series: legacy

judge_norm: ROBERT C SCHARNBERGER

disposition: denied

condition: diabetes

text:
Citation Nr: 1321000
Decision Date: 06/28/13    Archive Date: 07/05/13

DOCKET NO.  02-20 933	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Waco, Texas

THE ISSUES

1.  Entitlement to an initial rating in excess of 10 percent for service-connected posttraumatic stress disorder prior to June 19, 2009.

2.  Entitlement to an initial rating in excess of 70 percent for service-connected posttraumatic stress disorder from June 19, 2009.

3.  Entitlement to service connection for diabetes mellitus, to include as due to herbicide exposure.

4.  Entitlement to service connection for a bilateral knee disability.

REPRESENTATION

Appellant represented by:	Vietnam Veterans of America

WITNESSES AT HEARING ON APPEAL

The Veteran and M.M.

ATTORNEY FOR THE BOARD

E. Joyner, Counsel.

INTRODUCTION

The Veteran served on active duty from July 1971 to April 1974.

This case comes before the Board of Veterans' Appeals (Board) on appeal of rating decisions dated in December 2004, July 2009, and September 2009 of the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas.  The December 2004 rating decision denied the Veteran's claim of entitlement to service connection for right and left knee disabilities.  The July 2009 rating decision granted service connection for posttraumatic stress disorder (PTSD) and assigned a 10 percent rating, effective January 4, 2006.  The September 2009 rating decision denied service connection for diabetes mellitus.

The issue of entitlement to service connection for right and left knee disabilities was previously before the Board in February 2006, at which time it was remanded for additional development.

The Veteran appealed the initial 10 percent rating assigned for PTSD.  Subsequently, in an April 2012 rating decision the RO increased the rating for PTSD to 30 percent effective February 28, 2011.  Thereafter, in a November 2012 rating decision the RO increased the rating for PTSD to 70 percent, effective from June 19, 2009.  As such, the Veteran's PTSD is rated as 10 percent disabling prior to June 19, 2009 and as 70 percent disabling beginning on that date.

Although the Veteran filed a claim for service connection for depression in April 2012 and in September 2012 the RO sent the Veteran a notice letter regarding this service connection claim, there is a handwritten note on the official claims file copy of the September 2012 notice letter which states that the depression issue is intertwined with the claim for an increased initial rating for the service-connected PTSD.  Moreover, in the November 2012 rating decision granting a 70 percent rating for PTSD, the RO indicated that the Veteran's major depressive disorder claim is inextricably intertwined with the PTSD issue and is included with the PTSD evaluation.

In this regard, and as explained in more detail below, the Board notes that where it is not possible to distinguish the effects of a nonservice-connected condition from those of a service-connected condition, the reasonable doubt doctrine dictates that all symptoms be attributed to the Veteran's service-connected disability.  See Mittleider v. West, 11 Vet. App. 181 (1998).  Notably, the Veteran has been diagnosed with PTSD, major depressive disorder, anxiety disorder and schizoaffective disorder, depressive type.  Although there is some conflicting evidence of record, the Board finds that it has not been established that it is possible to distinguish the Veteran's depression, anxiety and/or schizoaffective disorder symptoms from his service-connected PTSD symptoms.  Consequently, all of his psychiatric symptoms have been considered in evaluating his service-connected PTSD.

During the course of the appeal of the issue of entitlement to service connection for right and left knee disabilities, the Veteran testified at Travel Board hearing at the RO before a Veterans Law Judge (VLJ) in September 2005.  A transcript of that hearing is of record.  The VLJ who conducted the Travel Board hearing is now retired.  In a June 2012 letter, the Veteran was informed that the VLJ who conducted his hearing is no longer employed by the Board.  The Veteran was offered the opportunity to testify at another hearing.  Although the Veteran subsequently requested a hearing, to include in an October 2012 VA Form 9, in February 2013 he reported that he no longer wanted such a hearing.  Therefore, the hearing request is considered withdrawn and the Board may proceed with the appeal.
The issue of entitlement to service connection for a bilateral knee disability is addressed in the REMAND portion of the decision below and is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC.

FINDINGS OF FACT

1.  For the time period prior to June 19, 2009 the Veteran's PTSD was manifested by occupational and social impairment with deficiencies in most areas; there is no evidence of total social impairment due to his PTSD signs and symptoms.

2.  For the time period beginning on June 19, 2009 the Veteran's PTSD is manifested by total social and occupational impairment.

3.  The Veteran did not set foot on land in the Republic of Vietnam, he did not serve on the inland waterways of the Republic of Vietnam, and he was not exposed to herbicides during service.

4.  Diabetes mellitus was not present until many years after the Veteran's discharge from service and is not etiologically related to service

CONCLUSIONS OF LAW

1.  The criteria for an initial rating of 70 percent, but not higher, for PTSD for the time period prior to June 19, 2009, have been met.  38 U.S.C.A. �� 1155, 5103A, 5107 (West 2002); 38 C.F.R. �� 4.1, 4.7, 4.130, Diagnostic Code 9411 (2012).

2.  The criteria for an initial rating of 100 percent for PTSD for the time period beginning on June 19, 2009, have been met.  38 U.S.C.A. �� 1155, 5103A, 5107 (West 2002); 38 C.F.R. �� 4.1, 4.7, 4.130, Diagnostic Code 9411 (2012).

3.  Diabetes mellitus, type II, was not incurred in or aggravated by active service and may not be presumed to have been so incurred or aggravated.  38 U.S.C.A. �� 1101, 1110, 1112, 1116 (West 2002 & Supp. 2012); 38 C.F.R. �� 3.303, 3.307, 3.309 (2012).

REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

VA has met all statutory and regulatory notice and duty to assist provisions.  See 38 U.S.C.A. �� 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2012); 38 C.F.R. �� 3.102, 3.156(a), 3.159, 3.326 (2012).  Letters dated in January 2007, June 2008, and September 2008 satisfied the duty to notify provisions.  The January 2007 and June 2008 letters notified the Veteran of regulations pertinent to the establishment of an effective date and of the disability rating and were provided prior to the initial adjudication of the respective claims.  38 U.S.C.A. � 5103(a) ; 38 C.F.R. � 3.159(b)(1) ; Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002); Dingess/Hartman v. Nicholson, 19 Vet. App. (2006).

Once a claim for service connection has been substantiated, the filing of a notice of disagreement with the initial rating of the disability on appeal, as the Veteran did in August 2009 with respect to his service-connected PTSD, does not trigger additional 38 U.S.C.A. � 5103(a) notice.  Therefore, any defect as to notice relating to this claim is non-prejudicial.  See id; Dunlap v. Nicholson, 21 Vet. App. 112 (2007); see also Goodwin v. Peake, 22 Vet. App. 128, 134 (2008) (where a claim has been substantiated after August 29, 2000, the appellant bears the burden of demonstrating any prejudice from defective notice with respect to any downstream elements).

VA examinations were conducted in November 2003, June 2009, February 2011, and November 2012.  Although in an October 2012 VA Form 9, the Veteran stated that the review of examinations is incomplete and requested a new examination, the Board notes that he was afforded a new VA examination for his PTSD in November 2012.  He has not subsequently argued, and the record does not reflect that the VA PTSD examinations as a whole were inadequate for rating purposes.  The examinations were adequate because they were based on an examination of the Veteran and provided sufficient information to address the rating criteria for the disability on appeal.  38 C.F.R. � 3.159(c) (4); Barr v. Nicholson, 21 Vet. App. 303, 307 (2007).

The Veteran was not afforded a VA examination with respect to his claim for service connection for diabetes mellitus.  The Board finds that a VA examination/opinion with regard to this issue is not warranted.  The Secretary's obligation under 38 U.S.C. � 5103A(d) to provide the Veteran with a medical examination or to obtain a medical opinion occurs when there is (1) competent evidence of a current disability or persistent or recurrent symptoms of a disability, (2) evidence establishing that an event, injury, or disease occurred in service or establishing certain diseases manifesting during an applicable presumptive period for which the claimant qualifies, and (3) an indication that the disability or persistent or recurrent symptoms of a disability may be associated with the veteran's service or with another service-connected disability, but (4) insufficient competent evidence on file for the Secretary to make a decision on the claim.  McLendon v. Nicholson, 20 Vet. App.79, 81 (2006).  As is discussed in greater detail below, the service treatment records are negative for any complaint or finding of diabetes mellitus.  Although the Veteran alleges that his diabetes mellitus is causally related to herbicide exposure, there is no evidence showing that he set foot in Vietnam or was otherwise exposed to herbicides and he has not been shown to be competent to make such an etiology finding.  His suggestion of such an etiology is not a sufficient "indication" that his diabetes mellitus may be causally related to service to warrant a VA examination.  Although the standard under McLendon to obtain a VA examination is low, the Board finds that a claim of etiology by someone without the required medical or scientific expertise and without any supporting evidence, is insufficient.  In this case, there is no competent medical evidence that finds a causal link between the Veteran's diabetes mellitus and any incident of active service, including exposure to herbicides.  Therefore, the Board concludes that there is no duty to provide a medical opinion on this issue.  38 U.S.C.A. � 5103A(d); 38 C.F.R. � 3.159(c)(4); McLendon v. Nicholson, 20 Vet. App. 79 (2006).

There is no indication in the record that any additional evidence relevant to the issues decided herein is available and not part of the claims file.  See Pelegrini v. Principi, 18 Vet. App. 112 (2004).  As there is no indication that any failure on the part of VA to provide additional notice or assistance reasonably affects the outcome of the case, the Board finds that any such failure is harmless.  See Mayfield v. Nicholson, 20 Vet. App. 537 (2006); see also Dingess/Hartman, 19 Vet. App. at 486; Shinseki v. Sanders/Simmons, 129 S. Ct. 1696 (2009).

Legal Analysis

	Increased Initial Rating

Disability ratings are determined by the application of the VA's Schedule for Rating Disabilities (Rating Schedule), which is based on the average impairment of earning capacity.  Separate diagnostic codes identify the various disabilities.  38 U.S.C.A. � 1155; 38 C.F.R. Part 4 (2012).  Pertinent regulations do not require that all cases show all findings specified by the Rating Schedule, but that findings sufficient to identify the disease and the resulting disability and above all, coordination of the rating with impairment of function will be expected in all cases.  38 C.F.R. � 4.21 (2012); see also Mauerhan v. Principi, 16 Vet. App. 436 (2002).  Where the Rating Schedule does not provide for a noncompensable evaluation for a diagnostic code, a noncompensable evaluation shall be assigned when the requirements for a compensable evaluation are not met.  38 C.F.R. � 4.31 (2012).

The primary concern in a claim for an increased evaluation for service-connected disability is the present level of disability.  Although the overall history of the disability is to be considered, the regulations do not give past medical reports precedence over current findings.  Francisco v. Brown, 7 Vet. App. 55, 58 (1994).  However, when an appeal is based on the assignment of an initial rating for a disability, following an initial award of service connection for this disability, the rule articulated in Francisco does not apply.  Fenderson v. West, 12 Vet. App. 119 (1999).  Instead, the evaluation must be based on the overall recorded history of a disability, giving equal weight to past and present medical reports.  Id.  VA has a duty to consider the possibility of assigning staged ratings in all claims for increase.  See Hart v. Mansfield, 21 Vet. App. 505 (2007).

Service connection for the Veteran's PTSD was granted in a July 2009 rating decision.  An initial 10 percent rating was assigned, effective January 4, 2006, under the provisions of 38 C.F.R. � 4.130, Diagnostic Code 9411.  Thereafter, in an April 2012 decision, the RO increased the rating for the Veteran's service-connected PTSD to 30 percent, effective February 28, 2011.  Then, in a November 2012 rating decision, the RO again increased the rating for PTSD, assigning a 70 percent rating, effective June 19, 2009.  Therefore, the Veteran's PTSD is rated as 10 percent disabling prior to June 19, 2009 and as 70 percent disabling beginning on June 19, 2009, under Diagnostic Code 9411.

Diagnostic Code 9411 is subsumed into the General Rating Formula for Mental Disorders (General Rating Formula).  Under the General Rating Formula, a 10 percent rating is warranted where there is occupational and social impairment due to mild or transient symptoms which decrease work efficiency and ability to perform occupational tasks only during periods of significant stress, or symptoms controlled by continuous medication. A 30 percent rating is warranted where there is occupational and social impairment with an occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks (although generally functioning satisfactorily, with routine behavior, self-care, and conversation normal), due to such symptoms as: depressed mood, anxiety, suspiciousness, panic attacks (weekly or less often), chronic sleep impairment, mild memory loss (such as forgetting names, directions, recent events).

A 30 percent evaluation is warranted for occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks (although generally functioning satisfactorily, with routine behavior, self-care, and conversation normal), due to such symptoms as: depressed mood, anxiety, suspiciousness, panic attacks (weekly or less often), chronic sleep impairment, mild memory loss (such as forgetting names, directions, recent events).

A 50 percent evaluation is warranted for occupational and social impairment with reduced reliability and productivity due to such symptoms as: flattened affect; circumstantial, circumlocutory, or stereotyped speech; panic attacks more than once a week; difficulty in understanding complex commands; impairment of short- and long-term memory (e.g., retention of only highly learned material, forgetting to complete tasks); impaired judgment; impaired abstract thinking; disturbances of motivation and mood; difficulty in establishing and maintaining effective work and social relationships.

A 70 percent rating is warranted for occupational and social impairment, with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood, due to such symptoms as: suicidal ideation; obsessional rituals which interfere with routine activities; speech intermittently illogical, obscure, or irrelevant; near-continuous panic or depression affecting the ability to function independently, appropriately and effectively; impaired impulse control (such as unprovoked irritability with periods of violence); spatial disorientation; neglect of personal appearance and hygiene; difficulty in adapting to stressful circumstances (including work or a worklike setting); inability to establish and maintain effective relationships.

A 100 percent evaluation is warranted where there is evidence of total occupational and social impairment due to such symptoms as gross impairment in thought processes or communication; persistent delusions or hallucinations; grossly inappropriate behavior; persistent danger of hurting self or others; intermittent inability to perform activities of daily living; disorientation to time or place; memory loss for names of close relatives, own occupation or own name.

One factor to be considered is the GAF score which is a scale reflecting the "psychological, social and occupational functioning on a hypothetical continuum of mental health-illness."  See Carpenter v. Brown, 8 Vet. App. 240, 242 (1995); see also Richard v. Brown, 9 Vet. App. 266, 267 (1996) [citing the American Psychiatric Association  's Diagnostic and Statistical Manual for Mental Disorders, Fourth Edition (DSM IV), page 32].  A GAF Score of 11 to 20 indicates that there is some danger of hurting oneself or others (e.g., suicide attempts without clear expectation of death; frequently violent; manic excitement), or an occasional failure to maintain minimal personal hygiene, or gross impairment in communication.  A GAF score of 21 to 30 indicates that behavior is considerably influenced by delusions or hallucinations, or serious impairment in communication or judgment (e.g., sometimes incoherent, acting grossly inappropriately, suicidal preoccupation), or an inability to function in almost all areas (e.g., stays in bed all day; no job, home, or friends).  A GAF Score of 31 to 40 indicates some impairment in reality testing or communication (e.g., speech at times illogical, obscure, or irrelevant), or where there is major impairment in several areas such as work or school, family relations, judgment, thinking, or mood (e.g., depressed man avoids friends, neglects family, and is unable to work).  A GAF of 41 to 50 indicates serious symptoms (e.g., suicidal ideation, severe obsessional rituals, frequent shoplifting) or any serious impairment in social, occupational, or school functioning (e.g., few friends, unable to keep a job).  A GAF of 51 to 60 indicates moderate symptoms (e.g., flattened affect and circumstantial speech, occasional panic attacks) or moderate difficulty in social, occupational, or school functioning (e.g., few friends, conflicts with peers or co-workers).  A GAF of 61 to 70 indicates some mild symptomatology (e.g., depressed mood and mild insomnia) or some difficulty in social, occupational, or social functioning (e.g., occasional truancy, or theft within the household), but generally functioning pretty well, with some meaningful interpersonal relationships.

While the Rating Schedule does indicate that the rating agency must be familiar with the DSM IV, it does not assign disability percentages based solely on GAF scores.  See 38 C.F.R. � 4.130.  Accordingly, GAF scores do not automatically equate to any particular percentage in the Rating Schedule.  Rather, they are but one factor to be considered in conjunction with all the other evidence of record.

At the outset, in addition to PTSD, the medical evidence reflects diagnoses of schizoaffective disorder, depressive type (at the November 2012 VA examination), anxiety disorder (at the June 2009 VA examination), and major depressive disorder.  Notably, a December 2005 VA mental health history report reflects a diagnosis of major depressive disorder, recurrent/moderate, and a July 2006 VA mental health attending note reflects a diagnosis of major depressive disorder , recurrent, with psychotic depression.  The June 2009 VA examiner opined that the anxiety disorder, not otherwise specified, is more likely than not associated with military service.  The June 2009 examiner also indicated that the Veteran is diagnosed with depressive disorder with psychotic features and personality disorder, which are both less likely than not associated with military service.  However, the examiner also indicated that the Veteran's stressful job during service on the flight deck of the USS Ranger caused intense fear that, as likely as not, mildly aggravated his personality pathology which lingers on, being reflected to some extent by his anxiety symptoms.  The June 2009 VA examiner also indicated that there is a component of his anxiety that manifested during military service and that the Veteran's occupational and social impairment are mainly caused by his personality disorder and psychotic features from his major depressive disorder.  The November 2012 VA examiner opined that the Veteran likely had depression prior to service; however, given the sensitivity and temperament of the Veteran, it is likely this condition was exacerbated.  The November 2012 VA examiner also determined that the Veteran's schizoaffective disorder is at least as likely as not incurred in the military service.  The Board notes that where it is not possible to distinguish the effects of a nonservice-connected condition from those of a service-connected condition, the reasonable doubt doctrine dictates that all symptoms be attributed to the Veteran's service-connected disability.  See Mittleider v. West, 11 Vet. App. 181 (1998).  Although the February 2012 and November 2012 VA examination reports indicate that it is possible to distinguish which symptoms are attributable to each separate psychiatric diagnosis, it has also been shown that the depression and schizoaffective disorder were exacerbated by or related to service.  As such, the Board finds that it has not been established that it is possible to distinguish the depression, anxiety and or schizoaffective symptoms from the Veteran's service-connected PTSD.  Consequently, all of his psychiatric symptoms have been considered in evaluating his service-connected PTSD.

The medical evidence of record includes a December 2005 VA mental health history report which notes that the Veteran reported being depressed for the last two years.  He reported feeling excessively angry and easily upset for the last seven months.  He also reported feeling excessively withdrawn for a few years.  His sleep is disturbed in that he has difficulty falling and staying asleep.  His libido has also decreased, as have his appetite and his interest in things.  His energy is low and his motivation is a problem.  He is feeling more anxious and is having occasional panic attacks.  He is disinterested in social activities.  He also complained that his concentration is off.  In the past he has had some thoughts about hurting his wife and brother, but does not have such thoughts now.  He also has symptoms such as flashbacks, hypervigilance, and avoidance of things that remind him of his military service.  He is detached from his surroundings and other people.  He occasionally has nightmares.  Although he feels like people are against him at times, no severe delusional ideation was noted or expressed.  It was noted that he was currently living with his second wife of seventeen years.  Mental status examination revealed that he was well-groomed and related well to the interviewer.  He was cooperative and engaged.  His speech was normal, his mood was depressed, and his affect was congruent with his mood.  His thought processes were coherent and goal-directed.  His thought content was negative for perceptual disturbances of delusional material; however, he has had some paranoid feelings in the past and has heard his name being called when no one was calling him.  He has also had visual hallucinations in the past, but not currently.  He has some vague passive suicidal thoughts with no plans or intention.  He has no history of violence.  He was alert and fully oriented.  His concentration and memory were intact.  He has good insight and judgment.  His GAF score was noted to be 48.  It was noted that his wife is supportive and his prognosis was good.

A January 2006 VA mental health attending note indicates that the Veteran has marked hyperarousal, irritability and anger problems.  He is isolative and does not have friends.  He has both numbing and avoidance symptoms.  He is depressed, anhedonic, and has passive suicidal thoughts.  He described episodic visual hallucinations of seeing a woman and a man in a wheelchair.  He was diagnosed with PTSD, chronic, military related, and major depressive disorder, recurrent, with psychotic features.

A February 2006 VA mental health PTSD assessment notes that the Veteran reported the following symptoms:  nightly nightmares, night sweats, sleep disturbance, depressed mood, reduced concentration and short-term memory, irritability, social avoidance, emotional detachment, startle response, and hypervigilance.  He reported that his PTSD symptoms are triggered by the sound of helicopters flying overhead, fireworks, and during the holidays.  The diagnosis was PTSD.  Another February 2006 VA mental health attending note indicates a diagnosis of PTSD, chronic, military related, and major depressive disorder, recurrent with psychotic features.

A February 2006 VA mental health attending note reflects that the Veteran continues to be depressed and withdrawn.  His sleep is variable and he continues to isolate in his own room.  He also continues to have video hallucinations but they have reduced to every other day.  He is anhedonic but does feel a little improvement from the medication.

A March 2006 VA mental health outpatient note indicates that the Veteran was seen for follow-up.  There were no psychotic symptoms or thoughts of suicide.  He continues to experience nightmares and night sweats.  His wife accused him of threatening to choke her two weeks earlier because he would not wash her car.  The police were called and they put hand cuffs on him, but then let him leave and go live with his brother for two days.  Mental status examination revealed that the Veteran was well-groomed, cooperative, easy to engage, not tearful, and had good eye contact.  His speech was normal and his behavior was cooperative.  His psychomotor activity was normal.  His mood was pleasant and dysphoric.  His affect was blunted.  His thought process was logical, coherent, and goal-directed.  His thought content was devoid of suicidal ideation, homicidal ideation, audiovisual hallucination, paranoid delusions, racing thoughts, mania, and looseness of associations.  He was fully alert and oriented.  His memory was intact (both recent and remote).  His concentration and insight were deemed fair.  The diagnosis was major depressive disorder, recurrent, severe with psychotic features, and PTSD.

A June 2006 VA mental health attending note indicates that the Veteran complained that he was worse.  He has nightmares every night with night sweats.  His anxiety remains high, and he often senses people sitting behind him.  He remains isolated and socially avoidant.  There is no suicidal or homicidal ideation.  He has been compliant with all medications.

A July 2006 VA mental health outpatient note indicates that the Veteran had no thoughts of suicide.  His mood was irritable.  He continues to want to be by himself and does not trust anyone.  He continues to have nightmares and anxiety.  Mental status examination revealed that the Veteran was well-groomed, cooperative, easy to engage, not tearful, and displayed good eye contact.  His speech was normal, his behavior was cooperative, and his psychomotor activity was normal.  His mood was dysphoric and his affect was restricted.  His thought processes were logical, coherent, and goal-directed.  His thought content was devoid of suicidal or homicidal ideation, audiovisual hallucinations, paranoid delusions, racing thoughts, mania, and looseness of associations.  He was alert and full oriented.  His recent and remote memory were intact.  His concentration was fair, as were his insight and judgment.  The diagnoses was major depressive disorder, recurrent, severe with psychotic PTSD.

A September 2006 VA mental health PTSD individual note indicates that the Veteran reported frequent intrusive thoughts about the past.  The diagnosis was PTSD.  There was no evidence of suicidal, homicidal or psychotic behavior.

An October 2006 VA mental health attending note indicates that the Veteran has severe PTSD.  The Veteran reported increased anger, intrusive thoughts, and irritability over the last couple of weeks.  He is isolating more and trusting less.  It was noted that he is afraid of his anger.  He has passive suicidal thoughts but no intent.  Depakote was added for mood stabilization.

A March 2007 VA mental health attending note indicates that the Veteran had no current suicidal or homicidal ideation.  He was noted to still be having stress related to his home environment.  His Depakote was increased.

A May 2007 VA mental health PTSD individual note indicates that the Veteran reported continued family stressors and anger problems.  Another May 2007 VA note indicates that the Veteran reported continuing to feel overwhelmed by his home situation.  He is only sleeping one hour a night and has been having nightmares most nights.  He reported one angry outburst.  He continues to feel overwhelmed with taking care of his step-grandchildren and not getting any financial support from his step-daughter, who is their mother.

A January 2008 VA mental health attending note indicates that the Veteran continues to feel dysphoric and overwhelmed.  There was no suicidal or homicidal ideation.  The Veteran reported that there was difficulty with his wife.  He was avoiding all arguments and stated that he does not have feelings for his wife anymore.  He reported that his family shows little concern for his health problems and a lack of respect.

A March 2008 VA mental health attending note indicates that the Veteran has been feeling better but more sedated with the increase in Depakote.  He has been much less irritable and has been able to let problems and issues slide.  It was noted that he had more affect and that he has been sleeping better.

A November 2008 VA social work note indicates that the Veteran reported having custody of his two grandchildren.  It was noted that his wife seems to be very supportive of him.

A February 2009 VA mental health PTSD note indicates that the Veteran reported family stressors.  He stated that his wife and stepdaughter argue frequently and he feels pressured to be drawn into the conflicts as a mediator.  He also reports that his own daughter has been having health problems and he reported being pressured by family to travel to where she is to provide care and assist her with applying for Social Security.  He reported that he is not physically able to travel to where she is and his limited energy is needed to manage his own multiple health problems.

A March 2009 VA treatment record reflects the Veteran's complaint of an increase in intrusive thoughts.  He reported continued family pressure to take responsibility for their healthcare.

A June 2009 VA mental health attending note indicates that the Veteran continues to feel depressed and hopeless.  He spends most of his time at home and his relationship with his wife has suffered.  He has been hearing voices at night but no command hallucinations.  His sleep is poor.  He does not have thoughts of suicide.  Mental status examination revealed that the Veteran was clean, neatly dressed, and well-groomed.  His behavior was cooperative and pleasant, and he had good eye contact.  His psychomotor activity was decreased and his speech was spontaneous, monotone, and at an appropriate volume and rate.  His mood was depressed and irritable.  His affect was blunted.  He was fully alert and oriented.  He had an appropriate level of concentration.  His recent and remote memory were intact.  His thought content was coherent, logical, and goal oriented.  There were no delusional or paranoid thoughts or suicidal ideation or intent.  In terms of perception, there was no evidence of any auditory or visual hallucinations.  His thought process was concrete, insight was limited, and judgment was fair.

A June 2009 VA examination report notes that the Veteran complained of seeing people in his house in the middle of the night, thinking that they are trying to kill him.  He breaks out in sweats and does not sleep or eat well.  He has nightmares about service stressors.  He also hears noises all night long.  The examiner stated that the Veteran appeared to be describing visual hallucinations.  He has nightmares that his wife is trying to kill him and feels that everyone is out to get him.  He recalled putting a gun to his head in January 1997.  He feels frightened 24 hours a day and feels that every day he becomes more withdrawn and does not trust anything.  He does not go out anywhere and just stays home.  He does not have anything to do with his children and just wants to be left alone and not associate with anyone.  The Veteran said that he hears voices of people arguing but he cannot make out what they are saying.  It is definitely more than one voice, and he hears the voices at his window at night.  When he gets up to look, there is never anyone there.  At times he hears voices asking him what he is living for or telling him that he might as well be dead.  He has a history of three marriages including his current marriage of 15 years.  His first marriage lasted seven years and produced two daughters.  His second marriage lasted almost ten years and produced one daughter.  He does not have children with his current wife.  He indicates that he is highly withdrawn and isolated, socially.  He avoids people as much as possible.  He spends his time mostly sleeping and resting.  He has minimal contact with his children and stated that he is estranged from his children at this time.  He indicated a disinterest in just about all activities.  He does not indicate an inability to perform these activities, but rather a lack of motivation to do so.  He spends most of his time at home alone.  Mental status examination revealed that his affect was flat, his speech volume was low, and his psychomotor functioning is reduced.  He appeared to have fair grooming and hygiene.  He was generally cooperative but he voiced distrust.  He had poor social skills.  His thought processes appeared clear, logical, goal directed, and coherent, and his thought content was preoccupied with feeling of betrayal by the VA and military in terms of abandonment and distrust of all people.  He exhibited serious paranoid ideation.  It was not clear to the examiner whether the paranoia reaches delusional intensity, but the Veteran stated that he feels that everyone wants to harm him and he thinks someone wants to kill him.  He did not identify a specific person or group that is out to get him.  The examiner stated that the Veteran exhibits auditory and visual hallucinations.  He stated that he routinely sees a woman in a white dress and a man in a wheelchair in his home.  His wife, other family members, and visitors in the home have reportedly never seen these people.  The Veteran also hears voices sometimes.  At times the voices sound like they are arguing, sometimes they tell him that he might as well be dead, and at other times the voices ask him what he is living for.  He endorsed suicidal ideation with no imminent plan or intent.  He was fully oriented.  He evidenced impaired attention and concentration, impaired short-term memory, and impaired social judgment.  He appeared to have intact abstract reasoning.  He endorsed intrusive and disturbing recollections about his service, but he is also preoccupied with the negative treatment that he perceives he is receiving from everyone.  He endorsed considerable psychological distress and severe depression.  He avoids people and feels he cannot trust anyone.  He has auditory hallucinations of voices arguing and voices telling him that he might as well be dead.  He is socially withdrawn and isolated.  He is detached from others and exhibits poor social skills.  He reported problems with irritability, anger, concentration, and paranoia.  He feels disappointed, let down, depressed, and distressed about his VA claim.  The examiner diagnosed the Veteran with major depressive disorder with psychotic features, anxiety disorder with PTSD, and personality disorder not otherwise specified with paranoid and schizoid features.  The examiner opined that the major depressive disorder and personality disorder were less likely than not associated with military service and the anxiety disorder with PTSD was more likely than not associated with military service.  The Veteran's current GAF was noted to be 38.  The examiner indicated that the Veteran is a very poorly adjusted individual with serious depression, psychotic symptoms and personality pathology.  These factors are the main source of the Veteran's general maladjustment.  The examiner felt it is unlikely that they were brought on by his military service.  However, the examiner stated that there is a component of anxiety in the Veteran's pathology that manifested during his military service, as reflected in extreme fears about death and dying while in service.  The examiner believes that the Veteran's military service is not the main source of his mental illness.  However, the examiner also indicated that the Veteran's stressful job on the flight deck of the USS Ranger as likely as not mildly aggravated his personality pathology, and is reflected in his anxiety symptoms.  The examiner stated that the Veteran's occupational and social impairment are mainly caused by his personality disorder and psychotic features from his major depressive disorder.

An August 2009 VA mental health PTSD individual note reflects that the Veteran reported difficulty sleeping, intrusive thoughts, and headaches.  No suicidal, homicidal, or psychotic behavior was evidenced.  Another August 2009 VA mental health PTSD individual note reflects that the Veteran has difficulty sleeping and eating.  He also has anxiety and nightmares of close calls related to his in-service duties.  No suicidal, homicidal, or psychotic behavior was evidenced.  An August 2009 VA mental health attending note reflects that the Veteran also reported depression and hopelessness.  Mental status examination revealed that the Veteran was clean and neatly dressed.  He was well groomed and his behavior was appropriate and pleasant.  He had good eye contact and decreased psychomotor activity.  His speech was noted to be spontaneous, monotone, and appropriate in terms of volume and rate.  His mood was depressed and irritable.  His affect was blunted.  He was fully alert and oriented.  There was an appropriate level of concentration and his memory was intact.  His thought content was coherent, logical, and goal oriented.  There were no delusional or paranoid thoughts, nor were there suicidal or homicidal ideation/intent.  There was no evidence of auditory or visual hallucinations.  His thought process was concrete, his insight was limited, and his judgment was fair.  The diagnosis was major depressive disorder, recurrent, severe with psychotic features and PTSD.

A February 2011 VA examination report indicates that the Veteran was then currently married to his third wife, but indicated that they are essentially separated, as she is seeing someone else.  He has three adult children, two of whom do not want anything to do with him.  He is in touch with one daughter and they are generally close, although they do not see each other much.  His separation from his wife is very hurtful; he believes her unfaithfulness will end the relationship.  He thinks she was trying to kill him and had nightmares about it.  He stated that he does not have any social relationships.  For leisure and recreation, he watches TV and sleeps.  He does not drink alcohol and does not use illegal drugs.  He stated that he has never attempted suicide and he indicated that he pulled a gun on his stepdaughter's husband after he grabbed the Veteran's arm.  On examination there was no impairment of thought process or communication.  The Veteran expressed that he experiences audiovisual hallucinations.  He made appropriate eye contact and was cooperative during the examination.  The Veteran denied suicidal or homicidal thoughts, ideations, plans, or intent.  His ability to maintain minimal personal hygiene and perform other basic activities of daily living was intact.  He was fully oriented.  He believes his memory is worse than his peers, but it does not impair his activates of daily living.  He denied obsessive or ritualistic behavior that interferes with routine activities.  His rate and flow of speech were within normal limits.  He denied panic attacks.  He described his mood as extremely depressed.  He stated that he is verbally impulsive and has sleep impairment.  He has diminished interest in activities, feels detached from others, has difficulty failing or staying asleep, irritability or outbursts of anger, and avoids thoughts or feelings associated with military service.  The Veteran experiences depressed mood daily, diminished interest or pleasure in activities, insomnia or hypersomnia, fatigue, loss of energy, feelings of worthlessness/guilt, and poor concentration/indecisiveness.  The diagnoses were major depression with psychotic features and PTSD.  The Veteran's GAF score was noted to be 40.  The examiner opined that the Veteran's depression, psychosis and PTSD are at least part of the reason why he cannot work.  His mental health difficulties make it impossible for him to find work, follow directions, and work with others.  His self care is generally intact.  He states that his symptoms have affected his current marriage because he is completely withdrawn emotionally and does not socialize; he is also paranoid about his wife's intentions toward him.  He does not associate with others and is alone most of the time.  In terms of recreation, he is extremely limited by health and mental health problems, and does not trust others.  The examiner opined that the Veteran's PTSD and depression make him unemployable and that he is totally occupationally and socially impaired due to his PTSD symptoms.  The examiner noted that the claims file was reviewed.

A February 2012 VA examination report reflects that the Veteran suffers from the following symptoms solely due to his PTSD:  anxiety and avoidance of thoughts/feelings of trauma.  The symptoms solely associated with his major depression with psychotic features are as follows:  visual and auditory hallucinations, nightmares, flat affect, psychomotor retardation, preoccupation with feelings of betrayal, paranoid ideation, and poor social judgment.  The shared symptoms are memory loss (not impairing) dysphoria, insomnia, anhedonia, emotional isolation, irritability, fatigue, poor concentration, social isolation, suspicion, and suicidal ideation without imminent plan or intent.  The examiner opined that the PTSD causes a relatively minor part of the psychosocial impairment.  Instead, his major depression with psychotic features causes the overwhelming majority of the Veteran's impairment.  The examiner reviewed the Veteran's claims file.

A November 2012 VA examination report notes that the Veteran is diagnosed with PTSD and schizoaffective disorder, depressive type.  The examiner stated that the Veteran likely had depression prior to military service.  However, given the sensitivity and temperament of the Veteran, it is likely that the depression was exacerbated.  The Veteran started to hear voices of people murmuring and some voices told him he was going to die.  The Veteran indicated that he tends to talk to his television because he says it listens.  He also hears voices that tell him he can do better and he will find a woman.  It was further noted that he was groomed and dressed appropriately.  He was fully oriented, had a calm demeanor, and made good eye contact.  He was cooperative, responded to the interviewer, and had friendly mannerisms.  He described his mood as all right, and the examiner opined that the Veteran appeared content.  His affect was slightly restricted and it did not fluctuate.  He evidenced limited to fair insight and judgment.  His thought processes were linear but he has some loose cognitive associations as well (in that his speech was disorganized).  When explaining events and incidents, he sometimes explained incidents out of order.  At best, his thought processes appeared discombobulated at times.  His rate of speech and tone were average.  His long-term memory appeared intact.  He reported short-term memory problems, concentration problems, and attention problems, which the examiner attributed to depression.  Currently the Veteran has no suicidal or homicidal ideation.  He also denied current audio or visual hallucinations.  However, he has a history of reporting auditory hallucinations.  He did report that he continues to hear voices telling him that he can do better.  He exhibited paranoia symptoms and suspiciousness that the examiner felt were more part of his schizoaffective disorder that his PTSD.  However, the examiner felt that the Veteran's statement that he feels as though someone is standing over him all the time is attributable to both his PTSD and schizoaffective disorder.  The examiner attributed the following symptoms to the schizoaffective disorder, depressive type, diagnosis:  paranoia, suspiciousness, worthlessness, near continuous depression/sadness, fatigue/no energy, interest deficits, passive suicidal ideation, and auditory hallucinations.  The examiner felt that the following symptoms are related to his PTSD:  recurrent nightmares and dreams of military experiences; efforts to avoid activities or places reminding him of Vietnam, efforts to avoid thoughts or feelings associated with Vietnam, feeling detached from others, difficulty falling or staying asleep, feeling easily startles, exaggerated startle response, hypervigilance, irritability, and anger outbursts.  The examiner stated that the following symptoms are attributable to both diagnoses:  inability to make or maintain effective relationships, and difficulty adapting to stressful circumstances.  The examiner stated that the Veteran suffers from occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking and/or mood.  The examiner stated that the Veteran's GAF score for his schizoaffective disorder was 40 and his GAF score for his PTSD was 54.  It was noted that the Veteran has been married three times and has adult children.  He currently lives alone and his third wife and he split up over the last year.  His main social support system is VA.  Otherwise, he has family he rarely talks to.  He reported being consistently paranoid about people around him and lacking the capacity to form new relationships.  The Veteran has a history of being suspicious and believing people are out to get him or kill him.  He stated that he has seen people in his house.  He also described auditory hallucinations involving people arguing.  He also hears voices telling him he might as well be dead, or asking him what he is living for.  He reported regular nightmares, chronic sleep problems, night sweats, suspiciousness, daily depression, and recurrent thoughts of suicidal ideation with plan.  He stated that he has medical issues that are stressors which can exacerbate his depression.  He has daily sadness, worthlessness, and lack of motivation or energy.  Regardless of whether depression is present, his audiovisual hallucinations are always consistent.  He exhibits recurrent nightmares; efforts to avoid activities, places or people that around recollections of the trauma; feelings of detachment or estrangement from others; restricted range of affect; difficulty with sleep; hypervigilance; exaggerated startle response; depressed mood; anxiety; suspiciousness; near continuous panic or depression affecting the ability to function independently, appropriately and effectively; difficulty establishing and maintaining effective work and social relationships; chronic sleep impairment; mild memory loss such as forgetting names, directions or recent events; difficulty in adapting to stressful circumstances; and inability to establish and maintain effective relationships.  The examiner opined that the Veteran's PTSD diagnosis is not his primary problem.  However, the examiner also determined that his schizoaffective disorder is at least as likely as not incurred in the military service.  The examiner based the opinion on the Veteran's self-report that he had no audiovisual hallucinations prior to service.  The examiner indicated that the Veteran's claims file was reviewed.

Based on the evidence, and resolving all doubt in the Veteran's favor, the Board finds that his PTSD symptoms more nearly approximate the criteria for a 70 percent disability rating for the time period prior to June 19, 2009, and more nearly approximate a 100 percent rating beginning on that date.

In reaching this decision, the Board notes that the criteria for a 70 percent disability rating for PTSD are met if there are deficiencies in most of the areas of work, school, family relations, judgment, thinking, and mood.  See Bowling v. Principi, 15 Vet. App. 1, 11-14 (2001).

The Veteran was not employed during this time period but there is evidence of concentration problems, irritability, anger problems, reduced short term memory, and isolation.  There is also evidence of deficiencies in the area of family relations, as he has consistently reported being detached.  Although he was living with his wife for a portion of this time period, the Veteran was noted to be isolative and in March 2006 he and his wife were involved in an altercation which resulted in the police being called.  It was also noted that he was having stressors at home.  He does not have any friends, was not interested in social activities, and only wanted to be by himself.

Deficiencies in terms of thinking have also been demonstrated for this time period.  The medical evidence shows that the Veteran's PTSD signs and symptoms result in deficiencies in the areas of thinking as evidenced by his disturbed sleep, paranoid feelings, audio and visual hallucinations, and intrusive thoughts.  The VA treatment records show the Veteran's thought processes have generally been normal throughout this time period.  However, the record also reflects that he has some concentration problems and visual and auditory hallucinations.  The records further reflect that the Veteran has endorsed suicidal ideation, and has displayed impaired impulse control.  Thus, the evidence reflects some level of deficiency in his thinking.

There is also evidence of deficiencies in the area of judgment and mood.  The VA treatment records reflect that the Veteran's PTSD signs and symptoms result in deficiencies in mood as evidenced by his irritability.  The VA treatment records also show the Veteran reported feeling angry and paranoid.  He has also consistently reported marked social avoidance and a markedly diminished interest and participation in activities.  This is evidence of a deficiency in his mood.

Moreover, the Board notes that the Veteran's GAF score of 48 in December 2005 is indicative of serious impairment.

In short, the evidence reflects that for the time period prior to June 19, 2009, the Veteran has deficiencies in most of the areas of work, family relations, judgment, thinking, and mood due to his service-connected PTSD.  Accordingly, the criteria for a 70 percent disability rating have been met for the period prior to June 19, 2009.

A higher, 100 percent rating for the time period prior to June 19, 2009 is not warranted, however.  In this regard, the evidence does not show that the social and occupational impairment from the Veteran's PTSD is total.  The Board recognizes that the Veteran was not employed during this time.  However, a March 2002 VA examination report reflects that the Veteran was then currently unemployed and unemployable due to his heart disease.  The evidence for this time period does not specifically show that the Veteran was totally occupationally impaired due to his PTSD.  Importantly, his speech was consistently normal, his thought processes were consistently coherent and goal directed, and his thought content was consistently negative for perceptual disturbances or delusional material at the time of examination.  Additionally, the Veteran was not totally socially impaired during this time period.  For example, the December 2005 VA examiner indicated that the Veteran's wife was supportive and his prognosis was good.  The Veteran was married and living with his wife, who was again noted to be supportive in November 2008.  He was also noted to be taking care of his grandchildren during this time period.  Although he was noted to be anhedonic and he definitely isolated himself, during VA examinations, he was cooperative, pleasant, and easy to engage.  He was also in contact with and involved with his family members during this time.  In sum, the Veteran's PTSD is severe during the time period prior to June 19, 2009, and it caused severe occupational and social impairment, but it did not cause total social or occupational impairment because the evidence does not show that his PTSD preclude him from working or taking care and relating to his family members.

For the time period beginning on June 19, 2009, the Board finds that a higher, 100 percent rating is warranted for the Veteran's PTSD.  In this regard, the evidence for this time period shows total social and occupational impairment due to signs and symptoms of PTSD.  For example, the June 2009 VA examiner noted that the Veteran was estranged from his children.  Specifically, it was noted that he does not want anything to do with his children.  In addition to his being detached from others, he was described by the examiner as exhibiting poor social skills.  It was also noted that he spends his time sleeping and resting.  Although he was still currently married, he had ongoing nightmares that his wife is trying to kill him, and his GAF score was noted to be 38 representing a higher level of impairment.  The Board finds this to be an increase in the social impairment as compared to the previous time period.  In this regard, prior to June 19, 2009 the Veteran described taking care of his step-children, living with his wife, taking on a mediator role between his wife and step-daughter, and being involved in the discussion of health care of his own daughter.  Those social involvements were not described for the time period beginning on June 19, 2009.  The medical evidence for the time period beginning on June 19, 2009 further notes that the Veteran now routinely has auditory and visual hallucinations, impaired attention, concentration, short-term memory and impaired social judgment.  Moreover, the February 2011 VA examiner noted that the Veteran and his third wife were essentially separated and were not living together.  As the evidence now shows complete isolation and that the Veteran is living completely by himself, wanting nothing to do with his children, the Board finds that the evidence shows total social impairment.

With respect to occupational impairment, the February 2011 VA examiner opined that the Veteran's depression, psychosis, and PTSD are at least part of the reason why he cannot work.  Importantly, the examiner opined that the Veteran's mental health difficulties make it impossible for him to find work, follow directions, and work with others.  The examiner opined that the Veteran's PTSD and depression make him unemployable, and that he is totally occupationally and socially impaired due to his PTSD.  The Board recognizes that the November 2012 VA examiner indicated that the Veteran only suffered from occupational and social impairment with deficiencies in most areas such as work, family relations, judgment, thinking and/or mood, this examiner also distinguished symptoms between the Veteran's PTSD and schizoaffective disorder.  As previously noted, the Board is considering all of the Veteran's psychiatric symptoms in rating his service-connected PTSD.  See Mittleider, 11 Vet. App. 181 (1998).

The medical evidence for the time period beginning on June 19, 2009 also reflects that the Veteran experiences many of the symptoms set forth under the criteria for a 100 percent rating, such as gross impairment in thought processes or communication and persistent delusions or hallucinations.  Such symptoms, along with the Veteran's GAF scores of 38, 40, and 54, and the opinion of the February 2011 VA examiner stating that the Veteran is totally socially and occupationally impaired due to his PTSD, the Board finds that a 100 percent rating is warranted for this time period.

      Extraschedular Consideration Prior to June 19, 2009

An exceptional or unusual disability picture occurs where the diagnostic criteria do not reasonably describe or contemplate the severity and symptomatology of a veteran's service-connected disability.  Thun v. Peake, 22 Vet. App. 111, 115 (2008).  If there is an exceptional or unusual disability picture, then the Board must consider whether the disability picture exhibits other factors such as marked interference with employment and frequent periods of hospitalization.  Id. at 115-116.  When those two elements are met, the appeal must be referred for consideration of the assignment of an extraschedular rating to the Chief Benefits Director or the Director, Compensation and Pension Service, for consideration of an extraschedular evaluation.  38 C.F.R. � 3.321(b) (1) (2012).  Otherwise, the schedular evaluation is adequate, and referral is not required.  Thun, 22 Vet. App. at 116.

The Board finds that the schedular rating for the Veteran's PTSD is adequate for the time period prior to June 19, 2009.  A rating in excess of the assigned rating is provided for a higher level of severity of PTSD, but such a rating is for certain manifestations which the medical evidence reflects are not present in the Veteran's clinical picture.  The diagnostic criteria also adequately describe the severity and symptomatology of the Veteran's PTSD.  The record does not reflect that the Veteran has required hospitalization for treatment of his PTSD.  The VA treatment records do not reflect that the Veteran's PTSD markedly interferes with employment or that he is unemployed due to his PTSD.  Therefore, the Veteran's disability picture is contemplated by the Rating Schedule; no extraschedular referral is required for the time period prior to June 19, 2009.  In sum, the record does not reflect that the Rating Schedule is inadequate to contemplate the manifestations of his PTSD.  Thus, no extraschedular referral is required for the time period prior to June 19, 2009.

      Service Connection for Diabetes Mellitus

Service connection may be established for disability resulting from personal injury suffered or disease contracted in line of duty in the active military, naval, or air service.  38 U.S.C.A. �� 1110, 1131.  That an injury or disease occurred in service is not enough; there must be chronic disability resulting from that injury or disease.  If there is no showing of a resulting chronic condition during service, then a showing of continuity of symptomatology after service is required to support a finding of chronicity.  38 C.F.R. � 3.303(b).  Service connection may also be granted for any injury or disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease or injury was incurred in service.  38 C.F.R. � 3.303(d).  Other specifically enumerated disorders, including diabetes mellitus, will be presumed to have been incurred in service if manifested to a compensable degree within the first year following separation from active duty.  38 U.S.C.A. �� 1101, 1112, 1113; 38 C.F.R. �� 3.307, 3.309.

In Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013), the Federal Circuit held that the theory of continuity of symptomatology can be used only in cases involving those conditions explicitly recognized as chronic in 38 C.F.R. � 3.309(a).  Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013).

In relevant part, 38 U.S.C.A. � 1154(a) requires that VA give 'due consideration' to 'all pertinent medical and lay evidence' in evaluating a claim for disability benefits. In order to establish direct service connection for a disorder, there must be (1) competent evidence of the current existence of the disability for which service connection is being claimed; (2) competent evidence of a disease contracted, an injury suffered, or an event witnessed or experienced in active service; and (3) competent evidence of a nexus or connection between the disease, injury, or event in service and the current disability.  Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. Sept. 14, 2009); cf. Gutierrez v. Principi, 19 Vet. App. 1, 5 (2004) (citing Hickson v. West, 12 Vet. App. 247, 253 (1999)).  In many cases, medical evidence is required to meet the requirement that the evidence be "competent."  However, when a condition may be diagnosed by its unique and readily identifiable features, the presence of the disorder is not a determination "medical in nature" and is capable of lay observation.  Barr v. Nicholson, 21 Vet. App. 303, 309 (2007).

Competent medical evidence means evidence provided by a person who is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions.  Competent medical evidence may also mean statements conveying sound medical principles found in medical treatises. It would also include statements contained in authoritative writings such as medical and scientific articles and research reports or analyses.  38 C.F.R. � 3.159(a)(1).  Competent lay evidence means any evidence not requiring that the proponent have specialized education, training, or experience.  Lay evidence is competent if it is provided by a person who has knowledge of facts or circumstances and conveys matters that can be observed and described by a lay person.  38 C.F.R. � 3.159(a)(2).

In addition to the aforementioned principles of service connection, a veteran who, during active naval service, served in the Republic of Vietnam during the Vietnam era (beginning in January 1962 and ending in May 1975) shall be presumed to have been exposed during such service to certain herbicide agents, including an herbicide commonly referred to as Agent Orange.  38 U.S.C.A. � 1116(f).  If a veteran was exposed to certain herbicides during active service, diabetes mellitus type II will be presumed to have been incurred in service if manifest to a compensable degree, even if there is no record of such disease during service.  38 U.S.C.A. � 1116(a)(1), (2); 38 C.F.R. �� 3.307(a)(6), 3.309(e).

"Service in the Republic of Vietnam" includes service in the waters offshore and service in other locations if the conditions of service involved duty or visitation in the Republic of Vietnam, that is, within the land borders, including the inland waters, of Vietnam.  38 C.F.R. � 307(a) (6) (iii); Haas v. Peake, 525 F. 3d 1168, 1193-95 (Fed. Cir. 2008).  A Veteran who never went ashore from a ship on which he served in Vietnamese coastal waters is not entitled to presumptive service connection due to alleged herbicide exposure.  Haas, 525 F.3d at 1193-1194.  See also VAOPGCPREC 7-93 (holding that service in Vietnam does not include service of a Vietnam era Veteran whose only contact with Vietnam was flying high-altitude missions in Vietnamese airspace); and VAOPGCPREC 27-97 (holding that mere service on a deep-water naval vessel in waters off shore of the Republic of Vietnam is not qualifying service in Vietnam).  In addition, the Federal Circuit in Haas held that "service in Vietnam" will not be presumed based upon the Veteran's receipt of a Vietnam Service Medal (VSM).  Haas, 525 F.3d at 1196  .

With regard to inland waterways, in order for the presumption of herbicide exposure to apply, qualifying service in the Republic of Vietnam includes service on the inland waterways, but does not include mere service on a deep-water naval vessel in the waters offshore under 38 C.F.R. � 3.307(a) (6) (iii).  See Haas, 525 F.3d at 1187-1190; 66 Fed. Reg. 23,166 (May 8, 2001); VAOPGCPREC 27-97.  "Inland waterways" are not defined in VA regulations; however, the Board may refer to the VA Adjudication Procedure Manual for interpretive guidance.  Inland waterways include rivers, canals, estuaries, and delta areas, such as those on which the Vietnam "brown water" Navy operated.  VA Adjudication Procedure Manual M21-1MR, pt. IV, subpt. ii, ch. 2, � C.10.k.  Service aboard a ship that anchored in an open deep-water harbor, such as Da Nang, Vung Tau, or Cam Ranh Bay, along the Vietnam coast, does not constitute inland waterway service or qualify as docking to the shore.  Id.

If the Veteran did not serve in the Republic of Vietnam during the Vietnam era, actual exposure to herbicides must be verified through appropriate service department or other sources in order for the presumption of service connection for a herbicide-related diseased under 38 C.F.R. � 3.309 (e) to be applicable.  Exposure to herbicides is not presumed in such instances.  However, once exposure to herbicides has been established by the evidence of record, the presumption of service connection found in 38 C.F.R. � 3.309(e)  for herbicide-related diseases is applicable.

Whenever VA's Secretary determines, on the basis of sound medical and scientific evidence, that a positive association exists between (A) the exposure of humans to an herbicide agent, and (B) the occurrence of a disease in humans, the Secretary shall prescribe regulations providing that a presumption of service connection is warranted for that disease.  38 U.S.C.A. � 1116(b)(1).

The Secretary of Veterans Affairs has determined that there is no positive association between exposure to herbicides and any other condition for which the Secretary has not specifically determined that a presumption of service connection is warranted.  See Notice, 59 Fed. Reg. 34 -346 (1994); see also Notice, 61 Fed. Reg. 41,442-449 (1996).

Where the evidence does not warrant presumptive service connection, the Federal Circuit has determined that an appellant is not precluded from establishing service connection with proof of direct causation.  Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994).

The Veteran claims that he has diabetes mellitus type II as a direct result of his being exposed to Agent Orange in Vietnam.  Current VA treatment records reflect that the Veteran is diagnosed with diabetes mellitus type II.

The Veteran's DD Form 214 reflects that he served in the U.S. Navy and his last duty assignment was aboard the USS Ranger (CVA-61).  It also reflects that he was awarded the Vietnam Service Medal (VSM).  His service personnel records note that he served aboard the USS Ranger from March 1972 to March 1974.

The Veteran has not claimed that he ever set foot on the land mass of Vietnam; nor does he claim that he served in the inland or brown waters of Vietnam.  Instead, in a June 2008 written statement, the Veteran indicated that he never set foot in Vietnam.  The record also contains a July 2008 response to a request for information (3101) which indicates that the USS Ranger (CVA-61) was in the official waters of Vietnam from December 9, 1972 to January 3, 1973, from January 14, 1973 to January 30, 1973, and from February 1, 1973 to February 6, 1973.  However, the document indicates that there is no conclusive proof that the Veteran had in-country service.  Moreover, the United States Army and Joint Services Records Research Center (JSRRC) issued a formal finding memorandum in August 2011 stating that there is no evidence that the Veteran served in the Republic of Vietnam.

Thus, the Veteran has denied that he ever set foot in Vietnam, and there is no other evidence of record suggesting that he did.  The Board notes that, as to what constitutes inland waters, VA's Compensation and Pension Service indicated in a December 2008 Bulletin that Da Nang Harbor and all other harbors along the Vietnam coastline are considered to be part of the offshore "blue water" of Vietnam and not part of the inland waterway system or "brown water" of Vietnam.  The Bulletin further states that inland brown water service in Vietnam refers to operations on rivers, estuaries, and delta areas inside the country itself.  The Veteran has not claimed that his ship ever traveled up a river or other waterway within Vietnam.  Moreover, a January 2010 Compensation and Pension Bulletin lists information regarding vessels identified as traveling in the "brown waters" of Vietnam; the USS Ranger (CVA-62), the Veteran's ship, is not among those listed.

Consequently, the weight of the evidence is against a finding that the Veteran set foot in Vietnam or was on an inland waterway.  There is no evidence of record suggesting otherwise.

The Veteran has not suggested any other theory by which he believes he had contact with Agent Orange during service.  In any event, the Board notes that lay witnesses are competent to opine as to some matters of diagnosis and etiology, and the Board must determine, on a case by case basis whether the subject of the Veteran's testimony is one as to which lay testimony is competent.  See Kahana v. Shinseki, 24 Vet. App. 428, 433 (2011) (noting impropriety of the Board categorically discounting lay testimony and requiring the Board to determine, on a case by case basis, whether a veteran's particular disability is the type of disability for which lay evidence is competent); Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009) (Board's categorical statement that "a valid medical opinion" was required to establish nexus, and that a layperson was "not competent" to provide testimony as to nexus because she was a layperson, conflicts with Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007)); Jandreau, 492 F.3d at 1377 ("sometimes the layperson will be competent to identify the condition where the condition is simple, for example a broken leg, and sometimes not, for example, a form of cancer").

In this case, the Board finds that the subject of whether Agent Orange could cause diabetes other than that recognized by the applicable regulation as warranting a presumption of herbicide exposure (and a consequent presumption of service connection of certain listed diseases likely to have occurred from such exposure) is the type of internal, non-observable medical process as to which lay testimony is not competent.  Cf. Jandreau, 492 F.3d at 1376 (lay witness capable of diagnosing dislocated shoulder); Barr, 21 Vet. App. at 308-309 (lay testimony is competent to establish the presence of varicose veins); Falzone v. Brown, 8 Vet. App. 398, 403 (1995) (lay person competent to testify to pain and visible flatness of his feet); Woehlaert v. Nicholson, 21 Vet. App. 456, 462 (2007) (unlike varicose veins or a dislocated shoulder, rheumatic fever is not a condition capable of lay diagnosis).  Thus, any suggestion by the Veteran that there was any other means of exposure to Agent Orange during his service aboard the USS Ranger in the blue waterways of Vietnam which caused his diabetes is not competent.

The Board emphasizes that the appellant is not entitled to a presumption of exposure and he has not established a credible factual foundation for establishing exposure to Agent Orange at any time.  Merely reporting that he was exposed to Agent Orange during his service in Vietnam does not establish in country service or exposure to herbicides.

Finally, while the Board is required to review all issues reasonably raised from a liberal reading of the record, when there is, "no evidentiary support for a particular theory of recovery," the Board need not consider such theory.  Robinson v. Shinseki, 557 F.3d 1355, 1361 (Fed. Cir. 2009).  In this case, there is no evidentiary support for any theory of entitlement to service connection other than service connection on the basis of herbicide exposure.  In any event, the lay and medical evidence reflects that diabetes did not manifest in service, the Veteran's endocrine system was normal at the March 1974 separation examination, and diabetes was not diagnosed until 2008, well outside the one-year presumptive period.  There is also no claim or evidence that diabetes is related to service other than the Veteran's argument that it was due to Agent Orange exposure as discussed above and the Veteran has never alleged that diabetes mellitus began during active service.

In sum, the weight of the evidence does not demonstrate that the Veteran visited or served within the land borders or internal waterways of Vietnam.  Therefore, exposure to herbicides is not presumed.  There is also no evidence of record to show that the Veteran was actually exposed to herbicides in service.  Moreover, there is no competent evidence of record linking the current diabetes mellitus, type II, first shown decades after active duty, to any incident of service.   In view of the foregoing, the preponderance of the evidence is against the claim for service connection for diabetes mellitus, type II, and the benefit-of-the-doubt doctrine does not apply.  38 U.S.C.A. � 5107(b) .

ORDER

Entitlement to a rating of 70 percent for PTSD for the time period prior to June 19, 2009 is granted, subject to the criteria governing the award of monetary benefits.

Entitlement to a rating of 100 percent for PTSD for the time period beginning on June 19, 2009 is granted, subject to the criteria governing the award of monetary benefits.

Entitlement to service connection for diabetes mellitus is denied.

REMAND

Although the Board regrets the additional delay, a remand is necessary to ensure that due process is followed and that there is a complete record upon which to decide the Veteran's remaining claim so that he is afforded every possible consideration.  38 U.S.C.A. � 5103A; 38 C.F.R. � 3.159.

In the February 2006 Board remand, the RO was instructed to afford the Veteran a VA examination in order to determine the nature and etiology of any disability affecting the knees.  The examiner was requested to provide an opinion as to the diagnosis, date of onset, and etiology of any current right and left knee disability.  The examiner was specifically requested to state whether there is a 50 percent or greater probability that any current knee disability had its onset during active service or is related to any in-service disease or injury.  The examiner was then asked, if it was determined that a chronic knee disability had its onset prior to active service, whether the disability increased in severity during service as evidenced by treatment in 1971 and 1973.  Then, if it was determined that there was an increase in severity, the examiner was requested to determine whether it was due to the natural progression of the condition or whether it was aggravated beyond its natural progression.

The Veteran underwent a VA examination in April 2010.  The report of that examination notes that the Veteran reported that he developed pain and swelling in his knees when he was 16 years old and did not see a physician.  He indicated that he was told by his parents that he had arthritis and that it ran in the family.  He was treated with liniments and Anacin and the knees got better.  He indicated that he was able to join the Navy in 1971 and during service he had intermittent pain in his knees.  After discharged, he continued to have progressive pain in his knees.  The examiner diagnosed the Veteran with degenerative arthritis of the knees.  The examiner stated that there is no evidence that it increased during service.  The examiner noted that the Veteran reported having arthritis prior to service, but the examiner felt that it was probably Osgood-Schlatter's disease.  The examiner then went on to state that the increase in severity represents the aging process with wear and tear.  Then, the examiner opined that the Veteran's degenerative arthritis is less likely than not related to his military service.

If VA undertakes the effort to provide the Veteran with a medical examination, it must ensure that such exam is an adequate one.  See Barr v. Nicholson, 21 Vet. App. 303, 312 (2007).  A medical opinion must support its conclusion with an analysis the Board can consider and weigh against other evidence in the record.  Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007).  Furthermore, a medical examination report must contain not only clear conclusions with supporting data, but also a reasoned medical explanation connecting the two.  Nieves- Rodriguez v. Peake, 22 Vet. App. 295 (2008).  Here, the VA examiner appears to provide contradictory opinions regarding whether there was an increase in severity (and of what disability) during service, the examiner does not clearly address the question posed regarding whether there was a chronic knee disability prior to service, the examiner did not discuss the specific service treatment records showing knee complaints, and the examiner did not provide an adequate rationale for the opinions.  Therefore, a remand is required for a medical opinion which addresses the questions posed, which is based upon review and discussion of the Veteran's documented medical history, and which includes a complete rationale.

Ongoing VA treatment records should also be obtained.  38 U.S.C.A. � 5103A(c) (West 2002); see also Bell v. Derwinski, 2 Vet. App. 611 (1992) (VA medical records are in constructive possession of the agency, and must be obtained if the material could be determinative of the claim).

Accordingly, the case is REMANDED for the following action:

1.  Obtain copies of all VA treatment records from the VA North Texas Healthcare System dating from July 2012 to the present and associate them with the claims file.

2.  Return the claims file to the April 2010 VA examiner or suitable substitute.  The claims file must be made available to the examiner in connection with the examination.  The examiner should then offer an opinion as to the following:

Whether there is clear and unmistakable evidence (obvious and manifest) that any currently diagnosed right and/or left knee disability, existed prior to active service and, if so, whether there is clear and unmistakable evidence (obvious and manifest) that it was not aggravated beyond its natural course during active service.

If there is not clear and unmistakable evidence that a currently diagnosed right and/or left knee disability existed prior to active service, is it at least as likely as not (a 50 percent probability or more) that it is related to active service?

The examiner should discuss any pertinent service treatment records, to include the service entrance examination showing normal lower extremities, the report of medical history for service entrance showing no complaints of trick or locked knee, the separation examination showing normal extremities, the October 1971 service treatment record reflecting muscle strain in the right knee, the December 1971 service treatment record noting complaints of knee pain for two to three years and hurting the right leg playing football, and the November 1973 service treatment record showing complaints of tightness in his knees, normal range of motion, and a diagnosis of polyarthralgia.

All stated opinions should be supported by a clear rationale, and should include a discussion of the specific evidence on which the opinion is based.

3.  Once the above actions have been completed, the RO/AMC must re-adjudicate the Veteran's claim.  If the benefit sought on appeal remains denied, a supplemental statement of the case must be provided to the Veteran and his representative.  After they have had an adequate opportunity to respond, the appeal must be returned to the Board for appellate review.

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. 2012).

______________________________________________
ROBERT C. SCHARNBERGER
Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs


judge_norm: MILO H HAWLEY

disposition: remanded

text: These claims must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board 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. 2012).

text:
Citation Nr: 1323000
Decision Date: 07/18/13    Archive Date: 07/24/13

DOCKET NO.  09-40 372	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Sioux Falls, South Dakota

THE ISSUES

1.  Entitlement to service connection for impotence, claimed as a prostate disorder.

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

REPRESENTATION

Appellant represented by:	National Association for Black Veterans, Inc.

WITNESS AT HEARING ON APPEAL

Veteran

ATTORNEY FOR THE BOARD

S. M. Kreitlow

INTRODUCTION

This matter comes to the Board of Veterans' Appeals (Board) on appeal from rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO).  A June 2009 rating decision denied service connection for impotence, claimed as a prostate disorder, and entitlement to a TDIU.  When this case was previously before the Board in December 2012, these issues were remanded for additional development of the record.

In its October 2011 determination, the Board found new and material evidence had been submitted to reopen claims for service connection for post-traumatic stress disorder (PTSD) and for hand tremors.  Additional development was requested regarding the claims on the merits.  By rating action dated November 2012, the RO granted service connection for PTSD and for impairment of the left ulnar nerve.  In addition, in its December 2012 determination, the Board denied service connection for hypertension.  Thus, this decision is limited to the issues set forth on the preceding page.

The appeal is REMANDED to the RO via the Appeals Management Center (AMC) in Washington, DC.  VA will notify the Veteran if further action is required.

REMAND

The Board finds that remand of the Veteran's claims is necessary to comply with due process requirements.

It appears that, since the Board's October 2011 remand, all of the mailings sent to the Veteran's representative by the AMC have been returned as undeliverable.  The Board notes that the AMC has been sending these documents to a Washington, DC address.  The Board notes, however, that a VA print out in the claims file along with the Veteran's VA Form 21-22 appointing the National Association of Black Veterans, Inc, as his representative, the Board's records, and the representative's website, show that this organization's actual address is P.O. Box 11432, Milwaukee, WI 53211-0432.  There is no indication in the claims file or on the representative's website that this organization has a Washington, DC address where mail should be sent relating to a veteran's claim.

Consequently, as the Veteran's representative has not received adequate notice of the proceedings relating to the Veteran's claims since the October 2011 remand, remand is necessary to cure this due process deficiency.

Accordingly, the case is REMANDED for the following action:

1.  Send all documents previously mailed to the Veteran's representative, the National Association for Black Veterans Inc., that have been returned as undeliverable since the October 2011 Board remand, to its Milwaukee, WI address.

2.  An appropriate period of time should be allowed for a response from the Veteran's representative.  If any new information or evidence is submitted, all necessary development should be accomplished and the claims should be readjudicated with appropriate notice to the Veteran and his representative (i.e., issuance of a Supplemental Statement of the Case).  If such action does not resolve the claims, they should be returned to this Board for further appellate review, if in order.

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

These claims must be afforded expeditious treatment.  The law requires that all claims that are remanded by the Board 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. 2012).

_________________________________________________
MILO H. HAWLEY
Veterans Law Judge, Board of Veterans' Appeals

Under 38 U.S.C.A. � 7252 (West 2002), only a decision of the Board is appealable to the United States Court of Appeals for Veterans Claims.  This remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of your appeal.  38 C.F.R. � 20.1100(b) (2012).


judge_norm: C CRAWFORD

text:
Citation Nr: 1324000
Decision Date: 07/29/13    Archive Date: 08/07/13

DOCKET NO.  10-33 737	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Indianapolis, Indiana

THE ISSUE

Entitlement to service connection for colon cancer, to include as due to asbestos exposure.

WITNESS AT HEARING ON APPEAL

The Veteran

ATTORNEY FOR THE BOARD

P. Childers, Counsel

INTRODUCTION

The Veteran, who is the appellant, served on active duty from November 1964 to July 1969.  Commendations and awards include a Vietnam Service Medal with one Bronze Star and one Silver Star; a Vietnam Campaign Medal; and two Navy Unit Commendation Ribbons.

This matter comes before the Board of Veterans' Appeals (Board) on appeal from an August 2009 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Togus, Maine.  Jurisdiction is now with the Indianapolis RO.

In May 2011 the Veteran testified before the undersigned Veterans Law Judge at a Travel Board hearing in Indianapolis, Indiana.  A transcript of that hearing is in the claims file.

The appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, D.C.  VA will notify the appellant if further action is required.

REMAND

The Veteran seeks service connection for colon cancer, which he says may be related to his exposure to asbestos onboard the USS ORISKANY; particularly during a fire on the ORISKANY in October 1966 (during which 44 sailors and Officers lost their lives); and during the removal of asbestos from around the ships pipes after the fire.  He reports that in 1968 he and his cleaning crew removed asbestos from the floors of the ORISKANY with brooms and dustpans, five days a week, for four months, while the ship was docked in the San Francisco Naval Yards for major repairs and refurbishing.  He adds that he wore no protective gear.

In support of his claim for service connection he has submitted internet articles pertaining to asbestos on the USS ORISKANY, and internet articles regarding a relationship between asbestos exposure and colorectal cancer.

Service personnel records, including the Veteran's DD-214, confirm that he served on the USS ORISKANY (CVA 34) from May 1965 to June 1969; and that he was awarded two Navy Unit Commendation Medals, a Vietnam Service Medal with 1 Bronze Stars and 1 Silver Star, and a Vietnam Campaign Medal.

While there are no special statutory or regulatory provisions for claims involving service connection for asbestos-related disease, under the VETERAN'S BENEFITS ADMINISTRATION MANUAL, M21-1MR, Part IV, Subpart ii, Chapter 1, Section H, Subsection 29, in reviewing claims for service connection, it must be determined whether or not military records demonstrate asbestos exposure in service; whether or not there was asbestos exposure pre-service and post-service; and whether or not there is a relationship between asbestos exposure and the claimed disease.  Ennis v. Brown, 4 Vet. App. 523, 527 (1993).

As the Veteran has submitted prima facie evidence of asbestos onboard the USS ORISKANY (CVA 34); of his exposure to said asbestos; and of a link between asbestos exposure, generally, and colon cancer; the matter must be remanded for further development, including an official statement from the Navy department or other appropriate agency regarding the likelihood of the Veteran's exposure to asbestos during his service on the USS ORISKANY from 1965 to 1969.

Accordingly, the case is REMANDED for the following action:

1.  Ask the Veteran to identify any pertinent VA or non-VA  facilities where he receives treatment for colon cancer.  Attempt to obtain any identified treatment reports, following the receipt of any necessary authorizations from the Veteran, and associate the reports with the claims file.  The Veteran and his representative must be notified of any unsuccessful attempt to obtain identified records and provided with an opportunity to submit such reports.

2.  Contact the appropriate service department/agency and request a determination as to the presence of asbestos on the USS ORISKANY from 1964 to 1969; and, if confirmed, the likelihood of the Veteran's exposure to asbestos while aboard ship, particularly

a) during the shipboard fire in October, 1966, which resulted in the deaths of 44 servicemen, and

b) during the repair/refurbishment of the ship at the San Francisco Naval Yards in or around 1968.  The Veteran reports that he and his cleaning crew removed asbestos from the floors of the ORISKANY with brooms and dustpans, five days a week, for four months, while the ship was docked in the San Francisco Naval Yards for major repairs and refurbishing in 1968; and that he wore no protective gear.

Also, take appropriate action to develop evidence of any pre- and post- service asbestos exposure.

See Veteran's Benefits Administration Manual, M21-1MR, Part IV, Subpart ii, Chapter 1, Section H, Subsection 29.

3.  After completion of step 1, if asbestos on the USS ORISKANY during the timeframe November 1964 to July 1969 is confirmed and the Veteran's exposure to this asbestos is in any way conceded, schedule the Veteran for a VA examination.  Following review of all of the evidence of record, the examiner is requested to opine as to whether it is at least as likely as not (50 percent probability or greater) that the Veteran's colon cancer is due, at least in part, to his exposure to asbestos during service.

The examiner is advised that the term "as likely as not" does not mean within the realm of possibility.  Rather, it means that the weight of medical evidence both for and against a conclusion is so evenly divided that it is medically sound to find in favor of causation as to find against causation.  More likely and as likely support the causal relationship; less likely weighs against the claim.

A rationale for all opinions must be provided.  If the examiner is unable to provide the requested opinion without resorting to speculation, he/she must provide the reason that an opinion would require speculation.

4.  After completion of all of the above, readjudicate the claim.  If the benefit sought remains denied, send the Veteran and his representative a supplemental statement of the case and return the case to the Board for appellate review.

The Veteran has the right to submit additional evidence and argument on the matter 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. 2012).

_________________________________________________
C. CRAWFORD
Veterans Law Judge, Board of Veterans' Appeals

Under 38 U.S.C.A. � 7252 (West 2002), only a decision of the Board of Veterans' Appeals is appealable to the United States Court of Appeals for Veterans Claims.  This remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of your appeal.  38 C.F.R. � 20.1100(b) (2012).