Citation Nr: 1800286 Decision Date: 01/04/18 Archive Date: 01/19/18 DOCKET NO. 16-50 159 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Chicago, Illinois THE ISSUES 1. Entitlement to service connection for right shoulder disability. 2. Entitlement to service connection for a right foot disability. 3. Entitlement to service connection for a left foot disability. 4. Entitlement to service connection for sleep apnea, to include secondary to posttraumatic stress disorder. 5. What is the proper initial rating for posttraumatic stress disorder? 6. Entitlement to a total rating due to unemployability caused by service-connected disabilities. REPRESENTATION Appellant represented by: Betty L. G. Jones, Agent WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD Harold A. Beach, Counsel INTRODUCTION The Veteran served on active duty from February to May 2007 and from April 2008 to August 2010. This matter came to the Board of Veterans' Appeals (Board) on appeal from an April 2014 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Chicago, Illinois. In March 2017, the Veteran testified before the undersigned. This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2017). 38 U.S.C. § 7107(a)(2) (2012). The issues of entitlement to service connection for a right shoulder disability and a bilateral foot disability are addressed in the REMAND portion of the decision below. FINDINGS OF FACT 1. Sleep apnea was first clinically presented after separation from active duty, and the preponderance of the evidence is against a finding that sleep apnea is in any way related to service or to a disability for which service-connection has already been established. 2. Since August 11, 2010, the Veteran's posttraumatic stress disorder has been productive of occupational and social impairment, with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood. 3. The Veteran has a combined disability rating of 90 percent due to the following service connected disabilities: posttraumatic stress disorder, evaluated as 70 percent disabling; cystic acne with scars, evaluated as 60 percent disabling; tinnitus, evaluated as 10 percent disabling; and a left ear hearing loss disability, evaluated as noncompensable. 4. The Veteran has a college education and work experience as a retail warehouseman. 5. The Veteran's service-connected disorders preclude him from securing and following a substantially gainful occupation consistent with his education and work experience. CONCLUSIONS OF LAW 1. Sleep apnea is neither the result of disease or injury incurred in or aggravated by service, nor is it proximately due to or aggravated by a disability for which service connection has already been established. 38 U.S.C. §§ 1110, 1117, 5103, 5103A (2012); 38 C.F.R. §§ 3.159, 3.303, 3.310, 3.317 (2017). 2. The criteria for a 70 percent rating for posttraumatic stress disorder have been met. 38 U.S.C. §§ 1155, 5103, 5103A (2012); 38 C.F.R. §§ 3.159, 4.1, 4.7, 4.130, Diagnostic Code 9411 (2017). 3. The criteria for a total disability evaluation based on individual unemployability due to service connected disorders have been met. 38 U.S.C. §§ 1155, 5103, 5103A; 38 C.F.R. §§ 3.159, 3.341, 4.16 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Generally, the claimant has a responsibility to present and support a claim for VA benefits. 38 U.S.C. § 5107. VA has a duty to notify the claimant of the information and evidence necessary to substantiate a claim for VA benefits and to assist claimants in obtaining that evidence. 38 U.S.C. §§ 5103, 5103A; 38 C.F.R. § 3.159. The claimant must provide enough information to identify and locate the existing records supporting his claims, including the custodian or agency holding the records; the approximate time frame covered by the records; and, in the case of medical treatment records, the condition for which treatment was provided. 38 C.F.R. § 3.159. In February 2011 and March 2013, VA appropriately notified the Veteran of the information and evidence needed to substantiate and complete his claims for service connection. VA then obtained identified and available evidence, conducted examinations, and provided the Veteran an opportunity for a hearing before the Board. There is no evidence of any VA error in notifying or assisting the Veteran in the development of his claims; and therefore, the Board will proceed to the merits of the appeal. Service Connection for Sleep Apnea The Veteran claims entitlement to service connection for sleep apnea. Service connection connotes many factors but basically it means that the facts, shown by evidence, establish that a particular injury or disease resulting in disability was incurred coincident with service in the Armed Forces, or if preexisting such service, was aggravated therein. 38 U.S.C. § 1110; 38 C.F.R. § 3.303. Generally, the evidence must show (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. Cuevas v. Principi, 3 Vet. App. 542 (1992). In addition, service connection may be granted for any disease that is initially diagnosed after service when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303. During his June 2017 video conference, the Veteran testified that he first began to experience sleep difficulties during his duty in Iraq between October 2009 and July 2010, and that those difficulties have continued since. He contends that those difficulties were the initial manifestations of sleep apnea; and, therefore service connection is warranted. After carefully considering the Veteran's claim in light of the record and the applicable law, however, the Board finds that the preponderance of the evidence is against the claim. Accordingly, service connection for sleep apnea is not warranted, and the appeal will be denied. The Veteran is competent to report his symptoms and what he experienced during and since his separation from service. Layno v. Brown, 6 Vet. App. 465 (1994). However, there is no evidence to suggest that he is competent by training or experience to diagnose the etiology of his sleep apnea. The question of an etiologic relationship between any current sleep problems and service or a service-connected disability involves a medical issue. Thus, the question of etiology may not be competently addressed by lay evidence. Davidson v. Shinseki, 581 F.3d 1313 (2009). In this case, not only is chronic, identifiable sleep apnea uncorroborated by the evidence in service; it is contradicted by more contemporaneous and probative evidence of record. Curry v. Brown, 7 Vet. App. 59 (1994) (contemporaneous evidence has greater probative weight than a history reported by the Veteran). The Veteran's service medical records for both periods of active duty are negative for any complaints or clinical findings of sleep apnea. During treatment at the Tuskegee VA Medical Center in March 2011, it was noted that he took psychiatric medication, Valium, for a few days while he was in Iraq. In August 2011, it was noted that he had a new complaint of possible sleep apnea. Following a sleep study performed for VA in August 2012, the Veteran was found to have moderate sleep apnea. In March 2014, the Veteran was examined by VA to determine the nature and etiology of any sleep disorder found to be present. He stated that during service in Iraq, he had had multiple complaints about sleep issues and was given medication to help him sleep. His sleep problems reportedly continued after his separation from service and were related to anxiety and posttraumatic stress disorder. It was noted that he was found to have sleep apnea in 2012 and that sleep apnea contributed to insomnia. Following the examination, the examiner opined that the Veteran's sleep apnea was less likely than not related to his sleep problems in his military records. Rather the examiner opined that his inservice sleep problems were most likely caused by mental disturbance/anxiety. The examiner referred the Veteran to the Mental Health Service. In March 2014, the Veteran also underwent a VA psychiatric examination. The diagnoses were moderate to severe posttraumatic stress disorder, and alcohol use disorder in partial sustained remission. It was noted that sleep apnea contributed to insomnia. It was also noted that in service in January and February 2010, the Veteran had seen a mental health provider for insomnia and stress and was prescribed Zolpidem and Valium. In May 2014, the Veteran's treating VA physician, a psychiatric specialist, reported that the appellant's posttraumatic stress disorder was manifested in part by hyperarousal symptoms that led to persistent insomnia. It was noted that the claimant's chronic sleep impairment was a symptom of his posttraumatic stress disorder. In December 2015, the Veteran was examined by VA to determine the nature and etiology of any psychiatric disability found to be present. The diagnoses were severe posttraumatic stress disorder, moderate alcohol use disorder, and anti-social personality traits. The examiner noted that the Veteran had marked alterations in arousal and reactivity associated with his traumatic events, beginning or worsening after the traumatic events occurred, including, specifically, sleep disturbance (e.g., difficulty falling or staying asleep or restless sleep). Following the June 2016 VA examination, the diagnosis was obstructive sleep apnea with an onset date of 2010. The examiner opined that sleep apnea was at least as likely as not related to his multiple sleep issues in service. Following a VA psychiatric examination in May 2017, the diagnosis was severe posttraumatic stress disorder. The examiner noted that the Veteran had persistent symptoms of increased arousal as indicated, in part, by his difficulty falling asleep or staying asleep. The examiner specifically noted that the Veteran's chronic sleep difficulties were a symptom of his posttraumatic stress disorder. The evidence of record is negative for any complaints or clinical findings of sleep apnea in service. Evidence of sleep apnea was not confirmed until a 2012 sleep study, two years after the Veteran's separation from service. That study did not mention any history of sleep apnea in service. There is a notation in a March 2014 VA examination report that the Veteran had sleep testing at the Tuskegee VA Medical Center in June 2010, however, the appellant at that time was on active duty and stationed in Iraq. Hence, the March 2014 reference cannot be correct. Moreover, the evidence shows that the Veteran did not complain of sleep apnea until August 2011. Accordingly, the Board finds that sleep apnea was not confirmed until the sleep study of 2012. While a VA nurse practitioner in June 2016 found that sleep apnea had its onset in service, she cited no instances of any sleep difficulty in the Veteran's service records. Her opinion contains no rationale. Rather, it is based on the history related by the Veteran. A bare transcription of a lay history is not transformed into competent medical evidence merely because the transcriber happens to be a medical professional. LeShore v. Brown, 8 Vet. App. 406 (1995). Indeed, the preponderance of the evidence, including a March 2014 VA examination and August 2016 VA opinion are against such a finding. In addition, multiple VA psychiatric examiners, including the Veteran's VA treating physician, concur that the appellant's sleep problems are manifestations of his service-connected posttraumatic stress disorder. While the appellant suffers from multiple sleep problems, these examiners do not find that sleep apnea is caused or permanently worsened by posttraumatic stress disorder. During a video conference hearing the representative suggested that sleep apnea was secondary to his insomnia. Service connection may be granted when the evidence shows that a particular disability is proximately due to or has been aggravated by a disability for which service connection has already been established. 38 C.F.R. § 3.310. Temporary or intermittent flare-ups of a preexisting injury or disease are not sufficient to be considered aggravation in service unless the underlying condition, as contrasted to symptoms, is worsened. Hunt v. Derwinski, 1 Vet. App. 292 (1991). Although the evidence shows that there can be a link between insomnia and sleep apnea, the evidence preponderates against finding that this veteran's sleep apnea is caused or aggravated by insomnia. In fact, the evidence shows the converse to be true. As noted during the March 2014 VA examination, sleep apnea can contribute to insomnia, not the other way around. The Veteran has not submitted any competent evidence to support his claim; and, therefore, the Board finds the preponderance of the evidence against a finding of secondary service connection. Finally, the Veteran contends that his sleep apnea is the result of his exposure to toxic substances during his service in Southwest Asia. Service connection may be granted for claims related to service during the Persian Gulf War may if there is (1) an undiagnosed illness, and (2) evidence of a chronic disability. Gutierrez v. Principi, 19 Vet. App. 1 (2004). The chronic disability must not be attributed to any known clinical diagnosis and must result from an illness or combination of illnesses manifested by one or more signs and symptoms that (1) became manifest during active service in the Southwest Asia theater of operations during the Persian Gulf War, or (2) manifested to a degree of 10 percent or more not later than December 31, 2016. 38 U.S.C. § 1117; 38 C.F.R. § 3.317 (a)(1)(i)-(ii). Qualifying chronic disabilities include medically unexplained chronic multi-symptom illnesses-such as chronic fatigue syndrome, fibromyalgia, and irritable bowel syndrome-that are defined by a cluster of signs or symptoms. 38 U.S.C. § 1117 (a). Signs and symptoms include: (1) fatigue; (2) unexplained rashes or other dermatological signs or symptoms; (3) headache; (4) muscle pain; (5) joint pain; (6) neurological signs or symptoms; (7) neuropsychological signs or symptoms; (8) upper or lower respiratory system signs or symptoms; (9) sleep disturbances; (10) gastrointestinal signs or symptoms; (11) cardiovascular signs or symptoms; (12) abnormal weight loss; and (13) menstrual disorders. 38 U.S.C. § 1117 (g). Manifestations of undiagnosed illness may be presumptively service connected unless there is affirmative evidence that an undiagnosed illness (1) was not incurred in service or (2) was caused by a supervening condition. 38 C.F.R. § 3.317 (a)(7). In a fact sheet associated with the claims file in June 2016, it was noted that the Veteran was considered to have been exposed to burn pit toxins in service and that such exposure could affect his respiratory system. However, following an August 2016 review of the Veteran's claims file, a VA physician found absolutely no extant medical evidence that even suggested that remote exposure to Gulf war environmental hazards could cause the delayed onset of obstructive sleep apnea. Rather, the VA physician opined that the Veteran's obstructive sleep apnea was related to excess weight. Again, the Veteran has not submitted any competent evidence to the contrary, and, therefore, service connection for sleep apnea on the basis of the Veteran's service in the Persian Gulf is not warranted. It must be noted that the fact that the appellant's sleep apnea is a diagnosed illness is itself clear evidence that it is not due to an undiagnosed illness. Inasmuch as the preponderance of the evidence is against finding that sleep apnea had its onset in or as a result of service or as a result of a service-connected disability, the Veteran does not meet the criteria for service connection. Accordingly, service connection for sleep apnea is not warranted. Increased Rating Claims Disability evaluations are determined by comparing the manifestations of a particular disability with the criteria set forth in the Diagnostic Codes of the VA Schedule for Rating Disabilities. 38 U.S.C. § 1155, 38 C.F.R. Part 4 (2017). The percentage ratings represent, as far as can practicably be determined, the average impairment in earning capacity (in civilian occupations) resulting from service-connected disability. 38 C.F.R. § 4.1. Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. During the course of an appeal, a veteran may experience multiple distinct degrees of disability that might result in different levels of compensation from the time the increased rating claim was filed until a final decision is made. Hart v. Mansfield, 21 Vet. App. 505 (2007). Similarly, when service connection is granted and an initial rating award is at issue, separate ratings can be assigned for separate periods from the time service connection became effective. Fenderson v. West, 12 Vet. App. 119 (1999). Therefore, the following analysis is undertaken with consideration of the possibility that different ratings may be warranted for different time periods. Posttraumatic stress disorder Posttraumatic stress disorder is rated in accordance with the General Rating Formula for Mental Disorders. 38 C.F.R. § 4.130, Diagnostic Code 9411. A 50 percent rating is warranted when there is occupational and social impairment with reduced reliability and productivity due to such symptoms as: flattened affect; circumstantial, circumlocutory, or stereotyped speech; panic attacks more than once a week; difficulty in understanding complex commands; impairment of short- and long-term memory (e.g., retention of only highly learned material, forgetting to complete tasks); impaired judgment; impaired abstract thinking; disturbances of motivation and mood; and difficulty in establishing and maintaining effective work and social relationships. A 70 percent rating is warranted when there is occupational and social impairment, with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood, due to such symptoms as: suicidal ideation; obsessional rituals which interfere with routine activities; speech intermittently illogical, obscure, or irrelevant; near-continuous panic or depression affecting the ability to function independently, appropriately and effectively; impaired impulse control (such as unprovoked irritability with periods of violence); spatial disorientation; neglect of personal appearance and hygiene; difficulty in adapting to stressful circumstances (including work or a work-like setting); and inability to establish and maintain effective relationships. Id. A 100 percent disability rating is warranted when there are such symptoms as: gross impairment in thought processes or communication; persistent delusions or hallucinations; grossly inappropriate behavior; persistent danger of hurting self or others; intermittent inability to perform activities of daily living (including maintenance of minimal personal hygiene); disorientation to time or place; and memory loss for names of close relatives, own occupation, or own name. Id. In determining the appropriate disability evaluation to assign, the primary consideration is not only for a veteran's symptoms, but how those symptoms impact his Veteran's occupational and social impairment. A veteran need not have all, most, or even some, of the enumerated symptoms to award a specific rating, because the use of the term "such as" in the rating criteria demonstrates that the symptoms after that phrase are not intended to constitute an exhaustive list. Nevertheless, since all ratings in the general rating formula are associated with objectively observable symptomatology, and the plain language of the regulation makes it clear that the Veteran's impairment must be "due to" those symptoms, a veteran may only qualify for a given disability by demonstrating the particular symptoms associated with that percentage, or others of similar severity, frequency, and duration. Vazquez-Claudio v. Shinseki, 713 F.3d 1112 (Fed. Cir. 2013). Since service connection became effective August 11, 2010, the evidence, such as VA examinations in March 2014, December 2015, and September 2017 and the report of an October 2014 VA Mental Status Assessment, show that the Veteran's posttraumatic stress disorder has been primarily manifested by a depressed mood, anxiety, suspiciousness, chronic sleep impairment, an inability to establish and maintain effective relationships, difficulty coping with stress, and impaired impulse control, such as unprovoked irritability with periods of violence. Evidence of the latter symptom was shown in 2014 when the claimant was removed from a VA inpatient posttraumatic stress disorder program for threatening another patient. Such findings meet or more nearly approximate the criteria for a 70 percent rating under General Rating Formula for Mental Disorders. 38 C.F.R. § 4.130, Diagnostic Code 9411. Accordingly, an initial rating of 70 percent is warranted; and to that extent, the appeal is granted. In arriving at this decision, the Board has considered the possibility of a still higher schedular evaluation. During his September 2017 VA examination, the Veteran reportedly demonstrated spatial disorientation, persistent delusions or hallucinations, grossly inappropriate behavior, a persistent danger of hurting himself or others, and a neglect of personal appearance and hygiene. While those manifestations suggest the criteria for a 100 percent schedular disability rating, they only provide a snapshot of the Veteran's posttraumatic stress disorder at the time of the examination. The preponderance of the evidence, including the prior VA examination reports and the Veteran's treatment records from April 2010 through June 2017, generally reflect a lesser degree of severity. For example, the most recent treatment records from S. B., L.P.C., dated from January 2016 through May 2017, show that the Veteran's psychiatric problems are manifested primarily by grief, depression, anger, and avoidance behavior with respect to marital problems and a subsequent divorce. During that time, he was alert and oriented, interactive, and functionally intact. Although he reported one episode of violence while drinking in April 2017, the recent treatment records are negative for such episodes. In addition, there was no evidence of suicidal ideation, spatial disorientation, persistent delusions or hallucinations, a neglect of personal appearance and hygiene, memory loss, or gross impairment in thought processes or communication during those sessions. Therefore, the Board finds that the Veteran' posttraumatic stress disorder symptoms do not generally reflect the frequency, severity, and duration to result in a total occupational and social impairment. Accordingly, the Veteran does not meet the schedular criteria for a rating in excess of 70 percent. Individual unemployability To establish entitlement to a total disability evaluation based on individual unemployability due to service connected disorders, there must be impairment so severe that it is impossible to follow a substantially gainful occupation due solely to the Veteran's service-connected disabilities. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.341, 4.16. Consideration is given to a veteran's level of education, special training, and previous work experience in arriving at a conclusion, but not to his age or to the impairment caused by non-service-connected disabilities. 38 C.F.R. §§ 3.341, 4.16, 4.19. When a veteran's schedular rating is less than total, a total rating may nonetheless be assigned provided that if there is only one service-connected disability, this disability shall be rated at 60 percent or more, or if there are two or more disabilities, there shall be at least one disability ratable at 40 percent or more, and sufficient additional disability to bring the combined rating to 70 percent or more. In addition, the disabled person must be unable to secure or follow a substantially gainful occupation. 38 C.F.R. § 4.16(a). In this case, the evidence shows that the Veteran has a combined disability rating of 90 percent due to the following service-connected disabilities: posttraumatic stress disorder, evaluated as 70 percent disabling; cystic acne with scars, evaluated as 60 percent disabling; tinnitus, evaluated as 10 percent disabling; and a left ear hearing loss disability, evaluated as noncompensable. Therefore, he meets the schedular rating criteria for a total disability evaluation based on individual unemployability due to service connected disorders under 38 C.F.R. § 4.16(a). In addition, the evidence shows that he is unemployable as a result of his service-connected disabilities. The Veteran reportedly has a college education; however, despite his education, he has worked in less skilled occupations, each for less than a year. For example, he has worked as a machine operator and last worked from September 23, 2013 through September 8, 2014 as a material handler for a large retail corporation. Significantly, the appellant has been found disabled by the Social Security Administration since April 2014 due to posttraumatic stress disorder and a nonservice-connected back disorder. During his October 2014 VA Mental Status Assessment, the Veteran was found to be markedly disabled from performing activities within a schedule or maintaining regular attendance and punctuality within customary tolerances. As such, the examiner expected the Veteran to miss more than four days of work per month due to posttraumatic stress disorder. He was also found to be markedly disabled from completing a normal workday or work week without interruptions from psychologically based symptoms. The October 2014 examiner found the Veteran extremely disabled in his ability to work with and in close proximity to others without being distracted by them. Finally, in May 2014, his treating VA physician also opined that the Veteran was unable to work due primarily to posttraumatic stress disorder. In addition to posttraumatic stress disorder the Veteran's service-connected tinnitus interferes with his ability to work. Following an October 2011 VA examination, it was noted that the ringing in his ears interfered with hearing other sounds, including speech. It also made it difficult for him to concentrate. When the rating assigned for posttraumatic stress disorder in this decision is combined with his other service-connected disabilities, the Board finds that the Veteran is precluded from maintaining all forms of substantially gainful employment. Accordingly, he meets or more nearly approximates the criteria for a total disability evaluation based on individual unemployability due to service connected disorders. ORDER Entitlement to service connection for sleep apnea is denied. Entitlement to a 70 percent rating for posttraumatic stress disorder effective August 10, 2011, is granted subject to the laws and regulations governing the award of monetary benefits. Entitlement to a total disability evaluation based on individual unemployability due to service connected disorders is granted subject to the laws and regulations governing the award of monetary benefits. REMAND The Veteran also seeks entitlement to service connection for right shoulder and bilateral foot disorders. In June 2004, prior to his entry to his first period of active duty, he was treated at St. Margaret's Hospital for a right acromioclavicular separation. In June 2006, an MRI revealed post-operative changes in the shoulder. The report of his February 2007 service entrance examination is negative for any complaints or clinical findings of a right shoulder disability. Approximately eight days after his entry on active duty his right shoulder reportedly began to cause pain. After approximately two and a half months of active duty the appellant was separated from service because at that time he did not meet military medical, physical, or procurement standards. In June 2007, shortly after his first period of active duty, the Veteran underwent additional right shoulder surgery, and in December 2007, his surgeon released him to return to service. In January 2008, the Veteran was examined prior to his second period of active duty. Following a consultation with an orthopedic service, it was noted that the Veteran's right shoulder pain had resolved and that there was no impairment in his right shoulder function. In February 2009, the Veteran injured his right shoulder during Army Ranger training. Ranger training is generally considered one of the, if not the most physically and mentally demanding courses in the Army. Following a VA examination in October 2011, the diagnosis was residuals of a right shoulder injury. Following a March 2014 VA examination, the diagnosis was right shoulder rotator cuff tear and repair on two occasions. The VA examiner opined that the Veteran's right shoulder disability clearly and unmistakably existed prior to service but was c not aggravated beyond its natural progression by an in-service event, injury or illness. The examining VA nurse practitioner did not provide a clear rationale for her opinion. As to the claim foot disability, the Board notes that during his January 2007 service entrance examination, the Veteran was found to have moderate, asymptomatic pes planus. During his January 2008 examination prior to his second period of active duty, and during an October 2008 examination prior to his acceptance into Ranger training, the Veteran was found to have mild, asymptomatic pes planus. In May 2011, X-rays of the Veteran's feet revealed mild bilateral pes planus. In March 2014, the Veteran was examined by VA to determine the nature and etiology of any foot disability found to be present. The diagnoses were bilateral pes planus and bilateral plantar fasciitis. Following the examination, the examiner issued diametrically opposed opinions. She opined that Veteran's bilateral foot pain clearly and unmistakably existed prior to service, and was clearly and unmistakably not aggravated beyond its natural progression by his military service. In an opinion from general remarks, the examiner stated that the Veteran's bilateral foot pain was at least as likely as not aggravated beyond its natural progression by his military service. In light of the foregoing, the Board is of the opinion that further development is warranted with respect to the issues of entitlement to service connection for right shoulder and foot disabilities. Accordingly, those issues are remanded to the Agency of Original Jurisdiction (AOJ) for the following action: 1. Ask the Veteran for the names and addresses of all health care providers who treated him for a right shoulder disability before each period of active duty. Then request records reflecting his treatment for a right shoulder disability directly from each health care provider. This should include, but is not limited to, records of his right shoulder surgery in 2004 and 2007. 2. Thereafter schedule the Veteran for an examination by an orthopedist to determine the nature and etiology of any right shoulder disability found to be present. The Veteran's VBMS and Virtual VA files, as well as a copy of this remand must be made available to the orthopedist for review in conjunction with the examination, and the orthopedist must acknowledge receipt and review of these materials in any report generated as a result of this remand. If any right shoulder disability is diagnosed, the examiner must identify and explain the elements supporting each diagnosis. The orthopedist must then offer an opinion assessing the nature and extent of any right shoulder disability that existed prior to each of the Veteran's periods of active duty. The orthopedist must then offer an opinion addressing whether from a medical perspective it is clear and unmistakable that any preexisting right shoulder disorder was NOT aggravated during either term of active duty service. Temporary or intermittent flare-ups of a preexisting injury or disease are not sufficient to be considered aggravation in service unless the underlying condition, as contrasted to symptoms, is worsened. A complete, well-reasoned rationale must be provided for any opinion offered. If the requested opinion cannot be rendered without resorting to speculation, the orthopedist must state whether the need to speculate is caused by a deficiency in the state of general medical knowledge, i.e., no one could respond given medical science and the known facts, or by a deficiency in the record or the examiner, i.e., additional facts are required, or the examiner does not have the needed knowledge or training A copy of the notice informing the Veteran of the date, time, and location of any examination must be associated with the claims file. If that notice is returned by the Post Office as undeliverable, that fact must be noted in writing and associated with the claims folder. The Veteran is advised that it is his responsibility to report for all scheduled VA examinations and to cooperate in the development of his claims. The consequences for failure to report for a VA examination without good cause may include denial of the claim. 3. Return the case to the VA examiner who performed the March 2014 examination of the Veteran's feet. Ask the examiner to clarify whether it was at least as likely as not (at least a 50/50 chance) that any diagnosed foot disorder was incurred in service. If the examiner finds that a foot disorder existed prior to service, she must state whether they underwent a chronic increase in the underlying pathology during either period of the Veteran's service. A complete, well-reasoned rationale must be provided for any opinion offered. If further examination is in order, that examination must be conducted. If the requested opinion cannot be rendered without resorting to speculation, the examiner must state whether the need to speculate is caused by a deficiency in the state of general medical knowledge, i.e., no one could respond given medical science and the known facts, or by a deficiency in the record or the examiner, i.e., additional facts are required, or the examiner does not have the needed knowledge or training If the examiner who conducted the March 2014 VA examination is unavailable, forward the case to a similarly qualified health care practitioner for a review of the record and an opinion as to the foregoing questions. 4. Then after completing any additional development warranted readjudicate the issues of entitlement to service connection for a right shoulder and bilateral foot disabilities. If any benefit sought on appeal is not granted to the Veteran's satisfaction, he and his representative must be furnished a statement of the case and afforded an opportunity to respond. Thereafter, if in order, the case should be returned to the Board for further appellate action. By this remand, the Board intimates no opinion as to the final disposition of any unresolved issue. The Veteran need take no action unless he is notified to do so. He has the right to submit any additional evidence and/or argument on the matters the Board has remanded to the RO. Kutscherousky v. West, 12 Vet. App. 369, 372-73 (1999). Please note, this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c). As with 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. 38 U.S.C. §§ 5109B, 7112 (2012). ______________________________________________ DEREK R. BROWN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs