Citation Nr: 21026287 Decision Date: 04/30/21 Archive Date: 04/30/21 DOCKET NO. 15-16 980 DATE: April 30, 2021 ORDER New and material evidence having been received, the claim of entitlement to service connection for hypertension is reopened. Entitlement to service connection for hypertension is granted. Entitlement to service connection for a back disability is granted. Entitlement to an effective date earlier than January 25, 2013, for adding J.P. as a dependent child to the Veteran’s awards for the purpose of additional compensation is denied. REMANDED Entitlement to service connection for an acquired psychiatric disorder, including depression and bipolar disorder, is remanded. Entitlement to service connection for sleep apnea is remanded. Entitlement to service connection for a left and right knee disability is remanded. Entitlement to service connection for a right knee disability is remanded. Entitlement to service connection for a right thumb disability is remanded. Entitlement to service connection for hepatitis C is remanded. Entitlement to a rating in excess of 30 percent for a service-connected right ankle disability is remanded. REFERRED The Veteran contends, in part, that his claimed right thumb disability is the result of an injury sustained during schooling that VA funded as part of an approved rehabilitation program under Chapter 31. The Board interprets this allegation as a claim for entitlement to compensation under the provisions of 38 U.S.C. § 1151. However, the agency of original jurisdiction has not adjudicated the matter under this theory of entitlement. Therefore, the Board does not have jurisdiction over this claim, and it is referred to the RO for appropriate action. 38 C.F.R. § 20.904. FINDINGS OF FACT 1. An August 2010 rating decision denied entitlement to service connection for hypertension, the claimant did not appeal this decisions; he did not submit new and material evidence within the one-year appeal period of this decision; and VA did not subsequently obtain and associate with the claim’s file VA treatment records generated within the one-year appeal period of this decision which treatment records are new and material evidence.. 2. Evidence received since the August 2010 rating decision is new, it is related to an unestablished fact necessary to substantiate the claim of service connection for hypertension and it raises a reasonable possibility of substantiating the claim. 3. The Veteran's hypertension manifested during active service and has persisted since. 4. The Veteran's back disability was caused by his service-connected right ankle disability. 5. A December 2010 rating decision granted an increased, 30 percent rating for the Veteran’s service-connected asthma from October 28, 2004, but the Veteran did not identify J.P., who was born in August 2005, as a dependent child until January 25, 2013. CONCLUSIONS OF LAW 1. The August 2010 rating decision is final. 38 U.S.C. § 7105; 38 C.F.R. §§ 3.104, 20.302, 20.1103. 2. Evidence submitted to reopen the claim of entitlement to service connection for hypertension is new and material and therefore the claim is reopened. 38 U.S.C. §§ 5108, 7105; 38 C.F.R. § 3.156. 3. The criteria for service connection for hypertension have been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.307, 3.309. 4. The criteria for service connection for a back disability have been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.310. 5. An effective date prior to January 25, 2013, for the payment of additional compensation based on adding J.P. as a dependent child to the Veteran’s awards is not warranted. 38 U.S.C. §§ 1115, 5110, 5111(a); 38 C.F.R. §§ 3.4, 3.31, 3.57, 3.204, 3.400, 3.401(b). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Army from October 1995 to October 1998 and from December 1999 to October 2004. These matters come before the Board of Veterans' Appeals (Board) on appeal from December 2013, July 2015, January 2016, and October 2017 rating decisions by the Department of Veterans Affairs (VA) Regional Offices (RO) in Denver, Colorado. The December 2013 rating decision denied service connection for bipolar disorder, depression, hypertension, and hepatitis C. The July 2015 rating decision denied service connection for a back disability and entitlement to a rating in excess of 20 percent for the service-connected right ankle disability. The January 2016 rating decision, in pertinent part, denied service connection for right knee, left knee, and right thumb disabilities. The October 2017 rating decision denied service connection for sleep apnea. The Veteran requested a Board videoconference hearing in his May 2015 substantive appeals, but in a March 2020 statement, the Veteran reported he wanted the appeals to be considered based on the evidence of record and no longer have a Board hearing. As the Veteran withdrew his hearing request, the Board will proceed with adjudication. 38 C.F.R. § 20.603. The Board notes the Agency of Original Jurisdiction (AOJ) developed the Veteran’s claims seeking service connection for depression and bipolar disorder as separate appeals, but the Board has recharacterized the issues into a single appeal seeking service connection for an acquired psychiatric disorder. See Clemons v. Shinseki, 23 Vet. App. 1 (2009) (holding that claims for service connection for PTSD also encompass claims for service connection for all psychiatric disabilities afflicting a Veteran based on a review of the medical evidence). In addition, the Veteran’s appeal seeking service connection for hepatitis C has been characterized and developed as a claim to reopen prior final denials of service connection. In this regard, October 2009, August 2010, March 2011, and September 2012 rating decisions denied service connection for Hepatitis C. However, under 38 C.F.R. § 3.156(b), new and material evidence received prior to the expiration of the appeal period will be considered as having been filed in connection with the original claim, which remains pending until a subsequent adjudication directly responds to the relevant evidence. See Beraud v. McDonald, 766 F.3d 1402 (2014). The Veteran was provided a hepatitis C examination in June 2011. Accordingly, the initial claims remained pending until readjudicated by the September 2012 rating decision. In November 2012, the Veteran submitted a private hepatitis C examination report. This evidence was first considered by the December 2013 rating decision on appeal. Therefore, the Board finds the prior denials of service connection for hepatitis C did not become final. Accordingly, the Board will review service connection for hepatitis C on a de novo basis. The Board has characterized the claim accordingly. The Board notes the Veteran the Veteran submitted a supplemental claim seeking, in part, service connection for an acquired psychiatric disorder, bilateral knee disability, and back disability in August 2020. A supplemental claim can be used to transfer legacy appeals into the modernized review system, also known as the Appeals Modernization Act (AMA). However, the Veteran’s August 2020 claim was not filed in time to opt-in to the AMA because it was not submitted within one year of the rating decisions he was attempting to appeal, or within 60 days from when a statement of the case or supplemental statement of the case was issued. 38 C.F.R. § 19.2. In addition, a claimant is prohibited from filing a supplemental claim if he or she elected administrative review of that same claim and the administrative review is pending final adjudication. 38 C.F.R. § 3.2500(a)-(b). Accordingly, the Board will adjudicate entitlement to service connection for a psychiatric disorder, bilateral knee disability, and back disability under the legacy system. Lastly, the Board notes that addition evidence was added to the claims file since the AOJ issued the most recent statement of the case and supplemental statement of the case. Nonetheless, the Board finds that it may adjudicate the below issues without obtaining a waiver or remanding for AOJ review because it finds that this evidence is not pertinent as to the only claim being denied below (i.e., the claim for an effective date earlier than January 25, 2013, for adding J.P. as a dependent child). See 38 C.F.R. § 19.31 (a supplemental statement of the case will be furnished to the veteran when additional pertinent evidence is received after a statement of the case has been issued). The New and Material Evidence Claim As to reopening a prior final decision, the law provides that if new and material evidence has been presented or secured with respect to matters which have been disallowed, these matters may be reopened and the former disposition reviewed. 38 U.S.C. § 5108. New evidence means existing evidence not previously submitted to agency decision makers. Material evidence means existing evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. New and material evidence can be neither cumulative nor redundant of the evidence of record at the time of the last prior final denial of the claim sought to be reopened and must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a). The Court has held that in determining whether the evidence is new and material, the credibility of the newly presented evidence is to be presumed. Justus v. Principi, 3 Vet. App. 510, 513 (1992). The Board is required to consider all the evidence received since the first denial of the claim in light of the totality of the record. See Hickson v. West, 12 Vet. App. 247, 251 (1999). In this regard, the Court in Shade v. Shinseki, 24 Vet. App. 110 (2010) held that the language of 38 C.F.R. § 3.156(a) created a low threshold and viewed the phrase “raises a reasonable possibility of substantiating the claim” as “enabling rather than precluding reopening.” Further, in determining whether this low threshold is met, VA should not limit its consideration to whether the newly submitted evidence relates specifically to the reason why the claim was last denied, but instead should ask whether the evidence could reasonably substantiate the claim were the claim to be reopened, either by triggering VA’s duty to assist or through consideration of an alternative theory of entitlement. Id. at 118. The Court in Turner v. Shulkin, 29 Vet. App. 207 (2018), also held that for purposes of finality VA treatment records dated during the appeal period are consider in VA’s possession even if these records are not physically associated with the claims file until many years after the RO issued a rating decision if the RO had sufficient knowledge of the existence of the records within the one-year appeal period. The Court also held that these VA treatment records will thereafter only trigger VA’s duty under 38 C.F.R. § 3.156(b) if they are new and material evidence. Thereafter, in Lang v. Wilkie, No. 2019-1992 (August 19, 2020), the Court removed the sufficient knowledge of the existence of the VA records requirement in Turner. In evaluating the evidence, the Board has been charged with the duty to assess the credibility and weight given to evidence. Davidson v. Shinseki, 581 F. 3d 1313 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007). Indeed, the Court has declared that in adjudicating a claim, the Board has the responsibility to do so. Bryan v. West, 13 Vet. App. 482, 488-89 (2000). In doing so, the Board is free to favor one medical opinion over another, provided it offers an adequate basis for doing so. Owens v. Brown, 7 Vet. App. 429, 433 (1995). Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits under the laws administered by VA. VA shall consider all information and medical and lay evidence of record. Where there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). With the above criteria in mind, the record shows an August 2010 rating decision denied entitlement to service connection for hypertension on the basis that the evidence of record failed to show such disability manifested during or was otherwise related to active service. The Veteran did not perfect an appeal to this decision. The Board also finds that new and material evidence was not received by the RO in the first year following the issuance of decision. See 38 C.F.R. § 3.156(b). In addition, the Board finds that VA did not subsequently obtain and associate with the claims file VA treatment records generated within the one-year appeal period of the rating decision that were new and material evidence. See Lang, supra; Turner, super. Accordingly, the Board finds that the August 2010 rating decision is final. 38 U.S.C. § 7105; 38 C.F.R. §§ 3.104, 20.302, 20.1103. Evidence received since the August 2010 rating decision includes a November 2012 private examination report that indicates the Veteran’s hypertension manifested in 2005, or potentially within one year of the Veteran’s separation of service. As this private examination report provides for the possibility that the hypertension manifested during active duty service or to compensable degree of severity within one year of his separation from active service, the Board finds that the this new evidence relates to an unestablished fact necessary to substantiate the claim for service connection for hypertension, and raises a reasonable possibility of substantiating the claim. The Board accordingly finds that new and material evidence has been received to reopen the claim of service connection for hypertension. 38 U.S.C. §§ 5108, 7104; 38 C.F.R. § 3.156. The reopened claim will be addressed in the Service Connection section below. The Service Connection Claims Service connection is warranted where the evidence of record establishes 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 thereby. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. If a condition noted during service is not shown to be chronic, then generally a showing of continuity of symptomatology after service is required for service connection if the disability is one that is listed in 38 C.F.R. § 3.309. 38 C.F.R. § 3.303(b); see also Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). In addition, service connection may also be granted on the basis of a post-service initial diagnosis of a disease, where the physician relates the current condition to the period of service. 38 C.F.R. § 3.303(d). Where a Veteran served 90 days or more during a period of war or during peacetime service after December 31, 1946, and a chronic disease, including hypertension, becomes manifest to a degree of 10 percent or more within one year from the date of termination of such service, such disease shall be presumed to have been incurred in or aggravated by service, even though there is no evidence of such disease during the period of service. This presumption is rebuttable by affirmative evidence to the contrary. 38 U.S.C. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309. Service connection may also be established on a secondary basis for a disability proximately due to or aggravated by a service-connected disease or injury. See 38 C.F.R. § 3.310; see also Allen v. Brown, 7 Vet. App. 439 (1995) (en banc). To establish secondary service connection, a Veteran must show: (1) the existence of a present disability; (2) the existence of a service-connected disability; and (3) a causal relationship between the present disability and the service-connected disability. See Wallin v. West, 11 Vet. App. 509, 512 (1998); see also Ward v. Wilkie, 31 Vet. App. 233 (2019). The requirement of a current disability is “satisfied when a claimant has a disability at the time a claim for VA disability compensation is filed or during the pendency of that claim.” See McClain v. Nicholson, 21 Vet. App. 319, 321 (2007). When there is an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. When a veteran seeks benefits and the evidence is in relative equipoise, the veteran prevails. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). A preponderance of the evidence must be against the claim for benefits to be denied. Alemany v. Brown, 9 Vet. App. 518, 519 (1996). Entitlement to service connection for hypertension. The Veteran contends that he has hypertension that manifested during service. Post-service treatment records report show hypertension has been diagnosed. See, e.g., VA treatment record dated in May 2007. Therefore, the remaining question before the Board is whether the Veteran's hypertension began during, is caused by, or is otherwise etiologically related to his military service. See Shedden, supra. The Board has reviewed the record and finds that there is evidence both for and against the claim. The evidence against the claim includes service treatment records that do not indicate hypertension was diagnosed in service. The evidence for the claim includes the Veteran’s service treatment records that show an elevated blood pressure was noted multiple times during service, a November 2012 private examination report, private treatment records, and statements from the Veteran. A May 2004 service treatment record notes the Veteran’s blood pressure was 135/93. A July 2004 service treatment record notes the Veteran’s blood pressure was 120/90. Notably, VA defines hypertension as diastolic blood pressure that is predominantly 90mm or greater. 38 C.F.R. § 4.104, Diagnostic Code 7101. In a November 2012 private examination report, a physician opined the Veteran’s hypertension manifested in 2005, referencing blood pressure readings from VA treatment records of 149/86 in September 2005 and 158/90 in December 2005. A May 2006 private treatment record notes the Veteran’s blood pressure was 148/95. It was 149/94 in August 2006. A May 2007 VA treatment record shows hypertension was diagnosed. In an April 2017 statement, the Veteran reported he was first told he had high blood pressure in September 2005. The Board finds the evidence in favor of and evidence against finding the Veteran’s hypertension manifested during service is of equal weight. While the private physician did not specifically opine the hypertension manifested during service, his notes regarding the noted elevated blood pressure shortly after the Veteran’s separation from active service support such a finding. See Owens, supra; Guerrieri v. Brown, 4 Vet. App. 467, 473 (1993) (“the probative value of medical opinion evidence is based on the medical expert’s personal examination of the patient, the physician’s knowledge and skill in analyzing the data, and the medical conclusion the physician reaches.... As is true with any piece of evidence, the credibility and weight to be attached to these opinions [are] within the province of the [Board as] adjudicators...”). This finding is supported by the elevated blood pressure recorded during and just following service. The Board must therefore resolve all reasonable doubt in favor of the Veteran. See 38 U.S.C. § 5107; 38 C.F.R. § 3.102. Accordingly, service connection for hypertension is warranted. Entitlement to service connection for a back disability. The Veteran is seeking entitlement to service connection for a back disability secondary to his service-connected right ankle disability. Initially, the Board notes that the Veteran is service connected for a right .ankle disability. See rating decision dated in April 2006. Next, based on a comprehensive review of the record, the Board finds that the evidence for and against the Veteran's claim is at least in equipoise. The Veteran was provided a VA back examination in June 2015. The examiner diagnosed a lumbar strain. The Veteran reported he began experiencing back pain in August 2013 after bending over to pick something up, but that it continued to increase in severity, including when he went up and down stairs. The examiner opined the back disability was less likely than not proximately due to or the result of the service-connected right ankle disability. The examiner reasoned there is no clinical or scientific evidence to suggest that patients with a prior ankle fracture have a higher incident of back conditions. She also noted that back conditions are very common and that it did not appear the Veteran regularly used a cane to ambulate. However, the examiner did not address whether the service-connected right ankle disability aggravated the claimed back disability and the opinion is therefore inadequate to inform the Board on the issue of secondary service connection. El-Amin v. Shinseki, 26 Vet. App. 136, 140 (2013). Accordingly, the examiner’s opinion is of limited probative value. A March 2015 VA treatment record shows the Veteran complained of ankle and back pain. The treatment provider noted the Veteran reported his ankle pain increased in severity while using steps and opined that the low back pain was “very likely” caused by his service-connected right ankle disability. The Board finds the opinion to be highly probative evidence in support of the claim because it was based on examination of the Veteran and supported by the Veteran’s descriptions of his symptoms. See Owens, supra; Guerrieri, supra. The Board finds the evidence for and against the claim of service connection for a back disability is at least in relative equipoise. The Board must therefore resolve all reasonable doubt in favor of the Veteran. See 38 U.S.C. § 5107; 38 C.F.R. § 3.102. Accordingly, service connection for a back disability is warranted. The Effective Date Claim Entitlement to Entitlement to an effective date earlier than January 25, 2013, for adding J.P. as a dependent child to the Veteran’s awards. The Veteran contends that the effective date of adding J.P. as a dependent child for the purposes of additional compensation should be the date of his birth in August 2005. In this regard, Veterans who have service-connected disabilities rated 30 percent disabling or higher may be entitled to additional compensation for dependents. 38 U.S.C. § 1115; 38 C.F.R. § 3.4(b)(2). When determining the effective date for an award of additional compensation for dependents, the effective date will be the last of the following dates: (1) the date of claim, (2) the date the dependency arises, (3) effective date of the qualifying disability rating provided evidence of dependency is received within a year of notification of such rating action, or (4) date of commencement of the servicemember's award. 38 C.F.R. § 3.401(b). The "date of claim" for additional compensation for dependents is the date of the Veteran's marriage or birth/adoption of a child, if evidence of the event is received within a year of the event; otherwise, the date notice is received of the dependent's existence, if evidence is received within a year of notification of such rating action. 38 U.S.C. § 5110; 38 C.F.R. § 3.401. The earliest date that an additional award of compensation for dependents can occur is the first day of the calendar month following the month in which the award became effective. 38 C.F.R. § 3.31. A specific claim in the form prescribed by the Secretary must be filed in order for benefits to be paid or furnished to any individual under laws administered by VA. 38 U.S.C. § 5101(a); 38 C.F.R. § 3.151(a). Any person who applies for or is in receipt of any compensation or pension benefit under laws administered by the Secretary shall, if requested by the Secretary, furnish the Secretary with the social security number of any dependent or beneficiary on whose behalf, or based upon whom, such person applies for or is in receipt of such benefit. A person is not required to furnish the Secretary with a social security number for any person to whom a social security number has not been assigned. 38 U.S.C. § 5101(c)(1). In Sharp v. Shinseki, 23 Vet. App. 267, 276 (2009), the United States Court of Appeals for Veterans Claims (Court) held that the effective date for additional compensation for dependents shall be the same date as the rating decision giving rise to such entitlement, irrespective of any previous grant of section 1115 benefits, if proof of dependents is submitted within one year of notice of the rating action. While the Court held that there can be "multiple rating decisions that establish entitlement to additional dependency compensation," the Court still required that proof of dependent status be submitted within one year of notice of rating action. Id. VA will accept, for purposes of determining entitlement to benefits under laws administered by VA, the statement of a claimant as proof of marriage, dissolution of a marriage, birth of a child, or death of a dependent, provided that the statement contains: the date (month and year) and place of the event; the full name and relationship of the other person to the claimant; and the social security number of the other person. 38 U.S.C. § 5124; 38 C.F.R. § 3.204. As noted above, the Veteran’s dependent child J.P. was born in August 2005. The Veteran did not have a combined 30 percent rating as of August 2005 until a December 2010 rating decision granted an increased, 30 percent rating his service-connected asthma from October 28, 2004. Moreover, a thorough review of the record shows the Veteran did not notify VA of J.P.’s existence until he submitted a Declaration of Status of Dependents VA received on January 25, 2013. Notably, J.P. was not identified on Declaration of Status of Dependents forms received in June 2007 and November 2009 even though other dependents were named. The Board is bound by governing law and regulations and has no authority to award benefits not authorized by governing law. Because the Veteran did not notify VA of J.P.’s existence until January 25, 2013, or more than a year after the December 2010 rating decision awarded a 30 percent rating from October 28, 2004, VA is precluded from granting an effective earlier than January 25, 2013, for adding J.P. as a dependent child to the Veteran’s awards for the purpose of additional compensation. The appeal in this matter is therefore denied.   REASONS FOR REMAND Entitlement to service connection for an acquired psychiatric disorder, sleep apnea, a right thumb disability as well as left and right knee disabilities and hepatitis C are remanded. The Veteran is seeking service connection for an acquired psychiatric disorder, sleep apnea, a right thumb disability as well as left and right knee disabilities and hepatitis C. Moreover, a review of the record on appeal reveals that the Veteran afforded the Veteran VA examinations in connections with these claims in June 2011, November 2015, August 2016, and/or September 2019. However, the Board does not find the etiology opinions provided by these examiners adequate. See Guerrieri, supra. The Board has reached this conclusion for the following reasons: the August 2016 VA psychiatric examiner did not provide an etiology opinion as to whether each of the acquired psychiatric disorders diagnosed by treatment providers (i.e., bipolar disorder and depression (see, e.g., VA treatment records dated in May 2013 and September 2015) nor provide an opinion as to whether the Veteran’s pain caused by his service-connected musculoskeletal disabilities aggravated any acquired psychiatric disorder; the September 2019 VA examiner did not opine as to whether the Veteran’s service-connected asthma and allergic rhinitis aggravated his sleep apnea; the November 2015 VA examiner did not opine as to whether the Veteran’s service-connected right index finger disability aggravated his right thumb disability; the November 2015 VA examiner did not opine as to whether the left and right knee disabilities are due to or caused by the left ankle disability or bilateral pes planus or aggravated by the left ankle disability, bilateral pes planus, or right ankle disability; and the June 2011 VA examiner did not opine as to whether hepatitis C manifested during service is otherwise related to other events in service, including the Veteran’s report of having unprotected sex shortly before his discharge from service. See El–Amin v. Shinseki, 26 Vet. App. 136, 140-41 (2013) (holding that, when multiple theories of entitlement are at issue, the Board must ensure that the medical opinions of record directly address all theories reasonably raised by the record). Therefore, the Board finds that a Remand to obtain adequate etiology opinions is required. See 38 U.S.C. § 5103A(d); Barr v. Nicholson, 21 Vet. App. 303, 312 (2007) (holding that when VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate). In providing the opinions and again adjudicating the claims the examiner and the RO should be mindful of the fact that the Court in Ward v. Wilkie, 31 Vet. App. 233 (2019) provided a new definition of aggravation which now includes a temporary worsening of a disability. Entitlement to a rating in excess of 20 percent for the right ankle disability is remanded. Unfortunately, the record reflects that there are outstanding private treatment records that are relevant to the claim seeking an increased rating for the service-right ankle disability. In this regard, the Veteran submitted a February 2020 private evaluation report in March 2020. The report indicates the Veteran had received prior treatment from the provider, an orthopedic surgeon. It does not appear the records dated prior to February 2020 have been sought from the orthopedic surgeon. Notably, a December 2019 VA treatment record indicates the Veteran received treatment for his right ankle disability from an outside provider through VA's Veterans Choice Program during the period on appeal. Subsequent VA treatment records indicate treatment records from non-VA providers were scanned to be added to his medical file, but the records are not associated with the claims file. It is therefore necessary to remand this issue so these outstanding relevant treatment records can be obtained and associated with the record. See 38 U.S.C. § 5103A(b); Ivey v. Derwinski, 2 Vet. App. 320, 323 (1992) (holding that when reference is made to pertinent medical records, VA is on notice of their existence and has a duty to assist the Veteran to attempt to obtain them). Given the above development, the Board finds that a remand is also required to provide the Veteran with a new examination. See 38 U.S.C. § 5103A(d); Green v. Derwinski, 1 Vet. App. 121 (1991) (holding that VA’s duty to assist includes conducting a thorough and contemporaneous examination of the veteran that takes into account the records of prior examinations and treatment). Lastly, the Board notes that VA amended some of its’ criteria for rating musculoskeletal disabilities, including the ankle under 38 C.F.R. § 4.71a, effective February 7, 2012. See 85 Fed Reg 76453 (November 30, 2020); 85 Fed Reg 85523 (December 29, 2020); 86 Fed Reg 8142 (February 4, 2021). Therefore, the Board also finds that a Remand is required for the RO to provide the appellant with a supplemental statement of the case (SSOC) which provide him with notice of the new musculoskeletal rating criteria and adjudicates the claim applying these criteria. See 38 C.F.R. § 19.31 (a SSOC will be furnished to the veteran when additional pertinent evidence is received after a statement of the case has been issued). These issues are REMANDED for the following actions: 1. Obtain and associate with the claims file any outstanding VA treatment records, including any records received from the private orthopedist treating the Veteran’s right ankle disability under VA's Veterans Choice Program. 2. Contact the Veteran and ask him to identify whether there are any outstanding private medical records, including from the private orthopedic surgeon who evaluated the right ankle in February 2020, reflecting treatment for the service-connected right ankle disability or other claimed disabilities. After obtaining all needed authorizations from the Veteran, obtain those records and associate them with the electronic claims file. To expedite this action, the Veteran is encouraged to get these records himself and submit any additional VA or private medical records in his possession. 3. Thereafter, obtain an opinion from a qualified medical professional to address the nature and origin of the Veteran’s diagnosed acquired psychiatric disorders, to include depression and bipolar disorder. The claims file should be made available and reviewed by the examiner. Following consideration of the evidence of record (both lay and medical), the examiner is asked to address the following: a. For each diagnosed acquired psychiatric disorder to include including depression and bipolar disorder, provide an opinion as to whether it is at least as likely as not that it had its onset directly during the Veteran’s service or is otherwise related to any event or injury during his service. b. If a psychosis is diagnosed, provide an opinion as to whether it manifested in the first post-service year. c. For each diagnosed acquired psychiatric disorder to include including depression and bipolar disorder, provide an opinion as to whether it is at least as likely as not (50 percent or greater probability) that it is caused by the pain caused by any of the Veteran’s service-connected musculoskeletal disabilities. d. For each diagnosed acquired psychiatric disorder to include including depression and bipolar disorder, provide an opinion as to whether it is at least as likely as not (50 percent or greater probability) that it is aggravated by the pain caused by any of the Veteran’s service-connected musculoskeletal disabilities. In providing answers to the above questions the examiner should consider and discuss the service treatment records. In providing answers to the above questions the examiner should consider and discuss, among other things, the Veteran’s competent lay claims regarding observable symptomatology in and/or since service. In providing answers to the above questions the examiner is also advised that the term “at least as likely as not” does not mean within the realm of medical possibility, but rather that the medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of conclusion as it is to find against it. In providing answers to the above questions the examiner should also be aware that the Court in Ward, supra, held that a "permanent worsening" of a non-service-connected disability is not required to establish secondary service connection on the basis of aggravation (i.e., aggravation can be established by a temporary, incremental worsening of a disability, including an increase in pain). In answering all the questions please articulate the reasoning underpinning your conclusions. That is, (1) identify what facts and information--whether found in the record or outside the record--support your opinion, and (2) explain how that evidence justifies your opinion. If the examiner cannot respond to an inquiry without resort to speculation as to any of the above claims he or she should so state, and must further explain why it is not feasible to provide a medical opinion, indicating whether the need to speculate is caused by a deficiency in the state of general medical knowledge (i.e. no one could respond given medical science and the known facts) or by a deficiency in the record or in the examiner (i.e. additional facts are required, or the examiner does not have the needed knowledge or training). 4. Obtain an opinion from a qualified medical professional to address the nature and origin of the Veteran’s sleep apnea. The claims file should be made available and reviewed by the examiner. Following consideration of the evidence of record (both lay and medical), the examiner is asked to address the following: a. Provide an opinion as to whether it is at least as likely as not that sleep apnea had its onset directly during the Veteran’s service or is otherwise related to any event or injury during his service. b. Provide an opinion as to whether it is at least as likely as not (50 percent or greater probability) that sleep apnea is caused by the Veteran’s service-connected asthma and/or allergic rhinitis. c. Provide an opinion as to whether it is at least as likely as not (50 percent or greater probability) that sleep apnea is aggravated by the Veteran’s service-connected asthma and/or allergic rhinitis. In providing answers to the above questions the examiner should consider and discuss the service treatment records. In providing answers to the above questions the examiner should consider and discuss, among other things, the Veteran’s competent lay claims regarding observable symptomatology in and/or since service. In providing answers to the above questions the examiner is also advised that the term “at least as likely as not” does not mean within the realm of medical possibility, but rather that the medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of conclusion as it is to find against it. In providing answers to the above questions the examiner should also be aware that the Court in Ward, supra, held that a "permanent worsening" of a non-service-connected disability is not required to establish secondary service connection on the basis of aggravation (i.e., aggravation can be established by a temporary, incremental worsening of a disability, including an increase in pain). In answering all the questions please articulate the reasoning underpinning your conclusions. That is, (1) identify what facts and information--whether found in the record or outside the record--support your opinion, and (2) explain how that evidence justifies your opinion. If the examiner cannot respond to an inquiry without resort to speculation as to any of the above claims he or she should so state, and must further explain why it is not feasible to provide a medical opinion, indicating whether the need to speculate is caused by a deficiency in the state of general medical knowledge (i.e. no one could respond given medical science and the known facts) or by a deficiency in the record or in the examiner (i.e. additional facts are required, or the examiner does not have the needed knowledge or training). 5. Obtain an opinion from a qualified medical professional to address the nature and origin of the Veteran’s left knee, right knee, and thumb disabilities. The claims file should be made available and reviewed by the examiner. Following consideration of the evidence of record (both lay and medical), the examiner is asked to address the following: a. For each diagnosed left knee, right knee, and thumb disability, provide an opinion as to whether it is at least as likely as not that it had its onset directly during the Veteran’s service or is otherwise related to any event or injury during his service. b. If arthritis is diagnosed, provide an opinion as to whether it manifested in the first post-service year. c. For each diagnosed left knee, right knee, and thumb disability, provide an opinion as to whether it is at least as likely as not (50 percent or greater probability) that it is caused by any of the Veteran’s service-connected musculoskeletal disabilities. d. For each diagnosed left knee, right knee, and thumb disability, provide an opinion as to whether it is at least as likely as not (50 percent or greater probability) that it is aggravated by any of the Veteran’s service-connected musculoskeletal disabilities. In providing answers to the above questions the examiner should consider and discuss the service treatment records. In providing answers to the above questions the examiner should consider and discuss, among other things, the Veteran’s competent lay claims regarding observable symptomatology in and/or since service. In providing answers to the above questions the examiner is also advised that the term “at least as likely as not” does not mean within the realm of medical possibility, but rather that the medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of conclusion as it is to find against it. In providing answers to the above questions the examiner should also be aware that the Court in Ward, supra, held that a "permanent worsening" of a non-service-connected disability is not required to establish secondary service connection on the basis of aggravation (i.e., aggravation can be established by a temporary, incremental worsening of a disability, including an increase in pain). In answering all the questions please articulate the reasoning underpinning your conclusions. That is, (1) identify what facts and information--whether found in the record or outside the record--support your opinion, and (2) explain how that evidence justifies your opinion. If the examiner cannot respond to an inquiry without resort to speculation as to any of the above claims he or she should so state, and must further explain why it is not feasible to provide a medical opinion, indicating whether the need to speculate is caused by a deficiency in the state of general medical knowledge (i.e. no one could respond given medical science and the known facts) or by a deficiency in the record or in the examiner (i.e. additional facts are required, or the examiner does not have the needed knowledge or training). 6. Obtain an opinion from a qualified medical professional to address the nature and origin of the Veteran’s hepatitis C. The claims file should be made available and reviewed by the examiner. Following consideration of the evidence of record (both lay and medical), the examiner is asked to address the following: a. Provide an opinion as to whether it is at least as likely as not that hepatitis C had its onset directly during the Veteran’s service or is otherwise related to any event or injury during his service. b. Provide an opinion as to whether hepatitis C manifested in the first post-service year. In providing answers to the above questions the examiner should consider and discuss the service treatment records. In providing an answer to the above question, the examiner should consider and discuss, among other things, the December 2005 diagnosis of hepatitis C. In providing answers to the above questions the examiner should consider and discuss, among other things, the Veteran’s competent lay claims regarding observable symptomatology in and/or since service as well as the Veteran’s contentions that he has not used cocaine but had unprotected sex shortly before his discharge from service. In providing answers to the above questions the examiner is also advised that the term “at least as likely as not” does not mean within the realm of medical possibility, but rather that the medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of conclusion as it is to find against it. In answering all the questions please articulate the reasoning underpinning your conclusions. That is, (1) identify what facts and information--whether found in the record or outside the record--support your opinion, and (2) explain how that evidence justifies your opinion. If the examiner cannot respond to an inquiry without resort to speculation as to any of the above claims he or she should so state, and must further explain why it is not feasible to provide a medical opinion, indicating whether the need to speculate is caused by a deficiency in the state of general medical knowledge (i.e. no one could respond given medical science and the known facts) or by a deficiency in the record or in the examiner (i.e. additional facts are required, or the examiner does not have the needed knowledge or training). 7. Obtain an opinion from a qualified medical professional to address the severity of the Veteran’s right ankle disability. The claims file should be made available and reviewed by the examiner. Any and all studies, tests, and evaluations deemed necessary by the examiner should be performed. Following consideration of the evidence of record (both lay and medical) and the results of the examination, the examiner is asked to address the following: (a) The examiner should identify all right ankle pathology found to be present. (b) The examiner should conduct all indicated tests and studies, to include range of motion studies. The joint involved should be tested in both active and passive motion, in weight-bearing and non-weight-bearing. The examiner should provide range of motion estimates in both active and passive motion, in weight-bearing and non-weight-bearing based on the evidence of record. (c) The examiner should describe any pain, weakened movement, excess fatigability, instability of station and incoordination present. (d) The examiner should also state whether the examination is taking place during a period of flare-up. If it is, the examiner should provide range of motion estimates in both active and passive motion, in weight-bearing and non-weight-bearing during the flare-up. If it is not, the examiner should ask the Veteran to describe the flare-ups he experiences, including: frequency, duration, characteristics, precipitating and alleviating factors, severity and/or extent of functional impairment he experiences during a flare-up of symptoms and/or after repeated use over time. Based on the Veteran’s lay statements and the other evidence of record, the examiner should provide an opinion estimating any additional degrees of limited right ankle forward flexion and backward extension caused by functional loss during a flare-up and after repeated use over time. If the examiner cannot provide the range of motion estimate during flare-ups without resorting to speculation, the examiner should state whether the need to speculate is caused by a deficiency in the state of general medical knowledge (i.e. no one could respond given medical science and the known facts) or by a deficiency in the record or the examiner (i.e. additional facts are required, or the examiner does not have the needed knowledge or training). (e) The examiner should also state the nature, extent, and severity of any right ankle ankylosis. In providing the opinions, the examiner should consider the Veteran’s competent lay claims regarding observable symptomatology. The examination report must include a complete rationale for all opinions expressed. If the examiner feels that any of the requested opinions cannot be rendered without resorting to speculation, the examiner must state whether the need to speculate is caused by a deficiency in the state of general medical knowledge (i.e. no one could respond given medical science and the known facts) or by a deficiency in the record or the examiner (i.e. additional facts are required, or the examiner does not have the needed knowledge or training). (Continued on the next page)   8. After undertaking the above development, the RO should issue the Veteran a SSOC that, among other things, adjudicates and provides the appellant with notice of the new musculoskeletal Diagnostic Codes for rating the ankle. See 85 Fed Reg 76453; 85 Fed Reg 85523; 86 Fed Reg 8142. NEIL T. WERNER Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board William A. Skowronski, 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.