Citation Nr: 18143564 Decision Date: 10/19/18 Archive Date: 10/19/18 DOCKET NO. 11-14 432 DATE: October 19, 2018 ORDER Entitlement to service connection for tinnitus is granted. Entitlement to service connection for left ear hearing loss is granted. Entitlement to service connection for right ear hearing loss is denied. Entitlement to at least a 20 percent rating for a right shoulder disability from September 28, 2009, is granted. Entitlement to at least a 10 percent rating for a back disability from September 28, 2009, to May 23, 2011, is granted. REMANDED Entitlement to service connection for a right knee disorder is remanded. Entitlement to service connection for a neck disability is remanded. Entitlement to a rating in excess of 20 percent for a right shoulder disability from September 28, 2009, is remanded. Entitlement to a rating in excess of 10 percent for a back disability from September 28, 2009, to May 23, 2011, and a rating in excess of 20 percent from May 23, 2011, is remanded. Entitlement to a total rating based on individual unemployability (TDIU) from September 28, 2009, to May 23, 2011, is remanded. FINDINGS OF FACT 1. Tinnitus and left ear hearing loss had their onset during service. 2. The preponderance of the evidence shows that the Veteran was not diagnosed with right ear hearing loss (as defined by the Veterans’ Administration) at any time during the pendency of the appeal. 3. At all times from September 28, 2009, the most probative evidence of record shows that the Veteran’s right shoulder disability is manifested by at least limitation of motion of the right arm at shoulder level when considering his complaints of pain. 4. At all times from September 28, 2009, to May 23, 2011, the most probative evidence of record shows that the Veteran’s back disability is manifested by at least a combined range of motion of the thoracolumbar spine less than 235 degrees when considering his complaints of pain. CONCLUSIONS OF LAW 1. The criteria for service connection for tinnitus and left ear hearing loss have been met. 38 U.S.C. §§ 1101, 1110, 1112, 1113, 1131, 5107(b); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.385. 2. The criteria for service connection for right ear hearing loss have not been met. 38 U.S.C. §§ 1101, 1110, 1112, 1113, 1131, 5107(b); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.385. 3. The criteria for at least a 20 percent rating for a right shoulder disability have been met from September 28, 2009. 38 U.S.C. §§ 1155, 5100, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.326, 3.655, 4.1, 4.2, 4.3, 4.7, 4.10, 4.20, 4.27, 4.71a, Diagnostic Code 5201. 4. The criteria for at least a 10 percent rating for a back disability have been met from September 28, 2009, to May 23, 2011. 38 U.S.C. §§ 1155, 5100, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.326, 3.655, 4.1, 4.2, 4.3, 4.7, 4.10, 4.20, 4.27, 4.71a, Diagnostic Code 5243. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty with the United States Marine Corps from May 1970 to May 1974 and the United States Cost Guard from August 1974 to August 1978. In April 2018 the Veteran’s representative withdrew the claimant’s personal hearing request. Similarly, in September 2018 the Veteran’s representative waived agency of original jurisdiction (AOJ) review of the evidence added to the claims file since the issuance of the October 2013 statement of the case. Initially, the Board finds that the record raises a claim for a TDIU from September 28, 2009, to May 23, 2011, because the Veteran has claim, in substance, that he has been unable to work because of his service-connected disabilities since filing his current rating claims on from September 28, 2009. See Rice v. Shinseki, 22 Vet. App. 447 (2009). The record shows that the Veteran also seeks VA compensation benefits under 38 U.S.C. § 1151 for left ear hearing loss. However, the record shows that he is not claiming VA compensation benefits under 38 U.S.C. § 1151 for right ear hearing loss and therefore the Board finds that it need not consider such a claim. Likewise, given the below decision that grants the Veteran service connection for left ear hearing loss, the Board finds that it need not consider this claim. The Service Connection Claims Service connection is warranted where the evidence of record establishes that a particular injury or disease resulting in disability was incurred in the line of duty in the active military service or, if pre-existing such service, was aggravated thereby. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. If a condition noted during service is not shown to be chronic, then generally a showing of continuity of symptomatology after service is required for service connection if the disability is one that is listed in 38 C.F.R. § 3.309. 38 C.F.R. § 3.303(b); see also Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). In addition, service connection may also be granted on the basis of a post-service initial diagnosis of a disease, where the physician relates the current condition to the period of service. 38 C.F.R. § 3.303(d). Other specifically enumerated disorders, including arthritis and sensor neural hearing loss, will be presumed to have been incurred in service if they manifested to a compensable degree within the first year following separation from active duty. 38 U.S.C. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309. In this regard, in order to establish service connection for the claimed disorders, 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. See Hickson v. West, 12 Vet. App. 247, 253 (1999). The requirement of a current disability is “satisfied when a claimant has a disability at the time a claim for VA disability compensation is filed or during the pendency of that claim.” See McClain v. Nicholson, 21 Vet. App. 319, 321 (2007). Service connection for impaired hearing is subject to 38 C.F.R. § 3.385, which provides that impaired hearing will be considered to be a disability when the auditory threshold in any of the frequencies 500, 1000, 2000, 3000, 4000 Hertz is 40 decibels or greater; or when the auditory thresholds for at least three of the frequencies 500, 1000, 2000, 3000, or 4000 Hertz are 26 decibels or greater; or when speech recognition scores using the Maryland CNC Test are less than 94 percent. The requirements for service connection for hearing loss as defined in 38 C.F.R. § 3.385 need not be shown by the results of audiometric testing during a claimant’s period of active military service in order for service connection to be granted. 38 C.F.R. § 3.385 does not prevent a claimant from establishing service connection on the basis of post-service evidence of hearing loss related to service when there were no audiometric scores reported at separation from service. Ledford v. Derwinski, 3 Vet. App. 87, 89 (1992). The regulation does not necessarily preclude service connection for hearing loss that first met the regulation’s requirements after service. Hensley v. Brown, 5 Vet. App. 155, 159 (1993). Thus, a claimant who seeks to establish service connection for a current hearing disability must show, as is required in a claim for service connection for any disability, that a current disability is the result of an injury or disease incurred in service, the determination of which depends on a review of all the evidence of record including that pertinent to service. 38 U.S.C. § 1131; 38 C.F.R. §§ 3.303 and 3.304; Hensley, 5 Vet. App. at 159-60. The United States Court of Appeals for Veterans Claims (Court) in Hensley also held that “audiometric testing measures threshold hearing levels (in decibels (dB)) over a range of frequencies (in Hertz (Hz)); the threshold for normal hearing is from 0 to 20 dB, and higher threshold levels indicate some degree of hearing loss.” Hensley, 5 Vet. App. at 157. Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits under the laws administered by VA. VA shall consider all information and medical and lay evidence of record. Where there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). In evaluating the evidence, the Board has been charged with the duty to assess the credibility and weight given to evidence. Davidson v. Shinseki, 581 F. 3d 1313 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007). Indeed, the Court has declared that in adjudicating a claim, the Board has the responsibility to do so. Bryan v. West, 13 Vet. App. 482, 488-89 (2000). In doing so, the Board is free to favor one medical opinion over another, provided it offers an adequate basis for doing so. Owens v. Brown, 7 Vet. App. 429, 433 (1995). Where there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). a. Tinnitus and Left Ear Hearing Loss The Veteran asserts, in substance, that service connection is warranted for his tinnitus and left ear hearing loss because they caused by acoustic trauma being on the flight line to work on aircraft navigation systems for eight years. It is also claimed, in substance, that his observable problems with these disabilities started on active duty and had continued since that time. The record shows the Veteran being diagnosed with tinnitus and left ear hearing loss. See, e.g., VA examinations dated in February 2011 and October 2012. Moreover, because the Veteran’s DD 214s lists his occupational specialty as an aircraft navigation technician as well as shows he was assigned to an air station and service treatment records document his having problems with his left ear not clearing after flying (see, e.g., service treatment records dated in February 1978), the Board will concede that he had an in-service injury (i.e., acoustic trauma). Further, the Board finds that the Veteran is both competent to report observing ringing in his ears and problems hearing in his left ear during and since service where he worked on aircraft navigation systems for eight years and his account of having ringing in his ears and trouble hearing in his left ear since that time is credible even though post-service VA examinations initially did not show hearing loss as defined by VA. See Owens, supra; Davidson, supra. Lastly, the Board notes that in September 2010 VA received a letter from a David L. Webb, M.D., FACS in which he opined that the Veteran’s hearing loss and tinnitus were due to his in-service noise exposure. Considering the Veteran’s in-service acoustic trauma, the credible history of ringing in his ears and hearing in his left ear in and since service, and the diagnosis of tinnitus and hearing loss, and the nexus opinion from Dr. Webb the Board finds that service connection for tinnitus and left ear hearing loss is warranted because the disabilities had their onset in service. 38 U.S.C. §§ 1110, 1131, 38 C.F.R. §§ 3.303, 3.385. In reaching these conclusions, the Board has not overlooked the negative opinions provided by the VA examiners in March 2011 and October 2012. However, symptoms of tinnitus and left ear hearing loss in and since service are observable by a lay person, and therefore the Board finds that the Veteran is both competent and credible to report on such symptoms. See Davidsons, supra. Moreover, the Board finds the positive nexus opinion provided by Dr. Webb equalize as probative as the negative VA opinions. Therefore, the Board finds that the question of whether his tinnitus and left ear hearing loss had continued since service is in equipoise and with affording him the benefit of the doubt, the Board concludes that they did and service connection is warranted. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; see also Gilbert, supra. b. Right Ear Hearing Loss The Veteran asserts, in substance, that service connection is warranted for right ear hearing loss because it was caused by being around aircraft on the flight-line. In this regard, and as noted above, the Veteran’s DD 214s lists his occupational specialty as an aircraft navigation technician as well as shows he was assigned to an air station. Additionally, service treatment records document his having problems with his ears not clearing after flying (see, e.g., service treatment records dated in February 1978). However the service treatment records, including the May 1974, July 1974, September 1975, September 1976, May 1978, and July 1977 examinations, are otherwise negative for complaints, diagnoses, or treatment for hearing loss in the right ear or a diagnosis of hearing loss. See Colvin v. Derwinski, 1 Vet. App. 171, 175 (1991) (VA may only consider independent medical evidence to support its findings and is not permitted to base decisions on its own unsubstantiated medical conclusions). In fact, the Board notes that the Veteran specifically denied having a problem with hearing loss when examined in July 1974, September 1976, and July 1977. Id. Likewise, when examined in May 1974, July 1974, September 1975, September 1976, May 1978, and July 1977 his audiological testing was normal even taking into account the Court’s holding in Hensley, supra. Id. The Board also notes that his April 1971 and January 1974 audiological examinations also did not show hearing loss even considering the Court’s holding in Hensley, supra. Likewise, and more importantly, the Board finds that the most probative evidence of record are the December 2009, February 2011, and October 2012 VA examinations which were held for the express purpose of obtaining a diagnosis and the opinions by these examiner that the audiometric testing conducted at these times showed that the Veteran did not have hearing loss in the right ear as defined by VA. See Owens, supra. In this regard, the Board finds these VA audiological findings more probative than the August 2010 audiological graph provided by Dr. Webb because the Board finds that Dr. Webb’s graph does not show the Veteran has “hearing loss” as defined by VA in his right ear. There are other problems with the report (see VA examination dated in February 2010). The Board gives Dr. Webb’s testing limited probative value. Id. Further, while the Veteran is competent to report on the symptoms he observes, the Board finds that he is not competent to diagnose hearing loss because diagnosing it requires special medical training that he does not have and therefore he cannot provide the missing diagnosis. See Davidson, supra. Lastly, the Board finds that the facts of this appeal are distinguishable from those in Saunders v. Wilkie, No. 2017-1466, 2018 U.S. App. LEXIS 8467 (Fed. Cir. Apr. 3, 2018), because the findings by the December 2009, February 2011, and October 2012 VA examiners show that the claimed disability does not result in functional impairment that affects earning capacity. See Owens, supra. Accordingly, the Board finds that the most probative evidence of record shows that the Veteran did not have a diagnosis of hearing loss in the right ear as defined by VA at any time during the pendency of the appeal and this appeal is denied. 38 U.S.C. §§ 1101, 1110, 1112, 1113, 1131, 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.385. The Increased Rating Claims The Veteran claims, in substance, that he meets the criteria for at least compensable ratings for his right shoulder and back disabilities at all times since filing his claim on September 28, 2009. Disability evaluations are determined by the application of a schedule of ratings which is based, as far as can practically be determined, on the average impairment of earning capacity. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Each service-connected disability is rated on the basis of specific criteria identified by a Diagnostic Code. 38 C.F.R. § 4.27. When rating the Veteran’s service-connected disability, the entire medical history must be borne in mind. Schafrath v. Derwinski, 1 Vet. App. 589 (1991). Separate higher or lower compensable evaluations may be assigned for separate periods of time if such distinct periods are shown by the competent evidence of record during the appeal, a practice known as “staged” ratings. See Hart v. Mansfield, 21 Vet. App. 505 (2007); Fenderson v. West, 12 Vet. App. 119, 126 (1999). Regulations require that where there is a question as to which of two evaluations is to be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. When evaluating joint disabilities rated on the basis of limitation of motion, VA must consider granting a higher rating in cases in which functional loss due to pain, weakness, excess fatigability, or incoordination is demonstrated, and those factors are not contemplated in the relevant rating criteria. See 38 C.F.R. §§ 4.40, 4.45, 4.59 (2016); DeLuca v. Brown, 8 Vet. App. 202 (1995). The Court has clarified that although pain may be a cause or manifestation of functional loss, limitation of motion due to pain is not necessarily rated at the same level as functional loss where motion is impeded. See Mitchell v. Shinseki, 25 Vet. App. 32 (2011); cf. Powell v. West, 13 Vet. App. 31, 34 (1999); Hicks v. Brown, 8 Vet. App. 417, 421 (1995); Schafrath v. Derwinski, 1 Vet. App. 589, 592 (1991). Instead, the Mitchell Court explained that pursuant to 38 C.F.R. §§ 4.40 and 4.45, the possible manifestations of functional loss include decreased or abnormal excursion, strength, speed, coordination, or endurance, as well as less or more movement than is normal, weakened movement, excess fatigability, and pain on movement (as well as swelling, deformity, and atrophy) that affects stability, standing, and weight-bearing. See 38 C.F.R. §§ 4.40, 4.45. Thus, functional loss caused by pain must be rated at the same level as if the functional loss were caused by any of the other factors cited above. Thus, in evaluating the severity of a joint disability, VA must determine the overall functional impairment due to these factors. The provisions of 38 C.F.R. § 4.59, which relate to painful motion, are not limited to arthritis and must be considered when raised by the claimant or when reasonably raised by the record. See Burton v. Shinseki, 25 Vet. App. 1 (2011). Moreover, the United States Court of Appeals for Veterans Claims (Court) in Southall-Norman v. McDonald, 28 Vet. App. 346, 352 (2016) held that the provisions of 38 C.F.R. § 4.59, which relate to painful motion, are not limited to the evaluation of musculoskeletal disabilities under Diagnostic Codes predicated on range of motion measurements. This appeal comes to the Board from a May 2010 rating decision that granted the Veteran’s right shoulder and back disabilities noncompensable ratings from September 28, 2009, under 38 C.F.R. § 4.71a, Diagnostic Code 5201 and Diagnostic Code 5243, respectively. During the pendency of the appeal, a June 2012 rating decision granted 20 percent ratings for the right shoulder and back disabilities effective from May 23, 2011, also under Diagnostic Code 5201 and Diagnostic Code 5243, respectively. As to the shoulder, Diagnostic Code 5201 provides a minimum 20 percent evaluation for limitation of motion of the major and minor arm at shoulder level warrant. As to the back, given the nature and location of his service connected disability, the Board finds that it may also be rated under the General Formula for Disease and Injuries of the Spine. See Butts v. Brown, 5 Vet. App. 532, 539 (1993) (holding that the Board’s choice of diagnostic code should be upheld so long as it is supported by explanation and evidence). The General Formula For Disease and Injuries of the Spine provides a minimum 10 percent rating for a back disability when there is forward flexion of the thoracolumbar spine greater than 60 degrees but not greater than 85 degrees; a combined range of motion of the thoracolumbar spine greater than 120 degrees but not greater than 235 degrees; if there is muscle spasm, guarding, or localized tenderness not severe enough to result in an abnormal gait or abnormal spinal contour; or vertebral body fracture with loss of 50 percent or more of height. 38 C.F.R. § 4.71a. Normal shoulder motion is flexion to 180 degrees, abduction to 180 degrees, external rotation to 90 degrees, and internal rotation to 90 degrees. 38 C.F.R. § 4.71a, Plate I. Normal back motion is flexion to 90 degrees, extension to 30 degrees, right and left lateral flexion to 30 degrees, and right and left rotation to 30 degrees. 38 C.F.R. § 4.71a, Plate V. With the above criteria in mind, the Board first notes that the record shows that the Veteran was only provided a VA examination in December 2009 for the time in question (i.e., September 28, 2009, to May 23, 2011). In this regard, at the December 2009 VA examination the pain free range of motion of the right shoulder after repetition was flexion to 180 degrees, abduction to 180 degrees, external rotation to 90 degrees, and internal rotation to 90 degrees. The Board also notes that the pain free range of motion of the back after repetition was flexion to 90 degrees, extension to 30 degrees, right and left lateral flexion to 30 degrees, and right and left rotation to 30 degrees. The Board also notes that, while not quantified, VA treatment records also documented the Veteran’s complaints and treatment for right shoulder and back pain and/or lost motion. Tellingly, the Board finds that at the above VA examination as well as in his writings to VA and in the VA treatment records, the Veteran has competently and credibly complained of right shoulder and back pain at all times from September 28, 2009, to May 23, 2011. See Davidson, supra. Therefore, given the above VA testing, and granting the Veteran the benefit of any doubt in this matter, the Board finds that when considering his complaints of pain as per 38 C.F.R. §§ 4.40, 4.45, 4.59 and the Court’s holding in DeLuca, Mitchell, Burton, and Southall-Norman, that his lost right shoulder motion equates to at least limitation of motion of the arm at shoulder level and limitation of the combined range of motion of the thoracolumbar spine to less than 235 degrees. See 38 U.S.C. § 5107; Owens, supra; Madden v. Gober, 125 F.3d. 1477 1481 (Fed. Cir. 1997) (holing that the Board is entitled to discount the credibility of evidence in light of its own inherent characteristics and its relationship to other items of evidence). Therefore, the Board finds that the criteria for at least a 20 percent rating for the right shoulder disability have been met under Diagnostic Code 5201 and at least a 10 percent rating for the back disability have been met under the General Formula for Disease and Injuries of the Spine at all times from September 28, 2009, to May 23, 2011. 38 C.F.R. § 4.71; Fenderson, supra; Hart, supra. Given the fact that this appeal has been pending for almost a decade, the Board finds that it should not delay the current awards by waiting on the results of the new VA examination ordered below because of the recent holding by the Court in Sharp v. Shulkin, 29 Vet. App. 26 (2017). REASONS FOR REMAND Entitlement to service connection for a neck disability is remanded. As the claim of service connection for a neck disability, the record includes reports of hospitalization that show the Veteran was hospitalized at VA in July 2015 and August 2015 because of neck pain/spondylosis. However, the claims file does not contain any of the Veteran’s post-2012 VA treatment records. Therefore, the Board finds that a remand to obtain and associate with the record these missing VA treatment records is required. See 38 U.S.C. § 5103A(b); Bell v. Derwinski, 2 Vet. App. 611 (1992) (holding that VA adjudicators are deemed to have constructive notice of VA treatment records). Given this new diagnosis, the Board finds that a remand is also required to provide the Veteran with a new VA examination to obtain a needed etiology opinion which considers the more recent VA treatment records that diagnosis him with a post-service neck disability as well as the in-service records that diagnose him with whiplash after his April 1972 motor vehicle accident. See 38 U.S.C. § 5103A(d); Barr v. Nicholson, 21 Vet. App. 303, 312 (2007) (holding that when VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate); Green v. Derwinski, 1 Vet. App. 121 (1991) (holding that VA’s duty to assist includes conducting a thorough and contemporaneous examination of the veteran that takes into account the records of prior examinations and treatment). Entitlement to service connection for a right knee disorder is remanded. As to the claim of service connection for a right knee disorder, the record shows that while the December 2009 VA examiner opined that the Veteran did not have a disability, July 2009 and March 2010 magnetic resonance imaging evaluations (MRIs) diagnosed his with right knee degenerative joint disease. Therefore, the Board finds that the December 2009 VA examination is inadequate. See Madden v. Gober, 125 F.3d. 1477 1481 (Fed. Cir. 1997) (holing that the Board is entitled to discount the credibility of evidence in light of its own inherent characteristics and its relationship to other items of evidence); Reonal v. Brown, 5 Vet. App. 458, 461 (1993) (a medical opinion based on an inaccurate factual premise is not probative). Accordingly, the Board finds that a remand is required to provide the Veteran with a new VA examination to obtain a needed etiology opinion which considers the VA treatment records that diagnosis him with a post-service right knee disability as well as the in-service records that document an April 1972 motor vehicle accident, the October 1973, March 1974, and April 1974 service treatment records that documented his complaints and treatment for right knee pain diagnosed as possible chondromalacia, Baker’s cyst, and/or cartilage tear, and his lay claims regarding having ongoing right knee pain since the motor vehicle accident. Entitlement to higher ratings for the right shoulder and back disabilities from September 28, 2009, are remanded. As to the claims for higher evaluations for right shoulder and back disabilities, the Board finds that these issues need to be remanded to provide the Veteran with a VA examination because the existing record, including the last examination in January 2013, do not included range of motion testing in both active and passive motion, weight-bearing, and non-weight-bearing situations as well as opinions as to the Veteran’s range of motion during flare-ups and a comparison between the service connected joint with the nonservice-connected opposite joint. See 38 U.S.C. § 5103A(d); Sharp, supra. Entitlement to a TDIU from September 28, 2009, to May 23, 2011, is remanded. A review of the record on appeal reveals that the Veteran does not currently meet the schedular criteria for a TDIU from September 28, 2009, to May 23, 2011. See 38 C.F.R. § 4.16(a). However, the Board notes that this fact may change when the RO effectuates the above grants and carries out the above development. Therefore, the Board finds that the claim for a TDIU is inextricably intertwined with the above issues and must be remanded. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991) (holding that where a claim is inextricably intertwined with another claim, the claims must be adjudicated together in order to enter a final decision on the matter). These matters are REMANDED for the following actions: 1. Obtain and associate with the claims file all post-2012 VA treatment records to include all records from the Veteran’s hospitalizations in July and August 2015. 2. After obtaining all needed authorizations from the Veteran, associate with the claims file any outstanding private treatment records. If possible, the Veteran himself should submit and new pertinent evidence the Board/VA does not have (if any). 3. Thereafter, schedule the Veteran for a VA examination with a suitably-qualified medical professional to address the etiology of the neck and right knee disorders. Any and all studies, tests, and evaluations deemed necessary by the examiner should be performed. The claims file should be made available and reviewed by the examiner in conjunction with conducting the examination, and the examiner should specifically note that such review was performed. Following consideration of the evidence of record (both lay and medical) and all evidence obtained during the examination, the examiner is asked to address the following: a. Provide diagnoses for all neck and right knee disorders. b. As to each diagnosed neck and right knee disorder, provide an opinion as to whether it is at least as likely as not (50 percent or greater probability) that it was caused by the Veteran’s military service. c. Provide an opinion as to whether any neck and/or right knee arthritis manifested in the first post-service year. d. As to each diagnosed neck and right knee disorder, provide an opinion as to whether it is at least as likely as not (50 percent or greater probability) that a right knee disorder was caused by the service-connected back disorder. d. As to each diagnosed neck and right knee disorder, provide an opinion as to whether it is at least as likely as not (50 percent or greater probability) that a right knee disorder was permanently aggravated beyond the normal course of the condition by the service-connected back disability. In providing answers to the above questions, the examiner should consider the Veteran’s competent lay claims regarding observable symptomatology (i.e., pain) since a documented April 1972 motor vehicle accident while on active duty in which he was diagnosed with whiplash and the subsequent October 1973, March 1974, and April 1974 service treatment records that documented his complaints and treatment for right knee pain diagnosed as possible chondromalacia, Baker’s cyst, and/or cartilage tear. In providing answers to the above questions, the examiner is also advised that the term “at least as likely as not” does not mean within the realm of medical possibility, but rather that the medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of conclusion as it is to find against it. “Aggravated” in this context refers to a permanent worsening of the pre-existing or underlying condition, as opposed to temporary or intermittent flare-ups of symptoms which resolve with return to the previous baseline level of disability. The examiner must include in the medical report the rationale for any opinion expressed. However, if the examiner cannot respond to an inquiry without resort to speculation, he or she should so state, and further explain why it is not feasible to provide a medical opinion, indicating whether the need to speculate is caused by a deficiency in the state of general medical knowledge (i.e. no one could respond given medical science and the known facts) or by a deficiency in the record or in the examiner (i.e. additional facts are required, or the examiner does not have the needed knowledge or training). 4. Thereafter, schedule the Veteran for a VA examination with a suitably-qualified medical professional to address the severity of his right shoulder and back disabilities from September 28, 2009. The claims file should be made available and reviewed by the examiner in conjunction with conducting the examination, and the examiner should specifically note that such review was performed. Any and all studies, tests, and evaluations deemed necessary by the examiner should be performed. After a review of the claims file, any needed testing, and an examination of the Veteran, the examiner should provide answers to the following questions: (a) The examiner should identify all right shoulder and back pathology found to be present from September 28, 2009. (b) The examiner should conduct all indicated tests and studies, to include range of motion studies. Full range of motion testing must be performed where possible. The joint involved should be tested in both active and passive motion, in weight-bearing and non-weight-bearing. These findings should be compared to the non-service-connected left ankle. If the examiner is unable to conduct the required testing or concludes that the required testing is not necessary in this case, he or she should clearly explain why that is so. (c) The examiner should describe any pain, weakened movement, excess fatigability, instability of station and incoordination present. (d) The examiner should also state whether the examination is taking place during a period of flare-up. If not, the examiner should ask the Veteran to describe the flare-ups he experiences, including: frequency, duration, characteristics, precipitating and alleviating factors, severity and/or extent of functional impairment he experiences during a flare-up of symptoms and/or after repeated use over time. (e) Based on the Veteran’s lay statements and the other evidence of record, the examiner should provide an opinion estimating any additional lost motion caused by functional loss during a flare-up and after repeated use over time in the right shoulder and back. (f) If the examiner cannot estimate the degrees of additional range of motion loss during flare-ups and/or after repetitive use without resorting to speculation, the examiner should state whether the need to speculate is caused by a deficiency in the state of general medical knowledge (i.e. no one could respond given medical science and the known facts) or by a deficiency in the record or the examiner (i.e. additional facts are required, or the examiner does not have the needed knowledge or training). (g) As to the right shoulder, the examiner should also state whether the Veteran has a problem with ankylosis, malunion of the humerus, recurrent dislocation of the humerus at the scapulohumeral joint, fibrous union of the humerus, nonunion of the humerus (false flail joint), loss of head of humerus (flail shoulder), and/or nonunion of the clavicle or scapula with loose movement or dislocation and, if he does, the nature, extent, and severity of these disabilities. (h) As to the back, the examiner should state the number of weeks of incapacitating episodes the Veteran had each year since September 28, 2009. (i) As to the back, the examiner should also state the nature, extent, and severity of any left as well as right lower extremity radiculopathy. (j) As to the back, the examiner should state the nature, extent, and severity of any loss of sphincter and bladder control caused by his service-connected disability (if any). In providing the opinions, the examiner should consider the Veteran’s competent lay claims regarding observable symptomatology. The examination report must include a complete rationale for all opinions expressed. JOHN J. CROWLEY Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Neil T. Werner, Counsel