Citation Nr: 1328378 Decision Date: 09/05/13 Archive Date: 09/16/13 DOCKET NO. 06-35 062 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Atlanta, Georgia THE ISSUES 1. Entitlement to service connection for a chronic left shoulder disability. 2. Whether there is new and material evidence to reopen a previously denied claim for service connection for sleep apnea. 3. Entitlement to service connection for obstructive sleep apnea. 4. Whether there is new and material evidence to reopen a previously denied claim for service connection for hypertension. 5. Entitlement to service connection for hypertension. 6. Whether there is new and material evidence to reopen a previously denied claim for service connection for a chronic skin disability, also claimed as rash on the chest, back, and jock area, and "staph" infection. 7. Entitlement to service connection for a chronic skin disability, also claimed as rash on the chest, back, and jock area, and "staph" infection. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD Biswajit Chatterjee, Counsel INTRODUCTION The Veteran served on active duty from February 1973 to February 1976, November 1976 to May 1980, October 2001 to September 2002, and January 2003 to July 2004. This appeal to the Board of Veterans' Appeals (Board) is from a May 2004 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Atlanta, Georgia, which denied the Veteran's petitions to reopen previously denied claims for service connection for sleep apnea, hypertension, and skin disability, and a left shoulder service-connection-claim. In May 2012, the Board remanded the case to the RO, via the Appeals Management Center (AMC), for additional development and consideration. This development was accomplished and the AMC returned the file to the Board for further appellate review. As discussed below, the Board is reopening the claims for entitlement to service connection for obstructive sleep apnea, hypertension and a chronic skin disability. Then, the reopened issues of entitlement to service connection for obstructive sleep apnea, hypertension and a chronic skin disability are addressed in the REMAND portion of the decision below and are REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDINGS OF FACT 1. The preponderance of the evidence is against a finding that the Veteran has had a chronic left shoulder disability. 2. The evidence received since the RO's final decisions in November 1997 (hypertension) and January 1999 (obstructive sleep apnea; and herpetic rash, to include claim for rash on chest, back and jock area) is new in that it is not cumulative and was not previously considered by decision makers. The evidence is also material because it raises a reasonable possibility of substantiating the Veteran's claims. CONCLUSIONS OF LAW 1. A chronic left shoulder disability was not incurred in or aggravated by the Veteran's military service. 38 U.S.C.A. §§ 1110, 1131, 5103, 5103A (West 2002); 38 C.F.R. §§ 3.159, 3.303 (2013). 2. The November 1997 rating decision denying service connection for hypertension is final and binding. 38 U.S.C.A. § 7105 (West 2002); 38 C.F.R. §§ 3.104(a), 3.160(d), 20.200, 20.302, 20.1103 (2013). 3. New and material evidence has been received to reopen the claim for service connection for hypertension. 38 U.S.C.A. §§ 5108, 7105(West 2002); 38 C.F.R. § 3.156(a) (2013). 4. The January 1999 rating decision denying service connection for obstructive sleep apnea, and for herpetic rash, to include claim for rash on chest, back and jock area, is final and binding. 38 U.S.C.A. § 7105 (West 2002); 38 C.F.R. §§ 3.104(a), 3.160(d), 20.200, 20.302, 20.1103 (2013). 5. New and material evidence has been received to reopen the claims for service connection for obstructive sleep apnea, and for herpetic rash, to include a claim for rash on chest, back and jock area. 38 U.S.C.A. §§ 5108, 7105(West 2002; 38 C.F.R. § 3.156(a) (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Duties to Notify and Assist In this decision, the Board is reopening the service- connection claims for hypertension, a chronic skin disability and sleep apnea on the basis of new and material evidence. There is consequently no need to discuss whether the Veteran has received sufficient notice insofar as the specific reasons for the prior final denial. Even if he has not, this is inconsequential and at most harmless error. See Kent v. Nicholson, 20 Vet. App. 1 (2006); see also Bernard v. Brown, 4 Vet. App. 384, 392-94 (1993). Unfortunately, the AMC must still fulfill other aspects of the duties to notify and assist. This is the reason the Board is remanding the underlying claims for entitlement to service connection, rather than immediately readjudicating them de novo on the merits. 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, and 5126 (West 2002 & Supp. 2013)) redefined VA's duty to assist a claimant 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, and 3.326(a) (2013). The notice requirements of the VCAA require VA to notify the claimant of any evidence that is necessary to substantiate the claim, as well as the evidence VA will attempt to obtain and which evidence he is responsible for providing. 38 C.F.R. § 3.159(b) (2013). These notice requirements apply to all five elements of a service-connection claim (Veteran status, existence of a disability, a connection between the Veteran's service and the disability, degree of disability, and effective date of the disability). Dingess v. Nicholson, 19 Vet. App. 473 (2006). VCAA notice must be provided to a claimant before the initial unfavorable decision on a claim for VA benefits by the agency of original jurisdiction (in this case, the RO). Id.; see also Pelegrini v. Principi, 18 Vet. App. 112 (2004). However, the VCAA notice requirements may be satisfied if any errors in the timing or content of such notice are not prejudicial to the claimant. See Pelegrini, 18 Vet. App. at 121. In January 2004, November 2004, April 2005 and May 2012 letters, the Veteran was provided notice regarding what information and evidence is needed to substantiate his claim for service connection for a left shoulder disability, as well as what information and evidence must be submitted by the Veteran and what information and evidence will be obtained by VA. He was also advised him of how disability evaluations and effective dates are assigned, and the type of evidence that impacts those determinations in March 2006 and May 2012 letters. The claim was readjudicated in the December 2012 Supplemental Statement of the Case (SSOC). VA has also satisfied the duty-to-assist for the Veteran's left shoulder claim. The record also reflects that VA has made reasonable efforts to obtain relevant records adequately identified by the Veteran. Specifically, the information and evidence that have been associated with the claims file include the Veteran's available service treatment records for all periods of active duty service, VA and identified private treatment records, and May 2005 and October 2012 VA examination reports. There is no contention or indication of other outstanding records pertinent to his left shoulder claim, and in fact, he admitted to the October 2012 examiner that he has not sought recent medical treatment for his left shoulder. Here, the Board found additional medical comment was necessary to supplement the negative etiological opinion provided by the May 2005 VA orthopedic examiner. There is also substantial compliance with the Board's May 2012 Remand directive for a VA examination and etiological opinion, which was sought and arranged in October 2012. The Board observes that the October 2012 VA examination and medical opinion was thorough and adequate, since it was based on a review of the entire claims file, consideration of the lay statements and medical findings. See Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). As such, another VA examination and medical nexus opinion is not warranted. 38 C.F.R. § 3.159(c)(4). The Board is therefore satisfied that the AMC substantially complied with prior remand instructions. See Stegall v. West, 11 Vet. App. 268 (1998). The Board concludes that all available records and medical evidence has been obtained in order to make an adequate determination as to the left shoulder claim. Therefore, the Board finds that VA has complied with the duty-to-assist requirements for the left shoulder claim. 38 U.S.C.A. § 5103A. II. Analysis-New and Material Evidence Unappealed rating decisions by the RO are final with the exception that a claim may be reopened by submission of new and material evidence. 38 U.S.C.A. §§ 5108, 7105(c) (West 2002). When determining whether a claim should be reopened, the Board performs a two-step analysis. The first step is to determine whether the evidence presented or secured since the last final disallowance of the claim is "new" and "material." See 38 U.S.C.A. § 5108; Smith v. West, 12 Vet. App. 312 (1999). Second, if VA determines that new and material evidence has been added to the record, the claim is reopened and VA must evaluate the merits of a Veteran's claim in light of all the evidence, both new and old. Manio v. Derwinski, 1 Vet. App. 140 (1991); Barnett v. Brown, 83 F.3d 1380, 1383 (Fed. Cir. 1996); Butler v. Brown, 9 Vet. App. 167, 171 (1996). In determining whether evidence is new and material, the credibility of the evidence is to be presumed. Justus v. Principi, 3 Vet. App. 510 (1992). VA regulation defines "new" as existing evidence not previously submitted. "Material" evidence means existing evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. If the evidence is new and material, the next question is whether the evidence raises a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a) (2011). The Court clarified that the phrase "raises a reasonable possibility of substantiating the claim" is meant to create a low threshold that enables, rather than precludes, reopening. Shade v. Shinseki, 24 Vet. App. 110 (2010). The Court held that when evaluating the materiality of newly submitted evidence, the Board should not focus solely on whether the evidence remedies the principal reason for denial in the last prior decision, but rather should focus on whether the evidence, taken together, could at least trigger the duty to assist by providing a medical opinion. Id. at 117. A finally adjudicated claim is an application which has been allowed or disallowed by the agency of original jurisdiction (AOJ), the action having become final by the expiration of one year after the date of notice of an award or disallowance, or by denial on appellate review, whichever is the earlier. 38 U.S.C.A. §§ 7105 (West 2002); 38 C.F.R. §§ 3.160(d), 20.302, 20.1103 (2013). The RO's November 1997 (hypertension) and January 1999 (obstructive sleep apnea; and herpetic rash, to include claim for rash on chest, back and jock area) decisions became final at the time they were respectively rendered. The evidence of record prior to both the November 1997 (hypertension) and January 1999 (obstructive sleep apnea; and herpetic rash, to include claim for rash on chest, back and jock area) decisions did not include the service treatment records dated after these decisions, which are now associated with the claims file. That is, the evidence received subsequent to the November 1997 and January 1999 rating decisions includes service treatment records for his subsequent periods of active duty from October 2001 to September 2002, and January 2003 to July 2004, which reflect complaints, treatment and diagnoses for his hypertension, obstructive sleep apnea and a skin rash of his chest, back and scrotum. Presuming the credibility of the evidence for the sole purpose of determining whether new and material evidence has been received, the new service treatment records indicate in-service incurrence or aggravation of hypertension, obstructive sleep apnea and a chronic skin rash disability. Consequently, the Board finds that the new evidence relates to unestablished facts and raises a reasonable possibility of substantiating the claim. See Shade, 24 Vet. App at 117. The new, relevant service treatment records amount to evidence that is not cumulative or redundant, relates to unestablished facts necessary to substantiate the claims, and raises a reasonable possibility of substantiating the claims. 38 C.F.R. § 3.156. Such evidence is new and material, and the claims for service connection for hypertension, obstructive sleep apnea and a chronic skin disability are reopened. III. Analysis-Service-Connection for a Chronic Left Shoulder Disability The Veteran contends that he has a left shoulder disability, due to a left shoulder injury from falling during physical training on active duty in 2001, and was seen afterwards by a military doctor and referred to therapy. Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active military, naval, or air service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). As a general matter, service connection for a disability requires evidence of: (1) the existence of a current disability; (2) the existence of the disease or injury in service, and; (3) a relationship or nexus between the current disability and any injury or disease during service. Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004); see also Hickson v. West, 12 Vet. App. 247, 253 (1999), citing Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd, 78 F.3d 604 (Fed. Cir. 1996). Certain chronic diseases such as arthritis will be presumed to have been incurred in service if manifested to a compensable degree of at least 10 percent within one year after service. This presumption, however, is rebuttable by probative evidence to the contrary. 38 U.S.C.A. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309. On review, the Board finds that the preponderance of the evidence is against a finding that the Veteran has a current, chronic left shoulder disability. There is some, albeit not conclusive, evidence of in-service injury to the left shoulder during his third (out of four) periods of active duty service from October 2001 to September 2002. Specifically, the service treatment records show the Veteran complained of left shoulder pain, including the left side of the neck, in May 2002, after an injury from playing volleyball in April 2002. Importantly, the service clinician did not diagnose a left shoulder disorder. However, there were initial diagnoses of cervical strain/pain/spasm with radiculopathy of the left arm and hand, although x-ray evidence of the cervical spine was within normal limits. The active duty service treatment records for 2001-2002 reveal multiple complaints of, and treatment for, left shoulder pain and weakness. The Veteran also received in-service physical therapy from May 2002 to June 2002 for left shoulder pain. In contrast, his few service treatment records for the last period of service (January 2003 to July 2004) are silent for any left shoulder problems. Nonetheless, his service treatment records for the periods of active duty from 2001-2002 and 2003-2004 simply do not show any diagnoses for a left shoulder disability. There is also no indication of left shoulder arthritis within one year of separation from these periods of active duty, e.g., by September 2003 or by July 2005. 38 U.S.C.A. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309. When the Veteran was examined in May 2005, the Veteran complained of left shoulder pain. The examiner's noted that shoulder x-rays showed no evidence of acute injury, destructive process or other significant abnormality seen. Nonetheless, the May 2005 examiner provided a diagnosis of left shoulder impingement syndrome with some bursitis. The examiner then provided a negative nexus opinion, stating that it was less likely as not that his shoulder disorder is related to his active military service because of the lack of documented evidence in his service treatment records indicating that he had a disabling injury to the shoulder. However, the Board remanded this claim in May 2012 for an addendum nexus opinion, to consider the Veteran's lay statements of in-service pain and weakness. See Barr, 21 Vet. App. at 311. See Dalton v. Nicholson, 21 Vet. App. 23 (2007). The AMC then arranged for a VA examination and nexus opinion in October 2012. At the October 2012 VA examination, the Veteran reported a history of pain in the napses of the neck on the left side, radiating to the top of the left shoulder and noting "he feels it in the joint." The Veteran reported to the October 2012 examiner that he has not sought recent medical treatment, but has been taking over-the-counter pain medication as necessary. The examiner specifically stated that the Veteran does not now nor has he ever had a shoulder and/or arm condition; and also stated that he does not have any functional loss and/or impairment of the shoulder and arm. Notably, the October 2012 VA examiner declined to provide a diagnosis for a left shoulder disability, and the X-ray testing of the left shoulder was unremarkable. Upon physical examination, consideration of all the service treatment records and post-service medical records, and lay statements, the October 2012 VA examiner opined that the claimed left shoulder condition "was less likely than not (less than 50 percent probability) incurred in or caused by the claimed in-service injury, event, or illness. The examiner reasoned several-fold: (1) "Exam and X-rays today show no objective pathology in the left shoulder."; (2) His symptoms are more likely to be related to cervical spine pathology; (3) "The diagnosis of left shoulder impingement was not a firm diagnosis but a suggestion in the May 2005 exam. There is no firm evidence that this is present today." (4) Physical therapy in 2002 relates to the left shoulder, but not in a specific way, as the therapy also covered the back, left arm, trapezius and chest [emboldened for emphasis]. Thus, within the rationale of the October 2012 examination report are medical findings specifically discounting the notion that the Veteran has ever had objective medical findings confirming a chronic left shoulder disability, including clarifying that the May 2005 finding of left shoulder impingement was a mere suggestion, not diagnosis. Moreover, a review of his VA treatment records and private treatment records does not otherwise reveal any chronic left shoulder disability at any time since his claim was filed in September 2003. The Board acknowledges that the Veteran is competent to report having experienced left shoulder pain and weakness both during periods of active duty and a continuity of symptoms since service. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); Barr , 21 Vet. App. 303; and 38 C.F.R. § 3.159(a)(2). Acknowledging the Veteran's post- service symptoms of left shoulder pain and weakness, nonetheless, he is not competent to ascribe these symptoms to a particular diagnosis of any chronic left shoulder disability, particularly including the May 2005 examiner's diagnosis of left shoulder impingement syndrome, or other perceived chronic left shoulder disability; or attribute his current symptoms to his active duty service. Rather, specialized medical expertise as well as independent physical evaluation and diagnostic testing, such as performed by the VA examiners, including X-ray testing, are required to diagnose the chronic left shoulder disability. See Woehlaert v. Nicholson, 21 Vet. App. 456 (2007) (certain disabilities are not conditions capable of lay diagnosis). The Board finds that he is not competent to self-diagnose any chronic left shoulder disability. This requires medical expertise that the Veteran fails to possess. Since the Board does not find the Veteran's lay statements to be competent to establish the missing element of a present disability for the left shoulder claim, there is no need to consider the credibility of his lay statements in this regard, even though this, too, affects its ultimate probative value. See Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). The preponderance of the evidence shows that the Veteran's claim fails to meet the preliminary requirement for service connection, namely showing of a current disability. Fundamental to the claim is that the Veteran first has to establish she has a chronic disability. See Brammer v. Derwinski, 3 Vet. App. 223 (1992); and Degmetich v. Brown, 8 Vet. App. 208 (1995); 104 F.3d 1328, 1332 (1997) (holding that VA compensation only may be awarded to an applicant who has disability existing on the date of application, not for past disability). Since the time the Veteran filed his claim in September 2003 and/or at any time during the pendency of the appeal, the preponderance of the evidence shows he has not had a chronic left shoulder disability. See McClain v. Nicholson, 21 Vet. App. 319, 321 (2007) (clarifying that requirement of current disability is satisfied when the claimant has the disability at the time the claim for VA disability compensation is filed or during the pendency of the claim and that a claimant may be granted service connection even though the disability resolves prior to VA's adjudication of the claim). Because there is no diagnosis or other competent and credible evidence of a chronic left shoulder disability, there is no possible means of attributing such disorder to his active duty military service. The Board concludes that the evidence does not support the claims for service connection and there is no doubt to be otherwise resolved. As such, the appeal is denied. ORDER New and material evidence having been submitted, the claims of entitlement to service connection for obstructive sleep apnea, hypertension and a chronic skin disability are reopened; subject to the further development of these claims in the remand below. The claim for service connection for a chronic left shoulder disability is denied. REMAND Additional development is needed prior to disposition of the Veteran's reopened claims for obstructive sleep apnea, hypertension and a chronic skin disability. I. Outstanding Treatment Records There are potentially outstanding VA outpatient treatment records that are relevant to the Veteran's claims that the AOJ must attempt to obtain. See 38 U.S.C.A. § 5103A(c)(2) (West 2002); 38 C.F.R. § 3.159(c)(2) (2013). The claims file contains records of VA outpatient treatment at the Atlanta VA Medical Center (VAMC), dated through November 2008. However, there is later treatment at that facility, as there are Atlanta VAMC treatment records for his prostate disability, not on appeal, dated from August 2009 through October 2009. This raises the possibility of more recent VA outpatient treatment for hypertension, skin and sleep apnea disabilities. The AOJ should associate with the claims file all outstanding and relevant VA records from the Atlanta VAMC and any other VA facilities, including any dated since November 2008. Dunn v. West, 11 Vet. App. 462, 466-67 (1998); Bell v. Derwinski, 2 Vet. App. 611, 613 (1992). II. VA Examination and Medical Etiological Opinions Due to the medical complexity of these claims and the absence of a needed medical etiological opinion, the Board finds that a VA examination is necessary in order to fairly decide his claims of hypertension, sleep apnea and chronic skin disability. McLendon v. Nicholson, 20 Vet. App. 79, 81 (2006); 38 U.S.C.A. § 5103A(d); 38 C.F.R. § 3.159(c)(4) (2013). The Veteran contends in his September 2003 claim that his hypertension was chronically aggravated by his period of active duty service from October 2001 to September 2002. Additionally, a review of the Veteran's service treatment records for this period contain a May 6, 2002 statement, "Now due to activation and current active duty status my disability has been aggravated and caused additional medical problems such as hypertension, sleep apnea, and n[arcolepsy]." Concerning current disabilities, the May 2005 VA examiner diagnosed sleep apnea and of hypertension, controlled by medicine; and post-service VA treatment records similarly confirm relatively recent diagnoses of sleep apnea and hypertension. Boyer v. West, 210 F.3d 1351, 1353 (Fed. Cir. 2000). There are several private medical records prior to the 2001-2002 period of active duty service that indicate a pre-existing disability of hypertension beginning in approximately 1996, and a pre-existing disability of obstructive sleep apnea beginning in approximately 1996. The Veteran's service treatment records during 2002 show several instances of treatment and diagnoses for hypertension and sleep apnea. Concerning a current chronic skin disability, the May 2005 VA examiner was unable to confirm a current chronic skin disability, as physical examination of the skin revealed no rash or unusual pigmentation. The examiner specifically found no current evidence of a staph infection, as claimed by the Veteran, and the examiner indicated that there was no past evidence for this condition in the claims file. However, VA treatment records dated in April and October 2006 show prescriptions to treat a skin infection, skin condition, and fungal infection. Also, the Veteran is competent to testify as to the existence of skin problems and rashes, as these are within the realm of lay observation and experience. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); Barr v. Nicholson, 21 Vet. App. 303, 310 (2007); and 38 C.F.R. § 3.159(a)(2). For the purpose of obtaining a VA examination, the Board acknowledges he may have a present skin disability, whatever its current diagnosis. Boyer, 210 F.3d at 1353. The Veteran contends entitlement to service-connection for a chronic skin disability because he incurred a recurrent staph infection in 2003, during his last period of active duty (January 2003 to July 2004), which manifested as sores on his right thigh. Similar to the examiner's findings, there is no indication of treatment or diagnosis for a staph infection in the 2003-2004 service treatment records or in any post-service treatment records. Alternatively, the Veteran's above May 2002 statement indicates that other medical problems, such as his claimed skin disability, might also have been aggravated by his recent 2001-2002 period of service. Concerning this, there are indications of a pre-existing skin disability, including service treatment records from his earlier periods of service treating a sweat rash in May 1974 and a groin rash with a diagnosis of fungal dermatitis in September 1974; private treatment records diagnosing a herpetic rash in 1986; and a VA treatment record diagnosing a rash on the chest in August 2001. Here, the service treatment records show that in August 2002, the Veteran complained of a rash on the legs and scrotum, a single patch of rash on the chest, and itching on the back. Consequently, VA examination and medical opinions are necessary to help resolve the reopened claims. McLendon, 20 Vet. App. at 81; 38 U.S.C.A. § 5103A(d); 38 C.F.R. § 3.159(c)(4) (2013). Accordingly, the case is REMANDED for the following action: 1. Ask the Veteran whether there are any additional private treatment records that need to be obtained and considered in his appeal. Obtain any outstanding VA treatment records related to his claimed sleep apnea, skin disability and hypertension, as well as any other disabilities on appeal, especially any dated from November 2008 to the present. 38 C.F.R. § 3.159(c)(2). 2. After completing the requested development in paragraph #1, schedule the Veteran for an appropriate VA examination for the purposes of determining the nature and etiology of any current sleep apnea, hypertension, and chronic skin disability. The entire claims file (i.e., both the paper claims file and any relevant medical records contained in the Veteran's Virtual VA eFolder) should be made available to and be reviewed by the examiner in conjunction with this request. The examiner should perform any diagnostic tests deemed necessary. a) Identify all present disabilities associated with the Veteran's claimed: i) Sleep apnea. Specifically, confirm if the Veteran presently has obstructive sleep apnea. ii) Hypertension; and iii) Chronic skin disability. Specifically, identify any and all present diagnoses (e.g., tinea versicolor, herpetic rash, recurrent staph infection) that would account for the Veteran's complaints of in-service rashes of the legs, jock area, chest and back. b) Did any presently diagnosed sleep apnea, hypertension and/or chronic skin disability clearly and unmistakably pre-exist his recent period of active duty service from October 2001 to September 2002. i) If any presently diagnosed sleep apnea, hypertension and/or chronic skin disability pre-existed the Veteran's recent period of active duty from October 2001 to September 2002, were any of these disabilities permanently aggravated during or by his military service (2001-2002) beyond its natural progression? c) If any presently diagnosed sleep apnea, hypertension and/or chronic skin disability did not preexist the Veteran's recent period of active duty from October 2001 to September 2002, is it at least as likely as not (50% or more probability) that any of these current disabilities were incurred during service, during his recent periods of active duty service in 2001- 2002 and/or from 2003-2004? The examiner must consider the Veteran's statements that he suffered a history of in-service stress, sleep problems and skin rashes during service from 2001-2002 and/or 2003-2004, and continuing to the present. Rationale for all requested opinions shall be provided. If the examiner cannot provide an opinion without resorting to mere speculation, he or she shall provide a complete explanation stating why this is so. In so doing, the examiner shall explain whether the inability to provide a more definitive opinion is the result of a need for additional information or that he or she has exhausted the limits of current medical knowledge in providing an answer to that particular question(s). 3. Then readjudicate the claims in light of any additional evidence. If these claims are not granted to the Veteran's satisfaction, send him a Supplemental SOC and give him an opportunity to respond to it before returning the file to the Board for further appellate consideration of these claims. 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). These claims must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2013). ________________________________________________ Alexandra P. Simpson Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs