Citation Nr: 1514825 Decision Date: 04/07/15 Archive Date: 04/21/15 DOCKET NO. 10-18 192A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Montgomery, Alabama THE ISSUES 1. Entitlement to service connection for bilateral hearing loss. 2. Entitlement to service connection for an acquired psychiatric disorder, to include posttraumatic stress disorder (PTSD). 3. Entitlement to service connection for hypertension. 4. Entitlement to service connection for a sleep disorder, to include sleep apnea. 5. Entitlement to service connection for a low back disorder. 6. Entitlement to service connection for a lower extremity disorder manifested by pain in the legs, to include as secondary to bulging disc back pain with claudication. 7. Entitlement to service connection for a bilateral foot disorder (claimed as bunions, calluses, residuals of frostbite, and/or foot pain secondary to a low back disorder). REPRESENTATION Veteran represented by: The American Legion ATTORNEY FOR THE BOARD Donna D. Ebaugh, Counsel INTRODUCTION The Veteran served on active duty from April 1979 to April 1982, as well as periods of active duty for training (ACDUTRA) and inactive duty for training (INACDUTRA). These matters come before the Board of Veterans' Appeals (Board) on appeal from a February 2009 rating decision of the Regional Office (RO) of the Department of Veterans Affairs (VA) in Montgomery, Alabama. In his May 2010 Substantive Appeal, the Veteran requested a Board hearing before a Veterans Law Judge at his local RO. In subsequent correspondence dated in September 2010, the Veteran requested a hearing before a Decision Review Officer (DRO). Then, in January 2013, the Veteran withdrew his request for a DRO hearing and instead requested a video teleconference hearing before a Veteran's Law Judge at his local RO. Such a hearing was scheduled to take place in March 2013; however, the Veteran did not appear for the hearing. His hearing request is, therefore, considered withdrawn. See 38 C.F.R. § 20.704(d) (2014). With regard to the Veteran's acquired psychiatric disorder claim, a review of the claims file reveals that, during the course of this appeal, the Veteran has asserted that he has difficulty sleeping due to PTSD and nightmares, as well as nervousness. See Veteran's April 2008 VA Form 21-526 and December 2007 statement. In Clemons v. Shinseki, 23 Vet. App. 1 (2009), the Court held that the scope of a disability claim includes any disability that may reasonably be encompassed by the claimant's description of the claim, reported symptoms, and the other information of record. In light of Clemons, the Board concludes that the Veteran's acquired psychiatric disorder claim encompasses claims of entitlement to service connection for PTSD, as well as any other acquired psychiatric disorder manifested by his feelings of anxiety and depression, as reflected on the title page. With regard to the Veteran's sleep disorder claim, the Board notes that this issue was originally raised and adjudicated as two separate claims for service connection, namely (1) service connection for sleep apnea and (2) service connection for difficulty sleeping (claimed as nervousness). See February 2009 rating decision. As the Board has indicated that the Veteran's claim regarding "nervousness" is encompassed by the acquired psychiatric disorder claim, the Board has combined the "difficulty sleeping" and "sleep apnea" claim into one claim of entitlement to service connection for a sleep disorder, as reflected on the title page. Additionally, with regard to the Veteran's foot disorder claim, the Board notes that this issue was originally raised and adjudicated as three separate claims for service connection, namely (1) service connection for residuals of frostbite of the bilateral feet, (2) service connection for a bilateral foot condition (claimed as bunions and calluses), and (3) service connection for foot pain due to bulging disc back pain. See February 2009 rating decision. As each of these claims are made with the purpose of seeking service connection for a bilateral foot disorder, pursuant to Clemons, the Board has combined the separately alleged foot disorders into one claim of entitlement to service connection for a bilateral foot disorder, as reflected on the title page. This appeal was processed using the Virtual VA (VVA) and Virtual Benefits Management System (VBMS) paperless claims processing systems. Accordingly, any future consideration of this appellant's case should take into consideration the existence of these electronic records. The issues of entitlement to service connection for a sleep disorder, low back disorder, lower extremity disorder, bilateral foot disorder, hypertension, and acquired psychiatric disorder are addressed in the REMAND portion of the decision below and are REMANDED to the Agency of Original Jurisdiction (AOJ). FINDING OF FACT At no time during the pendency of the appeal has the Veteran had a current diagnosis of bilateral hearing loss disability for VA purposes. CONCLUSION OF LAW The criteria for service connection for bilateral hearing loss have not been met. 38 U.S.C.A. §§ 1101, 1110, 1131, 1112, 1116, 5103, 5103A, 5107(b) (West 2014); 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.385 (2014). REASONS AND BASES FOR FINDING AND CONCLUSION 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 2014)) includes enhanced duties to notify and assist claimants in substantiating a claim for VA benefits. VA regulations implementing the VCAA were codified as amended at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, and 3.326(a) (2014). Proper notice from VA must inform the claimant of any information and medical or lay evidence not of record that: (1) is necessary to substantiate the claim; (2) VA will seek to provide; and (3) the claimant is expected to provide. 38 U.S.C.A. § 5103(a); Quartuccio v. Principi, 16 Vet. App. 183, 186-87 (2002). This notice must be provided prior to an initial RO decision on a claim. Mayfield v. Nicholson, 444 F.3d 1328, 1333 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112, 119 (2004). VCAA notice requirements apply to all five elements of a service connection claim, including: (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/Hartman v. Nicholson, 19 Vet. App. 473, 486 (2006). Defective timing or content of VCAA notice is not prejudicial to a claimant if the error does not affect the essential fairness of the adjudication, such as where (1) the claimant demonstrates actual knowledge of the content of the required notice; (2) a reasonable person could be expected to understand from the notice what was needed; or (3) a benefit could not have been awarded as a matter of law. Sanders v. Nicholson, 487 F.3d 881, 889 (Fed. Cir. 2007), rev'd on other grounds, Shinseki v. Sanders/Simmons, 556 U.S. (2009). Defective timing may be cured by a fully compliant notice letter followed by a readjudication of the claim. Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006). With regard to his bilateral hearing loss claim, the Veteran has received all essential notice, has had a meaningful opportunity to participate in the development of his claim, and is not prejudiced by any technical notice deficiency along the way. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Conway v. Prinicipi, 353 F.3d 1369 (Fed. Cir., 2004). Specifically, in pre-rating letters dated in December 2007 and July 2008, the AOJ provided notice to the Veteran explaining what information and evidence was needed to substantiate the claim for service connection for bilateral hearing loss, what information and evidence must be submitted by the Veteran, and what information and evidence would be obtained by VA. These letters also provided the Veteran with information pertaining to the assignment of disability ratings and effective dates, as well as the type of evidence that impacts those determinations. The February 2009 rating decision reflects the initial adjudication of the claims after issuance of the letters. Hence, the letters, which meet the content of notice requirements described in Dingess/Hartman and Pelegrini, also meet the VCAA's timing of notice requirement. The record also reflects that VA has made reasonable efforts to obtain or to assist in obtaining all relevant records pertinent to the matters herein decided. Pertinent medical evidence associated with the claims file consists of private medical treatment records and available service department records. The Board acknowledges that the Veteran's service treatment records are unavailable, with the exception of his service entrance examination report. The Board has considered the Veteran's argument that the RO should make another attempt to obtain service treatment records. However, a review of the file reveals that the AOJ requested records from the National Personnel Records Center (NPRC) in December 2007 and the VA records management center in July 2008, and received negative responses in April 2008 and August 2008, respectively. Additionally, the AOJ requested all medical records from the Veteran's Reserve unit and the response included the Veteran's service entrance examination as well as a few personnel records. Those records have been associated with the file. The accompanying statement from the Reserve unit indicates that all available medical records have been associated with the file. The Veteran has not indicated that he was hospitalized in service. As such, there is no indication that there are outstanding clinical records that may be obtained through other means. In this regard, in December 2008, the AOJ issued a formal finding of unavailability with respect to any additional service treatment records and informed the Veteran of the same. In this regard, requests have been made from the National Personnel Records Center (NPRC) and a negative response was received in December 2007. A request was also made from the VA Records Management Center, to which a negative response was received in August 2008. The Veteran's Reserve unit provided all of the medical records in its possession, which consisted of the Veteran's service entrance examination. In December 2008, the AOJ issued a formal finding of unavailability regarding any remaining service treatment records and offered the Veteran the opportunity to submit his copy of the records. The Veteran has reported that he does not have a copy of the records. The Veteran has not indicated that he was hospitalized other otherwise received clinical treatment in service. Thus, there is no indication that additional treatment records may be obtained through additional sources such as the hospitals at the actual installations where the Veteran served or through the Surgeon General's office. The Board also acknowledges the Veteran's contention that the AOJ made an incorrect PIES request and that another request should be made. A review of the claims file indicates that in July 2008, the AOJ received an error message in response to a request for information and that later the same day, the person who received the error message sent an email correspondence to the records management center to locate the records. A negative response was received and recorded in the file in August 2008. Moreover, the Board notes that, as discussed in more detail below, the Veteran's bilateral hearing loss claim is being denied on the basis that he has not had a current diagnosis of bilateral hearing loss disability for VA purposes at any time during the pendency of the appeal. In this regard, to the extent that the Veteran's service treatment records would only reveal symptoms and experiences during service, they would not reveal whether the Veteran currently has bilateral hearing loss for VA purposes, as such, these records would not be relevant to the currently appealed claim. The Board acknowledges that no medical etiology opinion has been obtained in connection with this claim. In this regard, VA is obliged to provide a VA medical examination when there is (1) competent evidence of a current disability or persistent or recurrent symptoms of a disability; (2) evidence establishing that an event, injury, or disease occurred in service, or establishing that certain diseases manifested during an applicable presumptive period for which the claimant qualifies; and (3) an indication that the disability or persistent/recurrent symptoms of a disability may be associated with the Veteran's service or with another service-connected disability; but (4) there is insufficient competent medical evidence on file for the Secretary to make a decision on the claim. McLendon v. Nicholson, 20 Vet. App. 79, 81 (2006); see also 38 U.S.C.A. § 5103A(d)(2); 38 C.F.R. § 3.159(c)(4)(i). In this case, the first criterion of McLendon is not met as there is no competent evidence of a current hearing loss disability for VA purposes and the Veteran has not reported any recurrent hearing loss symptoms. The Veteran has not provided a reported date of onset estimating when his claimed hearing loss began. Nor has he reported receiving any treatment for this disability. In this regard, the Veteran was contacted multiple times by the AOJ requesting him to provide more information to support his claim, but to date, he has not provided any details regarding his hearing loss symptoms or the basis for his claim. Rather, his statements submitted in response to such requests address other issues on appeal, without including any reference to hearing loss or difficulty hearing/understanding. In fact, the only mention of hearing loss currently of record is in the Veteran's initial November 2007 service connection claim form where he lists "hearing loss" as a claim with no further explanation, such as when the disability began, or when or where he was treated for this disability. On these facts, no medical opinion is required. In summary, the duties imposed by the VCAA have been considered and satisfied. Through various notices by the RO, the Veteran has been made aware of the evidence needed to substantiate his claim, the avenues through which he might obtain such evidence, and the allocation of responsibilities between himself and VA in obtaining such evidence. There is no additional notice that should be provided. Nor is there any indication that there is additional existing evidence to obtain or development required to create any additional evidence to be considered in connection with this claim. Consequently, any error in the sequence of events or content of the notice is not shown to prejudice the Veteran or to have any effect on the appeal. Any such error is deemed harmless and does not preclude appellate consideration of the matters herein decided, at this juncture. See Mayfield, 20 Vet. App. at 543 (rejecting the argument that the Board lacks authority to consider harmless error). See also ATD Corp. v. Lydall, Inc., 159 F.3d 534, 549 (Fed. Cir. 1998). Analysis The Veteran seeks to establish service connection for bilateral hearing loss. Generally, in order to prevail on the issue of service connection, there must be evidence of a current disability; medical evidence, or in certain circumstances, lay evidence of in-service occurrence or aggravation of a disease or injury; and evidence of a nexus between an in-service injury or disease and the current disability. See Hickson v. West, 12 Vet. App. 247, 253 (1999); see also Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303. Service connection may be granted for any disease diagnosed after discharge from service when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Service connection may be presumed, for certain chronic diseases, including hearing loss, which develop to a compensable degree (10 percent or more) within a prescribed period after discharge from service (one year for hearing loss), although there is no evidence of such disease during the period of service. However, the presumption applies only in the case of a Veteran who served for 90 days or more during a period of war or after December 31, 1946. 38 U.S.C.A. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307(a)(1), 3.309(a). With chronic disease shown as such in service (or within the presumptive period under § 3.307) so as to permit a finding of service connection, subsequent manifestations of the same chronic disease at any later date, however remote, are service-connected, unless clearly attributed to intercurrent causes. Continuity of symptomatology is required only where the condition noted during service (or in the presumptive period) is questioned. When the fact of chronicity in service is not adequately supported, then the showing of continuity after discharge is required to support the claim. 38 C.F.R. § 3.303(b). The United States Court of Appeals for the Federal Circuit (Federal Circuit) has clarified that the law providing for awards of service connection on the basis of continuity of symptomatology is limited to "chronic" diseases listed under 38 C.F.R. § 3.309(a). See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Service connection may only be granted for a current disability; when a claimed condition is not shown, there may be no grant of service connection. See 38 U.S.C.A. §§ 1110, 1131; Rabideau v. Derwinski, 2 Vet. App. 141 (1992) (Congress specifically limits entitlement for service-connected disease or injury to cases where such incidents have resulted in a disability). "In the absence of proof of a present disability there can be no valid claim." See Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). The current disability requirement for a service connection claim is satisfied if the claimant has a disability at the time the claim is filed or during the pendency of that claim. See McClain v. Nicholson, 21 Vet. App. 319 (2007). For the purposes of applying the laws administered by VA, impaired hearing will be considered to be a disability when the auditory threshold in any of the frequencies 500, 1000, 2000, 3000, 4000 Hertz is 40 decibels or greater; or when the auditory thresholds for at least three of the frequencies 500, 1000, 2000, 3000, or 4000 Hertz are 26 decibels or greater; or when speech recognition scores using the Maryland CNC Test are less than 94 percent. 38 C.F.R. § 3.385. The Board finds that the preponderance of the evidence is against granting the Veteran's claim of service connection for bilateral hearing loss. The first Shedden element-a current diagnosis of bilateral hearing loss for VA purposes-has not been shown at any point during the pendency of the claim. In this regard, the Veteran has not submitted any pertinent evidence, such as audiograms or other evidence of current hearing tests, to support his contention that he has a diagnosis of bilateral hearing loss for VA purposes. As explained above, a VA examination to determine whether there is a current diagnosis of hearing loss is not required as the McLendon elements have not been met. In this regard, the Veteran has not offered any lay statements regarding the symptoms of his claimed hearing loss. In other words, he has not reported difficulty hearing or understanding others, and/or being told that he turns up the television volume too loud. He also has not presented any argument concerning continuity of hearing loss symptomatology since service. Rather, the Veteran's only reference to hearing loss currently of record is in his initial November 2007 service connection claim form where he lists "hearing loss" as a claim with no further explanation. As no recurrent symptoms or diagnosis has been shown and there is no indication that any current hearing loss symptoms may be related to service, a VA examination is not required in this case. The Board does not reach the question of the whether bilateral hearing loss began within one year of service separation, or is due to noise exposure during a period of active duty, ACDUTRA, or INACDUTRA, because a current hearing loss disability as defined by VA, is not shown by the record evidence. The Board acknowledges the Veteran's contention that he has bilateral hearing loss. The 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." Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009) (quoting Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007)). In this case, however, the Veteran is not competent to diagnose bilateral hearing loss for VA purposes. See Jandreau v. Nicholson, 492 F.3d 1372, 1377, at n.4 (Fed. Cir. 2007) ("Sometimes the layperson will be competent to identify the condition where the condition is simple, for example a broken leg, and sometimes not, for example, a form of cancer."). A hearing loss disability, as it is defined by VA, is diagnosed through audiological testing. Simply noticing difficulty hearing is not an adequate basis for a diagnosis of a hearing loss disability for VA purposes. The objective evidence of record does not indicate that the Veteran has a hearing loss disability, as defined by VA, during the pendency of the claim. As such, service connection for bilateral hearing loss is not warranted. Notwithstanding the Veteran's report that he has hearing loss, without competent evidence of hearing loss as defined by VA regulation, such does not constitute a disability for which service connection can be granted. As indicated above, Congress has limited entitlement to service connection for disease or injury incurred or aggravated in service to cases where such incidents have resulted in disability. See 38 U.S.C.A. § 1131. Where, as here, competent evidence does not establish the disability for which service connection is sought, there can be no valid claim for service connection. See Gilpin v. West, 155 F.3d 1353 (Fed. Cir. 1998); Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). In this case, the claim of service connection for bilateral hearing loss must be denied because the first criterion for a grant of service connection-evidence of a current disability upon which to predicate a grant of service connection, on any basis-has not been met. As the preponderance of the evidence is against the Veteran's claim, the benefit-of-the-doubt doctrine does not apply. 38 U.S.C.A. § 5107(b) (West 2014); Ortiz v. Principi, 274 F.3d 1361, 1364, 1365 (Fed. Cir. 2001) (holding that "the benefit of the doubt rule is inapplicable when the preponderance of the evidence is found to be against the claimant"); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER Entitlement to service connection for bilateral hearing loss is denied. REMAND The Veteran contends that he developed an acquired psychiatric disorder as a result of stressors experienced in service. He also contends that he developed hypertension as a result of the stress that he experienced during service or, alternatively, his hypertension is caused or aggravated by PTSD. He contends further that he first began experiencing obstructive sleep apnea in service and has continued to have difficulty sleeping due to obstructive sleep apnea since service. He also contends further that he developed a low back disorder as a result of a job he performed as part of his Reserve duty in Honduras and first began having back pain following an assignment in Honduras during which built schools out of brick. the Veteran essentially contends that he has a lower extremity disorder secondary to his claimed low back disorder. The Veteran contends that he has a lower extremity disorder secondary to his claimed low back disorder. With respect to these claims, the Board finds that a remand is necessary to ensure that due process is followed and that there is a complete record upon which to decide the Veteran's claims. As an initial matter, the Board notes that the Veteran's service treatment records are not available and all efforts to obtain such records have been exhausted. In this regard, the Board points out that in cases where the Veteran's service treatment records are unavailable through no fault of his own, there is a "heightened duty" to assist him in the development of the case. See O'Hare v. Derwinski, 1 Vet. App. 365 (1991); Cuevas v. Principi, 3 Vet. App. 542 (1992). This heightened duty includes providing a medical examination if review of the evidence of record determines that such examination is necessary to decide the claim. 38 C.F.R. § 3.159(c)(4). As noted above, VA is obliged to provide a VA medical examination when there is (1) competent evidence of a current disability or persistent or recurrent symptoms of a disability; (2) evidence establishing that an event, injury, or disease occurred in service, or establishing that certain diseases manifested during an applicable presumptive period for which the claimant qualifies; and (3) an indication that the disability or persistent / recurrent symptoms of a disability may be associated with the Veteran's service or with another service-connected disability; but (4) there is insufficient competent medical evidence on file for the Secretary to make a decision on the claim. See McLendon, 20 Vet. App. at 81; 38 U.S.C.A. § 5103A(d)(2) (West 2014); 38 C.F.R. § 3.159(c)(4)(i) (2014). Acquired Psychiatric Disorder With regard to the Veteran's claim for service connection of an acquired psychiatric disorder, to include PTSD, the Board finds that a VA examination assessing whether the Veteran has an acquired psychiatric disorder, that was caused by or incurred during his military service, is warranted in this case. In making this determination, the Board notes that the Veteran is competent to report current symptoms of feeling anxious or depressed. As such, the Board finds that the first McLendon element has been satisfied. Turning to the second McLendon element, the Board highlights that, as discussed above, the Veteran's service treatment records are not available. Significantly, however, the Veteran has consistently reported that he first began experiencing symptoms of feeling anxious in service. In this regard, the Board notes that the Veteran is competent to report that feeling anxious or depressed during service. See Washington v. Nicholson, 19 Vet. App. 362 (2005); see also Layno v. Brown, 6 Vet. App. 465 (1994). Accordingly, because the evidence of record indicates that the Veteran first experienced feeling anxious or depressed during service, the second McLendon element has been satisfied. Further, turning to the third McLendon element, the Veteran has reported that he has continued to experience feeling anxious or depressed since service. In this regard, the Board notes that the Veteran is competent to report having a continuity of symptomatology (i.e., recurrent anxious feelings) since service. See Barr v. Nicholson, 21 Vet. App. 303, 307-08 (2007); see also Jandreau, 492 F.3d at 1372; Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. Sept. 14, 2009). Accordingly, the Board finds that there is evidence of record indicating that the Veteran's current symptoms may be an acquired psychiatric disorder associated with service, thereby satisfying the third McLendon element. Because there is insufficient medical evidence of record addressing whether the Veteran has a current acquired psychiatric disorder that was incurred during or aggravated by his military service, a VA examination and medical opinion addressing the etiology of the Veteran's psychiatric symptomatology is necessary for the Board to make a decision on this claim. See McLendon, 20 Vet. App. at 81; 38 U.S.C.A. § 5103A(d)(2); 38 C.F.R. § 3.159(c)(4)(i). Hypertension With regard to his hypertension claim, the Veteran has reported that he was diagnosed with hypertension while he was in the Army Reserve and has continued to have this condition since service. Having reviewed the record evidence, the Board finds that a VA examination assessing whether the Veteran's hypertension was caused by or incurred during his military service is warranted. In making this determination, the Board notes that the Veteran has been diagnosed with essential hypertension. As such, the Board finds that the first McLendon element has been satisfied. Turning to the second McLendon element, the Board again notes that the Veteran's service treatment records are not available. The Board also notes that the Veteran is competent to report that was told that he had high blood pressure in service and that he has felt "nervousness" since service. See Washington, 19 Vet. App. at 362; see also Layno, 6 Vet. App. at 465. Accordingly, because the evidence of record indicates that the Veteran first was informed that he had high blood pressure during service, the second McLendon element has been satisfied. Turning to the third McLendon element, the Veteran has reported that his blood pressure has been elevated for many years and that he went many years without treatment. Again, the Board notes that the Veteran is competent to report having been told that he had high blood pressure in May 1990 and that he went many years without treatment. Accordingly, the Board finds that there is evidence of record indicating that the Veteran's currently diagnosed hypertension may be associated with service, thereby satisfying the third McLendon element. Because there is insufficient medical evidence of record addressing whether the Veteran's current hypertension was incurred during or aggravated by his military service, a VA examination and medical opinion addressing the etiology of the Veteran's hypertension is necessary for the Board to make a decision on this claim. See McLendon, 20 Vet. App. at 81; 38 U.S.C.A. § 5103A(d)(2); 38 C.F.R. § 3.159(c)(4)(i). Sleep Apnea With regard to the claimed obstructive sleep apnea, the Board finds that a VA examination assessing whether this disability was caused by or incurred during his military service is warranted. In making this determination, the Board notes that the Veteran has been diagnosed with obstructive sleep apnea syndrome following an August 2004 sleep study. As such, the Board finds that the first McLendon element has been satisfied. Turning to the second McLendon element, the Board again notes that the Veteran's service treatment records are not available. The Veteran has reported consistently that he first experienced difficulty sleeping during his Army Reserve service. In this regard, the Board again notes that the Veteran is competent to report that he had difficulty sleeping during service. See Washington, 19 Vet. App. at 362; Layno, 6 Vet. App. at 465. Accordingly, because the evidence of record indicates that the Veteran first experienced difficulty sleeping during service, the second McLendon element has been satisfied. Turning to the third McLendon element, the Veteran has reported that he has continued to have difficulty sleeping since service separation. In this regard, the Board notes that the Veteran is competent to report having a continuity of symptomatology (i.e., recurrent difficulty sleeping) since service. See Barr, 21 Vet. App. at 307-08; see also Jandreau, 492 F.3d at 1372; Davidson, 581 F.3d at 1313. Accordingly, the Board finds that there is evidence of record indicating that the Veteran's currently diagnosed obstructive sleep apnea syndrome may be associated with service, thereby satisfying the third McLendon element. Because there is insufficient medical evidence of record addressing whether the Veteran's current obstructive sleep apnea was incurred during or aggravated by his military service, a VA examination and medical opinion addressing the etiology of the Veteran's sleep disorder is necessary for the Board to make a decision on this claim. See McLendon, 20 Vet. App. at 81; 38 U.S.C.A. § 5103A(d)(2); 38 C.F.R. § 3.159(c)(4)(i). Low Back Disorder With regard to his low back disability claim, the Board finds that a VA examination assessing whether the Veteran has a low back disability that was caused by or incurred during his military service is warranted in this case. In making this determination, the Board notes that the Veteran has been diagnosed with disc bulge and bilateral facet osteoarthritic change resulting in moderate neural foraminal and spinal canal stenosis, as well as lumbar facet syndrome in a January 2003 radiology report and in Dr. P.D.'s February 2003 treatment note. As such, the Board finds that the first McLendon element has been satisfied. Turning to the second McLendon element, the Board again notes that the Veteran's service treatment records are not available. The Veteran has reported consistently that he first began experiencing back pain after building schools as a brick mason in service. In this regard, the Board notes that the Veteran is competent to report that he having back pain during service. See Washington, 19 Vet. App. at 362; Layno, 6 Vet. App. at 465. Moreover, the Board notes that the Veteran received a commendation for laying 350 cement bricks in 18 hours in April 1995. In this regard, the commendation explained that the same task would have taken a team three to four days to accomplish. The Board notes that, based on the evidence currently of record, it is not clear whether the Veteran was serving on ACDUTRA or INACDUTRA in April 1995; however, such distinction is not relevant as service connection may be warranted for an injury incurred in either case. Accordingly, because the evidence of record indicates that the Veteran first experienced back pain during service, the second McLendon element has been satisfied. Turning to the third McLendon element, the Veteran has reported that he has continued to experience back pain since service. In this regard, the Board notes that the Veteran is competent to report having a continuity of symptomatology (i.e., recurrent back pain) since service. See Barr, 21 Vet. App. at 307-08; Jandreau, 492 F.3d at 1372; Davidson, 581 F.3d at 1313. Accordingly, the Board finds that there is evidence of record indicating that the Veteran's current back disability may be associated with service, thereby satisfying the third McLendon element. Because there is insufficient medical evidence of record addressing whether the Veteran's current back disability was incurred during or aggravated by his military service, a VA examination and medical opinion addressing the etiology of the Veteran's back disability is necessary for the Board to make a decision on this claim. See McLendon, 20 Vet. App. at 81; 38 U.S.C.A. § 5103A(d)(2); 38 C.F.R. § 3.159(c)(4)(i). Lower Extremity Disorder With regard to the claimed lower extremity disorder, the Veteran essentially contends that he has a lower extremity disorder secondary to his claimed low back disorder. As the Board is remanding the low back disorder claim for a VA examination, the Board finds that the lower extremity disorder is inextricably intertwined with the low back disorder. See Parker v. Brown, 7 Vet. App. 116 (1994) and Harris v. Derwinski, 1 Vet. App. 180, 183 (issues are "inextricably intertwined" when a decision on one issue would have a "significant impact" on a Veteran's claim for the second issue). Bilateral Foot Disorder Regarding the claimed bilateral foot disorder, the Veteran has offered several theories of entitlement for his claimed foot disorder(s). He claims that he has a foot disorder due to wearing boots in service and that he suffered frostbite in service in Germany, in November 1981. He has also claimed a foot disorder, manifested by foot pain, that is secondary to his claimed low back disorder. The Board finds that a VA examination assessing whether the Veteran has a bilateral foot disability that was caused by or incurred during his military service is warranted in this case. In making this determination, the Board notes that the Veteran has been diagnosed with hyperkeratosis and onychomycosis. As such, the Board finds that the first McLendon element has been satisfied. Turning to the second McLendon element, the Board again notes that the Veteran's service treatment records are not available. The Veteran's service entrance examination report is of record and the report reveals that pes planus was noted on service entrance. The Veteran's present complaints of bunions, calluses, and onychomycosis were not noted on service entrance. He has reported consistently that he first began experiencing foot pain in service. In this regard, the Board notes that the Veteran is competent to report that he having foot pain during service. See Washington, 19 Vet. App. at 362; Layno, 6 Vet. App. at 465. Accordingly, because the evidence of record indicates that the Veteran first experienced foot pain during service, the second McLendon element has been satisfied. Further, turning to the third McLendon element, the Veteran has reported that he has continued to experience foot pain since service. In this regard, the Board notes that the Veteran is competent to report having a continuity of symptomatology (i.e., recurrent foot pain) since service. See Barr, 21 Vet. App. at 307-08; Jandreau, 492 F.3d at 1372; Davidson, 581 F.3d at 1313. Accordingly, the Board finds that there is evidence of record indicating that the Veteran's current foot disability(ies) may be associated with service, thereby satisfying the third McLendon element. Because there is insufficient medical evidence of record addressing whether the Veteran's current foot disability(ies) was/were incurred or aggravated by his military service, a VA examination and medical opinion addressing the etiology of the Veteran's foot disability(ies) is necessary for the Board to make a decision on this claim. See McLendon, 20 Vet. App. at 81; 38 U.S.C.A. § 5103A(d)(2); 38 C.F.R. § 3.159(c)(4)(i). With respect to the bilateral foot disorder and the contention that the Veteran incurred frostbite of the bilateral feet in service in Germany, the Veteran's service in Germany should be confirmed. While the methods to obtain service treatment records have been exhausted, it does not appear that all of the Veteran's service personnel records have been obtained. His DD-214 does not specifically indicate service in Germany, although it confirms two years of foreign service. As such, on Remand, the Veteran's service personnel records should be obtained, if possible, or the AOJ should otherwise confirm service dates in Germany. Regarding Reserve personnel records, the Veteran has indicated that his hypertension began following stressful events in service, approximately in May 1990. To date, the Veteran's Reserve unit has provided a summary of his points for a particular period, but has not provided specific information with respect to the specific periods during which the Veteran served on ACDUTRA or INACDUTRA. As such may be pertinent to the determination of entitlement to service connection, the AOJ should request that the Reserve unit provide this information. Finally, with respect to the Veteran's claimed acquired psychiatric disorder, the Veteran contends that he has depression and PTSD. To date, the Veteran has not been provided with the appropriate VCAA notice for PTSD. The Board acknowledges that in a July 2008 letter, the AOJ informed the Veteran that if he wished to claim entitlement to service connection for PTSD, he should inform the RO. Since the Veteran filed his initial claim, case law and VA regulations have changed regarding service connection for PTSD. As discussed in the Introduction above, a claim for one psychiatric disorder has been determined to encompass a claim for any psychiatric disorder, including PTSD, as the Veteran is not competent to diagnose which particular psychiatric disorder he has and/or relate the same to service. See Clemons, 23 Vet. App. 1 (2009). Thus, he did not actually need to file a separate claim for PTSD as instructed by the AOJ. Further, the regulatory requirements to support a claim for PTSD are specific and the Veteran has not been provided the appropriate notice. In correspondence dated in December 2007 and July 2008, respectively, the RO provided the Veteran with notice regarding the information and evidence necessary to substantiate claims for service connection for depression and nervousness. In light of the revised regulatory provisions of 38 C.F.R. § 3.304(f), the Veteran should be furnished updated VCAA notice to support the claim of entitlement to service connection for an acquired psychiatric disorder, to include PTSD. The AOJ also should attempt to obtain the Veteran's updated VA and private treatment records. Accordingly, the case is REMANDED for the following action: 1. Contact the appropriate Federal records repository and request the Veteran's service personnel records. Also contact the Veteran's Reserve unit and request specific dates that he served on ACDUTRA and INACDUTRA. All records and responses received should be associated with the claims file. 2. Provide the Veteran with appropriate VCAA notice on his claim of service connection for an acquired psychiatric disorder, to include PTSD. A copy of any notice should be included in the claims file. 3. Schedule the Veteran for appropriate VA examination to determine the nature and etiology of his acquired psychiatric disorder. The claims file and a copy of this remand must be provided to the examiner for review. All appropriate testing should be conducted. The Veteran should be asked to provide a complete medical history, if possible. The examiner should identify any acquired psychiatric disorder, to include PTSD, currently experienced by the Veteran, if possible. Based on a review of the claims file and the results of the Veteran's physical examination, and the Veteran's statements regarding the development and treatment of his claimed disorder, the examiner is asked to state whether it is at least as likely as not (i.e., a 50 percent or greater probability) that any acquired psychiatric disorder, to include PTSD, if diagnosed, is related to active service or any incident of service. If PTSD is diagnosed, then the examiner should identify the stressor(s) on which this diagnosis is based or, alternatively, whether the Veteran's PTSD, if diagnosed, is related to his fear of hostile military or terrorist activity. A complete rationale must be provided for any opinions expressed. If any requested opinion cannot be provided without resorting to speculation, then the examiner should explain why. 5. Schedule the Veteran for a VA examination to determine the nature and etiology of his claimed hypertension. The claims file and a copy of this remand must be provided to the examiner for review. All appropriate testing should be conducted. The Veteran should be asked to provide a complete medical history, if possible. Based on a review of the claims file and the results of the Veteran's physical examination, and the Veteran's statements regarding the development and treatment of his claimed disorder, the examiner is asked to state whether it is at least as likely as not (i.e., a 50 percent or greater probability) that hypertension, if diagnosed, is related to active service or any incident of service. The examiner also is asked to state whether it is at least as likely as not (i.e., a 50 percent or greater probability) that any acquired psychiatric disability caused or aggravated (permanently worsened) the Veteran's hypertension, if diagnosed. A complete rationale must be provided for any opinions expressed. If any requested opinion cannot be provided without resorting to speculation, then the examiner should explain why. 6. Schedule the Veteran for a VA examination to determine the nature and etiology of his claimed obstructive sleep apnea. The claims file and a copy of this remand must be provided to the examiner for review. All appropriate testing should be conducted. The Veteran should be asked to provide a complete medical history, if possible. Based on a review of the claims file and the results of the Veteran's physical examination, and the Veteran's statements regarding the development and treatment of his claimed disorder, the examiner is asked to state whether it is at least as likely as not (i.e., a 50 percent or greater probability) that obstructive sleep apnea, if diagnosed, is related to active service or any incident of service. The examiner also is asked to state whether it is at least as likely as not (i.e., a 50 percent or greater probability) that any acquired psychiatric disability caused or aggravated (permanently worsened) the Veteran's obstructive sleep apnea, if diagnosed. A complete rationale must be provided for any opinions expressed. If any requested opinion cannot be provided without resorting to speculation, then the examiner should explain why. 7. Schedule the Veteran for a VA examination to determine the nature and etiology of his claimed low back disorder and leg pain. The claims file and a copy of this remand must be provided to the examiner for review. All appropriate testing should be conducted. The Veteran should be asked to provide a complete medical history, if possible. The examiner should identify any low back disorder(s) currently experienced by the Veteran, if possible. Based on a review of the claims file and the results of the Veteran's physical examination, and the Veteran's statements regarding the development and treatment of his claimed disorder, the examiner is asked to state whether it is at least as likely as not (i.e., a 50 percent or greater probability) that a low back disorder and leg pain, if diagnosed, is related to active service or any incident of service. A complete rationale must be provided for any opinions expressed. If any requested opinion cannot be provided without resorting to speculation, then the examiner should explain why. 8. Schedule the Veteran for appropriate VA examination to determine the nature and etiology of his claimed foot disorders. The claims file and a copy of this remand must be provided to the examiner for review. All appropriate testing should be conducted. The Veteran should be asked to provide a complete medical history, if possible. The examiner is asked to identify any foot disorder(s) currently experienced by the Veteran, if possible. Based on a review of the claims file and the results of the Veteran's physical examination, and the Veteran's statements regarding the development and treatment of his claimed disorder, the examiner is asked to state whether it is at least as likely as not (i.e., a 50 percent or greater probability) that a foot disorder, if diagnosed, is related to active service or any incident of service. The examiner also is asked to state whether it is at least as likely as not (i.e., a 50 percent or greater probability) that any low back disorder caused or aggravated (permanently worsened) a bilateral foot disorder, if diagnosed. The examiner next is asked to state whether there is clear and unmistakable evidence that the Veteran's pes planus, which existed prior to service, was aggravated (permanently worsened) during service. If a foot disorder other than pes planus is diagnosed, then the examiner is asked to state whether there is clear and unmistakable evidence that such disorder(s) existed prior to service and was/were aggravated (permanently worsened) by service. A complete rationale must be provided for any opinions expressed. If any requested opinion cannot be provided without resorting to speculation, then the examiner should explain why. 9. The Veteran should be given adequate notice of the requested examinations which includes advising him of the consequences of his failure to report to the examinations. If he fails to report to the examinations, then this fact should be noted in the claims file and a copy of the scheduling of examination notification or refusal to report notice, whichever is applicable, should be obtained by the AOJ and associated with the claims file. 10. Review the completed examination reports to determine if they substantially comply with the REMAND directives. If not, please take appropriate corrective action. See Stegall v. West, 11 Vet. App. 268 (1998). 11. Review all evidence received since the last prior adjudication and readjudicate the Veteran's claims. If the determination remains unfavorable to the Veteran, then the AOJ should issue a supplemental statement of the case that contains notice of all relevant actions taken, including a summary of the evidence and applicable law and regulations considered pertinent to the issues. An appropriate period of time should be allowed for response by the Veteran and his service representative. Thereafter, the case should be returned to the Board for further appellate consideration, if in order. The Veteran has the right to submit additional evidence and argument on the matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims 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 2014). ______________________________________________ MICHAEL T. OSBORNE Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs