Citation Nr: 1314904 Decision Date: 05/06/13 Archive Date: 05/15/13 DOCKET NO. 07-20 354 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Paul, Minnesota THE ISSUES 1. Entitlement to service connection for a low back disorder. 2. Entitlement to service connection residuals of a torn meniscus of the left knee. 3. Entitlement to service connection for obstructive sleep apnea. 4. Entitlement to service connection for irritable bowel syndrome. 5. Entitlement to service connection for a left ankle/tendon disorder. 6. Entitlement to service connection for a right ankle/tendon disorder. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD C. Fetty, Counsel INTRODUCTION The appellant served in a training status with Reserve components at various times between June 1996 and November 2005. He performed active duty for training (ACDUTRA) and inactive duty training (IDT), but he had no active military service. Thus, he has not achieved "veteran" status. 38 U.S.C.A. § 101 (2) (West 2002 & Supp 2012); see also 38 C.F.R. § 3.1 (d) (2012); Paulson v. Brown, 7 Vet. App. 466, 469-70 (1995). Hereinafter, the claimant is referred to as 'the appellant' because he has not achieved 'veteran' status. This case arises to the Board of Veterans' Appeals (Board) from a July 2006 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Phoenix, Arizona, which denied service connection for the aforementioned claims. The claims files were later transferred to the St. Paul, Minnesota, RO. In January 2007, the appellant withdrew a prior hearing request. In October 2010 and again in April 2012, the Board remanded the claims for additional development. Service connection for residuals of a left knee injury, obstructive sleep apnea, irritable bowel syndrome, a left ankle/tendon disorder, and a right ankle/tendon disorder 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. The appellant had ACDUTRA and IDT, but no active military service. 2. IDT does not include attendance at an educational institution in an inactive status. 3. The Appellant strained his low back performing ROTC (Reserve Officer Training Corps) physical training in or around February 1997 while attending New Mexico Military Institute (NMMI); he was not in an ACDUTRA or IDT status at that time. CONCLUSION OF LAW A low back disability was not incurred in or aggravated by ACDUTRA or IDT. 38 U.S.C.A. §§ 101 (2) (24), 1110, 1131, 5107(b) (West 2002); 38 C.F.R. §§ 3.1 (d), 3.6 (a), 3.303, (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Board has remanded the case for development. When the remand orders of the Board are not complied with, the Board itself errs in failing to ensure compliance. See Stegall v. West, 11 Vet. App. 268, 271 (1998). In this case, all remand orders have been complied with. VA must notify and assist claimants in substantiating claims for benefits. 38 U.S.C.A. § 5103A (West 2002); 38 U.S.C.A. §§ 5102, 5103 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.159 and 3.326(a) (2012). Upon receipt of a complete or substantially complete application for benefits, VA must notify the claimant and his representative of any information and any medical or lay evidence that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002). VA must also inform the claimant of any information and evidence not of record that VA will seek to provide and that the claimant is expected to provide. This notice must be provided prior to an initial unfavorable decision. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). In Dingess v. Nicholson, 19 Vet. App. 473 (2006), the U.S. Court of Appeals for Veterans Claims (Court) held that, upon receipt of an application for service-connection, 38 U.S.C. § 5103(a) and 38 C.F.R. § 3.159(b) require VA to provide the claimant with notice of what information and evidence not previously provided, if any, will assist in substantiating, or is necessary to substantiate, each of the five elements of the claim, including notice of what is required to establish service connection and that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. In this case, although a March 2006 notice letter does address the rating criteria and effective date provisions that are pertinent to the claim, because service connection is being denied, no disability rating or effective date will be assigned. VA also has a duty to assist the claimant in the development of the claim. This duty includes assisting the claimant in obtaining service medical records and pertinent treatment records and providing an examination when necessary. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. In determining whether VA must provide a VA medical examination, there are four factors for consideration. These four factors are: (1) whether there is competent evidence of a current disability or persistent or recurrent symptoms of a disability; (2) whether there is evidence establishing that an event, injury, or disease occurred in service, or evidence establishing certain diseases manifesting during an applicable presumption period; (3) whether there is an indication that the disability or symptoms may be associated with service or with another service-connected disability; and (4) whether there otherwise is sufficient competent medical evidence of record to make a decision on the claim. 38 U.S.C. § 5103A(d); 38 C.F.R. § 3.159(c)(4); McLendon v. Nicholson, 20 Vet. App. 79, 81 (2006). With respect to the third factor, the Court has stated that this requires only that the evidence "indicates" that there "may" be a nexus between the current disability or symptoms and service. Evidence that indicates that a disability "may be associated" with military service includes, but is 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. Id, at 83. In this case, an examination and/or medical opinion does not need to be obtained because all the evidence, including that supplied by the appellant, reflects that he injured his low back while in ROTC and not while performing any military duty recognized by VA as giving rise to entitlement to benefits, such as ACDUTRA or IDT. He has not alleged that any ACDUTRA or IDT performed subsequent to his low back injury has aggravated that disability and, because he has not achieved "veteran" status, no presumption of aggravation of a pre-existing condition applies. All necessary development has been accomplished and adjudication may proceed without unfair prejudice to the claimant. See Bernard v. Brown, 4 Vet. App. 384 (1993). VA has obtained VA and private medical reports. Neither the claimant nor his representative has identified, and the record does not otherwise indicate, any additional existing evidence that is necessary for fair adjudication of the claim that has not been obtained. Hence, no further notice or assistance to the claimant is required to fulfill VA's duty to assist in the development of the claim. Smith v. Gober, 14 Vet. App. 227 (2000), aff'd 281 F.3d 1384 (Fed. Cir. 2002). Service Connection The term "active military, naval, or air service," includes active duty, any period of ACDUTRA during which the individual concerned was disabled or died from a disease or injury incurred or aggravated in line of duty, and any period of IDT during which the individual concerned was disabled or died from an injury incurred or aggravated in line of duty or from myocardial infarction or cerebrovascular accident which occurred during such training. 38 C.F.R. § 3.6 (a). In this case, service connection has not been established for any disability and the claimant has no active military service. Rather, the claimant performed ACDUTRA and IDT at various times between 1996 and 2005 Where the appellant served only on ACDUTRA or IDT and had not previously established any service-connected disability, he is not entitled to the presumption of soundness at entry, should any entrance examination not note a condition for which he seeks service connection. Id. The Paulson court stressed that where the presumption of soundness at entry did not apply, a finding of pre-existence of a disability must be shown by a mere preponderance of the evidence. That is, if the evidence with respect to the pre-service existence of the disability was either in equipoise or weighed in favor of the appellant, then the conclusion must be that the condition did not exist prior to service. Where the condition was not noted on the entrance examination report, but is shown later, clear and unmistakable evidence of pre-existence is not necessary. Service connection will be awarded for disability resulting from injury or disease incurred in or aggravated by active service (wartime or peacetime). 38 U.S.C.A. §§ 1110; 1131 (West 2002), 38 C.F.R. § 3.303(a) (2012). Service connection requires competent evidence showing: (1) medical or, in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; (2) medical evidence of current disability; and (3) medical evidence of a causal relationship between the present disability and the disease or injury incurred or aggravated during service. Caluza v. Brown, 7 Vet. App. 498, 506 (1995) aff'd, 78 F.3d 604 (Fed. Cir. 1996). In Caluza, the Court also stressed that § 3.102 states, "The reasonable doubt doctrine is also applicable even in the absence of official records, particularly if the basic incident arose under combat, or similarly stressful conditions [emphasis added], and is consistent with the probable results of such known hardships." Caluza, 7 Vet. App. at 509. Each disabling condition shown by service medical records, or for which the Veteran seeks service connection, must be considered on the basis of the places, types, and circumstances of his service as shown by service records, the official history of each organization in which he served, his medical records, and all pertinent medical and lay evidence. 38 C.F.R. § 3.303(a). "Direct" service connection may be granted for any disease not diagnosed initially until after discharge when all the evidence, including that pertinent to service, establishes that the disease was incurred during service. 38 C.F.R. § 3.303(d); Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994). Once the evidence has been assembled, the Board assesses the credibility and weight to be given to the evidence. Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997) and cases cited therein. When there is an approximate balance of evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C.A. § 5107 (West 2002); 38 C.F.R. § 3.102 (2012). In Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990), the Court stated that a Veteran need only demonstrate that there is an approximate balance of positive and negative evidence in order to prevail. To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert, 1 Vet. App. at 54. According to 38 U.S.C.A. § 1154(a), the Secretary must consider the places, types, and circumstances of the appellant's service, his unit's history, his service medical records, and all pertinent lay and medical evidence in the case. More favorable consideration is afforded combat Veterans under 38 U.S.C.A. § 1154(b), but, because the appellant was not in combat, he will not be afforded this consideration. An April 15, 1996-dated ROTC physical qualification examination report does not mention any relevant pre-existing disorder or defect. The appellant completed a medical history questionnaire and checked "no" to any relevant history such as: arthritis, rheumatism, or bursitis; bone, joint, or other deformity; or recurrent back pain. The report reflects that the appellant was examined for advanced ROTC Basic Camp and that he was normal in all respects. Private medical records from Sprint Sports Rehabilitation Clinic in Roswell, New Mexico, reflect initial treatment for low back pain in February 1997 and continued physical therapy through April 1997. The assessment was "soft tissue strain." The etiology was noted as "Doing sit-ups, he felt pain"..."P.T. test @ NMMI." A July 10, 1998, physical examination report reflects that the appellant was examined again for ROTC basic camp. During the July 1998 examination, no relevant abnormality was found and the appellant reported no relevant history on a report of medical history questionnaire. The Board notes that this ROTC medical examination was apparently a pre-commissioning examination prior to receiving his commission in August 1998, as he had attended ROTC basic camp in 1996. Moreover, pay records and other personnel records, later received, reflect no ACTDUTRA in July 1998. An "Annual Medical Certificate" form, dated and signed in November 2000, reflects that the appellant checked "yes" on the form indicating that he had or currently does receive a disability benefit from VA or Workmen's Compensation for a physical reason. His explanation for his "yes" response was, "Torn back muscle suffered during P.T. test in the winter of 1997." An April 2003 retention examination report for the Army National Guard reflects that the appellant reported chronic low back pain without radiculopathy, left knee locking intermittently, history of irritable bowel syndrome, and increased blood pressures. No etiology was supplied. In an accompanying report of medical history questionnaire, the appellant reported that he received department of labor compensation for lumbar back pain since 1998, which was caused by a P.T. test at the New Mexico Military Institute. With respect to the low back pain, the examiner reported that the appellant currently had no problem passing the Army physical fitness test (APFT). The appellant submitted treatment reports from the Mayo Clinic in Scottsdale, Arizona. A September 2003 report notes back pain. The appellant reported back pain since doing sit-ups in the National Guard. The impression was chronic back pain due to an injury. He received physical therapy at various times in September 2003 for chronic lower back pains. An August 2005 report notes upper and lower back pains. He attributed these to an injury in 1997. The impressions were chronic low back pain and likely T1-T2 thoracic facet inflammation. The appellant submitted his original claim for benefits in November 2005, claiming service connection for the lower back, among other ailments. He reported that he entered active service in June 1996 at Fort Knox, Kentucky, for ROTC basic training. He also reported that he attended the NMMI from September 1996 to June 1998 and was an Army ROTC cadet during that time. He reported that in June 1999 he entered Army Reserve service in Jefferson City, Missouri, but that he left that service in October 1999. He then entered an Arizona Army National Guard field artillery unit in December 2001, but transferred to the 222 Transportation Company, Arizona Army National Guard, in Phoenix, in November 2004. He reported that he had a second period of full-time Reserve duty from May 2005 to the "present" [he signed and dated the form in June 2005]. He indicated on the application form that he had no Federal active duty. On his VA benefits application, he reported that his lower back injury occurred in January 1997 at NMMI. In May 2006, the appellant supplied an official record of duty periods served with the Army National Guard, that is, an NGB [National Guard Bureau] Form 23B. The Form reflects that his Reserve component service begins on August 28, 1996. The Form reflects that from August 28, 1996, through August 10, 1998, the appellant was in a US Army Reserve Control Group. He was enrolled in ROTC with no AD [active duty] [neither ACDUTRA nor active military service was performed] and no IDT. The report states that this is a non-creditable period of service. From August 11 through October 4, 1998, no ACDUTRA or IDT was performed, but the appellant's MMSI [military membership status identifiers] was changed to E1, meaning officer with a pending obligation for active duty. Other information reflects that August 11, 1998, is the date on which he received his commission as a 2nd Lieutenant in the Army. From October 5, 1998, through June 12, 2000, the appellant was an Army National Guard unit member and performed 70 pay periods of IDT and 17 pay periods of ACDUTRA. From June 13 through September 8, 2000, the appellant performed 88 days of continuous National Guard active duty under Title 32, U.S.C., State controlled. According to 38 C.F.R. § 3.6 (c) (3), this duty must be considered ACDUTRA. From September 9, 2000, through January 9, 2002, the appellant was an Army National Guard unit member and performed 18 pay periods of IDT and zero pay periods of ACDUTRA. From January 10 through December 15, 2002, the appellant's MMSI status changed to US Army Reserve Control Group (Reinforcement). He performed no IDT or ACDUTRA. From December 16, 2002, through November 1, 2005, the appellant was an Army National Guard unit member and performed 97 pay periods of IDT and 138 pay periods of ACDUTRA. In February 2007, a service comrade and commissioned Army officer reported witnessing the appellant incur a back injury at NMMI in the winter of 1996. In his June 2007 substantive appeal, the appellant reported that he injured his back doing a P.T. test while on "military time" and that all treatment for his back was paid for by the Department of Defense. In July 2007, a former supervisor recalled that from December 2005 to July 2006, the appellant had worn a knee brace and a back-support belt to work. In July 2007, another service comrade, a non-commissioned officer, recalled Appellant's back and knee complaints in May 2005. Another service comrade, commissioned officer J. C., recalled that the appellant's back problems started in 1997 or earlier. In October 2010, a NMMI ROTC spokesperson reported that the appellant had no verified ACDUTRA between 1996 and 1998 while enrolled as an ROTC cadet, but that he was commissioned as a 2LT (Second Lieutenant) on August 11, 1998. The school had no medical record concerning the appellant. In August 2011, the RO received extensive pay records from the Defense Accounting and Finance Service (DFAS). A DFAS summary letter notes that no pay statement for June through September 1996 was found. From September 1996 through May 1998, the appellant was paid an ROTC subsistence allowance plus reimbursements for books and school fees. Following that, the DFAS pay records note ACDUTRA and IDT periods and the dates that such duty was performed from later 1998 through 2005. While the DFAS summary letter stated that no pay statement for June through September 1996 was found, the DFAS pay records nevertheless reflect that the appellant was paid for duty from June 4 through July 15, 1996. According to 38 C.F.R. § 3.6 (c) (4), duty performed by a senior ROTC program member, when ordered to such duty under 10 U.S.C.A. Chapter 103, will be considered ACDUTRA. The Board concedes that this duty period was likely ACDUTRA and was likely the date of the appellant's ROTC Basic Training Camp, which he was required to complete prior to enrolling in advanced ROTC at NMMI in August 1996. His DFAS pay records suggest that he was paid at ACDUTRA pay rates for this duty. Other ROTC training can be considered as IDT, if verified by IDT pay records. According to 38 C.F.R. § 3.6 (d) (3), training other than ACDUTRA performed by a member, or an applicant for membership in the Senior ROTC, when ordered to such duty under 10 U.S.C.A. Chapter 103, shall be considered IDT. But, according to 38 C.F.R. § 3.6 (d) (4) (ii) IDT does not include attendance at an educational institution in an inactive status. In this case, no pay record identifies any IDT payment while the appellant was enrolled in ROTC in an inactive status from August 1996 through May 1998. In April 2012, the Board remanded the case for a search for additional ACDUTRA and IDT pay records. None were located. The appellant claims he strained his low back doing ROTC physical training in or around February 1997. Various medical records and lay witness statements mentioned above tend to corroborate this injury and the claimed etiology. These facts are not in dispute. What is in dispute is the appellant's duty status while attending NMMI. In his June 2007 substantive appeal, the appellant reported that he injured his back doing a P.T. test while on "military time" and that all treatment for his back was paid for by the Department of Defense. In November 2000, however, he had completed a medical certificate indicating that he received disability benefits from VA or a Workmen's Compensation claim for a torn back muscle. He also had previously reported that he received Department of Labor compensation for that injury. Regardless of what the appellant has reported, the lower back injury clearly occurred while he was enrolled in ROTC at NMMI, an educational institution. He was not in an ACDUTRA or IDT status at that time according to his DFAS pay record. Although he was receiving an ROTC subsistence stipend at the time, as noted above, IDT does not include attendance at an educational institution in an inactive status. 38 C.F.R. § 3.6 (d) (4) (ii). Further, there is no evidence or allegation that the low back injury has been aggravated by any period of IDT or ACTDUTRA performed since the February 1997 low back injury. Thus, VA service connection for disability due to this injury is barred by law. After considering all the evidence of record, the Board finds that the preponderance of it is against the claim. Because the preponderance of the evidence is against the claim, the benefit of the doubt doctrine is not for application. See 38 U.S.C.A. § 5107 (West 2002); Gilbert, 1 Vet. App. at 53. The claim for service connection for residuals of a low back injury must be denied. ORDER Service connection for a low back disorder is denied. REMAND VA's duty to assist includes providing a medical examination or obtaining a medical opinion where such is necessary to make a decision on the claim. See 38 U.S.C. § 5103 (West 2002); McLendon v. Nicholson, 20 Vet. App. 79 (2006). Because the appellant has presented plausible claims, a medical opinion should be obtained prior to adjudication of these claims. An AD (active duty) pay period is one 8-hour work day. An ACDUTRA pay period is one 8-hour work day. An IDT pay period is one four-hour work day. Two IDT pay periods may be performed in one day. For purposes of this remand, the appellant's documented periods of performing ACDUTRA and IDT are as follows: From August 28, 1996, through August 10, 1998, the appellant was in a US Army Reserve Control Group. He was enrolled in ROTC with no AD, ACDUTRA, or IDT. From August 11 through October 4, 1998, no AD or IDT was performed. From October 5, 1998, through June 12, 2000, the appellant performed 70 pay periods of IDT and 17 days of ACDUTRA. From June 13 through September 8, 2000, the appellant performed 88 continuous days of ACDUTRA. From September 9, 2000, through January 9, 2002, the appellant performed 18 pay periods of IDT and zero pay periods of ACDUTRA. From January 10 through December 15, 2002, the appellant performed no IDT or ACDUTRA. From December 16, 2002, through November 1, 2005, the appellant performed 97 pay periods of IDT and 138 pay periods of ACDUTRA. Service connection for a Torn Left Meniscus An April 15, 1996-dated ROTC physical qualification examination report does not mention any relevant pre-existing disorder or defect. A July 10, 1998, physical examination report reflects that no relevant abnormality was found and the appellant reported no relevant history on a report of medical history questionnaire. An April 2003 retention examination report for the Army National Guard reflects that the appellant reported left knee locking intermittently. No etiology was supplied. The examiner reported that the appellant currently had no problem passing the Army's physical fitness test. A September 2003 Mayo Clinic magnetic resonance imaging study reflects a left medial meniscus tear. A November 2003 report recommends left knee surgery. A December 2003 Mayo Clinic report mentions that at age 18 (about 8 years prior to the current date) the left knee popped while playing sports and the appellant has had intermittent left knee problems ever since. The problems were now occurring with increased frequency. Mayo Clinic reports reflect that left knee arthroscopy was performed in February 2005. A March 2005 report notes left knee pain despite recent arthroscopy. The report mentions that the appellant was employed full-time with the National Guard, which required a lot of physical training and running. The relevant impression was post-status left knee arthroscopy and meniscectomy with ongoing pain. While the March 2005 Mayo Clinic report mentions that the appellant was employed full-time with the National Guard, DFAS pay records reflect that this full-time National Guard employment status began in May 2005. He was in ACDUTRA status from May 15 through September 30, 2005. During that time, in July 2005, his National Guard unit placed him on a temporary physical profile due to left knee surgery. In October 2005, the appellant was informed by letter from his National Guard state headquarters that he no longer met the medical standards for retention in the force. The letter does not mention the left knee, but does inform the appellant that his medical discharge was for "a Non-duty related condition" and that he had a right to a PEB (physical evaluation board) retention ruling if he so elected. The appellant elected to be separated without a further PEB retention ruling. Another October 2005 letter informed him that he would be separated effective November 1, 2005. The appellant submitted his original claim for benefits in November 2005, claiming service connection for the left knee, among other ailments. He had reported on the form that he had a period of full-time Reserve duty from May 2005 to the "present" [he had signed and dated the form in June 2005]. He reported that he tore the left meniscus in June 2003 and was treated for this at the Mayo Clinic. In March 2007, a service comrade reported having known the appellant in June 1996 at Fort Knox. The comrade recalled that the appellant hurt his knee and that he helped the appellant get around for the rest of the time while there were at Fort Knox. In his June 2007 substantive appeal, the appellant reported that his left knee injury was sustained at Fort Knox. In July 2007, a former supervisor recalled that from December 2005 to July 2006, the appellant had worn a knee brace. In July 2007, another service comrade, a non-commissioned officer, recalled Appellant's knee complaints in May 2005. Another service comrade, commissioned officer J. C., reported that the appellant had once told him that during basic training he had knee problems. It would be helpful to the Board if the appellant's left knee were examined to determine the nature and etiology of any current left knee disorder. The examiner should elicit a history of relevant symptoms from the appellant. A diagnosis should be offered. For each diagnosis offered, the examiner should address whether it is at least as likely as not (50 percent or greater possibility) that the disability was caused or aggravated by any period of ACDUTRA or IDT, the dates of which are set forth above. Service Connection for Obstructive Sleep Apnea An April 15, 1996-dated ROTC physical qualification examination report does not mention any relevant pre-existing disorder or defect. At that time, the appellant completed a medical history questionnaire and checked "no" to any relevant history such as: ear, nose, or throat trouble. The report reflects that the appellant was examined for the advanced ROTC Basic Camp and that he was normal in all respects. A July 10, 1998, physical examination report reflects that the appellant was examined again for ROTC basic camp. The Board notes that this ROTC physical examination was apparently a pre-commissioning examination prior to commissioning in August 1998, as he had attended ROTC basic camp in 1996. No relevant abnormality was found and the appellant reported no relevant history on a report of medical history questionnaire. An April 2003 retention examination report for the Army National Guard does not mention any apnea or breathing problem. The appellant submitted treatment reports from the Mayo Clinic in Scottsdale, Arizona. An October 2003 Mayo Clinic report reflects that the appellant reported that he has snored for as long as he can remember. Another October 2003 Mayo Clinic report attributes a nasal obstruction to a septal deformity and turbinate hypertrophy. In turn, the snoring habit was related to the nasal obstruction. Possible obstructive sleep apnea was the final impression. The appellant underwent nasal reconstruction surgery in November 2003 at the Mayo Clinic. Subsequent Mayo Clinic reports note sleep apnea, treated with a CPAP device (continuous positive airway pressure). Another November 2003 report contains an impression of sleep apnea syndrome, among other ailments. A January 2004 Mayo Clinic sleep-study report indicates mild obstructive sleep apnea-hypopnea syndrome with upper airway resistance. In October 2005, the appellant was informed by letter from his National Guard state headquarters that he no longer met the medical standards for retention in the force. The letter informed the appellant that his medical discharge was for "a Non-duty related condition" but that he had a right to a PEB (physical evaluation board) retention ruling if he so elected. The appellant elected to be separated without a PEB. Another October 2005 letter informed him that he would be separated effective November 1, 2005. The appellant submitted his original claim for benefits in November 2005, claiming service connection for sleep apnea, among others. On his VA benefits application, he reported that sleep apnea and snoring began in July 1998 and was treated at the Mayo Clinic in 2003 and 2004. In March 2007, a service comrade reported having known the appellant in June 1996 at Fort Knox. The comrade recalled loud snoring. In his June 2007 substantive appeal, the appellant reported that he was discharged because of sleep apnea, which began at Fort Knox, while on active duty, due to throat trauma. J. C., a commissioned Army officer, reported that the appellant had once told him that he had a strep throat while at basic training in 1996. While the appellant's substantive appeal reflects a belief that sleep apnea began at Fort Knox (the site of his ROTC basic training in June and July 1996), in his VA application he reported that it began in July 1998, prior to his commissioning. Appellant's substantive appeal also argues that he was discharged from the National Guard because of sleep apnea. His discharge documents do not mention the medical reason for the discharge, but it appears that his left knee disability was the cause of his discharge. This is so because at the time he was on a physical profile due to left knee surgery. Although the appellant also reported a history of snoring as long as he can remember, Mayo Clinic records reflect that the claimed disability, sleep apnea, was first clinically identified in October 2003. Thus, it is plausible that sleep apnea might have arisen during a previous period of ACDUTRA. To the extent that sleep apnea or sleep apnea syndrome is a disease entity, rather than the result of an injury, service connection is available only if it was caused or aggravated by a period of ACDUTRA, the dates of which are set forth above. Service connection is not available for a disease incurred in or aggravated by IDT. 38 C.F.R. § 3.6 (a). It would be helpful to the Board if the appellant's sleep apnea is examined to determine the nature and etiology of it. The examiner should elicit a history of relevant symptoms from the appellant. A diagnosis should be offered. For each diagnosis offered, the examiner should address whether it is at least as likely as not (50 percent or greater possibility) that the disability was caused or aggravated by any period of ACDUTRA, the dates of which are set forth above. Service Connection for Irritable Bowel Syndrome An April 15, 1996-dated ROTC physical qualification examination report does not mention any relevant pre-existing disorder or defect. At that time, the appellant completed a medical history questionnaire and checked "no" to any relevant history such as: stomach, liver, or intestinal trouble; piles or rectal disease. The report reflects that the appellant was examined for the advanced ROTC Basic Camp and that he was normal in all respects. A July 10, 1998, physical examination report reflects that the appellant was examined again for ROTC basic camp. This ROTC physical examination was apparently a pre-commissioning examination prior to commissioning in August 1998, as he had attended ROTC basic camp in 1996. No relevant abnormality was found and the appellant reported no relevant history on a report of medical history questionnaire. An April 2003 retention examination report for the Army National Guard reflects that the appellant reported a history of irritable bowel syndrome. No etiology was supplied. In an accompanying report of medical history questionnaire, the appellant reported a history of painful bowels, which his father and sister also had. An October 2003 Mayo Clinic report concerning a sleep disorder also mentions a history of "...what sounds like irritable bowel." A November 2003 report contains an impression of irritable bowel syndrome. A July 2005 Mayo Clinic report notes a complaint of persistent constipation. The appellant mentioned a history of irritable bowel syndrome for at least a year and he suspected that this was caused by food eaten during military service. The assessment was chronic constipation, for which a stool softener was prescribed. An August 2005 report notes partial relief due to the stool softener. The appellant submitted his original claim for benefits in November 2005, claiming service connection for a bowel condition, among others. Concerning his claimed bowel condition, he supplied no information. To the extent that irritable bowel syndrome is a disease entity, rather than the result of an injury, service connection is available only if it was caused or aggravated by a period of ACDUTRA. Service connection is not available for a disease incurred in or aggravated by IDT. 38 C.F.R. § 3.6 (a). It would be helpful to the Board if the appellant's irritable bowel syndrome is examined to determine the nature and etiology of it. The examiner should elicit a history of relevant symptoms from the appellant. A diagnosis should be offered. For each diagnosis offered, the examiner should address whether it is at least as likely as not (50 percent or greater possibility) that the disability was caused or aggravated by any period of ACDUTRA, the dates of which are set forth above. Service Connection for Right and Left Ankle/Tendon Disorders The Board has combined the right and left ankle claims for purposes of this remand, as it appears that the conditions have a common etiology. An April 15, 1996-dated ROTC physical qualification examination report does not mention any relevant pre-existing disorder or defect. The appellant completed a medical history questionnaire and checked "no" to any relevant history such as: arthritis, rheumatism, or bursitis; bone, joint, or other deformity; or lameness. The report reflects that the appellant was examined for the advanced ROTC Basic Camp and that his feet and lower extremities were normal. A July 10, 1998, physical examination report reflects that the appellant was examined again for ROTC basic camp. No relevant abnormality was found and the appellant reported no relevant history on a report of medical history questionnaire. An April 2003 retention examination report for the Army National Guard reflects that the lower extremities and feet were normal. In an accompanying report of medical history questionnaire, the appellant reported a history of emergency room treatment for a severely sprained ankle, but offered no other details. He checked "no" to a history of any foot trouble and "no" to a history of impaired use of legs or feet. A March 2005 Mayo Clinic report mentions a complaint of chronic, long-term flat foot difficulties. The report mentions that orthotics had been issued when Appellant was in grade school and junior high. The pain was along the medial portion of the ankles. The report mentions that the appellant was employed full-time with the National Guard, which required a lot of physical training and running. The relevant impression was pronatory gait abnormalities secondary to high forefoot varus. Semi-rigid orthotic shoe inserts were recommended. The appellant submitted his original claim for benefits in November 2005, claiming service connection for both ankles, among other ailments. On his VA benefits application, he reported that a bilateral ankle/tendon condition requiring orthotics began in 1998-99, and was treated at the Mayo Clinic in March 2005. It would be helpful to the Board if the appellant's ankles and feet were examined to determine the nature and etiology of any current ankle/tendon disorder. The examiner should elicit a history of relevant symptoms from the appellant and examiner the ankles. A diagnosis should be offered. For any diagnosis offered, the examiner should address whether it is at least as likely as not (50 percent or greater possibility) that the disability was caused or aggravated by any period of ACDUTRA or IDT, the dates of which are set forth above. Accordingly, the case is REMANDED for the following action: 1. The AMC must ensure that up-to-date treatment reports are obtained. 2. The AMC should make arrangements for an examination of the left knee and both ankles by an orthopedist (an M.D.). The claims files and any records in Virtual VA should be made available to the physician for review. The physician is asked to review the pertinent medical history, including any relevant records in Virtual VA, note that review in the report, elicit a history of relevant symptoms from the appellant, examine the appellant's left knee and both ankles/tendons/feet, and offer a diagnosis or diagnoses, if forthcoming. For each diagnosis offered, the examiner should address whether it is at least as likely as not (50 percent or greater possibility) that the disability was caused or aggravated by any period of ACDUTRA or IDT, the dates of which are set forth above. The physician should offer a rationale for any conclusion in a legible report. 3. The AMC should make arrangements for an examination for sleep apnea by an ear-nose-throat specialist or other appropriate specialist (an M.D.). The claims files and any records in Virtual VA should be made available to the physician for review. The physician is asked to review the pertinent medical history including any files contained in Virtual VA, note that review in the report, elicit a history of relevant symptoms from the appellant, examine the appellant to determine the nature and etiology of sleep apnea and offer a diagnosis or diagnoses, if forthcoming. For each diagnosis offered, the examiner should address whether it is at least as likely as not (50 percent or greater possibility) that the disability was caused or aggravated by any period of ACDUTRA, the dates of which are set forth above. The physician should offer a rationale for any conclusion in a legible report. 4. The AMC should make arrangements for an examination by a gastroenterologist or other appropriate specialist (an M.D.). The claims files and any records in Virtual VA should be made available to the physician for review. The physician is asked to review the pertinent medical history including any files contained in Virtual VA, note that review in the report, elicit a history of relevant symptoms from the appellant, examine the appellant to determine the nature and etiology of his irritable bowel complaints and offer a diagnosis or diagnoses, if forthcoming. For each diagnosis offered, the examiner should address whether it is at least as likely as not (50 percent or greater possibility) that the disability was caused or aggravated by any period of ACDUTRA, the dates of which are set forth above. The physician should offer a rationale for any conclusion in a legible report. 5. After the development requested above has been completed to the extent possible, the AMC should re-adjudicate the claims for service connection for the left knee, obstructive sleep apnea, irritable bowel syndrome, and for left and right ankle/tendon disabilities. If the benefits sought remain denied, the appellant and his representative should be furnished a supplemental statement of the case and given an opportunity to respond thereto. 6. The AMC must notify the appellant that failure to report for examination, without good cause, may have adverse consequences on his claims. 38 C.F.R. § 3.655 (2012). If the appellant does not report for the aforementioned VA examination, the claims file must contain a copy of the notice of examination that was sent to the appellant, including any notice returned to VA as undeliverable. Thereafter, the case should be returned to the Board, if in order. The Board intimates no opinion as to the ultimate outcome of this case. No action by the appellant is required until he receives further notice. The appellant 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 or by the Court 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). ______________________________________________ L. M. BARNARD Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs