**This version includes the errata dated 15Feb05 - e**

**UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS**

[No. 03-1251]{.smallcaps}

[Pedro P. Duenas, Appellant,]{.smallcaps}

[v.]{.smallcaps}

[Anthony J. Principi,]{.smallcaps}

[Secretary of Veterans Affairs, Appellee.]{.smallcaps}

On Appeal from the Board of Veterans\' Appeals

(Decided December 15, 2004 )

*Pedro P. Duenas*, *pro se*.

*Tim S*. *McClain*, General Counsel; *R. Randall Campbell*, Assistant
General Counsel; *Kathy A. Banfield*, Deputy Assistant General Counsel;
and *Cathy* *A. Chase*, all of Washington, D.C., were on the brief for
the appellee.

Before IVERS, *Chief Judge*, and GREENE and HAGEL, *Judges*.

The opinion of the Court is per curiam. HAGEL, *Judge*, filed a
concurring opinion.

PER CURIAM: Pedro P. Duenas, who is unrepresented, appeals a May 13,
2003, Board of Veterans\' Appeals (Board) decision in which the Board
denied his claims for service connection for (1) a urinary tract
infection, (2) poor vision, (3) a hearing-loss disability, (4) a
gastrointestinal disorder, (5) asthma, (6) bronchitis, (7) emphysema,
(8) heart disease, and (9) hypertension. The Court has jurisdiction
pursuant to 38 U.S.C. §§ 7252(a) and 7266(a) to review the May 2003
Board decision. For the following reasons, the Court will affirm the May
2003 decision with respect to Mr. Duenas\'s claims for service
connection for a urinary tract infection, poor vision, a hearing-loss
disability, a gastrointestinal disorder, asthma, bronchitis, emphysema,
and hypertension. The Court will vacate the decision with respect to his
claim for service connection for heart disease and will remand that
matter for a more careful consideration of whether Mr. Duenas is
entitled to a VA medical examination.

**I. FACTS**

Mr. Duenas had recognized Philippine guerilla service from March 1945 to
February 1946, service in the Regular Philippine Army from February 1946
to March 1946, and active-duty service in the U. S. Army from July 1946
to March 1949. Record (R.) at 26-34, 41-44, 56-57. In September 1999, he
filed with a VA regional office claims for service connection for lung
ailments, asthma, hypertension, heart disease, a urinary tract
infection, poor vision and hearing, and gastritis. R. at 16. Along with
his application, he submitted statements from Dr. Florante D. Iglesias,
who treated him from 1954 to 1963, and Dr. Reynaldo G. Patriarca, who
has treated him since 1964. R. at 21-23. (Although the Board stated that
Dr. Iglesias\'s statements indicate treatment from \"1944,\" the Court
observes that the statements appear to indicate treatment from 1954. R.
at 7, 22, 74-75. The Court also notes that the regional office
interpreted these statements as indicating treatment from 1954. R. at
88-89, 114.) Both doctors stated that they had treated him for asthma
and bronchitis. *Id.* Dr. Patriarca also reported that Mr. Duenas\'s
complaints of dyspnea, or shortness of breath, and easy fatigability
suggest emphysema and that Mr. Duenas may be \"prone to . . .
hypertension.\" *Id.*

During the development of his claims, VA requested Mr. Duenas\'s service
medical records and other records related to him. R. at 38-39, 47-48. In
response to those requests, VA received the record of his February 1946
discharge examination. R. at 58. In that record, under the heading
\"Record of Physical Examination,\" the examining U.S. Army Medical
Corps officer, in all but one instance, entered either \"normal,\"
\"none,\" or \"complete\" in the spaces provided for comments regarding
certain disorders and parts of the body. *Id.* The one exception was in
the section for comments regarding the \"Cardiovascular System,\" in
which the examining medical officer entered the notation,
\"\[t\]achycardia.\" *Id.* Tachycardia is defined as \"excessive
rapidity in the action of the heart.\" [Dorland\'s Illustrated Medical
Dictionary]{.smallcaps} 1655 (28th ed. 1994) \[hereinafter
[Dorland\'s]{.smallcaps}\]. The regional office also received an
Affidavit for Philippine Army Personnel, dated February 27, 1946, and
signed by Mr. Duenas, in which he attested that he had not incurred any
wounds or illness since December 1941. R. at 62.

In addition, VA requested further information from Drs. Iglesias and
Patriarca. R. at 68, 70-71. In his response, Dr. Iglesias explained that
Mr. Duenas\'s treatment records were either lost or misplaced but that
he recalled treating Mr. Duenas \"on and off\" from 1954 to 1963 for the
illnesses mentioned in the doctor\'s previous statement. R. at 73-74.
Dr. Patriarca responded that his first statement was a sufficient
account of Mr. Duenas\'s diagnoses and notified VA that he could not
give a detailed description of his treatment since 1964 because all of
Mr. Duenas\'s records that were more than five years old had been
deleted from his file. R. at 77.

The regional office eventually denied Mr. Duenas\'s claims for service
connection, and he appealed its decision to the Board. R. at 85-90. In
his appeal to the Board, he made the following statement:

> My ailments have been recurring since service, especially my heart and
> lung problems. The symptoms have been consistent since I was separated
> from service up to the present time . . . \[and have\] consisted
> of . . . difficulty in breathing, easy fatigability, and worse\[,\] my
> recurring rapid heartbeat.

R. at 117.

The Board, in the decision on appeal, determined that VA was not
required, under 38 U.S.C. § 5103A(d), to provide Mr. Duenas with a
medical examination because \"the evidence before the
Secretary . . . \[did not\] indicate that the disorders at issue may be
associated with \[Mr. Duenas\'s\] active military service.\" R. at 5.
The Board also concluded that an examination was not required because
\"there \[was\] no reasonable possibility that an examination would aid
in substantiating \[Mr. Duenas\'s\] claim\[s\].\" *Id.* With respect to
the merits of his claims, the Board concluded that his claimed
disabilities \"were not incurred in or aggravated by service.\" R. at 3.

On appeal to this Court, Mr. Duenas raises three arguments. First, he
argues that VA did not fulfill its duty to assist him insofar as it
failed to provide him with medical examinations with respect to his
claims for service connection for heart disease, poor vision, and a
hearing-loss disability. Informal Brief (Br.) at 1-2. Second, Mr. Duenas
asserts that the Board should not have held his February 1946 affidavit
against him. *Id.* at 1. Third, he argues that the opinions of his
doctors should be given \"credence\" with respect to his claims for
asthma, bronchitis, and hypertension. *Id.* at 2.

The Secretary argues that VA was not required under section 5103A to
provide Mr. Duenas with a medical examination. Secretary\'s Br. at
11-14. The Secretary reasons that an examination was not required with
respect to Mr. Duenas\'s claims of poor vision and a hearing-loss
disability because Mr. Duenas \"\[had\] not submitted competent evidence
of a current disability\" and because the record did not \"contain
competent evidence that \[his\] claimed disabilities are associated with
his service.\" *Id.* at 12-13. Similarly, the Secretary contends that VA
was not required to provide a medical examination with respect to Mr.
Duenas\'s claim of heart disease because the record did not \"contain
medical evidence of a current heart disability.\" Secretary\'s Br. at
14. Further, the Secretary argues that the Board properly denied Mr.
Duenas\'s claims for service connection because his \"claims for the
most part are completely lacking in any kind of supportive evidence.\"
*Id.* at 6-7.

**II. ANALYSIS**

A. Duty to Provide a Medical Examination under 38 U.S.C. § 5103A(d)

*1. Applicable Laws and Regulations*

Even prior to the enactment of the Veterans Claims Assistance Act of
2000, Pub. L. No. 106-475, 114 Stat. 2096 (Nov. 9, 2000), VA had a duty
to assist claimants \"in developing the facts pertinent to a claim\" and
that duty to assist included, in certain situations, providing the
claimant with a medical examination. 38 U.S.C. § 5107(a) (1999); *see
Green v. Derwinski*, 1 Vet.App. 121, 124 (1991). However, under a line
of cases decided prior to the enactment of the Veterans Claims
Assistance Act of 2000 and culminating in this Court's decision in
*Morton v. West*, that duty was not triggered unless a claimant first
demonstrated, as a threshold matter, that the claim at issue was well
grounded. *Morton*, 12 Vet.App. 477, 486 (1999); *Caluza v. Brown*, 7
Vet.App. 498, 505-06 (1995), *aff\'d*, 78 F.3d 604 (Fed. Cir. 1996)
(table). A claim was considered to be well grounded if the claimant
provided \"competent evidence of current disability (a medical
diagnosis), . . . of incurrence or aggravation of a disease or injury in
service (lay or medical evidence), . . . and of a nexus between the
in-service injury or disease and the current disability (medical
evidence).\" *Caluza*, 7 Vet.App. at 506. Whether the claimant
ultimately prevailed on the merits of the claim was a separate matter.
*See id.* at 507-13.

Displeased with the *Morton* decision, which the Committees on
Veterans\' Affairs deemed a \"significant barrier to veterans who need
assistance in obtaining information and evidence in order to receive
benefits from . . . VA,\" Congress eliminated the well-grounded-claim
requirement by enacting the Veterans Claims Assistance Act of 2000.
*See* 146 [Cong. Rec.]{.smallcaps} H9913-14 (Oct. 17, 2000) (Explanatory
Statement by the House and Senate Committees on Veterans\' Affairs);
*Luyster v. Gober*, 14 Vet.App. 186, 186 (2000). The Committees also
noted that under VA's \"claimant friendly\" and \"non-adversarial\"
adjudicative system, \"VA must provide a substantial amount of
assistance to a \[claimant\] seeking benefits.\" 146 [Cong.
Rec.]{.smallcaps} at H9913 (citations omitted). Congress highlighted the
importance of providing medical examinations and opinions as part of
that assistance by establishing standards for determining when VA is
required to provide examinations and opinions. *See* 38 U.S.C.
§ 5103A(d). Under the new legal framework, there is generally no
prerequisite to receiving VA assistance; VA is simply required to assist
a claimant at the time that claimant files a claim for benefits. *See*
38 U.S.C. § 5103A(a); 38 C.F.R. § 3.159(c) (2003). Whether the claimant
prevails on the merits of the claim, however, remains a separate matter.

Under section 5103A(b), VA\'s duty to assist includes making
\"reasonable efforts to obtain relevant records,\" such as service
medical records, records from VA health-care facilities, and private
medical records, so long as the claimant adequately identifies those
records to the Secretary and authorizes the Secretary to obtain them.
Depending on the record of evidence provided by the claimant, or after
any such development, VA\'s duty to assist may also include, under
section 5103A(d), providing a claimant with a medical examination:

> \(1\) In the case of a claim for disability compensation, the
> assistance provided by the Secretary under subsection (a) shall
> include providing a medical examination or obtaining a medical opinion
> when such an examination or opinion is necessary to make a decision on
> the claim.
>
> \(2\) The Secretary *shall* treat an examination or opinion as being
> necessary to make a decision on a claim for purposes of paragraph (1)
> if the evidence of record before the Secretary, taking into
> consideration all information and *lay* *or* medical evidence
> (including statements of the claimant)-- (A) contains competent
> evidence that the claimant has a current disability, *or* *persistent
> or recurrent symptoms of disability*; and
>
> \(B\) indicates that the disability *or symptoms* may be associated
> with the claimant\'s active military, naval, or air service; but
>
> \(C\) does not contain sufficient medical evidence for the Secretary
> to make a decision on the claim.

38 U.S.C. \_ 5103A(d) (emphasis added); *see Wells v. Principi*, 326
F.3d 1381, 1384 (Fed. Cir. 2003) (holding that proof of current
disability alone is insufficient to trigger Secretary\'s obligation to
provide medical examination); *Charles v. Principi*, 16 Vet.App. 370,
374-75 (2002) (holding that appellant\'s own lay testimony regarding
symptoms is sufficient to satisfy section 5103A(d)(2)(B) when symptoms
are \"capable of lay observation\").

The Secretary implemented section 5103A(d) in 38 C.F.R.
\_ 3.159(c)(4)(i), which was made applicable to any claim for benefits
pending before the Department and \"not decided by VA\" as of November
9, 2000. 66 Fed. Reg. 45,620, 45,629-31 (Aug. 29, 2001). Under the
regulation, an examination is necessary

> if the information and evidence of record does not contain sufficient
> competent medical evidence to decide the claim, but:
>
> \(A\) Contains competent lay or medical evidence of a current
> diagnosed disability *or persistent or recurrent symptoms of
> disability*;
>
> \(B\) Establishes that the veteran suffered an event, injury\[,\] or
> disease in service . . . ; and
>
> \(C\) Indicates that the claimed disability *or symptoms* may be
> associated with the established event, injury, or disease in service
> or with another service-connected disability.

38 C.F.R. \_ 3.159(c)(4)(i) (emphasis added).

Although the regulation contains a requirement that is not present in
the statute, namely the requirement that the evidence of record
\"\[e\]stablishes that the veteran suffered an event, injury, or disease
in service,\" the U.S. Court of Appeals for the Federal Circuit has held
that the regulation is not in conflict with the statute. *Paralyzed
Veterans of Am. v. Sec\'y of Veterans Affairs*, 345 F.3d 1334, 1355-57
(Fed. Cir. 2003). In this regard, the Court notes that under section
5103A(a)(2) of the statute, the Secretary \"is not required to provide
assistance to a claimant under this section if no reasonable possibility
exists that such assistance would aid in substantiating the claim.\"
Because some evidence of an in-service event, injury, or disease is
required in order to substantiate a claim for service connection and
because a postservice medical examination could not provide evidence of
such past events, a medical examination conducted in connection with
claim development could not aid in substantiating a claim when the
record does not already contain evidence of an in-service event, injury,
or disease. *See Paralyzed Veterans of Am.*, 345 F.3d at 1355-57.

In addition, when deciding whether, under section 5103A(d) and
\_ 3.159(c)(4), to provide a claimant with a medical examination, the
Board is required to provide a written statement of the reasons or bases
for its conclusion. 38 U.S.C. § 7104(d)(1). That statement must be
adequate to enable a claimant to understand the precise basis for the
Board\'s decision, as well as to facilitate review in this Court. *See*
*Gilbert v. Derwinski*, 1 Vet.App. 49, 57 (1990). To comply with this
requirement, the Board must analyze the credibility and probative value
of the evidence, account for the evidence that it finds to be persuasive
or unpersuasive, and provide the reasons for its rejection of any
material evidence favorable to the claimant. *See Caluza*, 7 Vet.App. at
506. In the absence of a finding of nonprejudicial error, vacatur and
remand is warranted where the Board has failed to provide an adequate
statement of its reasons or bases for its determinations. *See Tucker v.
West*, 11 Vet.App. 369, 374 (1998); *Soyini v. Derwinski*, 1 Vet.App.
540, 546 (1991) (holding that failure to provide adequate statement of
reasons or bases does not necessitate remand \"in the face of
overwhelming evidence in support of the \[Board\'s\] result in a
particular case\").

*2. Examination with respect to Mr. Duenas\'s Claim for Service
Connection for Heart Disease*

Because Mr. Duenas\'s appeal was pending before the Board on November 9,
2000, the Board was required to consider section 5103A and \_ 3.159(c)
when it adjudicated his claims. *See* 38 U.S.C. \_ 5103A(a); *Charles*,
16 Vet.App. at 371-72, 374-75; 38 C.F.R. \_ 3.159(c). The record before
the Secretary contained Mr. Duenas\'s statement that he now experiences
\"difficulty in breathing, easy fatigability, and \[a\] recurring rapid
heartbeat.\" R. at 117. Mr. Duenas further asserted that those symptoms
are the symptoms of his claimed disabilities and that he has experienced
them since his separation from service. *Id.* The record also contained
Mr. Duenas\'s discharge examination report that includes a notation of
an abnormality of his cardiovascular system--tachycardia. R. at 58.

Although the Board concluded that a medical examination was not required
with respect to Mr. Duenas\'s claim for service connection for heart
disease, it did not support that conclusion with an adequate statement
of reasons or bases. *See* 38 U.S.C. §\_ 5103A(d), 7104(d)(1); *Allday
v. Brown*, 7 Vet.App. 517, 527 (1995); 38 C.F.R. \_ 3.159(c)(4).
Specifically, although the Board determined that \"the evidence before
the Secretary \[did\] not . . . indicate that the *disorders* at issue
may be associated with \[Mr. Duenas\'s\] active military service,\" it
did not consider that, under section 5103A(d) and \_ 3.159(c)(4), the
record before the Secretary need only (1) contain competent evidence
that he has persistent or recurrent *symptoms* of heart disease and (2)
indicate that those *symptoms* may be associated with his active
military service. *See* R. at 1-12 (emphasis added).

To support its conclusion properly, the Board was required to address
(1) whether difficulty in breathing, easy fatigability, and a recurring
rapid heartbeat are symptoms of heart disease; (2) whether Mr. Duenas\'s
statement was competent evidence that he has experienced those symptoms
since his separation from service, *see* 38 U.S.C. \_ 5103A(d)(2)(A);
(3) what tachycardia is and whether the symptoms that Mr. Duenas has
experienced since service may be associated with his in-service
tachycardia, s*ee* 38 U.S.C. \_ 5103A(d)(2)(B); and (4) why \"no
reasonable possibility\" existed that an examination would aid in
substantiating Mr. Duenas\'s claim. *See* R. at 5. The Board failed to
address any of these issues. *See* R. at 1-12.

*3. Examinations with respect to Mr. Duenas\'s Claims for Service
Connection*

*for Poor Vision and a Hearing-Loss Disability*

The record before the Secretary contained Mr. Duenas\'s statement that
he now experiences the symptoms of his claimed disabilities, but his
statement does not include a discussion regarding symptoms of poor
vision or a hearing-loss disability. R. at 117. Further, although Mr.
Duenas asserted that he has experienced the symptoms of his claimed
disabilities since his separation from service, the record also
contained Mr. Duenas\'s discharge examination report that indicated that
he had 20/20 uncorrected bilateral vision and 15/15 bilateral hearing.
R. at 58, 117.

As in the Board\'s decision to deny an examination with respect to Mr.
Duenas\'s claim for service connection for heart disease, the Board here
discussed only whether the *disorders* of poor vision and hearing loss
may be associated with Mr. Duenas\'s service, not whether Mr. Duenas had
*symptoms* of those disorders and whether those *symptoms* may be so
associated. *See* 38 U.S.C. \_ 5103A(d)(2)(A) and (B); R. at 1-12.
Therefore, the Board failed to provide an adequate statement of reasons
or bases to support its conclusion that a medical examination was not
required with respect to Mr. Duenas\'s claims for service connection for
poor vision and a hearing-loss disability. *See* 38 U.S.C. §\_ 5103A(d),
7104(d)(1); *Allday*, 7 Vet.App. at 527; 38 C.F.R. \_ 3.159(c)(4).
Specifically, the Board did not explain (1) whether Mr. Duenas\'s
statement was competent evidence that he has the symptoms of poor vision
and a hearing-loss disability; (2) if it was competent evidence, why
those symptoms could not be associated with his service; and (3) why
\"no reasonable possibility\" existed that an examination would aid in
substantiating his claims. *See* R. at 1-12.

*4. Application of 38 U.S.C. \_ 7261(b)(2) regarding the Rule of
Prejudicial Error*

Although the Board\'s conclusion with respect to Mr. Duenas\'s claims
for service connection for poor vision and a hearing-loss disability was
not supported by an adequate statement of reasons or bases, the Court
concludes that any such error was nonpredjudicial. *See* 38 U.S.C.
\_ 7261(b); *Conway v. Principi*, 353 F.3d 1369, 1374-75 (Fed. Cir.
2004). In this regard, even assuming that Mr. Duenas\'s statement
constitutes \"competent lay . . . evidence of . . . persistent or
recurrent symptoms\" of poor vision and a hearing-loss disability, it
does not address, and there is no other evidence in the record that
reflects, that he \"suffered an event, injury\[,\] or disease in
service\" that may be associated with those symptoms. *See* 38 C.F.R.
\_ 3.159(c)(4)(i). Therefore, no reasonable possibility was suggested by
the record that an examination would have aided in substantiating Mr.
Duenas\'s claims for service connection for either of those two
disabilities. *See Paralyzed Veterans of Am.*, 345 F.3d at 1356. With
respect to an examination to evaluate Mr. Duenas\'s claimed heart
disease, however, the record does contain an in-service notation of
tachycardia, which the examining medical officer noted as an abnormality
of the cardiovascular system. R. at 58. Accordingly, the Court cannot
speculate that a medical examination would not aid in substantiating Mr.
Duenas\'s claim for service connection for heart disease. *See*
*Allday*, 7 Vet.App. at 527-28. A remand is therefore required but only
with respect to Mr. Duenas\'s claim for service connection for heart
disease.

B. Service Connection

Service connection for VA disability compensation purposes will be
awarded to a veteran when the record before the Secretary contains (1) a
medical diagnosis of a current disability, (2) medical evidence of
incurrence or aggravation of a disease or injury in service, and (3)
medical evidence of a nexus between the in-service injury or disease and
the current disability. *See* 38 U.S.C. § 1110; *Caluza*, 7 Vet.App. at
505; 38 C.F.R. § 3.303 (2003).

A finding of service connection generally involves findings of fact.
*See Russo v. Brown*, 9 Vet.App. 46, 50 (1996). The Court is required to
reverse \"a finding of material fact . . . if the finding is clearly
erroneous.\" 38 U.S.C. § 7261(a)(4). \"\[A\] finding of fact is clearly
erroneous when although there is evidence to support it, the reviewing
court on the entire evidence is left with a definite and firm conviction
that a mistake has been committed.\" *Hersey v. Derwinski*, 2 Vet.App.
91, 94 (1992) (quoting *United States v. U.S. Gypsum Co.*, 333 U.S. 364,
395 (1948)). The Court may not substitute its judgment for the factual
determinations of the Board on issues of material fact merely because
the Court would have decided those issues differently in the first
instance. *See id.*

Here, because the Court will vacate the Board decision with respect to
Mr. Duenas\'s claim for service connection for heart disease and will
remand that matter for readjudication, the Court need only consider his
remaining claims. In this regard, the Court notes that the Board denied
those claims because it determined that the record before the Secretary
did not contain evidence of in-service incurrence or aggravation of a
urinary tract infection, poor vision, a hearing-loss disability, a
gastrointestinal disorder, asthma, bronchitis, emphysema, or
hypertension. R. at 3, 8-11. First, as the Board correctly noted, Mr.
Duenas\'s 1946 discharge examination report reflects normal findings
with respect to his genitourinary system, abdominal viscera, and lungs;
a negative chest x-ray; 20/20 uncorrected bilateral vision; 15/15
bilateral hearing; and a blood pressure reading that is not indicative
of hypertension. R. at 8-11, 58; [Dorland\'s]{.smallcaps} at 801.
Second, Mr. Duenas indicated in his February 1946 affidavit that he had
not incurred any wounds or illness since December 1941. R. at 8-11, 62.
Third, Mr. Duenas\'s doctors, in their statements, do not relate any
disabilities that Mr. Duenas may have to his period of service. R. at
8-11, 21-23, 73-79. Finally, although the record contains a statement by
Mr. Duenas to the effect that his ailments have been recurring since his
service (R. at 117), the Court notes that expert medical evidence is
necessary to establish the etiology of those disabilities and that,
because Mr. Duenas is not competent to provide such medical evidence,
his statements concerning the etiology of his alleged disabilities are
insufficient to demonstrate the in-service incurrence of those
disabilities. *See Espiritu v. Derwinski*, 2 Vet.App. 492, 494 (1992).
Given this evidence and considering the entire record before the Board
and the Secretary, the Court cannot conclude that the Board\'s
determination in this regard is clearly erroneous. *See* 38 U.S.C.
\_ 7261(a)(4); *Hersey*, 2 Vet.App. at 94; *Gilbert*, 1 Vet.App. at 52.

With respect to Mr. Duenas\'s arguments that the Court should not
consider his February 1946 affidavit as evidence against his claim and
that the Court should give \"credence\" to his doctors\' statements
regarding his claims for service connection for asthma, bronchitis, and
hypertension, the Court finds those arguments to be unavailing.
Specifically, the Court notes that whether or not it considers the 1946
affidavit as evidence against Mr. Duenas\'s claims, the record, as the
Board correctly noted, does not contain any evidence of incurrence or
aggravation of a disease or injury in service. In addition, the
doctors\' statements do not refer to the issue of whether Mr. Duenas\'s
claimed disabilities were incurred during, or aggravated by, his
service.

**III. CONCLUSION**

On consideration of the foregoing, the May 13, 2003, Board decision is
AFFIRMED to the extent that the Board denied Mr. Duenas\'s claims for
service connection for a urinary tract infection, poor vision, a
hearing-loss disability, a gastrointestinal disorder, asthma,
bronchitis, emphysema, and hypertension. The decision is VACATED with
respect to Mr. Duenas\'s claim for service connection for heart disease,
and that matter is REMANDED for readjudication consistent with this
decision. On remand, Mr. Duenas is free to submit additional evidence
and argument in accordance with *Kutscherousky v. West*, 12 Vet.App.
369, 372‑73 (1999) (per curiam order). *See Kay v. Principi*,
16 Vet.App. 529, 534 (2002). The Court reminds the Board that \"\[a\]
remand is meant to entail a critical examination of the justification
for the decision.\" *Fletcher v. Derwinski*, 1 Vet.App. 394, 397 (1991).
In addition, the Secretary shall proceed expeditiously, in accordance
with 38 U.S.C. §\_ 5109B, 7112 (expedited treatment of remanded claims).

HAGEL, *Judge*, concurring: I write separately because I believe that a
matter of great significance is at issue in this case and wish to
elaborate further on the views already expressed. The focus of the
Veterans Claims Assistance Act of 2000 was to ensure that all
information necessary to making a determination on a claim is obtained
and presented to the adjudicator as early on in the decision-making
process as possible. One section of that act, now codified in 38 U.S.C.
\_ 5103A(d), was devoted to clarifying VA\'s duty to assist veterans
seeking disability compensation in obtaining medical examinations.
Whether or not a veteran receives a VA medical examination can have a
significant bearing on the outcome of a veteran\'s claim for disability
compensation. If provided with an examination, a veteran, although
certainly not entitled to benefits automatically, is afforded an
opportunity to obtain the expert medical evidence that is often
necessary to support a claim for benefits. If denied an examination by
VA, however, a veteran may be ill suited to acquire that evidence on his
or her own. The veteran is faced with the somewhat-daunting task of
obtaining and likely paying for a specialized opinion from an expert who
may be unfamiliar with the contents of the service medical and other
treatment records and who is uninformed regarding the importance of
certain standards peculiar to the needs of the VA adjudication system.
Under section 5103A(d), the initial decision to provide a veteran
seeking disability compensation with an examination rests with VA, and
because of the critical impact of such an examination on the outcome of
the adjudication, it is crucial that VA take this section into careful
consideration when making its decision.

The Board failed to do so in this case. Particularly, the Board
completely ignored the language of section 5103A that provides that the
necessity of an examination may be triggered by evidence that a claimant
has \"persistent or recurrent *symptoms* of disability\" and that those
\"*symptoms* may be associated with the claimant\'s active military . .
. service.\" 38 U.S.C. \_\_ 5103A(d)(2)(A), (B) (emphasis added).

In its primary opinion, the Court enumerated a number of issues that the
Board is required to address on remand. *Ante* at 7-8. Although I am
fully cognizant of the principle that \"\[f\]act finding in veterans
cases is to be done by the expert \[Board\], not by \[this\] Court,\"
*Elkins v. Gober*, 229 F.3d 1369, 1377 (Fed. Cir. 2000), I would like to
make the following observations with respect to the issues that this
Court has noted. First, difficulty in breathing, easy fatigability, and
a recurring rapid heartbeat are described in some texts as symptoms of
heart disease. *See* David Schechter, M.D. & Roger Manwaring, *Heart
Disease*, *in* 7 [Attorneys' Textbook of Medicine]{.smallcaps} \_\_
30.31, .60, .62 (Roscoe N. Gray, M.D., et al. eds., 3d ed. 2003); [5A
Lawyers' Medical Cyclopedia]{.smallcaps} \_ 34.29 (A), (C), (G), (K)
(Richard M. Patterson ed., 5th ed. 2003). Second, it is unclear to me
why those three symptoms would not be \"capable of lay observation,\"
and therefore why Mr. Duenas would not be competent to testify that he
has experienced them.

At this point and in the absence of an explanation by the Board, I
cannot conclude that a recurring rapid heartbeat and other symptoms of
heart disease allegedly experienced by Mr. Duenas since his military
service could not *potentially* be associated with the tachycardia, or
excessive rapidity in the action of the heart, experienced by him during
service, as described on his discharge examination report. 38 U.S.C.
\_ 5103A(d)(2)(B); 38 C.F.R. \_ 3.159(c)(4)(i)(C); R. at 58;
[Dorland\'s]{.smallcaps} at 1655. Further, given these observations and
the Board\'s incomplete discussion of the issues, I also cannot conclude
that there is no reasonable possibility that an examination would aid in
substantiating Mr. Duenas\'s claim. *See* 38 U.S.C. \_ 5103A(a)(2).
Under the Court\'s opinion, the Board must discuss thoroughly the issues
raised by the Court and either order a VA examination or explain clearly
and comprehensively why, in light of section 5103A(d)(2), no such
examination is necessary.