Citation Nr: 21026140 Decision Date: 04/29/21 Archive Date: 04/29/21 DOCKET NO. 16-24 883A DATE: April 29, 2021 ORDER The appeal as to the issue of entitlement to non-service-connected pension benefits is dismissed. The appeal as to the issue of entitlement to service connection for elevated cholesterol is dismissed. New and material evidence having been received, the application to reopen the previously denied claim of service connection for bilateral varicose veins is granted. New and material evidence having been received, the application to reopen the previously denied claim of service connection for a left thigh disability is granted. New and material evidence having been received, the application to reopen the previously denied claim of service connection for a gastrointestinal disability, to include gastric ulcer, is granted. Service connection for a psychiatric disorder, to include posttraumatic stress disorder (PTSD) is granted. Service connection for hypertension is granted. REMANDED Entitlement to service connection for bilateral varicose veins is remanded. Entitlement to service connection for a left thigh disability is remanded. Entitlement to service connection for a gastrointestinal disability, to include gastric ulcer, is remanded. Entitlement to service connection for a low back disability is remanded. Entitlement to service connection for obstructive sleep apnea is remanded. Entitlement to service connection for bilateral pes planus, to include a left foot disability manifested by bone spurs, is remanded. Entitlement to a disability rating greater than 10 percent for service-connected right thigh hamstring strain is remanded. FINDINGS OF FACT 1. During the December 2020 Board hearing, the Veteran withdrew his claim of entitlement to non-service-connected pension benefits. 2. The agency of original jurisdiction (AOJ) has not adjudicated the issue of service connection for elevated cholesterol in the first instance; the Veteran also withdrew the issue during the December 2020 Board hearing. 3. In an unappealed March 2006 rating decision, the RO denied service connection for varicose veins; evidence received since then relates to an unestablished fact and raises a reasonable possibility of substantiating the claim. 4. In an unappealed March 2006 rating decision, the RO denied service connection for a left thigh disability; evidence received since then relates to an unestablished fact and raises a reasonable possibility of substantiating the claim. 5. Resolving all reasonable doubt in the Veteran’s favor, a psychiatric disorder, to include PTSD, is related to active service. 6. Resolving all reasonable doubt in the Veteran’s favor, hypertension is manifested as a result of his service-connected right thigh hamstring strain. CONCLUSIONS OF LAW 1. The criteria for withdrawal of an appeal by the Veteran have been met as to the issue of entitlement to non-service-connected pension benefits. 38 U.S.C. § 7105; 38 C.F.R. § 19.55. 2. The criteria for dismissal of the issue of entitlement to service connection for elevated cholesterol have been met. 38 U.S.C. § 7105; 38 C.F.R. §§ 3.2500, 19.55. 3. An unappealed March 2006 rating decision that denied service connection for bilateral varicose veins, left thigh disability, and gastrointestinal disability is final. 38 U.S.C. § 7105; 38 C.F.R. § 20.1103. 4. New and material evidence having been received, the claim of entitlement to service connection for bilateral varicose veins is reopened. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. 5. New and material evidence having been received, the claim of entitlement to service connection for a left thigh disability is reopened. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. 6. New and material evidence having been received, the claim of entitlement to service connection for a gastrointestinal disability is reopened. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. 7. The criteria for the establishment of service connection for a psychiatric disorder, to include PTSD, are met. 38 U.S.C. §§ 1110, 5103, 5107; 38 C.F.R. §§ 3.303, 3.304. 8. The criteria for service connection for hypertension as secondary to service-connected right thigh hamstring strain are met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.310. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service from September 1981 to September 1984 and from October 1986 to September 1996. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from rating decisions of a Department of Veterans Affairs (VA), Regional Office (RO). In December 2020, the Veteran testified at a Board video conference hearing over which the undersigned presided. A transcript of that hearing is of record. In being cognizant of the United States Court of Appeals for Veterans Claims (Court) in Clemons v. Shinseki, 23 Vet. App. 1 (2009), the Board has re-characterized the issue of service connection for PTSD more generally as a psychiatric disorder, to include PTSD, given that the evidence demonstrates additional variously diagnosed psychiatric disorders. Similarly, the Board has re-characterized the issue of service connection for a gastric ulcer more generally as a gastrointestinal disability, to include a gastric ulcer, as the evidence demonstrates additional variously diagnosed gastrointestinal disorders. In Clemons, VA was instructed to consider alternative current conditions within the scope of a filed claim. Dismissals of Pension and Cholesterol Claims The Board may dismiss any appeal which fails to allege specific error of fact or law in the determination being appealed. 38 U.S.C. § 7105. An appeal may be withdrawn as to any or all issues involved in the appeal at any time before the Board promulgates a decision. 38 C.F.R. § 19.55. Withdrawal may be made by the appellant or by his authorized representative. 38 C.F.R. § 19.55. A withdrawal must be explicit, unambiguous, and done with a full understanding of the consequences of such action by the appellant and the subsequent Board dismissal must include findings as to all three elements. See Acree v. O’Rourke, 891 F.3d 1009 (Fed. Cir. 2018). In the present case, with specific regard to the issue of entitlement to nonservice-connected pension benefits, in correspondence dated in April 2019, the Veteran indicated that he wished to withdraw his claim. Thereafter, prior to the December 2020 Board hearing, the Veteran, his representative, and the undersigned discussed the issue, and the Veteran affirmed that he was requesting a withdrawal. During the hearing, the undersigned clearly discussed the issue to be withdrawn, and the Veteran affirmed that he did not wish to proceed with the appeal. Based on the foregoing, the Board finds the Veteran explicitly, unambiguously, and with a full understanding of the consequences of such action, withdrew the claim. With specific regard to the issue of service connection for elevated cholesterol, in the VA Appeal To Board Of Veterans’ Appeals (VA Form 9) received in October 2017 and October 2019, in conjunction with his appeal of the denial of service connection for hypertension, the Veteran referenced elevated cholesterol since service. The issue of service connection for elevated cholesterol, however, was never adjudicated by the RO, thus, the Board does not have jurisdiction of this issue. Absent a decision, a notice of disagreement and a substantive appeal the Board does not have jurisdiction of an issue. Rowell v. Principi, 4 Vet. App. 9 (1993); Roy v. Brown, 5 Vet. App. 554 (1993). Jurisdiction does indeed matter and it is not "harmless" when the VA, during the claim adjudication, process fails to consider threshold jurisdictional issues. McGinnis v. Brown, 4 Vet. App. 239, 244 (1993). Moreover, during the December 2020 Board hearing, although the Veteran indicated that the issue was on appeal before the Board, he also specifically indicated that he wished to withdraw the issue. As the issue was not on appeal before the Board, it was not ripe for withdrawal by the Veteran. Nonetheless, as the AOJ has not adjudicated the issue in the first instance, the Board lacks jurisdiction to address the same on appeal. Thus, the appeal must be dismissed. 38 U.S.C. § 7105; 38 C.F.R. § 3.2500. Accordingly, there remain no allegations of errors of fact or law for appellate consideration. Therefore, the Board does not have jurisdiction to review the foregoing appeals, and they are dismissed. Service Connection Service connection means that the facts, shown by evidence, establish that a particular injury or disease resulting in disability was incurred in the line of duty in the active military service or, if pre-existing such service, was aggravated during service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. §§ 3.303, 3.304. In order to prevail on the issue of service connection for a disability, there must be evidence of a current disability; evidence of in-service occurrence or aggravation of a disease or injury; and medical evidence, or in certain circumstances, lay evidence, of a nexus between an in-service injury or disease and the current disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). Service connection for certain chronic diseases, such as arthritis, peptic ulcer disease, and certain psychoses, may also be established based upon a legal “presumption” by showing that it manifested itself to a degree of 10 percent or more within one year from the date of separation from service. 38 U.S.C. § 1112; 38 C.F.R. §§ 3.307, 3.309. The option of establishing service connection through a demonstration of continuity of symptomatology rather than through a finding of nexus is specifically limited to the chronic disabilities listed in 38 C.F.R. § 3.309(a). See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Service connection may also be granted for any disease diagnosed after service when all the evidence establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Although an unappealed decision is final, a claim will be reopened if new and material evidence is received. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. 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. “New” evidence means existing evidence not previously submitted to VA. “Material” evidence means existing evidence that, by itself or when considered with previous evidence of record, relates to an un-established fact necessary to substantiate the claim. See 38 C.F.R. § 3.156(a). The threshold for determining whether new and material evidence raises a reasonable possibility of substantiating a claim is low. When evaluating the materiality of newly submitted evidence, the focus must not be solely on whether the evidence remedies the principal reason for denial in the last prior decision; rather the determination of materiality should focus on whether the evidence, taken together, could at least trigger the duty to assist or consideration of a new theory of entitlement. Shade v. Shinseki, 24 Vet. App. 110, 117 (2010). If the claim is reopened, it will be reviewed on a de novo basis. 38 U.S.C. §§ 5108, 7105; Evans v. Brown, 9 Vet. App. 273, 282-83 (1996); Manio v. Derwinski, 1 Vet. App. 140 (1991). Reopening Service Connection for Bilateral Varicose Veins The Veteran contends that he has bilateral varicose veins that first manifested during his period of active service. The Veteran’s initial claim of service connection was denied in a March 2006 rating decision in which the RO concluded that there had been no evidence of varicose veins in the Veteran’s service treatment records. The Veteran did not appeal the decision and did not remit any submissions to the RO which contained new and material evidence pertaining to the claim prior to the expiration of the appellate period. See 38 C.F.R. § 3.156(b); Bond v. Shinseki, 659 F.3d 1362, 1367-8 (Fed. Cir. 2011); see also Beraud v. McDonald, 766 F. 3d 1402 (Fed. Cir. 2014) (Receipt of new and material evidence within the appeal period of an unappealed AOJ decision vitiates finality until VA addresses such evidence.) Thus, the March 2006 rating decision became final. The Veteran requested that his claim be reopened in September 2005. The prior denial was continued by the RO in July 2013, May 2015, and June 2016. The evidence of record at the time of the March 2006 rating decision included the Veteran’s service treatment records that were silent as to any reports of varicose veins. The evidence of record also included post-service VA and private outpatient treatment records that did not address varicose veins. Evidence added to the record since the final March 2006 rating decision includes the Veteran’s competent testimony from the December 2020 Board hearing in which he described that he began to exhibit symptoms of varicose veins during service, but that he did not seek treatment for them at that time. He added that the varicose veins have become increasingly symptomatic ever since. Additionally, a lay statement from the Veteran’s spouse received in January 2021 shows that the Veteran was said to have been diagnosed with varicose veins at the Kenner Army Hospital in Fort Lee, Virginia, in 1996. It was also indicated that he was diagnosed with varicose veins after service by the Prime Care Family Practice in 1998. The evidence added to the record since the final March 2006 rating decision constitutes new and material evidence. It is new, as it was not previously of record when the prior decision was made; and taken as a whole, relates to an unestablished fact necessary to substantiate the claim. As such, the Board finds that the above described evidence, at the very least, triggers VA’s duty to assist by providing a VA examination. See, e.g., Shade, 24 Vet. App. at 117. Thus, the claim is reopened. Reopen Service Connection for Left Thigh Disability The Veteran contends that he has a left thigh disability that first manifested during his period of active service. The Veteran’s initial claim of service connection was denied in a March 2006 rating decision in which the RO concluded that there had been no evidence of a left hamstring strain during service, but rather the Veteran had reported left hamstring pain shortly after service in September 1996. The Veteran did not appeal the decision and did not remit any submissions to the RO which contained new and material evidence pertaining to the claim prior to the expiration of the appellate period. See 38 C.F.R. § 3.156(b); Bond, 659 F.3d at 1367-8; see also Beraud, 766 F. 3d at 1402. Thus, the March 2006 rating decision became final. The Veteran requested that his claim be reopened in May 2012. The evidence of record at the time of the March 2006 rating decision included the Veteran’s service treatment records that did not show treatment for a left thigh disability. A VA outpatient treatment record dated in October 1996 showed that the Veteran reported a one-year history of a left hamstring injury. He described ongoing pain with running and flexion at the waist. The provisional diagnosis was left lower extremity musculoskeletal pain. The evidence of record also included post-service VA and private outpatient treatment records that showed intermittent reports of left leg pain. Evidence added to the record since the final March 2006 rating decision includes the Veteran’s competent testimony from the December 2020 Board hearing in which he described experiencing left hamstring issues during physical training in active service. He added that the varicose veins he has continued to exhibit left hamstring and leg symptoms ever since. Additionally, a lay statement from the Veteran’s spouse received in January 2021 shows that the Veteran was said to have been diagnosed with a left hamstring injury during service in 1995. She added that he had been treated for leg pain since service through 2021. The evidence added to the record since the final March 2006 rating decision constitutes new and material evidence. It is new, as it was not previously of record when the prior decision was made; and taken as a whole, relates to an unestablished fact necessary to substantiate the claim. As such, the Board finds that the above described evidence, at the very least, triggers VA’s duty to assist by providing a VA examination. See, e.g., Shade, 24 Vet. App. at 117. Thus, the claim is reopened. Reopen Service Connection for Gastrointestinal Disability The Veteran contends that he has a gastrointestinal disability, to include a gastric ulcer, that first manifested during his period of active service. The Veteran’s initial claim of service connection was denied in a March 1997 rating decision in which the RO concluded that while the Veteran had been treated for a gastric ulcer in service, there had been no evidence of a current disability. The Veteran did not appeal the decision and did not remit any submissions to the RO which contained new and material evidence pertaining to the claim prior to the expiration of the appellate period. See 38 C.F.R. § 3.156(b); Bond, 659 F.3d at 1367-8; see also Beraud, 766 F. 3d at 1402. Thus, the March 1997 rating decision became final. The Veteran requested that his claim be reopened in February 2014. The evidence of record at the time of the March 1997 rating decision included the Veteran’s service treatment records that had shown treatment for a gastric ulcer in 1992. A VA examination report dated in January 1997 had shown a diagnosis of a history of gastric ulcer in 1992; no residuals by X-ray, only minimal symptoms, with indigestion only after eating certain foods. Evidence added to the record since the final March 2006 rating decision includes the Veteran’s competent testimony from the December 2020 Board hearing in which he described experiencing ongoing symptoms including colitis and reflux. He added that his symptoms are also associated with stress and certain medications taken for his service-connected disabilities. Additionally, in correspondence dated in September 2018, the Veteran described experiencing ongoing reflux, nausea, heartburn, regurgitation, and other symptoms consistent with gastroesophageal reflux disease. A lay statement from the Veteran’s spouse received in January 2021 shows that the Veteran was said to have been diagnosed a gastric ulcer during active service in 1992. Intermittent VA outpatient treatment records show that the Veteran was treated with medication for a history of gastrointestinal symptoms. The evidence added to the record since the final March 2006 rating decision constitutes new and material evidence. It is new, as it was not previously of record when the prior decision was made; and taken as a whole, relates to an unestablished fact necessary to substantiate the claim. As such, the Board finds that the above described evidence, at the very least, triggers VA’s duty to assist by providing a VA examination. See, e.g., Shade, 24 Vet. App. at 117. Thus, the claim is reopened. Service Connection for a Psychiatric Disorder The Veteran asserts that he has a psychiatric disorder, to include PTSD, that is manifested as a result of his period of active service. Service connection for PTSD requires (1) medical evidence diagnosing the condition in accordance with 38 C.F.R. § 4.125 (a); (2) a link, established by medical evidence, between current symptoms and an in-service stressor; and (3) credible supporting evidence that the claimed in-service stressor occurred, unless the stressor is related to a Veteran’s fear of hostile military or terrorist activity. 38 C.F.R. § 3.304(f). During the December 2020 Board hearing, the Veteran, in pertinent part, asserted that he had a tour of duty in the Republic of Korea during which he was stationed near the Korean Demilitarized Zone (DMZ), and that he was in fear of being killed. He also described that he experienced personal trauma during active service in that both his grandparents and his father died while he was on active duty. He also reported that his spouse experienced a miscarriage, and his twin daughters had been hospitalized with pneumonia while he was on active duty. He added that each such experienced resulted in stress and depression as he could not be with his family during these difficult times. Various lay statements from the Veteran’s spouse that are of record corroborate the Veteran’s description of events. Additionally, a lay statement from D.S., a fellow service member, received in January 2021, corroborates the Veteran’s testimony regarding his asserted in-service traumatic experiences. A VA examination report dated in September 2015 shows that the Veteran met the criteria for a diagnosis PTSD and alcohol use disorder, in sustained remission. VA correspondence from S.L. Carter, M.S.N., dated in November 2016, shows that the Veteran was said to have a history of mixed anxiety, depression, and PTSD. It was suggested that the Veteran’s drinking and drug use during service were an effort to cope with his anxiety and stress that were caused by his military service. A VA examination report dated in October 2018 shows that the Veteran was diagnosed with moderate, recurrent, major depressive disorder; and PTSD, although, stressors were not conceded by VBA. The examiner explained that it was felt the Veteran’s symptoms of PTSD were related to a fear of hostile military or terrorist activity, the claimed stressor was adequate for a PTSD diagnosis, and his symptoms were related to these stressors. The examiner noted that the Veteran had not wavered in his reporting of traumatic symptoms. The examiner also opined that the diagnosed major depressive disorder was most likely caused by or a result of his untreated mental health issues which began when he was on active duty. Also contributing to his depressive diagnosis were the deaths of his grandparents and his parents. He reported being extremely angry at the Army for not allowing him to be close to his family after his father’s death. He was sent home from Germany upon learning of his father’s grave medical condition. Upon his father’s passing he was sent back to Germany. Per his wife’s letter he was very close to his family and wanted to remain in the United States. Correspondence from C.C. Frey, D.N.P., dated in July 2018, shows that the Veteran was said to have been under VA psychiatric care for PTSD since October 2015, and it was the examiner’s professional opinion that the disability was service connected. Correspondence from R.J. del Rio, PhD, received in October 2018, shows that the Veteran was said to have a clinical diagnosis of PTSD with associated symptomatology to include anxiety, suspiciousness, chronic sleep impairment, memory loss, difficulty adapting to stressful circumstances, and an inability to establish and maintain effective relationships. Dr. del Rio indicated that there was a nexus between the current PTSD and active service. Correspondence from D. Soper, M.D., attending VA psychiatrist, dated in December 2020, shows that the Veteran was diagnosed with major depressive disorder and unspecified anxiety disorder. He was said to be undergoing ongoing treatment for his symptoms. Having carefully considered the evidence of record, the Board finds that it is in favor of the Veteran’s claim. Here, the Board finds that while VA has not conceded the Veteran’s asserted stressful events, the lay evidence from the Veteran’s fellow service member, coupled with the lay statements from his spouse and his competent testimony, are all sufficient to verify the stressors claimed by the Veteran. Moreover, the VA and private medical care provider all suggest that there is a nexus exists between the Veteran’s in-service stressors and his current diagnoses. Further, there is no negative medical opinion evidence. Although the Board is not required to accept medical authority supporting a claim, VA must provide reasons for rejecting that evidence and, more importantly, must provide a medical basis other than its own unsubstantiated conclusions in support of a determination. Jones v. Principi, 16 Vet. App. 219, 225 (2002), citing Smith v. Brown, 8 Vet. App. 546, 553 (1996) (en banc); Colvin v. Derwinski, 1 Vet. App. 171 (1991). Here, because the only medical opinion evidence supports the Veteran’s claim, service connection for a psychiatric disorder, to include PTSD, is warranted. In this regard, the Board points out that the VA has been cautioned against seeking an additional medical opinion where favorable evidence in the record is unrefuted, and it would not be permissible to undertake further development if the purpose was to obtain evidence against an appellant’s claim. See Mariano v. Principi, 17 Vet. App. 305, 312 (2003). In light of the foregoing, the Board finds that the most probative medical evidence weighs in favor of the Veteran’s claim. Therefore, resolving all reasonable doubt in the Veteran’s favor, the evidence of record sufficiently relates diagnosis of a psychiatric disorder, to include PTSD, to active service, and service connection is warranted. Service Connection for Hypertension The Veteran asserts that he has developed hypertension as a result of his period of active service. During his December 2020 Board hearing, he described having inconsistent blood pressure readings since the early 2000’s. He added that his hypertension is related to the now-service-connected psychiatric disorder, to include PTSD. Service treatment records do not show a diagnosis of hypertension during the Veteran’s period of active service. Following service, in correspondence received in September 2018, the Veteran asserted that his service-connected right thigh hamstring strain had made it difficult to exercise and he had, thus, experienced considerable weight gain. As his weight increased, he began to develop headaches, blurred vision, dizziness, and chest pain, and was diagnosed with hypertension. A private medical opinion from G.G. Uribe, A.R.N.P., dated in September 2018, shows that the it was concluded that it was at least as likely as not that the Veteran’s current hypertension was secondary to, related to, and/or aggravated by his service-connected right thigh hamstring strain with subsequent weight gain. Upon review of the record, the evidence to at least be in equipoise as to whether the Veteran’s current hypertension is proximately due to his service-connected right thigh disability. In this regard, obesity as an “intermediate step” in a causal chain for service connection can be established on either a causal or aggravation basis. See Walsh v. Wilkie, 32 Vet. App. 300 (2020). The opinion in favor of the Veteran’s claim is definitive, based upon a review of the Veteran’s medical history, and supported by detailed rationale. There is no competent medical evidence of record to rebut the opinion in support of the Veteran’s claim or otherwise diminish its probative weight. As such, the evidence is at the very least in relative equipoise as to whether the Veteran’s diagnosed hypertension is secondary to his service-connected right thigh hamstring strain. Although the Board is not required to accept medical authority supporting a claim, VA must provide reasons for rejecting that evidence and, more importantly, must provide a medical basis other than its own unsubstantiated conclusions in support of a determination. Jones, 16 Vet. App. at 225; Colvin, 1 Vet. App. at 171. Here, because the only medical opinion evidence supports the Veteran’s claim, service connection is warranted. VA has been cautioned against seeking an additional medical opinion where favorable evidence in the record is unrefuted, and indicated that it would not be permissible to undertake further development if the purpose was to obtain evidence against an appellant’s claim. See Mariano, 17 Vet. App. at 312. Accordingly, after resolving all doubt in favor of the Veteran, service connection for hypertension is warranted. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. REASONS FOR REMAND Bilateral Varicose Veins Having reopened the claim of service connection for varicose veins, the Board finds that additional development is required prior to further adjudication of this matter. The Veteran contends that he has bilateral varicose veins that first manifested during his period of active service. During the December 2020 Board hearing, he described that he began to exhibit symptoms of varicose veins during service, but that he did not seek treatment for them at that time. He added that the varicose veins have become increasingly symptomatic ever since. The January 2021 lay statement from the Veteran’s spouse suggests that the Veteran was diagnosed with varicose veins at the Kenner Army Hospital in Fort Lee, Virginia, in 1996; and that he was diagnosed with varicose veins after service by the Prime Care Family Practice in 1998. In light of the foregoing, the Veteran should have been afforded a VA examination to address diagnosis and etiology of the claimed varicose veins. See McLendon v. Nicholson, 20 Vet. App. 79 (2006). Left Thigh Disability Having reopened the claim of service connection for a left thigh disability, the Board finds that additional development is required prior to further adjudication of this matter. The Veteran contends that he has a left thigh disability that first manifested during his period of active service. During the December 2020 Board hearing, he described that he began to exhibit left hamstring symptoms during service. Treatment records dated within one month following separation from active service show that he reported a one-year history of left hamstring symptoms. Intermittent VA and private outpatient treatment records have shown that the Veteran has been treated for leg pain since service. The January 2021 lay statement from the Veteran’s spouse adds that the Veteran first injured his left hamstring in 1995. In light of the foregoing, the Veteran should have been afforded a VA examination to address diagnosis and etiology of the claimed left thigh disability. See McLendon, 20 Vet. App. at 79. Gastrointestinal Disability Having reopened the claim of service connection for a gastrointestinal disability, the Board finds that additional development is required prior to further adjudication of this matter. The Veteran contends, and the service treatment records corroborate, that he was treated for a gastric ulcer during his period of active service. VA outpatient treatment record document that he has been taking medication for gastrointestinal symptoms since at least 2006. He has reported experiencing ongoing reflux, nausea, heartburn, regurgitation, and other symptoms consistent with gastroesophageal reflux disease ever since active service. In light of the foregoing, the Veteran should be afforded a VA examination to address diagnosis and etiology of the claimed gastrointestinal disability. See McLendon, 20 Vet. App. at 79. Low Back Disability The Veteran contends that he has a low back disability that is the result of his active service. During his December 2020 Board hearing, he explained that the rigors of his physical activity caused symptoms that have continued ever since active service. In correspondence dated in March 2019, he also suggested that his service-connected calluses, as well as the pes planus for which he currently seeks to establish service connection, have contributed to the manifestation of the low back disability on a secondary basis. Post-service VA and private outpatient treatment record demonstrate that the Veteran has been treated for a variously diagnosed low back disability. He had not been afforded a VA examination to address diagnosis and etiology of the claimed low back disability. See McLendon, 20 Vet. App. at 79. Moreover, given that the Veteran has raised a secondary theory of entitlement and no medical opinion on that theory has been obtained, such should be addressed on remand. Obstructive Sleep Apnea The Veteran contends that he has obstructive sleep apnea is a result of his period of active service. A private medical record from Prime Care Family Practice, dated in September 2005, shows that the Veteran reported that his wife tells him that he snores a lot. A VA sleep polysomnography report dated in June 2015 shows that the Veteran was diagnosed with obstructive sleep apnea. In a lay statement dated in October 2015, the Veteran’s spouse indicated that as a result of the pressures he had experienced during active service, he was diagnosed with obstructive sleep apnea. In a January 2021 lay statement, the Veteran’s spouse added that the Veteran had been diagnosed with obstructive sleep apnea by VA in 2013. In his October 2015 notice of disagreement, the Veteran asserted that his obstructive sleep apnea was the result of his now-service-connected PTSD. The Veteran has not been afforded a VA examination to address the etiology of the claimed obstructive sleep apnea, to include whether it is secondary to a service-connected disability. See McLendon, 20 Vet. App. at 79; Allen, 7 Vet. App. at 439; see also Colvin, 1 Vet. App. at 175; Hatlestad, 3 Vet. App. at 216. Bilateral Pes Planus and Left Foot Bone Spurs The Veteran asserts that he has bilateral pes planus and left foot bone spurs that are manifested as a result of his period of active service. During the December 2020 Board hearing, he described that his asserted disorders were the result of marching and physical training during service. He added that while his entrance examination had noted he had flat feet, he had never had any foot symptoms prior to his entrance into service. A VA examination report dated in April 2019 shows that the examiner opined that from review of the service treatment records, the diagnosis of pes planus was present prior to entry to service and makes it less likely that this condition occurred while in service. Therefore, the condition was less likely than not incurred in or caused by the claimed in-service foot problems complaints. In an addendum dated in May 2019, the same VA examiner added that from a review of the service treatment records, the diagnosis of pes planus was present prior to entry. There were no clinical notes found during the 10-year period of service indicating foot pain until the June 1996 separation examination. Although, the Veteran had calluses at year 10 of service, there is no evidence of an early progression of the disease process of pes planus. Therefore, the claimed bilateral pes planus which clearly and unmistakably existed prior to service, was not aggravated beyond its natural progression by an in-service event, injury, or illness. The Board finds the opinions of the VA examiner to be of limited probative value as the examiner did consider the Veteran’s reports of having not experienced any foot symptoms prior to active service, and having experienced increased foot symptoms during and since his separation from active service. See Dalton v. Nicholson, 21 Vet. App. 23 (2007). Additionally, the examiner did not provide an opinion as to the etiology of the asserted left foot bone spurs. When medical evidence is inadequate, VA must supplement the record by seeking an advisory opinion or ordering another medical examination. Colvin, 1 Vet. App. at 175; Hatlestad, 3 Vet. App. at 216; see also Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). Increased Evaluation for Right Thigh Hamstring Strain The Veteran asserts that his service-connected right thigh hamstring strain is more disabling than reflected by the currently assigned 10 percent disability rating. During the December 2020 Board hearing, the Veteran indicated that his symptoms had increased in severity since his most recent VA examination. As the severity of the disability is crucial in assessing the level of disability, the Board finds that updated examination is warranted. See Snuffer v. Gober, 10 Vet. App. 400, 403 (1997); see also Allday v. Brown, 7 Vet. App. 517, 526 (1995); see also VAOPGCPREC 11-95 (1995), 60 Fed. Reg. 43, 186 (1995). As such, the Board finds that, on remand, the Veteran be afforded a new VA examination to determine the current nature and severity of his service-connected right thigh disability. The matters are REMANDED for the following action: 1. Obtain records of any inpatient treatment of the Veteran at Kenner Army Hospital in Fort Lee, Virginia, in 1996. Document all requests for information as well as all responses in the claims file. 2. Ask the Veteran to complete a VA Form 21-4142 for treatment of varicose veins at the Prime Care Family Practice in 1998. Make two requests for the authorized records unless it is clear after the first request that a second request would be futile. Document all requests for information as well as all responses in the claims file. 3. Schedule the Veteran for a VA examination for his asserted bilateral varicose veins. The examiner must review the claims file. If a diagnosis cannot be provided but the Veteran’s condition manifests in symptoms that cause functional impairment, then the examiner should consider them a “disability” for the purpose of providing the requested opinion(s) below. The examiner is asked to opine as to whether the Veteran has bilateral varicose veins that are at least as likely (50 percent or great probability) as not related to his period of active service. The examiner is advised that the Veteran is competent to report his symptoms and history, and such reports must be specifically acknowledged and considered in formulating any opinions. If the examiner rejects the Veteran's reports of symptomatology, he or she must provide a reason for doing so. The absence of evidence of treatment for varicose veins in the Veteran's service treatment records cannot, standing alone, serve as the basis for a negative opinion. If the examiner is unable to provide an opinion without resort to speculation, he or she should explain why this is so and what if any additional evidence would be necessary before an opinion could be rendered. 4. Schedule the Veteran for a VA examination for his asserted left thigh disability. The examiner must review the claims file. If a diagnosis cannot be provided but the Veteran’s condition manifests in symptoms that cause functional impairment, then the examiner should consider them a “disability” for the purpose of providing the requested opinion(s) below. The examiner is asked to opine as to whether the Veteran has a left thigh disability, to include residuals of a left hamstring injury, that is at least as likely as not (50 percent or greater) related to his period of active service, to include the reported 1995 in-service treatment for a left hamstring injury referenced in the October 1996 VA outpatient treatment record. The examiner is advised that the Veteran is competent to report his symptoms and history, and such reports must be specifically acknowledged and considered in formulating any opinions. If the examiner rejects the Veteran’s reports of symptomatology, he or she must provide a reason for doing so. The absence of evidence of treatment for a specific left thigh disability in the Veteran’s service treatment records cannot, standing alone, serve as the basis for a negative opinion. If the examiner is unable to provide an opinion without resort to speculation, he or she should explain why this is so and what if any additional evidence would be necessary before an opinion could be rendered. 5. Schedule the Veteran for a VA examination for his asserted gastrointestinal disability. The examiner must review the claims file. If a diagnosis cannot be provided but the Veteran’s condition manifests in symptoms that cause functional impairment, then the examiner should consider them a “disability” for the purpose of providing the requested opinion(s) below. The examiner is asked to opine as to whether the Veteran has a gastrointestinal disability that is at least as likely as not (50 percent or greater probability) related to his period of active service, to specifically include the 1992 diagnosis of a gastric ulcer. The examiner is also asked to opine as to whether (a) it is at least as likely as not that the Veteran's diagnosed gastrointestinal disability was caused (in whole or in part) by a service-connected disability or any medication taken for its treatment; or (b) it is at least as likely as not that the Veteran's diagnosed gastrointestinal disability is aggravated (worsened) by a service-connected disability or any medication taken for its treatment? If the Veteran's current gastrointestinal disability is aggravated by a service-connected disability, the examiner should to the extent possible identify the level of such aggravation by identifying a baseline level of disability. The examiner is advised that the Veteran is competent to report his symptoms and history, and such reports must be specifically acknowledged and considered in formulating any opinions. If the examiner rejects the Veteran’s reports of symptomatology, he or she must provide a reason for doing so. The absence of evidence of treatment for a particular gastrointestinal disability in the Veteran’s service treatment records cannot, standing alone, serve as the basis for a negative opinion. If the examiner is unable to provide an opinion without resort to speculation, he or she should explain why this is so and what if any additional evidence would be necessary before an opinion could be rendered. 6. Schedule the Veteran for a VA examination for his asserted low back disability. The examiner must review the claims file. If a diagnosis cannot be provided but the Veteran’s condition manifests in symptoms that cause functional impairment, then the examiner should consider them a “disability” for the purpose of providing the requested opinion(s) below. The examiner should answer all of the following questions as definitively as possible: (a) Is it at least as likely as not (50 percent or greater probability) that the Veteran's diagnosed low back disability had its onset in service, was manifested by arthritis in the year immediately following any period of service, or is otherwise the result of a disease or injury in service? (b) Is it at least as likely as not that the Veteran's diagnosed low back disability was caused (in whole or in part) by a service-connected disability, to include the service-connected foot and thigh disabilities? (c) Is it at least as likely as not that the Veteran's diagnosed low back disability is aggravated (worsened) by a service-connected disability, to include the foot and thigh disabilities? If the Veteran's current low back disability is aggravated by a service-connected disability, the examiner should also indicate, to the extent possible, the level of such aggravation by identifying the baseline level of disability. The examiner is advised that the Veteran is competent to report his symptoms and history, and such reports must be specifically acknowledged and considered in formulating any opinions. If the examiner rejects the Veteran's reports of symptomatology, he or she must provide a reason for doing so. The absence of evidence of treatment for a low back disability in the Veteran's service treatment records cannot, standing alone, serve as the basis for a negative opinion. If the examiner is unable to provide an opinion without resort to speculation, he or she should explain why this is so and what if any additional evidence would be necessary before an opinion could be rendered. 7. Schedule the Veteran for a VA examination for his asserted obstructive sleep apnea. The examiner must review the claims file. The examiner should answer all of the following questions as definitively as possible: (a) Is it at least as likely as not (50 percent or greater probability) that the Veteran's diagnosed obstructive sleep apnea had its onset in service, or is otherwise the result of a disease or injury in service? (b) Is it at least as likely as not that the Veteran's diagnosed obstructive sleep apnea was caused (in whole or in part) by a service-connected disability, to include the service-connected psychiatric disorder, to include PTSD? (c) Is it at least as likely as not that the Veteran's diagnosed obstructive sleep apnea is aggravated (made worse as shown by comparing the current disability to medical evidence created prior to any aggravation) by a service-connected disability, to include the service-connected psychiatric disorder, to include PTSD? If the Veteran's current obstructive sleep apnea is aggravated by a service-connected disability, the examiner should also indicate, to the extent possible, the level of such aggravation by identifying the baseline level of disability. The examiner is advised that the Veteran is competent to report his symptoms and history, and such reports must be specifically acknowledged and considered in formulating any opinions. If the examiner rejects the Veteran's reports of symptomatology, he or she must provide a reason for doing so. The absence of evidence of treatment for obstructive sleep apnea in the Veteran's service treatment records cannot, standing alone, serve as the basis for a negative opinion. If the examiner is unable to provide an opinion without resort to speculation, he or she should explain why this is so and what if any additional evidence would be necessary before an opinion could be rendered. 8. Schedule the Veteran for a VA examination with a VA examiner that has not previously examined the Veteran for his asserted bilateral pes planus with left foot bone spurs. The examiner must review the claims file. (a) Please clarify whether the Veteran has bilateral pes planus and/or left foot bone spurs. (b) If the Veteran has bilateral pes planus and/or left foot bone spurs, please also, indicate whether or not this is a congenital or developmental disorder, and if so, whether it is a congenital or developmental defect or disease. [Note: a disease generally refers to a condition that is considered capable of improving or deteriorating while a defect is generally not considered capable of improving or deteriorating. VAOPGCPREC 82-90 (1990)]. (c) If it is a congenital or developmental defect, please opine whether it is at least as likely as not that there was a superimposed injury or disease in service that resulted in additional disability. (d) If it is a congenital or developmental disease or is not a congenital or developmental disorder, state whether it is clear and unmistakable (obvious, manifest, and undebatable) that such diagnosis existed prior to active service. If so, state whether it is clear and unmistakable (obvious, manifest, and undebatable) that the pre-existing diagnosis WAS NOT aggravated (i.e., permanently worsened) during service or whether it is clear and unmistakable that any increase was due to the natural progress. (e) If the examiner renders unfavorable opinions with respect to remand paragraphs (b), (c), or (d), state whether it is at least as likely as not (50 percent or greater probability) that the diagnosed bilateral pes planus and/or left foot bone spurs had its onset in service, or is otherwise related to active service. The examiner is advised that the Veteran is competent to report his symptoms and history, and such reports must be specifically acknowledged and considered in formulating any opinions. If the examiner rejects the Veteran’s reports of symptomatology, he or she must provide a reason for doing so. If the examiner is unable to provide an opinion without resort to speculation, he or she should explain why this is so and what if any additional evidence would be necessary before an opinion could be rendered. 9. Schedule the Veteran for an examination by an appropriate clinician to determine the current severity of his service-connected right thigh hamstring strain. The examiner should provide a full description of the disability and report all signs and symptoms necessary for evaluating the Veteran’s disability under the rating criteria. In so doing, the examiner must test the Veteran’s active motion, passive motion, and pain with weight-bearing and without weight-bearing. If it is not possible to provide a specific measurement without speculation, the examiner must state whether the need to speculate is due to a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts), a deficiency in the record (additional facts are required), or the examiner (does not have the knowledge or training). The examiner must also attempt to elicit information regarding the severity, frequency, and duration of any flare-ups, and the degree of functional loss during flare-ups. If it is not possible to provide a specific measurement based on direct observation, the examiner should provide an estimate, if at all possible, of the additional impairment due to flare-ups based on the other evidence of record and the Veteran’s statements. If it is not possible to provide a specific measurement without speculation, the examiner must state whether the need to speculate is due to a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts), a deficiency in the record (additional facts are required), or the examiner (does not have the knowledge or training). MARTIN B. PETERS Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board D. Orfanoudis, Counsel 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.