Citation Nr: 18148134 Decision Date: 11/06/18 Archive Date: 11/06/18 DOCKET NO. 18-18 838A DATE: November 6, 2018 ORDER New and material evidence having been received, the claim of entitlement to service connection for a back condition is reopened. New and material evidence having been received, the claim of entitlement to service connection for sleep problems is reopened. New and material evidence having been received, the claim of entitlement to service connection for dyspepsia is reopened. New and material evidence having been received, the claim of entitlement to service connection for memory loss is reopened. New and material evidence having been received, the claim of entitlement to service connection for psychological problems is reopened. Service connection for bilateral hearing loss is denied. REMANDED Entitlement to service connection for a back disorder is remanded. Entitlement to service connection for a left knee disorder is remanded. Entitlement to service connection for a right knee disorder is remanded. Entitlement to service connection for a gastrointestinal disorder, to include dyspepsia, is remanded. Entitlement to service connection for an acquired psychiatric disorder, to include major depressive disorder, anxiety disorder, posttraumatic stress disorder (PTSD), and adjustment disorder, is remanded. Entitlement to service connection for Alzheimer’s disease/dementia/memory loss is remanded. Entitlement to service connection for a sleep disorder, to include sleep apnea, is remanded. FINDINGS OF FACT 1. In a March 2014 rating decision, the Agency of Original Jurisdiction (AOJ) declined to reopen the claim of entitlement to service connection for a back condition; a timely notice of disagreement (NOD) was not filed, and no new and material evidence was received within the appeal period. 2. Additional evidence received since the March 2014 decision is new, relates to an unestablished fact necessary to substantiate the claim of entitlement to service connection for a back condition, and raises a reasonable possibility of substantiating the claim. 3. In a March 2014 rating decision, the AOJ denied the claim of entitlement to service connection for sleep problems; a timely NOD was not filed, and no new and material evidence was received within the appeal period. 4. Additional evidence received since the March 2014 decision is new, relates to an unestablished fact necessary to substantiate the claim of entitlement to service connection for sleep problems, and raises a reasonable possibility of substantiating the claim. 5. In a March 2014 rating decision, the AOJ denied the claim of entitlement to service connection for dyspepsia; a timely NOD was not filed, and no new and material evidence was received within the appeal period. 6. Additional evidence received since the March 2014 decision is new, relates to an unestablished fact necessary to substantiate the claim of entitlement to service connection for dyspepsia, and raises a reasonable possibility of substantiating the claim. 7. In a March 2014 rating decision, the AOJ denied the claim of entitlement to service connection for memory loss; a timely NOD was not filed, and no new and material evidence was received within the appeal period. 8. Additional evidence received since the March 2014 decision is new, relates to an unestablished fact necessary to substantiate the claim of entitlement to service connection for memory loss, and raises a reasonable possibility of substantiating the claim. 9. In a March 2014 rating decision, the AOJ denied the claim of entitlement to service connection for psychological problems; a timely NOD was not filed, and no new and material evidence was received within the appeal period. 10. Additional evidence received since the March 2014 decision is new, relates to an unestablished fact necessary to substantiate the claim of entitlement to service connection for psychological problems, and raises a reasonable possibility of substantiating the claim. 11. The weight of the competent and probative evidence is against finding bilateral hearing loss for VA compensation purposes under 38 C.F.R. § 3.385. CONCLUSIONS OF LAW 1. The March 2014 decision declining to reopen the claim of entitlement to service connection for a back condition is final. 38 U.S.C. § 7105; 38 C.F.R. §§ 3.104, 20.1103. 2. New and material evidence has been received since the March 2014 decision to reopen the claim of entitlement to service connection for a back condition. 38 U.S.C. § 5108; 38 C.F.R. § 3.156(a). 3. The March 2014 decision denying the claim of entitlement to service connection for sleep problems is final. 38 U.S.C. § 7105; 38 C.F.R. §§ 3.104, 20.1103. 4. New and material evidence has been received since the March 2014 decision to reopen the claim of entitlement to service connection for sleep problems. 38 U.S.C. § 5108; 38 C.F.R. § 3.156(a). 5. The March 2014 decision denying the claim of entitlement to service connection for dyspepsia is final. 38 U.S.C. § 7105; 38 C.F.R. §§ 3.104, 20.1103. 6. New and material evidence has been received since the March 2014 decision to reopen the claim of entitlement to service connection for dyspepsia. 38 U.S.C. § 5108; 38 C.F.R. § 3.156(a). 7. The March 2014 decision denying the claim of entitlement to service connection for memory loss is final. 38 U.S.C. § 7105; 38 C.F.R. §§ 3.104, 20.1103. 8. New and material evidence has been received since the March 2014 decision to reopen the claim of entitlement to service connection for memory loss. 38 U.S.C. § 5108; 38 C.F.R. § 3.156(a). 9. The March 2014 decision denying the claim of entitlement to service connection for psychological problems is final. 38 U.S.C. § 7105; 38 C.F.R. §§ 3.104, 20.1103. 10. New and material evidence has been received since the March 2014 decision to reopen the claim of entitlement to service connection for psychological problems. 38 U.S.C. § 5108; 38 C.F.R. § 3.156(a). 11. The criteria for entitlement to service connection for bilateral hearing loss have not been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.385. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from August 1981 to February 1985; February 2003 to June 2003; and July 2010 to August 2011. These matters come before the Board of Veterans’ Appeals (Board) on appeal from May 2016 and February 2018 rating decisions issued by a Department of Veterans Affairs (VA) Regional Office (RO). The May 2016 rating decision reopened and denied the claims of entitlement to a back disorder and dyspepsia. Additionally, the February 2018 rating decision implicitly reopened the claims of service connection for sleep problems and psychological problems. However, even where the AOJ determines that new and material evidence has been received to reopen a claim, or that an entirely new claim has been received, the Board is not bound by that determination and must nevertheless consider whether new and material evidence has been received. Jackson v. Principi, 265 F.3d 1366, 1369 (Fed. Cir. 2001). The Board has recharacterized the reopened claim of service connection for psychological problems as entitlement to service connection for an acquired psychiatric disorder, to include major depressive disorder, anxiety disorder, PTSD, and adjustment disorder. The reopened claim of service connection for memory loss has been broadened to include Alzheimer’s disease and dementia. The reopened claim for sleep problems has been recharacterized as entitlement to service connection for a sleep disorder, to include sleep apnea. And the reopened claim for dyspepsia has been broadened and recharacterized as service connection for a gastrointestinal disorder, to include dyspepsia. [The Board acknowledges that the Veteran has perfected his appeal of entitlement to total disability based on individual unemployability (TDIU). However, as the AOJ has not certified the issue to the Board, it is not currently before the Board and will be the subject of separate Board decision.] New and Material Evidence 1. Whether new and material evidence has been received to reopen the claim of entitlement to service connection for a back condition. After reviewing the record, the Board finds that new evidence has been received since the final prior decision, and such evidence is material to the issue of service connection for a back condition. In March 2014, the AOJ declined to reopen the claim of entitlement to service connection for a back condition based on the lack of a nexus between a current disorder and the Veteran’s active service. The Veteran did not file a timely NOD and no new and material evidence was received within the appeal period; therefore, the March 2014 decision became final. 38 U.S.C. § 7105; 38 C.F.R. §§ 3.104, 3.156(b), 20.1103. Consequently, the Board will consider evidence received since the March 2014 decision. In December 2016, a private physician opined that the Veteran’s chronic low back pain, discogenic disease of the lumbar spine, and chronic myositis of the paralumbar spine muscles are related to his military service. 01/09/2017, Medical-Non-Government. The Board finds that this evidence is new and that it directly pertains to the basis for the prior final denial (nexus), by addressing whether a back disorder had its onset in or is otherwise related to service. Therefore, the claim of entitlement to service connection for a back condition is reopened. See 38 U.S.C. § 5108; 38 C.F.R. § 3.156(a). 2. Whether new and material evidence has been received to reopen the claim of entitlement to service connection for sleep problems. After reviewing the record, the Board finds that new evidence has been received since the final prior decision, and such evidence is material to the issue of service connection for sleep problems. In March 2014, the AOJ denied the claim of entitlement to service connection for sleep problems based on the lack of a nexus between a current disorder and the Veteran’s active service. The Veteran did not file a timely NOD and no new and material evidence was received within the appeal period; therefore, the March 2014 decision became final. 38 U.S.C. § 7105; 38 C.F.R. §§ 3.104, 3.156(b), 20.1103. Consequently, the Board will consider evidence received since the March 2014 decision. In December 2016, a private physician opined that the Veteran’s sleep apnea is related to his military service. 01/09/2017, Medical-Non-Government. The Board finds that this evidence is new and that it directly pertains to the basis for the prior final denial (nexus), by addressing whether sleep problems had their onset in or are otherwise related to service. Therefore, the claim of entitlement to service connection for sleep problems is reopened. See 38 U.S.C. § 5108; 38 C.F.R. § 3.156(a). 3. Whether new and material evidence has been received to reopen the claim of entitlement to service connection for dyspepsia. After reviewing the record, the Board finds that new evidence has been received since the final prior decision, and such evidence is material to the issue of service connection for dyspepsia. In March 2014, the AOJ denied the claim of entitlement to service connection for dyspepsia based on the lack of a nexus between a current disorder and the Veteran’s active service. The Veteran did not file a timely NOD and no new and material evidence was received within the appeal period; therefore, the March 2014 decision became final. 38 U.S.C. § 7105; 38 C.F.R. §§ 3.104, 3.156(b), 20.1103. Consequently, the Board will consider evidence received since the March 2014 decision. In December 2016, a private physician opined that the Veteran’s dyspepsia is related to his military service. 01/09/2017, Medical-Non-Government. The Board finds that this evidence is new and that it directly pertains to the basis for the prior final denial (nexus), by addressing whether dyspepsia had its onset in or is otherwise related to service. Therefore, the claim of entitlement to service connection for dyspepsia is reopened. See 38 U.S.C. § 5108; 38 C.F.R. § 3.156(a). 4. Whether new and material evidence has been received to reopen the claim of entitlement to service connection for memory loss. After reviewing the record, the Board finds that new evidence has been received since the final prior decision, and such evidence is material to the issue of service connection for memory loss. In March 2014, the AOJ denied the claim of entitlement to service connection for memory loss based on the lack of a nexus between a current disorder and the Veteran’s active service. The Veteran did not file a timely NOD and no new and material evidence was received within the appeal period; therefore, the March 2014 decision became final. 38 U.S.C. § 7105; 38 C.F.R. §§ 3.104, 3.156(b), 20.1103. Consequently, the Board will consider evidence received since the March 2014 decision. In December 2016, a private physician opined that the Veteran’s memory disorder and Alzheimer’s dementia are related to his military service. 01/09/2017, Medical-Non-Government. The Board finds that this evidence is new and that it directly pertains to the basis for the prior final denial (nexus), by addressing whether memory loss had its onset in or is otherwise related to service. Therefore, the claim of entitlement to service connection for memory loss is reopened. See 38 U.S.C. § 5108; 38 C.F.R. § 3.156(a). 5. Whether new and material evidence has been received to reopen the claim of entitlement to service connection for psychological problems. After reviewing the record, the Board finds that new evidence has been received since the final prior decision, and such evidence is material to the issue of service connection for psychological problems. In March 2014, the AOJ denied the claim of entitlement to service connection for psychological problems based on the lack of a nexus between a current disorder and the Veteran’s active service. The Veteran did not file a timely NOD and no new and material evidence was received within the appeal period; therefore, the March 2014 decision became final. 38 U.S.C. § 7105; 38 C.F.R. §§ 3.104, 3.156(b), 20.1103. Consequently, the Board will consider evidence received since the March 2014 decision. In December 2016, a private physician opined that major depression disease, generalized anxiety disorder, adjustment disorder, and PTSD are related to the Veteran’s military service. 01/09/2017, Medical-Non-Government. The Board finds that this evidence is new and that it directly pertains to the basis for the prior final denial (nexus), by addressing whether an acquired psychiatric disorder had its onset in or is otherwise related to service. Therefore, the claim of entitlement to service connection for psychological problems is reopened. See 38 U.S.C. § 5108; 38 C.F.R. § 3.156(a). Service Connection 6. Entitlement to service connection for bilateral hearing loss. 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). As a general matter, establishing service connection requires competent evidence of (1) the existence of a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the in-service disease or injury and the present disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); 38 C.F.R. § 3.303. The current disability requirement is satisfied when a claimant “has a disability at the time a claim for VA disability compensation is filed or during the pendency of that claim,” McClain v. Nicholson, 21 Vet. App. 319, 321 (2007), or “when the record contains a recent diagnosis of disability prior to … filing a claim for benefits based on that disability,” Romanowsky v. Shinseki, 26 Vet. App. 289, 294 (2013). In a claim of service connection for impaired hearing, demonstration of the first Shedden element—i.e., the existence of a current disability—is subject to the additional requirements of § 3.385, which provides that service connection for impaired hearing shall not be established until the hearing loss meets pure tone and/or speech recognition criteria. Under this regulation, hearing status will be considered a disability for the purposes of service connection when the auditory thresholds in any of the frequencies of 500, 1000, 2000, 3000, or 4000 Hertz is 40 decibels or greater; the auditory thresholds for at least three of these frequencies are 26 decibels or greater; or when speech recognition scores using the Maryland CNC Test are less than 94 percent. 38 C.F.R. § 3.385. The Veteran is competent to report symptoms and experiences observable by his senses. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); 38 C.F.R. § 3.159(a). In relevant part, 38 U.S.C. § 1154(a) requires that VA give “due consideration” to “all pertinent medical and lay evidence” in evaluating a claim for disability benefits. Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 57-58 (1990). After review of the record, the Board finds that the criteria for service connection for bilateral hearing loss have not been met. In January 2018, the Veteran was given an audiological examination by a VA audiologist, and puretone threshold, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 5 10 10 25 20 LEFT 5 10 10 25 20 Speech audiometry revealed speech recognition ability of 100 percent bilaterally. 01/19/2018, C&P Exam. None of the thresholds at any of the frequencies of 500, 1000, 2000, 3000, or 4000 Hertz is 40 decibels or greater, three or more of the thresholds are not 26 or greater, and speech recognition is not less than 94 percent for either ear. Accordingly, the Board finds that the weight of the competent and probative evidence is against finding bilateral hearing loss for VA purposes. See 38 C.F.R. § 3.385. Without competent evidence of bilateral hearing loss, the Board must deny the Veteran’s claim. See Degmetich v. Brown, 104 F.3d 1328, 1333 (1997). In arriving at the decision to deny the claim, the Board has considered the applicability of the benefit of the doubt doctrine. However, as the preponderance of the evidence is against the claim, that doctrine is not applicable. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert, 1 Vet. App. at 53-56.   REASONS FOR REMAND 1. Entitlement to service connection for a back disorder is remanded. Service treatment records demonstrate treatment for back pain during a period of active service, thus indicating a potential nexus between a current disorder and service. See McLendon v. Nicholson, 20 Vet. App. 79, 83 (2006) (stating that “[t]his is a low threshold” for meeting the requirement to trigger VA’s duty to assist to provide an examination). Accordingly, the AOJ should schedule the Veteran for a VA examination to determine the etiology of any diagnosed back disorder. The Board notes that there is evidence of treatment for back pain in between periods active service. The Board acknowledges a private physician’s December 2016 opinion that the Veteran’s back disorders are related to his military service. However, the Board finds that the opinion does not provide a sufficient basis on which to grant service connection, as it does not include a rationale in support. See Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007). 2. Entitlement to service connection for a left knee disorder is remanded. 3. Entitlement to service connection for a right knee disorder is remanded. In December 2016, a private physician opined that arthritis of the knees is related to the Veteran’s military service. The Board finds that the opinion does not provide a sufficient basis on which to grant service connection, as it does not include a rationale in support. See Stefl, 21 Vet. App. at 124. However, the Board finds that its duty to provide a VA examination is triggered under McLendon, 20 Vet. App. at 83. Accordingly, the AOJ should schedule the Veteran for a VA examination to determine the etiology of any diagnosed disorders of the bilateral knees.   4. Entitlement to service connection for a gastrointestinal disorder, to include dyspepsia, is remanded. In March 2014, a VA examiner opined that the Veteran’s dyspepsia is not related to service in Southwest Asia, but did not discuss whether the dyspepsia or gastrointestinal symptoms are attributable to a medically unexplained chronic multisymptom illness associated with service in the Persian Gulf. Additionally, the Board notes treatment for gastrointestinal symptoms in between the second and third periods of active service. The Board acknowledges a private physician’s December 2016 opinion that the dyspepsia is related to the Veteran’s military service. However, the Board finds that the opinion does not provide a sufficient basis on which to grant service connection, as it does not include a rationale in support. See Stefl, 21 Vet. App. at 124. Accordingly, the AOJ should schedule the Veteran for a VA examination to determine the etiology of any diagnosed gastrointestinal disorders, to include dyspepsia. 5. Entitlement to service connection for an acquired psychiatric disorder, to include major depressive disorder, anxiety disorder, PTSD, and adjustment disorder, is remanded. 6. Entitlement to service connection for Alzheimer’s disease/dementia/ memory loss is remanded. In a July 2011 post-deployment health assessment, the Veteran endorsed trouble sleeping, forgetfulness, and depressive symptoms. In March 2014, a VA examiner opined that memory loss and psychological problems are related to the Veteran’s breathing-related sleep disorder, but did not opine as to whether an acquired psychiatric disorder or memory loss manifested during or is otherwise related to his periods of active service. The Board acknowledges a private physician’s December 2016 opinion that the major depression disease, generalized anxiety disorder, PTSD, adjustment disorder, a memory disorder, and Alzheimer’s dementia are related to the Veteran’s military service. However, the Board finds that the opinion does not provide a sufficient basis on which to grant service connection, as it does not include a rationale in support. See Stefl, 21 Vet. App. at 124. For the same reasons, a June 2017 private treatment note associating depressive and anxiety symptoms with military service is not a sufficient basis on which to grant service connection. In January 2018, a VA examiner opined that major depressive disorder is not related to service, stating that there is no evidence of psychiatric complaints during service. The VA examination is inadequate because the examiner did not acknowledge or discuss the July 2011 post-deployment health assessment endorsing depressive symptoms. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 303-04 (2008). Accordingly, the AOJ should schedule the Veteran for VA examinations to determine the etiology of any diagnosed acquired psychiatric and cognitive disorders. 7. Entitlement to service connection for a sleep disorder, to include sleep apnea, is remanded. In a July 2011 post-deployment health assessment, the Veteran endorsed trouble sleeping, thus indicating a potential nexus between a current disorder and service. See McLendon, 20 Vet. App. at 83. In March 2014, a VA examiner provided a diagnosis of a breathing-related sleep disorder, but did not opine as to etiology. The Board acknowledges a private physician’s December 2016 opinion that sleep apnea is related to the Veteran’s military service. However, the Board finds that the opinion does not provide a sufficient basis on which to grant service connection, as it does not include a rationale in support. See Stefl, 21 Vet. App. at 124. Additionally, it is unclear whether the Veteran has been diagnosed with sleep apnea based on the results of a sleep study. Accordingly, the AOJ should schedule the Veteran for a VA examination to determine the etiology of any diagnosed sleep disorders, to include sleep apnea. The matters are REMANDED for the following actions: 1. Obtain the Veteran’s VA treatment records for the period from June 2018 to the present. 2. After completing directive #1, schedule the Veteran for an examination by an appropriate clinician to determine the nature and etiology of any diagnosed back disorder. The clinician should review the virtual file, including a copy of this Remand. The clinician is to address the following: (a.) Whether it is at least as likely as not (50 percent probability or more) that any diagnosed back disorder had its onset in or is otherwise related to the Veteran’s periods of active service. The examiner should consider and address the December 2016 private opinion that the Veteran’s back disorders are related to service. (b.) Whether it is at least as likely as not (50 percent or greater probability) that arthritis of the lumbar spine (i) manifested to a compensable degree within one year of August 23, 2011, or (ii) was noted during service with continuity of the same symptomatology since service. (c.) If it is determined that a back disorder did not have its onset in nor is otherwise related to service, is there clear and unmistakable evidence (i.e., it is undebatable) that any current back disorder existed prior to any of the Veteran’s periods of active service? If so, state whether the disorder is a congenital defect or disease. (d.) If the clinician determines that a current back disorder clearly and unmistakably pre-existed service and is not a congenital defect, is there clear and unmistakable evidence (i.e., it is undebatable) that the pre-existing back disorder was NOT aggravated by any of the periods of active service? This may include affirmative evidence that any increase in disability was due to the natural progression of the condition. The term “aggravated” refers to a worsening of the underlying condition beyond the natural progression of the disease, as opposed to temporary or intermittent flare-ups or symptoms that resolve with return to the baseline. If aggravation is found, state, to the extent possible, the baseline level of disability prior to aggravation. A comprehensive rationale for all opinions is to be provided. All pertinent evidence, including both lay and medical, should be considered. If an opinion cannot be given without resorting to speculation, the examiner should explain why and state whether the need to speculate is due to a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts), the record (additional facts are required), or the examiner (does not have the knowledge or training). 3. After completing directive #1, schedule the Veteran for an examination by an appropriate clinician to determine the nature and etiology of any diagnosed disorders of the bilateral knees. The clinician should review the virtual file, including a copy of this Remand. The clinician is to address the following: (a.) Whether it is at least as likely as not (50 percent probability or more) that any diagnosed knee disorder had its onset in or is otherwise related to the Veteran’s periods of active service. The examiner should consider and address the December 2016 private opinion that arthritis of the knees is related to the Veteran’s military service. (b.) Whether it is at least as likely as not (50 percent or greater probability) that arthritis of the knees (i) manifested to a compensable degree within one year of August 23, 2011, or (ii) was noted during service with continuity of the same symptomatology since service. A comprehensive rationale for all opinions is to be provided. All pertinent evidence, including both lay and medical, should be considered. If an opinion cannot be given without resorting to speculation, the examiner should explain why and state whether the need to speculate is due to a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts), the record (additional facts are required), or the examiner (does not have the knowledge or training). 4. After completing directive #1, schedule the Veteran for an examination by an appropriate clinician to determine the nature and etiology of any diagnosed gastrointestinal disorders, to include dyspepsia. The clinician should review the virtual file, including a copy of this Remand. The clinician is to address the following: (a.) Identify all gastrointestinal disorders that are currently present (or present any time from February 18, 2016, to present). If the examiner disagrees with a diagnosis already established in the medical records, he/she should so state and explain why. (b.) Whether it is at least as likely as not (50 percent or greater probability) that any diagnosed gastrointestinal disorder manifested during or is otherwise related to the Veteran’s periods of active service, to include due to service in the Persian Gulf. The examiner should consider and address the December 2016 private opinion that dyspepsia is related to the Veteran’s military service. (c.) Whether it is at least as likely as not (50 percent or greater probability) that abdominal symptoms are a sign, symptom, or manifestation of an undiagnosed or medically unexplained chronic multisymptom illness. (d.) If it is determined that a gastrointestinal disorder did not have its onset in nor is otherwise related to service, is there clear and unmistakable evidence (i.e., it is undebatable) that any current gastrointestinal disorder existed prior to any of the Veteran’s periods of active service? If so, state whether the disorder is a congenital defect or disease. (e.) If the clinician determines that a current gastrointestinal disorder clearly and unmistakably pre-existed service and is not a congenital defect, is there clear and unmistakable evidence (i.e., it is undebatable) that the pre-existing gastrointestinal disorder was NOT aggravated by any of the periods of active service? This may include affirmative evidence that any increase in disability was due to the natural progression of the condition. The term “aggravated” refers to a worsening of the underlying condition beyond the natural progression of the disease, as opposed to temporary or intermittent flare-ups or symptoms that resolve with return to the baseline. If aggravation is found, state, to the extent possible, the baseline level of disability prior to aggravation. A comprehensive rationale for all opinions is to be provided. All pertinent evidence, including both lay and medical, should be considered. If an opinion cannot be given without resorting to speculation, the examiner should explain why and state whether the need to speculate is due to a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts), the record (additional facts are required), or the examiner (does not have the knowledge or training). 5. After completing directive #1, schedule the Veteran for an examination by a VA psychologist or psychiatrist to determine the nature and etiology of any diagnosed acquired psychiatric disorder. The clinician should review the virtual file, including a copy of this Remand. The clinician is to address the following: (a.) Identify all acquired psychiatric disorders that are currently present (or present any time from December 18, 2017, to the present). Specifically, the examiner should state whether major depressive disorder, anxiety disorder, adjustment disorder, and/or PTSD are present during the period on appeal. The examiner is to clearly explain how the diagnostic criteria have or have not been met under the Diagnostic and Statistical Manual of Mental Disorders, Fifth Edition (DSM-5). If the examiner disagrees with a diagnosis already established in the medical records, he/she should so state and explain why. (b.) If PTSD is diagnosed, is it at least as likely as not (50 percent or greater probability) that PTSD manifested during or is otherwise related to the Veteran’s periods of active service, to include due to the claimed in-service stressors and/or fear of hostile military or terrorist activity? (c.) For any diagnosed psychiatric disorder other than PTSD, is it at least as likely as not (50 percent or greater probability) that any diagnosed acquired psychiatric disorder manifested during or is otherwise related to the Veteran’s periods of active service? The examiner should consider and address (i) in-service complaints of feeling depressed and trouble sleeping and (ii) December 2016 and June 2017 private opinions attributing psychiatric disorders/symptoms to service. A comprehensive rationale for all opinions is to be provided. All pertinent evidence, including both lay and medical, should be considered. If an opinion cannot be given without resorting to speculation, the examiner should explain why and state whether the need to speculate is due to a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts), the record (additional facts are required), or the examiner (does not have the knowledge or training). 6. After completing directive #1, schedule the Veteran for an examination with an appropriate VA examiner to determine the nature and etiology of any diagnosed cognitive disorder, to include memory loss. The clinician should review the virtual file, including a copy of this Remand. The clinician is to address the following: (a.) Identify all cognitive disorders that are currently present (or present any time from December 18, 2017, to the present). Specifically, the examiner should state whether memory loss, Alzheimer’s disease, and/or dementia are present during the period on appeal. (b.) Whether it is at least as likely as not (50 percent or greater probability) that any diagnosed cognitive disorder manifested during or is otherwise related to the Veteran’s periods of active service. The examiner should consider and address (i) in-service complaints of forgetfulness and (ii) the December 2016 private opinion that memory loss and Alzheimer’s dementia are related to service. A comprehensive rationale for all opinions is to be provided. All pertinent evidence, including both lay and medical, should be considered. If an opinion cannot be given without resorting to speculation, the examiner should explain why and state whether the need to speculate is due to a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts), the record (additional facts are required), or the examiner (does not have the knowledge or training). 7. After completing directive #1, schedule the Veteran for an examination with an appropriate VA examiner to determine the nature and etiology of any diagnosed sleep disorder, to include sleep apnea. The clinician should review the virtual file, including a copy of this Remand. The clinician is to address the following: (a.) Identify all sleep disorders that are currently present (or present any time from December 18, 2017, to the present). Specifically, the examiner should state whether sleep apnea is present during the period on appeal. (b.) Whether it is at least as likely as not (50 percent or greater probability) that any diagnosed sleep disorder manifested during or is otherwise related to the Veteran’s periods of active service. The examiner should consider and address (i) in-service complaints of problems sleeping and (ii) the December 2016 private opinion that sleep apnea is related to service. A comprehensive rationale for all opinions is to be provided. All pertinent evidence, including both lay and medical, should be considered. If an opinion cannot be given without resorting to speculation, the examiner should explain why and state whether the need to speculate is due to a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts), the record (additional facts are required), or the examiner (does not have the knowledge or training). 8. After completing directives #1-7, schedule the Veteran for a Persian Gulf examination by an appropriate clinician to determine whether any of the claimed disorders/symptoms are due to service in the Persian Gulf. The clinician should review the virtual file, including a copy of this Remand. The clinician is to address the following: (a.) Whether it is at least as likely as not (50 percent or greater probability) that back pain, knee pain, gastrointestinal symptoms, sleep problems, psychological symptoms, and/or cognitive symptoms manifested during or are otherwise related to the Veteran’s periods of active service, to include due to service in the Persian Gulf. (b.) Whether it is at least as likely as not (50 percent or greater probability) that back pain, knee pain, gastrointestinal symptoms, sleep problems, psychological symptoms, and/or cognitive symptoms are a sign, symptom, or manifestation of an undiagnosed or medically unexplained chronic multisymptom illness. (Continued on the next page)   A comprehensive rationale for all opinions is to be provided. All pertinent evidence, including both lay and medical, should be considered. If an opinion cannot be given without resorting to speculation, the examiner should explain why and state whether the need to speculate is due to a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts), the record (additional facts are required), or the examiner (does not have the knowledge or training). Paul Sorisio Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD J.A. Gelber, Associate Counsel