Citation Nr: 21032722 Decision Date: 05/27/21 Archive Date: 05/27/21 DOCKET NO. 14-32 115 DATE: May 27, 2021 ORDER Entitlement to service connection for right ear hearing loss is denied. Entitlement to service connection for left ear hearing loss is denied. Entitlement to an initial compensable evaluation for fracture of 5th metatarsal of right foot is denied. REMANDED Entitlement to service connection for an acquired psychiatric disorder, to include a personality disorder, depressive disorder, schizophrenia, and nervousness is remanded. Entitlement to service connection for a sleep disorder, to include as secondary to an acquired psychiatric disorder is remanded. FINDINGS OF FACT 1. The Veteran's right ear hearing loss did not manifest in service or within one year of separation and is not otherwise related to any disease, injury, or event that occurred during her period of active duty service. 2. The preponderance of the evidence of record is against a finding that the Veteran has, or has had at any time during the appeal, a current diagnosis of left ear hearing loss for VA purposes 3. The Veteran's fracture of 5th metatarsal of right foot has not been manifested by moderate symptoms involving the foot. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for right ear hearing loss have not been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. 2. The criteria for entitlement to service connection for left ear hearing loss have not been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. 3. The criteria for an initial compensable rating for fracture of 5th metatarsal of right foot have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.71a, Diagnostic Code (DC) 5284. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the U.S. Air Force from January 1980 to January 1984. These matters come before the Board of Veterans' Appeals (Board) on appeal from a June 2012 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO). The Veteran testified before the undersigned Veterans Law Judge at an October 2017 videoconference hearing. A transcript of this hearing is of record. In its April 2018 Board remand, the Board noted that although the issue certified to the Board was for service connection for a nervous system disorder, the Veteran testified at her October 2017 Board hearing that she was not asserting a claim for a peripheral nerves disorder. Rather, she clarified that she was seeking service connection for nervousness, which was related to her claim for an acquired psychiatric disorder. Accordingly, in light of Clemons v. Shinseki, 23 Vet. App. 1 (2009), the Board recharacterized the issue as reflected on the title page to comport with the record. In addition, in April 2018, the Board remanded the issues above for further development to include obtaining updated VA examinations. 1. Entitlement to service connection for right ear hearing loss The Veteran is seeking service connection for her right ear hearing loss. The Veteran testified that she was exposed to noise during service due to her duties working on the flight line, where she was exposed to the loud noise from jets and her use of loud machinery, such as grinders, sanders and welding equipment. The evidence shows that during service, she was in a hearing conservation program. Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303 (a). Generally, service connection requires: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service. See Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004). For the purposes of applying the laws administered by VA, impaired hearing will be considered a disability when the auditory threshold in any of the frequencies 500, 1000, 2000, 3000, or 4000 Hertz is 40 decibels or greater; or when the auditory thresholds for at least three of the frequencies 500, 1000, 2000, 3000, or 4000 Hertz are 26 decibels or greater; or when speech recognition scores using the Maryland CNC Test are less than 94 percent. 38 C.F.R. § 3.385. At the outset, the Board recognizes that the record includes conflicting medical evidence as to whether the Veteran has a current diagnosis of right ear hearing loss. On a VA examination in June 2012, pure tone thresholds for the right ear, in decibels, at 500, 1000, 2000, 3000, and 4000 hertz (Hz) were as follows: 5, 15, 5, 10, and 20. The speech recognition score, using the Maryland CNC Test, was 92 percent. The examiner opined that the Veteran's hearing loss was not as likely as not caused by or a result of the Veteran's military service. The examiner stated that the Veteran's enlistment hearing test of August 1980 suggested normal hearing acuity bilaterally. The examiner noted that the Veteran's separation hearing test of December 1983 indicated normal hearing acuity bilaterally. The examiner stated that these tests were compared noting no significant threshold shift while in the military. On the VA examination in June 2012, the Board notes that the Veteran's speech recognition score for the right ear, using the Maryland CNC Test, was less than 94 percent, and thus the Veteran met the requirements for hearing loss for VA purposes. See 38 C.F.R. § 3.385 However, at a subsequent VA examination in November 2017, the Veteran did not meet the VA standards for right hear hearing loss. Pure tone thresholds for the right ear, in decibels, at 500, 1000, 2000, 3000, and 4000 hertz (Hz) were as follows: 5, 10, 5, 10, and 30. The speech recognition score, using the Maryland CNC Test, was 98 percent. The examiner opined that it is less likely as not that the Veteran's hearing loss is a result of military service. The examiner stated that audiometric records during service show no significant threshold shifts and thus it is unlikely that military noise exposure caused her hearing loss. In an April 2018 Board remand, the Board recognized the conflicting medical evidence as to whether the Veteran has a current diagnosis of right ear hearing loss and sought to clarify the Veteran's hearing loss diagnosis by affording the Veteran with another opportunity to attend a VA examination. On a VA examination in December 2020, pure tone thresholds for the right ear, in decibels, at 500, 1000, 2000, 3000, and 4000 hertz (Hz) were as follows: 15, 20, 10, 15, and 30. The speech recognition score, using the Maryland CNC Test, was 94 percent. The examiner opined that it is less likely as not that the Veteran's hearing loss was caused by or a result of an event in military service. The examiner stated that there was no significant permanent shift in hearing thresholds beyond test variability from entrance in May 1979 to separation in December 1983, which is objective evidence of no permanent auditory damage on active duty from conceded noise. The examiner stated that the Veteran reports onset of hearing decrease as 20 years post-separation, after exposure to occupational noise. The examiner expressed that although noise exposure is reported/conceded and the relationship between noise, auditory damage and hearing loss is well documented, auditory damage and hearing loss are not conceded based on noise alone. The examiner expressed that there is no evidence to support a nexus to relate current hearing loss to military noise and not another etiology. Therefore, it is less likely as not that the current hearing loss is related to military noise exposure. As shown above, the Veteran's most recent audiogram does not show any pure tone thresholds of 40 decibels for any of the relevant frequencies, nor are there three thresholds which have a value of 26 decibels or higher. Similarly, the Veteran's speech recognition ability for her right ear was 94 percent. Thus, the Board finds that the preponderance of the evidence shows that the Veteran does not have hearing loss in the right ear for VA purposes and would not be entitled to service connection for right ear hearing loss. However, even assuming the Veteran has right ear hearing loss for VA purposes, service connection is not warranted as the evidence is against a finding that such is related to the Veteran's military service. The Board finds the December 2020 VA examiner's medical opinion highly probative to the issue of whether the Veteran's right ear hearing loss was related to service. The examiner possesses the necessary education, training, and expertise to provide the requested opinion. Grottveit v. Brown, 5 Vet. App. 91, 93 (1993). The opinion was based on a review of the claims file and an in-person examination of the Veteran. It is clear that the examiner took into consideration all relevant factors in giving his opinion. Significantly, neither the Veteran nor her representative has presented or identified any contrary medical opinion that supports the claim for service connection for hearing loss. VA adjudicators are not free to ignore or disregard the medical conclusions of a VA physician, and are not permitted to substitute their own judgment on a medical matter. Colvin v. Derwinski, 1 Vet. App. 171 (1991); Willis v. Derwinski, 1 Vet. App. 66 (1991). The Board has also considered the Veteran's lay statements. Although the Board recognizes that the Veteran is competent to describe her observable symptoms of hearing loss, they are not competent to opine as to the etiology of this disability as they have been shown to possess the requisite training or credentials needed to render a competent opinion as to medical diagnosis or causation. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). As such, the lay opinion that the Veteran's hearing loss was related to her in-service noise exposure do not constitute competent medical evidence and lack probative value. In summary, the preponderance of the evidence weighs against finding in favor of the Veteran's service connection claim for right ear hearing loss. Therefore, the benefit-of-the-doubt rule does not apply, and the service connection claim must be denied. 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). 2. Entitlement to service connection for left ear hearing loss As noted above, impaired hearing will be considered to be a disability when the auditory threshold in any of the frequencies 500, 1000, 2000, 3000, or 4000 Hertz, is 40 decibels or greater; or when the auditory thresholds for at least three of the frequencies 500, 1000, 2000, 3000, or 4000 Hertz, are 26 decibels or greater; or when speech recognition scores using the Maryland CNC Test are less than 94 percent. 38 C.F.R. § 3.385. On a VA examination in June 2012, pure tone thresholds for the left ear, in decibels, at 500, 1000, 2000, 3000, and 4000 hertz (Hz) were as follows: 10, 5, 5, 10, and 15. The speech recognition score, using the Maryland CNC Test, was 94 percent. On a VA examination in November 2017, pure tone thresholds for the left ear, in decibels, at 500, 1000, 2000, 3000, and 4000 hertz (Hz) were as follows: 5, 15, 5, 15, and 35. The speech recognition score, using the Maryland CNC Test, was 94 percent. On a VA examination in December 2020, pure tone thresholds for the left ear, in decibels, at 500, 1000, 2000, 3000, and 4000 hertz (Hz) were as follows: 20, 20, 15, 20, and 35. The speech recognition score, using the Maryland CNC Test, was 94 percent. As shown above, the Veteran's audiogram does not show any pure tone thresholds of 40 decibels for any of the relevant frequencies, nor are there three thresholds which have a value of 26 decibels or higher. Similarly, the Veteran's speech recognition ability for her left ear was not less than 94 percent. Thus, the Veteran has no left ear hearing loss disability under VA standards and would not be entitled to service connection for left ear hearing loss. The existence of a current disability is the cornerstone of a claim for VA disability compensation; consequently, failure to establish a current disability results in the denial of a claim. 38 U.S.C. §§ 1110; 38 C.F.R. § 3.303; see Degmetich v. Brown, 104 F.3d 1328 (Fed. Cir. 1997). Specifically, a claimant must have a disability in order to be considered for service connection. See Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). After careful consideration of the objective audiometric testing of record, the Board concludes that the Veteran does not have a current left ear hearing loss disability and has not had one at any time during the pendency of the claim or recent to the filing of the claim. 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a), (d); Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009); Romanowsky v. Shinseki, 26 Vet. App. 289, 294 (2013); McClain v. Nicholson, 21 Vet. App. 319, 321 (2007). Where there is no evidence of a current disability, there can be no valid claim for service connection. See Brammer, 3 Vet. App. at 225. In making this determination, the Board acknowledges the Veteran's Board hearing testimony that she was exposed to noise during service due to her duties working on the flight line, where she exposed to the loud noise from the jets and her use of loud machinery, such as grinders, sanders and welding equipment. While the Veteran is competent to report symptoms of disability, she is not shown to have the specialized medical training required to render a diagnosis for a complex medical condition such as sensorineural hearing loss. See Layno v. Brown, 6 Vet. App. 465, 470 (1994); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). The Veteran has not provided any other competent or credible medical evidence to establish that she has a current diagnosis of left ear hearing loss pursuant to 38 C.F.R. § 3.385. Accordingly, the Board finds that the preponderance of the evidence weighs against the Veteran's claim for service connection for left ear hearing loss. Because the evidence fails to establish that the Veteran has a currently diagnosed left ear hearing loss disability for VA compensation purposes, the claim does not satisfy the criteria for service connection. Therefore, the benefit-of-the-doubt rule does not apply, and the Veteran's service connection claim must be denied. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert, 1 Vet. App. at 49. 3. Entitlement to an initial compensable evaluation for fracture of 5th metatarsal of right foot The Veteran contends that her fracture 5th metatarsal, right foot warrants a compensable rating. The Veteran testified that she was not receiving any type of treatment for her right foot. The Veteran expressed that whenever she goes to the doctor, and if she has a problem prior to going to the doctor, she informs the doctor of her symptoms. The Veteran testified to having pain on the bottom of her foot and that her arthritis affects the pain. The Veteran stated that her chronic pain affects her from being able to stand for a long period of time. The Veteran testified that the pain from her foot affected her job, but she did not miss any time off from work because of her foot. The Veteran indicated that she uses shoe inserts in almost all her shoes. The Veteran expressed that her foot disability is moderate in severity and that she has to take pain medication. The Veteran's right foot disability is rated noncompensable under DC 5284 for foot injuries. A moderate disability warrants a 10 percent rating, moderately severe disability warrants a 20 percent rating, and severe disability warrants a 30 percent rating. Actual loss of use of the foot warrants a 40 percent rating. 38 C.F.R. § 4.71a, DC 5284. The terms "moderate" and "severe" are not defined in VA regulations, and the Board must arrive at an equitable and just decision after having evaluated the evidence. 38 C.F.R. § 4.6. The Board has carefully reviewed the evidence of record and finds that the preponderance of the evidence is against the award of a compensable rating for the fracture 5th metatarsal, right foot. Specifically, the Board finds the preponderance of the evidence is against a finding that the Veteran's fracture 5th metatarsal, right foot was manifested by moderate symptoms. Initially, the Veteran was afforded a VA examination in June 2012. During the examination, the examiner noted that the Veteran reported pain and stiffness in her left foot, and not her service-connected right foot. The examiner reported that the Veteran has metatarsalgia in the right foot. In addition, the examiner reported that there is malunion or non-union of the metatarsal bones with moderate severity of the left foot. The examiner reported that the Veteran has a 5th metatarsal left foot injury. The examiner indicated that there was no evidence of bilateral weak foot. The Board finds the June 2012 VA examination to be inadequate for rating purposes. Although the Veteran claimed a right foot injury and the Veteran's service treatment records corresponds to a right foot injury, the June 2012 VA examiner reported a history that involved an injury to the left foot. Thereafter, however, the Veteran was afforded another VA examination in June 2014.The examiner noted that the Veteran did not report pain, flare-ups, or functional loss/impairment of the foot. The examiner reported that the Veteran's foot condition does not chronically compromise weight bearing. The examiner stated that the Veteran's foot condition does not require arch supports, custom orthotic inserts, or shoe modifications. The examiner noted that there was no pain on physical examination and no functional loss for right lower extremity attributable to the claimed condition. There was no pain, weakness, fatigability, or incoordination that significantly limit functional ability during flare-ups or when the foot is used repeatedly over a period. The examiner reported that there was no other functional loss during flare-ups or when the foot is used repeatedly over a period of time. The Veteran was also afforded a VA examination in October 2019.The examiner noted that the Veteran stated that she did not have a problem with her right foot and she did not really want to come to the examination but she was told she had to report to the examination. The examiner noted that the Veteran did not report pain, flare-ups, or functional loss/impairment of the foot. As the examiner indicated that the Veteran did not have any foot injuries or other foot conditions not already described, the examiner did not indicate the severity of the Veteran's foot and the examiner failed to report of the severity. The examiner noted that the Veteran's foot condition does not chronically compromise weight bearing. The examiner stated that the Veteran's foot condition does not require arch supports, custom orthotic inserts, or shoe modifications. The examiner reported that there was no pain on physical examination and no functional loss for right lower extremity attributable to the claimed condition. There was no pain, weakness, fatigability, or incoordination that significantly limit functional ability during flare-ups or when the foot is used repeatedly over a period. The examiner noted that there was no other functional loss during flare-ups or when the foot is used repeatedly over a period of time. Under the remarks section of the VA examination, the examiner expressed that the Veteran's foot diagnosis changed and that it is healed and resolved. In a March 2020 VA treatment note, the clinician noted foot pain. Based on the medical examinations discussed above, the Board finds that the Veteran's fracture 5th metatarsal, right foot manifests, at worst, in mild severity. A compensable disability rating is not warranted because the objective medical evidence of record does not establish that her right foot disability manifests in moderate severity. See 38 C.F.R. § 4.71a, Diagnostic Code 5284. Although, the Veteran testified to pain, the Veteran's June 2014 and October 2019 VA examinations both indicate that the Veteran denied pain, functional limitation, and limitation of motion. In addition, on her most recent VA examination, the Veteran expressed that she did not have a problem with her right foot and that she did not really want to attend to the VA examination. Thus, there is no probative medical evidence of record to establish manifestation of symptoms with moderate severity. Mild foot impairment is not compensable under DC 5284. The Board has considered whether a higher rating should be assigned pursuant to 38 C.F.R. § 4.59, but the preponderance of the evidence does not reflect that the Veteran has complained of painful motion. At worst, she has reported occasional right foot pain, which the June 2014 and October 2019 examiners found caused no functional loss. The examiner also documented the Veteran had no other pertinent physical findings, complications, conditions, signs or symptoms related to the fracture 5th metatarsal, right foot. The Board has considered whether a compensable disability rating would be appropriate under alternative DC provisions. However, the claims file does not demonstrate a diagnosis of, or treatment for, other disabilities of the feet attributable to the service-connected fracture 5th metatarsal, right foot, to include DC 5269 (plantar fasciitis), DC 5276 (acquired flatfoot), DC 5277 (bilateral weak foot), DC 5278 (acquired claw foot), DC 5279 (anterior metatarsalgia), DC 5280 (hallux valgus), DC 5281 (severe, unilateral hallux rigidus), DC 5282 (hammer toe), or DC 5283 (malunion or nonunion of the tarsal or metatarsal bones). For the reasons explained above, the Board finds that the preponderance of the evidence is against the claim for entitlement to a compensable rating for the Veteran's service-connected fracture 5th metatarsal, right foot. As the preponderance of the evidence is against the claim for a compensable rating, the benefit of the doubt doctrine is not applicable, and the Veteran's claim for a compensable rating for the fracture 5th metatarsal, right foot is denied. See 38 U.S.C. § 5107 (b); 38 C.F.R. § 4.3. REASONS FOR REMAND 1. Entitlement to service connection for an acquired psychiatric disorder, to include a personality disorder, depressive disorder, schizophrenia, and nervousness is remanded. The Veteran is seeking service connection for an acquired psychiatric disorder. In its April 2018 Board remand, the Board noted that the Veteran was provided with VA examinations for her acquired psychiatric disorder in May 2012 and July 2014. The Board stated that no etiological opinion was provided by the May 2012 VA examiner, and found that the July 2014 VA examiner's opinion was inadequate. The Board expressed that the July 2014 VA examiner did not specifically address the Veteran's mental health treatment during service, including group therapy for depression, as well as other diagnoses for anxiety and adjustment disorder with mixed emotional features. Second, the Board found that the July 2014 VA examiner did not provide an underlying rationale for concluding that the Veteran's psychotic disorder NOS was related to her personality disorder, or for opining that the disorder was not related to, or aggravated by, service. Third the Board noted that, VA and private treatment records, available at the time of the July 2014 VA examination, document that the Veteran had diagnoses for depressive disorder, anxiety and schizophrenia, however, the July 2014 VA examiner did not discuss these diagnoses when rendering the opinion. Finally, the Board noted that the Veteran testified that she did not have mental health problems prior to service and that the depression, worry, and nervousness she experienced during service continued after her discharge and progressed into her current schizophrenia. The Board expressed that although the July 2014 VA examiner determined that the Veteran's personality disorder existed prior to service, this finding conflicts with the Veteran's assertion that she had no preexisting mental health disorder. Pursuant to the Board's remand, the Veteran was afforded a VA examination in October 2019. The examiner diagnosed the Veteran with unspecified schizophrenia spectrum and other psychotic disorder, and unspecified depressive disorder. The examiner opined that the claimed condition was less likely than not incurred in or caused by the claimed in-service injury, event, or illness. The examiner stated that the Veteran's separation examination for psychiatric marked normal and that records for in-service treatment were not available for review. The examiner stated that she was unable to find applicable records referred to in remand letter. The examiner expressed that the Veteran sought treatment in the past 20 years for mental health treatment. The Veteran was afforded another VA examination in March 2020. The examiner diagnosed the Veteran with unspecified schizophrenia spectrum and other psychotic disorder, and unspecified depressive disorder. The examiner opined that the claimed condition was less likely than not incurred in or caused by the claimed in-service injury, event, or illness. The examiner stated that there is no evidence that her depressive features or sleep difficulties are related to the service. The examiner expressed that the Veteran denied any particularly stressful or traumatic experiences in the service. The examiner noted that the Veteran stated she was less depressed in service than prior to the service, when she lived at home. The examiner opined that the Veteran's sleep and depressive symptoms began prior to service and have been continuous since service. After review of the March 2020 VA examiner's opinion, the Board finds that it is inadequate for adjudication purposes. First, the April 2018 Board remand requested an opinion that discussed all the Veteran's diagnosed mental health disorders, as reflected in her VA and private treatment records, including depressive disorder, anxiety, and schizophrenia. However, the VA examiner only discussed depression in its opinion. Second, the April 2018 Board remand requested an opinion that discussed the Veteran's contention that her mental health disorder did not exist prior to service. Here, the VA examiner opined that the Veteran's depressive symptoms began prior to service, and failed to discuss the Veteran's contention. In addition, although mild depression, with no professional treatment was noted on the Veteran's May 1979 report of medical history, a psychiatric disorder was not noted on the Veteran's entrance examination itself. Thus, the Veteran is presumed sound because there was no notation of a mental health disorder on acceptance, examination, or enrollment. The Board notes that the March 2020 VA examiner noted a psychiatric disorder which preexisted the Veteran's induction into active duty service without using the more stringent "clear and unmistakable evidence" standard. See 38 C.F.R. § 3.304 (b). Crucially, when addressing the issue of entitlement to service connection for a disability characterized as preexisting service, which was not noted on examination for entrance to service, the correct legal standard to apply is whether there is clear and unmistakable evidence that the disability preexisted service and whether there is clear and unmistakable evidence that the disability did not undergo a worsening in service beyond that which would be due to the natural progression of the disability. This distinction is important, because "clear and unmistakable evidence" is an "onerous" evidentiary standard, requiring that the preexistence of a condition and the no-aggravation result be "undebatable." Cotant v. Principi, 17 Vet. App. 116, 131 (2003), (citing Laposky v. Brown, 4 Vet. App. 331, 334 (1993)). Accordingly, a new VA examination is necessary to address these deficiencies. 2. Entitlement to service connection for a sleep disorder, to include as secondary to an acquired psychiatric disorder is remanded. With regard to the Veteran's service connection claim for a sleep disorder, the Veteran explained at her October 2017 Board hearing that although she had been diagnosed with sleep apnea and used a continuous airway pressure (CPAP) machine, she was seeking service connection for her insomnia. She described how her insomnia had affected her mentally, in particular, they affected her nerves and caused frustration. She indicated that her sleep problems were related to her acquired psychiatric disorder. In its April 2018 Board remand, the Board noted that available private treatment records show that the Veteran had a diagnosis for unspecified sleep disturbance. See June 2011 private treatment record. Thus, the Board requested a VA examination with an opinion that comments on the June 2011 private treatment record diagnosing the Veteran with unspecified sleep disturbance. In an October 2019 VA opinion, the examiner opined that the claimed condition was less likely than not incurred in or caused by the claimed in-service injury, event, or illness. The examiner stated that the Veteran reports that she does not use a CPAP and goes to bathroom three to four times per night. The examiner expressed that non-compliance with treatment for sleep apnea would obscure any other sleep disorder. In a March 2020 VA opinion, the examiner stated that the Veteran has no diagnosis of a sleep disorder, as these symptoms are subsumed within her diagnosis of unspecified depressive disorder. The examiner expressed that there is no evidence tying the Veteran's current sleep problems to the service, as she denied any exceptional conflicts, traumas, or stressors during the service. As noted above, the Board finds the March 2020 VA opinion to be inadequate as the Board requested a VA examination with an opinion that comments on the June 2011 private treatment record diagnosing the Veteran with unspecified sleep disturbance. As such, the Board must again remand this matter to obtain a new VA examination incompliance with the Court's orders. Stegall v. West, 11 Vet. App. 268 (1998). The matters are REMANDED for the following action: 1. Obtain updated VA treatment records. 2. Schedule the Veteran for a VA examination in order to determine the nature and etiology of Veteran's acquired psychiatric disorder. Provide the claims file, including a copy of this REMAND, to the examiner for review. After reviewing the claims file, the examiner should respond to the following: (a) whether there is clear and unmistakable evidence that any diagnosed mental health disorder pre-existed the Veteran's active duty service? (b) If yes, is there clear and unmistakable evidence that any diagnosed mental health disorder was NOT aggravated beyond the natural progression by the Veteran's active service? (c) If the answer to either (a) or (b) is no, OR if there are other current mental health disorders that did not pre-exist military service, the examiner should opine whether it at least as likely as not (50 percent probability or greater) that any of the Veteran's currently mental health disorder had their onset during active duty service, or were otherwise etiologically related to service? In providing the above opinion, the examiner must comment on all of the Veteran's diagnosed mental health disorders, as reflected in his VA and private treatment records, including depressive disorder, anxiety, and schizophrenia. The examiner must also consider the Veteran's assertion that she had no mental health disorder prior to service, that her in-service symptoms of depression, worry, and nervousness continued after service and that those symptoms progressed into her current mental disorder, schizophrenia. The examiner is advised that the Veteran is competent to report her 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, then a reason for doing so must be provided. A complete rationale for any opinion expressed must be provided. If an opinion cannot be expressed without resort to speculation, discuss why this is the case. 3. Schedule the Veteran for a VA examination for her sleep disorder by an appropriately qualified examiner. Provide the claims file, including a copy of this REMAND, to the examiner for review. After reviewing the claims file, the examiner should respond to the following: (a) Does the Veteran have a current sleep disorder, other than sleep apnea? If so, please identify each diagnosis. (b) Is it at least as likely as not (50 percent probability or greater) that the Veteran's current sleep disorder had its onset during active duty service, or was otherwise etiologically related to service? (c) Or, is it at least as likely as not (50 percent probability or greater) that the Veteran's current sleep disorder was caused or, alternatively, aggravated (increased beyond the natural progression of the disability) by her acquired psychiatric disorder, or any other service-connected disability? In providing the above opinions, the examiner should comment on the June 2011 private treatment record diagnosing the Veteran with unspecified sleep disturbance. The examiner should also consider the Veteran's lay assertions, including her October 2017 Board testimony, describing her sleep problems. A complete rationale for any opinion expressed must be provided. If an opinion cannot be expressed without resort to speculation, discuss why this is the case. LESLEY A. REIN Veterans Law Judge Board of Veterans' Appeals Attorney for the Board M.D. 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.