Citation Nr: 18156152 Decision Date: 12/07/18 Archive Date: 12/07/18 DOCKET NO. 16-25 113 DATE: December 7, 2018 ORDER The application to reopen a claim of service connection for bilateral foot disability is granted. Entitlement to service connection for left shoulder strain is granted. Entitlement to service connection for left knee patellofemoral pain syndrome and status post meniscectomy with scars is granted. Entitlement to service connection for major depressive disorder is granted. Entitlement to service connection for migraine headaches, secondary to tinnitus and major depressive disorder, is granted. REMANDED The application to reopen a claim of service connection for left hip disability is remanded. Entitlement to an effective date earlier than May 15, 2014 for the award of service connection for bilateral hearing loss is remanded. Entitlement to an effective date earlier than May 15, 2014 for the award of service connection for tinnitus is remanded. Entitlement to an effective date earlier than May 6, 2013 for the award of service connection for left lower extremity radiculopathy is remanded. Entitlement to an effective date earlier than May 6, 2013 for the award of service connection for right lower extremity radiculopathy is remanded. Entitlement to an effective date earlier than May 6, 2013 for the award of service connection for lumbar strain, degenerative disc disease, and degenerative joint disease is remanded. Entitlement to service connection for right shoulder disability is remanded. Entitlement to service connection for neck disability is remanded. Entitlement to service connection for right hip disability is remanded. Entitlement to service connection for right knee disability is remanded. Entitlement to service connection for bilateral foot disability is remanded. Entitlement to service connection for bilateral leg disability, other than radiculopathy and left knee patellofemoral pain syndrome and status post meniscectomy with scars, is remanded. Entitlement to service connection for sleep disability (including sleep apnea and insomnia), to include as secondary to service-connected major depressive disorder, is remanded. Entitlement to service connection for liver disability is remanded. Entitlement to service connection for disability manifested by memory loss (other than major depressive disorder), to include as secondary to service-connected major depressive disorder, is remanded. Entitlement to an initial rating higher than 20 percent for lumbar strain, degenerative disc disease, and degenerative joint disease is remanded. Entitlement to an initial compensable rating for bilateral hearing loss is remanded. Entitlement to an initial rating higher than 10 percent for tinnitus is remanded. Entitlement to an initial rating higher than 20 percent for left lower extremity radiculopathy is remanded. Entitlement to an initial rating higher than 20 percent for right lower extremity radiculopathy is remanded. Entitlement to a total disability rating based on individual unemployability (TDIU) due to service-connected disabilities is remanded. FINDINGS OF FACT 1. The Veteran’s claim of service connection for bilateral foot disability was originally denied in a March 2007 rating decision on the basis that there was no medical evidence of any such disability that was related to service; the Veteran submitted a timely notice of disagreement (NOD) in March 2008 and a statement of the case (SOC) was issued in January 2009, but the Veteran did not file a substantive appeal. 2. Evidence received since the March 2007 agency of original jurisdiction (AOJ) decision includes information that was not previously considered and which relates to an unestablished fact necessary to substantiate the claim of service connection for bilateral foot disability, the absence of which was the basis of the previous denial. 3. The Veteran’s left shoulder strain is related to service. 4. The Veteran’s left knee patellofemoral pain syndrome and status post meniscectomy with scars is related to service. 5. The Veteran’s major depressive disorder began during active service. 6. The Veteran’s migraine headaches are caused by his service-connected tinnitus and major depressive disorder. CONCLUSIONS OF LAW 1. The AOJ’s March 2007 rating decision that denied the claim of service connection for bilateral foot disability is final. 38 U.S.C. § 7105; 38 C.F.R. §§ 3.104, 19.32, 20.200, 20.302, 20.1103. 2. The evidence received since the March 2007 AOJ decision is new and material and sufficient to reopen the claim of service connection for bilateral foot disability. 38 U.S.C. § 5108; 38 C.F.R. § 3.156 (a). 3. The criteria for service connection for left shoulder strain are met. 38 U.S.C. §§ 1131, 5107(b); 38 C.F.R. §§ 3.102, 3.303(a). 4. The criteria for service connection for left knee patellofemoral pain syndrome and status post meniscectomy with scars are met. 38 U.S.C. §§ 1131, 5107(b); 38 C.F.R. §§ 3.102, 3.303(a). 5. The criteria for service connection for major depressive disorder are met. 38 U.S.C. §§ 1131, 5107(b); 38 C.F.R. §§ 3.102, 3.303(a). 6. The criteria for secondary service connection for migraine headaches are met. 38 U.S.C. §§ 1131, 5107(b); 38 C.F.R. §§ 3.102, 3.310(a). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from May 1977 to May 1980. These matters come before the Board of Veterans’ Appeals (Board) from December 2014 and June 2015 rating decisions. The Board notes that the AOJ adjudicated the bilateral foot and left hip issues on appeal on a de novo basis in a May 2016 SOC. Regardless, claims of service connection for bilateral foot disability and left hip disability were denied by way of final March 2007 and March 2011 rating decisions, respectively. Hence, the Board must initially determine whether new and material evidence has been submitted with regard to the claims of service connection for bilateral foot disability and left hip disability. See Jackson v. Principi, 265 F.3d 1366 (Fed. Cir. 2001). Only where the Board concludes that new and material evidence has been received does it have jurisdiction to consider the merits of these claims. Hickson v. West, 11 Vet. App. 374, 377 (1998). Accordingly, the Board has included the issues of whether new and material evidence has been received to reopen the claims of service connection for bilateral foot disability and left hip disability, as indicated above. As a final preliminary matter, the Veteran has been unemployed during the period since the effective dates of service connection for his service-connected back disability, lower extremity radiculopathy, hearing loss, and tinnitus, the evidence reflects that he has been unable to work (at least in part) due to his major depressive disorder and migraine headaches, and the Board is awarding service connection for these disabilities. Entitlement to a TDIU may be an element of an appeal for a higher initial rating. Rice v. Shinseki, 22 Vet. App. 447 (2009). Entitlement to a TDIU is raised where a veteran: (1) submits evidence of a medical disability; (2) makes a claim for the highest rating possible; and (3) submits evidence of unemployability. Roberson v. Principi, 251 F.3d 1378 (Fed. Cir. 2001); Rice v. Shinseki, 22 Vet. App. 447, 453 (2009). Given the evidence of current disabilities, the Veteran’s claim for the highest ratings possible for his service-connected back disability, lower extremity radiculopathy, hearing loss, and tinnitus, and the evidence of unemployability due to now service-connected disabilities, the issue of entitlement to a TDIU is properly before the Board under Roberson and Rice and the Board has expanded the appeal to include this issue. I. Application to Reopen Generally, an AOJ decision denying a claim which has become final may not thereafter be reopened and allowed. 38 U.S.C. § 7105 (d)(3). The exception to this rule is 38 U.S.C. § 5108, which provides that if new and material evidence is presented or secured with respect to a claim which has been disallowed, the Secretary shall reopen the claim and review the former disposition of the claim. 38 U.S.C. § 5108. New evidence is defined as existing evidence not previously submitted to VA, and material evidence is defined as existing evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. New and material evidence can be neither cumulative nor redundant of the evidence of record at the time of the last prior final denial of the claim sought to be reopened, and must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156 (a). The newly presented evidence is presumed to be credible for purposes of determining whether it is new and material. Justus v. Principi, 3 Vet. App. 510, 512-513 (1992). When evaluating the materiality of newly submitted evidence, the focus must not be solely on whether the evidence remedies the principal reason for denial in the last prior decision; rather the determination of materiality should focus on whether the evidence, taken together, could at least trigger the duty to assist or consideration of a new theory of entitlement. See Shade v. Shinseki, 24 Vet. App. 110, 117 (2010). For the purpose of determining whether new and material evidence has been presented to reopen a claim, the evidence for consideration is that which has been presented or secured since the last time the claim was finally disallowed on any basis. Evans v. Brown, 9 Vet. App. 273, 285 (1996). The application to reopen a claim of service connection for bilateral foot disability The AOJ initially denied the Veteran’s claim of service connection for bilateral foot disability in a March 2007 rating decision on the basis that there was no medical evidence of any such disability that was related to service. Specifically, the AOJ explained that there was no evidence of any treatment, complaints, or diagnosis of foot disability in the Veteran’s service treatment records and that his post-service treatment records did not reflect any treatment for foot disability. The Veteran submitted a timely NOD with the March 2007 decision in March 2008 and an SOC was issued in January 2009. Appellate review is initiated by an NOD and completed by a substantive appeal filed after an SOC has been furnished to an appellant. 38 U.S.C. § 7105 (a); 38 C.F.R. § 20.200. A substantive appeal must be filed within 60 days from the date of mailing of an SOC, or within the remainder of the one-year period from the date of mailing of the notification of the determination being appealed, whichever period ends later. 38 U.S.C. § 7105 (b)(2); 38 C.F.R. § 20.302 (b). In the absence of a properly perfected appeal, the AOJ may close the appeal and the decision becomes final. 38 U.S.C. § 7105 (d)(3); Roy v. Brown, 5 Vet. App. 554, 556 (1993); 38 C.F.R. § 19.32. The AOJ did so in this case, as evidenced by the fact that it did not certify to the Board the issue of entitlement to service connection for bilateral foot disability following the January 2009 SOC. As neither the Veteran nor his representative submitted any document that could be construed as a timely substantive appeal pertaining to the claim of service connection for bilateral foot disability following the January 2009 SOC, the AOJ closed the appeal. The AOJ did not certify the foot issue to the Board at that time and no further action was taken by VA to suggest that the issue was on appeal. Thus, the March 2007 rating decision became final. See 38 U.S.C. § 7105 (d)(3); Fenderson v. West, 12 Vet. App. 119, 128-31 (1999) (discussing the necessity of filing a substantive appeal which comports with governing regulations); 38 C.F.R. §§ 3.104, 20.302, 20.1103. The pertinent new evidence received since the March 2007 denial includes the report of an April 2015 VA foot examination. This additional evidence includes a report of bilateral foot pain radiating from the back which had its onset in service while running. The additional evidence pertains to an element of the claim that was previously found to be lacking and raises a reasonable possibility of substantiating the claim by indicating that the Veteran may have bilateral foot disability which may be related to service. The evidence is, therefore, new and material, and the claim of service connection for bilateral foot disability is reopened. II. Service Connection Service connection will be granted if the evidence demonstrates that current disability resulted from an injury suffered or disease contracted in active military, naval, or air service. 38 U.S.C. § 1131; 38 C.F.R. § 3.303(a). Establishing service connection generally requires competent evidence of three things: (1) current disability; (2) in-service injury or disease; and (3) a relationship between the two. Saunders v. Wilkie, 886 F.3d 1356, 1361 (Fed. Cir. 2018). Consistent with this framework, service connection is warranted for a disease first diagnosed after service when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Service connection is also provided for disability which is proximately due to, the result of, or aggravated by service-connected disability. Allen v. Brown, 7 Vet. App. 439 (1995); 38 C.F.R. § 3.310. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). 1. Entitlement to service connection for left shoulder strain, left knee patellofemoral pain syndrome and status post meniscectomy with scars, and major depressive disorder The Board concludes, for the following reasons, that the Veteran has current diagnoses of left shoulder strain, left knee patellofemoral pain syndrome and status post meniscectomy with scars, and major depressive disorder, that the diagnosed left shoulder and left knee disabilities are related to service, and that the diagnosed psychiatric disability began during active service. 38 U.S.C. §§ 1131, 5107(b); Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009); 38 C.F.R. § 3.303 (a). The reports of VA shoulder and knee examinations dated in April 2015 and a January 2017 Mental Disorders Disability Benefits Questionnaire (DBQ) (VA Form 21-0960P-2) completed by psychologist H. Henderson-Galligan shows the Veteran has current diagnoses of left shoulder strain, left knee patellofemoral pain syndrome and status post meniscectomy with scars, and major depressive disorder. His service treatment records reflect that in February 1978 he was evaluated for weakness (including in the left arm) after receiving a flu shot. He reported during the April 2015 VA knee examination that he experienced left knee pain in service while running with heavy gear. Moreover, the Veteran’s brother reported in a September 2016 letter that he observed the Veteran become anxious and more socially isolated while in service. The Veteran is competent to report left knee symptoms in service and his brother is competent to report his observations of the Veteran’s psychiatric symptoms in service. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006). Further, there is nothing to explicitly contradict these reports and these reports are consistent with the evidence of record and the circumstances of the Veteran’s service. Therefore, the reports of left knee and psychiatric symptoms in service are credible and such symptoms in service are conceded. 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.303 (a) (each disabling condition for which a veteran seeks service connection must be considered on the basis of the places, types, and circumstances of his service, as shown by the evidence). As for the etiology of the Veteran’s claimed left shoulder, left knee, and psychiatric disabilities, the physician who conducted the April 2015 VA shoulder and knee examinations opined that the Veteran’s left shoulder and left knee disabilities were likely (“at least as likely as not”/“50 percent or greater probability”) incurred in or caused by service. With respect to the shoulder, the examiner reasoned that it is well-documented that problems with the shoulder can remain chronic, as is evident with the Veteran. The examiner did not provide any specific rationale for his knee opinion. With respect to the Veteran’s major depressive disorder, Dr. Henderson-Galligan opined in a January 2017 statement that the major depressive disorder likely (“more likely than not”) began in service, continued uninterrupted since that time, and was caused by the Veteran’s service-connected left and right lower extremity radiculopathy, back disability, tinnitus, and hearing loss. She reasoned, in pertinent part, that there is a body of literature detailing the emergence of mental health symptoms within active service members. For instance, one study found that active military service impacts depression, anxiety, and quality of life satisfaction. Also, researchers revealed that guilt is a salient feature in mental health diagnoses of active duty military personnel. Active duty members become disillusioned with their personal and professional identities and, as a result of the chronic guilt and shame associated with their service identities, have more mental health events than civilians. There is also a body of literature detailing the connection between medical issues (like the issues that the Veteran experiences) and psychiatric disorder, similar to the Veteran’s major depressive disorder complaints. Specifically, there is a causal relationship between medical and psychiatric difficulty. Moreover, individuals with medical issues and major depressive disorder debilitation become disabled due to the holistic effect of medical and psychiatric disturbances. In addition, medical literature details the association between tinnitus and comorbid psychological disorders, including a high prevalence of anxiety and depression in those who suffer tinnitus. The consequences of tinnitus include emotional effects, reduced involvement in work-related activities, interpersonal problems, and decreased opportunities to engage in previously enjoyable activities. Dr. Henderson-Galligan’s January 2017 opinion is based upon an examination of the Veteran, a review of his claims file and medical literature, and consideration of his reported history, and it is accompanied by a specific rationale which is consistent with the evidence of record. Hence, this opinion is entitled to substantial probative weight. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008) (most of the probative value of a medical opinion comes from its reasoning; threshold considerations are whether the person opining is suitably qualified and sufficiently informed). Although the physician who provided the April 2015 opinions did not provide any detailed rationales for his opinions, he nonetheless concluded based upon examination of the Veteran, a review of his claims file, and consideration of his reported history, that his left shoulder disability and left knee disability were related to service. The April 2015 shoulder and knee opinions are therefore entitled to some probative weight. See Monzingo v. Shinseki, 26 Vet. App. 97, 106 (2012) (the fact that the rationale provided by an examiner “did not explicitly lay out the examiner’s journey from the facts to a conclusion,” did not render the examination inadequate); Acevedo v. Shinseki, 25 Vet. App. 286, 294 (2012) (medical reports must be read as a whole and in the context of the evidence of record). In sum, the Veteran has been diagnosed as having left shoulder strain, left knee patellofemoral pain syndrome and status post meniscectomy with scars, and major depressive disorder, there are probative medical opinions which indicate that his left shoulder disability and left knee disability are related to service, and there is a probative medical opinion which essentially indicates that his psychiatric disability had its onset in service due to symptoms/limitations that he was experiencing from his now service-connected disabilities. There is no specific medical opinion contrary to the conclusions that the current left shoulder disability and left knee disability are related to service and that the current psychiatric disability had its onset in service. Hence, the Board finds that the preponderance of the evidence is in favor of conclusions that the current left shoulder strain and left knee patellofemoral pain syndrome and status post meniscectomy with scars were incurred in service and that the current major depressive disorder had its onset in service. Entitlement to service connection for these disabilities is, therefore, warranted. 2. Entitlement to service connection for migraine headaches, secondary to tinnitus and major depressive disorder The Board concludes, for the following reasons, that the Veteran has a current diagnosis of migraine headaches and that this disability is proximately due to his service-connected tinnitus and now service-connected major depressive disorder. A February 2017 Headaches DBQ (VA Form 21-0960C-8) completed by physician H. Skaggs, M.D. shows the Veteran has a current diagnosis of migraine headaches. Dr. Skaggs opined that the Veteran’s headaches were likely (“more likely than not”) caused by his tinnitus and depression. He reasoned that the report of an April 2015 VA audiological examination specifically noted that tinnitus caused the Veteran to experience headaches. Also, his medical records revealed that he experienced various symptoms associated with major depressive disorder. The International Journal of Audiology reports that the frequency of headaches is strongly correlated with the severity of tinnitus. Also, other medical literature explores the positive correlation between headaches and depression. Dr. Skaggs’ February 2017 opinion is based upon an examination of the Veteran, a review of his claims file and medical literature, and consideration of his reported history, and it is accompanied by a specific rationale which is consistent with the evidence of record. Hence, this opinion is entitled to substantial probative weight. See Nieves-Rodriguez, 22 Vet. App. at 304. In light of Dr. Skaggs’ February 2017 opinion, the Board finds that the preponderance of the evidence is in favor of a conclusion that the Veteran’s current migraine headaches are proximately due to his service-connected tinnitus and now service-connected major depressive disorder. There is no medical opinion contrary to this conclusion. Hence, service connection for migraine headaches, as secondary to service-connected tinnitus and major depressive disorder, is warranted. REASONS FOR REMAND 1. The application to reopen a claim of service connection for left hip disability, entitlement to service connection for right shoulder disability, neck disability, right hip disability, right knee disability, bilateral foot disability, bilateral leg disability (other than radiculopathy and left knee patellofemoral pain syndrome and status post meniscectomy with scars), and liver disability, entitlement to an initial compensable rating for bilateral hearing loss, and entitlement to an initial rating higher than 10 percent for tinnitus are remanded. A November 2012 decision from the Social Security Administration (SSA) indicates that the Veteran has been awarded SSA disability and/or supplemental security income (SSI) benefits. A remand is required to allow VA to request these outstanding and potentially relevant records. Also, the evidence indicates that there may be outstanding relevant VA treatment records. The most recent VA treatment records in the claims file are from the VA Medical Center (VAMC) in Fayetteville, North Carolina and are dated to March 2011. Any VA treatment records are within VA’s constructive possession, and are considered potentially relevant to the remaining issues on appeal. A remand is required to allow VA to obtain them. 2. Entitlement to service connection for sleep disability (including sleep apnea and insomnia) and disability manifested by memory loss (other than major depressive disorder), to include as secondary to service-connected major depressive disorder, are remanded. The Veteran’s medical records include reports of sleep problems and impaired memory. In particular, the January 2017 Mental Disorders DBQ includes these symptoms as being associated with the Veteran’s now service-connected major depressive disorder. The Board cannot make a fully-informed decision on the issues of entitlement to service connection for sleep disability and disability manifested by memory loss because no VA examiner has determined whether the Veteran has any such disabilities other than major depressive disorder or opined whether any such disabilities were incurred in service or are caused or aggravated by service-connected disability. Hence, a remand is necessary to afford the Veteran appropriate VA examinations. 38 U.S.C. § 5103A (d); McLendon v. Nicholson, 20 Vet. App. 79 (2006). Also, all outstanding SSA records and VA treatment records should be secured upon remand. 3. Entitlement to an initial rating higher than 20 percent for lumbar strain, degenerative disc disease, and degenerative joint disease and entitlement to initial ratings higher than 20 percent for left and right lower extremity radiculopathy are remanded. While the Veteran was most recently afforded a VA examination regarding his service-connected back disability in April 2015, the examination does not comply with the requirements in Sharp v. Shulkin, 29 Vet. App. 26, 34-36 (2017) and Correia v. McDonald, 28 Vet. App. 158, 168 (2016). As for Sharp, the Veteran reported flare ups of radiating back pain, stiffness, and decreased range of motion. The examiner stated that an opinion as to the extent of any additional functional impairment of the back in terms of range of motion loss during flare ups could not be provided, but this opinion was only based on the fact that the Veteran was not experiencing a flare up at the time of the examination. Moreover, the April 2015 examination report does not contain passive range of motion measurements or pain on both weight-bearing and non weight-bearing testing. Hence, the Veteran should be afforded a new VA back examination upon remand. Moreover, as additional information will be obtained during the requested VA back examination which is pertinent to the issues of entitlement to higher initial ratings for left and right lower extremity radiculopathy, Board action on these matters at this time would be premature. Hence, these matters are being remanded, as well. Also, all outstanding SSA records and VA treatment records should be secured upon remand. 4. Entitlement to a TDIU due to service-connected disabilities is remanded. Since the AOJ’s implementation of the Board’s award of service connection for left shoulder strain, left knee patellofemoral pain syndrome and status post meniscectomy with scars, major depressive disorder, and migraine headaches, and a decision on the other remanded service connection and higher rating issues could significantly impact a decision on the issue of entitlement to a TDIU, the issues are inextricably intertwined. The TDIU claim should be adjudicated in the first instance by the AOJ, to include appropriate notification and a request for the Veteran to submit a formal application for a TDIU (VA Form 21-8940). Also, all outstanding SSA records and VA treatment records should be secured upon remand. 5. Entitlement to earlier effective dates for the award of service connection for bilateral hearing loss, tinnitus, left lower extremity radiculopathy, right lower extremity radiculopathy, and lumbar strain, degenerative disc disease, and degenerative joint disease are remanded. The Veteran submitted a timely NOD with the effective dates assigned for the award of service connection for bilateral hearing loss, tinnitus, left lower extremity radiculopathy, right lower extremity radiculopathy, and lumbar strain, degenerative disc disease, and degenerative joint disease in the June 2015 rating decision, but an SOC has not yet been issued. A remand is required for the AOJ to issue an SOC. See 38 C.F.R. § 19.9(c) (2018), codifying Manlincon v. West, 12 Vet. App. 238 (1999). Also, because a decision on the remanded issues of entitlement to earlier effective dates for the award of service connection for bilateral hearing loss, tinnitus, left lower extremity radiculopathy, right lower extremity radiculopathy, and lumbar strain, degenerative disc disease, and degenerative joint disease could significantly impact a decision on the issues of entitlement to higher initial ratings for these disabilities, the issues are inextricably intertwined. The issues of entitlement to higher initial ratings for bilateral hearing loss, tinnitus, left lower extremity radiculopathy, right lower extremity radiculopathy, and lumbar strain, degenerative disc disease, and degenerative joint disease should not be returned to the Board until after the Veteran has perfected an appeal of the matters of entitlement to earlier effective dates for the award of service connection for these disabilities, or until the time period for doing so has expired. The matters are REMANDED for the following action: 1. Send the Veteran and his representative an SOC that addresses the issues of entitlement to earlier effective dates for the award of service connection for bilateral hearing loss, tinnitus, left lower extremity radiculopathy, right lower extremity radiculopathy, and lumbar strain, degenerative disc disease, and degenerative joint disease. If the Veteran perfects an appeal by submitting a timely VA Form 9, the issues should be returned to the Board for further appellate consideration. Do not return to the Board the issues of entitlement to higher initial ratings for bilateral hearing loss, tinnitus, left lower extremity radiculopathy, right lower extremity radiculopathy, and lumbar strain, degenerative disc disease, and degenerative joint disease until after the Veteran has perfected an appeal of the matters of entitlement to earlier effective dates for the award of service connection for those disabilities, or until after the time period for doing so has expired, whichever occurs first. 2. After implementing the Board’s decision above, including assigning the appropriate initial disability ratings for left shoulder strain, left knee patellofemoral pain syndrome and status post meniscectomy with scars, major depressive disorder, and migraine headaches, send the Veteran a notice letter which provides him with notice as to the information and evidence that is required to substantiate his claim for a TDIU. A copy of this letter must be included in the file. 3. Ask the Veteran to complete a formal application for a TDIU and to report his education and employment history and earnings, especially for the period since May 2013. 4. Ask the Veteran to identify the location and name of any VA or private medical facility where he has received treatment for foot disability, liver disability, right shoulder disability, hip disability, neck disability, right knee disability, sleep disability, memory loss, leg disability, back disability, lower extremity neurological disability, hearing loss, and tinnitus, to include the dates of any such treatment. Ask the Veteran to complete a VA Form 21-4142 for all records of his treatment for foot disability, liver disability, right shoulder disability, hip disability, neck disability, right knee disability, sleep disability, memory loss, leg disability, back disability, lower extremity neurological disability, hearing loss, and tinnitus from any sufficiently identified private treatment provider from whom records have not already been obtained. Make two requests for any authorized records, unless it is clear after the first request that a second request would be futile. 5. Obtain the Veteran’s federal disability and/or SSI records from the SSA. Document all requests for information as well as all responses in the claims file. 6. Obtain the Veteran’s VA treatment records from the VAMC in Fayetteville, North Carolina for the period since March 2011; and all such relevant records from any other sufficiently identified VA facility. 7. After all efforts have been exhausted to obtain and associate with the claims file any SSA records and additional treatment records, schedule the Veteran for an examination by an appropriate clinician to determine the nature and etiology of any current sleep disability. The examiner must opine whether any sleep disability experienced by the Veteran since approximately May 2013 (including, but not limited to, sleep apnea and insomnia) at least as likely as not (1) began during active service; (2) is related to an in-service injury, event, or disease; (3) is caused by service-connected major depressive disorder; or (4) is aggravated by service-connected major depressive disorder. The examiner must provide reasons for each opinion given. 8. After all efforts have been exhausted to obtain and associate with the claims file any SSA records and additional treatment records, schedule the Veteran for an examination by an appropriate clinician to determine the nature and etiology of any current disability manifested by memory loss, other than major depressive disorder. The examiner must opine whether any disability manifested by memory loss other than major depressive disorder experienced by the Veteran since approximately May 2013 at least as likely as not (1) began during active service; (2) is related to an in-service injury, event, or disease; (3) is caused by service-connected major depressive disorder; or (4) is aggravated by service-connected major depressive disorder. The examiner must provide reasons for each opinion given. 9. After all efforts have been exhausted to obtain and associate with the claims file any SSA records and additional treatment records, schedule the Veteran for an examination by an appropriate clinician of the current severity of his service-connected back disability and associated lower extremity radiculopathy. The examiner must test the Veteran’s active motion, passive motion, and pain with weight-bearing and without weight-bearing of the thoracolumbar spine. The examiner must also attempt to elicit information regarding the severity, frequency, and duration of any flare-ups, and the degree of functional loss during flare-ups. To the extent possible, the examiner should identify any symptoms and functional impairments due to the service-connected back disability and lower extremity radiculopathy alone and discuss the effect of the Veteran’s disabilities on any occupational functioning and activities of daily living. If it is not possible to provide a specific measurement, or an opinion regarding flare-ups, symptoms, or functional impairment without speculation, the examiner must 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), a deficiency in the record (additional facts are required), or the examiner (does not have the knowledge or training). The examiner may not rely solely upon his or her inability to personally observe the Veteran during a period of flare up. The examiner must provide reasons for any opinion given. Jonathan Hager Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD B. Elwood, Counsel