Citation Nr: 1333265 Decision Date: 10/23/13 Archive Date: 10/24/13 DOCKET NO. 08-31 271 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Nashville, Tennessee THE ISSUES 1. Entitlement to service connection for blurred and decreased vision. 2. Entitlement to service connection for a bilateral elbow disability. 3. Entitlement to service connection for a respiratory disability, to include obstructive sleep apnea, including as due to environmental hazards in the Gulf War. 4. Entitlement to service connection for traumatic brain injury (TBI). 5. Entitlement to service connection for right rotator cuff tendonitis (a right shoulder disability). 6. Entitlement to service connection for a right ankle disability. 7. Entitlement to service connection for degenerative joint disease of the knees (a bilateral knee disability). 8. Entitlement to service connection for an upper and lower back disability (a back disability), to include degenerative disc disease at L5-S1 with grade I anterior subluxation and L5-S1 spondylolisthesis. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The Veteran (Appellant) and his spouse ATTORNEY FOR THE BOARD L.M. Yasui, Counsel INTRODUCTION The Veteran, who is the appellant in this case, served on active duty from July 1977 to July 1981, and from November 2004 to January 2006. This matter comes before the Board of Veterans' Appeals (Board) on appeal from April 2006, August 2008, and September 2008 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in Nashville, Tennessee, and Jackson, Mississippi. Jurisdiction over this claim is currently with the RO in Nashville, Tennessee. After reviewing the contentions and evidence of record, the Board finds that the issues on appeal are more accurately stated as listed on the title page of this decision. Specifically, the Board has reframed the issue of service connection for a respiratory disability as service connection for a respiratory disability, to include obstructive sleep apnea, in accordance with the United States Court of Appeals for Veterans Claims' (Court) decision in Clemons v. Shinseki, 23 Vet. App. 1 (2009) (finding that a claim for benefits for one psychiatric disability also encompassed benefits based on other psychiatric diagnoses and should be considered by the Board to be within the scope of the filed claim). Also in this regard, the RO denied the Veteran's claim of service connection for sleep apnea in a January 2013 rating decision; however, the Veteran perfected an appeal as to the respiratory disability claim, and in consideration of the holding in Clemons and the diagnosis of record (obstructive sleep apnea), the Board finds that the scope of the respiratory disability claim includes sleep apnea as it is reasonably encompassed by the Veteran's description of the claim and reported symptoms. See Clemons, 23 Vet. App. at 5; see also Hearing Transcript at 3. In May 2013, the Veteran and his spouse testified in a Travel Board hearing before the undersigned Veterans Law Judge in Nashville, Tennessee. A copy of the hearing transcript is located in the Veteran's file in "Virtual VA." In evaluating this case, the Board has not only reviewed the physical claims file, but has also reviewed the file on the Virtual VA system to ensure a complete assessment of the evidence. The issues of service connection for TBI, a right shoulder disability, a right ankle disability, a bilateral knee disability, and a back disability are addressed in the REMAND portion of the decision below and are REMANDED to the RO via the Appeals Management Center (AMC) in Washington, DC. FINDINGS OF FACT 1. During the May 2013 Board hearing before the undersigned, prior to the promulgation of a Board decision, the Veteran indicated that he no longer wished to pursue an appeal seeking service connection for blurred and decreased vision and service connection for a bilateral elbow disability. 2. The Veteran engaged in combat with the enemy during the Persian Gulf War. 3. The Veteran was exposed to environmental hazards during active service. 4. The Veteran had symptoms of a respiratory disability, to include obstructive sleep apnea, since service separation. 5. The Veteran's current respiratory disability, to include obstructive sleep apnea, was incurred in service. CONCLUSIONS OF LAW 1. The criteria for withdrawal of an appeal by the Veteran regarding the issues of service connection for blurred and decreased vision and service connection for a bilateral elbow disability, have been met. 38 U.S.C.A. § 7105(b)(2), (d)(5) (West 2002); 38 C.F.R. §§ 20.202, 20.204 (2013). 2. Resolving all reasonable doubt in the Veteran's favor, the criteria for service connection for a respiratory disability, to include obstructive sleep apnea, have been met. 38 U.S.C.A. §§ 1110, 1154(b), 5107(b) (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.303, 3.304(d) (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Withdrawal of Issues of Service Connection for Vision and a Bilateral Elbow Disability 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.A. § 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. § 20.204. Withdrawal may be made by the appellant or by his or her authorized representative. 38 C.F.R. § 20.204. During the May 2013 Board hearing before the undersigned, the Veteran withdrew from consideration his claims of entitlement to service connection for blurred and decreased vision and service connection for a bilateral elbow disability. As the Veteran has withdrawn his appeal on those issues, there remain no allegations of errors of fact or law for appellate consideration. Accordingly, the Board does not have jurisdiction to review the appeal, and these issues are dismissed without prejudice. Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations impose obligations on VA to provide claimants with notice and assistance. 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.326(a) (2013). The claim of service connection for a respiratory disability, to include obstructive sleep apnea, has been considered with respect to VA's duties to notify and assist. Given the favorable outcome noted above, further explanation of how VA has fulfilled the duties to notify and assist is not necessary. See Bernard v. Brown, 4 Vet. App. 384, 394 (1993). Service Connection - Laws and Regulations Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active military, naval, or air service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303(a). Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). As a general matter, service connection for a disability requires evidence of: (1) the existence of a current disability; (2) the existence of the disease or injury in service, and; (3) a relationship or nexus between the current disability and any injury or disease during service. Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004); see also Hickson v. West, 12 Vet. App. 247, 253 (1999), citing Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd, 78 F.3d 604 (Fed. Cir. 1996). The Court has held that "Congress specifically limits entitlement for service-connected disease or injury to cases where such incidents have resulted in a disability. In the absence of proof of a present disability there can be no valid claim." Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992); see also Rabideau v. Derwinski, 2 Vet. App. 141, 143-44 (1992). In this case, sleep apnea is not a "chronic disease" listed under 38 C.F.R. § 3.309(a); therefore, the presumptive service connection provisions based on "chronic" in-service symptoms and "continuous" post-service symptoms under 38 C.F.R. § 3.303(b) do not apply. Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). In rendering a decision on appeal the Board must also analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant. Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). Competency of evidence differs from weight and credibility. Competency is a legal concept determining whether testimony may be heard and considered by the trier of fact, while credibility is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted. Rucker v. Brown, 10 Vet. App. 67, 74 (1997); Layno v. Brown, 6 Vet. App. 465, 469 (1994); see also Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991) ("although interest may affect the credibility of testimony, it does not affect competency to testify"). A veteran is competent to report symptoms because this requires only personal knowledge, not medical expertise, as it comes to him through his senses. See Layno, 6 Vet. App. 465. Lay testimony is competent to establish the presence of observable symptomatology, where the determination is not medical in nature and is capable of lay observation. Barr, 21 Vet. App. a 303. Lay evidence may establish a diagnosis of a simple medical condition, a contemporaneous medical diagnosis, or symptoms that later support a diagnosis by a medical professional. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). A veteran as a lay person is competent to offer an opinion on a simple medical condition. Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009) (citing Jandreau at 1372). Generally, the degree of probative value which may be attributed to a medical opinion issued by a VA or private treatment provider takes into account such factors as its thoroughness and degree of detail, and whether there was review of the Veteran's claims file. See Prejean v. West, 13 Vet. App. 444, 448-9 (2000). Also significant is whether the examining medical provider had a sufficiently clear and well-reasoned rationale, as well as a basis in objective supporting clinical data. See Bloom v. West, 12 Vet. App. 185, 187 (1999); Hernandez-Toyens v. West, 11 Vet. App. 379, 382 (1998); see also Claiborne v. Nicholson, 19 Vet. App. 181, 186 (2005) (rejecting medical opinions that did not indicate whether the physicians actually examined the veteran, did not provide the extent of any examination, and did not provide any supporting clinical data). The Court has held that a bare conclusion, even one reached by a health care professional, is not probative without a factual predicate in the record. Miller v. West, 11 Vet. App. 345, 348 (1998). Medical evidence that is speculative, general, or inconclusive in nature cannot support a claim. See Obert v. Brown, 5 Vet. App. 30, 33 (1993); see also Beausoleil v. Brown, 8 Vet. App. 459, 463 (1996); Libertine v. Brown, 9 Vet. App. 521, 523 (1996). A physician's statement framed in terms such as "may" or "could" is not probative. See Warren v. Brown, 6 Vet. App. 4, 6 (1993). A significant factor to be considered for any opinion is the accuracy of the factual predicate, regardless of whether the information supporting the opinion is obtained by review of medical records or lay reports of injury, symptoms and/or treatment, including by a veteran. See Harris v. West, 203 F.3d 1347, 1350-51 (Fed. Cir. 2000) (examiner's opinion based on accurate lay history deemed competent medical evidence in support of the claim); Kowalski v. Nicholson, 19 Vet. App. 171, 177 (2005) (holding that a medical opinion cannot be disregarded solely on the rationale that the medical opinion was based on history given by the veteran); Reonal v. Brown, 5 Vet. App. 458, 461 (1993) (holding that the Board may reject a medical opinion based on an inaccurate factual basis). When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with a veteran prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case, the claim is denied. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. Combat Rule In the case of a veteran who engaged in combat with the enemy in a period of war, lay evidence of in-service incurrence or aggravation of a disease or injury shall be accepted if consistent with the circumstances, conditions, or hardships of such service, notwithstanding the lack of official record of such incurrence or aggravation. See 38 U.S.C.A. § 1154(b); Libertine v. Brown, 9 Vet. App. 521, 524 (1996); Collette v. Brown, 82 F.3d 389, 392-94 (Fed. Cir. 1996). The standard used to determine whether a veteran engaged in combat with the enemy is reasonable doubt, which is to be resolved in a veteran's favor. See VAOPGCPREC 12-99. The provisions of 38 U.S.C.A. § 1154(b), however, can be used only to provide a factual basis upon which a determination could be made that a particular disease or injury was incurred or aggravated in service, not to link the claimed disorder etiologically to a current disorder. See Libertine, 9 Vet. App. at 522-23. The provisions of 38 U.S.C.A. § 1154(b) do not establish service connection for a combat veteran; it aids him by relaxing the adjudicative evidentiary requirements for determining what happened in service. Clyburn v. West, 12 Vet. App. 296, 303 (1999). In this case, the Veteran contends that he engaged in combat with the enemy and the evidence supports that assertion. Among other medals, the Veteran was awarded the Combat Medical Badge. U.S. Army regulations provide that this award denotes that an infantry unit engaged in active ground combat. See A.R. 600-8-22 (Rapid Action Revision, September 2011). Based on this evidence, the Board finds that the Veteran engaged in combat with the enemy during service, and the combat rule is applicable. 38 U.S.C.A. § 1154(b) (West 2002); 38 C.F.R. § 3.304(d) (2013). Service Connection for a Respiratory Disability The Veteran contends that the respiratory disability, diagnosed as obstructive sleep apnea originated in service. Specifically, he contends that he was exposed to environmental hazards on active duty during service in Kuwait and Iraq. Alternatively, he contends that obstructive sleep apnea is secondary to service-connected disabilities. As the Board is granting service connection based on the Veteran's exposure to environmental hazards (adjudicated below), his contended alternate theory is rendered moot and will not be further discussed. After a review of all the evidence of record, lay and medical, the Board first finds the Veteran was exposed to environmental hazards in service in Kuwait and Iraq, including during combat. 38 U.S.C.A. § 1154(b); 38 C.F.R. § 3.304(d). The Veteran is competent to describe his exposure to environmental hazards in service. The Board finds that his description of such exposure is credible and consistent with his service. In addition, a Statement of Medical Examination and Duty Status from January 2006 indicated that the Veteran was subjected to continuous operational conditions and exposed to human waste, indigenous plants and animals, composite material fires, petrochemical waste and fumes, gasses, fumes and dust of unknown origins, blood borne pathogens, and airborne pathogens. He was also exposed to infectious diseases, including but not limited to, Leptospirosis, Leishmaniasis, Tuberculosis, Hepatitis, and Malaria. The Statement also noted that personal hygiene with nonpotable water was conducted throughout the Veteran's one year deployment. The Board also finds the evidence in equipoise as to whether the Veteran has had symptoms of a respiratory disability, to include obstructive sleep apnea, since service separation. The evidence that weighs against this finding includes that, following service separation in January 2006, the evidence of record shows no complaints, diagnosis, or treatment for a respiratory condition, including obstructive sleep apnea, until 2010. The absence of post-service findings, diagnosis, or treatment for approximately four years after service is one factor that tends to weigh against a finding of respiratory disability symptoms after service separation. See Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006) (holding that the Board may weigh the absence of contemporaneous medical evidence as one factor in determining credibility of lay evidence, but the Board cannot determine that lay evidence lacks credibility merely because it is unaccompanied by contemporaneous medical evidence); see also Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000) (the passage of many years between discharge from active service and the medical documentation of a claimed disability is one factor to consider as evidence against a claim of service connection). However, favorable evidence includes the Veteran's statements made to the September 2012 VA examiner of symptoms in service and since service. There, the Veteran reported that sleeping and snoring had been a problem since he returned to the United States from active duty. He indicated that his fellow firemen complained of his loud snoring when he got back from overseas and that they forced him to sleep by himself. The Veteran is competent to provide evidence regarding his respiratory disability symptoms, and sleep difficulties that he experienced at any time, including since service separation, as such symptoms are readily apparent. Other favorable evidence includes the Veteran's spouse's statements during the May 2013 hearing before the undersigned. She testified that she really started noticing the condition as early as March 2006, shortly after separation from active duty. See Hearing Transcript at 4. Specifically, she testified that she noticed the Veteran snoring and had difficulty breathing. Id. Such lay testimony is competent when it concerns the readily observable features or symptoms of injury or illness and "may provide sufficient support for a claim of service connection." Layno at 469; see also 38 C.F.R. § 3.159(a)(2). Furthermore, the Board finds the Veteran's allegations credible as they have been consistent throughout the claim and appeal process. In short, with regard to the Veteran's assertions that he has had respiratory symptoms following service, which was diagnosed as obstructive sleep apnea, the Board finds that the Veteran and his spouse are competent and credible to report the onset of symptoms of that disability, specifically snoring and difficulty breathing. See Hearing Transcript at 4-5; see also Charles, 16 Vet. App. 370; see also Barr, 21 Vet. App. 303 (lay testimony is competent to establish the presence of observable symptomatology that is not medical in nature); see also Layno at 469-470 (finding lay testimony competent when it concerns features or symptoms of injury or illness); see also Caluza, 7 Vet. App. 498 (credibility can be generally evaluated by a showing of interest, bias, or inconsistent statements, and the demeanor of the witness, facial plausibility of the testimony, and the consistency of the witness testimony). As such, the Board will resolve reasonable doubt to find that the Veteran had respiratory disability symptoms since service, including difficulty breathing and snoring. In this regard, the Board must again note the recent case, Walker v. Shinseki, 708 F.3d 1331) from the United States Court of Appeals for the Federal Circuit (Federal Circuit). In the decision, the Federal Circuit held that the theory of continuity of symptomatology can be used only in cases involving those conditions explicitly recognized as chronic under 38 C.F.R. § 3.309(a). While the Veteran's respiratory disability, diagnosed as obstructive sleep apnea, is not a chronic disease listed under 38 C.F.R. § 3.309(a), as indicated above, the Board has nonetheless found that he has had respiratory disability symptoms since service separation and tends to show service incurrence. As discussed below, however, the Board is granting the service connection claim based on evidence, including that pertinent to service, which establishes that the respiratory disability began in service and was so incurred in service. The finding that the Veteran has had respiratory disability symptoms since service is supportive of the claim overall. The Board next finds that the Veteran has a current disability of obstructive sleep apnea, which he initially claimed as a respiratory disability. The weight of the competent evidence is at least in relative equipoise on the question of whether the Veteran's current obstructive sleep apnea is related to service. In September 2012, the Veteran underwent a VA examination. The examiner opined that sleep apnea has not been shown to be caused by exposure to environmental hazards in the Gulf War. Here, the Board finds this opinion inadequate as the negative nexus opinion was based upon the lack of contemporaneous medical evidence of any sleep problems in the Veteran's service treatment records and she did not consider the Veteran's consistent and competent lay evidence of symptoms of the claimed respiratory disability in service and since separation from service. Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006) (lack of contemporaneous medical records does not serve as an "absolute bar" to the service connection claim); see also Barr, 21 Vet. App. at 312; see also Stefl v. Nicholson, 21 Vet. App 120 (2007); Reonal, 5 Vet. App. at 461 (holding that a medical opinion based upon an inaccurate factual premise has no probative value). Of note, based on the Veteran's reports, the September 2012 VA examiner encouraged the Veteran to seek "buddy statements" from his fellow firemen to establish that they noticed his snoring after active service and that he had symptoms of sleep apnea prior to the formal diagnosis of obstructive sleep apnea in 2010. Indeed, while statements from fellow firemen were not submitted, the Veteran's spouse's testimony during the May 2013 Board hearing established that the Veteran had respiratory symptoms, including snoring and difficulty breathing, since service separation and prior to the 2010 obstructive sleep apnea diagnosis. As there is no adequate medical nexus opinion as to the etiology of the Veteran's respiratory disability, to include obstructive sleep apnea, the Board must look to the remaining evidence of record to determine whether service connection is warranted. Here, the Veteran was diagnosed with obstructive sleep apnea after discharge from service. This diagnosis coupled with the evidence pertinent to service, specifically, that the Veteran was exposed to environmental hazards in service (such as composite material fires, petrochemical waste and fumes, gases, fumes and dust of unknown origins, and airborne pathogens) and his and his spouse's competent and credible lay statements of respiratory disability symptoms since service, establishes that the respiratory disability was as likely as not incurred in service. See 38 C.F.R. § 3.303(d). For these reasons, and resolving reasonable doubt in the Veteran's favor, the Board finds that the criteria for service connection for a respiratory disability, to include obstructive sleep apnea, have been met. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. ORDER The appeal of service connection for blurred and decreased vision is dismissed. The appeal of service connection for a bilateral elbow disability is dismissed. Service connection for a respiratory disability, to include obstructive sleep apnea, is granted. REMAND A remand is required in this case to ensure that there is a complete record upon which to decide the Veteran's claim of service connection for TBI, a right shoulder disability, a right ankle disability, a bilateral knee disability, and a back disability. VA has a duty to make reasonable efforts to assist a claimant in obtaining evidence necessary to substantiate the claim for the benefits sought, unless no reasonable possibility exists that such assistance would aid in substantiating the claim. 38 U.S.C.A. § 5103A(a) (West 2002); 38 C.F.R. § 3.159(c), (d) (2013). When VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate. Barr at 312. Inadequate medical examinations include examinations that provide conclusions unsupported by a rationale. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008); Barr at 311; Stefl, 21 Vet. App. at 124. Service Connection for TBI The evidence of record shows that the Veteran experienced his first improvised explosive device (IED) blast on May 20, 2005, when he was travelling to a U.S. Army Humvee on Tampa Highway in Iraq. The Veteran also reported that he experienced a total of nine IED explosions, including an accident in a Humvee when it hit a ditch cover and rolled into the ditch. The Veteran underwent a VA TBI examination in June 2008, a VA neuropsychologic examination in July 2010, and another VA TBI examination in August 2010 with an accompanying VA psychiatric examination in August 2010. VA regulations regarding the handling of TBI claims were revised in September 2008. See 38 CFR § 4.124a; 73 Fed. Reg. 54693-54708 (Sept. 23, 2008). In October 2008, VA also revised the TBI examination guidelines. Indeed, the revised regulations provide for three main areas of dysfunction that may result from a TBI and have profound effects on functioning, including cognitive, emotional/behavioral, and physical dysfunction, each of which may require evaluation. See 38 C.F.R. § 4.124a, Diagnostic Code 8045 (2013). Here, the Veteran was afforded the appropriate testing during the July 2010 and August 2010 VA examinations and collectively, the examinations evaluated his cognitive, emotional/behavioral, and physical dysfunction; however, it does not appear that any examiner provided adequate medical opinions as to whether the claimed impairment and current symptomatology (to include subjective neurocognitive complaints) are related to a TBI incurred during service. Indeed, the August 2010 examiner diagnosed the Veteran with a cognitive disorder but did not opine as to the etiology of the disorder. As such, a medical opinion should be obtained upon remand. Service Connection for a Right Shoulder Disability and a Right Ankle Disability The evidence of record indicates that the Veteran's right shoulder and right ankle disabilities may have preexisted service. During the May 2013 Board hearing, the Veteran testified that he injured his right shoulder in 2003, while working for the fire department (prior to his second period of active service), and had right rotator cuff surgery to repair the tear at that time. He further stated that the right shoulder became worse in service. See Hearing Transcript at 9-10. Indeed, an April 2005 service treatment record indicated the Veteran's complaint of right shoulder pain and noted that tendonitis had been diagnosed ten years prior (in approximately 1995). During a September 2008 VA examination, the Veteran reported that he had repeated injuries to his right ankle "throughout his life." He also testified that prior to service, he had a right ankle injury, specifically a sprain, while playing football. While he indicated that the sprain healed, he also testified that during active service the already weak right ankle became worse. Hearing Transcript at 19-20. In this case, neither a right ankle nor right shoulder condition was noted upon entry into service for either period of active duty. As such, the presumption of soundness attaches and the burden falls upon VA to rebut the presumption of soundness by showing clear and unmistakable evidence of both a preexisting condition and a lack of in-service aggravation. Here, despite the numerous VA examinations of record, there is no etiology opinion specifically addressing the questions of whether the Veteran's right shoulder and right ankle disabilities clearly and unmistakably preexisted service and, if so, whether a preexisting right shoulder or right ankle disability was clearly and unmistakably not aggravated by the Veteran's military service. See 38 U.S.C.A. § 1111 (West 2002); 38 C.F.R. § 3.304 (2013). For these reasons, the Board finds that an opinion is needed regarding whether the Veteran's right shoulder and right ankle disabilities clearly and unmistakably existed prior to service and, if so, whether the preexisting right shoulder and right ankle disabilities were clearly and unmistakably not aggravated by the Veteran's military service. Service Connection for a Bilateral Knee Disability and a Back Disability During the May 2013 Board hearing, the Veteran testified that in service he began having knee problems after the Humvee accident (rolling into a ditch) and experiencing the direct IED hit in May 2005. He further testified that he had knee problems after repeatedly jumping out of planes and helicopters in service. Hearing transcript at 21-22. Indeed, a November 2005 service treatment record indicates complaints of, and treatment for, bilateral knee strain with possible torn ligaments. Similarly, the Veteran's service treatment records indicate treatment for a low back strain in October 1978. A November 2005 service treatment record also noted a low back pain injury with possible disc damage. The Veteran testified at the hearing that he began having significant back problems after the Humvee accident, the May 2005 IED explosion, and jumping out of planes. He reported that he had back strains prior to the Humvee accident, but really started noticing back pain after the accident. In September 2008, the Veteran was afforded a VA examination of the joints. The examiner diagnosed the Veteran with bilateral knee degenerative joint disease and opined that the condition is more likely genetic in etiology rather than from a specific injury in service. He further opined that it is less likely than not that the current bilateral knee disability is a direct result of the time in the service. Here, while the September 2008 examiner noted the Veteran's bilateral knee injury from rolling in a ditch during a Humvee accident, he did not consider the additional reports of injury to the back in service, specifically, the May 2005 IED explosion and jumping out of planes and helicopters, resulting in an incomplete history. See Reonal at 461 (holding that the Board may reject a medical opinion based on an inaccurate factual basis). The Veteran was afforded another VA examination of the joints in July 2010; however, the examiner opined that the etiology of the bilateral knee disability is unclear. While the examiner indicated the Veteran's report of multiple "falls" in service, the examiner also indicated that he did not review the claims file, so the record does not reflect that the opinion was based on complete and accurate facts, whether obtained from claims file review or the Veteran. As such, the Board finds these opinions inadequate for VA compensation purposes. In May 2008, the Veteran underwent a VA examination of the joints. There, after diagnosing the Veteran with L5-S1 spondylolisthesis, the VA examiner opined that the back pain the Veteran was experiencing is probably not caused by or a result of the IED explosion sustained in May 2005. While the examiner also opined that the back pain could have been exacerbated by the May 2005 IED explosion, the clinical findings show that the back disability is most likely chronic in nature and secondary to normal degenerative changes seen with age. Here, the Board finds the May 2008 opinion inadequate. The examiner did not consider the additional reports of injury to the back in service and only mentioned one in-service incident. See Reonal at 461. Also, in the July 2010 examination report, the examiner indicated that the etiology of the back disability is unclear as he did not review the claims file and did not know the extent of the Veteran's injuries sustained in service. The Board also finds this medical opinion inadequate for VA compensation purposes. As such, a medical opinion is necessary to assist in determining the etiology of the bilateral knee and back disabilities. The medical opinion should consider all in-service complaints, injuries, and treatment of the knees and back. Accordingly, the issues of service connection for TBI, a right shoulder disability, a right ankle disability, a bilateral knee disability, and a back disability are REMANDED for the following action: 1. Request that an appropriate medical professional (a physician knowledgeable in TBI is preferred but not required) review the claims file and provide medical opinions. The relevant documents in the claims file should be made available to, and be reviewed by, the examiner. The examiner should note such review in the examination report (another examination of the Veteran is not required). If the examiner determines that an additional examination of the Veteran is necessary to provide a reliable opinion, such examination should be scheduled; however, the Veteran should not be required to report for another examination as a matter of course if it is not found to be necessary. In rendering the opinions requested below, the examiner should assume the Veteran experienced a total of nine (9) IED explosions with two (2) direct hits on his Humvee (one documented in May 2005), and that he has a current TBI. See December 2007 Neuroimaging Results. The examiner should also consider that the Veteran is service connected for headaches and PTSD, among other conditions. Based upon a review of the record, including the Veteran's medical history and clinical findings, the VA examiner is requested to offer the following opinions: a) The examiner is specifically requested to identify all residual symptoms and disabilities (including all subjective complaints) that are determined to be related to the IED explosions and Humvee accident experienced the Veteran in service. b) The examiner should opine as to whether it is at least as likely as not (a 50 percent probability or greater) or unlikely (a probability less than 50 percent) that the Veteran's claimed impairment and current symptomatology are related to a TBI incurred during service. 2. Request that an appropriate medical professional (a physician knowledgeable in orthopedics is preferred but not required) review the claims file and provide medical opinions. The relevant documents in the claims file should be made available to, and be reviewed by, the examiner. The examiner should note such review in the examination report (another examination of the Veteran is not required). If the examiner determines that an additional examination of the Veteran is necessary to provide a reliable opinion, such examination should be scheduled; however, the Veteran should not be required to report for another examination as a matter of course if it is not found to be necessary. Based upon a review of the record, including the Veteran's medical history, service treatment records, post-service VA treatment records, and clinical findings, the VA examiner is requested to offer the following opinions: a) Did the Veteran's right shoulder disability clearly and unmistakably exist prior to entrance into service in either July 1977 or November 2004? The VA examiner should comment on the Veteran's report of a right shoulder injury in 2003 while working for the fire department, undergoing a right rotator cuff repair in 2003, and right shoulder pain in service. b) If it is the examiner's opinion that a right shoulder disability preexisted service, was the Veteran's pre-existing right shoulder disability clearly and unmistakably not aggravated (permanently worsened beyond the natural progression) during active service? The VA examiner should comment on the in-service complaints and the Veteran's reports of worsening pain in the right shoulder in service. Note: The term aggravated means a lasting increase in severity of the underlying disability that is not due to the natural progress of the disease. An exacerbation of symptoms during service does not constitute aggravation. Moreover, if the disability becomes worse during service and then improves due to in-service treatment to the point that it was no more disabling than it was at entrance into service, there is no aggravation. c) If the examiner concludes that the Veteran's right shoulder disability did not pre-exist service in either July 1977 or November 2004, or that the preexisting right shoulder disability was not permanently worsened by service beyond the natural progression, the examiner should then provide the following opinion: Is it at least as likely as not (a 50 percent probability or greater) that any current right shoulder disability is directly related to the complaints and treatment noted during service (that is, whether the current right shoulder disability began/had onset in service)? d) Did the Veteran's right ankle disability clearly and unmistakably exist prior to entrance into service in either July 1977 or November 2004? The VA examiner should comment on the Veteran's report that he had repeated injuries to his right ankle "throughout his life" and that prior to service, he had a right ankle sprain while playing football. e) If it is the examiner's opinion that a right ankle disability preexisted service, was the Veteran's pre-existing right ankle disability clearly and unmistakably not aggravated (permanently worsened beyond the natural progression) during active service? The VA examiner should comment on the in-service complaints and the Veteran's reports of worsening pain in the right ankle in service. f) If the examiner concludes that the Veteran's right ankle disability did not pre-exist service in either July 1977 or November 2004, or that the preexisting right ankle disability was not permanently worsened by service beyond the natural progression, the examiner should then provide the following opinion: Is it at least as likely as not (a 50 percent probability or greater) that any current right ankle disability is directly related to the complaints and treatment noted during service (that is, whether the current right ankle disability began/had onset in service)? g) Is it as least as likely as not (a 50 percent probability or greater) that a disability of the knees began during service or is caused by in-service injury? In rendering an opinion, assume the occurrence of rolling into a ditch during a Humvee accident, the May 2005 IED explosion, and repeatedly jumping out of planes/helicopters. h) Is it as least as likely as not (a 50 percent probability or greater) that a disability of the back began during service or is caused by in-service injury? In rendering an opinion, assume the occurrence of rolling into a ditch during a Humvee accident, the May 2005 IED explosion, and repeatedly jumping out of planes/helicopters. The term "at least as likely as not" does not mean merely within the realm of medical possibility, but rather that the weight of medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of causation as it is to find against it. A rationale should be given for all opinions and conclusions rendered. The opinions should address the particulars of this Veteran's medical history and the relevant medical science as applicable to these claims. 3. After completion of the above and compliance with the requested actions has been ensured, readjudicate the claims for service connection for TBI, a right shoulder disability, a right ankle disability, a bilateral knee disability, and a back disability, in light of all the evidence of record. If the determinations remain adverse to the Veteran, he and his representative should be furnished with a Supplemental Statement of the Case. An appropriate period of time should then be allowed for a response before the record is returned to the Board for further review. The Veteran has the right to submit additional evidence and argument on the matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2012). ______________________________________________ J. Parker Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs