Citation Nr: 18146549 Decision Date: 10/31/18 Archive Date: 10/31/18 DOCKET NO. 14-38 310 DATE: October 31, 2018 ORDER 1. Whether new and material evidence has been received to reopen a claim of service connection for myopia is denied. 2. Whether new and material evidence has been received to reopen a claim of service connection for bilateral hearing loss is denied. 3. Whether new and material evidence has been received to reopen a claim of service connection for cardiac disease is denied. 4. Entitlement to service connection for high cholesterol is denied. 5. Restoration of a 40 percent rating for the Veteran’s cervical spine degenerative disc disease (DDD) (from the date of reduction) is granted. REMANDED 6. Entitlement to service connection for bilateral hand arthritis is remanded. 7. Entitlement to service connection for left ankle arthritis is remanded. 8. Entitlement to service connection for right ankle arthritis is remanded. 9. Entitlement to service connection for bilateral foot arthritis is remanded. 10. Entitlement to service connection for hypertension is remanded. 11. Entitlement to service connection for gastroesophageal reflux disease (GERD) is remanded. 12. Entitlement to service connection for headaches to include as secondary to service-connected cervical spine degenerative disc disease (DDD) is remanded. 13. Entitlement to a rating in excess of 10 percent for a right knee disability is remanded. 14. Entitlement to a rating in excess of 10 percent for a left knee disability is remanded. 15. Entitlement to a rating in excess of 40 percent for cervical spine DDD is remanded. FINDINGS OF FACT 1. An unappealed October 1991 rating decision denied the Veteran service connection for myopia, finding that myopia is a constitutional or developmental defect and not a compensable disability. 2. Evidence received since the October 1991 rating decision is cumulative or does not tend to relate the Veteran’s myopia disease or injury in service; does not relate to the unestablished fact necessary (that the claimed disability is not a refractive error) to substantiate the claim of service connection for myopia; and does not raise a reasonable possibility of substantiating such claim. 3. An unappealed October 1991 rating decision denied the Veteran service connection for bilateral hearing loss, finding that a pre-existing hearing loss was not shown to have been aggravated beyond its normal progression by service. 4. Evidence received since the October 1991 rating decision is cumulative or does not tend to relate a hearing loss disability to the Veteran’s service; does not relate to the unestablished fact necessary to substantiate the claim of service connection for bilateral hearing loss; and does not raise a reasonable possibility of substantiating such claim. 5. An unappealed October 1991 rating decision denied the Veteran service connection for cardiac disease based essentially on a finding that such disease was not shown in (or shown to be related to) his service. 6. Evidence received since the October 1991 rating decision is cumulative or does not tend to relate cardiac disease to the Veteran’s service; does not relate to the unestablished fact necessary to substantiate the claim of service connection for cardiac disease; and does not raise a reasonable possibility of substantiating such claim. 7. Elevated cholesterol of itself is a laboratory finding, and not a chronic disability for which VA disability benefits may be awarded; an underlying disease or injury is not identified. 8. The Agency of Original Jurisdiction (AOJ) reduced the rating for the Veteran’s cervical spine disability from 40 percent (which had been in effect well in excess of 5 years) to 20 percent, effective from July 2015. 9. The reduction was based on a single examination; sustained material improvement in the disability that would be maintained under the ordinary conditions of life was not shown. CONCLUSIONS OF LAW 1. New and material evidence has not been received, and the claim of service connection for myopia may not be reopened. 38 U.S.C. §§ 5108, 7105; 38 C.F.R. § 3.156 (a). 2. New and material evidence has not been received, and the claim of service connection for bilateral hearing loss may not be reopened. 38 U.S.C. §§ 5108, 7105; 38 C.F.R. § 3.156 (a). 3. New and material evidence has not been received, and the claim of service connection for cardiac disease may not be reopened. 38 U.S.C. §§ 5108, 7105; 38 C.F.R. § 3.156 (a). 4. Service connection for elevated cholesterol is not warranted. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.303. 5. The reduction in the rating for the Veteran’s cervical spine disability from 40 percent to 20 percent was not in compliance with legal criteria governing such actions, and was not proper; restoration of a 40 percent rating is warranted. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.105, 3.344, 4.71a, Diagnostic Code (Code) 5243. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The appellant is a Veteran who served on active duty from August 1980 to February 1991. This case is before the Board of Veterans’ Appeals (Board) on appeal from a June 2011 rating decision. An interim (July 2015) rating decision reduced the rating for cervical spine DDD to 20 percent effective July 29, 2015. A further interim (September 2017) rating decision increased the rating for the cervical spine DDD to 30 percent, effective August 14, 2017. Service connection may be granted for disability due to disease or injury incurred in or aggravated by active military service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. Service connection may be granted for a disease initially diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that it was incurred in service. 38. C.F.R. § 3.303(d). To substantiate a claim of service connection, there must be evidence of: (1) a current claimed disability; (2) incurrence or aggravation of a disease or injury in service; and (3) a nexus between the disease or injury in service and the current disability. See Shedden v. Principi, 281 F.3d 1163, 1166-67 (Fed. Cir. 2004). The determination as to whether these requirements are met is based on an analysis of all the evidence of record and an evaluation of its credibility and probative value. Baldwin v. West, 13 Vet. App. 1 (1999); 38 C.F.R. § 3.303(a). Under applicable regulation, the term “disability” means impairment in earning capacity resulting from diseases and injuries and their residual conditions. 38 C.F.R. § 4.1; see also Hunt v. Derwinski, 1 Vet. App. 292, 296 (1991); Allen v. Brown, 7 Vet. App. 439 (1995). A symptom (to include abnormal laboratory study), without a diagnosed or identifiable underlying malady or condition, does not, in and of itself, constitute a “disability” for which service connection may be granted. See Sanchez-Benitez v. West, 13 Vet. App. 282 (1999). Generally, when a claim is disallowed, it may not be reopened and allowed, and a claim based on the same factual basis may not be considered. 38 U.S.C. § 7105. However, a claim on which there is a final decision may be reopened if new and material evidence is submitted. 38 U.S.C. § 5108. New and material evidence is defined by regulation. New evidence means evidence not previously submitted to agency decision-makers. Material evidence is evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. New and material evidence can be neither cumulative nor redundant of the evidence of record at the time of the last prior final denial of the claim sought to be reopened, and must raise a reasonable possibility of establishing the claim. See 38 C.F.R. § 3.156 (a). The Court has held that the phrase “raises a reasonable possibility of establishing the claim” must be viewed as enabling rather than precluding reopening. Shade v. Shinseki, 24 Vet. App. 110, 117 (2010). For the purpose of establishing whether new and material evidence has been received, the credibility of new evidence is to be presumed. Justus v. Principi, 3 Vet. App. 510, 513 (1992). 1. The appeal to reopen a claim of service connection for myopia is denied. An October 1991 rating decision denied the Veteran service connection for myopia based essentially on a finding that myopia is a constitutional or developmental defect and not a compensable disability. He did not appeal that decision and new and material evidence was not received within the following year. Accordingly, it became final. 38 U.S.C. § 7105. The evidence of record at the time of the October 1991 rating decision included the Veteran’s service treatment records (STRs), service personnel records, VA and private treatment records, and lay statements by the Veteran. The Veteran’s STRs note a diagnosis of myopia correctible with glasses on eye examination. Evidence received since the October 1991 rating decision includes VA treatment records, and lay statements from the Veteran. July 2000 to June 2015 VA treatment records note that the Veteran reported problems with near and distant vision and glasses were prescribed. Astigmatism and presbyopia were noted on the problem lists. Because service connection for myopia was previously denied based essentially on a finding that myopia (a refractive error) is a constitutional or developmental defect and not a disability for VA purposes, for evidence to be new and material in this matter, it would have to show that the eye disability that the Veteran is claiming is not a refractive error. No evidence received since October 1991 is new competent evidence indicating that the Veteran’s myopia is not a refractive error (but is due to disease or injury in service). The evidence received (his reports of onset in service, which are not new) since October 1991 is either cumulative or not material. It does not relate positively to an unestablished fact necessary to substantiate the claim of service connection for myopia, and does not raise a reasonable possibility of substantiating such claim. Accordingly, the claim of service connection for myopia may not be reopened. 2. The appeal to reopen a claim of service connection for bilateral hearing loss is denied. An October 1991 rating decision denied the Veteran service connection for bilateral hearing loss based essentially on a finding that there was no evidence that hearing loss which existed prior to service was aggravated beyond normal progression by service. He did not appeal that decision and new and material evidence was not received within the following year. Accordingly, it became final. 38 U.S.C. § 7105. The evidence of record at the time of the October 1991 rating decision included the Veteran’s STRs, service personnel records, VA and private treatment records, and lay statements by the Veteran. The Veteran’s STRs note bilateral hearing loss prior to enlistment. An April 1980 enlistment audiogram showed 30 and 45 decibel puretone thresholds in the right ear and 30 and 50 decibel puretone thresholds in the left ear at 3000 and 4000 Hz levels. A November 1990 separation audiogram notes a diagnosis of mild to moderate bilateral sensorineural hearing loss and showed 55 and 40 decibel puretone thresolds in the right ear and 50 and 50 decibel puretone thresholds in the left ear at 3000 and 4000 Hz levels. Evidence received since the October 1991 rating decision includes VA treatment records, and lay statements from the Veteran. A September 2005 VA treatment record notes bilateral mild to moderately severe sensorineural hearing loss at 1000-8000 Hz. A September 2010 VA treatment record notes that the Veteran’s hearing is intact bilaterally. A June 2017 VA treatment record notes that the Veteran has hearing aids that he only uses when watching TV and driving. Because service connection for bilateral hearing loss was previously denied based essentially on a finding that there was no evidence that the Veteran’s pre-existing hearing loss was aggravated beyond normal progression by service, for evidence to be new and material in this matter, it would have to show that the mild bilateral hearing loss noted prior to service was aggravated beyond its normal progression by service. No evidence received since October 1991 is new evidence that links a current bilateral hearing loss disability to the Veteran’s service. He has not provided a medical opinion indicating that his hearing loss was aggravated beyond its natural progression by service. The evidence received since October 1991 is either cumulative or not material. It does not relate positively to an unestablished fact necessary to substantiate the claim of service connection for bilateral hearing loss, and does not raise a reasonable possibility of substantiating such claim. Hence, the claim of service connection for bilateral hearing loss may not be reopened. 3. The appeal to reopen a claim of service connection for cardiac disease is denied. An October 1991 rating decision denied the Veteran service connection for cardiac disease based essentially on a finding that although he complained of chest pain in service, STRs and examinations were silent for findings or diagnosis of an underlying cardiac disease. He did not appeal that decision and new and material evidence was not received within the following year. Accordingly, it became final. 38 U.S.C. § 7105. The evidence of record at the time of the October 1991 rating decision included the Veteran’s STRs, service personnel records, VA and private treatment records, and lay statements by the Veteran. A March 1989 STR notes a normal EKG. An October 1990 STR notes that the Veteran reported chest pain and the assessment was costochondritis vs. muscle strain of the chest. A January 1991 STR notes that the Veteran reported chest pain and the assessment was chest pain (with no listed etiology). EKG on separation examination showed nonspecific intraventricular conduction delay (which was considered normal for the Veteran). STRs were negative for evidence or diagnosis of cardiovascular disease. His service separation examination report notes that cardiovascular and pulmonary systems were normal. Evidence received since the October 1991 rating decision includes VA treatment records, and lay statements from the Veteran. A September 1998 heart CT scan showed normal cardiomediastinal structures with the heart being at the upper range of normal in size. There was a mild interstitial prominence which was presumed to be chronic. No active cardiopulmonary disease was noted. A January 2011 VA treatment record showed no evidence of cardiac disease on examination. A September 2015 heart CT scan showed a very minor focus of reversibly reduced activity in the distal inferolateral wall that is quantitatively of doubtful significance. Ventricular function was normal. No change was noted from the previous December 2009 study. A cardiac disability is not noted in VA treatment records. Because service connection for cardiac disease was previously denied based essentially on a finding that although the Veteran reported chest pain in service, STRs and examinations were negative for evidence or diagnosis of an underlying cardiac disease and such disease was not shown, for evidence to be new and material in this matter, it would have to show a diagnosis of cardiac disease or a cardiac disability. No evidence received since October 1991 is new evidence that shows the Veteran has a current cardiac disease. The evidence received since October 1991 is either cumulative or not material. It does not relate positively to an unestablished fact necessary to substantiate the claim of service connection for cardiac disease, and does not raise a reasonable possibility of substantiating such claim. Accordingly, the claim of service connection for cardiac disease may not be reopened. 4. Entitlement to service connection for high cholesterol is denied. The Veteran’s postservice findings of high cholesterol only represent laboratory findings, and not a disability for which VA compensation benefits are payable. See 61 Fed. Reg. 20440, 20445 (May 7, 1996) (diagnoses of hyperlipidemia, elevated triglycerides, and elevated cholesterol are actually laboratory results and are not, in and of themselves, disabilities. They are, therefore, not appropriate entities for the rating schedule.). The record does not show or suggest (and the Veteran has not alleged) an underlying disease to which his high cholesterol may be related. As high cholesterol is not of itself a “disability” for VA compensation benefits purposes, i.e., not a “service-connectable” disability entity, the Veteran has not presented a valid claim of service connection. See Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). Consequently, the claim of service connection for “high cholesterol” must be denied. 5. Restoration of a 40 percent rating for the Veteran’s cervical spine degenerative disc disease (DDD) (from the date of reduction) is granted. A 40 percent rating for the Veteran’s cervical spine DDD was assigned effective April 21, 1999. On February 2011 VA examination, the examiner noted tenderness with deep palpation to erector spinae, trapezius, rhomboid, latissimus dorsi, and teres minor/major muscles. There was tenderness to paraspinous processes of the cervical region without guarding/grimacing. Range of motion was painful with flexion to 35 degrees, extension to 25 degrees, bilateral lateral flexion to 35 degrees, and bilateral rotation to 60 degrees after 3 repetitions. There was no evidence of ankylosis or of bedrest prescribed by a physician in the last 12 months. A June 2011 rating decision confirmed and continued the 40 percent rating for cervical spine DDD. On July 2015 VA joints examination, the Veteran reported progressively worsening neck pain with radiating pain to his bilateral scapular/shoulder/occipital regions, left more than right. He reported numbness and tingling in both hands for several years and denied any gait disturbance, or bowel or bladder dysfunction. He reported attempting physical therapy with traction in the past without long term pain relief. He took Baclofen, Tylenol, Diclofenac, and capsaicin for pain relief. He reported severe daily neck pain and stiffness. He reported daily pain of 6/10 with flare ups of 8/10 pain which occurred weekly and lasted for 1-3 days. The diagnoses were degenerative arthritis of the spine and intervertebral disc syndrome (IVDS). On examination, the examiner noted that the Veteran guarded most movements, and that he was generally sedentary due to his neck and back. He could not look over his shoulder and could not look up for prolonged periods. Pain was exhibited on forward flexion, extension, right lateral flexion, left lateral flexion, right lateral rotation, left lateral rotation. Forward flexion of the cervical spine was greater than 15 degrees but not greater than 30 degrees, no incapacitating episodes were noted during the previous 12 months, and the combined range of motion of the cervical spine was greater than 170 degrees but not greater than 335 degrees. Guarding and localized tenderness did not result in abnormal gait or abnormal spinal contour. Based on the July 2015 VA joints examination a July 2015 rating decision reduced the rating for the cervical spine disability from 40 to 20 percent, effective July 29, 2015. As a general rule, when a Veteran’s rating is reduced, VA must abide by specific procedural protections that apply. 38 C.F.R. § 3.105 (e). At the time of the July 2015 rating decision, the regulation provided that where the reduction in evaluation of a service-connected disability or employability status was considered warranted and the lower evaluation would result in a reduction or discontinuance of compensation payments currently being made, a rating proposing the reduction or discontinuance would be prepared setting forth all material facts and reasons. The beneficiary would be notified at his or her latest address of record of the contemplated action and furnished detailed reasons therefore, and would be given 60 days for the presentation of additional evidence to show that compensation payments should be continued at their present level. Generally, if additional evidence was not received within that period, a final rating action would be taken and the award would be reduced or discontinued effective the last day of the month in which a 60-day period from the date of notice to the beneficiary of the final rating action expired. A July 2015 rating decision reduced [without first proposing a reduction] the Veteran’s rating for cervical spine DDD from 40 percent to 20 percent effective the date of the decision. The Regional Office (RO) also granted service connection for right and left upper extremity radiculopathy effective July 29, 2015. This resulted in an increase [not a reduction] in the combined rating for the Veteran’s service disabilities to 80 percent effective July 29, 2015. Generally speaking, if a rating decision reduces the rating for a disability, but at the same time awards service connection or an increased rating for another disability which effectively cancels out the effect of the reduction on the Veteran’s combined disability rating, the notice mandated in 38 C.F.R. § 3.105 (e) is not required. VAOPGCPREC 71-91 (Nov. 7, 1991). Here, while there was a reduction in the rating for cervical spine DDD, due to the other grants, that reduction did not result in a decrease in the Veteran’s compensation. The Board finds that compliance with the notice provisions of 38 C.F.R. § 3.105 (e) was not required in this matter. The Veteran was at a combined 70 percent prior to the awards, and the combined rating was increased to 80 percent, effective July 29, 2015. There was no reduction in monthly compensation he was receiving. However, under 38 C.F.R. § 3.344, ratings on account of diseases subject to temporary or episodic improvement will not be reduced on any one examination (emphasis added), except in those instances where all the evidence of record clearly warrants the conclusion that sustained improvement has been demonstrated. These considerations are required for ratings which have continued for long periods at the same level (five years or more). Based on the United States Court of Appeals for Veterans Claims (CAVC) further direction, under 38 C.F.R. § 3.344 (which applies as the 40 percent rating was in effect well in excess of 5 years), to reduce a rating the RO must also find: (1) based on a review of the entire record, the examination forming the basis for the reduction is full and complete, and at least as full and complete as the examination upon which the rating was originally based; (2) the record clearly reflects a finding of material improvement; and (3) it is reasonably certain that the material improvement found will be maintained under the ordinary conditions of life. See Kitchens v. Brown, 7 Vet. App. 320 (1995). For a rating reduction to be sustained, it must be shown by a preponderance of the evidence that the reduction was warranted. Sorakubo v. Principi, 16 Vet. App. 120 (2002). The Court has also held that when an RO reduces a Veteran’s disability rating without following the applicable regulations, the reduction is void ab initio. See Greyzck v. West, 12 Vet. App. 288, 292 (1999). The record shows that the 40 percent rating for cervical spine DDD was in effect since April 1999, and was not reduced until July 2015 (well in excess of 5 years). Thus, the provisions of 38 C.F.R. § 3.344 applied. [The Board notes that the June 2000 rating decision assigned a 40 percent rating under Code 5293 which states that an evaluation of 40 percent is assigned for recurring attacks of severe intervertebral disc syndrome with only intermittent relief. The disability is now rated under Code 5243]. The reduction in the rating was based on a single examination (in July 2015), in violation of the § 3.344 provisions. The Veteran has argued throughout that the improvement the AOJ found shown by the July 2015 examination was not demonstrated under conditions of daily living, and does not clearly reflect material improvement. The Board finds that without re-examination of the Veteran it could not be found with reasonable certainty that any material improvement would be maintained under ordinary conditions of life. As the record does not reflect compliance with all applicable regulations, the Board must find that the reduction in the rating from 40 to 20 percent was improper and void ab initio, and that restoration of a 40 percent rating is warranted. REASONS FOR REMAND 6. Entitlement to service connection for bilateral hand arthritis is remanded. In an October 2017 statement, the Veteran raised an alternate theory of entitlement to service connection (that his claimed bilateral hand arthritis is secondary to a service-connected cervical spine disability). Such theory has not yet been considered (or addressed in a medical opinion). A February 2011 opinion addressed direct service connection but did not address whether his bilateral hand arthritis was caused or aggravated by the cervical spine disability. Therefore, it is inadequate for rating purposes. An examination to secure an adequate opinion regarding the etiology of the Veteran’s bilateral hand arthritis is necessary. 7., 8., 9. Entitlement to service connection for right and left ankle and bilateral foot arthritis is remanded. On February 2011 VA examination, the examiner opined that he was unable to find evidence of ankle or foot pains in the STRs. However, a September 1987 STR notes a mild right ankle sprain and that a boot or ace wrap was recommended for treatment. A December 1989 STR notes that the Veteran reported ankle pain with stiffness in the morning. He was directed to soak his feet in warm water and ice as needed. The STRs also note foot pain and plantar fasciitis. Because it is premised on an inaccurate factual basis the opinion is inadequate for rating purposes. An examination to secure an adequate opinion regarding the etiology of the Veteran’s right and left ankle and bilateral foot arthritis is necessary. Additionally, the Veteran reported that he sought treatment for his hand, ankle, and foot arthritis at Mather Hospital in California (a search notes that the Sacramento VAMC is in Mather, California). Records of this treatment have not been sought, may be pertinent, and should be obtained. 10. Entitlement to service connection for hypertension is remanded. On February 2011 VA examination, the examiner opined that the Veteran’s hypertension was not related to his service because he was unable to find evidence of hypertension during service. The examination did not note. and the rating decision appealed did not discuss, the significance of April 1987, May 1987, November 1990, and January 1991 elevated blood pressure readings in service. An examination to secure an adequate opinion regarding the etiology of the Veteran’s hypertension is necessary. 11. Entitlement to service connection for GERD is remanded. On February 2011 VA examination, the examiner opined that the Veteran’s GERD was not related to his service because he was unable to find evidence of GERD during service. However, an April 1991 VA treatment record notes that the Veteran reported epigastric pain for the last 3-4 months (extending back to his service). The assessment was GERD, and he was directed to take Mylanta. The examination did not note the significance of the April 1991 treatment record, to include the Veteran’s lay statement regarding treatment for epigastric pain. An examination to secure an adequate opinion regarding the etiology of the Veteran’s GERD is necessary. 12. Entitlement to service connection for headaches to include as secondary to service-connected cervical spine degenerative disc disease (DDD) is remanded. On February 2011 VA examination, the examiner opined that the Veteran’s headaches were not related to service because he was unable to find evidence of head pain during service. The provider did not indicate whether the headaches are secondary to the service-connected cervical spine disability. An examination to obtain a fully adequate medical opinion is necessary. 13., 14. Entitlement to ratings in excess of 10 percent, each, for right and left knee disabilities is remanded. In a November 2011 statement, the Veteran asserted that the most recent, February 2011, VA examination does not adequately reflect the current severity of the service connected disabilities. Considering the length of the intervening period since he was last examined by VA (February 2011, more than 7 years ago) and the allegation of worsening, a contemporaneous examination to assess the disabilities is necessary. See Snuffer v. Gober, 10 Vet. App. 400 (1997). 15. Entitlement to a rating in excess of 40 percent for cervical spine DDD is remanded. As this appeal flows from the Veteran’s claim for increase (filed when the disability was rated 40 percent), remaining for consideration is whether a rating in excess of 40 percent is warranted for the cervical spine disability for any period of time under consideration. In an October 2017 statement, the Veteran reported that he has constant neck pain, tenderness and stiffness in the morning, and that he experiences severe pain once a week or approximately three times a month, that lasts between one and three days. He related that during the episodes he cannot do anything but rest and stay in bed. He asserted that the disability has increased in severity. Considering the allegation of worsening, a contemporaneous examination to assess the disability is necessary. The matters are REMANDED for the following: 1. Secure for the record the complete clinical records (any not already associated with the claims file) of all VA evaluations or treatment the Veteran has received for bilateral hand, bilateral foot, right and left ankle, hypertension, GERD, right and left knee, and cervical spine disabilities (to specifically include records from the Sacramento VAMC from January 1991 to 2000). 2. Arrange for an orthopedic examination of the Veteran to determine the likely etiology of his bilateral hand, bilateral foot, and right and left ankle disabilities, and specifically whether or not they are directly related to (were incurred during) his active service and to assess the current severity of his service-connected right and left knee disabilities, and cervical spine disability. The Veteran’s record must be reviewed by the examiner in conjunction with this examination. On review of the record and examination of the Veteran, the examiner should respond to the following: (a) Identify (by diagnosis) each (right and left) hand, (right and left) foot, and (right and left) ankle disability entity found. (b) Identify the likely etiology for each hand, foot, and ankle disability entity diagnosed. Specifically, is it at least as likely as not (a 50% or better probability) that such disability was incurred during the Veteran’s active service? (c) If a diagnosed hand disability is found to not be directly related to the Veteran’s service, please opine further whether it is at least as likely as not (a 50% or greater probability) that such disability was caused or aggravated by (increased in severity due to) the Veteran’s service-connected cervical spine disability. [The opinion must address aggravation.] (d) If the opinion is to the effect that a service-connected disability did not cause, but aggravated, a bilateral hand disability, the examiner should specify, to the extent possible, the degree of disability (symptoms/impairment) that has resulted from such aggravation. (e) If the opinion is to the effect that a diagnosed knee, ankle, or cervical spine disability was not incurred in service (and not caused or aggravated by a service-connected disability, please identify the etiology considered more likely. (f) Assess the current severity of the Veteran’s right and left knee disabilities. [The examiner must be provided the criteria for rating knee disabilities, and the findings noted should include the information needed to rate the disabilities under all applicable criteria.] Findings reported must include complete range of motion studies (to include any limitations due to pain, on use, during periods of flare-up, in weight-bearing and nonweight-bearing, etc.). The examiner should record the results of range of motion testing for pain on BOTH active and passive motion AND in weight-bearing and non-weight-bearing. The examiner should indicate whether there is related subluxation or instability (and, if so, the severity of such); whether the knee is ankylosed (and if so, the position of ankylosis); whether there is dislocated (or post-removal) semilunar cartilage (noting the frequency and duration of any episodes of locking, pain, or effusion in the joint). All clinical findings should be reported in detail. (g) Assess the current level of severity of his service-connected cervical spine disability. The examination should include appropriate neurological diagnostic testing. (i) Report current range of motion in degrees of flexion, extension, rotation, and lateral flexion for the cervical spine, and any additional functional loss due to pain, painful movement, weakened movement, fatigue, or repetitive movement of the cervical segments of the spine; in undertaking range-of-motion testing (under 38 C.F.R. § 4.59 ), the examiner is requested to provide results of active and passive range of motion studies, and weight-bearing and non-weight-bearing testing; (ii) Identify any neurological abnormalities, including any upper extremity radiculopathy (specifying the nerve or nerves involved); any impairment noted should be characterized as mild, moderate, moderately severe, or severe incomplete paralysis, or as complete paralysis, and notation should be made as to whether or not any nerve involvement is wholly sensory. (iii) Note if there have been incapacitating episodes necessitating bed rest and treatment by a physician, and if so, the duration and frequency of such episodes; and (iv) Opine on impact the Veteran’s service-connected cervical spine disability and any identified neurological manifestations have on functioning. Include rationale with all opinions. 3. Also arrange for the Veteran to be examined by an appropriate physician to determine the etiology of his hypertension. Upon review of the record and examination of the Veteran, the examiner should: (a) Identify the likely etiology for the Veteran’s hypertension, indicating whether it is at least as likely as not that it was incurred in service? The rationale should discuss the significance, if any, of the elevated blood pressure readings noted in service. (b) If the hypertension is determined to not be related to the Veteran's service/complaint or findings therein, identify the etiology for the hypertension considered more likely (with explanation why that is so). The examiner must explain the rationale for all opinions. 4. Arrange for a gastrointestinal diseases examination of the Veteran to ascertain the nature and likely etiology of his current gastrointestinal disability(ies). The Veteran’s record must be reviewed by the examiner in conjunction with the examination. On review of the record and examination of the Veteran, the examiner should provide opinions that respond to the following: (a) Identify (by diagnosis) each gastrointestinal disability entity found/shown by the record (to include GERD). (b) Identify the likely etiology for each GI disability diagnosed. Specifically, is it at least as likely as not (a 50% or better probability) that such disability was incurred or aggravated by, the Veteran’s service? If not, was it caused or aggravated by an already service-connected disability? The examiner must explain the rationale for all opinions. If the disability is found to be unrelated to service, the examiner should identify the etiology considered more likely. 5. Arrange for the Veteran to be examined by an appropriate clinician to determine the existence, nature, and likely etiology of any headache disability. The Veteran’s record must be reviewed by the examiner in conjunction with the examination. Upon review of the record and interview and examination of the Veteran, the examiner should provide opinions that respond to the following: (a) Does the Veteran have a chronic headache disability (if so identify ir by diagnosis)? (b) Identify the likely etiology of any headache disability diagnosed. Is it at least as likely as not (a 50% or better probability) that it was either caused or aggravated by the Veteran’s service-connected cervical spine disability? (c) If a headache disability is found to not have been caused, but to have been aggravated, by cervical spine disability, please identify the degree of impairment that is due to such aggravation. (d) If a headache disability is determined to not have been caused or aggravated by the Veteran’s service-connected cervical spine disability, identify the etiology for the disability considered more likely. George R. Senyk Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD J. Bayles, Associate Counsel