Citation Nr: 1306871 Decision Date: 02/28/13 Archive Date: 03/01/13 DOCKET NO. 10-47 546 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Muskogee, Oklahoma THE ISSUES 1. Entitlement to service connection for chronic obstructive pulmonary disease (COPD). 2. Entitlement to service connection for eye disability. 3. Entitlement to service connection for a sleep disorder. 4. Entitlement to service connection for a left knee disability. 5. Entitlement to an initial compensable disability rating for malaria. REPRESENTATION Appellant represented by: Oklahoma Department of Veterans Affairs WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD M. Harrigan Smith, Counsel INTRODUCTION The Veteran had active military service from July 1966 to August 1972 and from January 1974 to May 1977. This matter comes before the Board of Veterans' Appeals (Board) on appeal of rating decisions of the Department of Veterans Affairs (VA) regional office (RO) in Muskogee, Oklahoma. In January 2010, the RO denied entitlement to service connection for COPD, conjunctival abrasion, paving stone degeneration, hyperopia, astigmatism, and presbyopia, and sleep apnea. In September 2010, the RO granted entitlement to service connection for malaria, at a noncompensable disability rating, effective April 14, 2010. In January 2011, the RO denied entitlement to service connection for a left knee disability. The Veteran presented testimony before the undersigned Veterans Law Judge via videoconference hearing in September 2012; a transcript of this hearing has been associated with the record. A claimant's identification of the benefit sought does not require any technical precision. Ingram v. Nicholson, 21 Vet. App. 232, 256-57 (2007) ("It is the pro se claimant who knows what symptoms he is experiencing and that are causing him disability, ... [and] it is the Secretary who knows the provisions of title 38 and can evaluate whether there is a potential under the law to compensate an averred disability based on a sympathetic reading of the material in a pro se submission.") A claimant may satisfy this requirement by referring to a body part or system that is disabled or by describing symptoms of the disability. Brokowski v. Shinseki, 23 Vet. App. 79 (2009); see also Clemons v. Shinseki, 23 Vet. App. 1, 5 (2009) (when determining the scope of a claim, the Board must consider "the claimant's description of the claim, the symptoms the claimant describes, and the information the claimant submits or that the Secretary obtains in support of that claim"); 38 C.F.R. § 3.159(c)(3). The record reflects that the Veteran has been diagnosed with sleep impairment associated with a psychiatric disorder. Although he has pursued an appeal with regard to sleep apnea, and while he has identified several disabilities affecting his eyes, these issues have been re-characterized to include any eye disorder and any sleep disability. The issues of entitlement to service connection for eye disability and for a sleep disability, and entitlement to a compensable disability rating for malaria are addressed in the remand that follows the decision below. FINDINGS OF FACT 1. A left knee disability did not begin during military service and is not otherwise related to the Veteran's active military service. 2. COPD did not begin during military service and is not otherwise related to the Veteran's active military service. CONCLUSIONS OF LAW 1. The Veteran does not have a left knee disability that is the result of disease or injury incurred in or aggravated by active military service; left knee arthritis may not be presumed to have been incurred in or aggravated by active military service. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 1131, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.159, 3.303, 3.307, 3.309 (2012). 2. The Veteran does not have COPD that is the result of disease or injury incurred in or aggravated by active military service. 38 U.S.C.A. §§ 1110, 1131, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.159, 3.303 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (Nov. 9, 2000) (codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2002 & Supp. 2012) defined VA's duty to assist a Veteran in the development of a claim. VA regulations for the implementation of the VCAA were codified as amended at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012). Under the VCAA, VA must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide. Pelegrini v. Principi (Pelegrini II), 18 Vet. App. 112, 120-21 (2004), see 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b). The United States Court of Appeals for Veterans Claims (Court) has also held that the VCAA notice requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) apply to all five elements of a service connection claim. Those five elements include: 1) Veteran status; 2) existence of a disability; 3) a connection between the Veteran's service and the disability; 4) degree of disability; and 5) effective date of the disability. Dingess v. Nicholson, 19 Vet. App. 473 (2006). In pre-adjudication letters, dated in October 2009 with regard to the Veteran's claim for entitlement to service connection for COPD, and in December 2010 with regard to his claim for entitlement to service connection for a left knee disability, the RO notified the Veteran of the evidence VA would assist him in obtaining and the evidence it was expected that he would provide with regard to the claims for entitlement to service connection. Quartuccio v. Principi, 16 Vet. App. 183, 186-87 (2002); Charles v. Principi, 16 Vet. App. 370 (2002). These letters also informed him of the types of evidence that would be considered to substantiate his claims and the information and evidence needed to sustain a claim for service connection. In addition, the letters met the notice requirements set out in Dingess. The VCAA also requires VA to make reasonable efforts to help a claimant obtain evidence necessary to substantiate his claim. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159(c), (d). This "duty to assist" contemplates that VA will help a claimant obtain records relevant to his claim, whether or not the records are in Federal custody, and that VA will provide a medical examination or obtain an opinion when necessary to make a decision on the claim. 38 C.F.R. § 3.159(c)(4). Post-service medical records have been associated with the claims file. The Veteran was not afforded VA examinations for his left knee disability or his COPD. As will be discussed in further detail below, the Board has found there is no competent evidence that the Veteran's current left knee disability is related to service. The Veteran's service treatment records do not reflect any injury, disorder or complaints of ongoing pain of the left knee, there is no medical evidence linking the Veteran's left knee disability to service, and, as will be discussed in detail below, the Veteran's current contentions of an in-service injury and ongoing left knee symptoms since service have been found to be incredible. With regard to his claim for entitlement to service connection for COPD, the medical evidence of record does not reflect any connection between his current respiratory disorder and his active military service, and the Veteran's only contentions have been that his COPD is related to smoking, which began during service. As will be discussed further below, service connection for a disability related to tobacco use is not allowed as a matter of law. See 38 U.S.C.A. § 1103 (2002); 38 C.F.R. § 3.300 (2012). Consequently, VA examinations are not necessary. See McClendon v. Nicholson, 20 Vet. App. 79, 81 (2006). For the reasons set forth above, the Board finds that VA has complied with the VCAA's notification and assistance requirements with regard to the two claims decided herein. Service Connection Service connection will be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred in or aggravated by active military service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Establishing service connection generally requires (1) medical evidence of a current disability; (2) medical or, in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the present disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); Hickson v. West, 12 Vet. App. 247, 253 (1999); 38 C.F.R. § 3.303. A current disability must be evident. Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992); see Sanchez-Benitez v. West, 13 Vet. App. 282, 285 (1999) (complaints of pain alone do not meet the current disability threshold); Evans v. West, 12 Vet. App. 22, 31-32 (1998). More recently, the Court has held that the current disability requirement is satisfied when a claimant has a disability at the time of filing the claim or during the pendency of that claim, even if the disability resolves. McLain v. Nicholson, 21 Vet. App. 319 (2007). The United States Court of Appeals for the Federal Circuit (Federal Circuit) has held that "[l]ay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional." Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); see also Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006) ("[T]he Board cannot determine that lay evidence lacks credibility merely because it is unaccompanied by contemporaneous medical evidence"). Service connection may also be granted for a disease first diagnosed after discharge when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107 (West 2002); see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). Left Knee Disability At his hearing, the Veteran contended that, while on active duty, he fell partially down a telephone pole, hitting his left knee and sustaining an injury. He indicated that he had left knee problems since his in-service injury, and that this in-service injury was the only time he had ever damaged his left knee. He reported that he had been treated for his left knee in service, that he had recently been informed that he would possibly need a total left knee replacement and that he had been treated with shots in his knee and braces to aid with ambulation. Service treatment records do not reflect any injury to the Veteran's left knee or a diagnosis of a left knee disorder. On his Reports of Medical History, the Veteran reported that he did not have any knee problems. His Reports of Medical Examination also reflect that his lower extremities were found to be normal. Post-service VA medical records, reflecting treatment beginning in July 2004, do not show any complaints of left knee pain or treatment for a left knee disorder until February 2010, when he reported that he had pain in his left knee for several weeks. He underwent arthrocentesis of his knee. In March 2010, he reported that he had fallen on his left knee in December 2009. He was found to have left knee derangement secondary to a fall. The Veteran underwent X-rays and magnetic resonance imaging study (MRI) and, in September 2010, an examiner gave the impression of osteochondritis dissecans and torn medical meniscus of the knees. The examiner discussed several options for treatment, including steroid injections, arthroscopy, and partial knee replacement. The Board must determine the value of all evidence submitted, including lay and medical evidence. Buchanan, supra. The evaluation of evidence generally involves a three-step inquiry. First, the Board must determine whether the evidence comes from a "competent" source. The Board must also determine whether the evidence is credible. The Board must make an express credibility finding regarding lay evidence. Dalton v. Nicholson, 21 Vet. App. 23 (2007). Finally, the Board must weigh the probative value of the proffered evidence in light of the entirety of the record. The medical evidence of record clearly shows that the Veteran has a current diagnosis of osteochondritis dissecans and a torn medial meniscus of the left knee, meeting one of the fundamental elements of service connection-current disability. Brammer, supra. Thus, the issue in this case is whether the evidence of record, including medical and lay evidence, attributes his left knee disability to service. The Veteran has asserted that he began having left knee pain in service, after his reported injury. The Board notes that he is competent to report symptoms that the lay witness observed and is within the realm of his or her personal knowledge; that is, those which are perceived through the use of the senses. Layno, supra. Knee pain falls into such a category. Therefore, the Veteran is competent to provide lay evidence with regard to an injury and subsequent pain. In this case, the Board finds that the Veteran's reports of left knee pain beginning in service and continuing since that time are not credible. The Veteran's service treatment records do not reflect any treatment for or diagnosis of a left knee disorder. While he may well have injured his left knee in an in-service fall from a telephone pole, as he has indicated, the Veteran never reported any ongoing left knee pain, even though he was seen on multiple occasions for various medical issues including upper respiratory infections, vomiting and stomach pain, shaking problems with his right hand and a sprained third finger of his left hand. In addition, the Veteran never reported the injury or any recurring symptoms on any of his Reports of Medical History or at the time of his separation from service. The Board finds these early reports telling. The records were generated with a view towards ascertaining the appellant's then state of fitness. They are statements he made at the time his fitness was being evaluated and are consequently of greater probative value that the statements made subsequently when he began pursuit of his claim for monetary benefits. Rucker v. Brown, 10 Vet. App. 67, 73 (1997). Moreover, the Veteran has repeatedly contradicted himself with regard to the onset of his left knee pain. At his hearing, he testified that he had left knee pain since his in-service injury and that he had no other injuries to his left knee; however, he reported to VA examiners that he had injured his knee in a fall in December 2009. The Board notes that the evidence of record, beginning with reports prepared as early as July 2004, does not reflect that the Veteran reported any left knee symptoms until after his fall in December 2009. It was only after his December 2009 injury that the Veteran filed his November 2010 claim for entitlement to benefits for his left knee disability. Because of these inconsistencies, the Board concludes that the Veteran's statements with regard to the in-service onset of his left knee pain and the continuation of it from his discharge are not credible. Additionally, the Veteran's statements with regard to the in-service injury and onset of his left knee pain are not consistent with the medical evidence of record. While the Board cannot determine that lay evidence lacks credibility solely because it is unaccompanied by contemporaneous medical evidence, the Board may consider a lack of contemporaneous medical evidence as one factor in determining the credibility of lay evidence. Buchanan, 451 F.3d at 1336-37. There is no medical evidence showing treatment for his left knee for over 30 years after his release from service. The lack of medical evidence of ongoing left knee problems, when considered in conjunction with the inconsistency of the Veteran's statements, weighs against a finding of credibility. The medical evidence of record does not provide any link between his military service and his current left knee disability. The VA providers who have treated the Veteran's left knee disability have not related his injury to any incident of active duty. Therefore, the Board finds that the probative weight of the medical and lay evidence of record is against a history of a chronic left knee disorder during service or any continuity of symptomatology of any problem such as arthritis after the Veteran's military service. As such, the Board finds that entitlement to service connection for a left knee disability is not warranted. In reaching this decision, the Board has considered the applicability of the benefit-of-the-doubt doctrine. However, the preponderance of the evidence is against the appellant's claim of entitlement to service connection for a left knee disability. As such, that doctrine is not helpful to the Veteran in this instance. 38 U.S.C.A. § 5107. COPD At his hearing, the Veteran testified that he had been diagnosed with COPD three years prior to the hearing. The Veteran has not contended that his COPD is related directly to service, but instead alleges that his COPD was due to smoking tobacco products that began during active military service. The Veteran reported that he had been provided with cartons of free cigarettes and that he started smoking because he wanted to be part of the group. He placed part of the blame on himself and part of the blame on the service department. The Veteran's service treatment records reflect that he was seen for bronchitis and was noted to be asthmatic in December 1975. The Veteran reported that he did not have any shortness of breath or asthma on his separation April 1977 Report of Medical History. His separation Report of Medical Examination shows that the Veteran was found to have normal lungs and chest. February 2005 VA medical records show that the Veteran complained of shortness of breath, wheezing, and aching all over. He was assessed with acute bronchitis. In June 2006, the Veteran's wife called in to VA, reporting that he was having difficulty breathing. In July 2006, he was noted to have shortness of breath, and was a smoker. He was seen in the emergency room in May 2007 for shortness of breath. The ER physician noted that the Veteran reported shortness of breath for about one year, and tightening in the throat. It was noted that the Veteran smoked one pack per day. He reported that he had been provided with albuterol a year prior, and that it worked well for him. He was assessed with shortness of breath. A June 2007 X-ray revealed COPD-like changes. The Veteran was diagnosed with COPD in July 2007. A VA examiner sent the Veteran a letter that same month, informing him of their findings and noting that he appeared to respond well to bronchodilator medication. He was encouraged to continue to refrain from smoking. VA medical records show ongoing treatment for his COPD. The Veteran has a diagnosis of COPD, meeting one of the fundamental elements of service connection. Brammer, supra. Thus, the issue in this case, like the knee claim, is whether the evidence of record, including medical and lay evidence, attributes his COPD to military service. The Board finds that the medical evidence of record does not relate his COPD to his active duty. While the Veteran was found to be asthmatic and had bronchitis on one occasion while on active duty in December 1975, at separation he had no respiratory problems and was not diagnosed with a chronic respiratory disorder. The evidence of record shows that the Veteran was not seen for any respiratory complaints until February 2005. The Veteran was diagnosed with COPD in July 2007. The examiners who have treated him for COPD have linked the disorder to smoking, and not to anything else. The Board notes here that service treatment records do reflect a diagnosis of bronchitis during service, and that the Veteran was diagnosed with bronchitis in February 2005. The Board has considered whether service connection is warranted for bronchitis, as part of the Veteran's claim for a respiratory disorder. Ingram v. Nicholson, 21 Vet. App. 232, 256-57 (2007), Brokowski v. Shinseki, 23 Vet. App. 79 (2009); see also Clemons v. Shinseki, 23 Vet. App. 1, 5 (2009). However, recently, the Court held that the current disability requirement is satisfied only when a claimant has a disability at the time a claim for VA disability compensation is filed or during the pendency of that claim, even if the disability resolves prior to adjudication of the claim. See McLain v. Nicholson, 21 Vet. App. 319, 321 (2007). The Veteran was diagnosed with bronchitis in February 2005, which resolved prior to filing a claim of service connection for a respiratory disorder. There is no evidence in the claims file of a recurrence of bronchitis during the appeals period. As such, service connection for such a disorder would not be warranted. With regard to the Veteran's contentions that his COPD results from smoking that began during active duty, the Board notes that for claims received by VA after June 9, 1998, which is the case here, a disability or death will not be considered service connected on the basis that it resulted from injury or disease attributable to the Veteran's use of tobacco products during service. See 38 U.S.C.A. § 1103 (2002); 38 C.F.R. § 3.300 (2012). Therefore, as a matter of law, service connection cannot be granted for any lung disease attributable to the use of tobacco products in service. As the competent and credible evidence of record does not relate COPD to any incident of service other than smoking, service connection is not warranted for COPD. In reaching this decision, the Board has considered the applicability of the benefit-of-the-doubt doctrine. However, the preponderance of the evidence is against the appellant's claim of entitlement to service connection for COPD. As such, that doctrine is not helpful to the Veteran. 38 U.S.C.A. § 5107. ORDER Service connection for a left knee disability is denied. Service connection for COPD is denied. REMAND The VCAA's duty to assist includes a requirement to help a claimant obtain records relevant to his claim, whether or not the records are in Federal custody. 38 C.F.R. § 3.159(c)(4). VA has a duty to obtain records of treatment reported by a private physician. Massey v. Brown, 7 Vet. App. 204 (1994). At his hearing, the Veteran indicated that he currently sees a private provider for his eyes. As these records are not part of the claims file, they should be obtained on remand. With regard to the Veteran's claim for entitlement to a sleep disorder, to include as part of an acquired psychiatric disorder, the Veteran's separation Report of Medical History shows that he had been hospitalized for bad dreams in February 1976, at Ireland Army Hospital. These records are not part of the claims file, and should be sought. VA is obliged to provide an examination when the record contains competent evidence that the claimant has a current disability or signs and symptoms of a current disability, the record indicates that the disability or signs and symptoms of disability may be associated with active service, and the record does not contain sufficient information to make a decision on the claim. 38 U.S.C.A. § 5103A(d); McLendon v. Nicholson, 20 Vet. App. 79 (2006). The types of evidence that 'indicate' that a current disability 'may be associated' with military service include, but are not limited to, medical evidence that suggests a nexus but is too equivocal or lacking in specificity to support a decision on the merits, or credible evidence of continuity of symptomatology such as pain or other symptoms capable of lay observation. The threshold for finding a link between current disability and service is low. Locklear v. Nicholson, 20 Vet. App. 410 (2006); McLendon at 83. A Veteran's reports of a continuity of symptomatology can satisfy the requirement for evidence that the claimed disability may be related to service. McLendon at 83. The Veteran contends that he has an eye disability that is related to active military service. Service treatment records reflect that he was seen for reports of having sand in both of his eyes with small corneal abrasions. He was assessed with conjunctivitis. He reported burning of his eyes in January 1972, along with nausea, vomiting and headaches and was assessed with viral influenza. In December 1974, the Veteran reported that he had sand and chemicals in his eyes, and experienced burning in his eyes. He was assessed with a conjunctival abrasion. In December 1974, he was assessed as having blindness in his left eye. In November 2009, the Veteran was diagnosed with hyperopia, astigmatism, presbyopia and paving stone degeneration. The Veteran has contended that his eyesight became worse during active duty and has continued to worsen since his discharge. The Board finds that, as the Veteran's service treatment records reflect certain eye problems in service, he has contended that he has diminished eyesight since service, and the evidence reflects current eye disabilities, a VA opinion is warranted to determine whether any current eye problem is related to active military service. In providing the opinion, the examiner must indicate whether any of the Veteran's eye disabilities are congenital in nature, and must provide a definite opinion as to whether each disability is due to a congenital "disease" or a congenital "defect." Such a distinction is important because "congenital diseases, but not defects, may be service connected." Quirin v. Shinseki, 22 Vet. App. 390, 394 (2009); see also Winn v. Brown, 8 Vet. App. 510, 516 (1996) (holding that "non-disease or non-injury entities such as congenital defects" are not "disabilities" within the meaning of 38 U.S.C. § 1110); 38 C.F.R. § 3.303(c) (2012) (providing that congenital or developmental defects "are not diseases or injuries" for VA disability compensation purposes). In Quirin, the Court explained that a defect differs from a disease in that the former is more or less stationary in nature while the latter is capable of improving or deteriorating, and stated that any worsening might demonstrate that the condition is a disease. 22 Vet. App. at 394-395 (quoting VAOGCPREC 82-90 (1990)). The Court further explained that an examiner's determination of whether a condition is a congenital disease or defect "must be supported by 'guidance from medical authorities regarding the proper classification of [the] medical condition at issue.'" Id. at 395 (quoting VAOGCPREC 82-90)). The Veteran has also contended that he has a sleep disorder that began during active duty. Service treatment records show that he was seen in September 1971 for severe anxiety after seeing a corpse. It was noted that he had chronic difficulty sleeping, but suffered no ill effects from it. His separation Report of Medical History shows that the Veteran was hospitalized for bad dreams in February 1976. On his November 2010 Form 9, the Veteran asserted that his sleep apnea was caused by bad sleeping problems. He has also submitted a statement indicating that he has had bad dreams since leaving Vietnam, and that some nights are so bad that he wakes up soaking wet and shaking. VA medical records from October 2009 show that it was determined that the did not meet the criteria for a diagnosis of PTSD, but that he had depression. The Veteran indicated that he had been angry, bitter and resentful most of his adult life, and tended to blame this on his experiences in Vietnam. Based on the evidence of record, showing that the Veteran had psychiatric symptoms while on active duty affecting his ability to sleep, and that he now has a diagnosis of depression, which the Veteran attributes to his experiences on active duty, the Board finds that the Veteran should be provided with a VA examination to determine whether he has sleep disturbances that are part of a psychiatric disorder related to active duty. The Veteran has also contended that he has spells when his malaria is in its active phase, and that these occur several times per year, and last anywhere from two to five days. He testified that he experiences symptoms similar to influenza, including headaches, and that he felt that his malaria spells have been misdiagnosed as pneumonia. The Veteran indicated at his hearing that he felt the spells were happening more frequently and were more severe. He submitted a statement from a private physician who noted that he had treated the Veteran in 1990 for one of these spells, which required intravenous fluids, supportive care and close observation. He reported that, at that time, he attributed his condition to influenza; however, in this letter, he opined that his "troublesome symptoms" appear to be the result of malaria. The most recent examination provided to the Veteran to determine the current nature and severity of his malaria was in September 2010. On remand, the Veteran should be provided with another VA examination to determine the severity of his service-connected malaria. The examiner should address the Veteran's contentions regarding the spells he has reported, and consider whether these spells are periods when his malaria is in an active state. Accordingly, the case is REMANDED for the following action: 1. Contact the National Personnel Records Center (NPRC), or any other appropriate agency, and request that a search be conducted of the medical records of the Ireland Army Hospital for February 1976, for treatment for bad dreams. Associate all requests and records received with the claims file. If records are unavailable from any source, a negative reply is requested. 2. Take the necessary steps to obtain all private records pertaining to providing the Veteran with prescription eyeglasses or eye evaluations, in accordance with 38 C.F.R. § 3.159. If additional information is needed to complete this request, the Veteran should be so advised of the specific information needed as well as any necessary medical releases. 3. Schedule the Veteran for a VA examination to determine the etiology of his eye disorders. All indicated tests and studies should be conducted. The claims folder, including this remand, must be sent to the examiner for review. All necessary tests and studies should be conducted. The examiner should identify the appellant's eye disabilities, including a determination of the cause of the appellant's vision loss. The examiner should opine as to whether it is at least as likely as not (50 percent probability or more) that each eye disability has been caused by or is otherwise related to any incident of active duty. The examiner should discuss the Veteran's service treatment records reflecting corneal and conjunctival abrasions after having sand and chemicals in his eyes. If the examiner determines that any vision problem, or contributing factor, is congenital in nature, the examiner must provide a definite opinion as to whether the vision loss is due to a congenital "disease" or a congenital "defect." (To assist the examiner, the Board notes that for VA adjudication purposes a "disease" generally refers to a condition considered capable of improving or deteriorating, whereas a "defect" generally refers to a condition not considered capable of improving or deteriorating. The examiner should specifically consider whether any identified eye condition contributing to the appellant's vision loss has undergone any worsening, or any change at all, that might demonstrate that the condition is a disease.) If the examiner concludes that any vision loss is due to a congenital disease, the examiner should then provide an opinion as to whether the disease was first manifested during, or there was a permanent increase in severity during, any period of active service. If there was an increase during a period of service, the examiner should indicate whether it was due to the natural progress of the condition. If the examiner determines that he/she cannot provide an opinion without resorting to speculation, the examiner should explain the inability to provide an opinion, identifying precisely what facts could not be determined. In particular, he/she should comment on whether an opinion could not be provided because the limits of medical knowledge have been exhausted or whether additional testing or information could be obtained that would lead to a conclusive opinion. Jones v. Shinseki, 23 Vet. App. 382, 389 (2010). (The agency of original jurisdiction (AOJ) should ensure that any additional evidentiary development suggested by the examiner be undertaken so that a definite opinion can be obtained.) The examiner is advised that the Veteran is competent to report his symptoms and history, and such reports must be specifically acknowledged and considered in formulating any opinions. If the examiner rejects the Veteran's reports, the examiner should provide a reason for doing so. 4. Schedule the Veteran for a VA examination to address the claim of service connection for a disability manifested by a sleep disorder, to include sleep apnea. All indicated tests and studies should be conducted, including psychological testing to determine whether sleep impairment has any relationship to the Veteran's mental status. The claims folder, including this remand, must be sent to the examiner for review. The examiner should opine as to whether it is at least as likely as not (50 percent probability or more) that any sleep problem is attributable to his military service, including any incident of active duty. The examiner should include a discussion of the Veteran's service treatment records that show that he reported chronic sleep impairment associated with sleep difficulties and his contentions of nightmares related to service. The examiner should specifically address whether a sleep disturbance is related to any acquired psychiatric disability that is in turn attributable to military service. The examiner must provide reasons for each opinion. The medical reasons for accepting or rejecting the Veteran's statements, especially with regard to continuity of symptoms since shortly after service, should be set forth in detail. If the examiner determines that he/she cannot provide an opinion without resorting to speculation, the examiner should explain the inability to provide an opinion, identifying precisely what facts could not be determined. In particular, he/she should comment on whether an opinion could not be provided because the limits of medical knowledge have been exhausted or whether additional testing or information could be obtained that would lead to a conclusive opinion. Jones v. Shinseki, 23 Vet. App. 382, 389 (2010). (The AOJ should ensure that any additional evidentiary development suggested by the examiner be undertaken so that a definite opinion can be obtained.) 5. The Veteran should be afforded an examination to determine the impairment due to the service-connected malaria. The claims folder must be made available to and reviewed by the examiner. The examiner should take a complete history from the Veteran and determine whether his periods of symptoms such as fever, headaches, myalgia, chills and syncope are related to his malaria. In doing so, the examiner should address the Veteran's statements in the record and the September 2012 letter from his private physician. (The examiner is advised that the Veteran is competent to report symptoms, and that the Veteran's reports must be considered in formulating the opinion. Reasons should be given for all opinions.) 6. The AOJ should ensure that the examination reports comply with the instructions in this remand. Thereafter, the AOJ should undertake any additional evidentiary development deemed appropriate and re-adjudicate the claims remaining on appeal. If a benefit sought on appeal remains denied, the AOJ should issue a supplemental statement of the case. After the Veteran has been given opportunity to respond, the case should be returned to the Board. The appellant has the right to submit additional evidence and argument on the matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This case 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). _________________________________ MARK F. HALSEY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs