Citation Nr: 1803801 Decision Date: 01/22/18 Archive Date: 01/31/18 DOCKET NO. 12-21 951 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Jackson, Mississippi THE ISSUES 1. Entitlement to service connection for obstructive sleep apnea, to include as secondary to service-connected posttraumatic stress disorder (PTSD). 2. Entitlement to service connection for right knee disability. 3. Entitlement to service connection for right ankle disability. 4. Entitlement to service connection for an eye disability. 5. Entitlement to an initial compensable rating for status post left ankle sprain with residuals prior to March 24, 2017, and in excess of 10 percent from March 24, 2017. 6. Entitlement to an initial compensable rating for infertility. 7. Entitlement to an initial rating in excess of 10 percent for recurrent lumbar spine with disc space narrowing L5-S1. 8. Entitlement to an initial compensable rating for recurrent bilateral calcific Achilles tendonitis and plantar fasciitis. 9. Entitlement to an initial compensable rating for herpes simplex. 10. Entitlement to a rating in excess of 70 percent for PTSD. 11. Entitlement to an initial rating in excess of 10 percent for sprain of the lateral collateral ligament of the left knee. 12. Entitlement to an initial rating in excess of 10 percent for diarrhea. 13. Entitlement to a total disability rating based upon individual unemployability due to service-connected disability (TDIU). REPRESENTATION Veteran represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD G. E .Wilkerson, Counsel INTRODUCTION The Veteran served on active duty from March 2001 to May 2007. This matter comes before the Board of Veterans' Appeals (Board) on appeal from October 2009, February 2010, and August 2011 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in Jackson, Mississippi. During the course of the Veteran's appeal, the RO awarded an increased 70 percent rating for PTSD, effective the date of claim. The RO also assigned an increased, 10 percent rating from March 24, 2017 for the Veteran's service-connected left ankle disability. The Veteran is presumed to seek the maximum rating for an increased rating claim absent a clear indication to the contrary. See AB v. Brown, 6 Vet. App. 35, 39 (1993). As higher ratings for the disabilities are available, to include prior to and from March 2017, these matters remain on appeal In June 2017, the Veteran testified during a Board videoconference hearing before the undersigned Veterans Law Judge. A transcript of the hearing is associated with the claims file. The law provides that a total disability evaluation based on individual unemployability due to service-connected disability may be granted upon a showing that the Veteran is unable to secure or follow a substantially gainful occupation due solely to impairment resulting from his or her service-connected disabilities. See 38 C.F.R. §§ 3.340, 3.341, 4.16. In Rice v. Shinseki, 22 Vet. App. 447 (2009), the United States Court of Appeals for Veterans Claims held that a claim for individual unemployability is part of an increased rating claim when such claim is raised by the record. VA examination reports reflect that the Veteran may be only marginally employed, and the Veteran reported during the hearing that his PTSD, at least in part, prevented him from working. Thus, a claim for TDIU is a component of the increased rating claims on appeal before the Board. Accordingly, the Board has jurisdiction over this issue. The service-connection claims for sleep apnea, right ankle, and right knee disabilities, as well as the increased rating claims for left ankle, left knee, lumbar spine, Achilles tendonitis and plantar fasciitis, and diarrhea, and the claim for TDIU are addressed in the REMAND portion of the decision below and are REMANDED to the Agency of Original Jurisdiction (AOJ). FINDINGS OF FACT 1. An eye disability is not shown by the record; an eye refractive error is not a "disease" or "injury" under the meaning of applicable law and regulation for VA purposes. 2. During this June 2017 Board hearing, the Veteran withdrew from appeal the issues of entitlement to initial compensable ratings for infertility and herpes simplex. 3. The Veteran's PTSD most closely approximates occupational and social impairment with deficiencies in most area due to such symptoms of disturbances of motivation and mood, social withdrawal, irritability, and difficulty in establishing and maintaining effective work and social relationships; total occupational and social impairment is not shown. CONCLUSIONS OF LAW 1. The criteria to establish service connection for an eye disability are not met. 38 U.S.C. §§ 1110, 1131, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303 (2017). 2. The criteria for withdrawal by the Veteran of a Substantive Appeal pertinent to the issue of entitlement to an initial compensable rating for infertility have been met. 38 U.S.C. § 7105 (b)(2), (d)(5) (2012); 38 C.F.R. § 20.204 (2017). 3. The criteria for withdrawal by the Veteran of a Substantive Appeal pertinent to the issue of entitlement to an initial compensable rating for herpes simplex have been met. 38 U.S.C. § 7105 (b)(2), (d)(5) (2012); 38 C.F.R. § 20.204 (2017). 4. The criteria for a rating in excess of 70 for PTSD are not met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.102, 3.400, 4.7, 4.130, Diagnostic Code 9411 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Withdrawn Claims The Board notes that under 38 U.S.C. § 7105, the Board may dismiss any appeal that fails to allege specific error of fact or law in the determination being appealed. A Substantive Appeal may be withdrawn on the record at a hearing or in writing at any time before the Board promulgates a decision. 38 C.F.R. § 20.204. Withdrawal may be made by the appellant or by his or her authorized representative. Id. During the June 2017 Board hearing, the Veteran indicated that he wished to withdraw his appeal as to the matters of entitlement to increased ratings for his service-connected infertility and herpes simples. As the Veteran has withdrawn the matter of entitlement to increased rating for herpes simples and infertility there remain no allegations of errors of fact or law for appellate consideration at this time. Accordingly, the Board does not have jurisdiction to review these issues on appeal and they are dismissed. II. Service Connection Service connection will be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred in or aggravated by active military service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Establishing service connection generally requires competent evidence of three things: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship, i.e., a nexus, between the claimed in-service disease or injury and the current disability. Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2009); 38 C.F.R. § 3.303(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 attributable to intercurrent causes. 38 C.F.R. § 3.303(b). To show a chronic disease in service, a combination of manifestations sufficient to identify the disease entity is required, as is sufficient observation to establish chronicity at the time. 38 C.F.R. § 3.303(b). The regulation, 38 C.F.R. § 3.303(b), applies to only those chronic diseases listed in 38 C.F.R. § 3.309 (a), and not to the disability claimed on appeal. See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013); 38 U.S.C. § 1101. Service connection may also be granted for a disease first diagnosed after discharge when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). The Veteran's service treatment records reflect that the Veteran's defective vision was noted at service entrance and he wore glasses. He underwent Lasik surgery in November 2001 for bilateral myopic astigmatism. No further complaints, treatment, or diagnosis with respect to the eyes or vision is indicated in service. A March 2005 post-deployment questionnaire reflects that the Veteran denied redness of the eyes with tearing and dimming of vision. He did not indicate any medical problems that developed during deployment. Post-service VA treatment records do not include any complaint, finding, or diagnosis with respect to the eyes or vision problems, outside of a history of Lasik surgery. On VA examination in November 2009, the examiner noted a negative history with respect to the eyes with the exception of Lasik surgery in 2002. The pupils were equal, round, and reactive to light and accommodation. Extraocular muscles were intact. The conjunctivae were pink, and the discs were sharp. Vasculature appeared normal. The examiner indicated that there was no history of eye disease. During the Veteran's 2017 Board hearing, he testified that he underwent Lasik surgery in service. Then, he was subsequently hit with a windowpane on the head while he was deployed to Iraq. He started experiencing auras and had a difficult time driving at night. He also experienced sensitivity to light. However, he also indicated that he did not have a current diagnosis. The Board emphasizes that Congress has specifically limited entitlement to service connection for disease or injury to cases where such incidents have resulted in disability. See 38 U.S.C. § 1110; see also McClain v. Nicholson, 21 Vet. App. 319, 321 (2007). Accordingly, where, as here, competent medical evidence indicates that the Veteran does not have the disability for which service connection is sought, there can be no valid claim for service connection for the disability. See Gilpin v. West, 155 F.3d 1353 (Fed. Cir. 1998); Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). As there is no disability, the Board does not reach the issue of whether the claimed disability is related to service. To the extent that the Veteran has been assessed with astigmatism and myopia, a refractive error of the eye is not a disease or injury within the meaning of VA laws and regulations. 38 C.F.R. § 3.303(c). The Board has considered the Veteran's lay statements regarding his symptomatology. As a lay person, the Veteran is competent to report on that which he has personal knowledge, including symptoms, such as auras and light sensitivity, and the Board deems him credible in that regard. See Layno v. Brown, 6 Vet. App. 465, 469 (1994). However, symptoms alone do not establish a current disability absent underlying pathology. See Sanchez-Benitez v. West, 13 Vet. App. 282, 285 (1999), appeal dismissed in part, and vacated and remanded in part sub nom. Sanchez-Benitez v. Principi, 259 F.3d 1356 (Fed. Cir. 2001). Here, service treatment records and post-service treatment records fail to disclose any pathology for these complaints, and the Veteran has indicated that he did not have a diagnosis for these complaints. In the absence of a current disability, service connection cannot be established. See Holton, 557 F.3d at 1366 (holding that entitlement to service connection requires, among other things, evidence of a current disability); see also Degmetich v. Brown, 104 F.3d 1328, 1332 (1997) (upholding VA's interpretation of sections 1110 and 1131 of the statute as requiring the existence of a present disability for VA compensation purposes). As the preponderance of the evidence is against the Veteran's claim, the benefit-of-the-doubt rule does not apply. 38 U.S.C. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). III. Increased Rating Disability evaluations are determined by application of the criteria set forth in the VA's Schedule for Rating Disabilities, which is based on average impairment in earning capacity. 38 U.S.C.A. § 1155; 38 C.F.R. Part 4. An evaluation of the level of disability present must also include consideration of the functional impairment of the Veteran's ability to engage in ordinary activities, including employment. 38 C.F.R. § 4.10. When a question arises as to which of two ratings apply under a particular diagnostic code, the higher evaluation is assigned if the disability more closely approximates the criteria for the higher rating. 38 C.F.R. § 4.7. After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the Veteran. 38 C.F.R. § 4.3. The Veteran's entire history is to be considered when making disability evaluations. See generally 38 C.F.R. § 4.1; Schafrath v. Derwinski, 1 Vet. App. 589 (1995). The Court has held that "staged" ratings are appropriate for any rating claim when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings. See Hart v. Mansfield, 21 Vet. App. 505 (2007); Fenderson v. West, 12 Vet. App 119 (1999). The Veteran's PTSD is rated as 70 percent disabling pursuant to 38 C.F.R. § 4.130, Diagnostic Code 9411. PTSD is rated under the General Rating Formula for evaluating psychiatric disabilities other than eating disorders. A 70 percent rating is assigned for occupational and social impairment with deficiencies in most areas, such as work, school, family relationships, 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 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. A 100 percent rating is assigned for total occupational and social impairment, due to such symptoms as: gross impairment in thought processes or communication; persistent delusions; grossly inappropriate behavior; persistent danger of hurting self or others; intermittent ability to perform activities of daily living (including maintenance of minimal personal hygiene); disorientation to time or place; and memory loss for names of closes relatives, own occupation, or own name. The symptoms listed in the rating schedule are not intended to constitute an exhaustive list, but rather serve as examples of the type and degree of the symptoms, or their effects, that would justify a particular rating. See Mauerhan v. Principi, 16 Vet. App. 436 (2002). In Vazquez-Claudio v. Shinseki, 713 F.3d 112, 116-17 (Fed.Cir. 2013) the Federal Circuit stated that "a veteran may only qualify for a given disability rating under § 4.130 by demonstrating the particular symptoms associated with that percentage, or others of similar severity, frequency, and duration." It was further noted that "§ 4.130 requires not only the presence of certain symptoms but also that those symptoms have caused occupational and social impairment in most of the referenced areas." To the extent that the medical evidence reflects diagnoses of other psychiatric disorders, where it is not possible to distinguish the effects of nonservice-connected conditions from those of a service-connected condition, the reasonable doubt doctrine dictates that all symptoms be attributed to the Veteran's service-connected disability. See Mittleider v. West, 11 Vet. App. 181 (1998). VA treatment records reflect that, in June 2011, the Veteran participated in a residential PTSD program. On mental status examination at discharge in July 2011, the Veteran was alert and oriented. He was casually dressed and fairly well-groomed. Mood was appropriate and affect was congruent to mood. Speech was of normal rate, volume and tone. Thought process was coherent without any flight of ideas or loose associations. There was no suicidal or homicidal ideation and no delusions. No auditory or visual hallucinations were indicated. Concentration, attention, insight, and judgment were intact. On VA examination in August 2011, the Veteran reported that he and his second wife had been having problems and were separated. He talked to his mother by telephone once per month. He did not talk to his 7 siblings very much. He had no friends and he reported that he kept to himself most of the time, staying at home. The Veteran stated that his mental health problems had caused problems with his relationships due to irritability and anxiety being around people. With respect to work, he continued to take painting jobs when they were available. He worked on average 10 to 15 hours per week. He stated that he had been missing a lot of work lately due to his depressed mood. He indicated that his inability to trust others and suspicious kept him from being able to work around people. He attempted to start classes a few weeks prior to examination, but dropped out after the first day when he saw how large the classes were. He stated that because he stayed up all night he was very drowsy during the day and this interfered with his ability to be productive at work. It was also noted that the Veteran had been hospitalized in June 2011 for homicidal and suicidal ideation. He continued to be seen on a biweekly basis for individual psychotherapy and medication management. He also completed an 8-week residential program at the Jackson VA medical center in June and July 2011. He stated that his medication was somewhat helpful but he still had some sleep difficulties. He used marijuana daily. The examiner indicated that the symptoms associated with the Veteran's psychiatric disability included depressed mood, anxiety, suspiciousness, chronic sleep impairment, mild memory loss, disturbances in motivation and mood, difficulty in establishing and maintaining effective work and social relationships, difficulty in adapting to stressful circumstances, and suicidal ideation. The examiner diagnosed PTSD and cannabis abuse. The examiner noted that the Veteran's marijuana use was in order to cope with traumatic memories and anxiety. He found the disability to be productive of occupational and social impairment with reduced reliability and productive. An August 2011 VA mental health notes reflects that the Veteran presented as casually dressed and groom with an anxious and depressed affect. His speech was within normal limits. He denied suicidal or homicidal ideation. He discussed a recent incident of heavy drinking with a military friend who was in town. Another August 2011 treatment report reflects difficulties with depression, sleep, and social withdrawal. He had not been able to motivate himself to get a job, even though there was work. On VA treatment in March 2012, the Veteran presented as casually dressed and groomed. His mood was depressed. He expressed concerns about losing control of his anger, though he denied any episodes. He was in school to earn an associate's degree, though he had some trouble with attention and concentration. His sleep was still poor, and he also discussed symptoms of irritability, frustration, sadness, and intrusive thoughts. An August 2012 VA treatment report reflects that the Veteran was in marital counseling with his wife. He was optimistic about the future and was trying to get enrolled for the fall semester at school. A December 2012 VA examination report reflects that the Veteran had reconciled with his wife after attending couples' counseling. He had decreased communication with his mother and had very little contact with his siblings. He continued to deny having any close friends and reportedly preferred to keep to himself. He stated that his mental health problems continued to cause difficulties with his relationships due to irritability and anxiety being around people. He reported that he did not struggle with loneliness or boredom due to his restricted social activities. He continued to have intermittent employment as a painter. The examiner commented that the Veteran's cannabis use might have been contributing more significantly to occupational function now than was the case on the last examination. The examiner further indicated that the Veteran did not appear to be as engaged in mental health treatment compared to the prior examination, likely due to increased dependence upon and chronic use of marijuana. The examiner indicated that the following symptoms applied to the Veteran's diagnosis: depressed mood, anxiety, chronic sleep impairment, flattened affect, disturbances in motivation and mood, difficulty in establishing and maintaining effective work and social relationships, difficulty in adapting to stressful circumstances, and suicidal ideation. The examiner commented that, although the Veteran's symptoms continued to meet the criteria for PTSD, his current symptoms were more consistent with depression and cannabis dependence. He was very amotivated, emotionally numb, and aloof. It was difficult to determine the extent to which his current symptoms were due to chronic use of marijuana verses an exacerbation of PTSD symptoms. The examiner diagnosed PTSD and cannabis dependence and noted that his use appeared to have increased since the previous examination and was contributing to symptoms of loss of motivation, depressed mood, anhedonia, social isolation, and emotional numbness. The examiner further noted that the symptoms overlapped significantly, indicating that both could be responsible for loss of concentration, memory, anhedonia, lack of motivation, depression, emotional numbing, and difficulties connected with other people. She found the disability to be productive of occupational and social impairment with reduced reliability and productivity. With respect to occupational impairment, the examiner indicated that the Veteran's PTSD and cannabis dependence caused moderate to severe impairment in occupational functioning; however, they did not prevent him from obtaining or maintaining gainful employment in either sedentary or physical labor. On VA examination in November 2014, the Veteran presented with adequate grooming and appropriate dress. He continued to live with his wife. He had not had any contact with his mother in a few months. He considered his wife as the closest thing he had to a social support system. He continued to paint on and off. He tried to work with his brother, but due to irritability he had not been able to work without getting upset and leaving or not going. Therefore, he had not had any consistent employment. The Veteran reported symptoms of distractibility, forgetfulness, mood changes, sadness/depression, loss of interest, hopelessness, thoughts of death, self-harm behaviors, crying spells, loneliness, low self-worth, guilty/shame, fatigue, lack of motivation, social withdrawal, anxiety, fear of leaving home, social discomfort, obsessive thoughts, frequent arguments, thoughts of harming others, flashbacks, racing thoughts, relationship problems, increased startle reflex, night sweats, hypervigilance, feeling of detachment, and forgetting to take a bath without reminders from his wife. He reported daily use of marijuana, and indicated that it was hard to do anything without it because he got nervous and paranoid when he had to go places. The Veteran's speech was clear, audible, logical, coherent and goal-directed. His eye contact was good. He appeared to be depressed, as evidenced by a flat affect and his posture and voice tone. He reported that his mood was down and depressed. His affective responses were content congruent. There was no evidence of hallucinations, delusions, loose associations, or flight of ideas. He denied any current thoughts of harming himself or others. He was alert and oriented. His memory functions were not impairment. His insight and social judgment were considered adequate. The examiner noted that the Veteran's symptoms included depressed mood, anxiety, suspiciousness, chronic sleep impairment, flattened affect, impaired judgment, disturbances of motivation and mood, inability to establish and maintain effective relationships, persistent delusions or hallucinations, intermittent inability to perform activities of daily living, including maintenance of minimal personal hygiene. The examiner diagnosed PTSD, persistent depressive disorder with mood congruent psychotic features, cannabis disorder, and alcohol use disorder. She indicated that these were comorbid disorders, and that the Veteran's psychiatric disorders were productive of occupational and social impairment with deficiencies most areas, such as work, school, family relations, judgment, thinking or mood. Continued VA treatment records reflect that the Veteran presented as depressed with feelings of helplessness and hopelessness. Other symptoms included irritability, vague visual hallucinations, poor sleep, distrust, and paranoia. These reports general indicate that the Veteran's speech was within normal limits and that he presented as adequately dressed and groomed with appropriate eye contact. Treatment records dated in 2016 indicated that he was still married and that he had his first child. In 2017, he expressed that he had been working on a plan to get re-enrolled in college. During the Veteran's 2017 Board hearing, he testified that he was socially withdrawn and did not like being around people. He had occasional suicidal thoughts and flashbacks of Iraq. While he was married, he had no friends. The Veteran also indicated that his PTSD affected his ability to work. The Veteran has also submitted family members' statements, who have indicated that he returned home from service a different person. His wife wrote about his mood swings, difficulty sleeping, and irritability, and indicated that his attitude was like he did not care about anything or anybody. She noted that there were times he was in a mood that made her feel like he was going to harm her or someone else. His brother wrote that the Veteran had difficulty working and was depressed and hopeless. In sum, the record reflects that the Veteran's PTSD is productive of irritability, social withdrawal, sleep impairment, suicidal ideation, disturbances in motivation and mood, feelings of helplessness and hopelessness, and difficulty getting along with others. These symptoms are consistent with the 70 percent rating assigned. However, examinations and treatment records do not indicate that the Veteran's symptoms rise to the severity, frequency, and duration required of a 100 percent rating. For example, at no point in the claims file was evidence found of persistent danger of hurting self or others, intermittent ability to perform activities of daily living, disorientation to time or place, or memory loss for names of close relatives, own occupation or own name, nor was evidence of a similar type and degree of such symptoms found. Rather, the Veteran consistently appeared appropriately groomed, capable of maintaining a relationship with his wife, and occasionally working and participating in school. Thus, affording the Veteran the benefit of the doubt, a 70 percent rating, but no higher, is warranted. Accordingly, the Board finds that a rating in excess of 70 percent is not warranted. As the preponderance of the evidence is against the Veteran's claim, the benefit-of-the-doubt rule does not apply. 38 U.S.C. § 5107(b); Gilbert, 1 Vet. App. at 53-56. ORDER Entitlement to service connection for an eye disability is denied. The appeal as to the matter of entitlement to an initial, compensable rating for infertility is dismissed The appeal as to the matter of entitlement to an initial, compensable rating for herpes simplex is denied. Entitlement to a rating in excess of 70 percent for PTSD is denied. REMAND Upon review of the claims file, the Board believes that additional development on the remaining claims is warranted. Service Connection for Right Knee and Right Ankle Disabilities The Veteran contends that he injured his right knee and right ankle as a result of various in-service duties, including jumping out of airplanes and marching. He also reported problems with his knee and ankle since service. The Board notes that these disabilities have been denied on the basis that there has been no diagnosis of a right knee or right ankle disability. He was afforded VA examination in 2009, at which time he was assessed with right knee and ankle arthralgia (pain) but no underlying disorder. During the Veteran's Board hearing, he testified that he did not know of a definitive diagnosis for the claimed disabilities, but his right knee was unstable, and his ankle rolled easily. However, a June 2017 VA examination report of the left ankle reflects that the range of motion of the right ankle was abnormal, with all end ranges stiff and painful. On examination of the left knee in June 2017, right knee range of motion was also abnormal, with pain noted on examination. In addition, review of continued VA treatment records include an October 2017 report notes that the right ankle had a significant talar tilt in standing test and he had bilateral standing genuvarum and joint line tenderness. He was given ankle braces. Given the Veteran's report of onset of right ankle and knee disabilities in service, and indication of potential current disability noted on examinations and in VA treatment records, the Board believes that another examination is necessary to resolve the claim. See 38 U.S.C. § 5103A; 38 C.F.R. § 3.159. Service Connection for Sleep Apnea The Veteran seeks service connection for sleep apnea, which he believes had its onset in service, or is related his service-connected PTSD. During his Board hearing, he testified that he noticed signs and symptoms of sleep apnea in 2004 in service. In 2006, he lived with a friend who witnessed stops in breathing during his sleep and a gurgling sound in his throat. He also reported that he experienced daytime sleepiness during service. The Veteran also reported that his treating psychologist told him that his sleep apnea could have something to do with his PTSD and being in a combat zone. In a June 2016 statement, C.L. wrote that he and several platoon members observed the Veteran's snoring and choking during sleep. The Veteran was afforded a VA examination in November 2014, at which time the examiner was unable to connect his sleep apnea to service, as he did not find any objective documentation of sleep problems while in service. The Board finds these examinations inadequate, as the examiner did not address the Veteran's and lay witnesses contentions of symptoms in service. Moreover, the examiner did not address the claim for service connection on a secondary basis. For these reasons, the Board concludes that additional opinion must be obtained. Increased Rating for Left Knee, Left Ankle, Achilles Tendonitis and Plantar Fasciitis, and Lumbar Spine Disabilities The Court of Appeals for Veterans Claims (Court) in Correia v. McDonald, 28 Vet. App. 158 (2016), held that the final sentence of 38 C.F.R. § 4.59 requires that VA examinations include joint testing for pain on both active and passive motion, in weight-bearing and nonweight-bearing conditions, and, if possible, with range of motion measurements of the opposite undamaged joint. Thus, the holding in Correia establishes additional requirements that must be met prior to finding that a VA examination is adequate. With respect to the Veteran's Achilles tendonitis and plantar fasciitis, in Southall-Norman v. McDonald, 28 Vet. App. 346 (2016), the Court further held that the plain language of § 4.59 indicates that it is potentially applicable to the evaluation of musculoskeletal disabilities involving joints that are painful, whether or not they are evaluated under a Diagnostic Code predicated on range of motion measurements. The Veteran was afforded numerous VA examinations pertaining to his left knee, left ankle, bilateral foot, and lumbar spine disabilities, including most recently in 2017. However, review of these examination reports reveals that range of motion testing in passive motion, weight-bearing, and nonweight-bearing situations were not conducted. In light of Correia, these examinations are insufficient. Accordingly, the Veteran should be afforded a new examination to determine the nature and severity of his service-connected left knee, left ankle, bilateral Achilles tendonitis and plantar fasciitis, and lumbar spine disabilities, to include consideration of the range of motion testing requirements of Correia. See 38 U.S.C. § 5103A; 38 C.F.R. § 3.159; see also Green v. Derwinski, 1 Vet. App. 121, 124 (1991) (VA has a duty to provide the veteran with a thorough and contemporaneous medical examination). Increased Rating for Diarrhea During the Veteran's Board hearing, he testified that his gastrointestinal condition had worsened since the most recent 2014 VA examination, to the point where he was experiencing constant stomach discomfort and suggesting that the criteria for a 30 percent rating have been met. See 38 C.F.R. § 4.114, Diagnostic Code 7319. Given the foregoing, the Board believes that the Veteran should be afforded a new examination to determine the nature and severity of his diarrhea disability. See 38 U.S.C. § 5103A; 38 C.F.R. § 3.159; see also Green, 1 Vet. App. at 124. TDIU On remand, the AOJ should develop the TDIU claim, including sending the Veteran the appropriate letter to ensure compliance with all notice and assistance requirements under the Veterans Claims Assistance Act of 2000. The Veteran should be advised to submit a VA Form 21-8940 and submit any related employment records, or information and authorization to obtain any relevant records. Accordingly, the case is REMANDED for the following action: 1. The AOJ should review the record and send an appropriate letter to the Veteran to ensure compliance with all notice and assistance requirements with respect to his TDIU claim. The AOJ should forward the appropriate forms, VA Form 21-8940 and VA Form 21-4192 for completion. Any relevant employment records identified should be obtained. 2. Assist the Veteran in associating with the claims folder updated treatment records. 3. Schedule the Veteran for a VA examination(s) to determine the nature and etiology of the claimed right knee and ankle disabilities. Any indicated tests should be accomplished. The examiner should review the record prior to examination, and elicit from the Veteran a detailed medical history. The examiner should identify all right knee and ankle disorder(s). Then, the examiner should provide an opinion as to whether it is at least as likely as not (50 percent probability or greater) that any right knee and/or ankle disorder manifest in service or is otherwise medically related to service. The examiner is asked to consider and address the Veteran's statements regarding the onset of right knee and ankle disabilities in service related to his various service duties. The examiner is also advised that the Veteran is competent to report symptoms and treatment, and that his reports must be taken into account, along with the other evidence of record, in formulating the requested opinion. The examiner should set forth all examination findings, along with the complete rationale for any conclusions reached. 4. Refer the electronic claims file to an appropriate medical professional for opinion pertaining to the claimed sleep apnea. The entire claims file must be made available to the designated examiner. If additional examination is deemed necessary, one should be provided. The examiner should provide an opinion as to whether it is at least as likely as not (50 percent probability or greater) that the Veteran's claimed sleep apnea: (1) had its onset in service or is otherwise medically related to service; or (2) was caused by or aggravated (permanently increased in severity beyond the natural progress of the condition) by a service connected disability, to specifically include PTSD. If aggravation is found, the examiner should identify the baseline level of severity of the nonservice-connected disability to the extent possible. The examiner is asked to consider and address the Veteran's and the lay witnesses statements regarding the onset of sleep difficulties in service. The examiner is also advised that the Veteran is competent to report symptoms and treatment, and that his reports must be taken into account, along with the other evidence of record, in formulating the requested opinion. The examiner should set forth all examination findings, along with the complete rationale for any conclusions reached. 5. Schedule the Veteran for a VA examination(s) to ascertain the current severity and manifestations of the Veteran's service-connected left knee, left ankle, lumbar spine and Achilles tendonitis/plantar fasciitis disabilities. The claims file should be made available to the examiner for review in connection with the examination. In particular, the examiner should be directed to perform range of motion testing to determine the extent of limitation of motion. Additionally, the examiner must include range of motion testing in the following areas: • Active motion; • Passive motion; • Weight-bearing; and • Nonweight-bearing. The examiner should indicate whether range of motion is additionally limited due to such factors as pain on motion, weakened movement, excess fatigability, diminished endurance, or incoordination. In doing so, the examiner should offer an opinion as to whether pain could significantly limit functional ability during flare-ups or when the knee, ankle, spine, or feet are used repeatedly over a period of time. Such determinations should, if feasible, be portrayed in terms of the degree of additional range-of-motion loss due to pain on use or during flare-ups. The examiner should specifically indicate whether, and at what point during, the range of motion the Veteran experienced any limitation of motion that was specifically attributable to pain. If the examiner is unable to conduct the required testing or concludes that the required testing is not necessary in this case, he or she should clearly explain why that is so. IF THE EXAMINATION DOES NOT TAKE PLACE DURING A FLARE, THE EXAMINER MUST GLEAN INFORMATION REGARDING THE FLARES' SEVERITY, FREQUENCY, DURATION, AND FUNCTIONAL LOSS MANIFESTATIONS FROM THE VETERAN, MEDICAL RECORDS, AND OTHER AVAILABLE SOURCES. EFFORTS TO OBTAIN SUCH INFORMATION MUST BE DOCUMENTED. If there is no pain and/or no limitation of function, such facts must be noted in the report. The examiner should also indicate if there is ankylosis of the spine or resultant neurological impairment. If there is neurological impairment, the examiner should identify the nerve or nerves involved and determine the manifestations and severity. The examiner should also comment on the impact of the Veteran's left knee, left ankle, bilateral foot, and lumbar spine disabilities on his ability to work. The examiner must provide a complete rationale for all the findings and opinions. 6. Schedule the Veteran for an appropriate VA examination to determine the current level of impairment resulting from the service-connected diarrhea. The claims file should be made available to the examiner for review in connection with the examination. Any indicated studies should be performed as deemed necessary by the examiner, and the results of any testing must be included in the examination report. In particular, the examiner is asked to address whether the disability is productive of diarrhea or alternating diarrhea and constipation with more or less constant abdominal distress. The examiner should set forth all examination findings, along with a complete rationale for any opinions expressed. 7. The AOJ should undertake any additional development it deems warranted. 8. Then, the AOJ should readjudicate the Veteran's claim. If the benefits sought on appeal are not granted, the Veteran and her representative should be provided a Supplemental Statement of the Case and afforded the requisite opportunity to respond before the case is returned to the Board. The Veteran has the right to submit additional evidence and argument on the matter or 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 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. §§ 5109B, 7112 (2012). ______________________________________________ A. S. CARACCIOLO Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs