Citation Nr: 18146943 Decision Date: 11/02/18 Archive Date: 11/02/18 DOCKET NO. 16-07 386 DATE: November 2, 2018 ORDER Clear and mistakeable error (CUE) was not found in the April 2008 rating decision that did not infer a claim for entitlement to service connection for mechanical low back pain and denied entitlement to individual unemployability. Entitlement to service connection for treatment purposes only under 38 U.S.C. Chapter 17 for an acquired psychiatric disability, to include an anxiety disorder not otherwise specified (NOS) and posttraumatic stress disorder (PTSD) is denied. REMANDED Entitlement to service connection for left ear hearing loss is remanded. Entitlement to service connection for tinnitus is remanded. Entitlement to service connection for an acquired psychiatric disability, to include an anxiety disorder, not otherwise specified (NOS) and posttraumatic stress disorder (PTSD)), to include as secondary to chronic pain from service-connected musculoskeletal disabilities, is remanded. Entitlement to service connection for a sleep disorder, to include as secondary to an acquired psychiatric disability, is remanded. Entitlement to service connection for a stomach condition (also claimed as gastrointestinal reflux disease (GERD), acid reflux, hiatal hernia, irritable bowel syndrome (IBS), diarrhea and constipation, to include as secondary to an acquired psychiatric disability, is remanded. Entitlement to an increased rating for residuals, fracture, left third metatarsal (left foot disability), currently evaluated as 10 percent disabling, is remanded. Entitlement to a total disability rating based on individual unemployability, due to service-connected disabilities (TDIU) is remanded. FINDINGS OF FACT 1. The April 2008 rating decision was reasonably supported by evidence then of record, and the record does not demonstrate that the RO incorrectly applied the statutory or regulatory provisions extant at that time, or that the correct facts, as known at that time, were not considered. 2. The preponderance of the evidence does not support a finding that Veteran developed an active psychosis that developed within two years of separation from active duty service. CONCLUSIONS OF LAW 1. The April 2008 rating decision was not clearly and unmistakably erroneous. 38 U.S.C. § 7105 (2012); 38 C.F.R. § 3.105 (2018). 2. The criteria for service connection for psychosis for the purpose of establishing eligibility for treatment pursuant to the provisions of 38 U.S.C. § 1702 have not been met. 38 U.S.C. § 1702 (2012); 38 C.F.R. § 3.384 (2018). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from January 1988 to October 1992. 1. Whether the failure to infer a claim for entitlement to service connection for mechanical low back pain and the denial of entitlement to TDIU in the April 2008 rating decision was clearly and mistakeable erroneous Clear and Unmistakable Error (CUE) An unappealed rating decision is final, and may not be revised based on the evidence of record at the time of the decision unless it is shown that the decision involved CUE. 38 U.S.C. § 7105 (2012). Where CUE is found in a prior RO decision, the prior decision will be reversed or revised. For the purpose of authorizing benefits, reversal or revision of the prior decision on the grounds of CUE has the same effect as if the correct decision had been made on the date of the prior decision. 38 U.S.C. § 5109A (2012); 38 C.F.R. § 3.105 (a) (2018). CUE is a very specific and rare kind of error; it is the kind of error, of fact or law, that when called to the attention of later reviewers compels the conclusion, to which reasonable minds could not differ, that the result would have been manifestly different but for the error. 38 C.F.R. § 20.1404 (2018). The mere misinterpretation of facts or failure to fulfill the duty to assist does not constitute CUE. See Thompson v. Derwinski, 1 Vet. App. 251, 253 (1991); Crippen v. Brown, 9 Vet. App. 412, 424 (1996); see also Damrel v. Brown, 6 Vet. App. 242, 245 (1994) (holding that a valid CUE claim requires that the veteran assert more than a disagreement as to how the facts were weighed or evaluated). To find CUE, the correct facts, as they were known at the time, must not have been before the adjudicator (a simple disagreement as to how the facts were weighed or evaluated will not suffice) or the law in effect at that time was incorrectly applied; the error must be undebatable and of a sort which, had it not been made, would have manifestly changed the outcome at the time it was made; and the determination of CUE must be based on the record and law that existed at the time of the prior adjudication. Allegations that previous adjudications have improperly weighed and evaluated the evidence can never rise to the stringent definition of CUE. See 38 U.S.C. § 5109A; 38 C.F.R. § 3.105 (a); Pierce v. Principi, 240 F.3d 1348 (Fed. Cir. 2001); Damrel, 6 Vet. App. 242; Fugo v. Brown, 6 Vet. App. 40 (1993). In addition, in order for a claimant to successfully establish a valid claim of CUE in a final decision, the claimant must articulate with some degree of specificity what the alleged error is, and, unless the alleged error is the kind of error which, if true, would be clearly and unmistakably erroneous on its fact, the claimant must provide persuasive reasons explaining why the result of the final rating decision would have been manifestly different but for the alleged error. Luallen v. Brown, 8 Vet. App. 92, 94 (1995); Fugo, 6 Vet. App. 40. In other words, to present a valid claim of CUE the claimant cannot simply request that the Board reweigh or reevaluate the evidence. Crippen v. Brown, 9 Vet. App. 412 (1996). In this case, the Board finds that the Veteran's claim cannot prevail. In an April 2008 rating decision, the RO granted entitlement to nonservice-connected pension benefits, based in part on a nonservice-connected back condition. The RO also denied entitlement to TDIU in this decision. The Veteran first argues that error was committed in the April 2008 rating decision because the RO did not continue consideration of the claim for service connection for mechanical low back pain, which was denied in a June 2007 rating decision, in view of VA treatment records showing a relationship between his back condition and his active military service. In essence, the Veteran appears to be arguing that the RO should have inferred a claim for entitlement to service connection for mechanical low back pain when issuing the April 2008 decision. The Veteran also argues that the April 2008 rating decision was in error because the RO failed to afford him a VA examination to determine if his service-connected disabilities resulted in individual unemployability. The April 2008 rating decision was not clearly and mistakably erroneous. For one, the correct facts, as they were known at the time, were before the RO in April 2008. At the time of the April 2008 rating decision, the RO had access to the Veteran's complete service treatment records, and post-service medical records, which included evidence of complaints of low back pain and a diagnosis of mechanical low back pain in service, and treatment for low back pain after service. The RO also had access to medical records including a pain assessment, indicating that the Veteran’s shoulder and back pain interfered with activities. When the RO denies a claim and/or fails in its duty to assist an appellant, that appellant must file a timely appeal. If the appellant fails to do so, the decision becomes final, and the only way to overcome that decision is through CUE. As discussed above, CUE is a limited remedy based exclusively on the evidence as it existed at the time of the decision. In short, a failure in the duty to assist a claimant in developing a claim can never constitute CUE. In this case, the Veteran did not file an appeal to the June 2007 rating decision that denied service connection for mechanical low back pain; rather he filed a claim for pension approximately seven months after the June 2007 denial, and a claim for CUE more than four years after the April 2008 decision became final. The Board is limited to reviewing the evidence as it existed at the time of the most recent final 2008 denial, not as it might have existed had the duty to assist been properly carried out. Unfortunately, as it existed, there was simply insufficient evidence in the record at the time of the 2008 denial to find that the Veteran was also claiming service connection for a low back disability again, after the issue had been denied in June 2007. In this regard, as noted, the Veteran filed a claim for pension in January 2008. He did not file another claim for service connection for a low back disability. There was also insufficient evidence at the time of the 2008 denial to find that a TDIU was warranted. As such, there is no error in the conclusions that were reached in the previous April 2008 rating decision. Moreover, even if an examination with such opinion was warranted at the time, as noted above, a breach of the duty to assist cannot constitute CUE. Cook v. Principi, 318 F.3d 1334 (Fed. Cir. 2002); 38 C.F.R. § 20.1403 (d). For these reasons, the Board finds that the Veteran's contentions do not meet the criteria for CUE. Again, a claim of CUE requires more than a disagreement as to how the facts were weighed or evaluated. In light of the above, the Board finds that the correct facts were before the RO at the time of the April 2008 rating decision, and the statutory or regulatory provisions extant at the time were correctly applied. Thus, the claim for CUE cannot prevail, and the Veteran's appeal must be denied. 2. Entitlement to service connection for treatment purposes only under 38 U.S.C. Chapter 17 for an acquired psychiatric disability, to include an anxiety disorder not otherwise specified (NOS) and PTSD Under 38 U.S.C. § 1702 (a), any Veteran of World War II, the Korean conflict, the Vietnam era, or the Persian Gulf War who developed an active psychosis (1) within two years after discharge or release from the active military, naval, or air service, and (2) before July 26, 1949, in the case of a Veteran of World War II, before February 1, 1957, in the case of a Veteran of the Korean conflict, before May 8, 1977, in the case of a Vietnam era Veteran, or before the end of the two-year period beginning on the last day of the Persian Gulf War, in the case of a Veteran of the Persian Gulf War, shall be deemed to have incurred such disability in the active military, naval, or air service. 38 U.S.C. § 1702 (2012). The Veteran was discharged from service in October 1992. A review of his service treatment records does not indicate treatment or a diagnosis for a psychosis in service. The Veteran's separation medical examination, completed in September 1992, evaluated the Veteran as normal, including his psychiatric evaluation. Post service, the Veteran was first diagnosed with a psychiatric disorder in April 2012, during a VA mental health examination. There is no evidence of any history of psychiatric treatment prior to April 2012. In fact, VA outpatient treatment records from 2008 show that the Veteran’s PTSD and depression screens were negative. In conclusion, the evidence of record does not support the Veteran's contention that he developed an active psychosis within two years of separating from active service. Accordingly, the preponderance of the evidence is against eligibility for treatment for psychosis under 38 U.S.C. § 1702.   REASONS FOR RMAND 1. Entitlement to service connection for left ear hearing loss is remanded. Service treatment records show that the Veteran had noise exposure during active duty. In his September 1991 Report of Medical History, the Veteran reported high frequency hearing loss. However, audiological results at the time of his separation did not show hearing loss for VA compensation purposes. Nevertheless, acoustic trauma in service has been conceded. See June 2013 rating decision. The Veteran was afforded VA audiological examinations in November 2011 and December 2015. Both examiners opined that, as there was no evidence of hearing loss at discharge, and delayed onset hearing loss has not been proven to occur, the changes in hearing that occurred after service are not due to the Veteran’s past military noise exposure. The Board finds that essentially the examiners concluded that, as there was no evidence of hearing loss during service or for many years thereafter, the Veteran's currently diagnosed hearing loss is not related to his reported noise exposure in service. However, the Board's inquiry does not end there. Service connection is possible for disabilities first identified after service. 38 C.F.R. § 3.303 (d) (2018). The absence of documented treatment in service or thereafter is not fatal to a service connection claim, and the absence of evidence in the service treatment records is an insufficient basis, by itself, for a negative opinion. See Ledford v. Derwinski, 3 Vet. App. 87, 89 (1992). Hearing loss is manifested by symptoms that the Veteran is competent to report. The Veteran's reports provide competent and credible evidence of hearing loss during active military duty and a continuity of symptoms since. The November 2011 and December 2015 examiners failed to provide an adequate opinion as to whether the left ear hearing loss identified after service was related to a disease or injury in service. Furthermore, the Board notes that the Veteran did have hearing loss at the time of his separation, albeit not to the level required for VA compensation purposes. Therefore, the examiners’ findings that there was no hearing loss at separation are not completely accurate. For these reasons, the Board finds that the November 2011 and December 2015 examiners’ opinions are inadequate for evaluation purposes. As such, a remand for another medical opinion as to the etiology of any current hearing loss is necessary. Barr v. Nicholson, 21 Vet. App. 303 (2007). See also 38 C.F.R. § 4.2 (2018). 2. Entitlement to service connection for tinnitus is remanded. During the December 2015 VA examination, the Veteran reported occasional episodes of tinnitus, bilaterally, every few months. The examiner opined that the tinnitus was less likely than not a symptom associated with the Veteran’s hearing loss and concluded rather, that the tinnitus was most consistent with the normal non-pathologic ear noises that everyone experiences. The examiner did not acknowledge or consider the Veteran’s in-service noise exposure. Furthermore, the examiner did not explain why the Veteran’s symptoms of tinnitus were more likely related to normal nonpathologic ear noises than noise exposure in service or the Veteran’s hearing loss. For these reasons, the Board finds the December 2015 examiner’s opinion inadequate for evaluation purposes. As such, a remand for another medical opinion as to the etiology of any current tinnitus is necessary. Barr v. Nicholson, 21 Vet. App. 303 (2007). See also 38 C.F.R. § 4.2 (2018). 3. Entitlement to service connection for an acquired psychiatric disability, to include an anxiety disorder, not otherwise specified (NOS) and posttraumatic stress disorder (PTSD)), to include as secondary to chronic pain from service-connected musculoskeletal disabilities, is remanded. The Veteran contends that he has an anxiety disorder, possibly PTSD, related to his experience during a fire aboard the USS Constellation during active duty. The Veteran was afforded a VA examination in April 2012. The examiner concluded that the Veteran did not meet the full DSM-IV criteria for a diagnosis of PTSD. However, he diagnosed the Veteran with an anxiety disorder NOS, and opined that the disorder is less likely as not caused by or a result of the Veteran’s conceded military trauma. The rationale was that there is no evidence of mental health problems or diagnoses in service or in the VA treatment records. The examiner also noted that many of the problems the Veteran reported have been lifelong issues (e.g., not being able to get along with others, irritability/prone to fights, feeling detached or estranged from others). As noted above, service connection is possible for disabilities first identified after service. 38 C.F.R. § 3.303 (d) (2018). The absence of documented treatment in service or thereafter is not fatal to a service connection claim, and the absence of evidence in the service treatment records is an insufficient basis, by itself, for a negative opinion. See Ledford v. Derwinski, 3 Vet. App. 87, 89 (1992). Moreover, the Veteran reported psychiatric problems since service. The April 2012 examiner failed to provide an adequate opinion as to whether the psychiatric disorder identified after service was related to a disease or injury in service. As such, the Board finds the opinion inadequate for evaluation purposes. The Veteran's reports provide competent and credible evidence of psychiatric problems during active military duty and a continuity of symptoms since. The Veteran has also suggested that his claimed psychiatric disorder may be secondary to chronic pain from his service-connected musculoskeletal disabilities. See August 2012 notice of disagreement. The Board is required to consider all theories of entitlement to service connection. See Szemraj v. Principi, 357 F.3d 1370, 1371 (Fed. Cir. 2004), and Roberson v. Principi, 251 F.3d 1378, 1384 (Fed. Cir. 2001) (explaining that the Board must consider all potential theories of entitlement raised by the evidence). Service connection is currently in effect for a left foot disability and a right shoulder disability. However, there is no medical opinion of record addressing whether the Veteran's currently diagnosed anxiety disorder, or any other current psychiatric disability, was caused or aggravated by his service-connected left foot or right shoulder disability. For these reasons, the Board finds that a remand for another medical opinion as to the etiology of any current acquired psychiatric disorder is necessary. Barr v. Nicholson, 21 Vet. App. 303 (2007). See also 38 C.F.R. § 4.2 (2018).   4. Entitlement to service connection for a sleep disorder, to include as secondary to an acquired psychiatric disability, is remanded. The Veteran also contends that he has a sleep disorder related to service, or secondary to his anxiety disorder, which he contends is related to his active military service. Service treatment records are negative for evidence of a sleep disorder during active duty or at discharge. VA outpatient treatment records show evidence of infrequent complaints related to sleep. An August 2008 treatment record notes that sleep was interrupted by unspecified pain. More recent medical records are negative for complaints of impaired sleep. None of the post-service treatment records diagnose a sleep disorder. During the April 2012 VA examination, the Veteran complained of impaired sleep. However, the examiner concluded that the Veteran did not meet the criteria for a separate sleep disorder. Rather, the examiner opined that the Veteran’s sleep problems are most likely attributable to his cannabis abuse and his anxiety disorder NOS. The Board is required to consider all theories of entitlement to service connection. See Szemraj v. Principi, 357 F.3d 1370, 1371 (Fed. Cir. 2004), and Roberson v. Principi, 251 F.3d 1378, 1384 (Fed. Cir. 2001). As such, the Board finds that the claim for service connection for a sleep disorder is inextricably intertwined with the claim for service connection for an anxiety disorder, and a final decision on the claim for a sleep disorder cannot be rendered until the issue of whether the Veteran's current acquired psychiatric disability is related to his active military service is properly considered. 5. Entitlement to service connection for a stomach condition (also claimed as gastrointestinal reflux disease (GERD), acid reflux, hiatal hernia, irritable bowel syndrome (IBS), diarrhea and constipation, to include as secondary to an acquired psychiatric disability, is remanded. Service treatment records show that the Veteran was treated for vomiting and diarrhea in service and diagnosed with gastroenteritis. There was no gastrointestinal disorder noted at the time of his discharge in September 1992. During the April 2012 VA examination, the Veteran was diagnosed with a gastrointestinal condition manifested by diarrhea. The examiner opined that the condition is less likely as not proximately due to or the result of the signs and symptoms noted in service (gastroenteritis) as there is no nexus with which to link the conditions. The examiner also noted that gastroenteritis is a self-limiting disorder of the gastrointestinal tract that involves the stomach and small intestine, resulting in vomiting and diarrhea. The causative agent is usually a virus, but can be of bacterial origin, and the duration of the condition can last from several days up to a week. There is no other medical opinion of record linking a current gastrointestinal disorder directly to the Veteran’s active military service. However, the Veteran has also claimed that his gastrointestinal disorder may be secondary to his anxiety disorder, which he contends is related to his active military service. The Board is required to consider all theories of entitlement to service connection. See Szemraj v. Principi, 357 F.3d 1370, 1371 (Fed. Cir. 2004), and Roberson v. Principi, 251 F.3d 1378, 1384 (Fed. Cir. 2001). As such, the claim for service connection for a gastrointestinal disorder is inextricably intertwined with the claim for service connection for an anxiety disorder, and a final decision on the claim for a gastrointestinal disorder cannot be rendered until the issue of whether the Veteran's current psychiatric disability is related to his active military service is properly considered. 6. Entitlement to an increased rating for residuals, fracture, left third metatarsal (left foot disability), currently evaluated as 10 percent disabling, is remanded. The last VA examination for the Veteran's left foot disability was provided almost three years ago, in December 2015. In November 2017, the Veteran submitted a statement indicating that his left foot was possibly worse since his last examination in December 2015. Specifically, he stated that he had pictures that showed more wear in his left foot than the right. The Veteran is entitled to a new VA examination where there is evidence, including his statements, that the condition has worsened since the last examination. Snuffer v. Gober, 10 Vet. App. 400 (1997); Caffrey v. Brown, 6 Vet. App. 377 (1994); VAOPGCPREC 11-95 (1995). Given the evidence of possible increased symptomatology since the Veteran's last VA examination, the Board finds that a new VA examination is warranted to ascertain the current severity of the Veteran's service-connected residuals, fracture, left third metatarsal. See also Palczewski v. Nicholson, 21 Vet. App. 174, 181-82 (2007), citing Caluza v. Brown, 7 Vet. App. 498, 505-06 (1998) ("Where the record does not adequately reveal the current state of the claimant's disability...the fulfillment of the statutory duty to assist requires a thorough and contemporaneous medical examination."). 7. Entitlement to a total disability rating based on individual unemployability, due to service-connected disabilities (TDIU) is remanded. Initially, the Board notes that the Veteran's TDIU claim is inextricably intertwined with the issues of entitlement to service connection for left ear hearing loss, tinnitus, an acquired psychiatric disorder, a gastrointestinal disorder and a sleep disorder, as well as the claim for entitlement to an increased rating for residuals, fracture, left third metatarsal, and cannot be adjudicated at this time. The Veteran has reported that he has been unemployable due to his service-connected left foot and shoulder disabilities, as well as his claimed back disability, since 1995. The Veteran does not currently meet the schedular criteria for a TDIU under 38 C.F.R. § 4.16 (a). However, depending on the outcome of the remanded claims for service connection and an increased rating, it is possible that the Veteran may meet the schedular criteria for a TDIU. Furthermore, VA policy is to grant a TDIU in all cases where service-connected disabilities preclude gainful employment, regardless of the percentage evaluations, but the Board is prohibited from assigning a TDIU on this basis in the first instance without ensuring that the claim is referred to VA's Director of Compensation Service for consideration of an extraschedular rating under 38 C.F.R. § 4.16 (b). Bowling v. Principi, 15 Vet. App. 1 (2001); 38 C.F.R. § 4.16 (b). There is no medical opinion of record addressing the combined effect of all the Veteran's service-connected disabilities on his ability to work. The Court has held that in the case of a claim for TDIU, the duty to assist requires that VA obtain an examination which includes an opinion on what effect the appellant's service-connected disability has on his ability to work. Friscia v. Brown, 7 Vet. App. 294, 297 (1994). In addition, 38 C.F.R. § 4.16 holds that the Board must consider the impact of all of the Veteran's service-connected conditions on his ability to obtain and maintain gainful employment. The Court has also held that VA has an obligation to obtain retrospective medical opinions in instances where there is competent evidence suggesting that a higher rating may be appropriate during a relevant period but insufficient clinical evidence to determine whether such an increase is, in fact, warranted. See Chotta v. Peake, 22 Vet. App. 80 (2008); see also Vigil v. Peake, 22 Vet. App. 63 (2008). In light of the evidence noted above, the Board finds it necessary to remand the issue of entitlement to a TDIU in order for a VA examiner to provide a retrospective medical opinion as to whether the Veteran was unemployable due to the combined effect of his service-connected disabilities. Furthermore, if the RO determines, on remand, that service connection is warranted for any additional disability or an increased rating is warranted for the service-connected left foot disability, the impact of that disability on the Veteran's unemployability should also be addressed. The matters are REMANDED for the following action: 1. Updated treatment records should be obtained and added to the claims folder/efolder. 2. Following completion of the above, afford the Veteran a VA examination to determine the nature and etiology of any current hearing loss and tinnitus. The claims folder should be made available to the examiner for review in connection with the examination and the examiner should acknowledge such review in the examination report or in an addendum. Any indicated studies should be performed. The examiner should provide an opinion as to whether it is at least as likely as not (50 percent or greater probability), that that any current hearing loss and tinnitus originated while the Veteran was serving on active duty or is otherwise related to the Veteran’s conceded noise exposure in service. A complete rationale should be given for all opinions and conclusions expressed, and a discussion of the facts and medical principles involved must be provided. The examiner is advised that the Veteran is competent to report injuries and symptoms and that his reports must be considered in formulating the requested opinion. If his reports are discounted, the examiner should provide a reason for doing so. The examiner is also advised that the absence of evidence in the service treatment records is an insufficient basis, by itself, for a negative opinion. If the examiner cannot provide an opinion without resort to speculation, the examiner should provide an explanation as to why this is so and whether there is additional evidence that would permit the opinion to be provided. 3. Schedule the Veteran for an appropriate VA mental disorders examination to determine the etiology of any current acquired psychiatric disorder, including PTSD and an anxiety disorder. The claims folder should be made available to the examiner for review in connection with the examination and the examiner should acknowledge such review in the examination report or in an addendum. Any indicated studies should be performed. The examiner should provide an opinion as to whether it is at least as likely as not (50 percent or greater probability) that any current acquired psychiatric disorder, including PTSD and an anxiety disorder, is related to service. The examiner should also provide an opinion as to whether it is at least as likely as not (50 percent or greater probability) that any currently diagnosed acquired psychiatric disorder, including PTSD and an anxiety disorder, was caused or aggravated (increased in severity beyond the natural progress) by a service-connected disability, including the Veteran's service-connected left foot and right shoulder disabilities. A complete rationale should be given for all opinions and conclusions expressed, and a discussion of the facts and medical principles involved must be provided. The examiner is advised that the Veteran is competent to report injuries and symptoms and that his reports must be considered in formulating the requested opinion. If his reports are discounted, the examiner should provide a reason for doing so. The examiner is also advised that the absence of evidence in the service treatment records is an insufficient basis, by itself, for a negative opinion. If the examiner cannot provide an opinion without resort to speculation, the examiner should provide an explanation as to why this is so and whether there is additional evidence that would permit the opinion to be provided. 4. If the examiner determines that the Veteran has an acquired psychiatric disability related to his active military service, schedule the Veteran for a VA examination to determine whether he has a current gastrointestinal disorder related to the acquired psychiatric disorder. The claims folder should be made available to the examiner for review in connection with the examination and the examiner should acknowledge such review in the examination report or in an addendum. Any indicated studies should be performed. The examiner should provide an opinion as to whether it is at least as likely as not (50 percent or greater probability) that any currently diagnosed gastrointestinal disorder is of service onset or otherwise related thereto. The examiner should also provide an opinion as to whether it is at least as likely as not (50 percent or greater probability) that any currently diagnosed gastrointestinal disorder was caused or aggravated (increased in severity beyond the natural progress) by the acquired psychiatric disorder. 5. If the examiner determines that the Veteran has an acquired psychiatric disability related to his active military service, schedule the Veteran for a VA examination to determine whether he has a current sleep disorder related to the acquired psychiatric disorder. The claims folder should be made available to the examiner for review in connection with the examination and the examiner should acknowledge such review in the examination report or in an addendum. Any indicated studies should be performed. The examiner should provide an opinion as to whether it is at least as likely as not (50 percent or greater probability) that any currently diagnosed sleep disorder is of service onset or otherwise related thereto. The examiner should also provide an opinion as to whether it is at least as likely as not (50 percent or greater probability) that any currently diagnosed sleep disorder was caused or aggravated (increased in severity beyond the natural progress) by the acquired psychiatric disorder. A complete rationale should be given for all opinions and conclusions expressed, and a discussion of the facts and medical principles involved must be provided. The examiner is advised that the Veteran is competent to report injuries and symptoms and that his reports must be considered in formulating the requested opinion. If his reports are discounted, the examiner should provide a reason for doing so. The examiner is also advised that the absence of evidence in the service treatment records is an insufficient basis, by itself, for a negative opinion. If the examiner cannot provide an opinion without resort to speculation, the examiner should provide an explanation as to why this is so and whether there is additional evidence that would permit the opinion to be provided. 6. Schedule the Veteran for an appropriate VA examination to determine the current severity of his service-connected left foot disability. The claims folder should be made available to the examiner for review in connection with the examination and the examiner should acknowledge such review in the examination report or in an addendum. Any indicated studies should be performed. The examiner must provide all information required for rating purposes, to include but not limited to, ranges of motion and any limitation of function of the parts affected by limitation of motion in the Veteran's left foot. Additionally, the examiner should be requested to determine whether the left foot exhibits weakened movement, excess fatigability, or incoordination attributable to the service-connected residuals of fracture of the left third metatarsal. The examiner should also describe with specificity all functional impairment and discuss whether the overall disability picture of the left foot equates to a moderate, moderately severe or severe injury of the foot. A complete rationale should be given for all opinions and conclusions expressed, and a discussion of the facts and medical principles involved must be provided. If the examiner cannot provide an opinion without resort to speculation, the examiner should provide an explanation as to why this is so and whether there is additional evidence that would permit the opinion to be provided. 7. Then, provide the Veteran's claims file to an appropriate clinician to provide a retrospective opinion regarding the impact of the Veteran's service-connected disabilities on his ability to work since 1995. An in-person examination is only required if deemed necessary by the examiner. The claims folder should be made available to the examiner for review in connection with the examination and the examiner should acknowledge such review in the examination report or in an addendum. Any indicated studies should be performed. If a new examination is warranted, the examiner must elicit from the Veteran and record for clinical purposes a full work and educational history. If there is any clinical or medical basis for corroborating or discounting the reliability of the history provided by the Veteran, the examiner must so state, with a complete explanation in support of such a finding. Based on a review of the claims file, the examiner must provide a functional assessment of the Veteran's service-connected disabilities and his ability to work consistent with his education and occupational experience, and without consideration of his age or non-service-connected disabilities, since 1995. A complete rationale should be given for all opinions and conclusions expressed, and a discussion of the facts and medical principles involved must be provided. If the examiner cannot provide an opinion without resort to speculation, the examiner should provide an explanation as to why this is so and whether there is additional evidence that would permit the opinion to be provided. (Continued on the next page)   8. After completion of the above and any other development deemed necessary, to include referral of the TDIU claim to the Director of Compensation Service for extraschedular consideration, review the expanded record, and readjudicate the issues on appeal. If any claim remains denied, the Veteran and his representative should be furnished an appropriate supplemental statement of the case, afforded an opportunity to respond, and the case should thereafter be returned to the Board for further appellate review, if in order. KELLI A. KORDICH Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD F. Yankey, Counsel