Citation Nr: 18153248 Decision Date: 11/28/18 Archive Date: 11/27/18 DOCKET NO. 17-67 237 DATE: November 28, 2018 ORDER As new and material evidence has not been received, the previously claim of service connection for a lumbosacral spine disability is not reopened. As new and material evidence has not been received, the previously denied claim of service connection for a cardiovascular disability is not reopened. As new and material evidence has not been received, the previously denied claim of service connection for Parkinson's Disease is not reopened. As new and material evidence has not been received, the previously denied claim of service connection for a traumatic brain injury (TBI) is not reopened. Entitlement to service connection for a bilateral knee disability is denied. Entitlement to service connection for obstructive sleep apnea is denied. Entitlement to service connection for a left shoulder disability is denied. Entitlement to service connection for bilateral hearing loss is denied. Entitlement to service connection for migraines is denied. Entitlement to an initial rating greater than 10 percent for tinnitus is denied. REMANDED Entitlement to service connection for a disability manifested by insomnia is remanded. Entitlement to service connection for a seizure disorder is remanded. Entitlement to service connection for hypertension is remanded. Entitlement to service connection for varicose veins is remanded. Entitlement to service connection for a bilateral vision disability is remanded. Entitlement to service connection for a cervical spine disability is remanded. Entitlement to service connection for a bilateral leg disability is remanded. Entitlement to service connection for a gastrointestinal disability is remanded. Entitlement to service connection for a bilateral foot disability is remanded. Entitlement to service connection for chronic obstructive pulmonary disease (COPD) is remanded. Entitlement to service connection for a right shoulder disability is remanded. Entitlement to service connection for residuals of a right ankle fracture is remanded. Entitlement to an initial rating greater than 50 percent for persistent depressive disorder is remanded. FINDINGS OF FACT 1. In a rating decision dated on November 18, 2010, the Agency of Original Jurisdiction (AOJ) denied, in pertinent part, the Veteran’s claims of service connection for a lumbosacral spine disability, a cardiovascular disability, Parkinson’s Disease, and for a traumatic brain injury (TBI); this decision was not appealed and became final. 2. The evidence received since the November 2010 rating decision is either cumulative or redundant of evidence previously submitted in support of the Veteran’s claims of service connection for a lumbosacral spine disability, a cardiovascular disability, Parkinson’s Disease, and for a TBI and does not relate to unestablished facts necessary to substantiate any of these claims. 3. The record evidence shows that the Veteran does not experience any current disability due to his claimed bilateral knee disability, obstructive sleep apnea (OSA), or left shoulder disability which could be attributed to active service. 4. The record evidence shows that the Veteran’s current bilateral hearing loss and migraines are not related to active service. 5. The record evidence shows that the Veteran is in receipt of the maximum disability rating available for tinnitus (whether unilateral or bilateral). CONCLUSIONS OF LAW 1. The November 2010 rating decision, which denied claims of service connection for a lumbosacral spine disability, a cardiovascular disability, Parkinson’s Disease, and for a TBI, is final. 38 U.S.C. § 7105 (West 2012); 38 C.F.R. § 20.302 (2017). 2. Evidence received since the November 2010 rating decision in support of the claims of service connection for a lumbosacral spine disability, a cardiovascular disability, Parkinson’s Disease, and for a TBI is not new and material; thus, these claims are not reopened. 38 U.S.C. § 5108 (West 2012); 38 C.F.R. § 3.156 (2017). 3. The criteria for entitlement to service connection for a bilateral knee disability have not been met. 38 U.S.C. §§ 1110, 5103, 5103A, 5107 (West 2012); 38 C.F.R. §§ 3.303, 3.304 (2017). 4. The criteria for entitlement to service connection for obstructive sleep apnea (OSA) have not been met. 38 U.S.C. §§ 1110, 5103, 5103A, 5107 (West 2012); 38 C.F.R. §§ 3.303, 3.304 (2017). 5. The criteria for entitlement to service connection for a left shoulder disability have not been met. 38 U.S.C. §§ 1110, 5103, 5103A, 5107 (West 2012); 38 C.F.R. §§ 3.303, 3.304 (2017). 6. The criteria for entitlement to service connection for bilateral hearing loss have not been met. 38 U.S.C. §§ 1110, 5103, 5103A, 5107 (West 2012); 38 C.F.R. §§ 3.303, 3.304 (2017). 7. The criteria for entitlement to service connection for migraines have not been met. 38 U.S.C. §§ 1110, 5103, 5103A, 5107 (West 2012); 38 C.F.R. §§ 3.303, 3.304 (2017). 8. There is no legal entitlement to an initial rating greater than 10 percent for tinnitus. 38 U.S.C. §§ 1155, 5107 (West 2012); 38 C.F.R. §§ 4.1, 4.2, 4.7, 4.87, Diagnostic Code (DC) 6260 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service from July 1970 to March 1972. The Board observes that, in a November 2010 rating decision, the AOJ denied the Veteran’s claims of service connection for a low back disability, a cardiovascular disability, Parkinson’s Disease, and for a TBI. The Veteran did not appeal this decision and it became final. See 38 U.S.C. § 7104 (West 2012). He also did not submit any relevant evidence or argument within 1 year of the November 2010 rating decision which would render it non-final for VA adjudication purposes. See Buie v Shinseki, 24 Vet. App. 242, 251-52 (2011) (explaining that, when statements are received within one year of a rating decision, the Board's inquiry is not limited to whether those statements constitute notices of disagreement but whether those statements include the submission of new and material evidence under 38 C.F.R. § 3.156 (b)). The Board does not have jurisdiction to consider a claim that has been adjudicated previously unless new and material evidence is presented. See Barnett v. Brown, 83 F.3d 1380 (Fed. Cir. 1996). Therefore, the issues of whether new and material evidence has been received to reopen claims of service connection for a low back disability, a cardiovascular disability, Parkinson’s Disease, and for a TBI are as stated on the title page. Regardless of the AOJ’s actions, the Board must make its own determination as to whether new and material evidence has been received to reopen these claims. That is, the Board has a jurisdictional responsibility to consider whether a claim should be reopened. See Jackson v. Principi, 265 F.3d 1366, 1369 (Fed. Cir. 2001). The Board next acknowledges that the AOJ adjudicated separate service connection claims for a right knee disability and for a left knee disability, for a right leg disability and for a left leg disability, and for a right foot disability and for a left foot disability during the pendency of this appeal. Having reviewed the record evidence, the Board finds that these claims should be characterized as stated above. This appeal has been advanced on the Board’s docket pursuant to 38 U.S.C. § 7107 (West 2012) and 38 C.F.R. § 20.900(c) (2017). Service Connection The Veteran essentially contends that new and material evidence has been received to reopen his previously denied claims of service connection for a lumbosacral spine disability, a cardiovascular disability, Parkinson’s Disease, and for a TBI. He also contends that he incurred a bilateral knee disability, obstructive sleep apnea, a left shoulder disability, bilateral hearing loss, and migraines during active service and experienced continuous disability due to each of these claimed disabilities since his service separation. 1. Whether new and material evidence has been received to reopen claims of service connection for a lumbosacral spine disability, a cardiovascular disability, Parkinson’s Disease, and for a TBI The Board finds that the preponderance of the evidence is against granting the Veteran’s requests to reopen his previously denied claims of service connection for a lumbosacral spine disability, a cardiovascular disability, Parkinson’s Disease, and for a TBI. Despite the Veteran’s assertions to the contrary, the newly received evidence does not support reopening any of these previously denied claims. The Board notes initially that claims of service connection may be reopened if new and material evidence is received. Manio v. Derwinski, 1 Vet. App. 140 (1991). The Veteran requested that his previously denied service connection claims for a lumbosacral spine disability, a cardiovascular disability, Parkinson’s Disease, and for a TBI be reopened when he submitted a VA Form 21-256EZ which was dated on November 7, 2014, and date-stamped as received by the AOJ on November 13, 2014. New and material evidence is defined by regulation. See 38 C.F.R. § 3.156(a). In determining whether evidence is new and material, the credibility of the new evidence is to be presumed. Justus v. Principi, 3 Vet. App. 510, 513 (1992). With respect to the Veteran’s application to reopen his previously denied service connection claims for a lumbosacral spine disability, a cardiovascular disability, Parkinson’s Disease, and for a TBI, the evidence which was before the AOJ at the time of the prior final rating decision in November 2010 consisted of his available service treatment records, his post-service VA and private outpatient treatment records and examination reports, his Social Security records, and his lay statements. The AOJ essentially concluded that the medical evidence of record did not show an etiological link between the Veteran’s lumbosacral spine disability, cardiovascular disability, Parkinson’s Disease, or TBI and active service. Thus, the claims were denied. The newly received evidence still does not indicate that the Veteran’s lumbosacral spine disability, cardiovascular disability, Parkinson’s Disease, or TBI is related to active service or any incident of service. The evidence received since November 2010 includes additional post-service VA outpatient treatment records and examination reports and additional lay statements from the Veteran. None of the newly received evidence establishes an etiological link between a lumbosacral spine disability, a cardiovascular disability, Parkinson’s Disease, or a TBI and active service. In other words, the Board finds that the evidence received since November 2010 is duplicative of evidence previously considered by the AOJ in adjudicating the Veteran’s claims. The Board notes that the United States Court of Appeals for Veterans Claims (Court) held in Shade v. Shinseki, 24 Vet. App 110 (2010), that the phrase “raises a reasonable possibility of substantiating the claim” found in the post-VCAA version of 38 C.F.R. § 3.156(a) must be viewed as “enabling” reopening of a previously denied claim rather than “precluding” it. All of the newly received evidence is presumed credible solely for the limited purpose of reopening the previously denied claim. See Justus, 3 Vet. App. at 513. With respect to the Veteran’s requests to reopen his previously denied service connection claims for a lumbosacral spine disability, a cardiovascular disability, Parkinson’s Disease, and for a TBI, the Board finds that there is no reasonable possibility that the newly received evidence would enable rather than preclude reopening any of these claims. Unlike in Shade, there is no evidence in this case – either previously considered in the November 2010 rating decision or received since this decision became final – which demonstrates that any of these disabilities is related to active service or any incident of service. Thus, the analysis of new and material evidence claims that the Court discussed in Shade is not applicable to the Veteran’s requests to reopen his previously denied service connection claims for a lumbosacral spine disability, a cardiovascular disability, Parkinson’s Disease, and for a TBI. In summary, as new and material evidence has not been received, the previously denied claims of service connection for a lumbosacral spine disability, a cardiovascular disability, Parkinson’s Disease, and for a TBI are not reopened. 2. Entitlement to service connection for a bilateral knee disability, obstructive sleep apnea, and for a left shoulder disability The Board next finds that the preponderance of the evidence is against granting the Veteran’s claims of service connection for a bilateral knee disability, obstructive sleep apnea, and for a left shoulder disability. Despite the Veteran’s assertions to the contrary, the record evidence shows no complaints of or treatment for any bilateral knee disability, obstructive sleep apnea, or left shoulder disability which is attributable to active service or any incident of service. For example, a review of the Veteran’s available service treatment records shows no complaints of or treatment for any of these claimed disabilities at any time during his active service. The Board notes that the absence of contemporaneous records does not preclude granting service connection for a claimed disability. See Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006) (finding lack of contemporaneous medical records does not serve as an "absolute bar" to the service connection claim); Barr v. Nicholson, 21 Vet. App. 303 (2007) ("Board may not reject as not credible any uncorroborated statements merely because the contemporaneous medical evidence is silent as to complaints or treatment for the relevant condition or symptoms"). The post-service evidence also does not support granting the Veteran’s claims of service connection for bilateral knee disability, obstructive sleep apnea, and for a left shoulder disability. It shows instead that the Veteran does not experience any current disability due to any of these claimed disabilities which is attributable to active service or any incident of service. The Board finds it highly persuasive that the Veteran denied experiencing any obstructive sleep apnea on repeated VA outpatient ophthalmology visits conducted during the pendency of this appeal. The Board also finds it highly persuasive that the Veteran only has complained of and sought treatment for a right shoulder disability since his service separation. The Board acknowledges here that the Veteran has complained of experiencing left shoulder pain since his service separation; however, his complaints of left shoulder pain have not resulted in functional impairment and, as such, cannot be considered a disability for VA adjudication purposes even under Saunders. See Saunders v. Wilkie, 886 F.3d 1356 (Fed. Cir. 2018). A service connection claim must be accompanied by evidence which establishes that the claimant currently has a disability. Rabideau v. Derwinski, 2 Vet. App. 141, 144 (1992); Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). Service connection is not warranted in the absence of proof of current disability. The Board has considered whether the Veteran experienced a bilateral knee disability, obstructive sleep apnea, or a left shoulder disability at any time during the pendency of this appeal. Service connection may be granted if there is a disability at some point during the claim even if it later resolves or becomes asymptomatic. McClain v. Nicholson, 21 Vet. App. 319 (2007). In this case, there is no evidence – other than the Veteran’s lay assertions – demonstrating that he experiences any current disability due to any of these claimed disabilities which could be attributed to active service. Accordingly, the Board finds that service connection for bilateral knee disability, obstructive sleep apnea, and for a left shoulder disability is not warranted. 3. Entitlement to service connection for bilateral hearing loss and for migraines The Board next finds that the preponderance of the evidence is against granting the Veteran’s claims of service connection for bilateral hearing loss and for migraines. The Veteran essentially contends that he incurred each of these disabilities during active service and experienced continuous disability since his service separation. The record evidence does not support the Veteran’s assertions regarding an etiological link between bilateral hearing loss or migraines and active service. It shows instead that, although the Veteran currently experiences bilateral hearing loss and migraines, neither of these disabilities is related to active service. For example, the Veteran’s available service treatment records show no complaints of or treatment for migraines during active service. The Board again notes that the absence of contemporaneous records does not preclude granting service connection for a claimed disability. See Buchanan, 451 F.3d at 1337, and Barr, 21 Vet. App. at 303. The post-service evidence also does not support granting the Veteran’s claims of service connection for bilateral hearing loss and for migraines. It shows instead that, although the Veteran has complained of and been treated for bilateral hearing loss and migraines since his service separation, neither of these disabilities is related to active service. For example, on VA hearing loss and tinnitus DBQ in March 2015, the VA audiologist stated that she could not test the Veteran’s bilateral hearing and his audiometric testing results were not valid “due to inconsistent response patterns.” This audiologist also stated that she could not provide an opinion concerning the nature and etiology of the Veteran’s bilateral hearing loss without resorting to speculation due to inconsistencies in his medical records. The diagnosis was bilateral sensorineural hearing loss. On VA headaches DBQ in March 2015, the Veteran’s complaints included ongoing daily headaches with light sensitivity and “throbbing pain on the right side of his head” which also radiated to the left side. The VA examiner reviewed the Veteran’s electronic claims file, including his service treatment records and post-service VA treatment records. The Veteran reported an in-service head injury which caused his headaches. He denied any characteristic prostrating attacks of migraine headache pain. The VA examiner opined that it was less likely than not that the Veteran’s current headaches were related to active service. The rationale for this opinion was based on the inconsistencies in the Veteran’s reported medical history. The VA examiner stated that the Veteran reported both that his headaches began after a traumatic brain injury (TBI) in approximately 1980 and also reported that they began following a series of immunizations in 1991. The diagnosis was headache. On VA hearing loss and tinnitus DBQ in June 2015, the Veteran’s pure tone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 40 40 55 75 80 LEFT 45 35 70 80 85 Speech audiometry revealed speech recognition ability of 84 percent in the right ear and 86 percent in the left ear. The VA examiner opined that it was less likely than not that the Veteran’s bilateral sensorineural hearing loss was related to active service. The rationale for this opinion was that the Veteran’s service treatment records showed his hearing was within normal limits throughout his active service. The rationale also was that “[d]elayed onset hearing loss from noise exposure is not supported by current research/literature.” The diagnosis was bilateral sensorineural hearing loss. The Veteran contends that he incurred bilateral hearing loss and migraines during active service and experienced continuous disability due to each of these claimed disabilities since his service separation. The record evidence does not support his assertions regarding an etiological link between bilateral hearing loss or migraines and active service. It shows instead that, although the Veteran currently experiences both bilateral hearing loss and migraines, neither of these disabilities is related to active service. The March 2015 VA headaches DBQ examiner specifically opined that it was less likely than not that the Veteran’s current headaches were related to service. Similarly, the June 2015 VA hearing loss and tinnitus DBQ examiner also opined that it was less likely than not that the Veteran’s current bilateral hearing loss was related to active service. All of these opinions were fully supported. See Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007) (finding that a medical opinion "must support its conclusion with an analysis that the Board can consider and weigh against contrary opinions"). The Veteran finally has not identified or submitted any evidence demonstrating his entitlement to service connection for bilateral hearing loss or for migraines. In summary, the Board finds that service connection for bilateral hearing loss and for migraines is not warranted. Increased Rating The Veteran essentially contends that his service-connected tinnitus is more disabling than currently (and initially) evaluated. 4. Entitlement to an initial rating greater than 10 percent for tinnitus The Board finds that the Veteran’s claim of entitlement to an initial rating greater than 10 percent for tinnitus must be denied as a matter of law. The Board notes initially that, effective June 23, 2003, DC 6260 was amended to clarify existing VA practice that only a single 10 percent evaluation is assigned for tinnitus, whether the sound is perceived as being in one ear, both ears, or in the head. See 38 C.F.R. § 4.87, DC 6260 (2017). The Board next notes that, in 2006, the United States Court of Appeals for the Federal Circuit (Federal Circuit) affirmed VA’s long-standing interpretation of DC 6260 as authorizing only a single 10 percent rating for tinnitus, whether perceived as unilateral or bilateral. See Smith v. Nicholson, 451 F.3d 1344 (Fed. Cir. 2006). Citing Supreme Court precedent, the Federal Circuit explained in Smith that an agency’s interpretation of its own regulations was entitled to substantial deference by the courts as long as that interpretation was not plainly erroneous or inconsistent with the regulations. Id. Finding that there was a lack of evidence in the record suggesting that VA’s interpretation of DC 6260 was plainly erroneous or inconsistent with regulations, the Federal Circuit concluded that the United States Court of Appeals for Veterans Claims had erred in not deferring to VA’s interpretation. Id. Given the foregoing, the Board concludes that DC 6260 precludes assigning an initial rating greater than 10 percent for tinnitus. As disposition of this appeal is based on the law and not the facts of the case, the Veteran’s claim for an initial rating greater than 10 percent tinnitus must be denied based on a lack of entitlement under the law. See Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). REASONS FOR REMAND 1. Entitlement to service connection for a disability manifested by insomnia, a seizure disorder, hypertension, varicose veins, a bilateral vision disability, a cervical spine disability, a bilateral leg disability, a gastrointestinal disability, a bilateral foot disability, chronic obstructive pulmonary disease (COPD), and for a right shoulder disability is remanded. The Veteran contends that he incurred a disability manifested by insomnia, a seizure disorder, hypertension, varicose veins, a bilateral vision disability, a cervical spine disability, a bilateral leg disability, a gastrointestinal disability, a bilateral foot disability, COPD, and a right shoulder disability during active service and experienced continuous disability due to each of these claimed disabilities since his service separation. The record evidence shows that the Veteran currently is diagnosed as having and treated for each of these claimed disabilities; however, to date, the AOJ has not scheduled the Veteran for appropriate examinations to determine the nature and etiology of any of these claimed disabilities. The Board notes in this regard that VA’s duty to assist includes scheduling an examination where necessary. The Board also notes that service connection may be granted if there is a disability at some point during the claim even if it later resolves or becomes asymptomatic. See McClain, 21 Vet. App. at 319. Thus, the Board finds that, on remand, the Veteran should be scheduled for appropriate examinations to determine the nature and etiology of his disability manifested by insomnia, seizure disorder, hypertension, varicose veins, bilateral vision disability, cervical spine disability, bilateral leg disability, gastrointestinal disability, bilateral foot disability, COPD, and right shoulder disability. 2. Entitlement to service connection for residuals of a right ankle fracture is remanded. The Board acknowledges that the Veteran was examined for VA adjudication purposes in March 2015. Unfortunately, a review of the medical nexus opinion provided by the VA examiner who completed the Veteran’s VA ankle conditions DBQ shows that it is unlikely to survive judicial review. The March 2015 VA ankle conditions DBQ examiner specifically opined that the Veteran’s residuals of a right ankle fracture clearly and unmistakably existed prior to service and clearly and unmistakably was not aggravated by service. The rationale for this opinion was that, following the Veteran’s initial in-service right ankle injury, there was “no documentation of worsening condition. There are no other medical records indicating further injury to [the right] leg while in service. Also there are no medical records showing worsening of [this] condition immediately after leaving service in 1972.” The Board again notes that the absence of contemporaneous records does not preclude granting service connection for a claimed disability. See Buchanan, 451 F.3d at 1337, and Barr, 21 Vet. App. at 303. Having reviewed the March 2015 VA examiner’s opinion, the Board finds that it is not probative on the issue of whether the Veteran’s current residuals of a right ankle fracture are related to active service. Thus, the Board also finds that, on remand, the Veteran should be schedule for another examination to determine the nature and etiology of any residuals of a right ankle fracture. 3. Entitlement to an initial rating greater than 50 percent for persistent depressive disorder is remanded The Veteran finally contends that his service-connected persistent depressive disorder is more disabling than currently (and initially) evaluated. The Board notes that the Veteran was examined most recently for purposes of determining the current nature and severity of his service-connected persistent depressive disorder in March 2015. The Court has held that when a Veteran alleges that his service-connected disability has worsened since he was examined previously, a new examination may be required to evaluate the current degree of impairment. See Snuffer v. Gober, 10 Vet. App. 400, 403 (1997); but see Palczewski v. Nicholson, 21 Vet. App. 174, 182 (2007) (finding "mere passage of time" does not render old examination inadequate). Given the Veteran's contentions, and given the length of time which has elapsed since his most recent VA examination in March 2015, the Board finds that, on remand, he should be scheduled for an updated VA examination to determine the current nature and severity of his service-connected persistent depressive disorder. The matters are REMANDED for the following action: 1. Schedule the Veteran for an examination to determine the nature and etiology of any disability manifested by insomnia. The claims file should be provided for review. The examiner is asked to state whether it is at least as likely as not (i.e., a 50 percent or greater probability) that a disability manifested by insomnia, if diagnosed, is related to active service or any incident of service. A rationale also should be provided for any opinions expressed. The examiner is advised that the absence of contemporaneous records showing complaints of or treatment for a disability manifested by insomnia, alone, is insufficient rationale for a medical nexus opinion. The examiner also is advised that the Veteran currently suffers from dementia. 2. Schedule the Veteran for an examination to determine the nature and etiology of any seizure disorder. The claims file should be provided for review. The examiner is asked to state whether it is at least as likely as not (i.e., a 50 percent or greater probability) that a seizure disorder, if diagnosed, is related to active service or any incident of service. A rationale also should be provided for any opinions expressed. The examiner is advised that the absence of contemporaneous records showing complaints of or treatment for a seizure disorder, alone, is insufficient rationale for a medical nexus opinion. The examiner also is advised that the Veteran currently suffers from dementia. 3. Schedule the Veteran for an examination to determine the nature and etiology of any hypertension. The claims file should be provided for review. The examiner is asked to state whether it is at least as likely as not (i.e., a 50 percent or greater probability) that hypertension, if diagnosed, is related to active service or any incident of service. A rationale also should be provided for any opinions expressed. The examiner is advised that the absence of contemporaneous records showing complaints of or treatment for hypertension, alone, is insufficient rationale for a medical nexus opinion. The examiner also is advised that the Veteran currently suffers from dementia. 4. Schedule the Veteran for an examination to determine the nature and etiology of any varicose veins. The claims file should be provided for review. The examiner is asked to state whether it is at least as likely as not (i.e., a 50 percent or greater probability) that varicose veins, if diagnosed, are related to active service or any incident of service. A rationale also should be provided for any opinions expressed. The examiner is advised that the absence of contemporaneous records showing complaints of or treatment for varicose veins, alone, is insufficient rationale for a medical nexus opinion. The examiner also is advised that the Veteran currently suffers from dementia. 5. Schedule the Veteran for an examination to determine the nature and etiology of any bilateral vision disability. The claims file should be provided for review. The examiner is asked to state whether it is at least as likely as not (i.e., a 50 percent or greater probability) that a bilateral vision disability, if diagnosed, is related to active service or any incident of service. A rationale also should be provided for any opinions expressed. A separate opinion and rationale should be provided for each bilateral vision disability currently experienced by the Veteran, if possible. The examiner is advised that the absence of contemporaneous records showing complaints of or treatment for a bilateral vision disability, alone, is insufficient rationale for a medical nexus opinion. The examiner also is advised that the Veteran currently suffers from dementia. The examiner finally is advised that refractive error of the eye is not considered a disability for VA compensation purposes. 6. Schedule the Veteran for an examination to determine the nature and etiology of any cervical spine disability. The claims file should be provided for review. The examiner is asked to state whether it is at least as likely as not (i.e., a 50 percent or greater probability) that a cervical spine disability, if diagnosed, is related to active service or any incident of service. A rationale also should be provided for any opinions expressed. The examiner is advised that the absence of contemporaneous records showing complaints of or treatment for a cervical spine disability, alone, is insufficient rationale for a medical nexus opinion. The examiner also is advised that the Veteran currently suffers from dementia. 7. Schedule the Veteran for an examination to determine the nature and etiology of any bilateral leg disability. The claims file should be provided for review. The examiner is asked to state whether it is at least as likely as not (i.e., a 50 percent or greater probability) that a bilateral leg disability, if diagnosed, is related to active service or any incident of service. A rationale also should be provided for any opinions expressed. A separate opinion and rationale should be provided for each of the Veteran’s legs, if possible. The examiner is advised that the absence of contemporaneous records showing complaints of or treatment for a bilateral leg disability, alone, is insufficient rationale for a medical nexus opinion. The examiner also is advised that the Veteran currently suffers from dementia. 8. Schedule the Veteran for an examination to determine the nature and etiology of any gastrointestinal disability. The claims file should be provided for review. The examiner is asked to state whether it is at least as likely as not (i.e., a 50 percent or greater probability) that a gastrointestinal disability, if diagnosed, is related to active service or any incident of service. A rationale also should be provided for any opinions expressed. A separate opinion and rationale should be provided for each gastrointestinal disability currently experienced by the Veteran, if possible. The examiner is advised that the absence of contemporaneous records showing complaints of or treatment for a gastrointestinal disability, alone, is insufficient rationale for a medical nexus opinion. The examiner also is advised that the Veteran currently suffers from dementia. 9. Schedule the Veteran for an examination to determine the nature and etiology of any bilateral foot disability. The claims file should be provided for review. The examiner is asked to state whether it is at least as likely as not (i.e., a 50 percent or greater probability) that a bilateral foot disability, if diagnosed, is related to active service or any incident of service. A rationale also should be provided for any opinions expressed. A separate opinion and rationale should be provided for each of the Veteran’s feet, if possible. The examiner is advised that the absence of contemporaneous records showing complaints of or treatment for a bilateral foot disability, alone, is insufficient rationale for a medical nexus opinion. The examiner also is advised that the Veteran currently suffers from dementia. 10. Schedule the Veteran for an examination to determine the nature and etiology of any chronic obstructive pulmonary disease (COPD). The claims file should be provided for review. The examiner is asked to state whether it is at least as likely as not (i.e., a 50 percent or greater probability) that COPD, if diagnosed, is related to active service or any incident of service. A rationale also should be provided for any opinions expressed. The examiner is advised that the absence of contemporaneous records showing complaints of or treatment for COPD, alone, is insufficient rationale for a medical nexus opinion. The examiner also is advised that the Veteran currently suffers from dementia. 11. Schedule the Veteran for an examination to determine the nature and etiology of any right shoulder disability. The claims file should be provided for review. The examiner is asked to state whether it is at least as likely as not (i.e., a 50 percent or greater probability) that a right shoulder disability, if diagnosed, is related to active service or any incident of service. A rationale also should be provided for any opinions expressed. The examiner is advised that the absence of contemporaneous records showing complaints of or treatment for a right shoulder disability, alone, is insufficient rationale for a medical nexus opinion. The examiner also is advised that the Veteran currently suffers from dementia. 12. Schedule the Veteran for an examination to determine the nature and etiology of any residuals of a right ankle fracture. The claims file should be provided for review. The examiner is asked to state whether it is at least as likely as not (i.e., a 50 percent or greater probability) that residuals of a right ankle fracture, if diagnosed, is related to active service or any incident of service. A rationale also should be provided for any opinions expressed. The examiner is advised that the absence of contemporaneous records showing complaints of or treatment for residuals of a right ankle fracture, alone, is insufficient rationale for a medical nexus opinion. The examiner also is advised that the Veteran currently suffers from dementia. The examiner is advised further that the Veteran fractured his right ankle during active service. 13. Schedule the Veteran for appropriate examination to determine the current nature and severity of his service-connected persistent depressive disorder. The examiner is advised that the Veteran currently suffers from dementia. 14. Readjudicate the appeal. R. FEINBERG Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Michael T. Osborne, Counsel