Citation Nr: 21000689 Decision Date: 01/05/21 Archive Date: 01/05/21 DOCKET NO. 17-18 279 DATE: January 5, 2021 ORDER The appeal to reopen a claim of entitlement to service connection for an ulcer disability based on the receipt of new and material evidence is granted. Entitlement to service connection for tinnitus is granted. REMANDED Entitlement to service connection for an ulcer disability is remanded. Entitlement to service connection for a right elbow disability is remanded. Entitlement to service connection for colon cancer, to include residuals, is remanded. Entitlement to service connection for a liver disability is remanded. Entitlement to service connection for an acquired psychiatric disability (to include depression and posttraumatic stress disorder (PTSD)) is remanded. Entitlement to service connection for sleep apnea is remanded. FINDINGS OF FACT 1. In September 2008, the RO (Regional Office) denied a claim of entitlement to service connection for an ulcer disability; the Veteran did not appeal the determination, and no new and material evidence was received within one year from the date on which the notification was issued to the Veteran. 2. Evidence received since the September 2008 rating decision is new, relates to an unsubstantiated fact necessary to substantiate the claim for service connection for an ulcer disability, and raises a reasonable possibility of substantiating the claim. 3. The probative evidence of record is at least in equipoise as to whether the Veteran's tinnitus was incurred as a result of in-service acoustic trauma. CONCLUSIONS OF LAW 1. Evidence received since the September 2008 Rating Decision which denied the Veteran's claim of entitlement to service connection for an ulcer disability is new and material and the claim is reopened. 38 U.S.C. §§ 1154 (a), 5108, 7105; 38 C.F.R. § 3.156, 20.200. 2. The criteria for entitlement to service connection for tinnitus have been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.159, 3.303, 3.307, 3.309. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active duty from October 1995 to October 1999, and had subsequent periods of Reserve service and National Guard service. In June 2020, the Veteran testified at a Board of Veteran’s Appeals (Board) hearing before Veterans Law Judge (VLJ). In an October 2020 letter, the Board notified the Veteran that the VLJ who conducted the June 2020 hearing was no longer employed by the Board, and he was afforded the opportunity to participate in another Board hearing. This letter specifically stated that if no reply was received by VA within 30 days, the Board would assume that another hearing was not desired and proceed with readjudication. The Veteran did not respond within the allotted time period, and thus, the Board will readjudicate the Veteran’s appeal without the need to undertake another Board hearing. New and Material Evidence 1. Whether new and material evidence has been received to reopen a claim of entitlement to service connection for an ulcer disability Historically, the Veteran’s claim for service connection for an ulcer was denied by the RO in a September 2008 decision because there was no evidence that the Veteran had an ulcer, the service treatment record (STRs) were unremarkable for an ulcer, and there was no evidence that he had an ulcer related to service. The Veteran did not appeal the denial and it became final. In April 2010, he requested to reopen the prior final denial of the claim. Generally, a claim that has been denied in a final unappealed rating decision may not thereafter be reopened and allowed. 38 U.S.C. § 7105(b). An exception to this rule for claims adjudicated under the “Legacy” system (such as this claim) 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, then VA shall reopen the claim and review the former disposition of the new claim. New evidence is evidence not previously received by agency decision makers. Material evidence means 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 previously of record, and must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a). In determining whether evidence is new and material, the credibility of the evidence is generally presumed. Justus v. Principi, 3 Vet. App. 510, 512-513 (1992). The Court has held that the Board's analysis of the issue of reopening must first be confined to the subject of existence of new and material evidence alone and not based on whether it would lead to a grant of the claim. Shade v. Shinseki, 24 Vet. App. 110 (2010). The Veteran testified at the June 2020 Board hearing that the stress of service, his mental health, and his alcoholism, contributed to his ulcer condition. He contends that within one or two years after being released from active duty, he was prescribed multiple different medications to combat his symptoms. He also said that the stomach pain started in service, closer to the time of separation. At the time of the last final denial, the claims file included the Veteran’s September 1999 Report of Medical History for separation purposes which reflects that he denied stomach, liver, or intestinal trouble, and denied frequent indigestion. He reported that he was in good health and was not taking any medications. His September 1999 Report of Medical Assessment reflects that he was not taking any medication, and did not suffer from any injury or illness while on active duty for which he did not seek medical care. The claims file now includes private medical records noting peptic ulcer disease (PUD) in 2004, 2005, and 2006. In addition, a 2012 record reflects that the Veteran reported that he was currently being treated for ulcers/GERD which is controlled with medications. VA clinical records note GERD and that the Veteran takes omeprazole (e.g. 2016 records). Given the low threshold espoused in Shade, the Board finds that new and material evidence (i.e. an ulcer post-service and the Veteran’s statements as to onset in service (which is presumed credible for purposes of reopening)) has been received; the claim is reopened. Service Connection 2. Entitlement to service connection for tinnitus Establishing service connection generally requires medical evidence or, in certain circumstances, lay evidence of the following: (1) A current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) nexus between the claimed in-service disease and the present disability. See Davidson v. Shinseki, 581 F.3d 1313 (Fed.Cir.2009); Jandreau v. Nicholson, 492 F.3d 1372 (Fed.Cir.2007); Hickson v. West, 12 Vet. App. 247 (1999); Caluza v. Brown, 7 Vet. App. 498 (1995), aff'd per curiam, 78 F.3d 604 (Fed.Cir.1996) (table). In addition, certain chronic diseases, such as tinnitus, as an organic disease of the nervous system, may be presumed to have been incurred in, or aggravated by, service if the disease becomes manifest to a compensable degree within one year of separation from qualifying military service. 38 U.S.C. §§ 1112, 1113; 38 C.F.R. §§ 3.307, 3.309. Additionally, service connection on the basis of continuity of symptomatology can be established for the chronic diseases specified at 38 C.F.R. § 3.309 (a). Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). The Veteran testified at the June 2020 Board hearing that he knew that he had a ringing in his ears from being on the flight deck during flight operations in service. Tinnitus is the type of disability which a lay person is competent to identify. Charles v. Principi, 16 Vet. App. 370 (2002). He contends that he has had tinnitus since active service. The claims file includes July 2020 correspondence from audiologist, Dr. D. A. He states that it is at least as likely as not that the Veteran’s tinnitus is related to his time in the military where he was exposed to hazardous noise. Dr. D. A.’s opinion is based on the Veteran’s self-reported history as well as studies that tinnitus without hearing loss is a symptom of damage to the inner ear structures from noise which has not manifested in hearing loss, and that noise exposure is the most common causes of tinnitus. There are no STRs noting tinnitus; however, as noted above the Veteran is competent to state he has tinnitus. Moreover, there are no STRs noting a denial of such. Given the above, to include Dr. D.A.’s opinion, the evidence is at least in equipoise as to whether the Veteran’s has tinnitus due to service. Thus, the benefit of the doubt rule is applicable, and service connection is warranted. See 38 U.S.C. § 5107 (b); Gilbert v. Derwinski, 1 Vet. App. 49, 54-56 (1990). REASONS FOR REMAND To have basic eligibility for veterans benefits based on a period of duty as a member of a state Army National Guard, a National Guardsman must have been ordered into Federal service by the President of the United States, see 10 U.S.C.A. § 12401, or must have performed “full-time duty” under the provisions of 32 U.S.C. §§ 315, 502, 503, 504, or 505. See 38 U.S.C. §§ 101(21), (22)(C); see also 32 U.S.C.A. §§ 315 (providing for detailing of regular members of the U.S. Army and Air Force to duty with the Army or Air National Guard of each State); Allen v. Nicholson, 21 Vet. App. 54, 58 (2007). If the claimant achieves “veteran” status through a prior period of active duty service (as in this case) and claims a disability incurring from injury or disease on active duty for training (ACDUTRA) or an injury on inactive duty training (INACDUTRA), the only presumption that can apply is the presumption of soundness, and in order for that presumption to apply, there must be an entrance examination prior to the period of ACDUTRA or INACDUTRA that the veteran claims the disease or injury occurred. If there is no such entrance examination, the presumption of soundness does not attach. In addition, service connection cannot be awarded for a disease that occurred during INACDUTRA. Thus, it is paramount that the Board have an accurate description of the Veteran’s service. The claims file does not include the exact dates of the Veteran’s service, but reflects that he has been in the National Guard since 2008 through at least 2017. The Board finds that a remand is warranted for a determination as to the exact dates of drill (ACDUTRA and INACDUTRA), which should be found by contacting the state National Guard Headquarters (possibly to the attention of Finance) and asking for the MMPA (Master Military Pay Account) History report covering 2008 to present. In addition, the Veteran’s orders should be associated with the claims file to help determine if he was under Federal or State orders when his claimed injuries occurred. As discussed in further detail below, the Veteran is less than credible as to some aspects of his claims. In making such a credibility finding, the Board is not finding that the Veteran has an intent to deceive. Rather, he may be simply mistaken in his recollections due to the fallibility of human memory for events that occurred many years ago. 1. Entitlement to service connection for an ulcer is remanded The Veteran separated from active service in September 1999. The earliest evidence of an ulcer is in 2004. The Veteran did not have service between 2003 and 2008. Although the Veteran contends that he has a current ulcer, the clinical records note GERD, and are unremarkable for an ulcer during the pendency of his claim. The most current clinical record is from 2017, which is now three years old. Thus, VA should associate all clinical records from 2017 to present with the claims file. Thereafter, the Veteran should be scheduled for an examination to determine if he has an ulcer, and if so, whether it is as likely as not causally related to a period of active duty or ACDUTRA. In this regard, the Board, based on the evidence of record at this time, finds that the Veteran is less than credible as to symptoms during his active service in the 1990s. As noted above, the Veteran’s STRs are negative for complaints, and his September 1999 Report of Medical History for separation purposes reflects that he denied stomach, liver, or intestinal trouble, and denied frequent indigestion. He reported that he was in good health and was not taking any medications. His September 1999 Report of Medical Assessment reflects that he was not taking any medication, and did not suffer from any injury or illness while on active duty for which he did not seek medical care. Notably, he reported having eye trouble and hay fever; thus, if he had symptoms and was taking medication for an ulcer, it seems reasonable that he would have reported it rather than specifically denied it as he reported other complaints. If the examiner finds that it is as likely as not that the Veteran has an ulcer disability causally related to, or aggravated by, a period of service, the examiner must state the dates or period of service. 2. Entitlement to service connection for a right elbow disability is remanded The Veteran testified at the June 2020 Board hearing that he was doing a ruck march when he stepped on a piece of uneven concrete, fell to the ground onto his elbow, and a couple days later it started to bother him. He stated that he did not seek treatment while in boot camp because he did not want to get recycled or flagged. The Board finds, based on the record as a whole at this time, that the Veteran is less than credible as to an injury during active service, to include in boot camp. The Veteran’s STRs are negative for complaints, treatment, or diagnosis of the elbow and the Veteran has stated that he did not seek treatment in service. The Veteran’s September 1999 Report of Medical History reflects that the Veteran denied bone, joint or other deformity, and denied arthritis, rheumatism, or bursitis. A June 2008 Medical Prescreen of Medical History Report reflects that An August 2013 VA clinical record reflects that the Veteran had right arm lateral epicondylitis. The Veteran reported that he had right arm pain which started after a regimen of lifting heavy weights, and that there had been no other recent trauma or fall. He requested an excuse letter from drilling/training. An October 2013 VA clinical record reflects that the Veteran complained of persistent progressive right arm pain for two weeks resulting from weightlifting. A July 2014 VA clinical record reflects that the Veteran reported persistent right elbow pain. It was noted that the “pain started about one year ago when doing a free weight exercise called ‘hammer curls’ consisting of elbow flexion with forearm pronation” and there had been “no previous injuries”. October 2014 records note that he reported having exacerbated his right elbow pain following a workout and it was recommended that he be excused from physical fitness testing sessions to allow for rest, use of splint, and physical therapy. Thus, the probative evidence reflects that the Veteran did not injury his elbow in active service, did not have chronic symptom since active service, and injured his arm while weightlifting in 2013. A July 4, 2014 VA clinical record notes that the Veteran has a one-year history of insidious onset right medial elbow pain which may have resulted from repetitive dumbbell training with forearm pronation and wrist flexion and ongoing exacerbation with the Army Guard Reserve training. As the record reflects that the Veteran may have exacerbated his elbow with training, records detailing service dates and profiles may be relevant to determine if the “training” was during an actual period of ACDUTRA or INACDUTRA. 3. Entitlement to service connection for a right knee disability is remanded The Board notes that in 2016, the RO considered the issue as whether new and material evidence had been received to reopen a prior final denial of entitlement to service connection for a right knee disability. The Veteran’s claim was initially denied in a March 2013 rating decision. The Veteran submitted a timely NOD in April 2013; however, the RO did not issue a Statement of the Case in response to that NOD; thus, the original claim is still pending. At the June 2020 Board hearing, the Veteran testified that during a MWR (Morale, Welfare, and Recreation) softball game, he ran into a fence and banged his knee. He testified that it swelled up and was medically drained of fluid. The STRs reflect that in June 1996, the Veteran was playing baseball when he ran into a fence, injured his knee, had swelling, and had the knee drained. However, it was the left knee, for which he is already in receipt of service connection. The active duty STRs from the Veteran’s first period of service are negative for complaints of, treatment for, or diagnosis of, the right knee. The Veteran separated from active service in October 1999. The Board finds, based on the record as a whole at this time, that the Veteran is less than credible as to a right knee injury in active service, or chronic symptoms since service. The evidence reflects that the Veteran was in the Army National Guard beginning March 24, 2009. An April 6, 2009 STR reflects that the Veteran reported bilateral knee pain. He was diagnosed with overuse syndrome of seven days in duration. An April 9, 2009 STR reflects that the Veteran was seen for bilateral medial knee pain for 10 days with no trauma. The onset of symptoms was gradual. He reported no prior history of knee problems. He was diagnosed with bursitis anserine and was given a profile of no running or jumping for seven days. The evidence reflects that the Veteran’s ACDUTRA ended in September 2009. Subsequently, a May 2010 VA clinical record notes a complaint of intermittent right knee pain, worsening the past year, and that the Veteran has gained significant weight in the past year.” In a September 2010 VA Form 21-4138 (Statement in Support of Claim), the Veteran asserted that in March 2009, he re-enlisted in the National Guard and while at WTC (warrior training center) training, he began experiencing pain in both knees and was put on limited duty for two weeks. He stated that the pain has been constant since his return from WTC. A March 2012 VA clinical record notes right knee pain. An April 6, 2013 record notes “leg cramps” and that the Veteran wanted an excuse so he did not have to participate in the drill the next day. A May 2013 VA clinical record reflects that the Veteran was seen for progressive right knee pain and instability; it was suspect internal derangement and an MRI would be requested. A February 2014 Disability Benefits Questionnaire (DBQ) reflects that the Veteran had 140 degrees or greater of right knee flexion with no objective evidence of painful motion. He also had extension to 0 degrees with no objective evidence of painful motion. Thus, he had full range of motion with no objective evidence of pain. There was no change after repetitive use testing. He had no functional loss of the right knee, no tenderness or pain to palpation for the joint line or soft tissue He also had normal muscle strength, normal stability, no arthritis A March 2014 notes right knee pain which is probably early secondary OA (osteoarthritis). The Veteran had a three-month military profile from April to July 2014 due to colon and liver issues which excused him from walking, running, and push-ups. A November 2015 VA clinical record, which is a copy of correspondence, reflects that the Veteran had a right knee sprain and it was medically requested that he be excused from physical activities for three weeks in November 2015. A February 2016 DBQ reflects a diagnosis of right knee strain. A July 2016 VA clinical record reflects that the Veteran’s right knee pain has been exacerbated since three weeks earlier when he starting working out in preparation for his upcoming National Guard assessment; the record does not reflect that he was working out during an actual period of ACDUTRA or INACDTURA. A December 2016 VA clinical record notes a diagnosis of chondromalacia patellae secondary to wear and tear. An April 2017 electronic correspondence from Dr. V. P. reflects that the Veteran has “right knee pain secondary to cartilage loss from a service-connected injury. Since running exacerbates his condition, it is recommended that an alternative test, such as a timed walk test, be administered to him during his physical training.” This opinion appears to be based on the Veteran’s self-reported history and does not provide clinical records noting cartilage loss, and does not explain the “service-connected” injury. Nevertheless, as the Veteran had complaints of over-use while on a period of service in 2009 (but subsequently had a normal examination) further development is warranted, to include a VA examination and opinion. 4. Entitlement to service connection for colon cancer 5. Entitlement to service connection for a liver disability In 2014, the Veteran was diagnosed with a liver disability and colon cancer. He testified at the June 2020 Board hearing that he was a hazardous material storekeeper and that being exposed to hazardous material may have caused him to get cancer. He has not been shown to be competent to provide an etiology opinion, and there is no competent evidence to support his contention. In August 2020, he submitted a 2016 article from the American Journal of Epidemiology, which stated that it is unclear whether dyslipidemia is associated with risk of colorectal neoplasia. Another article “Blood Lipid Concentrations and Colorectal Adenomas” reflects that, based on studies in Asia, high triglyceride and low HDL cholesterol concentrations were associated with higher prevalence of colorectal adenoma. The Veteran’s STRs reflect that he had high triglycerides and normal but borderline low HDL in June 1997; he was counseled about this in July 1997. In February 1998, he had high triglycerides and normal HDL. In September 1999, he had high triglycerides and normal/borderline low HDL. A post-active service September 2011 internal medical note reflects blood in stool which appeared hemorrhoidal. A January 2013 VA GI record notes that the Veteran had persistent GERD, intermittent hematochezia, and low ferritin. He was to undergo an egd/colonoscopy; however, the evidence does not reflect if he did. A May 2013 STR notes that he meets the criteria for metabolic syndrome. In February 2014, the Veteran was admitted to a VA facility with fever, chills, and right upper quadrant pain. He was found to have a pyogenic liver abscess. A CT of the abdomen and pelvis showed a mass in the right colon. On February 21, 2014, the Veteran had a liver abscess removed. It was noted that it may be a sequela of colon cancer and more diagnostics are being done. March 2014 VA record notes a diagnosis of liver abscess and colon cancer. An August 2014 VA record notes that the Veteran had stage 1 colon cancer. Based on the foregoing, additional development, to include associating a February 2013 egd/colonoscopy report (if any) and obtaining a VA opinion is warranted. 6. Entitlement to service connection for an acquired psychiatric disability is remanded. The Veteran has contended that he has PTSD, depression, and/or adjustment disorder due to service. The Veteran also contends that his mental health problems began during his first period of service because he missed his family. The Veteran entered service on October 3, 1995. An October 5, 1995 recruit training center screening notes that his mood was “down”. There are no STRs noting findings of PTSD, depression, or adjustment disorder. An April 1997 STR reflects that the Veteran self-referred for substance abuse/dependence. He reported that he had his first alcoholic drink at age 13, first was drunk at age 13, had regular drinking at age 22, and that his mother and father were alcoholics. He did not have withdrawal/hangovers symptoms to include not having depression. His September 1999 Report of Medical History for separation purposes reflects that he denied depression or expressive worry and denied frequent trouble sleeping. The Veteran did not have service between 2003 and 2008. Clinical records in 2008 reflect that the Veteran had been let go from his job in February 2008, and was stressed due to his unemployment and inability to find a new job. He was diagnosed with adjustment disorder, and reported that he was becoming increasingly depressed. The records also note that he had recently tried to make contact with his father (whom he was estranged) and that it had been “unwelcome” and “perhaps a contributing factor” in his recent May 2008 suicide attempt and increase in drinking alcohol. The Veteran denied military trauma and stated that “the whole problem is me not being able to work.” A May 2010 record reflects that while in service, the Veteran did not feel that his life was under threat (even though the ship he was on fired a missile), and that his current relationship problem with his girlfriend/partner contributes to his low mood. Private records (Dr. D. G.) in 2013 note a diagnosis of depression; it was noted that the Veteran had issues with his relationships with his children. A November 2014 VA examination report reflects that the Veteran does not meet the diagnostic criteria for PTSD. However, subsequent records reflect a diagnosis of PTSD, and depressive disorder. The Veteran has listed stressors: having a missile come back towards his ship, seeing two planes collide and having to retrieve the wreckage, and serving during Operation Allied Forces. (The evidence reflects that the USS Gonzalez fired 43 missiles in 1999 against the Syrian military.) A January 2015 VA clinical record reflects that the Veteran is “more stressed, depressed, overwhelmed. Had liver infection in early 2014/February and then diagnosed with Colon cancer in April 2014 and had curative surgery.” The Board is remanding the issues of entitlement to service connection for a liver disability and colon ancer; the issue of entitlement to service connection for an acquired psychiatric disability may be inextricably intertwined with those issues, and should also be remanded. The Board also finds that further development is warranted for stressor verification, and providing the Veteran with another examination. 7. Entitlement to service connection for sleep apnea The Veteran separated from active service in September 1999, at which time he weighed 170 lbs. (see September 1999 Report of Medical Examination). The Veteran was diagnosed with sleep apnea in June 2015, at which time he weighed 237 lbs. In August 2020, he stated that when the sleep study was done (in 2015), he weighed 212 lbs., which he contends is “usual” weight gain since active service and is not a “massive weight gain.” The Board finds that the records contemporaneous to the sleep study are more probative than the Veteran’s assertion many years later; thus, the Board finds that he had gained 67 lbs. in the period after separation from active service. Clinical records reflect that the Veteran was educated that a risk factor of being overweight is sleep apnea and that he was noted to be overweight/obese when he weighed 226 lbs. in 2012 and 204 lbs. in 2011, and 223 lbs. in 2010. The Veteran testified at the 2020 Board hearing that when he was involved in a relationship, the woman told him that he that he stopped breathing during his sleep and that he snores, and this was when he decided to get a sleep study done in 2015. He also stated that at one point, when he was hospitalized, one of the nurses told hm that his breathing sounded weird and he could have sleep apnea. Finally, he testified that at least two people in service told hm that he snored in service. The Veteran’s September 1999 Report of Medical History for separation purposes reflects that he denied frequent trouble sleeping. The Board also notes that while he was an in-patient in May 2008 for a mental health situation, the Veteran was noted to have “slept well through the [night]” and had been monitored at least every 15 to 30 minutes. Another notation reflects that he has been “resting quietly in bed at all unit rounds, appears sleeping.” Finally, another notation is that the Veteran “does not state any problems sleeping.” The Board find that if the Veteran has been gasping for breathing, waking up in his sleep often due to breathing problems, and/or snoring, it would have been reasonably noted in the record rather than a statement that he was quiet and slept through the night, especially as he was checked every 15 to 30 minutes. With regard to his “buddies” telling him that he snored in service, the Board finds that this is not necessarily evidence of sleep apnea, and the Veteran’s credibility is in question due to his other inconsistent statements with regard to filing claims for compensation (i.e. he stated he injured his right knee against a fence in service when it was his left knee; he stated that his elbow was injured in active service, when the clinical records reflect it was injured more than a decade later; he told a 2014 VA examiner that he stared drinking in April 1997 after boot camp, however, April 1997 STRs reflect that he started drinking at age 13 and alcohol became important to him when he was 22 (which would have been prior to service).) The Board finds that an accurate accounting of the Veteran’s dates of service may be useful to the Board in adjudicating the Veteran’s claim. The matters are REMANDED for the following action: 1. Obtain the Veteran’s VA treatment records for a February 2013 egd/colonoscopy (if any), and all records for the period from December 2016 to present. 2. Obtain the Veteran’s service treatment records (in the National Guard) from December 2016 to present. 3. Obtain the Veteran’s DD 214s and/or NGB-22s for all periods of service. 4. Obtain the exact dates of drill (ACDUTRA and INACDUTRA) for the Veteran’s service in the National Guard and Reserve, by obtaining his MMPA (Master Military Pay Account) History report. 5. Request the Veteran to provide copies of all military orders for his Reserve and National Guard service. 6. Attempt to corroborate the Veteran’s in-service stressors of having a missile come back towards his ship (the USS Gonzalez), and seeing two planes collide and having to retrieve the wreckage. If more details are needed, contact the Veteran to request the information. 7. Schedule the Veteran for an examination to determine whether he has had an ULCER during the pendency of his claim, and if so, an opinion as to whether it is as likely as not (50 percent or greater) causally related to, or aggravated by, a period of active service or ACDUTRA. The examiner should consider the pertinent evidence of record, to include: a.) the Veteran’s September 1999 Report of Medical History for separation purposes which reflects that he denied stomach, liver, or intestinal trouble, and denied frequent indigestion. He reported that he was in good health and was not taking any medications; b.) the Veteran’s September 1999 Report of Medical Assessment reflects that he was not taking any medication, and did not suffer from any injury or illness while on active duty for which he had not sought treatment; and c.) the earliest clinical evidence of peptic ulcer disease. The examiner should not consider that the Veteran had complaints in the 1990s as this has not been supported by the clinical records and is less than credible at this time. If the examiner finds that it is as likely as not that the Veteran has an ulcer disability causally related to a period of active service or ACDUTRA, the examiner should state the date(s) of such service. If the examiner finds that the Veteran has an ulcer disability aggravated by a period of active service or ACDUTRA, the examiner should state the dates(s) of such service AND state the degree of aggravation (i.e. worsening of the disability since its baseline severity). 8. Schedule the Veteran for an examination to determine whether it is as likely as not (50 percent or greater) that he has a RIGHT ELBOW disability causally related to, or aggravated by, a period of active service, ACDUTRA, or INACDUTRA. The examiner should consider the pertinent evidence of record, to include: a.) the active service STRs are negative for a right elbow disability; b.) the Veteran’s September 1999 Report of Medical History reflects that the Veteran denied bone, joint or other deformity, and denied arthritis, rheumatism, or bursitis; c.) the August 2013 and October 2013 VA clinical records which reflect that the Veteran had right arm lateral epicondylitis, and that the pain started in approximately August 2013; d.) a July 2014 VA clinical record which reflects that the Veteran reported persistent right elbow pain which had started about one year ago when doing a free weight exercise called ‘hammer curls’ consisting of elbow flexion with forearm pronation” and there had been “no pervious injuries”; e.) October 2014 records which note that he reported having exacerbated his right elbow pain following a workout and it was recommended that he be excused from physical fitness testing sessions to allow for rest, use of splint, and physical therapy; and f.) a July 4, 2014 VA clinical record notes that the Veteran has a one-year history of insidious onset right medial elbow pain which may have resulted from repetitive dumbbell training with forearm pronation and wrist flexion and ongoing exacerbation with the Army Guard Reserve training. The examiner should not consider that the Veteran had complaints in the 1990s or prior to 2013 as this has not been supported by the clinical records and is less than credible at this time. If the examiner finds that it is as likely as not that the Veteran has a right elbow disability causally related to a period of active service, ACDUTRA, or INACDUTRA, the examiner should state the date(s) of such service. If the examiner finds that the Veteran has a right elbow disability aggravated by a period of active service, ACDUTRA, or INACDUTRA, the examiner should state the dates(s) of such service AND state the degree of aggravation (i.e. worsening of the disability since its baseline severity). 9. Schedule the Veteran for an examination to determine whether it is as likely as not (50 percent or greater) that he has a RIGHT KNEE disability causally related to, or aggravated by, a period of active service, ACDUTRA, or INACDUTRA. The examiner should consider the pertinent evidence of record, to include a.) the active service STRs are negative for a right knee disability; b.) an April 6, 2009 STR which reflects that the Veteran reported bilateral knee pain; he was diagnosed with overuse syndrome of seven days in duration; c.) an April 9, 2009 STR which reflects that the Veteran was seen for bilateral medial knee pain for 10 days with no trauma. The onset of symptoms was gradual. He reported no prior history of knee problems. He was diagnosed with bursitis anserine and given a profile of no running or jumping for seven days; d.) a May 2010 VA clinical record which notes a complaint of intermittent right knee pain, worsening the past year, and that the Veteran has gained significant weight in the past year”; e.) the Veteran’s 2010 contention that he has had right knee pain since March 2009 when he began National Guard service; f.) the March 2012 and May 2013 VA clinical records noting complaints of right knee pain; g.) the February 2014 DBQ noting a normal knee upon examination; h.) a March 2014 VA record which notes right knee pain which is probably early secondary OA; i.) the Veteran’s military profiles excusing him from walking and running (to include from April to July 2014 due to cancer); j.) November 2015 VA clinical record noting that the Veteran had a right knee sprain and it was medically requested that he be excused from physical activities for three weeks in November 2015; k.) a February 2016 DBQ reflects a diagnosis of right knee strain; l.) a July 2016 VA clinical record which reflects that the Veteran’s right knee pain has been exacerbated since three weeks earlier when he starting working out in preparation for his upcoming National Guard assessment; and m.) a December 2016 VA clinical record which notes a diagnosis of chondromalacia patellae secondary to wear and tear. The examiner should not consider that the Veteran had complaints in the 1990s or prior to 2009 as this has not been supported by the clinical records and is less than credible at this time. If the examiner finds that it is as likely as not that the Veteran has a right knee disability causally related to a period of active service, ACDUTRA, or INACDUTRA, the examiner should state the date(s) of such service. If the examiner finds that the Veteran has a right knee disability aggravated by a period of active service, ACDUTRA, or INACDUTRA, the examiner should state the dates(s) of such service AND state the degree of aggravation (i.e. worsening of the disability since its baseline severity). 10. Obtain a clinical opinion as to whether it is as likely as not (50 percent or greater) that the Veteran has a LIVER disability and/or residuals of COLON CANCER at any time during the pendency of his claim (i.e. since June 2014), and if so, whether it is as likely as not that any such disability is causally related to service. The examiner should consider the pertinent evidence of record to include: a.) articles associated with the claims file which discuss high triglyceride and low HDL cholesterol concentrations; b.) the Veteran’s laboratory findings to include those in June 1997, February 1998, and September 1999; c.) a September 2011 internal medical note which reflects “blood in stool” which appeared hemorrhoidal; d.) a January 2013 VA GI record which notes that the Veteran had persistent GERD, intermittent hematochezia, and low ferritin; e.) a May 2013 STR which notes that the Veteran meets the criteria for metabolic syndrome; f.) the February 2014 and March 2014 VA clinical records which note that the Veteran has a liver abscess and stage 1 colon cancer; g.) the record noting that his cancer was stage 1 (e.g. August 2014); and h.) the Veteran’s weight, age, and known risk factors upon onset. If the examiner finds that it is as likely as not that the Veteran has a liver disability and/or colon cancer causally related to, or aggravated by a period of active service or ACDUTRA, the examiner should state the date(s) of such service. A complete rationale should be provided for all opinions. 11. Schedule the Veteran for an examination to determine whether he has an ACQUIRED PSYCHIATRIC DISABILITY, and if whether it is as likely as not (50 percent or greater) causally related to, or aggravated by service. The examiner should consider the pertinent evidence of record, to include: a.) an October 5, 1995 recruit training center screening (STR) record which notes that his mood was “down”; b.) an April 1997 STR which reflects that the Veteran self-referred for substance abuse/dependence, had his first drink at age 13, had regular drinking at age 22, his mother and father were alcoholics, and he did not have withdrawal/hangovers symptoms to include that he did not having depression; c.) his September 1999 Report of Medical History for separation purposes which reflects that he denied depression or expressive worry and denied frequent trouble sleeping; d.) 2008 clinical records which reflect that the Veteran had been let go from his job in February 2008, was stressed due to his unemployment and inability to find a new job, was diagnosed with adjustment disorder, reported that he was becoming increasingly depressed, that his attempt at contact with his father was “perhaps a contributing factor” in his May 2008 suicide attempt and increase in drinking alcohol, and that the Veteran denied military trauma and stated that “the whole problem is me not being able to work”; e.) a May 2010 record reflects that while in service, he did not feel that his life was under threat (even though the ship he was on fired a missile) and that his current relationship problem with his girlfriend/partner contributes to his low mood; f.) 2013 private records (Dr. D. G.) which reflect a diagnosis of depression; it was noted that he had issues with his relationships with his children; g.) the November 2014 VA examination report which reflects that the Veteran does not meet the diagnostic criteria for PTSD; h.) a January 2015 VA clinical record which reflects that the Veteran is “more stressed, depressed, overwhelmed. Had liver infection in early 2014/February and then diagnosed with colon cancer in April 2014 and had curative surgery”; i.) the VA clinical records noting a diagnosis of PTSD and depression (e.g. 2017); and j.) all confirmed in-service stressors. If the Veteran in in receipt of service connection for a liver and/or colon cancer disability, the examiner should opine whether it is as likely as not (50 percent or greater) that he has an acquired psychiatric disability causally related to or aggravated by his liver and/or colon cancer. An adequate rationale for all opinions should be provided. 12. Obtain a clinical opinion as to whether it is as likely as not that the Veteran has SLEEP APNEA causally related to active service. The examiner should consider the pertinent evidence of record to include: a.) the Veteran’s weight of 170 lbs. upon separation from active service in 1999; b.) the May 2008 in-patient records which note that the Veteran slept well through the night while monitored every 15- 30 minutes, was resting quietly, and did not state any sleeping problems; c.) the diagnosis of sleep apnea in June 2015 at which time the Veteran weighed 237 lbs.; and d.) the Veteran’s age and any other known risk factor at the time of diagnosis. The examiner should not consider, unless additional supporting evidence is added to the record, that the Veteran had complaints in the 1990s as this has not been supported by the clinical records and is less than credible at this time. If the examiner finds that it is as likely as not that the Veteran has sleep apnea causally related to a period of active service or ACDUTRA, the examiner should state the date(s) of such service. If the examiner finds that the Veteran has sleep apnea aggravated by a period of active service or ACDUTRA, the examiner should state the dates(s) of such service AND state the degree of aggravation (i.e. worsening of the disability since its baseline severity). SCOTT W. DALE Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board T. Wishard The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.