Citation Nr: 1629396	
Decision Date: 07/22/16    Archive Date: 08/01/16

DOCKET NO.  08-26 229A	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Jackson, Mississippi


THE ISSUES

1.  Whether new and material evidence has been received to reopen a claim of service connection for right shoulder disability. 

2.  Whether new and material evidence has been received to reopen a claim of service connection for right knee disability.

3.  Whether new and material evidence has been received to reopen a claim of service connection for heart disability.

4.  Whether new and material evidence has been received to reopen a claim of service connection for hypertension. 

5.  Whether new and material evidence has been received to reopen a claim of service connection for lung disability.    

6.  Whether new and material evidence has been received to reopen a claim of service connection sleep apnea.  

7.  Whether new and material evidence has been received to reopen a claim of service connection for erectile dysfunction (ED).  

8.  Whether new and material evidence has been received to reopen a claim of service connection for diabetes mellitus, type II (diabetes).  

9.  Whether new and material evidence has been received to reopen a claim of service connection for diabetic neuropathy of the left lower extremity.

10. Whether new and material evidence has been received to reopen a claim of service connection for diabetic neuropathy of the right lower extremity.

11. Entitlement to service connection for back disability.

12. Entitlement to service connection for bilateral hearing loss.

13. Entitlement to service connection for psychiatric disability, to include depressive disorder and posttraumatic stress disorder (PTSD). 

14. Entitlement to service connection for bilateral hip disability.

15. Entitlement to service connection for prostate disability.  

16. Entitlement to a rating in excess of 20 percent for residuals of a rotator cuff tear of the left shoulder with degenerative joint disease and impingement.

17. Entitlement to a rating in excess of 10 percent for bursitis in the left tibial tubercle.

18. Entitlement to a compensable rating for limitation of extension of the left knee.  

19. Entitlement to a total disability rating based on individual unemployability (TDIU).

20. Entitlement to special monthly compensation (SMC) based on the need for regular aid and attendance of another person or on account of being housebound.

21. Entitlement to a certificate of eligibility for specially adapted housing or a special home adaptation grant.

22. Entitlement to automobile or other conveyance and adaptive equipment or for adaptive equipment only.  


WITNESSES AT HEARING ON APPEAL

Appellant (Veteran) and his spouse 


ATTORNEY FOR THE BOARD

Christopher McEntee, Counsel


INTRODUCTION

This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2015).  38 U.S.C.A. § 7107(a)(2) (West 2014).

The Veteran served on active duty from February 1974 to March 1975.  

This matter comes to the Board of Veterans' Appeals (Board) on appeal from multiple rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in Jackson, Mississippi.  

The Veteran testified before a Board videoconference hearing in November 2011.  A transcript of the hearing has been included in the record.  VA offered the Veteran an additional Board hearing for two reasons.  First, the Veteran was not fully informed during the November 2011 hearing with regard to evidentiary requirements in claims to reopen service connection.  See Bryant v. Shinseki, 23 Vet. App. 488, 496 (2010) (a hearing officer must explain the issues and suggest the submission of evidence).  Second, the Veterans Law Judge (VLJ) who conducted that hearing is not available to render a decision in this matter.  38 U.S.C.A. § 7107(c) (West 2014); 38 C.F.R. § 20.707 (2015).  The RO provided notification to the Veteran in September 2014 and May 2015 that an additional hearing would be convened if he wanted to appear again.  The record indicates that, in October 2015 and May 2016, the Veteran stated that he did not want to appear before the Board in another hearing.  

Certain claims on appeal were remanded by the Board in April 2012.  In May 2013, following the development requested, the Board found new and material evidence had not been submitted to reopen the claims for service connection for right shoulder, right knee, and heart disabilities.  The Board also denied the Veteran's claim for service connection for a back disability.  It otherwise granted the claim for service connection for a left knee disability and remanded the remaining claims for additional development.  The Veteran appealed the claims denied by the Board in May 2013 to the United States Court of Appeals for Veterans' Claims (Court).  In a December 2013 Order, the Court granted a November 2013 Joint Motion for Partial Remand (JMPR) and remanded the matter for proceedings consistent with the JMPR.  

In June 2014, the Board remanded the claims subject to the JMPR for additional development.  Those claims, in addition to several other claims appealed to the Board in November 2015 (in response to a November 2014 rating decision and April 2015 Statement of the Case (SOC)), are before the Board for appellate consideration.  

In the June 2014 remand, moreover, the Board sought additional information regarding the Veteran's appointed representative.  The record is now clear that the Veteran does not have a representative.  He indicated in a November 2015 statement that he had withdrawn his previously appointed representative, a private attorney.  

In January 2016, the RO denied the Veteran's claim for automobile or other conveyance and adaptive equipment or for adaptive equipment only (Issue #22).  In March 2016, the Veteran filed a notice of disagreement (NOD) against the decision.  The RO has not issued a SOC in response, and has not acknowledged the Veteran's NOD.  The issue will be addressed in the remand section of the decision below, therefore.  Manlincon v. West, 12 Vet. App. 238 (1999).  

The record in this matter consists of electronic claims files and has been reviewed.  New and material evidence has been received since the most recent SOC and has been considered pursuant to July 2013 and November 2015 waivers of initial Agency of Original Jurisdiction (AOJ) review.  

In the decision below, the Board will decide the service connection claims for back, prostate, and hearing disabilities and the increased rating claim for shoulder disability.  The Board will also reopen the claims to service connection.  The underlying claims, along with the remaining claims on appeal, are addressed in the REMAND portion of the decision below and are REMANDED to the AOJ.


FINDINGS OF FACT

1.  By unappealed final Board and RO decisions dated since March 1996, VA has denied service connection claims for a right shoulder disability, a right knee disability, a heart disability, hypertension, a lung disorder, sleep apnea, ED, diabetes, diabetic neuropathy of the left lower extremity, and diabetic neuropathy of the right lower extremity.

2.  Evidence included in the record since the final Board and RO decisions relates to unestablished facts necessary to substantiate the claims for service connection, and raises a reasonable possibility of substantiating the claims.

3.  A lower back disability was not caused by service and may not be presumed related to service.  

4.  A prostate disorder was not caused by service.  

5.  A bilateral hearing loss disability was not caused by service and may not be presumed related to service.  

6.  Prior to September 5, 2012, the Veteran had pain-free forward flexion or abduction in the left arm that exceeded 25 degrees from the left side.  

7.  Since September 5, 2012, the evidence has been in equipoise regarding whether pain-free flexion or abduction of the left arm exceeds 25 degrees from the left side.  


CONCLUSIONS OF LAW

1.  Previous unappealed Board and RO decisions denying service connection for a right shoulder disability, a right knee disability, a heart disability, hypertension, a lung disorder, sleep apnea, ED, diabetes, diabetic neuropathy of the left lower extremity, and diabetic neuropathy of the right lower extremity are final.  38 U.S.C.A. §§ 7104, 7105(c) (West 2014); 38 C.F.R. §§ 3.160, 20.302, 20.1103 (2015). 

2.  New and material evidence has been received to reopen the claims of entitlement to service connection for a right shoulder disability, a right knee disability, a heart disability, hypertension, a lung disorder, sleep apnea, ED, diabetes, diabetic neuropathy of the left lower extremity, and diabetic neuropathy of the right lower extremity.  38 U.S.C.A. § 5108 (West 2014); 38 C.F.R. § 3.156(a) (2015). 

3.  The criteria for service connection for a lower back disability have not been met.  38 U.S.C.A. § 1110 (West 2014); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2015).   

4.  The criteria for service connection for a prostate disorder have not been met.  38 U.S.C.A. § 1110 (West 2014); 38 C.F.R. § 3.303 (2015).   

5.  The criteria for service connection for a bilateral hearing loss disability have not been met.  38 U.S.C.A. § 1110 (West 2014); 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.385 (2015).   

6.  Prior to September 5, 2012, the criteria for a rating in excess of 20 percent, for residuals of rotator cuff tear of the left (minor) shoulder with degenerative joint disease and impingement, had not been met.  38 C.F.R. §§ 1155, 5103, 5103A, 5107 (West 2014); 38 C.F.R. §§ 4.31, 4.40, 4.45, 4.71a, 4.73, Diagnostic Codes 5003, 5010, 5201-5203 (2015).

7.  Since September 5, 2012, the criteria for a 30 percent rating, for residuals of rotator cuff tear of the left (minor) shoulder with degenerative joint disease and impingement, have been met.  38 C.F.R. §§ 1155, 5103, 5103A, 5107 (West 2014); 38 C.F.R. §§ 4.31, 4.40, 4.45, 4.71a, 4.73, Diagnostic Codes 5003, 5010, 5201-5203 (2015).

REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

I.  Duties to Notify and Assist

VA has a duty to provide notification to the Veteran with respect to establishing entitlement to benefits, and a duty to assist with development of evidence under 38 U.S.C.A. §§ 5103, 5103A.  38 C.F.R. § 3.159(b).

The duty to notify was satisfied by way of several letters sent to the Veteran during the appeal period.  The letters informed the Veteran of his duty and VA's duty for obtaining evidence, and met notification requirements for service connection, effective dates, and disability ratings.  Dingess v. Nicholson, 19 Vet. App. 473 (2006).  Further, following full notification, the claims on appeal were readjudicated in Supplemental SOCs (SSOCs) of record.  Overton v. Nicholson, 20 Vet. App. 427, 437 (2006).     
VA also has a duty to assist the Veteran in the development of the claims.  This duty includes assisting the Veteran in the procurement of service treatment records (STRs) and pertinent post-service treatment records and providing an examination when necessary.  38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159.  The Board finds that all relevant facts have been properly developed, and that all available evidence necessary for equitable resolution of the issues decided below has been obtained.  VA afforded the Veteran VA examinations during the appeal period.  Further, VA obtained the Veteran's STRs, and available post-service medical records relevant to his claims.  

The Board finds that all reasonable efforts were made by VA to obtain evidence necessary to substantiate the Veteran's claims, and no further assistance to develop evidence is required.

II.  The Claims to Reopen Service Connection

The Veteran contends that he incurred directly in service, and developed secondarily as the result of service-connected disorders, a right shoulder disability, a right knee disability, a heart disability, hypertension, a lung disorder, sleep apnea, ED, diabetes, diabetic neuropathy of the left lower extremity, and diabetic neuropathy of the right lower extremity.  

Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service.  38 U.S.C.A. § 1110; 38 C.F.R. § 3.303(a).  Service connection may also be established on a secondary basis for a disability which is proximately due to or the result of service-connected disease or injury.  Establishing service connection on a secondary basis requires evidence sufficient to show (1) that a current disability exists and (2) that the current disability was either (a) proximately caused by or (b) proximately aggravated by a service-connected disability.  38 C.F.R. § 3.310.

In several previous Board and RO decisions, VA denied the claims to service connection for a right shoulder disability, a right knee disability, a heart disability, hypertension, a lung disorder, sleep apnea, ED, diabetes, diabetic neuropathy of the left lower extremity, and diabetic neuropathy of the right lower extremity.  The Veteran did not appeal multiple decisions addressing these issues.  Further, no new and material evidence was included in the claims file within one year of the unappealed decisions.  As such, the previous VA decisions became final.  38 C.F.R. §§ 3.156, 20.200, 20.1100.    

In the previous decisions denying service connection, the RO considered STRs noting complaints of diffuse orthopedic pain, and noting that the Veteran was found unfit for duty due to the disabling effects of a preexisting left knee disability.  The STRs also include a September 1972 private medical report which noted complaints of bilateral knee pain, a diagnosis of bursitis left tibial tubercle, and concluded that the Veteran could not complete military duty with his disability.  In the previous decisions, the Board and RO also considered volumes of private and VA medical evidence documenting that the Veteran has been diagnosed with right shoulder, right knee, heart, hypertension, lung, sleep, ED, diabetic, and neuropathy disorders.  Lastly, the previous decisions considered lay assertions from the Veteran and his family.  Based on that evidence, the RO found service connection (or the reopening of service connection) unwarranted for a right shoulder disability, a right knee disability, a heart disability, hypertension, a lung disorder, sleep apnea, ED, diabetes, diabetic neuropathy of the left lower extremity, and diabetic neuropathy of the right lower extremity.  

Rating and Board actions are final and binding based on evidence on file at the time the claimant is notified of the decision and may not be revised on the same factual basis except by a duly constituted appellate authority.  Pursuant to the previous decisions, the Veteran was advised of his appellate rights.  The Veteran did not respond with a NOD, a substantive appeal, or an appeal to the Court.     

Generally, a claim which has been denied in an unappealed Board or RO decision may not thereafter be reopened and allowed.  38 U.S.C.A. §§ 7104(b), 7105(c).  The exception to this rule is 38 U.S.C.A. § 5108, which provides that if new and material evidence is presented or secured with respect to a claim which has been disallowed, the Secretary shall reopen the claim and review the former disposition of the claim.  
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).

Since the final Board and RO decisions, additional evidence has been submitted into the record to include additional lay assertions from the Veteran and his family members, additional VA and private medical evidence noting continuing treatment for the disorders at issue here, and VA compensation examination reports addressing the claims.  

The evidence received since the prior final decisions is new in that it was not previously of record.  Further, the Board finds certain of the new evidence to be material as well.  Specifically, the Veteran's lay assertions are material inasmuch as they tend to corroborate his assertion that he incurred each of his disorders during service, or as the result of other disorders incurred during service.    

For the purpose of establishing whether new and material evidence has been submitted, the credibility of the evidence is to be presumed.  Fortuck v. Principi, 17 Vet. App. 173, 179 (2003).  Indeed, there is a low threshold for determining whether evidence is new and material - i.e., whether it raises a reasonable possibility of substantiating a claim.  Shade v. Shinseki, 24 Vet. App. 110, 120 (2010).   

Assuming for the purpose of this analysis the probative value of the new evidence, the evidence tends to prove a previously unestablished fact (i.e., a relationship between current problems and service, and service-connected disorders) necessary to substantiate the underlying claims of service connection.  At a minimum, the duty to assist the Veteran with further inquiry into his claims has been triggered.  See Shade, supra.  Consequently, the newly received evidence raises a reasonable possibility of substantiating the Veteran's claims.  Accordingly, the Board will reopen the claims of entitlement to service connection for a right shoulder disability, a right knee disability, a heart disability, hypertension, a lung disorder, sleep apnea, ED, diabetes, diabetic neuropathy of the left lower extremity, and diabetic neuropathy of the right lower extremity.  While the evidence is sufficient to reopen the claims, it is not sufficient to grant the benefits sought.  The Board finds that additional development is required prior to appellate disposition.  The claims will be addressed further in the remand section of the decision below.  

III.  The Claims to Service Connection

The Veteran claims that he incurred back, prostate, and hearing loss disorders during service.      

	Laws and Regulations

Service connection for VA compensation purposes will be granted for a disability resulting from disease or personal injury incurred in the line of duty or for aggravation of a preexisting injury in the active military, naval or air service.  38 U.S.C.A. § 1110 (West 2014); 38 C.F.R. § 3.303(a) (2015).  

To establish direct service connection, there must be (1) medical evidence of a current disability; (2) medical, or in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the current disability.  Hickson v. West, 12 Vet. App. 247, 253 (1999). 

Service connection may also be awarded on a presumptive basis, where the evidence shows that a Veteran had a chronic condition in service or during an applicable presumptive period and still has the condition.  38 C.F.R. §§ 3.303(b), 3.307, 3.309.  If there is no evidence of a chronic condition during service or during an applicable presumptive period, then a showing of continuity of symptomatology after service is required to support the claim.  The language in § 3.303(b) is limited to the chronic diseases listed under 38 C.F.R. § 3.309(a).  Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013).  Under 38 C.F.R. § 3.309(a), certain disorders, to include arthritis, cancer, and sensorineural hearing loss are presumed to have been incurred in service if manifested to a compensable degree within one year after service.  38 U.S.C.A. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309.  

When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the benefit of the doubt will be granted to the claimant.  38 U.S.C.A. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990).  To deny a claim on the merits, the preponderance of the evidence must be against the claim.  Alemany v. Brown, 9 Vet. App. 518, 519 (1996).

In this matter, the evidence consists of STRs, private and VA treatment records, VA compensation examination reports, and the Veteran's lay assertions.  The Board will address the Veteran's claims separately below.  

	Lower Back

The evidence documents that the Veteran has a current lower back disability.  The most recent VA compensation examination report addressing the back is dated in October 2014 and notes diagnoses of degenerative disc and joint disease.  Furthermore, the evidence indicates that the Veteran may have injured his back during service.  A STR dated in May 1974 notes complaints of lumbar area "tenderness," while the Veteran has asserted since filing his claim that he injured his back during service.  The Veteran has also asserted that he has experienced adverse back symptoms since discharge from active service in March 1975.      

The evidence indicates, however, that the current lower back disorders do not relate to the complaints of tenderness in 1974, and did not manifest within one year of the Veteran's March 1975 discharge from service.  

First, the May 1974 STR indicates that x-rays of the back were negative.  Second, in his February 1975 report of medical history, the Veteran indicated no history of recurrent back pain while indicating a history of several other disorders.  Third, in the February 1975 report of medical examination, a physician indicated that, based on his physical examination of the Veteran's back and spine, the back and spine were normal.  Fourth, in a January 1977 report of medical examination, conducted apparently for the purpose of enlistment in the national guard, a physician indicated that, based on his physical examination of the Veteran's back and spine, the back and spine were normal (the examiner did find the Veteran unfit for duty due to left knee disability, however).  Fifth, although private medical evidence dated in April 1976 notes complaints of back pain, the private evidence dated in April 1976 does not indicate a diagnosis of degenerative changes in the back.  Sixth, despite the complaints of back pain in the mid 1970s, the earliest evidence of treatment for a diagnosed chronic back disability is dated in the early 1990s, following a motor vehicle accident (MVA) that occurred 15 years after discharge from service.  Cf. 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 may be considered in evaluating a claim of service connection).  Seventh, private medical evidence dated in the 1990s contradicts the Veteran's repeated assertion that he has experienced adverse back symptoms since active service.  In this evidence, the Veteran indicates onset of back problems after the MVA.  A December 1991 private report indicates the Veteran's report of onset in 1991, several days after the MVA.  A January 1998 private report indicates the Veteran reported back pain for 6 years.  And eighth, the only probative medical opinion of record addressing the Veteran's claim indicates that a relationship does not exist between the injury in service and complaint of tenderness, and the current back problems.   

The record contains five statements from physicians addressing this issue.  Two statements support the Veteran's claim while three statements oppose his claim.  In support of the claim, two private physicians found in March 2001 and August 2005 letters that the Veteran's back disability related to service, and in particular to the reported back injury.  The opinions indicated deterioration following service requiring continued treatment.  Opposing the claim are VA opinions dated in September 2012, October 2012, and October 2014.  The September 2012 report states that the current back problems do not relate to service because, despite the complaint of post-service back pain in 1976, there was no evidence of back problems in service.  The examiner further reasoned that the Veteran's back problems were degenerative in nature, and that the Veteran likely did not have degenerative changes in his back at the time of service discharge in his early 20s.  The October 2012 addendum report expressly addressed the standard of proof here, stating that it was not likely that the current disability was proximately due to or the result of service.  The examiner then reiterated the rationale provided in September 2012.  In sum, each of the foregoing four medical opinions is issued by a medical professional who commented directly on the Veteran's claim.  

Nevertheless, the Board finds each of these opinions to be of limited probative value because none is based entirely on the medical evidence of record.  See Bloom v. West, 12 Vet. App. 185, 187 (1999) (the value of a physician's statement is dependent, in part, upon the extent to which it reflects clinical data).  The private examiners based their opinions on the Veteran's incomplete reported history - i.e., reporting an injury during service, without discussing the 1991 MVA.  And the VA examiner who provided the September and October 2012 opinions did not consider the May 1974 STR indicating tenderness and possible injury.  See Reonal v. Brown, 5 Vet. App. 458, 460-61 (1993) (an opinion based upon "an inaccurate factual premise" has "no probative value").  

By contrast, the fifth opinion, provided by the October 2014 VA examiner, is of great probative value.  In the report, the examiner indicated a review of the claims file, indicated an interview and examination of the Veteran, summarized the relevant evidence of record documenting the Veteran's medical history to include the May 1974 in-service complaint of back tenderness, and detailed the Veteran's reported history of back injury in service.  The examiner found the Veteran's back disability likely unrelated to service, and explained that his current problems were due to the 1991 back injury from a MVA.  As this opinion is based on the evidence of record, addresses probability, and is explained, the opinion is persuasive.  See Bloom and Reonal, supra.  Furthermore, the entirety of the evidence tends to support this examiner's opinion.  Upon discharge from service, the back and spine were deemed normal by a physician.  The earliest evidence of chronic problems began in the early 1990s, just after a MVA.  And this opinion addresses the MVA and its effects, which is not mentioned in the two supportive private opinions.  

In assessing this claim, the Board has considered the Veteran's lay assertions that service caused his back problem.  The Veteran as a layperson is competent to attest to what he observes or senses, such as pain and limitation.  The Board has also favorably considered his claim of in-service injury because the May 1974 STR tends to support his claim that he injured his lower-back in some way.  Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007).  Furthermore, the Board has considered his competent report that he was diagnosed with arthritis during service.  Nevertheless, the preponderance of the evidence remains opposed to his claim.  First, the credibility of his claim is undermined by the fact that he has not reported to treating and examining medical professionals the degree and severity of his 1991 MVA injuries.  Second, he is not competent to provide evidence regarding diagnosis and etiology of the current degenerative back disorders.  Spinal disorders are internal and beyond his capacity for lay observation.  Onset of degenerative changes in the spine, or its etiology and development, cannot be determined through observation or by sensation such as feeling.  As such, the Veteran is not a competent witness to render a medical opinion linking his lower spine disorder to service.  He does not have the training and expertise to do so.  Woehlaert v. Nicholson, 21 Vet. App. 456, 462 (2007).  On the essentially medical questions before the Board, the probative medical evidence is of greater evidentiary value.  And this evidence - detailed in the October 2014 VA report - indicates that the Veteran's back problems are unrelated to the injury during service, and the complaints of tenderness in May 1974.      

With regard to the issue of presumptive service connection:  The evidence documents an absence of arthritis in the lower spine within one year of the March 1975 discharge from service.  This is evident by the May 1974 x-ray report, the February 1975 discharge report of medical examination, and the January 1977 report of medical examination.  It is not until the early 1990s that arthritis became evident.  As such, the Veteran's lower spine degenerative changes cannot be presumed related to service under 38 C.F.R. § 3.309(a).  38 C.F.R. § 3.303(b); Walker, supra.  Likewise, there is no credible evidence of continuity of symptomatology.  The Veteran denied back pain in the February 1975 report of medical history at discharge and the January 1977 report of medical examination was negative for back disability.  His treatment throughout the appeal has centered around the post-MVA residuals, and those records indicate the Veteran's stated history of back pain after that accident.   

The Board finds that the preponderance of the evidence is against the Veteran's claim; therefore, the benefit of the doubt provision does not apply.  The claim is denied.

	Prostate

The Veteran claims service connection for a prostate disability generally, and for prostate cancer.  

No evidence of record indicates that the Veteran has prostate cancer.  But a current prostate disorder is documented in VA and private treatment records, which note, between December 1992 and July 2014, benign prostatic hypertrophy (BPH).  

A service connection finding is unwarranted, however.  The record demonstrates that the Veteran did not incur a prostate disorder during service.  The STRs are negative for a prostate problem, the February 1975 and January 1977 reports of medical examination found the Veteran's genitourinary system to be normal, the Veteran did not indicate a prostate problem in his February 1975 report of medical history, and the earliest evidence of a prostate problem is found over 17 years after service in December 1992 private evidence noting prostatitis.  See Maxson, supra.  Further, on multiple occasions until as recent as December 2015, VA treatment records indicate that the Veteran refused a prostate examination.  

With regard to the issue of presumptive service connection:  As noted earlier, the Veteran has also claimed service connection for prostate cancer.  Prostate cancer with an onset within one year of discharge from service would be presumed related to service.  However, the evidence indicates that the Veteran does not have now, nor has he ever had, prostate cancer.  Further, the earliest evidence of any prostate problem is dated in the early 1990s, over 15 years after service.  Presumptive service connection for a prostate disorder is not warranted here.  38 C.F.R. §§ 3.303(b), 3.309(a); Walker, supra.     
In short, the Board finds that the preponderance of the evidence is against the Veteran's claim; therefore, the benefit of the doubt provision does not apply.  The claim is denied.

	Bilateral hearing loss

The Veteran claims that he incurred a hearing loss disability during service.  

Under VA guidelines, hearing loss will be considered a disability for VA disability compensation purposes 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 3 of the frequencies 500, 1000, 2000, 3000 or 4000 Hz 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.  

The evidence of record documents that the Veteran has a bilateral hearing loss disability.  This is documented by a January 2014 report of VA audiological examination, which he underwent pursuant to the Board's May 2013 remand.  The report notes auditory thresholds of at least 45 decibels in each ear at 3000 hertz.  38 C.F.R. § 3.385.  The record also documents that the Veteran experienced acoustic trauma during service.  He served in the U.S. Army during a time of war, and has asserted exposure to acoustic trauma from weapons fire.  See Jandreau, supra.  Further, the STRs indicate hearing loss during service.  While the entrance report of medical examination indicated normal hearing, the February 1975 report of medical examination indicated diminished right ear hearing with auditory thresholds of 60-65 from 500 to 2000 hertz.  

A service connection finding is unwarranted for hearing loss, however.  The record contains two medical opinions addressing the Veteran's claim.  The first opinion is found in a September 2012 VA report of audiological examination.  This examiner indicated a review of the claims file, an examination and interview of the Veteran, and detailed the Veteran's reported history with hearing loss.  The examiner concluded that the hearing loss was not likely ("less likely than not"/"less than 50 percent probability") caused by or the result of military noise exposure.  However, as noted by the Board in May 2013, the September 2012 VA report and opinion is inadequate.  See Barr v. Nicholson, 21 Vet. App. 303, 311 (2007) (once VA undertakes the effort to provide an examination, the examination must be adequate).  That is because the examiner did not support the negative opinion with a sufficient rationale.  The examiner merely stated "no nexus" in support of the opinion.  

By contrast, the January 2014 VA audiological opinion is adequate, and is of probative value.  In the report, the examiner expressly stated that hearing loss was likely not related to service.  The Board finds the opinion of probative value because it is based on a review of the claims file, an examination of the Veteran, an interview of the Veteran, and is based on the clinical evidence of record.  Moreover, the examiner supported the opinion with an explanation.  See Bloom, supra.  The examiner discussed the apparent discrepancy in hearing acuity at entrance and separation from service.  The examiner characterized the right ear hearing loss noted in February 1975 as temporary.  In support, the examiner noted audiogram results detailed in the January 1977 report of medical examination, which "revealed normal hearing sensitivity."  The entirety of the record tends to support the examiner's finding that the in-service right ear hearing loss was temporary.  Although complaints of decreased hearing are noted in private records dated in 1978 and 1979, the earliest evidence of a chronic hearing loss disability is found over 30 years after service in an August 2007 VA treatment record, which noted a recent audiogram finding bilateral hearing loss under VA criteria.  See Maxson, supra.  

Based on the foregoing, neither direct nor presumptive service connection is warranted for the current hearing loss.  Despite the evidence of temporary hearing loss in February 1975, the preponderance of the evidence indicates that the Veteran did not incur sensorineural hearing loss in service, and did not manifest the disorder within the first year of discharge from service.    

In assessing this claim, the Board has considered the Veteran's lay assertions that he has had a hearing loss disability since service.  The Veteran as a layperson is competent to attest to what he observes or senses, such as diminished hearing acuity.  See Jandreau, supra.  But the Veteran is not competent to determine whether his current hearing loss relates to service, whether he had a hearing loss disability under 38 C.F.R. § 3.385 in the first year after service discharge, or whether his symptomatology since service has been diminished hearing that approximates the criteria under 38 C.F.R. § 3.385.  The degree of any hearing loss he has experienced, and whether it may be considered a disability under 38 C.F.R. § 3.385, are medical issues.  The Veteran does not have the training and expertise to make these determinations, which audiologists do with highly specialized training and equipment.  See Woehlaert, supra.  On the essentially medical questions before the Board, the medical evidence is of greater evidentiary value.  And this evidence indicates that the Veteran's current hearing loss is not related to service, despite the apparent decrease in acuity noted in February 1975.  In this regard, the Board again notes the January 1977 audiogram results, noted by the January 2014 VA examiner, which indicate normal hearing acuity.    

As the preponderance of the evidence is against the Veteran's claim to service connection, the claim must be denied.  38 U.S.C.A. § 5107; 38 C.F.R. § 3.102; Gilbert and Alemany, both supra.

IV.  Increased Rating Claim for Left Shoulder Disability

In a May 2003 decision, the Board granted service connection for a left shoulder disability.  The RO implemented the decision in July 2003, assigning a 20 percent initial rating effective December 5, 2000.  The Veteran appealed the assigned initial rating, which the Board denied.  The Veteran then appealed that denial to the Court which, in an unappealed September 2009 decision, affirmed the Board's decision.  

The voluminous record is not clear regarding when, or if, the Veteran filed an increased rating claim for the left shoulder disorder following the September 2009 Court decision.  There is no claim for increase, and no rating decision addressing the issue dated after September 2009.  Nevertheless, in SSOCs and Board remands dated since September 2009, VA has addressed an increased rating claim for the left shoulder disability as being on appeal.  As such, the Board will accept the issue as being on appeal.  Cf. Percy v. Shinseki, 23 Vet. App. 37 (2009) (holding that VA waived any objections as to the content of the appeal by treating the issue as on appeal for five years).  The Board will address whether a higher rating is warranted based on the evidence of record dated since the Court's September 2009 decision.  Hart v. Mansfield, 21 Vet. App. 505 (2007); 38 U.S.C.A. § 5110; 38 C.F.R. § 3.400.

	Law and Regulations 

Disability ratings are determined by applying the criteria set forth in VA's Schedule for Rating Disabilities, which is based on the average impairment of earning capacity.  Individual disabilities are assigned separate diagnostic codes.  38 U.S.C.A. § 1155; 38 C.F.R. § 4.1.  Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for that rating.  Otherwise, the lower rating will be assigned.  38 C.F.R. § 4.7.  Any reasonable doubt regarding a degree of disability will be resolved in favor of the Veteran.  38 C.F.R. § 4.3.  When the evidence is in relative equipoise, the Veteran is accorded the benefit of the doubt.  38 U.S.C.A. § 5107(b).

The Board attempts to determine the extent to which a veteran's service-connected disability adversely affects his or her ability to function under the ordinary conditions of daily life, and the assigned rating is based, as far as practicable, upon the average impairment of earning capacity in civil occupations.  38 U.S.C.A. § 1155; 38 C.F.R. §§ 4.1, 4.10.  

The Rating Schedule provides that traumatic arthritis will be rated as degenerative arthritis.  38 C.F.R. § 4.71a, Diagnostic Code (DC) 5010.  Degenerative arthritis established by X-ray findings will be rated on the basis of limitation of motion under the appropriate diagnostic codes for the specific joint or joints involved, if that limitation of motion is compensable.  38 C.F.R. § 4.71a, DC 5003

Disability of the musculoskeletal system is primarily the inability, due to damage or infection in parts of the system, to perform the normal working movements of the body with normal excursion, strength, speed, coordination and endurance.  Functional loss may be due to the absence or deformity of structures or other pathology, or it may be due to pain, supported by adequate pathology and evidenced by the visible behavior in undertaking the motion.  Weakness is as important as limitation of motion, and a part that becomes painful on use must be regarded as seriously disabled.  38 C.F.R. § 4.40.

With respect to joints, in particular, the factors of disability reside in reductions of normal excursion of movements in different planes.  Inquiry will be directed to more or less than normal movement, weakened movement, excess fatigability, incoordination, pain on movement, swelling, deformity or atrophy of disuse.  38 C.F.R. § 4.45.

With any form of arthritis, painful motion is an important factor of disability.  The intent of the Rating Schedule is to recognize painful motion with joint pathology as productive of disability.  It is the intention to recognize actually painful, unstable or malaligned joints, due to healed injury, as entitled to at least the minimum compensable rating for the joint.  38 C.F.R. § 4.59.

The RO has rated the Veteran's left shoulder disability under DC 5201-5302 of 38 C.F.R. §§ 4.71a, 4.73.  These DCs address shoulder and muscle disorders.  Hyphenated DCs are used when a rating under one DC requires the use of an additional DC to identify the basis for the evaluation assigned.  38 C.F.R. § 4.27.   

Under DC 5201, limitation of motion due to shoulder disability is addressed.  This provision provides that limitation of arm motion at the shoulder level (90 degrees) will be rated 20 percent disabling on both the major and minor sides.  A limitation of arm motion to midway between the side and shoulder level (45 degrees) will be rated 20 percent disabling on the minor side, and 30 percent disabling on the major side.  Finally, a limitation of arm motion to 25 degrees from the side will be rated 30 percent disabling on the minor side.  38 C.F.R. § 4.71a, DC 5201.

Under DC 5302, muscle group (MG) II, which is located in the shoulder girdle and upper arm, is addressed.  Under this provision, slight disability is rated as 0 percent disabling, moderate disability is rated as 20 percent disabling, moderately severe disability as 30 percent disabling, and severe disability as 40 percent disabling.  38 C.F.R. § 4.73, DC 5302.
In rating muscle disabilities, the nature of the initial injury, the history and complaints related to the disability, and the objective findings on examination are all considered.  38 C.F.R. § 4.56(d).   

Cardinal signs of muscle disability consist of loss of power, weakness, lower threshold of fatigue, fatigue-pain, impairment of coordination, and uncertainty of movement.  38 C.F.R. § 4.56(c).  

A slight muscle disability is characterized by a simple wound of muscle without debridement or infection.  38 C.F.R. § 4.56(d)(1)(i).  The history is of a superficial wound in service with brief treatment and return to duty, healing with good functional results, and no cardinal signs and symptoms of muscle disability.  38 C.F.R. § 4.56(d)(1)(ii).  Objective findings commensurate with a slight disability include minimal scar, no impairment of function or retained foreign bodies, and no evidence of fascial defect, atrophy or impaired tonus.  38 C.F.R. § 4.56(d)(1)(iii).

A moderate muscle disability is characterized by a through and through or deep penetrating wound of short track from a single bullet, small shell or shrapnel fragment, without explosive effect of high velocity missile, residuals of debridement, or prolonged infection.  38 C.F.R. § 4.56(d)(2)(i).  The history shows a record of consistent complaint of one or more of the cardinal signs and symptoms of muscle disability, particularly lowered threshold of fatigue after average use, affecting the particular functions controlled by the injured muscles.  38 C.F.R. § 4.56(d)(2)(ii).  Objective findings consisted of entrance and exit scars, small or liner, indicating a short track of the missile through muscle tissue, and some loss of deep fascia or muscle substance or impairment of muscle tonus and loss of power or lowered threshold of fatigue.  38 C.F.R. § 4.56(d)(2)(iii).

A moderately severe disability of the muscles in characterized by a through and through or deep penetrating wound by a small high velocity missile or large low-velocity missile with debridement, prolonged infection, or sloughing of soft parts and intramuscular scarring.  38 C.F.R. § 4.56(d)(3)(i).  The history shows hospitalization for a prolonged period for treatment of the wound, a record of consistent complaints of cardinal signs and symptoms of muscle disability and, if present, inability to keep up with work requirements.  38 C.F.R. § 4.56(d)(3)(ii).  Objective findings include entrance and exit scars indicating the track of the missile through one or more muscle groups, indications on palpation of loss of deep fascia, muscle substance or normal firm resistance of muscles as compared with the sound side, and tests of strength and endurance compared with the sound side demonstrate positive evidence of impairment.  38 C.F.R. § 4.56(d)(3)(iii).

A severe disability of the muscles consists of a through and through or deep penetrating wound due to a high-velocity missile, or large or multiple low velocity missiles, or with shattering bone fracture or open comminuted fracture with extensive debridement, prolonged infection, or sloughing of soft parts, intramuscular binding and scarring.  38 C.F.R. § 4.56(d)(4)(i).  There is a history showing hospitalization for a prolonged period for treatment of the wound, a record of consistent complaint of cardinal signs and symptoms of muscle disability, worse than those shown for moderately severe muscle injuries and, if present, evidence of inability to keep up with work requirements.  38 C.F.R. § 4.56(d)(4)(ii).  Objective findings include ragged, depressed and adherent scars indicating wide damage to muscle groups in the missile track, loss of deep fascia or muscle substance on palpation or soft flabby muscles in the wound area, and abnormal swelling and hardening or the muscles in contraction.  38 C.F.R. § 4.56(d)(4)(iii).  Tests of strength, endurance, or coordinated movements compared with the corresponding muscles of the uninjured side indicate severe impairment.  Id. 

If present the following are also signs of severe muscle disability: (a) x-ray evidence of minute multiple scattered foreign bodies indicating intramuscular trauma and explosive effect of the missile; (b) adhesion of scar to one of the long bones, scapula, pelvic bones, sacrum or vertebrae, with epithelial sealing over the bone rather than true skin covering in an area where bone is normally protected by muscle; (c) diminished muscle excitability to pulsed electrical current in electrodiagnostic tests; (d) visible or measurable atrophy; (e) adaptive contraction of an opposing group of muscles; (f) atrophy of muscle groups not in the track of the missile, particularly of the trapezius and serratus in wounds of the shoulder girdle, and (g) induration or atrophy of an entire muscle following simple piercing by a projectile.  Id.
      Analysis

The evidence of record dated since the September 2009 Court decision consists of VA and private treatment records, VA compensation examination reports, and the Veteran's lay assertions.  The Veteran's STRs are also relevant to determine the nature of the Veteran's muscle disability.  

The evidence documents that the Veteran's major upper extremity is his right arm, not the body area addressed here.  The evidence indicates no muscle injury during the Veteran's non-combat service, and indicates full muscle strength in the upper arm and shoulder throughout the appeal period.  Lastly the evidence indicates that, prior to September 5, 2012, the Veteran had pain-free motion of the arm beyond 25 degrees from the left side.  

The evidence dated prior to September 5, 2012 consists of VA and private treatment records, and a February 2012 VA examination report addressing the Veteran's aid and attendance claim addressed below.  This evidence provides no significant evidence regarding the degree of the Veteran's range of motion in his left arm/shoulder area.  Further, the February 2012 VA report indicates mild to moderate disability.  The report noted March 2011 left shoulder x-rays indicating mild degenerative changes, with "the acromion ... partially resected on the left."  The examiner, in assessing left upper extremity strength and coordination, noted "mild or moderate impairment."  

Since September 5, 2012, the evidence indicates impairment in the left arm that approximates the criteria for the highest rating for a minor extremity under DC 5201 of 30 percent.  The evidence indicates that the Veteran does not have pain-free flexion or abduction in the left arm beyond 25 percent from his left side.  The examiner who conducted the September 5, 2012 examination noted 80 degrees flexion with pain at 0 degrees, and 70 degrees abduction with pain at 0 degrees.  As it was not clear whether the examiner found pain from 0 degrees or found 0 degrees of pain, the Board remanded the issue for clarification in May 2013.  In response, the Veteran again underwent examination in January 2014.  That examiner's findings mirrored the September 2012 findings, indicating 80 degrees flexion and abduction, but also pain at 0 degrees for each motion.  This evidence indicates that the Veteran does not have pain-free movement from his left side beyond 25 degrees.  As functional limitations due to pain must be accounted for in a disability evaluation, a 30 percent rating is warranted under DC 5201.  DeLuca v. Brown, 8 Vet. App. 202 (1995).  

The Board also notes that the September 2012 and January 2014 VA reports, in addition to the VA and private treatment records, indicate either mild or no muscular impairment in the Veteran's left upper arm and shoulder.  The two VA examiners noted no muscle atrophy, and found 4/5 muscle strength on flexion and abduction.  Furthermore, the STRs do not indicate significant muscle injury during service.  Based on this information, a higher rating of 40 percent under DC 5302 for severe muscular disability is not warranted.  

The September 2012 examiner also discussed the effects of neurological problems the Veteran has, including weakness, which are unrelated to his left shoulder disorder.  And the January 2014 examiner noted the Veteran's obesity when describing his general limited movement and strength.  

The treatment records document that the Veteran has several abnormalities of the left shoulder, including traumatic arthritis of the left shoulder, tear of the supraspinatus tendon with marked impingement, and sub deltoid bursitis, and periarticular fibrosis resulting in a partially frozen shoulder.  These abnormalities all result in limitation of motion of the shoulder.  The Board has considered all potentially applicable DCs in this decision.  Schafrath v. Derwinski, 1 Vet. App. 589, 593 (1991).  However, the same manifestations of disability cannot be separately compensated under different diagnoses.  That would be pyramiding, which is prohibited.  38 C.F.R. § 4.14.  Thus, the evaluation of the veteran's limitation of motion of the left shoulder cannot be increased solely because more than one medical diagnosis may be underlying that limitation.  Esteban v. Brown, 6 Vet. App. 259 (1994).  

In sum, one evaluation of 20 percent is warranted for the left shoulder prior to September 5, 2012, and one evaluation of 30 percent has been warranted since then.  38 C.F.R. § 4.71a, DC 5201.

V.  Extraschedular Rating

The Board must consider whether the Veteran is entitled to an extraschedular rating under the provisions of 38 C.F.R. § 3.321(b)(1).  Bagwell v. Brown, 9 Vet. App. 337 (1996). 

The threshold factor for extraschedular consideration is a finding that the evidence before VA presents such an exceptional disability picture that the available schedular evaluations for that service-connected disability are inadequate.  Therefore, initially, there must be a comparison between the level of severity and symptomatology of the claimant's service-connected disability with the established criteria found in the rating schedule for that disability.  If the criteria reasonably describe the claimant's disability level and symptomatology, then the claimant's disability picture is contemplated by the rating schedule, the assigned schedular evaluation is adequate, and no referral is required.  Thun v. Shinseki, 572 F.3d 1366 (Fed. Cir. 2009). 

The service-connected left shoulder disability addressed in this decision is contemplated by the rating schedule as part of the General Formula.  38 C.F.R. §§ 4.71a, 4.73.  Specifically, the Veteran's symptomatology is expressly listed in the relevant rating criteria.  The extent of his left arm limitation and weakness is specifically contemplated by the criteria applied.  There is no showing of other symptoms not contemplated.  Therefore, the schedular rating criteria reasonably describe his disability picture for this particular disorder.  Thun, 22 Vet. App. at 115. 

The Board also notes that a veteran may be awarded an extraschedular rating based upon the combined effect of multiple conditions in an exceptional circumstance where the evaluation of the individual conditions fails to capture all the service-connected disabilities experienced.  Johnson v. McDonald, 762 F.3d 1362 (2014).  In this case, the Veteran is also service-connected for the left knee disability addressed below, rated as 10 percent disabling.  The evidence has not indicated during the appeal period that the left shoulder disability has resulted in further disability when looked at in combination with the left knee problems.  The medical evidence does not indicate that the disorder evaluated in this decision combines or interacts with the other service-connected disabilities in such a way as to result in further disabilities, functional impairment, or additional symptomatology not accounted for by the rating criteria applicable to each disability individually.  

Accordingly, this is not an exceptional circumstance in which extraschedular consideration may be required to compensate the Veteran for a disability that can be attributed only to the combined effect of multiple conditions.  Referral for consideration of an extraschedular evaluation is not warranted.  See Thun, supra.


ORDER

New and material evidence has been received, and the appeal to reopen the claim of entitlement to service connection for a right shoulder disability is granted.

New and material evidence has been received, and the appeal to reopen the claim of entitlement to service connection for a right knee disability is granted.

New and material evidence has been received, and the appeal to reopen the claim of entitlement to service connection for a heart disability is granted.

New and material evidence has been received, and the appeal to reopen the claim of entitlement to service connection for hypertension is granted.

New and material evidence has been received, and the appeal to reopen the claim of entitlement to service connection for a lung disability is granted.

New and material evidence has been received, and the appeal to reopen the claim of entitlement to service connection for sleep apnea is granted.
New and material evidence has been received, and the appeal to reopen the claim of entitlement to service connection for ED is granted.

New and material evidence has been received, and the appeal to reopen the claim of entitlement to service connection for diabetes is granted.

New and material evidence has been received, and the appeal to reopen the claim of entitlement to service connection for diabetic neuropathy of the left lower extremity is granted.

New and material evidence has been received, and the appeal to reopen the claim of entitlement to service connection for diabetic neuropathy of the right lower extremity is granted.

Entitlement to service connection for a back disability is denied.  

Entitlement to service connection for a prostate disability is denied.  

Entitlement to service connection for bilateral hearing loss is denied.  

Entitlement to a rating in excess of 20 percent, for residuals of a rotator cuff tear of the left shoulder with degenerative joint disease and impingement, is denied prior to September 5, 2009.  

Since September 5, 2009, entitlement to a 30 percent rating, for residuals of a rotator cuff tear of the left shoulder with degenerative joint disease and impingement, is granted, subject to the laws and regulations governing the payment of monetary awards.   

REMAND

A remand of the remaining issues on appeal is warranted for the following reasons.
First, based on the additional evidence included in the record, the Veteran should undergo an additional compensation examination into the service connection claims still pending (i.e., service connection claims for a right shoulder disability, a right knee disability, a heart disability, hypertension, a lung disorder, sleep apnea, ED, diabetes, diabetic neuropathy of the left lower extremity, diabetic neuropathy of the right lower extremity, a bilateral hip disorder, and an acquired psychiatric disorder).  In his various statements of record, the Veteran has asserted that he incurred his disorders during service, and developed the disorders secondary to service-connected disabilities.  Commentary should be obtained addressing each of the theories of entitlement.  

Second, an additional VA compensation examination should be provided to the Veteran for his increased rating claims for left knee limited extension, and for bursitis in the left tibial tubercle.  Pursuant to the May 2013 remand, the Veteran underwent recent VA examination of the left knee by QTC Medical Services, Inc.  The examination report is inadequate however, as it does not indicate a review of pertinent records, and does not clarify an issue raised by the examination regarding whether the Veteran has experienced left knee meniscus problems related to the service-connected degenerative changes.  

Third, the claims to a TDIU, SMC, and a certificate of eligibility for specially adapted housing or a special home adaptation grant are inextricably intertwined with the issues remanded on appeal.  See Smith v. Gober, 236 F.3d 1370, 1373 (Fed.Cir. 2001) (where the facts underlying separate claims are "intimately connected", the interests of judicial economy and avoidance of piecemeal litigation require that the claims be adjudicated together). 

Fourth, a SOC must be issued for the claim regarding automobile or other conveyance and adaptive equipment or for adaptive equipment only.  See Manlincon, supra.    

Accordingly, the case is REMANDED for the following action:

(Please note, this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c).  Expedited handling is requested.)

1.  Attempt to obtain and associate with the claims folder any outstanding VA treatment records.  If no additional VA records exist, the claims file should be documented accordingly.  38 C.F.R. § 3.159. 

2.  After the above development is completed, schedule the Veteran for VA examinations to assess the nature and etiology of his claimed disorders (i.e., a right shoulder disability, a right knee disability, a heart disability, hypertension, a lung disorder, sleep apnea, ED, diabetes, diabetic neuropathy of the left lower extremity, diabetic neuropathy of the right lower extremity, a bilateral hip disorder, and an acquired psychiatric disorder).

Any indicated tests should be accomplished.  The examiner(s) should review the record prior to examination, to include any newly associated records obtained as a result of this Remand, and to include a copy of this Remand.  The following questions should then be addressed.  

(i)  Does the Veteran have the claimed disorder (i.e., a right shoulder disability, a right knee disability, a heart disability, hypertension, a lung disorder, sleep apnea, ED, diabetes, diabetic neuropathy of the left lower extremity, diabetic neuropathy of the right lower extremity, a bilateral hip disorder, and an acquired psychiatric disorder)?

(ii)  For any disorder diagnosed:  Is it at least as likely as not (i.e., probability of 50 percent or greater) that the diagnosed disorder was caused by service or is otherwise related to active military service?
Note that the lack of documented treatment in service, while probative, cannot serve as the sole basis for a negative finding.  The Veteran's lay contentions must be considered and weighed in making the determination as to whether a nexus exists between service and the currently diagnosed disorder.  

(iii)  If the answer to (ii) is negative, is it at least as likely as not that a diagnosed disorder is proximately due to or the result of one or more of the Veteran's service-connected disorders? 

(iv)  If the answers to (ii) and (iii) are negative, is it at least as likely as not that a diagnosed disorder has been aggravated (i.e., permanently worsened beyond the natural progress) by a service-connected disorder? 

If aggravation is found, the examiner should address the following medical issues: (1) the baseline manifestations of the disorder found prior to aggravation; and (2) the increased manifestations which, in the examiner's opinion, are proximately due to the service-connected disorder.

When addressing the question of secondary service connection, please note that the Veteran is currently service-connected for left shoulder and left knee disabilities.   

Please also note the Veteran's lay contentions asserting that he developed his problems in part due to service-connected disabilities. 

The examiner is asked to explain the reasons behind any opinions expressed and conclusions reached.  The examiner is reminded that the term "as likely as not" does not mean "within the realm of medical possibility," but rather that the evidence of record is so evenly divided that, in the examiner's expert opinion, it is as medically sound to find in favor of the proposition as it is to find against it.

3.  After the above development is completed, schedule the Veteran for a VA examination to assess the nature and severity of his left knee and tibial tubercle disorders.  Any indicated tests should be accomplished.  The examiner should review the record prior to examination, to include any newly associated records obtained as a result of this Remand, and to include a copy of this Remand.  The examiner should address the evidence of record that the Veteran has undergone surgery on his left knee, and to what extent the surgeries related to the service-connected degenerative changes and bursitis.  Specifically, the examiner must also address the May 2016 DBQ on the Knee and Lower Leg that raises the issue of whether meniscus tears are related to the service-connected disability.  

In assessing the severity of the disorders, the examiner should consider and discuss the Veteran's competent and credible lay statements regarding the way in which his disorders affects him. 

4.  Thereafter, review the claims file to ensure that all requested development has been completed satisfactorily.  Then readjudicate the claims remanded.  If any benefit remains denied, issue an appropriate SSOC and provide the Veteran an appropriate period of time to respond.  The case is to then be returned to the Board for further appellate review.

5.  With regard to the claim for entitlement to automobile or other conveyance and adaptive equipment or for adaptive equipment only, issue a SOC based on the March 2016 NOD responding to the RO's January 2016 rating decision.  The Veteran must be provided with information about his rights and responsibilities in perfecting an appeal on this claim and be given an opportunity to respond.  Only if the Veteran responds by submitting a timely substantive appeal, should the issue be returned to the Board.

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).

These claims 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 2014).



______________________________________________
BETHANY L. BUCK
Veterans Law Judge, Board of Veterans' Appeals


Department of Veterans Affairs