his left leg in 1966, for which he was treated with a cast. The VA examiner stated her opinion that, with respect to the left lower extremity, the claimed condition was at least as likely as not incurred in, or caused by, the claimed in-service injury. The stated rationale was that a current x-ray documents an old fracture deformity of the distal fibular shaft, left side, and that the Veteran stated that he had a lower left leg fracture during service. The examiner also indicated, however, that it was not possible to provide the requested opinion without resorting to speculation. because she was unable to locate an in-service record of a lower, left-leg fracture, and because the separation examination was silent for any left leg injury and/or condition. The VA examiner's conclusions are unclear and contradictory. Therefore, the opinion is not an adequate basis upon which to grant service connection. See Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007). The Board will remand for a new VA examination and nexus opinion. 38 C.F.R. § 19.9(a). A remand is also required, as explained above, in order for VA to attempt to obtain any relevant SSA records. 7. Entitlement to service connection for PTSD. In June 2018, the Veteran filed a service-connection claim for PTSD. The scope of the claim includes any disability that may reasonably be encompassed by the description of the claim, reported symptoms, and the other information of record. See Clemons v. Shinseki, 23 Vet. App. 1 (2009). A rating decision of September 2018 denied service connection for PTSD. The Veteran filed a NOD in October 2018 and VA Form 9 in March 2020. In August 2018, the Veteran underwent a VA examination for PTSD. No mental health disorder conforming to the criteria of the Diagnostic and Statistical Manual of Mental Disorders (DSM5) was diagnosed. A negative nexus opinion was offered on the grounds that the Veteran does not currently have a diagnosed mental disorder. A remand is required, as explained above, in order for VA to attempt to obtain any relevant SSA records. Increased Rating 8. Entitlement to a rating in excess of 20 percent for diabetes mellitus type 2. 9. Entitlement to a rating in excess of 20 percent for diabetic peripheral neuropathy, left upper extremity. 10. Entitlement to a rating in excess of 20 percent for diabetic peripheral neuropathy, right upper extremity. 11. Entitlement to a rating in excess of 10 percent for diabetic peripheral neuropathy, left lower extremity. 12. Entitlement to a rating in excess of 10 percent for diabetic peripheral neuropathy, right lower extremity. 13. Entitlement to a TDIU. In June 2018, the Veteran filed a service-connection claim for diabetes and for upper and lower peripheral neuropathy. A rating decision of September 2018 granted service connection for diabetes mellitus type 2. A 20-percent evaluation, effective June 28, 2018, was established. The September 2018 rating decision also granted service connection for diabetic peripheral neuropathy of the left upper extremity (20-percent rating), right upper extremity (20-percent rating), left lower extremity (10-percent rating), and right lower extremity (10-percent rating). The effective date of the four neuropathy ratings was June 28, 2018. In October 2018, the Veteran filed a NOD as to the ratings assigned for diabetes and diabetic peripheral neuropathy, and an appeal was perfected with the filing of VA Form 9 in March 2020. In May 2018, the Veteran filed VA Form 21-8940, Veteran's Application for Increased Compensation Based on Unemployability. A rating decision of January 2019 denied entitlement to a TDIU. A request for a TDIU is not a freestanding claim, but rather a component of either an initial service-connection claim or a claim for an increased rating. See Rice v. Shinseki, 22 Vet. App. 447 (2009). The issue of entitlement to a TDIU prior to October 2, 2017 will be remanded as an aspect of the remanded service- connection and increased-rating claims. The Veteran's NOD of October 2019 suggests that he may be in receipt of Social Security Administration disability benefits. The AOJ has not attempted to obtain any SSA administrative decision and the records upon which SSA relied in reaching the decision. VA's duty to assist encompasses obtaining medical records that support an SSA award of disability benefits as they may contain information relevant to VA claims. 38 U.S.C. § 5103A(c); 38 C.F.R. § 3.159(c); see also Murincsak v. Derwinski, 2 Vet. App. 363, 369-703 (1992). With respect to the increased-rating claims currently on appeal before the Board, any SSA disability records should be requested and associated with the Veteran's claims file. Earlier Effective Dates In general, the effective date of an evaluation and grant of compensation based on an original claim will be the date of receipt of the claim or the date entitlement arose, whichever is later. If the claim is received within one year after separation from active service, the effective date for a grant of service connection is the day following the date of separation from active service or the date entitlement arose. 38 U.S.C. § 5110; 38 C.F.R. § 3.400. For claims filed prior to March 24, 2015, the term "claim" or "application" means a formal or informal communication in writing requesting a determination of entitlement or evidencing a belief in entitlement to a benefit. 38 C.F.R. § 3.1 (p). Prior to March 24, 2015, a claim for benefits could be made out by a filing that refers to a specific medical record that contains a reasonably ascertainable diagnosis of a disability, or by a general statement of an intent to seek benefits coupled with a reasonably identifiable medical diagnosis in a service treatment record. See Shea v. Wilkie, 926 F.3d 1362, 1367 (Fed. Cir. 2019); Sellers v. Wilkie, 30 Vet. App. 157 (2018). Effective on and after March 24, 2015, VA amended the regulations concerning the filing of claims. 79 Fed. Reg. 57,660, 57,686 (Sept. 25, 2014) (codified in 38 C.F.R. Parts 3, 19, and 20. In part, VA replaced the informal/formal claims process with a standardized and more formal process, requiring a complete claim on an application form prescribed by VA. 38 C.F.R. §§ 3.1 (p), 3.155(d), 3.160. 14. Entitlement to an effective date earlier than June 28, 2018 for the grant of service connection for diabetes mellitus type 2. 15. Entitlement to an effective date earlier than June 28, 2018 for the grant of service connection for diabetic peripheral neuropathy, left upper extremity. 16. Entitlement to an effective date earlier than June 28, 2018 for the grant of service connection a rating in excess of rating in excess of 20 percent for diabetic peripheral neuropathy, right upper extremity. 17. Entitlement to an effective date earlier than June 28, 2018 for the grant of service connection for diabetic peripheral neuropathy, left lower extremity. 18. Entitlement to an effective date earlier than June 28, 2018 for the grant of service connection for diabetic peripheral neuropathy, right lower extremity. The amended regulations (noted above) apply in this case, because the relevant claims were filed after March 24, 2015. The Board will also apply the regulations in effect prior to March 24, 2015 (before the revised rules took effect) to determine whether a formal or informal claim may be identified in that period. In November 2013, the Veteran filed a statement of intent to file for benefits under the Fully Developed Claim program. No disability was specified. In June 2015, almost two years later, he filed a service-connection claim that listed "right leg broke in service, arthritis," without mention of diabetes or diabetic neuropathy. A VA treatment record of May 2016 recommended that the Veteran start taking Metformin for type 2 diabetes. Earlier VA treatment records of 2015 indicated that he was prediabetic. On June 28, 2018, the Veteran filed VA Form 21-526, Veteran's Supplemental Claim for Compensation, to seek service-connection for diabetes and for upper and lower peripheral neuropathy. A rating decision of September 2018 granted service connection for diabetes mellitus type 2. A 20- percent evaluation, effective June 28, 2018, was established. Also granted by the September 2018 rating decision were service connection for diabetic peripheral neuropathy of the left upper extremity (20-percent rating), right upper extremity (20-percent rating), left lower extremity (10-percent rating), and right lower extremity (10-percent rating). The effective date of the neuropathy ratings was June 28, 2018. In October 2018, the Veteran filed a NOD as to the effective dates of service connection for his diabetes and diabetic peripheral neuropathy, and an appeal was perfected with the filing of VA Form 9 in March 2020. Upon review of the entire record, the Board concludes that, while the Veteran received treatment for diabetes prior to the receipt of his claim on June 28, 2018, there is no record that he filed a service connection claim for diabetes or neuropathy prior to June 28, 2018. He separated from service in August 1968 and did not file a service-connection claim for diabetes or neuropathy within one year of his separation. The law provides that entitlement to disability benefits for purposes of service connection does not arise from the date of treatment of the disability at issue, but rather from the date of receipt of the claim or the date that entitlement arose, whichever is later. The mere presence of the medical evidence in the record does not establish an intent on the part of a claimant to seek service connection for a disorder. See Brannon v. West, 12 Vet. App. 32, 35 (1998). The record in this case shows that, from March 24, 2015, the first filing of a standard VA form to seek VA disability compensation benefits for diabetes and associated neuropathy occurred on June 28, 2018. Prior to March 24, 2015, no correspondence of the Veteran indicated a wish to file a service connection claim for diabetes or neuropathy. The "intent to file" that was received in November 2013 did not specify a disorder or reference any medical record that contained a reasonably ascertainable diagnosis of a disorder. Nor do the service treatment records contain a reasonably identifiable, in-service, medical diagnosis relating to the relevant disorders. Accordingly, the November 2013 "intent to file" cannot be construed as an informal service-connection claim for diabetes mellitus or diabetic peripheral neuropathy. See Shea v. Wilkie, 926 F.3d 1362, 1367 (Fed. Cir. 2019). There is record evidence that the Veteran may have applied for SSA disability benefits, and the AOJ has not attempted to obtain any SSA administrative decision and the records upon which SSA relied in reaching such a decision. VA's duty to assist encompasses obtaining medical records that support an SSA award of disability benefits to the extent that they may contain information relevant to VA claims. 38 U.S.C. § 5103A(c); 38 C.F.R. § 3.159(c). Because nothing indicates that the SSA records would be relevant to deciding the earlier effective date claims pursuant to the law outlined above, it is not necessary for VA to obtain the records before deciding the earlier effective date claims. Specifically, SSA records do not meet the requirements of an informal claim for compensation benefits. The Veteran did not submit correspondence prior to his February 2019 NOD that referenced SSA records. The Board also notes that the law pertaining to receipt of a claim for SSA benefits on a form jointly prescribed by VA applies only to a claim for death benefits. 38 U.S.C. § 5105; 38 C.F.R. § 3.153. The preponderance of the evidence is against the earlier effective date claims, and the evidence is not in approximate balance. Although the Veteran contends that earlier effective dates are warranted, the Board determines that there is no basis for the assignment of effective dates earlier than June 28, 2018. The matters are REMANDED for the following action: 1. In remanding these issues, the Board makes no credibility determination, expressed or implied, at this juncture. 2. Undertake appropriate development to associate with the record any outstanding VA treatment records and any outstanding and identified private medical records that are pertinent to the remanded issues. All efforts to obtain such records should be documented in the record. 3. Undertake appropriate development to request complete copies of any Social Security Administration (SSA) determination as to disability benefit claim(s) of the Veteran before that agency, as well as the records, including medical records, considered in adjudicating the claim(s). All records/responses received should be associated with the claims file. If records are unavailable, SSA should so indicate. The Veteran and his representative are to be notified of any unsuccessful efforts in this regard, in order to give the Veteran an opportunity to obtain and submit those records for VA review. 4. Schedule the Veteran for a medical examination with an appropriate clinician to determine the nature and etiology of his hypertension. The examiner must opine as to whether the Veteran's hypertension at any time since the service-connection claim was filed in June 2018, even if now resolved, at least as likely as not: a. Is caused, aggravated, or otherwise related to an in-service injury, disease, or event, to include conceded exposure to an herbicide agent during Vietnam service; b. Had its inception during service; c. Manifested during active service or within one year after discharge from service; d. Was noted during service or within one year after discharge from service such that the condition was not shown to be chronic at that time or a diagnosis of chronicity could be legitimately questioned, and there was a continuity of the same symptomatology since service; or e. Is proximately due to, or aggravated beyond its natural progression by, a service- connected disability, to include type 2 diabetes mellitus, and to include medication taken for any service-connected disability. The examiner's rationale must give specific consideration to the National Academy of Sciences Institute of Medicine finding, in Veterans and Agent Orange: Update 11 (2018), of sufficient epidemiologic evidence to identify a positive association between hypertension and herbicide exposure. Notify the examiner that the mere fact that an evidentiary presumption has not been established for a diagnosed disorder based on herbicide exposure is not dispositive of the issue of a nexus between a current disorder and service. Consideration must still be given to the likelihood of actual causation by the conceded herbicide exposure. Notify the examiner that the term "at least as likely as not" does not mean within the realm of medical possibility, but rather that the medical evidence both for and against a certain conclusion is at least so evenly divided that it is as medically sound to find in favor of such a conclusion as it is to find against it. Notify the examiner that the Veteran, as a layperson, is competent attest to matters based on personal knowledge, not medical expertise, as they come to a person through his or her senses, including observable or experienced symptoms. If the examiner cannot provide an opinion without resorting to mere speculation, he or she shall provide a complete explanation for why an opinion cannot be rendered. In so doing, the examiner shall explain whether the inability to provide a more definitive opinion is the result of a need for additional information, or that he or she has exhausted the limits of current medical knowledge in providing an answer to that particular question(s). A rationale is required for all opinions in the report. 5. Schedule the Veteran for a medical examination with an appropriate clinician to determine the nature and etiology of any heart disorder, to include grade I diastolic dysfunction. The examiner must opine as to whether any such disorder at any time since the service-connection claim was filed in June 2018, even if now resolved, at least as likely as not: a. Is caused, aggravated, or otherwise related to an in-service injury, disease, or event, to include conceded exposure to an herbicide agent during Vietnam service; b. Had its inception during service; c. Falls within the definition of cardiovascular- renal disease, organic disease of the nervous system, or ischemic heart disease; d. Manifested during active service or within one year after discharge from service; e. Was noted during service or within one year after discharge from service such that the condition was not shown to be chronic at that time or a diagnosis of chronicity could be legitimately questioned, and there was a continuity of the same symptomatology since service; or f. Is proximately due to, or aggravated beyond its natural progression by, a service- connected disability, to include type 2 diabetes mellitus, and to include medication taken for any service- connected disability. The examiner's rationale must give specific consideration to the October 2018 record of Dr. H. A. that diagnosed grade I diastolic dysfunction. Notify the examiner that, even if in the absence of an evidentiary presumption of service connection based on herbicide exposure, consideration must still be given to the likelihood (at least as likely as not) that the Veteran's heart disorder was actually caused by the conceded herbicide exposure. Notify the examiner that the term "at least as likely as not" does not mean within the realm of medical possibility, but rather that the medical evidence both for and against a certain conclusion is so evenly divided that it is as medically sound to find in favor of such a conclusion as it is to find against it. Notify the examiner that the Veteran, as a layperson, is competent attest to matters based on personal knowledge, not medical expertise, as they come to a person through his or her senses, including observable or experienced symptoms. If the examiner cannot provide an opinion without resorting to mere speculation, he or she shall provide a complete explanation for why an opinion cannot be rendered. In so doing, the examiner shall explain whether the inability to provide a more definitive opinion is the result of a need for additional information, or that he or she has exhausted the limits of current medical knowledge in providing an answer to that particular question(s). A rationale is required for all opinions in the report. 6. Schedule the Veteran for a medical examination(s) with an appropriate clinician to determine the nature and etiology of any lower leg disorder, to include the knees and feet, and to include arthritis, at any time since the Veteran's claim was filed in June 2018, even if now resolved. More than one VA examination may be scheduled as appropriate. The examiner(s) must opine as to whether any such disorder at least as likely as not: a. Is caused, aggravated, or otherwise related to an in-service injury, disease, or event, to include the Veteran's account of an in- service injury to the left or right lower extremity; b. Had its inception during service; c. Manifested during active service or within one year after discharge from service; or d. Was noted during service or within one year after discharge from service such that the condition was not shown to be chronic at that time or a diagnosis of chronicity could be legitimately questioned, and there was a continuity of the same symptomatology since service. Notify the examiner that the Veteran, as a layperson, is competent attest to matters based on personal knowledge, not medical expertise, as they come to a person through his or her senses, including observable or experienced symptoms. Notify the examiner that the scope of the Veteran's claims includes any disability that may reasonably be encompassed by the description of the claims, reported symptoms, and the other information of record. Notify the examiner that the term "at least as likely as not" does not mean within the realm of medical possibility, but rather that the medical evidence both for and against a certain conclusion is so evenly divided that it is as medically sound to find in favor of such a conclusion as it is to find against it. If the examiner cannot provide an opinion without resorting to mere speculation, he or she shall provide a complete explanation for why an opinion cannot be rendered. In so doing, the examiner shall explain whether the inability to provide a more definitive opinion is the result of a need for additional information, or that he or she has exhausted the limits of current medical knowledge in providing an answer to that particular question(s). A rationale is required for all opinions in the report. 7. Readjudicate the remanded issues, including TDIU entitlement. If the benefits sought on appeal remain denied, issue a supplemental statement of the case, and return the case to the Board. G. A. WASIK Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Steven D. Najarian, 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.