Citation Nr: 18145109 Decision Date: 10/26/18 Archive Date: 10/26/18 DOCKET NO. 16-24 810A DATE: October 26, 2018 ORDER Entitlement to service connection for fatigue is dismissed. Entitlement to a compensable initial rating for service-connected right ear hearing loss is dismissed. Entitlement to an initial rating in excess of 10 percent for service-connected hypertension is dismissed. Entitlement to an initial rating of 40 percent for service-connected chronic left shin lymphedema is dismissed. Entitlement to a 70 percent rating, but no higher, for service-connected depressive disorder prior to February 12, 2014 is granted. Entitlement to service connection for obstructive sleep apnea is granted. REMANDED Entitlement to service connection for arthritis of the left knee is remanded. FINDINGS OF FACT 1. In a signed statement dated May 2018, the Veteran, through his attorney, withdrew the pending appeals of the claims of entitlement to service connection for fatigue, as well as entitlement to higher initial ratings for service-connected chronic left shin lymphedema, hypertension, and right ear hearing loss. 2. From the date of service connection, August 4, 2009, the Veteran’s service-connected depressive disorder has been manifested by occupational and social impairment, with deficiencies in most areas, but has not more nearly approximated total occupational and social impairment. 3. The evidence is at least evenly balanced as to whether the Veteran’s obstructive sleep apnea is related to his active military service. CONCLUSIONS OF LAW 1. The criteria for withdrawal of the pending appeals of the claims of entitlement to service connection for fatigue, as well as higher initial ratings for chronic left shin lymphedema, hypertension, and right ear hearing loss are met. 38 U.S.C. § 7105(b)(2), (d)(5) (2012); 38 C.F.R. § 20.204 (2018). 2. With reasonable doubt resolved in favor of the Veteran, the criteria for an initial disability rating of 70 percent, but no higher, for depressive disorder are met from the date of service connection. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 4.3, 4.130, Diagnostic Code 9434 (2017). 3. With reasonable doubt resolved in favor of the Veteran, obstructive sleep apnea was incurred in active military service. 38 U.S.C. §§ 1101, 1112, 1131, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from October 1996 to February 2004. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from rating decisions dated March 2014 and July 2014 of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. The March 2014 rating decision granted service connection for depressive disorder and assigned initial ratings of 50 percent from August 4, 2009 and 70 percent from February 12, 2014. The Veteran submitted a notice of disagreement (NOD) in October 2014 as to the assigned rating. In a March 2015 statement, the Veteran, through his attorney, clarified that he disagreed with the assignment of a 50 percent rating prior to February 12, 2014 and argued that a 70 percent rating was warranted from the date of service connection, August 4, 2009. The May 2016 statement of the case (SOC) identified the issue on appeal as entitlement to an effective date prior to February 12, 2014 for the assignment of the 70 percent rating for depressive disorder. The Veteran perfected an appeal in July 2016. In a May 2018 statement, the Veteran, through his attorney, expressed satisfaction with the award of the 70 percent rating from February 12, 2014, and argued entitlement to a 70 percent rating prior to that date. Accordingly, the Veteran has limited his appeal and the proper issue before the Board is whether an initial rating in excess of 50 percent is warranted for depressive disorder prior to February 12, 2014. Withdrawn appeals 1. Entitlement to service connection for fatigue. 2. Entitlement to an initial rating in excess of 40 percent for service-connected chronic left shin lymphedema. 3. Entitlement to an initial rating in excess of 10 percent for service-connected hypertension. 4. Entitlement to a compensable initial rating for service-connected right ear hearing loss. The Board may dismiss any appeal which fails to allege specific error of fact or law in the determination being appealed. 38 U.S.C. § 7105 (2012). An appeal may be withdrawn as to any or all issues involved in the appeal at any time before the Board promulgates a decision. 38 C.F.R. § 20.204 (2017). Withdrawal may be made by the appellant or by his or her authorized representative. 38 C.F.R. § 20.204(a). Appeals may be withdrawn on the record at a hearing or in writing. 38 C.F.R. § 20.204(b)(1). In a signed statement dated May 2018, the Veteran, through his attorney, expressed his desire to withdraw the pending appeals of the issues of entitlement to service connection for fatigue, as well as entitlement to higher initial ratings for service-connected chronic left shin lymphedema, hypertension, and right ear hearing loss. Hence, no allegations of errors of fact or law remain for appellate consideration with respect to said claims. Accordingly, the Board does not have jurisdiction to review the appeals as to these matters, and they must be dismissed. Higher Initial Rating 5. Entitlement to an initial rating in excess of 70 percent prior to February 12, 2014 for service-connected depressive disorder. Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities. 38 C.F.R. Part 4. The Board determines the extent to which a veteran’s service-connected disability adversely affects his 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. § 1155; 38 C.F.R. §§ 4.1, 4.10. Where there is a question as to which of two ratings should be applied, the higher rating 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. In general, when an increase in the disability rating is at issue, it is the present level of disability that is of primary concern. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994). When the appeal arises from an initial assigned rating, consideration must be given to whether staged ratings should be assigned to reflect entitlement to a higher rating at any point during the pendency of the claim. Fenderson v. West, 12 Vet. App. 119 (1999). However, staged ratings are also appropriate in any increased rating claim in which distinct time periods with different ratable symptoms can be identified. Hart v. Mansfield, 21 Vet. App. 505 (2007). Here, analysis in this decision has therefore been undertaken with consideration of the possibility that different ratings may be warranted for different time periods as to the pending claim. In all cases, the Board must determine the value of all evidence submitted, including lay and medical evidence. Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). The evaluation of evidence generally involves a three-step inquiry. First, the Board must determine whether the evidence comes from a “competent” source. The Board must then determine if the evidence is credible, or worthy of belief. Barr, at 308 (observing that once evidence is determined to be competent, the Board must determine whether such evidence is also credible). The third step of this inquiry requires the Board to weigh the probative value of the proffered evidence in light of the entirety of the record. In this function, the Board may properly consider internal inconsistency, facial plausibility, and consistency with other evidence submitted on behalf of the claimant. Caluza v. Brown, 7 Vet. App. 498, 511-12 (1995), aff’d, 78 F.3d 604 (Fed. Cir. 1996) (per curiam) (table); see Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997) (holding that the Board has the “authority to discount the weight and probative value of evidence in light of its inherent characteristics in its relationship to other items of evidence”). The Board has considered all evidence of record as it bears on the issues before it. See 38 U.S.C. § 7104(a) (“Decisions of the Board shall be based on the entire record in the proceeding and upon consideration of all evidence and material of record”); 38 U.S.C. § 5107(b) (“Secretary shall consider all information and lay and medical evidence of record in a case”). Although the Board has an obligation to provide reasons and bases supporting these decisions, there is no need to discuss, in detail, the extensive evidence of record. The Federal Circuit has held that the Board must review the entire record, but does not have to discuss each piece of evidence. Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000). Therefore, the Board will summarize the relevant evidence where appropriate, and the Board’s analysis below will focus specifically on what the evidence shows, or fails to show, as to the Veteran’s appeal. The Veteran’s service-connected depressive disorder is evaluated pursuant to Diagnostic Code (DC) 9434. Under this diagnostic code, a 50 percent evaluation is for assignment when there is occupational and social impairment with reduced reliability and productivity due to such symptoms as flattened affect; circumstantial, circumlocutory, or stereotyped speech; panic attacks more than once a week; difficulty in understanding complex commands; impairment of short and long-term memory, e.g., retention of only highly learned material, forgetting to complete tasks; impaired judgment; impaired abstract thinking; disturbances of motivation and mood; difficulty establishing effective work and social relationships. Id. A 70 percent evaluation is contemplated for occupational and social impairment, with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood, due to such symptoms as suicidal ideation; obsessional rituals which interfere with routine activities; speech intermittently illogical, obscure, or irrelevant; near-continuous panic or depression affecting the ability to function independently, appropriately and effectively; impaired impulse control, such as unprovoked irritability with periods of violence; spatial disorientation; neglect of personal appearance and hygiene; difficulty in adapting to stressful circumstances, including work or a work-like setting; inability to establish and maintain effective relationships. 38 C.F.R. § 4.130, DC 9434. A 100 percent evaluation is warranted when there is evidence of total occupational and social impairment, due to such symptoms as gross impairment in thought processes or communication; persistent delusions or hallucinations; grossly inappropriate behavior; persistent danger of hurting self or others; intermittent inability to perform activities of daily living, including maintenance of minimal personal hygiene; disorientation to time and place; memory loss for names of close relatives, own occupation or name. Id. The GAF is a scale reflecting psychological, social, and occupational functioning on a hypothetical continuum of mental health illness. See Carpenter v. Brown, 8 Vet. App. 240, 242 (1995); Richard v. Brown, 9 Vet. App. 266, 267 (1996) (citing DSM-IV). As will be discussed below, the Veteran has been assigned GAF scores ranging from 45 to 69 as determined by VA treatment providers, as well as VA examiners. These scores are indicative of moderate to severe impairment. Scores ranging from 41 to 50 reflect serious symptoms, e.g., suicidal ideation, severe obsessional rituals, frequent shoplifting, or any serious impairment in social, occupational, or school functioning, e.g., no friends, unable to keep a job. Scores ranging from 51 to 60 reflect more moderate symptoms (e.g., flat affect and circumstantial speech, occasional panic attacks) or moderate difficulty in social, occupational, or school functioning (e.g., few friends, conflicts with peers or co-workers). GAF scores ranging between 61 to 70 reflect some mild symptoms (e.g., depressed mood and mild insomnia) or some difficulty in social, occupational, or school functioning (e.g., occasional truancy, or theft within the household), but generally functioning pretty well, and has some meaningful interpersonal relationships. When determining the appropriate disability evaluation to assign, the Board’s primary consideration is a veteran’s symptoms, but it must also make findings as to how those symptoms impact a veteran’s occupational and social impairment. Vazquez-Claudio v. Shinseki, 713 F.3d 112, 118 (Fed. Cir. 2013); Mauerhan v. Principi, 16 Vet. App. 436, 442 (2002). Because the use of the term “such as” in the rating criteria demonstrates that the symptoms after that phrase are not intended to constitute an exhaustive list, the Board need not find the presence of all, most, or even some, of the enumerated symptoms to award a specific rating. Mauerhan, 16 Vet. App. at 442; see also Sellers v. Principi, 372 F.3d 1318, 1326-27 (Fed. Cir. 2004). Nevertheless, all ratings in the general rating formula are also associated with objectively observable symptomatology and the plain language of the regulation makes it clear that the veteran’s impairment must be “due to” those symptoms, a veteran may only qualify for a given disability by demonstrating the particular symptoms associated with that percentage, or others of similar severity, frequency, and duration. Vazquez-Claudio, 713 F.3d at 118. In this matter, the Veteran was granted entitlement to service connection for depressive disorder, in a March 2014 rating decision, at which time a 50 percent rating was assigned from the date of service connection, August 4, 2009, and a 70 percent from February 12, 2014. This appeal follows. As indicated above, the Veteran has expressed satisfaction with the 70 percent rating assigned from February 12, 2014. See the argument of the Veteran’s attorney dated May 2018. As such, the Board’s discussion is herein limited to whether a rating in excess of 50 percent is warranted for depressive disorder prior to February 12, 2014. For the following reasons, the Board finds that an initial rating of 70 percent is warranted under the schedular criteria from the date of service connection. The Veteran filed a claim of entitlement to service connection for a psychiatric disorder in August 2009. VA treatment records dated in July 2009 noted that the Veteran suffered from symptoms of depression including trouble sleeping. He explained that he spends time during the day volunteering at The American Legion. However, he stated that “sometimes he had trouble putting up with other people’s attitudes” and isolates himself until he is able to calm down. He endorsed sudden outbursts of crying, irritability and anger, lack of motivation and interests, difficulty concentrating, and feelings of worthlessness. The treatment provider diagnosed the Veteran with depression, NOS, as well as PTSD. A GAF of 45 was assigned. The Veteran was afforded a VA psychological examination in September 2011 at which time the examiner confirmed a continuing diagnosis of depressive disorder, NOS. The examiner stated that the Veteran’s psychological symptoms manifest in occupational and social impairment due to mild or transient symptoms which decrease work efficiency and ability to perform occupational tasks only during periods of significant stress, or; symptoms controlled by medication.” The Veteran reported that he is unemployed and his job ended due to ‘slow business;’ however, he feels he lost his job due to an incident in which he was aggressive with a customer. The Veteran additionally reported avoidance, depressed mood, chronic sleep impairment, disturbance of motivation and mood, and difficulty in establishing and maintaining effective work and social relationships. A GAF of 69 was assigned. VA treatment records dated in January 2012 noted that the Veteran denied active suicidal ideation, but reported past thoughts of suicide. VA treatment records dated in October 2013 noted diagnoses of PTSD and MDD, with a GAF score of 60. The Veteran reported insomnia, depressed mood, nightmares, and lack of motivation when alone and not working. He reported that he has been employed with a computer company since the end of June 2013. He reported social isolation; he stated that he does not have many friends, but goes to The American Legion. The Veteran was afforded another VA examination in February 2014, at which time the examiner confirmed a diagnosis of depressive disorder with major depressive-like symptoms. The Veteran lives in an apartment with a roommate. He has never been married and does not have any children. His relationship with his parents and siblings is ‘okay.’ The Veteran “[r]eports that due to inability to work he lost his possessions and was homeless from May 2011 to July 2011.” He stated that he has no close friends and primarily stays at home when not at work. He avoids socialization, crowds, and loud places. The Veteran reported that his hobby is model building and his leisure activity is spending time with his two dogs. The Veteran has been employed as a network engineer for two months. He endorsed depressed mood, anxiety, suspiciousness, chronic sleep impairment, mild memory loss, disturbance of motivation and mood, difficulty in establishing and maintaining effective work and social relationships, and difficulty in adapting to stressful circumstances including work or a work-like setting. The Veteran also endorsed obsessional rituals which interfere with routine activities, as well as grossly inappropriate behavior. The examiner explained that the Veteran was “[v]isibly sad, but cooperative and kind, goal directed and coherent, mild psychomotor retardation noted.” Based on the above, the Board finds that the impact of the Veteran’s depressive disorder symptoms on his social and industrial functioning is sufficient to approximate the degree of impairment contemplated by a 70 percent rating from the date of service connection. As detailed above, the record includes diagnoses of depressive disorder, adjustment disorder, PTSD, and major depressive disorder. Significantly the VA examiners, as well as the Veteran’s regular treatment providers have not differentiated between such symptoms and have, in fact, repeatedly described the overlapping symptoms of his psychiatric diagnoses. As such, the evidence is in equipoise as to whether the Veteran’s psychiatric symptoms are attributable to his service-connected depressive disorder, or at least not consistently clearly separable from his service-connected disability. Mittleider v. West, 11 Vet. App. 181 (1998). Thus, all psychiatric symptoms are considered part of the service-connected diagnoses. Id. The symptomatology associated with the Veteran’s service-connected depressive disorder to include that indicated by the lay statements and treatment records, supports the assignment of a 70 percent rating because this disability has been shown to result in occupational and social impairment, with deficiencies in most areas, such as work, family relations, and mood, due to such symptoms as near-continuous depression; anxiety; impaired impulse control, with periods of unprovoked irritability with outbursts of anger; difficulty in adapting to stressful circumstances, difficulty in establishing and maintaining effective work and social relationships, and difficulty adapting to stressful circumstances, including work or a work-like setting. 38 C.F.R. § 4.130, DC 9434. Specifically, these symptoms have been endorsed by the Veteran, as corroborated by VA examiners and treatment providers. Given the overall severity of the Veteran’s psychological symptoms, the Board finds that the criteria for a 70 percent evaluation are met from the date of service connection. In addition, as set forth above, suicidal ideation is one of the symptoms associated with a 70 percent disability rating. Suicidal ideation involves a range from a passive wish not to awaken in the morning or a belief that others would be better off if the individual were dead, to transient but recurrent thoughts of committing suicide, to a specific plan. Bankhead v. Shulkin, 29 Vet. App. 10 (2017). The Court has held that the criteria for a 70 percent rating “indicates that the presence of suicidal ideation alone, that is, a veteran’s thoughts of his or her own death or thoughts of engaging in suicide-related behavior, may cause occupational and social impairment with deficiencies in most areas.” Id. Given the evidence that the Veteran has reported a history of suicidal ideation, as well as the overall severity of the Veteran’s psychological symptoms, the Board finds that the criteria for a 70 percent evaluation are met. The symptoms have not more nearly approximated total occupational and social impairment at any point prior to February 12, 2014. 38 C.F.R. § 4.7 (2017). Significantly, the evidence does not show total occupational and social impairment due to depressive disorder. Although, there is evidence of occupational impairment due to his service-connected psychiatric disability, the Veteran has not contended that he is unable to work due to his psychological symptoms. Moreover, there is no evidence of total occupational impairment due to his service-connected psychiatric disability at any time prior to February 12, 2014. Moreover, while he has generally been socially isolated, the Veteran maintains contact with his parents and some friends. Hence, total social impairment has not been shown prior to February 12, 2014. Although the Veteran has experienced substantial irritability with outbursts of anger, he has not exhibited any grossly inappropriate behavior during prior to February 12, 2014. He has not exhibited persistent danger of hurting himself or others, persistent delusions or hallucinations, he has not experienced memory loss for names of close relatives, own occupation, or name, he has remained fully oriented to time and place from the date of service connection, and he has generally been able to perform activities of daily living. Thus, he has not exhibited most of the symptoms listed in the examples for a 100 percent disability rating at any time prior to February 12, 2014 and total social and occupational impairment has not otherwise been demonstrated. In light of the above evidence and resolving all reasonable doubt in the Veteran’s favor, the Board finds that the criteria for a 70 percent but no higher rating for the service-connected depressive disorder have been met under the General Rating Formula from the date of service connection. While there may have been day-to-day fluctuations in the manifestations of the Veteran’s service-connected depressive disorder, the evidence shows no distinct periods of time prior to February 12, 2014, when the Veteran’s service-connected disability varied to such an extent that a rating greater or less than 70 percent assigned herein would be warranted. Hart, supra. Neither the Veteran nor his attorney has raised any other issues, nor have any other issues been reasonably raised by the record. See Doucette v. Shulkin, 28 Vet. App. 366, 369-70 (2017) (confirming that the Board is not required to address issues unless they are specifically raised by the claimant or reasonably raised by the evidence of record). Service Connection 6. Entitlement to service connection for obstructive sleep apnea. Service connection may be granted for disability resulting from disease or injury incurred or aggravated during active military service. 38 U.S.C. § 1131. As noted, service connection generally requires (1) the existence of a present disability, (2) in-service incurrence or aggravation of an injury or disease, and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service. Shedden v. Principi, 381 F.3d 1163 (1995). If there is no showing of a listed chronic disease in service, then a showing of continuity of symptomatology after service is required to support a finding of chronicity. 38 C.F.R. § 3.303(b). See 38 U.S.C. § 1101(3); 38 C.F.R. § 3.309(a). Service connection may also be granted for any injury or disease diagnosed after service, when all the evidence, including that pertinent to service, establishes that the disease or injury was incurred in service. 38 C.F.R. § 3.303(d). In rendering a decision on appeal, the Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant. Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). 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 shall be given to the claimant. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. The question is whether the evidence supports the claim or is in relative equipoise, with the claimant prevailing in either event, or whether a fair preponderance of the evidence is against the claim, in which event the claim must be denied. Gilbert, 1 Vet. App. at 54. In this matter, the Veteran asserts entitlement to service connection for obstructive sleep apnea. He contends that he began to experience sleep apnea while on active duty, which has continued through the present day. See, e.g., the Veteran’s statement dated April 2018. For the reasons set forth below, the Board finds that service connection for obstructive sleep apnea is warranted. As indicated above, the Veteran served on active duty from October 1996 to February 2004. His service treatment records (STRs) include an April 2002 Report of Medical History, which noted his report of ‘frequent trouble sleeping.’ He again endorsed ‘frequent trouble sleeping’ in August 2003; at that time, it was noted that the Veteran was “unable to sleep through the night, usually wakes up frequently.” He again reported ‘frequent trouble sleeping’ in December 2003. The Veteran’s STRs also show that he developed morbid obesity during his military service with a BMI of 51%. See, e.g., the STRs dated August 2003. Post-service treatment records confirm a diagnosis of severe obstructive sleep apnea in June 2007. See also the VA treatment records dated November 2007. In support of his contentions of service connection, the Veteran submitted an April 2018 statement from a fellow servicemember, Mr. M.Y. who described the Veteran’s irregular sleep with gasping for air and loud snoring during active duty. The Veteran was afforded a VA opinion in June 2014 at which time the examiner concluded that the diagnosed sleep apnea was less likely than not (less than 50 percent probability) incurred in or caused by the claimed in-service injury, event, or illness. The examiner provided the following rationale, “the Veteran was not diagnosed or treated for sleep apnea while in service. He complained of waking up frequently during the night on April 25, 2002. However, he did not seek medical care for the trouble sleeping. He was diagnosed with obstructive sleep apnea on June 15, 2007.” Critically, the June 2014 VA examiner’s negative nexus opinion relies solely on an absence of a diagnosis of obstructive sleep apnea during the Veteran’s military service. To this end, the Board notes that the absence of evidence of treatment for a claimed disability in the Veteran’s service treatment records may not serve as the sole basis for a negative opinion. See Buchanan v. Nicholson, 451 F.3d 1331, 1336-37 (Fed. Cir. 2006) (holding the absence of contemporaneous medical records does not, in and of itself, render lay testimony not credible). The opinion also failed to address the Veteran’s reports of trouble sleeping in August 2003 and December 2003, as well as his contentions of continuing sleep apnea symptoms dating from his active duty. Significantly, the Veteran’s assertions as to his sleep apnea symptoms in military service are competent and credible as to continuity of relevant symptomatology. These contentions are corroborated by his documented difficulty maintaining sleep during service, as well as the statement of his fellow servicemember, Mr. M.Y. Accordingly, the Board finds that the Veteran’s currently diagnosed obstructive sleep apnea cannot reasonably be disassociated from his credible description of sleep apnea symptomatology during his active duty service. The Board has weighed the probative evidence of record, including the Veteran’s competent and credible assertions concerning continuing obstructive sleep apnea symptomatology, and finds that the evidence is in equipoise. As the reasonable doubt created by this relative equipoise in the evidence must be resolved in favor of the Veteran, entitlement to service connection for obstructive sleep apnea is warranted. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102.   REASONS FOR REMAND 1. Entitlement to service connection for arthritis of the left knee is remanded. The Veteran asserts entitlement to service connection for arthritis of the left knee, which he contends was incurred during his active duty service. See the written argument of the Veteran’s attorney dated May 2018. The Veteran has alternatively contended that his left knee disability is caused or aggravated by his service-connected chronic left shin lymphedema. Id. The Veteran’s STRs show that he was treated for a left knee abrasion in August 2001. His post-service records confirm that he is diagnosed with osteoarthritis/degenerative joint disease of the left knee. See, e.g., the VA treatment records dated November 2008. The Veteran has not been afforded a VA opinion as to his left knee disability claim. As such, the Board finds that this matter must be remanded in order to provide the Veteran with a medical opinion as to the etiology of his claimed disability. The matters are REMANDED for the following action: 1. Refer the VA claims file to an appropriate specialist clinician for an opinion on the etiology of the claimed left knee disability, to include arthritis. The clinician is requested to review the claims file in its entirety including all service treatment records, VA, and private treatment records. Then, the clinician should respond to the following: (a) Is it at least as likely as not that any current left knee disability to include arthritis had its onset in service, or within the year immediately following any period of service, or is otherwise the result of a disease or injury in service? (b) Is it at least as likely as not that any current left knee disability to include arthritis was caused by a service-connected disability, to specifically include chronic left shin lymphedema? (c) Is it at least as likely as not that the Veteran’s current left knee disability to include arthritis is aggravated (made worse as shown by comparing the current disability to medical evidence created prior to any aggravation) by a service-connected disability, to specifically include chronic left shin lymphedema? If the Veteran’s current left knee disability to include arthritis is aggravated by a service-connected disability, the physician should also indicate the extent of such aggravation by identifying the baseline level of disability. This may be ascertained by the medical evidence of record and also by the Veteran’s statements as to the nature, severity, and frequency of his observable symptoms over time. The absence of evidence of treatment in the Veteran’s service treatment records cannot, standing alone, serve as the basis for a negative opinion. The physician is advised that the Veteran is competent to report his symptoms and history, and such reports must be specifically acknowledged and considered in formulating any opinions. If the physician rejects the Veteran’s reports of symptomatology, he or she must provide a reason for doing so. Should the physician decide that a physical examination of the Veteran is required to address these questions, one should be scheduled. The physician must provide a rationale for each opinion given. K. Conner Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD K. K. Buckley, Counsel