Citation Nr: 18145971 Decision Date: 10/30/18 Archive Date: 10/30/18 DOCKET NO. 05-15 480 DATE: October 30, 2018 ORDER A separate, 30 percent rating for symptoms from the medications required to treat the service-connected lumbosacral strain with degenerative disc disease (DDD) and degenerative arthritis is granted. A disability rating in excess of 40 percent for lumbosacral strain with DDD and degenerative arthritis on an extraschedular basis is denied. An effective date earlier than August 22, 2003 for the award of service connection for chondromalacia of the right knee is denied. REMANDED An initial disability rating in excess of 10 percent for chondromalacia of the right knee is remanded. FINDINGS OF FACT 1. Throughout the appeal period, side effects of the medications needed to treat the Veteran’s lumbar spine disability have resulted in psychological disability approximated by an occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks. 2. In light of the award of a separate rating for the symptoms from the medications required to treat the service-connected lumbosacral strain with DDD and degenerative arthritis, the schedular 40 percent rating assigned adequately contemplates the Veteran’s disability picture. 3. In August 1988, the Veteran separated from service; a claim for service connection for a right knee disability was not received within one year of date of discharge. 4. On August 22, 2003, VA received the Veteran’s informal claim for service connection for a right knee disability. 5. There were no informal or formal claims, or written intent to file a claim for service connection for a right knee disability dated prior to the August 22, 2003 claim. CONCLUSIONS OF LAW 1. Throughout the appeal period, the criteria for a separate, 30 percent disability rating for the psychological side effects of the medications used to treat the lumbar spine disability have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.20, 4.130, Diagnostic Code (DC) 9422. 2. The criteria for a disability rating in excess of 40 percent for lumbosacral strain with DDD and degenerative arthritis on an extraschedular basis have not been met. 38 U.S.C. §§ 501, 1155, 5107; 38 C.F.R. §§ 3.321(b), 4.71a, DCs 5295, 5237 (effective prior to September 23, 2002, effective on September 23, 2002, and effective on September 26, 2003); Thun v. Peake, 22 Vet. App. 111 (2008). 3. The criteria for the assignment of an effective date earlier than August 22, 2003 for the grant of service connection for a right knee disability are not met. 38 U.S.C. §§ 5107, 5110(a); 38 C.F.R. §§ 3.102, 3.400. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from June 1987 to August 1988 in the United States Navy. These matters come before the Board of Veterans' Appeals (Board) on appeal from January 2004 and February 2014 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO). In addition to the above-claims, a claim for a total disability rating based on individual unemployability (TDIU) was also on appeal. In April 2018, TDIU was granted. The Veteran has not appealed any aspect of that determination. As a matter of clarification, the record shows that in June 2018, the Veteran attempted to perfect an appeal of claims for an earlier effective date for service connection for right leg radiculopathy, and a higher rating for right leg radiculopathy. That appeal does not appear to be timely and those issues were not certified to the Board. The Veteran has waived his right to have medical evidence received after the last RO adjudications reviewed in the first instance by the RO. Extraschedular Rating for Lumbar Spine Disability Generally, disability ratings are determined by evaluating the extent to which a Veteran's service-connected disability adversely affects his ability to function under the ordinary conditions of daily life, including employment, by comparing his symptomatology with the criteria set forth in VA's Rating Schedule. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. The Veteran’s claim for a higher rating for his lumbar spine disability was received in August 2003. During the appeal period, including within one year of his claim, the regulations pertaining to evaluating disabilities of the spine were revised. Under prior versions of the regulations, the Veteran’s spine disability was rated under DC 5292. Under the current version of the regulations, his disability has been rated under DC 5243 via the General Rating Formula for Diseases and Injuries of the Spine and Formula for Rating Intervertebral Disc Syndrome. Throughout the appeal, he has been in receipt of a 40 percent rating. The regulations were first revised on September 23, 2002. Under the regulations in effect prior to this date (pertinent to the window of time within one year of the claim), DC 5292 provided a maximum 40 percent rating for severe limitation of motion of the lumbar spine. Ratings higher than 40 percent were warranted only with evidence of a vertebral fracture (DC 5285), ankylosis of the entire spine (DC 5286), ankylosis of the lumbar spine (DC 5289), or pronounced intervertebral disc syndrome. Pronounced intervertebral disc syndrome required persistent symptoms compatible with sciatic neuropathy with characteristic pain and demonstrable muscle spasm, absent ankle jerk, or other neurological findings appropriate to site of diseased disc, with little intermittent relief. As of September 23, 2002, the rating criteria above were changed only as pertinent to intervertebral disc syndrome. A rating higher than 40 percent was assigned for intervertebral disc syndrome with incapacitating episodes having a total duration of at least 6 weeks during the past 12 months. An incapacitating episode was defined as a period of acute signs and symptoms due to intervertebral disc syndrome requiring bed rest prescribed by a physician and treatment by a physician. Neurological abnormalities were to be rated separately. As of September 26, 2003, under the General Rating Formula for Diseases and Injuries of the Spine, a 40 percent rating is assigned where there is forward flexion of the thoracolumbar spine to 30 degrees or less, or favorable ankylosis of the entire thoracolumbar spine. The next higher rating of 50 percent rating is assigned with evidence of unfavorable ankylosis of the entire thoracolumbar spine. A 100 percent rating is assigned with evidence of unfavorable ankylosis of the entire spine. These rating criteria are applied with and without symptoms such as pain (whether or not it radiates), stiffness, or aching in the area of the spine affected by residuals of injury or disease. Any associated objective neurological abnormalities, including, but not limited to, bowel or bladder impairment, are separately rated under an appropriate diagnostic code. Additionally, under the current Formula for Intervertebral Disc Syndrome (IVDS) Based on Incapacitating Episodes, ratings are assigned based on the quantity and duration of incapacitating episodes over a prior 12-month period. For purposes of evaluation under this formula, an incapacitating episode is a period of acute signs and symptoms due to IVDS that requires bed rest prescribed by a physician. Under this Formula, the next higher rating of 60 percent is assigned with evidence of incapacitating episodes having a total duration of at least 6 weeks during the past 12 months. When evaluating musculoskeletal disabilities, VA may, in addition to applying schedular criteria, consider granting a higher rating in cases in which functional loss due to limited or excess movement, 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; DeLuca v. Brown, 8 Vet. App. 202, 204-7 (1995). The provisions of 38 C.F.R. § 4.40 and 38 C.F.R. § 4.45 are to be considered in conjunction with the diagnostic codes predicated on limitation of motion. Johnson v. Brown, 9 Vet. App. 7 (1996). To accord justice in the exceptional case where the criteria in VA's Rating Schedule are found to be inadequate, an extraschedular rating that is commensurate with the average earning capacity impairment caused by the service connected disability may be assigned. 38 C.F.R. § 3.321 (b)(1). The Court has set out a sequential three-step analysis, based on the language of 38 C.F.R. § 3.321(b)(1), to determine whether to refer a case for extraschedular consideration. Thun v. Peake, 22 Vet. App. 111 (2008). Step one is to determine whether the schedular rating criteria adequately contemplate a claimant's disability picture. If the criteria reasonably describe the disability level and symptomatology, then the claimant's disability picture is contemplated by the rating schedule, the assigned schedular evaluation is, therefore, adequate, and no referral to the Under Secretary for Benefits or the Director, Compensation Service for consideration of an extraschedular rating is required. If, however, the schedular criteria do not contemplate the claimant's level of disability and symptomatology and are therefore found to be inadequate, step two is to determine whether the claimant's disability picture is exceptional, with such related factors as marked interference with employment or frequent periods of hospitalization, as to render impractical the application of the regular schedular criteria. If the claimant's disability picture meets this second step, then the third and last step is to refer the case to the Under Secretary for Benefits or the Director, Compensation Service to determine whether, to accord justice, an extraschedular rating is warranted. When the Board finds that an extraschedular rating may be warranted based on the above factors, it cannot grant an extraschedular rating in the first instance. Rather, it must remand the claim to the AOJ for referral to the Director. See Thun v. Peake, 22 Vet. App. 111 (2008), aff'd sub nom.; Thun v. Shinseki, 572 F.3d 1366 (Fed. Cir. 2009). The Director's decision is not evidence, but, rather, the de facto AOJ decision, and the Board must conduct de novo review of this decision. Wages v. McDonald, 27 Vet. App. 233, 238-39 (2015) (holding that the Board conducts de novo review of the Director's decision denying extraschedular consideration). The Court has affirmed that the Board has jurisdiction to review the entirety of the Director's decision denying or granting an extraschedular rating, and elaborated that the Board is authorized to assign an extraschedular rating when appropriate. Kuppamala v. McDonald, 27 Vet. App. 447 (2015). As noted, this appeal stems from an August 2003 claim for a higher rating for the lumbar spine disability. In the January 2004 rating decision on appeal, the RO granted a 40 percent rating. In March 2006, the Board denied a rating higher than 40 percent. The Veteran appealed the Board's decision to the United States Court of Appeals for Veterans Claims (Court). In July 2007, the RO continued the 40 percent rating. In October 2007, the Court vacated the Board’s March 2006 decision and remanded the matter to the Board for development consistent with the parties' Joint Motion for Remand (Joint Motion). The parties determined that the Board had not adequately addressed the applicability of 38 C.F.R. § 3.321(b)(1) regarding extraschedular ratings in its decision. In March 2009 and May 2010, the Board remanded the claim for further development. In May 2012, the Board denied a rating higher than 40 percent for the lumbar spine disability on a schedular basis, and granted a separate, 10 percent rating for right leg radiculopathy. The Board added to the appeal and remanded the matter of entitlement to an extraschedular rating for the lumbar spine disability. At this juncture, the Board emphasizes that the matter of entitlement to a schedular rating higher than 40 percent was already decided by the Board in the final May 2012 decision. The matter remaining on appeal is the Veteran’s entitlement to an extraschedular rating. In January 2017, the Board remanded the matter of entitlement to an extraschedular rating for further development. In February 2018, the Director, Compensation Service, found that the service-connected lumbar spine disability has been evaluated appropriately. A comparison between the severity and symptomatology of the lumbar spine disability and the rating schedule revealed that the rating criteria reasonably described his disability level and symptomatology. The Director found there was no exceptional or unusual disability picture that would render application of the current rating schedular criteria inadequate. Instead, the Director awarded the Veteran a TDIU on an extraschedular basis pursuant to 38 C.F.R. § 4.16(b). Initially, the Board notes that while the 2007 Joint Motion discussed interference of the lumbar spine disability with employment, since 2007 the Court has issued several important decisions addressing the matter of extraschedular consideration under 38 C.F.R. § 3.321 (b)(1), particularly Thun v. Peake, discussed above. As explained in Thun and repeated in the recent cases of Urban v. Shulkin, 29 Vet. App. 82 (2017) and King v. Shulkin, 29 Vet. App. 174 (2017), if the threshold factor (sometimes referred to as “Thun Step 1”) is not met, the question of marked interference with employment need not be addressed. "Any impact—or the absence of such impact—on a veteran's employment is irrelevant at this [first] step in the [Thun] analysis. Such an impact on employment is not a symptom. Rather, it is in the second step that one addresses the underlying effects and their severity that may create an impact on employment." King, at 9. Thus, where the Board determines that the first step of Thun has not been met, a discussion of the impact, if any, of the Veteran's disability on his employment is not necessitated. As described below, in considering the evidence under the laws and regulations as set forth above, and resolving all reasonable doubt in his favor, the Board finds the Veteran is entitled to a separate rating for the side effects of the medication required to treat his service-connected lumbar spine disability. The remainder of his spine symptoms are fully encompassed within the meaning of the General Rating Formula for Disease or Injury of the Spine, the Formula for Rating IVDS Based on Incapacitating Episodes, the prior version of the spine regulations, and 38 C.F.R §§ 4.40 and 4.45 As for the side effects of his medication, the evidence is limited but undisputed. Throughout the appeal period, the record shows he has been prescribed narcotic pain medication, including Darvocet, Propoxyphene, and Oxycodone, as well as Tramadol and Flexeril. In an April 2005 letter, the Veteran asked VA to consider the effects of his medications, which included 650 milligrams daily of Propoxyphene. On VA examination in August 2010, the examiner stated that the Veteran’s prescription medications caused drowsiness. His overall symptoms affected his reliability, productivity, ability to concentrate, and ability to follow instructions. He had no impairment of long or short-term memory, judgment, or abstract thinking. He had no impairment in the ability to interact with others. He had no abnormalities of conduct. He had no disturbance of mood or problems with self-care. In a November 2013, a VA physician noted that Oxycodone made the Veteran spacey. On VA examination in January 2014, the examiner noted that the Veteran’s medication could affect him at work. His overall symptoms affected his reliability, productivity, ability to concentrate, and ability to follow instructions. He had no impairment of long or short-term memory, judgment, or abstract thinking. He had no impairment in the ability to interact with others. He had no abnormalities of conduct. He had no disturbance of mood or problems with self-care. The above evidence demonstrates the Veteran has been taking these medications throughout the appeal period. He is not already being compensated for any disability rated under 38 C.F.R. § 4.130, General Rating Formula for Mental Disorders, thus, assigning a separate rating under this section does not violate the rule against pyramiding. See 38 C.F.R. § 4.14. The Board finds that a separate, 30 percent rating for the side effects of the medications used to treat the lumbar spine disability is warranted under the General Rating Formula for Mental Disorders. A 30 percent rating is assigned where there is evidence of occupational and social impairment with an occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks (although generally functioning satisfactorily, with routine behavior, self-care, and conversation normal), due to such symptoms as: depressed mood, anxiety, suspiciousness, panic attacks (weekly or less often), chronic sleep impairment, mild memory loss (such as forgetting names, directions, recent events). As the medications cause him to be spacey and drowsy, and affect reliability, productivity, concentration, and the ability to follow instructions, the Board finds this approximates an occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks. As such, the criteria for a 30 percent rating have been met. However, the preponderance of the evidence is against the assignment of a rating in excess of 30 percent. A 50 percent rating is warranted for 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 in establishing and maintaining effective work and social relationships. While his medication-induced symptoms were noted to “affect” reliability and productivity, the examiners did not find he has an overall reduction in reliability and productivity, or if so, that it was specifically due to his medication’s side effects. Rather, it appears the statement was made as to the effect of his lumbar spine symptoms overall. Further, he has had none of the type of symptoms contemplated by a 50 percent rating. The examiners specifically stated he had no impairment of either short-term or long-term memory, no impaired judgment, no impaired abstract thinking, no disturbances of mood, and no impairment in interacting with others. The record similarly lacks evidence of such symptoms as a flattened affect; circumstantial, circumlocutory, or stereotyped speech; panic attacks more than once a week; or a difficulty in understanding complex commands. The Board thus finds that his medication-induced symptoms are more closely approximated by a 30 percent rating. The schedular rating criteria adequately contemplate the remainder of his lumbar spine symptoms. As the Board has already adjudicated the matter of entitlement to a higher schedular rating, it will not duplicate its prior recitation of the evidence, as discussed at length in the May 2012 decision. The Board will briefly summarize the remaining symptomatology of the lumbar spine disability as reflected by VA examination reports generated throughout the appeal. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (holding that the Board must review the entire record, but does not have to discuss each piece of evidence.) These reports are illustrative of the Veteran’s remaining overall disability picture and symptomatology. On VA examination in November 2001, the Veteran reported pain of 4/10, stiffness, and neurological problems affecting his right leg, including dragging. He reported incapacitating flare-ups. He did not use assistive devices. The examiner diagnosed minimal scoliosis, frequent pain, and limited motion especially with strenuous activity or when lifting more than 50 pounds. On VA examination in November 2003, the Veteran reported low back pain with radiation into the right leg. He had normal lumbar lordosis, good muscle tone, and no back spasming. He had a reduced range of motion with pain. There was no objective evidence of neurological abnormalities. There was incoordination, but no fatigability or weakness. On VA examination in February 2005, the Veteran reported sharp, 10/10 pain in the back, particularly with bending. He reported incapacitation due to back pain. Sitting and walking caused pain, as did repetitive use. He required a brace and cane. There was radiating pain into the right leg. On examination, his gait and posture was good, there was a normal lumbar lordosis, muscle tone was good, and there was no spasm or atrophy. There was a reduced range of motion with pain on motion. The examiner diagnosed a chronic lumbar strain without neurological deficiency. There was an additional loss of motion due to pain, fatigue, weakness, and a lack of endurance on repetitive use. On VA examination in July 2006, he reported low back pain radiating into the right leg. He had flare-ups and used a cane. He could not play sports, hunt, fish, drive for prolonged periods, perform some household chores, or stand, sit, or lay for prolonged periods. On examination, he had a mildly antalgic gait. He had reduced motion with pain on motion. There were muscle spasms. On repetition, there was a mild increase in back pain but no other complaints. On VA examination in June 2009, the Veteran reported pain, decreased motion, stiffness, and muscle spasms. He reported incapacitating episodes, and limitations on walking, sitting, and standing. On VA examination in August 2010, the Veteran reported pain and flare-ups. He could not walk more than ¼ mile. On examination, there were no spinal curvatures. He had some guarding, but no muscle spasms. He had a reduced range of motion with pain. An examination of reflexes, sensation, and motor functioning was normal. On VA examination in January 2014, the veteran reported pain during the day and night. He had flare-ups with any physical activity. His range of motion was reduced and there was pain on motion. There was no loss of motion on repetitive use. Functional loss included less movement than normal, pain, disturbance of locomotion, and interference with sitting, standing, and weight bearing. There were lumbar muscle spasms. There was right leg radiculopathy, but no other neurological abnormalities associated with the disability. As such, aside from the now-separately rated symptoms associated with his medication, the Veteran’s lumbar spine symptoms include pain, limited motion, incapacitating episodes, muscle spasms, and right leg radiculopathy. The predominant symptom is extreme pain that significantly affects and limits numerous aspects of his life, including sitting, standing, lifting, climbing, bending, stooping, squatting, sleeping, recreational activities, exercise, carrying, reaching, pulling, and pushing. However, his spine symptoms, including pain, are fully encompassed within the meaning of the General Rating Formula for Disease or Injury of the Spine, the Formula for Rating IVDS Based on Incapacitating Episodes, the prior version of the spine regulations, and 38 C.F.R §§ 4.40 and 4.45. The neurological symptoms in his right leg are also fully encompassed within the meaning of the rating criteria pertaining to both the spine and the peripheral nerves. Simply stated, the application of the Rating Schedule is not rendered impractical. Other than the side effects of the Veteran’s medication, the record does not raise any other symptom warranting extraschedular consideration. The Veteran simply does not have any other symptoms resulting from his service-connected lumbar spine disability that are unusual or different from those contemplated by the schedular criteria. In light of the separate rating already assigned, the Board cannot now find that the first element of Thun has been satisfied, and the preponderance of the evidence is against the assigment of an extraschedular rating. Earlier Effective Date for Right Knee Disability Generally, the effective date for the grant of service connection based upon an original claim, a claim reopened after final disallowance, or a claim for increase is either the day following separation from active service or the date entitlement arose if the claim is received within one year after separation from service; otherwise it will be the date of receipt of the claim or the date entitlement arose, whichever is the later. 38 U.S.C. § 5110 (b)(1); 38 C.F.R. § 3.400 (b). Additionally, in a claim for increase or to reopen, a report of examination or hospitalization may be accepted as an informal claim for benefits, but the provisions of the applicable regulation do not apply here. 38 C.F.R. § 3.157 (b); see Sears v. Principi, 16 Vet. App. 244, 249 (2002). A claim is a formal or informal communication, in writing, requesting a determination of entitlement or evidencing a belief in entitlement, to a benefit. 38 C.F.R. § 3.1 (p). VA amended its regulations on March 24, 2015 to require that all claims governed by VA's adjudication regulations be filed on standard forms prescribed by the Secretary, regardless of the type of claim or posture in which the claim arises. See 79 Fed. Reg. 57660 (Sept. 25, 2014). The amendments, however, are only effective for claims and appeals filed on or after March 24, 2015. As this appeal was filed prior to that date, the amendments are not applicable in this instance and the regulations in effect prior to March 24, 2015 will be applied. Any communication or action, indicating an intent to apply for one or more benefits under the laws administered by VA, from a claimant, her duly authorized representative, a Member of Congress, or some person acting as next friend of a claimant who is not sui juris, may be considered an informal claim. Such an informal claim must identify the benefit sought. Upon receipt of an informal claim, if a formal claim has not been filed, an application form will be forwarded to the claimant for execution. If received within one year after the date it was sent to the claimant, it will be considered filed as of the date of receipt of the informal claim. 38 C.F.R. § 3.155; Norris v. West, 12 Vet. App. 413 (1999). The Veteran seeks an effective date earlier than August 22, 2003, for the grant of service connection for his right knee disability. The exact date sought, and the reasons for seeking an earlier date, are unclear. The Veteran separated from service in August 1988. A claim for service connection for a right knee disability was not received within one year of date of discharge. His first claim for any disability was filed in October 1988 and pertained only to a back disability and psychosis. On August 22, 2003, VA received a Statement in Support of Claim, in which the Veteran requested service connection for a right knee disability. In a January 2004 rating decision, the RO denied service connection. The Veteran appealed that decision. From 2004 to 2014, the matter of service connection underwent multiple adjudications by the RO, the Board, and the Court. The RO granted service connection for chondromalacia of the right knee in the February 2014 rating decision on appeal, and assigned a 10 percent rating, effective August 22, 2003. The appellant perfected a timely appeal of the effective date assigned in the February 2014 rating decision. See Rudd v. Nicholson, 20 Vet. App. 296 (2006). Because the current effective date of service connection was based upon the date his August 22, 2003 claim was received, the question before the Board is whether there are any earlier claims upon which an earlier effective date of service connection may be granted. On close review of the record, however, the Board can point to no communication prior to the August 22, 2003 claim that could be interpreted as an informal claim for service connection for a right knee disability. No mention of his right knee was made prior to this date. It was not until his August 22, 2003 Statement in Support of Claim that the Veteran stated his intent to file a claim for service connection for a right knee disability. Thus, the only date that could serve as a basis for the award of service connection is the date of receipt of the Veteran's August 22, 2003 claim for service connection. The exact date on which entitlement arose need not be ascertained in order to conclude that the August 22, 2003 date selected by the RO is the earliest possible effective date here. The reason for this is that, to the extent that entitlement arose prior to August 22, 2003, the date of claim would be the later of the two, and hence the correct effective date as provided by 38 C.F.R. § 3.400(b)(2). Any evidence showing that the entitlement occurred after August 22, 2003 would similarly not entitle the Veteran to an effective date earlier than that already assigned. There is simply no legal entitlement to an earlier effective date for the award of service connection for the Veteran’s a right knee disability. As such, the claim must be denied. REASONS FOR REMAND In various correspondence, including in July 2018 for example, the Veteran’s attorney argues that findings compliant with Sharp v. Shulkin, 29 Vet. App. 26 (2017) must be provided in connection with the claim for a higher rating for the right knee disability. The Board’s review of the last VA examination, dated from January 2014, confirms its noncompliance with Sharp. An updated, compliant examination should be provided. The matter is REMANDED for the following action: Afford the Veteran a VA examination to ascertain the current severity of his service-connected right knee disability, in accordance with the applicable worksheet for rating the disability. With specific regard to functional loss after repeated use or during flare-ups, if the Veteran endorses experiencing functional loss due to either event, the examiner must obtain information regarding the frequency, duration, characteristics, severity, and/or functional loss related to such flare-ups or after repeated use. If the examination is not being conducted during a flare-up or after repeated use over time, the examiner should provide an opinion based on estimates derived from the information above as to the additional loss of range of motion that may be present during a flare-up. (Continued on the next page)   If the examiner cannot provide an opinion as to additional loss of motion during a flare-up without resorting to mere speculation, the examiner must make clear that s/he has considered all procurable data (i.e., the information regarding frequency, duration, characteristics, severity, and/or functional loss related to such flare-ups elicited from the Veteran), and state whether the need to speculate is due to a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts), a deficiency in the record (additional facts are required), or the examiner does not have the knowledge or training. M. Tenner Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD J. Smith, Counsel