Citation Nr: 1806569 Decision Date: 02/01/18 Archive Date: 02/14/18 DOCKET NO. 14-11 767 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Muskogee, Oklahoma THE ISSUES 1. Entitlement to an effective date earlier than January 25, 2013 for the award of service connection for a left knee disability. 2. Whether new and material evidence has been received to reopen a claim for entitlement to service connection for migraine headaches. 3. Whether new and material evidence has been received to reopen a claim for entitlement to service connection for a lumbar spine disability 4. Whether new and material evidence has been received to reopen a claim for entitlement to service connection for a right knee disability. 5. Entitlement to a compensable rating for bilateral hearing loss disability. 6. Entitlement to an initial rating in excess of 10 percent for a left knee disability. 7. Entitlement to service connection for a right ankle disability, to include as secondary to a left foot degenerative arthritis (left foot disability). 8. Entitlement to service connection for a cervical spine disability. 9. Entitlement to service connection for sleep apnea, to include as secondary to an acquired psychiatric disorder and migraine headaches. 10. Entitlement to service connection for a gastrointestinal disability, to include as secondary to the Veteran's service-connected disabilities. 11. Entitlement to service connection for a kidney disability, to include as secondary to the Veteran's service-connected disabilities. 12. Entitlement to service connection for an acquired psychiatric disorder, to include posttraumatic stress disorder (PTSD), anxiety, and depression. 13. Entitlement to service connection for migraine headaches, to include as secondary to bilateral hearing loss, bilateral tinnitus, and/or a cervical spine disability. 14. Entitlement to service connection for a lumbar spine disability, to include as secondary to a left foot disability. 15. Entitlement to service connection for a right knee disability. REPRESENTATION Veteran represented by: Robert C. Brown, Jr., Attorney at Law WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD A. Keninger, Associate Counsel INTRODUCTION The Veteran served on active duty from January 1988 to November 1989. These matters come before the Board of Veterans' Appeals (Board) from a January 2014 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Muskogee, Oklahoma. A Statement of the Case (SOC) was issued by the RO in March 2014. The Veteran testified at a videoconference hearing before the undersigned Veteran's Law Judge in May 2017. A transcript of the hearing was prepared and associated with the claims file. Concerning the Veteran's claim for service connection for an acquired psychiatric disorder, to include PTSD, anxiety, and depression, in Clemons v. Shinseki, the United States Court of Appeals for Veterans Claims (Court) noted the Board should consider alternative current disorders within the scope of the filed claim. Clemons v. Shinseki, 23 Vet. App. 1 (2009). The Board has preliminarily reviewed the case at hand and finds that Clemons is applicable here. The RO has separately denied, and the claim has been certified to the Board, as claims for PTSD, anxiety, and depression. In light of Clemons, the Board has framed the issue as entitlement to service connection for an acquired psychiatric disorder, to include PTSD, anxiety and depression, as reflected on the title page. A May 2017 rating decision granted the Veteran's claim for entitlement to service connection for a left foot disability, which included the Veteran's claim for a left ankle disability. Because the Veteran was granted the benefit he sought in regard to his left ankle disability, this claim is no longer on appeal. See Grantham v. Brown, 114 F.3d 1156, 1158-59 (Fed. Cir. 1997). The issues of entitlement to (1) a compensable rating for bilateral hearing loss; (2) a rating in excess of 10 percent for a left knee disability; (3) service connection for a right ankle disability, to include as secondary to a left foot disability; (4) service connection for a cervical spine disability; (5) service connection for sleep apnea, to include as secondary to an acquired psychiatric disorder and migraine headaches; (6) service connection for a gastrointestinal disability, to include as secondary to service-connected disabilities; (7) service connection or a kidney disability, to include as secondary to service-connected disabilities; (8) service connection for an acquired psychiatric disorder, to include PTSD, anxiety, and depression; (9) service connection for migraine headaches, to include as secondary to bilateral hearing loss, bilateral tinnitus, and/or a cervical spine disability; (10) service connection for a lumbar spine disability, to include as secondary to a left foot disability; and (11) service connection for a right knee disability are addressed in the REMAND portion of the decision below and are REMANDED to the Agency of Original Jurisdiction (AOJ). FINDINGS OF FACT 1. In an August 2008 rating decision, service connection for a left knee disability, migraine headaches, a lumbar spine disability, and a right knee disability was denied. The Veteran was notified of the August 2008 decision, including his right to appeal. The Veteran did not appeal this decision, and it is final. 2. In June 2009, the Veteran contacted VA requesting to reopen his claims for service connection for a left knee disability, migraine headaches, a lumbar spine disability, and a right knee disability (the Veteran did not indicate a disagreement with the August 2008 rating decision). That same month, VA informed the Veteran that these claims had been denied, and he had been informed of such in an August 22, 2008, letter. It told him he had until August 22, 2009, to submit additional evidence. That same month, the Veteran submitted an Affidavit asking that VA "re-examine" his medical records and reimburse him for the damages he sustained during in-service training. The Veteran did not submit new and material evidence to support his claim, and the RO denied the claims in February 2010. The Veteran was provided his appellate rights, and he did not initiate a timely appeal or submit new and material evidence within one year of the February 2010 notification. 3. In May 2011, the Veteran attempted to reopen his claims for service connection for a left knee disability, migraine headaches, a lumbar spine disability, and a right knee disability. In August 2011, the RO administratively denied reopening the claims for service connection for a left knee disability, migraine headaches, a lumbar spine disability, and a right knee disability. The Veteran was provided his appellate rights, and he did not initiate a timely appeal or submit new and material evidence within one year of the August 2011 notification. 4. On January 25, 2013, the Veteran contacted VA and requested to reopen the claims for service connection for a left knee disability, migraine headaches, a lumbar spine disability, and a right knee disability. 5. Evidence submitted since the August 2011 decision that administratively denied reopening the claim for service connection for migraine headaches relates to an unestablished fact necessary to substantiate the claim. 6. Evidence submitted since the August 2011 decision that administratively denied reopening the claim for service connection for a lumbar spine disability relates to an unestablished fact necessary to substantiate the claim. 7. Evidence submitted since the August 2011 decision that administratively denied reopening the claim for service connection for a right knee disability relates to an unestablished fact necessary to substantiate the claim. CONCLUSIONS OF LAW 1. The August 2008 rating decision denying service connection for a left knee disability, migraine headaches, a lumbar spine disability, and a right knee disability became final and the February 2010 and August 2011 administrative denials of reopening the claims for service connection for a left knee disability, migraine headaches, a lumbar spine disability, and a right knee disability are final. 38 U.S.C. § 7105 (2012); 38 C.F.R. §§ 3.156, 20.302, 20.1103 (2017). 2. The criteria for an effective date earlier than January 25, 2013 for the award of service connection for a left knee disability have not been met. 38 U.S.C. §§ 5101, 5107, 5110, 7105 (2012); 38 C.F.R. §§ 3.151, 3.155, 3.400 (2017). 3. New and material evidence has been received to reopen the claims of entitlement for service connection for migraine headaches, a lumbar spine disability, and a right knee disability. 38 U.S.C. §§ 5108, 7105 (2012); 38 C.F.R. §§ 3.156(a), 20.1103 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Duties to Notify and Assist Neither the Veteran nor the representative has raised any issues with the duty to notify or duty to assist. See Scott v McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that "the Board's obligation to read filings in a liberal manner does not require the Board . . . to search the record and address procedural arguments when the Veteran fails to raise them before the Board."); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to duty to assist argument). II. Effective Date - Left Knee The Veteran contends that he is entitled to an earlier effective date for the grant of service connection for a left knee disability. Except as otherwise provided, the effective date of an award of compensation based on an original claim, a claim reopened after final disallowance, or a claim for increase shall be fixed in accordance with the facts found, but shall be no earlier than the date of receipt of the application thereof. 38 U.S.C. § 5110(a). The statutory provision is implemented by regulation, which provides that the effective date for an evaluation and award of compensation based on an original claim, a claim reopened after final disallowance, or a claim for increase will be the date of receipt of the claim or the date entitlement arose, whichever is the later. 38 C.F.R. § 3.400. The Veteran initially filed a formal claim for service connection for a left knee disability in June 2008. In August 2008, the RO denied service connection for a left knee disability. The Veteran was notified of this determination that same month, along with his right to appeal. In June 2009, the Veteran contacted the RO to reopen his claim for service connection for a left knee disability. The VA Form 119, Report of Contact, did not document a disagreement with the August 2008 rating decision. In a June 2009 letter from VA, the Veteran was notified that he would need to submit new and material evidence in regard to his left knee disability claim or the previously-considered claim would be denied. That same month, the Veteran submitted a document entitled, "Affidavit," wherein he asked that VA "re-examine my medical records and reimburse me for damages I sustained as a direct result of my extensive training...." In September 2009, the Veteran submitted a VA Form 21-4142, Authorization and Consent to Release Information, for multiple private physicians/medical facilities. In October 2009, VA informed the Veteran that his form had not been properly completed, as it did not contain addresses or contained an incorrect address and that the Veteran should complete one form for each physician or facility. The Veteran did not provide additional information. In a February 2010 notification letter, VA informed the Veteran that his previously-denied claim of entitlement to service connection for a left knee disability was not reopened. The Veteran was provided his appellate rights, and he did not initiate a timely appeal or submit new and material evidence within one year of the February 2010 notification. In May 2011, the Veteran attempted to reopen his claim for service connection for a left knee disability. In June 2011, VA informed the Veteran of the bases for the prior denial of service connection and that he needed to submit new and material evidence. In August 2011, the RO administratively denied reopening the claim for service connection for a left knee disability. The Veteran was provided his appellate rights, and he did not initiate a timely appeal or submit new and material evidence within one year of the August 2011 notification. The Veteran next submitted an application to reopen the claim for service connection for a left knee disability on January 25, 2013. In a January 2014 rating decision, the RO reopened the claim and granted service connection for a left knee disability, effective January 25, 2013. The Veteran contends that he is entitled to an earlier effective date for the award of service connection for the left knee disability. At the May 2017 hearing, the Veteran, through his representative, asked that the undersigned review the document that had been labeled as an "Affidavit" and see if the Veteran's request to have his medical records "re-examined" was a notice of disagreement. At the time of the submission of the Affidavit, the U.S. Code of Federal Regulations defined a notice of disagreement as: A written communication from a claimant or his or her representative expressing dissatisfaction or disagreement with an adjudicative determination by the agency of original jurisdiction and a desire to contest the result will constitute a Notice of Disagreement. While special wording is not required, the Notice of Disagreement must be in terms which can be reasonably construed as disagreement with that determination and a desire for appellate review. 38 C.F.R. § 20.201 (2009). The Board has reviewed the Affidavit from beginning to end and finds that it was not a notice of disagreement. After the Veteran called VA to request that his claim for service connection for a left knee disability be reopened, VA sent the Veteran a letter on June 22, 2009, wherein VA informed him that he had until August 22, 2009, to submit additional evidence, which would be considered. The Veteran then sent in the Affidavit, which reiterated his believe that he incurred a left knee disability from training he underwent in service. In September 2009, the Veteran submitted a statement and provided a VA Form 21-4142, wherein he listed multiple physicians and had no addresses for the physicians. In October 2009, VA explained to the Veteran that there was no address contained and that he should list only one physician or facility on each form. VA gave him 30 days to submit additional evidence. The Veteran did not submit any additional evidence between then and the February 2010 administrative denial of the claim for service connection for a left knee disability. The February 2010 notification letter informed him that he could appeal the decision. He did not appeal it. The Board finds as fact that the August 2008 rating decision was not appealed. The Veteran contacted VA via a phone call within one year indicating his intent to reopen the claim, and then submitted the Affidavit, but there was no notice of disagreement within one year of the August 2008 rating decision. Thus the August 2008 decision became final. After the February 2010 notification of the administrative denial of the claim for service connection for the left knee disability, the Veteran did not appeal that determination, and that became final as well. The same conclusion applies to his subsequent request to reopen the claim in May 2011, which was administratively denied in August 2011. The Veteran did not appeal that decision as well. After a careful review of the evidence of record, the Board finds that the evidence does not support an effective date earlier than January 25, 2013, for the award of service connection for a left knee disability. The Board finds that the June 2008 rating decision and the February 2010 and May 2011 administrative denials all became final when the Veteran did not appeal any of these decisions, nor submit new and material evidence within one year of each of these determinations. The effect of such finality is to preclude an award of an effective date prior to the most recent decision, which was the August 2011 decision. See Leonard v. Principi, 17 Vet. App. 447 (2004); Sears v. Principi, 16 Vet. App. 244, 246-50 (2002), aff'd, 349 F.3d 1326 (Fed. Cir. 2003); Flash v. Brown, 8 Vet. App. 332 (1995). Additional service records have not been received since the decisions were made, and, therefore, the provisions of 38 C.F.R. § 3.156(c) do not apply. As such, the August 2011 decision (denying reopening the claim for service connection for a left knee disability) became final. 38 U.S.C. § 7105; 38 C.F.R. §§ 3.156, 20.302, 20.1103. In this case, there is no legal authority for the Board to assign an earlier effective date, as the RO has already assigned the earliest possible effective date for the award of service connection. As discussed above, the August 2011 decision is final, and, as such, it is no longer the appropriate point from which to determine the effective date of an award. See 38 C.F.R. § 3.400; Rudd, 20 Vet. App. at 296. Indeed, in Sears v. Principi, the United States Court of Appeals for the Federal Circuit (Federal Circuit) held that the earliest possible effective date of service connection for a reopened claim was the date the reopened claim was received. Sears v. Principi, 349 F.3d 1326 (Fed. Cir. 2003). As the Federal Circuit explained, "[t]he statutory framework simply does not allow for the Board to reach back to the date of the original claim as a possible effective date for an award of service-connected benefits that is predicated upon a reopened claim." Id. at 248. The Board finds that there was no communication received after the August 2011 decision became final and prior to the January 25, 2013 claim that established an informal or formal application to reopen the previously denied claim of entitlement to service connection for a left knee disability. On January 25, 2013, the Veteran filed a formal application to reopen the claim for entitlement to service connection for a left knee disability. Although entitlement to the benefit may have arisen earlier than January 25, 2013, the request to reopen the claim for service connection for a left knee disability was not received until January 25, 2013 after the August 2011 decision became final. The statute provides that the effective date of an award of compensation based on a claim reopened after final disallowance shall be fixed in accordance with the facts found, but shall be no earlier than the date of receipt of the application therefor. 38 U.S.C. § 5110(a). Because the application to reopen the claim for service connection for a left knee disability was not received until January 25, 2013, and the effective date can be no earlier than the claim to reopen, an earlier effective date for the grant of service connection for a left knee disability is legally precluded. III. New and Material Evidence Prior unappealed decisions of the Board and the RO are final. 38 U.S.C. §§ 7104, 7105(c); 38 C.F.R. §§ 3.160(d), 20.302(a), 20.1100, 20.1103, 20.1104. If, however, new and material evidence is presented or secured with respect to a claim which has been disallowed, VA shall reopen the claim and review the former disposition of the claim. Manio v. Derwinski, 1 Vet. App. 145 (1991). New evidence means existing evidence not previously submitted to agency decision makers. 38 C.F.R. § 3.156(a). Material evidence means existing evidence that, by itself or 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. Id. New and material evidence need not be received as to each previously unproven element of a claim in order to justify reopening thereof; the threshold for determining whether new and material evidence raises a reasonable possibility of substantiating a claim is "low." Shade v. Shinseki, 24 Vet. App. 110, 117-20 (2010). The RO denied service connection for migraine headaches, a lumbar spine disability and a right knee disability in August 2008. In June 2009, the Veteran contacted the RO requesting to reopen his claim for migraine headaches, a lumbar spine disability, and a right knee disability. The VA Form 119 did not document a disagreement with the August 2008 rating decision. In June 2009, the Veteran was notified that he would need to submit new and material evidence or the previously considered claim would be denied. The Veteran submitted a VA Form 21-4142, Authorization and Consent to Release Information, for multiple private physicians/medical facilities in September 2009. In October 2009, VA informed the Veteran that his form had not been properly completed as it did not contain an address or did not contain a correct address. The Veteran was asked to list only one physician or facility on each form. VA gave him 30 days to submit additional evidence. The Veteran did not provide additional information and the Veteran's claim was not reopened. No appeal was completed and the August 2008 rating decision became final. 38 U.S.C. § 7105; 38 C.F.R. § 20.1103. In February 2010, when no new and material evidence had been received, the RO administratively denied reopening the claims for service connection for migraine headaches, a lumbar spine disability and a right knee disability. The Veteran was provided his appellate rights and he did not initiate a timely appeal or submit new and material evidence within one year of the February 2010 notification. In May 2011, the Veteran attempted to reopen his claims for service connection for migraine headaches, a lumbar spine disability, and a right knee disability. In August 2011, the RO administratively denied reopening the claims for service connection for migraine headaches, a lumbar spine disability, and a right knee disability. The Veteran was provided his appellate rights and he did not initiate a timely appeal or submit new and material evidence within one year of the August 2011 notification. In January 2013, the Veteran requested to reopen his claims for entitlement to service connection for migraine headaches, a lumbar spine disability, and a right knee disability. The Board will address each disability separately. (a) Migraine Headaches The RO denied service connection for migraine headaches in August 2008 because the Veteran did not have a current diagnosis of migraine headaches, nor was there a showing that there was a nexus between the claimed disability and military service. As noted above, the RO administratively denied reopening this claim in February 2010 and August 2011 because no new and material evidence had been submitted. Since the August 2011 decision, the Veteran has submitted evidence that he has a current migraine headaches disability. At a December 2013 VA examination, the Veteran was diagnosed with migraine headaches. This evidence is new since it was submitted after the August 2011 decision denying reopening the claim for service connection and is neither cumulative nor redundant of evidence considered at the time of the August 2011 rating decision. This evidence is also material since it relates to the reasons for the prior denial (lack of diagnosis) and raises a reasonable possibility of substantiating the Veteran's claim. (b) Lumbar Spine The RO denied service connection for a lumbar spine disability in August 2008 because the Veteran's service treatment records (STRs) did not show treatment records for a lumbar spine disability or diagnosis of a lumbar spine disability in service, nor did the Veteran have a current lumbar spine disability. As noted above, the RO administratively denied reopening this claim in February 2010 and August 2011 because no new and material evidence had been submitted. Since the August 2011 decision, the Veteran has submitted evidence that he has a current lumbar spine disability. In August 2017, the Veteran submitted a private medical examination indicating a current diagnosis of lumbosacral strain, invertebral disc syndrome, and degenerative arthritis of the lumbar spine with right and left sciatic nerve impairment. This evidence is new since it was submitted after the August 2011 decision denying reopening the claim for service connection and is neither cumulative nor redundant of evidence considered at the time of the August 2011 decision. This evidence is also material since it relates to the reasons for the prior denial (lack of diagnosis) and raises a reasonable possibility of substantiating the Veteran's claim. (c) Right Knee The RO denied service connection for a right knee disability in August 2008 because the Veteran's STRs did not show treatment records for a right knee disability or diagnosis of a right knee disability in service, nor did the Veteran have a current right knee disability. As noted above, the RO administratively denied reopening this claim in February 2010 and August 2011 because no new and material evidence had been submitted. Since the August 2011 decision, the Veteran has submitted evidence that he has a current right knee disability. At a VA examination in December 2013, the Veteran was diagnosed with a right knee strain, status post debridement surgery. This evidence is new since it was submitted after the August 2011 decision denying reopening the claim for service connection and is neither cumulative nor redundant of evidence considered at the time of the August 2011 decision. This evidence is also material since it relates to the reasons for the prior denial (lack of diagnosis) and raises a reasonable possibility of substantiating the Veteran's claim. ORDER Entitlement to an effective date earlier than January 25, 2013 for the award of service connection for a left knee disability is denied. The application to reopen the claim for service connection for migraine headaches is granted. The appeal is granted to this extent only. The application to reopen a claim for entitlement to service connection for a lumbar spine disability is granted. The appeal is granted to this extent only. The application to reopen a claim for entitlement to service connection for a right knee disability is granted. The appeal is granted to this extent only. REMAND (a) Missing Records The Rating Decision issued by the RO in January 2014 indicates that the Veteran's claims file contains treatment records from the Oklahoma City VAMC from June 2011 to November 2013. These records do not appear to be associated with the Veteran's claims file at this time. There is an entry in VBMS with a document type, "VAMC Other Output / Reports," which has a couple of 2011 entries, a 2012 entry, and then there is a jump to a September 2015 entry. Thus, there are missing VA treatment record from 2011 to September 2015, which must be obtained prior to a decision as they evidence suggests these records contain treatment related to the Veteran's cervical spine disability. In the January 2014 rating decision, the RO wrote, "Oklahoma City VAMC treatment records show complaints of neck pain and state that you injured your neck in a work[-]related incident in 2009 and were receiving worker's compensation for this injury." Records from the Veteran's work-related injury are relevant to the issue, and the Veteran should provide VA with permission to obtain the medical records pertaining to his workers compensation claim pertaining to a neck injury or he may submit them himself. In a September 2017 VA treatment record, the examiner noted the Veteran's past surgical history, which showed the following surgeries, which are relevant to the issues on appeal: 1. Anterior cervical discectomy and fusion surgery in 2009; 2. Bilateral knee scope 3. Lumbar laminectomy in 1997 The Veteran should provide VA with permission to obtain the medical records pertaining these three surgeries or he may submit the records himself. (b) Increased Rating - Left Knee Disability and Bilateral Hearing Loss Disability The Veteran last received a VA examination in December 2013 for his left knee disability and bilateral hearing loss. Since that time, the Veteran has indicated, at his May 2017 hearing and otherwise, that these disabilities have increased in severity and, as such, a new VA examination is warranted to determine the current severity of the Veteran's left knee disability and bilateral hearing loss. (c) Service Connection - Right Ankle The Veteran received a VA examination for his right ankle in December 2013 and was diagnosed with a right ankle strain. However, no nexus opinion was provided by the VA examiner. Additionally, the Veteran was granted service connection for a left foot disability following a November 2016 surgery, and at his hearing in May 2017, the Veteran testified that his right ankle disability has gotten worse due to this left foot surgery. The Board finds that the December 2013 VA examination was inadequate and a new VA examination is warranted to determine the current nature and etiology of the Veteran's right ankle disability. (d) Service Connection - Cervical Spine The Veteran has not been provided a VA examination for his cervical spine disability. The Veteran contends that he hurt his neck while serving as a paratrooper, noting one specific incident where he had a heavy drop and was hit with heavy equipment that was being dropped at the same time. Following the drop, the Veteran testified he immediately began a field training exercise and was not able to go to sick call but was given a shot of morphine. The Veteran contends that since that incident, he has experienced neck pain on a consistent basis until he was injured on the job in 2009, resulting in neck surgery in 2011. A private medical examination submitted by the Veteran in August 2017 indicates the Veteran has been diagnosed with a cervical strain and a right brachial plexus impingement. As such, a new VA examination is warranted to determine the current nature and etiology of the Veteran's cervical spine disability. (e) Service Connection - Gastrointestinal and Kidney Disabilities The Veteran had a VA examination in December 2013 and no kidney or gastrointestinal disability was diagnosed. However, at his hearing in May 2017, the Veteran contends he has had recent gastrointestinal and kidney diagnoses since December 2013. Specifically, the Veteran reported that he has kidney disease and his colon was perforated and bleeding from taking so many medications related to his other service-connected disabilities and/or claimed service-connected disabilities. Private medical records indicate the Veteran was seen for diverticulitis in February 2016. As such, a VA examination is warranted to determine the current nature and etiology of the Veteran's gastrointestinal and kidney disabilities. (f) Service Connection - Acquired Psychiatric Disorder When the Veteran initially filed in his claim in January 2013, he noted a parachute accident wherein a fellow service-member was killed, which the Veteran reported he had witnessed. VA attempted to verify this stressor. The Defense Personnel Records Information Retrieval System (DPRIS) response indicated that the name the Veteran reported could not be verified, but there was a death due to a parachute incident during the Veteran's time in service and noted there may be a criminal investigation related to the incident. An address was provided to request documentation in regards to the incident, though the file does not indicate VA requested any further information. Since the Veteran was issued an SOC in March 2014, the Veteran has indicated two other potential stressors. First, an incident in which he was assaulted by fellow service members, which is documented in the Veteran's STRs in July 1989. Second, the Veteran reports an incident in which an artillery shell went off in the chamber in close proximity to the Veteran. He reported that four people were injured. VA has not attempted to verify either of these newly reported stressors, nor were they considered when denying the Veteran's claim in March 2014. The Board notes that the Veteran has not been provided a VA examination for any psychiatric disability, and the Veteran's representative requested one be provided at the May 2017 hearing. The Veteran currently takes medication for anxiety and sees a psychiatrist at VA. Additionally, the Veteran reports that he continues to think about the stressors he has indicated, particularly the incident in which the artillery round went off in the chamber. As such, a VA examination is warranted to determine the nature and etiology of any acquired psychiatric disorder. (g) Service Connection - Migraine Headaches The Veteran was provided a VA examination for migraine headaches in December 2013. The VA examiner opined that the Veteran's migraine headaches were less likely than not incurred in service because there is not a diagnosis of migraine headaches in service and STRS show only one incident in his service treatment records. However, the Veteran's STRs include more than one incident referencing headaches in service. STRs indicate that the Veteran reported frequent headaches in June and November 1988. Additionally, in an altercation with fellow service-members in July 1989, the Veteran reported, and STRs indicate, the Veteran was kicked in the head and may have been knocked out for 10 to 15 seconds. Additionally, since the Veteran's December 2013 VA examination, the Veteran has raised a claim for secondary service connection when he testified in May 2017 that his current migraine headaches are secondary to service-connected bilateral hearing loss disability and tinnitus and/or a cervical spine disability (which disability is not currently service connected). As such, a new VA examination is warranted. (h) Service Connection - Right Knee Disability The Veteran was provided a VA examination in December 2013 diagnosing the Veteran with a right knee strain, status post debridement surgery, but no opinion was provided as to the etiology of the right knee disability. A private medical examination submitted in August 2017 diagnosed the Veteran with traumatic arthritis of the right knee. The Veteran was a paratrooper and alleges that his jumps during service caused his knee disabilities. STRs indicate he was seen for a leg injury in February 1988, and in June 1989, the Veteran's STRs indicate he was complaining of knee pain made worse by running or walking. As a result, a new VA examination is warranted to determine the current nature and etiology of the Veteran's right knee disability. (i) Service Connection - Lumbar Spine Disability The Veteran has not been provided a VA examination for his lumbar spine disability. The Veteran alleges that he has experienced chronic pain in his back since service as a result of his role as a paratrooper and in his role as a field artillery cannoneer, which required him to carry around heavy artillery. He specifically noted one incident where he slipped on the ice and the rounds in his back, which had sharp tips, jabbed into his back. The Veteran acknowledged he had an accident in 1995 (after service) wherein he fell off a ladder and injured his back, but he contends he was experiencing back pain on a regular basis prior to that accident. The Veteran's STRs include complaints of back pain in June 1989. The Veteran was diagnosed with a history of low back pain and degenerative disc disease in March 2004. The Veteran also submitted a private medical examination in August 2017 in which the physician was diagnosed with lumbosacral strain, intervertebral disc syndrome, and degenerative arthritis of the lumbar spine with right and left sciatic nerve impairment. Due to the lack of a VA examination and the varying diagnoses provided in the Veteran's claims file, a VA examination is warranted to determine the current nature and etiology of the Veteran's lumbar spine disability. (j) Service Connection - Sleep Apnea The Veteran has been diagnosed with sleep apnea, and he takes medication to treat sleep apnea along with using a CPAP machine. At the Veteran's hearing in May 2017, the Veteran testified that his sleep apnea is caused by his migraine headaches and/or PTSD, claimed as an acquired psychiatric disorder. The Board notes that the Veteran is not yet service connected for an acquired psychiatric disorder or migraine headaches. Thus, the Board is deferring deciding this issue at this time. If service connection for migraine headaches and/or an acquired psychiatric disorder is granted, the Agency of Original Jurisdiction may want to consider having the Veteran examined and/or obtaining a medical opinion. Accordingly, the case is REMANDED for the following action: 1. Contact the Veteran and afford him the opportunity to identify or submit any additional relevant private medical evidence in support of his claims, to include the following records: (i) Records pertaining to a workers compensation claim in approximately 2009 pertaining to his neck/cervical spine; (ii) Records pertaining to anterior cervical discectomy and fusion surgery in 2009; (iii) Bilateral knee scope; and (iv) Lumbar laminectomy in 1997. The AOJ must attempt to procure copies of all records which have not previously been obtained from the identified treatment sources. All efforts to procure the records must be documented in the claims file. An attempt to obtain these records should be made prior to having the Veteran undergo examinations in connection with his claims for service connection. 2. The Veteran's updated VA medical records should also be added to the Veteran's claims file to include records from the Oklahoma City VAMC from June 2011 to September 2015, and any VA treatment records from October 2017. 3. Following completion of the above, the AOJ must undertake any development necessary to independently verify the stressors indicated by the Veteran pertaining to his claim for PTSD, specifically the incidents noted at the Veteran's May 2017 video conference hearing in which a round went off in the chamber during a training exercise and in which he was assaulted by fellow service-members. The AOJ's development should include contacting the United States Army and Joint Services Records Research Center (JSRRC) or other appropriate agency. The agencies contacted should provide any available information that might corroborate the Veteran's alleged in-service stressors from his period of active military service. Any additional action necessary for independent verification of the particular alleged stressor, including follow-up action requested by the contacted entity, should be accomplished. If the search for corroborating information leads to negative results, the AOJ must notify the Veteran and his representative of this fact, explain the efforts taken to obtain this information, and describe any further action to be taken. 4. Provide the Veteran with a VA hearing loss examination. The VA examiner should determine the current nature and severity of the Veteran's hearing loss. Any indicated diagnostic tests and studies should be accomplished and all pertinent symptomatology and findings should be reported in detail. 5. Provide the Veteran with a VA bilateral knee examination. The relevant documents in the record should be made available to the examiner. All indicated studies should be performed, and a rationale for all opinions and a discussion of the facts and medical principles involved should be provided. (i) For any left knee disability, the examiner should determine the current nature and severity of the Veteran's service-connected disability. (ii) The examiner is informed that the Veteran is not service connected for a right knee disability. For any diagnosed right knee disability, the examiner should opine whether it is at least as likely as not (50 percent or higher degree of probability) that the disability had its onset during the Veteran's period of active duty service from January 1988 to November 1989. The examiner should specifically comment on the Veteran's contention that his right knee disability was caused by his status as a paratrooper in service; the Veteran's STRs from February 1988 and June 1989, noting treatment for leg and knee pain, see VBMS entry with document type, "STR - Medical," received 06/20/2008; and any impact the Veteran's work-related accident in 1995 (after service), in which he was electrocuted and fell off a ladder, see VBMS entry with document type, "Medical Treatment Record - Non-Government Facility," received 07/07/2008, on p.8-9, would have on the nature and etiology of any diagnosed disability. The examiner should also specifically comment on the private medical examination provided by the Veteran in August 2017. See VBMS entry with document type, "Medical Treatment Record - Non-Government Facility," received 08/25/2017. 6. Provide the Veteran with a VA ankle examination. The relevant documents in the record should be made available to the examiner. All indicated studies should be performed, and a rationale for all opinions and a discussion of the facts and medical principles involved should be provided. (i) For any diagnosed right ankle disability, the examiner should opine whether it is at least as likely as not (50 percent or higher degree of probability) that the disability had its onset during the Veteran's period of active duty service from January 1988 to November 1989. The examiner should specifically comment on the Veteran's contention that his disability was caused by his status as a paratrooper in service. (ii) If the answer to (i) is negative, the examiner is asked to state whether it is at least as likely as not (50 percent or higher degree of probability) that any right ankle disability is caused by the Veteran's service-connected left foot disability. (iii) If the answer to (ii) is negative, the examiner is asked to state whether it is at least as likely as not (50 percent or higher degree of probability) that any left ankle disability is permanently aggravated by the Veteran's service-connected left foot disability. (iv) If the examiner finds that the Veteran's left foot disability permanently aggravates the right ankle disability, the examiner is asked to state whether there is medical evidence created prior to the aggravation or at any time between the time of aggravation and the current level of disability that shows a baseline for the left ankle disability prior to aggravation. If the examiner is unable to establish a baseline for the left ankle disability prior to the aggravation, he or she should state such and explain why a baseline cannot be determined. 7. Provide the Veteran with a VA cervical spine examination. The relevant documents in the record should be made available to the examiner. All indicated studies should be performed, and a rationale for all opinions and a discussion of the facts and medical principles involved should be provided. (i) For any diagnosed cervical spine disability, the examiner should opine whether it is at least as likely as not (50 percent or higher degree of probability) that the disability had its onset during the Veteran's period of active duty service from January 1988 to November 1989. The examiner should specifically comment on the Veteran's contention that his disability was caused or worsened by his status as a paratrooper in service, and any impact the Veteran's work-related accident in 1995 (after service), in which he was electrocuted and fell off a ladder, see VBMS entry with document type, "Medical Treatment Record - Non-Government Facility," received 07/07/2008, on p.8-9, or work-related accident in 2009 that involved his cervical spine would have on the nature and etiology of any diagnosed disability. The examiner should also specifically comment on the private medical examination provided by the Veteran in August 2017. See VBMS entry with document type, "Medical Treatment Record - Non-Government Facility," received 08/25/2017. 8. Provide the Veteran with a VA psychiatric examination. The relevant documents in the record should be made available to the examiner. All indicated studies should be performed, and a rationale for all opinions and a discussion of the facts and medical principles involved should be provided. For any diagnosed psychiatric disorder, the examiner should opine whether it is at least as likely as not (50 percent or higher degree of probability) that the disorder had its onset during the Veteran's period of active duty service from January 1988 to November 1989. The examiner should specifically comment on the private medical examination provided by the Veteran in August 2017. See VBMS entry with document type, "Medical Treatment Record - Non-Government Facility," received 08/25/2017. 9. Provide the Veteran with a VA gastrointestinal examination. The relevant documents in the record should be made available to the examiner. All indicated studies should be performed, and a rationale for all opinions and a discussion of the facts and medical principles involved should be provided. (i) For any diagnosed gastrointestinal disability, the examiner should opine whether it is at least as likely as not (50 percent or higher degree of probability) that the disability had its onset during the Veteran's period of active duty service from January 1988 to November 1989. (ii) If the answer to (i) is negative, the examiner is asked to state whether it is at least as likely as not (50 percent or higher degree of probability) that any gastrointestinal disability is caused by medications taken to treat the Veteran's service-connected disabilities (including a left foot disability, bilateral tinnitus, a left knee disability, and/or bilateral hearing loss). (iii) If the answer to (ii) is negative, the examiner is asked to state whether it is at least as likely as not (50 percent or higher degree of probability) that any gastrointestinal disability is permanently aggravated by the medications taken to treat the Veteran's service-connected disabilities (including a left foot disability, bilateral tinnitus, a left knee disability, and/or bilateral hearing loss). (iv) If the examiner finds that medications taken to treat the Veteran's service connected disabilities (including a left foot disability, bilateral tinnitus, a left knee disability, and/or bilateral hearing loss) permanently aggravates the gastrointestinal disability, the examiner is asked to state whether there is medical evidence created prior to the aggravation or at any time between the time of aggravation and the current level of disability that shows a baseline for the gastrointestinal disability prior to aggravation. If the examiner is unable to establish a baseline for the gastrointestinal disability prior to the aggravation, he or she should state such and explain why a baseline cannot be determined. 10. Provide the Veteran with a VA kidney examination. The relevant documents in the record should be made available to the examiner. All indicated studies should be performed, and a rationale for all opinions and a discussion of the facts and medical principles involved should be provided. (i) For any diagnosed kidney disability, the examiner should opine whether it is at least as likely as not (50 percent or higher degree of probability) that the disability had its onset during the Veteran's period of active duty service from January 1988 to November 1989. (ii) If the answer to (i) is negative, the examiner is asked to state whether it is at least as likely as not (50 percent or higher degree of probability) that any kidney disability is caused by medications taken to treat the Veteran's service-connected disabilities (including a left foot disability, bilateral tinnitus, a left knee disability, and/or bilateral hearing loss). (iii) If the answer to (ii) is negative, the examiner is asked to state whether it is at least as likely as not (50 percent or higher degree of probability) that any kidney disability is permanently aggravated by the medications taken to treat the Veteran's service connected disabilities (including a left foot disability, bilateral tinnitus, a left knee disability, and/or bilateral hearing loss). (iv) If the examiner finds that medications taken to treat the Veteran's service-connected disabilities (including a left foot disability, bilateral tinnitus, a left knee disability, and/or bilateral hearing loss) permanently aggravates the kidney disability, the examiner is asked to state whether there is medical evidence created prior to the aggravation or at any time between the time of aggravation and the current level of disability that shows a baseline for the kidney disability prior to aggravation. If the examiner is unable to establish a baseline for the kidney disability prior to the aggravation, he or she should state such and explain why a baseline cannot be determined. 11. Provide the Veteran with a VA headaches examination. The relevant documents in the record should be made available to the examiner. All indicated studies should be performed, and a rationale for all opinions and a discussion of the facts and medical principles involved should be provided. (i) For any diagnosed headache disability, the examiner should opine whether it is at least as likely as not (50 percent or higher degree of probability) that the disability had its onset during the Veteran's period of active duty service from January 1988 to November 1989. The examiner should specifically comment on any impact the Veteran's work-related accident in 1995 (after service), in which he was electrocuted and fell off a ladder, see VBMS entry with document type, "Medical Treatment Record - Non-Government Facility," received 07/07/2008, on p.8-9, or work-related accident in 2009 that involved his cervical spine would have on the nature and etiology of any diagnosed disability. The examiner should comment on the Veteran's STRs that indicate treatment for headaches in June and November 1988 as well as the July 1989 incident in which the Veteran was in an altercation with two other service-members and reported being kicked in the head. See VBMS entry with document type, "STR - Medical," received 06/20/2008. The examiner should also specifically comment on the private medical examination provided by the Veteran in August 2017. See VBMS entry with document type, "Medical Treatment Record - Non-Government Facility," received 08/25/2017. (ii) If the answer to (i) is negative, the examiner is asked to state whether it is at least as likely as not (50 percent or higher degree of probability) that any migraine headaches are caused by the Veteran's service-connected bilateral hearing loss and/or tinnitus. (iii) If the answer to (ii) is negative, the examiner is asked to state whether it is at least as likely as not (50 percent or higher degree of probability) that any migraine headaches are permanently aggravated by the Veteran's service-connected bilateral hearing loss and/or bilateral tinnitus. (iv) If the examiner finds that bilateral hearing loss and/or tinnitus permanently aggravates the migraine headaches, the examiner is asked to state whether there is medical evidence created prior to the aggravation or at any time between the time of aggravation and the current level of disability that shows a baseline for the migraine headaches prior to aggravation. If the examiner is unable to establish a baseline for the migraine headaches prior to the aggravation, he or she should state such and explain why a baseline cannot be determined. 12. Provide the Veteran with a VA lumbar spine examination. The relevant documents in the record should be made available to the examiner. All indicated studies should be performed, and a rationale for all opinions and a discussion of the facts and medical principles involved should be provided. (i) For any diagnosed lumbar spine disability, the examiner should opine whether it is at least as likely as not (50 percent or higher degree of probability) that the disability had its onset during the Veteran's period of active duty service from January 1988 to November 1989. The examiner should specifically comment on the Veteran's contention that his disability was caused or worsened by his status as a paratrooper in service, and any impact the Veteran's work-related accident in 1995 (after service), in which he was electrocuted and fell off a ladder, see VBMS entry with document type, "Medical Treatment Record - Non-Government Facility," received 07/07/2008, on p.8-9, would have on the nature and etiology of any diagnosed disability. The record indicates that the Veteran underwent a laminectomy in 1997, although those records are not part of the file (but may have been added). The examiner should also specifically comment on the private medical examination provided by the Veteran in August 2017. See VBMS entry with document type, "Medical Treatment Record - Non-Government Facility," received 08/25/2017. (ii) If the answer to (i) is negative, the examiner is asked to state whether it is at least as likely as not (50 percent or higher degree of probability) that any lumbar spine disability is caused by the Veteran's service-connected left foot disability. (iii) If the answer to (ii) is negative, the examiner is asked to state whether it is at least as likely as not (50 percent or higher degree of probability) that any lumbar spine disability is permanently aggravated by the Veteran's service-connected left foot disability. (iv) If the examiner finds that the Veteran's left foot disability permanently aggravates the lumbar spine disability, the examiner is asked to state whether there is medical evidence created prior to the aggravation or at any time between the time of aggravation and the current level of disability that shows a baseline for the lumbar spine disability prior to aggravation. If the examiner is unable to establish a baseline for the lumbar spine disability prior to the aggravation, he or she should state such and explain why a baseline cannot be determined. 13. After conducting any other additional development implicated by the receipt of additional evidence, the remanded claims should be readjudicated by the AOJ. If any of the benefits sought are denied, furnish the Veteran a supplemental statement of the case and return the case to the Board for further review. The Veteran has the right to submit additional evidence and argument on the matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). These claims must be afforded expeditious treatment. The law requires that all claims remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C. §§ 5109B, 7112 (West 2014). ______________________________________________ A. P. SIMPSON Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs