Citation Nr: 1439959	
Decision Date: 09/08/14    Archive Date: 09/18/14

DOCKET NO.  96-11 042	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in North Little Rock, Arkansas


THE ISSUES

1.  Entitlement to service connection for an acquired psychiatric disorder, other than posttraumatic stress disorder (PTSD). 

2.  Entitlement to service connection for a headache disorder, to include as secondary to service-connected sinusitis.

3.  Entitlement to service connection for PTSD.

4.  Entitlement to a total disability rating based on individual unemployability due to service connected disabilities (TDIU).


REPRESENTATION

Appellant represented by:	Disabled American Veterans



WITNESS AT HEARING ON APPEAL

Appellant


ATTORNEY FOR THE BOARD

E.I. Velez, Counsel


INTRODUCTION

The Veteran had active service from October 1973 to December 1976 and from November 1990 to May 1991.  He also had service in the Reserves.

This matter came before the Board from various rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in North Little Rock, Arkansas.

In an October 2006 decision, the Board, in relevant part, determined that new and material evidence had not been submitted to reopen claims of entitlement to service connection for a skin disability, depressive disorder, hearing loss disability, and a headache disability.  The Board also remanded the issues of entitlement to service connection for PTSD and entitlement to TDIU.  A review of the claim file reveals that some of the requested development has not been conducted.  Therefore, the Board will address the issues on the remand portion of this decision.  

In a September 2008 memorandum decision, the Court, inter alia, vacated and remanded the issues pertaining to reopening the claims of entitlement to service connection for depressive disorder, hearing loss disability, and a headache disability.  Pursuant to the memorandum decision, the Board remanded the appeal in June 2010 for additional development consistent with the Court's order.  The Board remanded this matter again in March 2012 and January 2013. 

The Board observes that the Veteran was afforded a hearing before a Veterans Law Judge in April 2006.  In March 2010 he was advised that the Judge that conducted his hearing was no longer employed by the Board and that he could opt for an additional hearing.  He responded in March 2010 that he did not wish to have another hearing.

The Board notes that some of the issues currently on appeal have been developed (and in some instances adjudicated) as claims for whether new and material evidence has been received to reopen the claims.  As noted in the January and May 2013 decisions, the Board will proceed with these issues as original claims instead claims to reopen.

The Board has reviewed the Veteran's electronic files and has considered all relevant records contained therein in the decision below.

The issues of entitlement to service connection for PTSD, an acquired psychiatric disorder other than PTSD, and entitlement to TDIU are addressed in the REMAND portion of the decision below and are REMANDED to the Agency of Original Jurisdiction (AOJ).


FINDING OF FACT

The preponderance of competent and credible evidence shows that there is no nexus between the current headache disorder, to include migraine, tension and analgesic rebound headaches, and service; and that the current headache disorder was not caused or aggravated by a service-connected disability, to include sinusitis.




CONCLUSION OF LAW

A headache disorder was not incurred in or aggravated by active service and was not caused or aggravated by a service-connected disability.  38 U.S.C.A. §§ 1110, 5103A, 5107 (West 2001); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304, 3.310 (2013).


REASONS AND BASES FOR FINDING AND CONCLUSION

The Board has thoroughly reviewed all the evidence in the Veteran's claims file.  Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, all the evidence submitted by or on behalf of the Veteran.  See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (the Board must review the entire record, but does not have to discuss each piece of evidence).  The analysis below focuses on the most salient and relevant evidence and on what this evidence shows, or fails to show, on the claim.  The Veteran must not assume that the Board has overlooked pieces of evidence that are not explicitly discussed herein.  See Timberlake v. Gober, 14 Vet. App. 122 (2000) (the law requires only that the Board address its reasons for rejecting evidence favorable to the Veteran).

Veterans Claims Assistance Act of 2000 (VCAA)

With respect to the Veteran's claims, the VA has met all statutory and regulatory notice and duty to assist provisions.  38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2013).

Under the VCAA, when VA receives a complete or substantially complete application for benefits, it is required to notify the Veteran and his or her representative, if any, of any information and medical or lay evidence that is necessary to substantiate the claim.  38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002).  In Pelegrini v. Principi, 18 Vet. App. 112, 120-21 (2004) (Pelegrini II), the United States Court of Appeals for Veterans Claims (Court) held that VA must inform the Veteran of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; (3) that the Veteran is expected to provide; and (4) request that the Veteran provide any evidence in his or her possession that pertains to the claim.  The requirement of requesting that the Veteran provide any evidence in his possession that pertains to the claim was eliminated by the Secretary during the course of this appeal.  See 73 Fed. Reg. 23353 (final rule eliminating fourth element notice as required under Pelegrini II, effective May 30, 2008).  Thus, any error related to this element is harmless. 

VCAA letters dated in September 2004, April 2006, and February 2013 fully satisfied the duty to notify provisions.  See 38 U.S.C.A. § 5103(a) (West 2002); 38 C.F.R. § 3.159(b)(1) (2013); Quartuccio, at 187.  The Veteran was advised that it was ultimately his responsibility to give VA any evidence pertaining to the claims.  The letters informed him that additional information or evidence was needed to support his claims, and asked him to send the information or evidence to VA.  See Pelegrini II, at 120-121. The April 2006 letter also explained to the Veteran how disability ratings and effective dates are determined.  See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). 

As noted above, the Veteran also was afforded a hearing before a Veterans Law Judge (VLJ) during which he presented oral argument in support of his service connection claim.  In Bryant v. Shinseki, 23 Vet. App. 488 (2010), the United States Court of Appeals for Veterans Claims (Court) held that 38 C.F.R. § 3.103(c)(2) (2013) requires that the VLJ/DRO who chairs a hearing fulfill two duties to comply with the above the regulation.  These duties consist of (1) the duty to fully explain the issues and (2) the duty to suggest the submission of evidence that may have been overlooked.  Here, the VLJ fully described the issue on appeal during the hearing, but he did not specifically discuss the basis of the prior determinations, the element(s) of the claims that were lacking to substantiate the claims for benefits, nor did he suggest the submission of evidence that would be beneficial to the Veteran's claim.  Significantly, neither the Veteran nor his representative has asserted that VA failed to comply with 38 C.F.R. § 3.103(c)(2), nor has he identified any prejudice in the conduct of the Board hearing.  By contrast, the hearing focused on the elements necessary to substantiate the claim, and the Veteran, through his testimony, demonstrated that he had actual knowledge of the elements necessary to substantiate his claim. 

Although the Veteran was not provided adequate VA notice prior to the January 2005 rating decision on appeal and was not provided a detailed description during his hearing as to why service connection was previously denied, the Board finds that any prejudice due to such error has been overcome in this case by the following: (1) based on the communications sent to the Veteran over the course of this appeal, the Veteran clearly has actual knowledge of the evidence the Veteran is required to submit in this case; and (2) based on the Veteran's contentions as well as the communications provided to the Veteran by VA, it is reasonable to expect that the Veteran understands what was needed to prevail.  See Shinseki v. Sanders/Simmons, 129 S. Ct. 1696 (2009); Fenstermacher v. Phila. Nat'l Bank, 493 F.2d 333, 337 (3d Cir. 1974) ("[N]o error can be predicated on insufficiency of notice since its purpose had been served.").  In order for the Court to be persuaded that no prejudice resulted from a notice error, "the record must demonstrate that, despite the error, the adjudication was nevertheless essentially fair."  Dunlap v. Nicholson, 21 Vet. App. 112, 118 (2007). 

In this case, the Veteran has been continuously represented by an experienced national service organization and has submitted argument in support of his claims.  These arguments have referenced the applicable law and regulations necessary for a grant of service connection.  Thus, the Board finds that the Veteran has actual knowledge as to the information and evidence necessary for him to prevail on his claim and is not prejudiced by a decision in this case.  As such, a remand for additional notice would serve no useful purpose and would in no way benefit the Veteran.  Sabonis v. Brown, 6 Vet. App. 426, 430 (1994) (remands which would only result in unnecessarily imposing additional burdens on the VA with no benefit flowing to the Veteran are to be avoided).

The Board also concludes VA's duty to assist has been satisfied.  The Veteran's service treatment records (STRs) and VA medical records are in the file.  Private medical records identified by the Veteran have been obtained, to the extent possible.  The Veteran has at no time otherwise referenced outstanding records that he wanted VA to obtain or that he felt was relevant to the claim. 

The duty to assist also includes providing a medical examination or obtaining a medical opinion when such is necessary to make a decision on the claim.  38 C.F.R. § 3.159(c)(4)(i) (2013). 

In this case, the Veteran was afforded various VA medical examinations and a Veterans Health Administration  (VHA) specialist's opinion.  The examiners considered the Veteran's complaints, as well as the service treatment records, post-service treatment records, and conducting a physical examination.  The examiner provided thorough findings, diagnoses and opinions.  When clarifications were needed, or when opinions were found to be inadequate, new opinions or clarifications were obtained.  Given the foregoing, the Board finds the evidence of record to be thorough, complete, and sufficient upon which to base a decision with respect to the Veteran's claim for service connection.  See Barr v. Nicholson, 21 Vet. App. 303, 312 (2007) (when VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate).  As such, the Board finds that the medical evidence of record is sufficient to adjudicate the Veteran's claim.

As there is no indication that any failure on the part of VA to provide additional notice or assistance reasonably affects the outcome of this case, the Board finds that any such failure is harmless.  See Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006).

Legal Criteria and Analysis

Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service.  38 U.S.C.A. § 1110; 38 C.F.R. § 3.303(a).  Service connection may also be granted for any disease diagnosed after discharge when all of the evidence establishes that the disease was incurred in service.  38 C.F.R. § 3.303(d). 

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.  If a condition noted during service is not shown to be chronic, then generally, a showing of continuity of symptoms after service is required for service connection.  See 38 C.F.R. § 3.303(b).  The chronicity provision of 38 U.S.C.A. § 3.303(b) is applicable where the evidence, regardless of its date, shows that the Veteran had a chronic condition in service or during an applicable presumption period and still has such condition.  Regulations also provide that service connection may be granted for a disability diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability is due to disease or injury which was incurred in or aggravated by service.  38 C.F.R. § 3.303(d). 

Service connection for certain chronic diseases, including psychoses, will be presumed if they are manifest to a compensable degree within one year following active service.  38 U.S.C.A. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309.  However, depression and anxiety are not classified as psychoses.  As such, service connection on a presumptive basis is not warranted.

To prevail on the issue of service connection, there must be (1) medical evidence of a current disability; (2) medical, or in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the current disability.  See Hickson v. West, 12 Vet. App. 247, 253 (1999). 

A disability which is proximately due to or the result of a service-connected disease or injury shall be service connected.  When service connection is thus established for a secondary condition, the secondary condition shall be considered a part of the original condition.  38 C.F.R. § 3.310(a).  Secondary service connection may also be established for a nonservice-connected disability that is aggravated by a service connected disability.  In such an instance, a veteran may be compensated for the degree of disability over and above the degree of disability existing prior to the aggravation.  38 C.F.R. § 3.310(b); Allen v. Brown, 7 Vet. App. 439, 448 (1995).

The determination as to whether the requirements for service connection are met is based on an analysis of all the evidence of record and the evaluation of its credibility and probative value.  38 U.S.C.A. § 7104(a); Baldwin v. West, 13 Vet. App. 1 (1999); 38 C.F.R. § 3.303(a). 

If there is at least an approximate balance of positive and negative evidence regarding any issue material to the claim, the claimant shall be given the benefit of the doubt in resolving each such issue.  38 U.S.C.A. § 5107; Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001); 38 C.F.R. §§ 3.102.  On the other hand, if the Board determines that the preponderance of the evidence is against the claim, it has necessarily found that the evidence is not in approximate balance, and the benefit of the doubt rule is not applicable.  Ortiz, 274 F.3d at 1365.

The Veteran is seeking entitlement to service connection for headaches, to include as secondary to the service connected sinusitis.  Throughout the appeal, the Veteran's complaints of headaches are well documented.  It has been noted in the past that the etiology of the headaches may be multi-factorial, sinusitis in combination with migraine and tension headaches.  See e.g. May 1994 and November 2000 VA treatment record.  It has also at times been attributed to his blood pressure.  See e.g.  July 2000 VA treatment record.  And other times they have been noted to be analgesic rebound headaches.  See e.g. July 2003 VA treatment record.  Records of November 2004 note a diagnosis of headaches of unsure etiology, multi factorial.  Sinusitis in combination with migraine and tension headaches.  

Review of the claim file reveals that the Veteran's headaches had an onset in 1993.  Indeed, VA outpatient treatment records from May 1994 noted the Veteran reported headaches which had been occurring 10 months before, or as of July 1993.  

An October 2004 VA examination conducted regarding the Veteran's sinuses concluded the Veteran gets headaches from his sinuses and allergic rhinitis.  

Two VA medical opinions have been obtained from the same VA examiner.  The first was obtained in February 2003.  At the time, the VA examiner, after an examination of the Veteran and review of the claim file, provided an opinion stating that the Veteran's headaches are vascular migraine and not typical of sinus headaches.  Therefore, he opined it is less likely than not that the current headaches are attributable to sinuses.  He reasoned that a review of the claim file showed the headaches had an onset in 1994 which is long after exit from service and therefore the headaches are less likely than not attributed to service since the dates show an onset long after service.  He further opined the other disorders would not cause this type of headaches and therefore it is less likely than not that the headaches are attributed to other service connected disabilities.  He also noted a neurologist's assessment in 2003 which rendered a diagnosis similar to his.

In a May 2013 Board remand, it was noted that the Veteran had most recently been released from active service in May 1991, and a clarifying opinion was sought. 

In July 2013, the February 2013 VA examiner provided a second opinion.  He stated his opinion remained the same as in February 2013.  The Veteran's headaches are vascular migraine headaches.  He stated they are separate and distinct from the service connected sinus condition which plays no role in the present headaches.  He again stated that it is less likely than not that the headaches were incurred in service because as noted in the past they had an onset long after exit from service.  He also stated that they are not aggravated by any service connected disability, specifically sinusitis, and pointed out that a detailed rationale for the opinion was provided in February 2013.  

More recently, a September 2013 VA examination conducted regarding the Veteran's sinusitis noted that the headaches were a part of the Veteran's symptomatology associated with the sinusitis.  

Due to the conflicting opinions, the Board requested a VHA specialist's opinion.  In November 2013, the first VHA opinion was obtained.  The specialist opined that the Veteran's migraine headaches were at least as likely as not, 50-50 degree probability, that such disorder is related or caused by, or aggravated by any other service-connected disorder.  He reasoned that the migraine headaches started in 1994 and described the pattern and symptomatology of the headaches, and concluded that these headaches are not caused by sinusitis.  Moreover, he noted that the treatment records showed that the Veteran had frontal headaches or pressure with superimposed by viral or bacterial sinusitis from time to time.  He stated that frontal headaches or sinus pressure with sinus problem alone without associated nausea and/or photophobia with functional impairment is not characteristic of migraine.  

Regarding headaches associated with blood pressure, he opined that the Veteran's headaches are not associated with hypertension.  He noted that hypertension or high blood pressure was noted on one occasion in July 2000 associated with headache.  He explained that blood pressure may increase with pain and suffering but is not the cause of headaches.  

Regarding tension headaches, he noted that the appellant had tension headaches in 2003 and 2004.  He opined that these headaches are at least 50 percent not likely caused or aggravated by the service connected sinusitis.  

Finally, regarding the analgesic rebound headaches, he noted that the Appellant has had daily dull aching pressure type headache bilaterally over the forehead which may be relieved with aspirin, Tylenol or caffeine.  He was diagnosed with tension type or analgesic rebound headaches by neurology.  Analgesics were stopped and preventative medicines were given with improvement.  He opined that these headaches are at least 50 percent not likely be caused or aggravated by the service connected sinusitis or any other service connected illness.  

A clarification regarding the opinion regarding migraine headaches was requested.  The Board noted at that time that the specialist's opinion that it is "at least as likely as not, 50-50 degree probability, that such disorder is related or caused by, or aggravated by any other service-connected disorder" appeared to be favorable to the claim, while the underlying rationale appeared to support a negative opinion.

In January 2014, the VHA specialist clarified that the migraine headaches are less likely than not caused by or aggravated by sinusitis or service.  He reasoned that there was no evidence of headaches in service or until 1993 as noted in treatment records of 1994.  He further noted that there are multiple annual history and physical statements which deny the presence of frequent or severe headaches in 1983, 1990 and 1991.  History and physical statements in 1994 and 1996 indicate frequent and severe headaches.  Moreover, he was diagnosed with migraine headaches in July 2000.  

The Board has reviewed all service treatment records, all VA and private treatment records, the VA examination reports, and in particular the evidence noted above.  The Board finds that preponderance of the competent evidence of record is against a finding of service connection either on a direct or secondary basis.  The Board recognizes that there are two VA opinions of record which favor a link between the Veteran's headaches and his service connected sinusitis.  Indeed, the October 2004 and September 2013 VA examiners opined that the headaches were at least in part symptomatology associated with the sinusitis.  However, the record contains multiple other opinions with full rationales, including a VHA specialist's opinion, which are against a finding of a link between the Appellant's headaches and the service connected sinusitis.  Considering the record as a whole and the multiple medical opinions contained therein, the Board finds that the preponderance of the evidence is against a finding that the Veteran's headaches are related to his service connected sinusitis.  

Significantly, the VHA specialist's opinions were provided with full rationales and a complete review of the claim file.  The specialist considered all of the evidence of record, the prior medical findings and addressed each type of headache individually providing a rationale for his opinions regarding each type of headache identified.  The Board places greater probative weight on the VHA specialist's opinions than on the October 2004 and September 2013 opinions which did not provide as complete a rationale for the opinions.

Moreover, there is no competent evidence of record which links the Veteran's headaches to service and there is no evidence that the Veteran suffered from headaches in service.  Significantly, no service treatment record contains a diagnosis of headaches of any type.  Quite the contrary, and as noted above, the Veteran consistently denied a history of headaches while in service. 

The Veteran is not claiming that he has had headaches since active service.  Instead, he claims that his headaches are due to the service connected sinusitis.  Although lay persons are competent to provide opinions on some medical issues, see Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011), as to the specific issue in this case, the Board ultimately places far more weight on the VA medical opinion regarding the relationship between the headaches and the service connected sinusitis than on the Veteran's assertions.  See Jandreau v. Nicholson, 492 F.3d 1372, 1733 n. 4 (Fed. Cir. 2007) (lay persons not competent to address complex medical questions). 

In summary, for the reasons and bases set forth above, the Board concludes that the most credible and probative evidence weighs against finding that his headache disorder is related to service, to include a service-connected disability.  Therefore, the preponderance of the evidence is against the claim, and it is denied.


ORDER

Service connection for a headache disorder to include as due to sinusitis, is denied.  


REMAND

As noted in the Introduction section above, the issues of entitlement to service connection for PTSD and entitlement to TDIU have been pending since the Board's remand of October 2006.

With regards to the claim for service connection for PTSD, in the October 2006 remand, the RO was asked to obtain a detailed description of the claimed PTSD stressors from the Veteran, attempt to verify any identified stressors and schedule the Veteran for a PTSD VA examination.  

The RO sent the Veteran a request for a description of his claimed stressors in November 2006.  Later that same month, the Veteran submitted a stressor statement.  In the statement he described stressors which included one based on fear of hostile activity while he was serving in Desert Storm.  Specifically, he contends that he was in fear of his life as he had no gas mask protection and he was aware that they could be attacked at any moment with chemical weapons.  An additional stressor was described of the memory of seeing the body of a blood soaked fellow soldier.  

The Board notes that there has been a significant change in the law regarding PTSD claims during the pendency of this case that has not been previously addressed. Specifically, for all claims pending before VA on or after July 13, 2010, the provisions of 38 C.F.R. § 3.304(f) were amended by redesignating current paragraphs (f)(3) and (f)(4) as paragraphs (f)(4) and (f)(5), respectively, and by adding a new paragraph (f)(3) that reads as follows: 

(f)(3) If a stressor claimed by a veteran is related to the veteran's fear of hostile military or terrorist activity and a VA psychiatrist or psychologist, or a psychiatrist or psychologist with whom VA has contracted, confirms that the claimed stressor is adequate to support a diagnosis of [PTSD] and that the veteran's symptoms are related to the claimed stressor, in the absence of clear and convincing evidence to the contrary, and provided the claimed stressor is consistent with the places, types, and circumstances of the veteran's service, the veteran's lay testimony alone may establish the occurrence of the claimed in-service stressor.  For purposes of this paragraph, "fear of hostile military or terrorist activity" means that a veteran experienced, witnessed, or was confronted with an event or circumstance that involved actual or threatened death or serious injury, or a threat to the physical integrity of the veteran or others, such as from an actual or potential improvised explosive device; vehicle-imbedded explosive device; incoming artillery, rocket, or mortar fire; grenade; small arms fire, including suspected sniper fire; or attack upon friendly military aircraft, and the veteran's response to the event or circumstance involved a psychological or psycho-physiological state of fear, helplessness, or horror.  75 Fed. Reg. 39,843 (July 13, 2010), with correcting amendments at 75 Fed. Reg. 41 ,092 (July 15, 2010).  As the Veteran's claim was appealed to the Board before July 13, 2010, but had not been decided by the Board as of July 13, 2010, the amended regulations apply to the instant claim.  However, a review of the record does not reflect the Veteran was provided with notification regarding what was necessary to support a claim of service connection for PTSD based upon "fear of hostile military or terrorist activity." 

Given that the record shows the Veteran served in Desert Storm and considering the circumstances of that service, the Board will accept the Veteran's claimed stressors of fears of hostile attacks.  While adequate notice has not been provided, corrective notice is not needed as the Board is accepting the claimed stressors.

The Board further notes that a VA examination was scheduled for September 2009 but the record reflects the examination was later cancelled by MAS.  The record is unclear as to why the examination was cancelled.  A subsequent medical opinion was obtained with respect to the claim of service connection for a psychiatric disorder other than PTSD, but no actual examination was performed.  Regardless, we now have a verified stressor of fear of hostile activity and an examination is needed.

Regarding the issues of entitlement to TDIU and entitlement to service connection for an acquired psychiatric disorder other than PTSD, the Board will defer a decision on those issues until the issue of service connection for PTSD has been adjudicated as there may be additional evidence relevant to these issues that may be obtained during the course of the adjudication of the issue of service connection for PTSD.

Accordingly, the case is REMANDED for the following action:

1.  The RO/AMC should schedule the Veteran for a VA examination by a VA psychiatrist or psychologist, or a psychiatrist or psychologist with whom VA has contracted.  On examination, the examiner should report all psychiatric disabilities found to be present. 

After examining the Veteran and reviewing the claims file, the examiner should respond to the following: 

Is it at least as likely as not (a 50% or higher degree of probability) that any current psychiatric disorder(s) was/were manifested during or otherwise caused by the Veteran's active duty or any incident therein? If so, clearly identify such current psychiatric disorder(s). 

If PTSD is diagnosed, the examiner should respond to the following: 

Are the Veteran's PTSD symptoms related to the Veteran's fear of in-service hostile military or terrorist activity? 

The examiner should provide adequate rationale for all opinions expressed and conclusions reached.

2.  After completing any additional development deemed necessary, the AMC/RO should readjudicate the issues on appeal in light of any additional evidence added to the records assembled for appellate review, to include the issues of entitlement to service connection for PTSD, an acquired psychiatric disorder other than PTSD, and entitlement to TDIU.  The RO's decision should reflect consideration of the revised provisions of 38 C.F.R. § 3.304(f)(3) regarding claims of service connection for PTSD based upon fear of hostile military or terrorist activity.

The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded.  Kutscherousky v. West, 12 Vet. App. 369 (1999).

This claim must be afforded expeditious treatment.  The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner.  See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2013).




______________________________________________
MICHAEL LANE
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs