Citation Nr: 18148701 Decision Date: 11/08/18 Archive Date: 11/07/18 DOCKET NO. 16-31 492 DATE: November 8, 2018 ORDER Entitlement to an effective date prior to November 15, 2012 for service connection for thoracolumbar degenerative joint disease with intervertebral disc syndrome is denied. Entitlement to an effective date prior to November 15, 2012 for service connection for left hip bursitis is denied. Entitlement to an effective date prior to November 15, 2012 for service connection for right hip bursitis is denied. Entitlement to an effective date prior to November 15, 2012 for service connection for radiculopathy of the sciatic nerve left lower extremity is denied. Entitlement to an effective date prior to November 15, 2012 for service connection for radiculopathy of the femoral nerve left lower extremity is denied. Entitlement to an effective date prior to November 15, 2011 for the assignment of a 10 percent disability rating for tinnitus is denied. Entitlement to a rating in excess of 10 percent for tinnitus is denied. REMANDED Entitlement to service connection for a psychiatric disability, to include depression and anxiety disorder NOS and post-traumatic stress disorder (PTSD) is remanded. Entitlement to an initial rating in excess of 20 percent for thoracolumbar degenerative joint disease with intervertebral disc syndrome is remanded. Entitlement to an initial rating in excess of 10 percent for left hip bursitis is remanded. Entitlement to an initial rating in excess of 10 for right hip bursitis is remanded. Entitlement to a rating in excess of 10 percent for tricompartmental arthritis of the left knee is remanded. Entitlement to a rating in excess of 10 percent for tricompartmental arthritis of the right knee is remanded. Entitlement to an initial rating in excess of 10 percent for sciatic nerve left lower extremity radiculopathy is remanded. Entitlement to an initial rating in excess of 10 percent for femoral nerve left lower extremity radiculopathy is remanded. FINDINGS OF FACT 1. A January 1996 rating decision granted service connection for tinnitus and bilateral knee tricompartmental arthritis. The Veteran did not appeal the decision and no new and material evidence was received within a year of the denial. Therefore, the decision became final. 2. No formal or informal claim for an increased rating for tinnitus was received by VA between January 1996 and November 2012. 3. The Veteran submitted a January 2009 statement requesting service connection for low back and bilateral hip disabilities and an increased rating for his bilateral knee disabilities. A March 2009 rating decision denied the claim for service connection and increased ratings. The Veteran did not appeal the decision and no new and material evidence was received within a year of the denial. Therefore, the decision became final. 4. No formal or informal claim for an increased rating for bilateral knee disabilities or for service connection for lumbar spine or bilateral hip disabilities was received by VA between March 2009 and November 2012. 5. The Veteran submitted a November 2012 statement requesting an increased rating for tinnitus and his bilateral knee disabilities. The statement also requested service connection for low back strain, left hip pain, right hip pain and PTSD. 6. The Veteran has recurrent tinnitus is assigned a 10 percent rating, the maximum schedular rating authorized whether it is perceived in one ear or both ears. CONCLUSIONS OF LAW 1. The criteria for an effective date prior to November 15, 2012 for service connection for thoracolumbar degenerative joint disease with intervertebral disc syndrome have not been met. 38 U.S.C. § 5110 (2012); 38 C.F.R. § 3.400 (2017). 2. The criteria for an effective date prior to November 15, 2012 for service connection for left hip bursitis have not been met. 38 U.S.C. § 5110 (2012); 38 C.F.R. § 3.400 (2017). 3. The criteria for an effective date prior to November 15, 2012 for service connection for right hip bursitis have not been met. 38 U.S.C. § 5110 (2012); 38 C.F.R. § 3.400 (2017). 4. The criteria for an effective date prior to November 15, 2012 for service connection for radiculopathy of the sciatic nerve left lower extremity have not been met. 38 U.S.C. § 5110 (2012); 38 C.F.R. § 3.400 (2017). 5. The criteria for an effective date prior to November 15, 2012 for service connection for radiculopathy of the femoral nerve left lower extremity have not been met. 38 U.S.C. § 5110 (2012); 38 C.F.R. § 3.400 (2017). 6. The criteria for an effective date prior to November 15, 2011 for the grant of a 10 percent disability rating for tinnitus have not been met. 38 U.S.C. § 5110(g) (2012); 38 C.F.R. §§ 3.400, 3.114(a), 7. The criteria for a rating in excess of 10 percent for tinnitus have not been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.87, Diagnostic Code (DC) 6260 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from July 1979 to September 1995. This matter came before the Board of Veterans Appeals (Board) on appeal from a January 2014 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). Evidence in the record suggests that the Veteran has been diagnosed with multiple psychiatric conditions; therefore, the Board will broadly construe the issue of service connection for PTSD as a claim for service connection for a psychiatric disability, to include depressive disorder, anxiety disorder and PTSD. Clemons v. Shinseki, 23 Vet. App. 1, 6 (2009) (holding that the Board must consider any disability that “may reasonably be encompassed by” the description of the claim and symptoms and other submitted information). The Board notes that the Veteran’s claim regarding tinnitus was originally presented as an increased rating claim. However, when he filed his January 2014 Notice of Disagreement, the Veteran disagreed with the effective date of the increase. As the June 2016 Statement of the Case adjudicated both the increased rating issue and the earlier effective date issue, the Board will address both issues herein. Earlier Effective Date Generally, the effective date of compensation based on an original claim, a claim for increase, or a claim reopened after final disallowance, will be the date of receipt of the claim or the date entitlement arose, whichever is later. 38 U.S.C. § 5110 (a); 38 C.F.R. § 3.400. Unless otherwise provided, the effective date of compensation will be fixed in accordance with the facts found, but will not be earlier than the date of receipt of the claimant’s application. Id. Secondary service connection is granted for a “disability which is proximately due to or the result of a service-connected disease or injury.” 38 C.F.R. § 3.310 (a). The effective date of awards of claims granted on a secondary basis can be no earlier than the date of the claim for compensation on a secondary basis. See Ellington v. Nicholson, 22 Vet. App. 141, 145 (2007) (finding that the effective date for a grant of service connection for diabetes and hypertension as secondary to leukemia was the date of the claim for secondary service connection, not the date of the claim of service connection for leukemia), aff’d sub nom. Ellington v. Peake, 541 F.3d 1364 (Fed. Cir. 2008); Ross v. Peake, 21 Vet. App. 528, 532-33 (2008) (holding that the effective date for a grant of secondary service connection for depression with anxiety was the date of the secondary service connection claim, not the date of the claim for service connection for the primary heart condition). For claims filed prior to March 24, 2015, a communication not on the appropriate form is treated as an informal claim providing that “[a]ny communication or action, indicating an intention to apply for one or more benefits... [s]uch informal claim must identify the benefit sought.” 38 C.F.R. § 3.155 (a)(2012). Any communication or action indicating an intent to apply for VA benefits from a claimant or representative may be considered an informal claim, however, an informal claim must identify the benefit sought, be in writing, and request a determination of entitlement or evidence a belief in entitlement to a benefit. VA was required to identify and act on informal claims for benefits. 38 U.S.C. § 5110 (b)(3); 38 C.F.R. §§ 3.1 (p), 3.155(a). However, VA was not required to anticipate any potential claim for a benefit where no intention to raise it was expressed. See Brannon v. West, 12 Vet. App. 32, 35 (1998) (holding that before VA can adjudicate a claim for benefits, “the claimant must submit a written document identifying the benefit and expressing some intent to seek it”). 1. Entitlement to an effective date prior to November 15, 2012 for service connection for thoracolumbar degenerative joint disease with intervertebral disc syndrome is denied. The Veteran contends that he is entitled to an earlier effective date for his thoracolumbar spine disability, as it was found to be secondary to his knee disabilities, which were granted service connection in a January 1996 rating decision. Upon review of the evidence of record, the Board concludes that an earlier effective date is not warranted as the Veteran’s request to reopen the issue of service connection for a lumbar spine disability was received by the RO on November 15, 2012, and there were no prior unadjudicated formal or informal claims for service connection for a thoracolumbar spine disability. 38 U.S.C. § 5110 (a); 38 C.F.R. § 3.400. The Veteran submitted a claim for service connection for a low back disability in January 2009. A March 2009 rating decision denied service connection. The decision was not appealed, no new and material evidence was received within a year, and therefore the decision is final. 38 U.S.C. § 7105; 38 C.F.R. §§ 20.302, 20.1103. The Board has reviewed the record from the date of the March 2009 denial to November 15, 2012 for a claim or informal claim. No claim or informal claim was identified. There simply is no communication which shows an intent to file a claim or a request to reopen the claim for service connection for a thoracolumbar spine disability. The next communication showing an intent to file a claim after the March 2009 denial is not until November 15, 2012, when the Veteran filed a statement requesting service connection for low back strain. As noted above, the effective date for a grant of secondary service connection is the date of the secondary service connection claim, not the date of the claim for service connection for the primary condition. The Veteran first claimed service connection for a thoracolumbar spine disability in his January 2009 statement, but it was denied in the March 2009 rating decision and that decision was final. No formal or informal claims were received by the RO between March 2009 and November 15, 2012. Therefore, the effective date for the Veteran’s thoracolumbar spine disability is the date that the request to reopen the claim was received by the RO. As the request to reopen the claim for service connection for a thoracolumbar spine disability was not received until November 15, 2012, an earlier effective date is not warranted. The Board acknowledges the Veteran’s contention that the assignment of an effective date of November 15, 2012 constituted clear and unmistakable error (CUE). To the extent that the Veteran may be raising CUE, the Board finds that a proper CUE claim has not been brought as there is no specific allegation of error of law or fact. The Board notes that broad-brush allegations of failure to follow the regulations or failure to give due process, or any other general, non-specific claim of error cannot meet the specificity required to render a claim of CUE meritorious. See Fugo v. Brown, 6 Vet. App. 40, 44 (1993). As there is no legal basis for assignment of any earlier effective date, and because the preponderance of the evidence is against the claim for any earlier effective date, the appeal must be denied. 38 U.S.C. § 5107 (b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). 2. Entitlement to an effective date prior to November 15, 2012 for left hip bursitis 3. Entitlement to an effective date prior to November 15, 2012 for right hip bursitis The Veteran contends that he is entitled to an earlier effective date for his left hip bursitis and right hip bursitis, they were found to be secondary to his knee disabilities, which were granted service connection in a January 1996 rating decision. Upon review of the evidence of record, the Board concludes that an earlier effective date is not warranted as the Veteran’s request to reopen the issue of service connection for left and right hip disabilities was received by the RO on November 15, 2012, and there were no prior unadjudicated formal or informal claims for service connection for left or right hip disabilities. 38 U.S.C. § 5110 (a); 38 C.F.R. § 3.400. The Veteran submitted a claim for service connection for left and right hip disabilities in January 2009. A March 2009 rating decision denied service connection for both hips. The decision was not appealed, no new and material evidence was received within a year, and therefore the decision is final. 38 U.S.C. § 7105; 38 C.F.R. §§ 20.302, 20.1103. The Board has reviewed the record from the date of the March 2009 denial to November 15, 2012 for a claim or informal claim. No claim or informal claim was identified. There simply is no communication which shows an intent to file or reopen the claim for service connection for a left or right hip disability. The next communication showing an intent to file a claim since the March 2009 denial is not until November 15, 2012, when the Veteran filed a statement requesting service connection for left and right hip pain. As noted above, the effective date for a grant of secondary service connection is the date of the secondary service connection claim, not the date of the claim for service connection for the primary condition. The Veteran first claimed service connection for his left and right hip disabilities in his January 2009 statement, but that claim was denied in the March 2009 rating decision and that decision was final. Therefore, the effective date for the Veteran’s left and right hip disabilities is the date that the request to reopen the claim was received by the RO. As the request to reopen the claim for service connection for left and right hip disabilities was not received until November 15, 2012, an earlier effective date is not warranted. The Board acknowledges the Veteran’s contention that the assignment of an effective date of November 15, 2012 constituted clear and unmistakable error (CUE). To the extent that the Veteran may be raising CUE, the Board finds that a proper CUE claim has not been brought as there is no specific allegation of error of law or fact. As noted above, broad-brush allegations of failure to follow the regulations or failure to give due process, or any other general, non-specific claim of error cannot meet the specificity required to render a claim of CUE meritorious. See Fugo v. Brown, 6 Vet. App. 40, 44 (1993). As there is no legal basis for assignment of any earlier effective date, and because the preponderance of the evidence is against the claim for any earlier effective date, the appeal must be denied. 38 U.S.C. § 5107 (b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). 4. Entitlement to an effective date prior to November 15, 2012 for sciatic nerve left lower extremity radiculopathy 5. Entitlement to an effective date prior to November 15, 2012 for femoral nerve left lower extremity radiculopathy The Veteran contends that he is entitled to an earlier effective date for his sciatic nerve radiculopathy and his femoral nerve radiculopathy as they were found to be secondary to his thoracolumbar spine disability. Upon review of the evidence of record, the Board concludes that an earlier effective date for sciatic nerve radiculopathy and femoral nerve radiculopathy is not warranted as the Veteran’s request to reopen the issue of service connection for his low back disability was received by the RO on November 15, 2012, and there were no prior unadjudicated formal or informal claims for service connection for sciatic nerve radiculopathy or femoral nerve radiculopathy. 38 U.S.C. § 5110 (a); 38 C.F.R. § 3.400. Neurological disabilities associated with a lumbar spine disability are to be separately evaluated under the appropriate diagnostic codes under the Rating Schedule for thoracolumbar spine disabilities. See 38 C.F.R. § 4.71a, General Rating Formula for Diseases and Injuries of the Spine, Note (1). As discussed above, the Veteran’s January 2009 claim for service connection for a low back disability was denied in a March 2009 rating decision and that decision was final. The Board has already found above that the record from the date of the March 2009 denial to November 15, 2012 does not contain a claim for a low back disability. The Board’s review also indicates that the record does not contain any claim or informal claim for sciatic nerve radiculopathy or for femoral nerve radiculopathy. There simply is no communication which shows an intent to file a claim for service connection for sciatic or femoral nerve radiculopathy. The next communication showing an intent to file a claim was the Veteran’s November 2012 statement, which did not claim a sciatic or femoral nerve condition but which did claim a low back disability. The December 2013 VA examiner diagnosed sciatic nerve radiculopathy associated with the Veteran’s low back disability. The Board’s review indicates that prior to the November 15, 2012 receipt of the Veteran’s request to reopen his claim for a low back disability, there was no formal or informal claim for service connection for sciatic or femoral nerve radiculopathy. Under 38 C.FR. § 4.71a, a separate rating is to be assigned for unclaimed neurological disabilities associated with a claimed lumbar spine disability. The Board has already found herein that the earliest effective date assignable for the low back disability is November 15, 2012. As the low back claim was received on November 15, 2012, that is also the earliest effective date assignment warranted for the associated left lower extremity sciatic and femoral nerve radiculopathy. The Board acknowledges the Veteran’s contention that the assignment of an effective date of November 15, 2012 constituted clear and unmistakable error (CUE). To the extent that the Veteran may be raising CUE, the Board finds that a proper CUE claim has not been brought as there is no specific allegation of error of law or fact. As noted above, broad-brush allegations of failure to follow the regulations or failure to give due process, or any other general, non-specific claim of error cannot meet the specificity required to render a claim of CUE meritorious. See Fugo v. Brown, 6 Vet. App. 40, 44 (1993). As there is no legal basis for assignment of any earlier effective date, and because the preponderance of the evidence is against the claim for any earlier effective date, the appeal must be denied. 38 U.S.C. § 5107 (b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). 6. Entitlement to an effective date prior to November 15, 2011 for the grant of a 10 percent disability rating for tinnitus is denied. The Veteran contends that he is entitled to a 10 percent rating for tinnitus prior to November 15, 2011. The Board concludes that a compensable rating for tinnitus prior to November 15, 2011 is not warranted as the request for an increased rating was received by the RO on November 15, 2012 and there were no prior unadjudicated formal or informal claims for an increased rating for tinnitus. 38 U.S.C. § 5110(g); 38 C.F.R. § 3.400, § 3.114(a). For awards of compensation to include increased ratings made pursuant to liberalization of the law, the effective date shall not be earlier than the effective date of the liberalization. 38 U.S.C. § 5110 (g); 38 C.F.R. § 3.114 (a). If a claim is reviewed at the request of the claimant within one year of the effective date of the law, the effective date is the date of the law. 38 C.F.R. § 3.114 (a)(1). If a claim is reviewed at the request of the claimant more than one year after the effective date of the law, benefits may be authorized for a period of 1 year prior to the date of receipt of such a request. 38 C.F.R. § 3.114 (a)(3). Service connection for tinnitus was granted in a January 1996 rating decision, and the Veteran was assigned a noncompensable rating. The regulations in effect at the time provided a ten percent rating for persistent tinnitus as a symptom of head injury, concussion or acoustic trauma. 38 C.F.R. § 4.87, DC 6260 (1996). The RO assigned a noncompensable rating as the Veteran reported periodic rather than persistent tinnitus at his January 1996 VA examination. The regulations regarding the evaluation of tinnitus were revised effective June 10, 1999. The new regulations assign a 10 percent rating for recurrent tinnitus regardless of its cause. 38 C.F.R. § 4.87, DC 6260 (2017). This is the highest rating available under the Diagnostic Code (DC). As the regulations removed the requirements of causation and persistence for a 10 percent rating, they are considered to be liberalizing and the provisions of 38 C.F.R. § 3.114(a) apply. The Board has reviewed the record from the date of the January 1996 rating decision to November 15, 2012 for a claim or informal claim. No claim or informal claim was identified. There simply is no communication which shows an intent to file a claim for an increased rating for tinnitus. The Veteran filed a statement requesting an increased rating for tinnitus which was received by the RO on November 15, 2012. As noted above, under 38 C.F.R. 3.114 the earliest effective date available for a claim made pursuant to liberalization of the law and reviewed at the claimant’s request is one year prior to the date of receipt of the request. In this case, the Veteran’s request for an increased rating for tinnitus was received by the RO on November 15, 2012. The earliest effective date assignable is therefore November 15, 2011, one year prior to the receipt of the increased rating request. The Board acknowledges the Veteran’s contention that the assignment of an effective date of November 15, 2011 constituted clear and unmistakable error (CUE). To the extent that the Veteran may be raising CUE, the Board finds that a proper CUE claim has not been brought as there is no specific allegation of error of law or fact. As noted above, broad-brush allegations of failure to follow the regulations or failure to give due process, or any other general, non-specific claim of error cannot meet the specificity required to render a claim of CUE meritorious. See Fugo v. Brown, 6 Vet. App. 40, 44 (1993). As there is no legal basis for assignment of any earlier effective date, and because the preponderance of the evidence is against the claim for any earlier effective date, the appeal must be denied. 38 U.S.C. § 5107 (b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). 7. Entitlement to a rating in excess of 10 percent for tinnitus is denied. The Veteran contends that he is entitled to an increased rating for tinnitus. The Board concludes that a rating in excess of 10 percent is not warranted. 38 C.F.R. § 4.7, 4.87, Diagnostic Code (DC) 6260. Disability ratings are determined by applying the criteria set forth in VA’s Schedule for Rating Disabilities. Individual disabilities are assigned separate diagnostic codes. See U.S.C. §1155; 38 C.F.R. § 4.1. When there is a question as to which of two evaluations applies, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for the rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. For the entire period on appeal, the Veteran’s tinnitus has been rated under DC 6260. The DC assigns a 10 percent rating for recurrent tinnitus regardless of its cause. 38 C.F.R. § 4.87, DC 6260 (2017). A December 2013 VA examination found that the Veteran had recurrent tinnitus. The Board notes that the 10 percent rating currently assigned for tinnitus is the highest possible schedular rating available under the DC. Because tinnitus is specifically listed in the rating schedule, it may not be rated by analogy under a different diagnostic code. Copeland v. McDonald, 27 Vet. App. 333, 337 (2015). Therefore, no other diagnostic codes are potentially applicable which might afford a higher rating on an alternative basis. It is also not shown that the Veteran has any functional loss beyond that currently compensated, as the Veteran’s symptoms of recurrent tinnitus are encompassed by the 10 percent rating currently assigned. A rating in excess of 10 percent is therefore not warranted. REASONS FOR REMAND 1. Entitlement to service connection for a psychiatric disability, to include depressive disorder, anxiety disorder and post-traumatic stress disorder (PTSD) is remanded. The Veteran contends that he has a psychiatric disability (claimed as PTSD) due to experiences in service. The Veteran has not yet been afforded a VA examination regarding this issue. VA treatment records indicate that the Veteran has been diagnosed with anxiety and depressive disorder NOS. VA psychiatric treatment records also note that the Veteran reported a 1976 in-service truck rollover accident where he witnessed a friend’s death. Remand is therefore required to determine the nature and etiology of the Veteran’s current psychiatric disability. McLendon v. Nicholson, 20 Vet. App. 79, 81 (2006). 2. Entitlement to an initial rating in excess of 20 percent for thoracolumbar degenerative joint disease with intervertebral disc syndrome is remanded. 3. Entitlement to an initial rating in excess of 10 percent for left hip bursitis is remanded. 4. Entitlement to an initial rating in excess of 10 percent for right hip bursitis is remanded. 5. Entitlement to a rating in excess of 10 percent for tricompartmental arthritis of the left knee is remanded. 6. Entitlement to a rating in excess of 10 percent for tricompartmental arthritis of the right knee is remanded. 7. Entitlement to an initial rating in excess of 10 percent for sciatic nerve left lower extremity radiculopathy is remanded. 8. Entitlement to an initial rating in excess of 10 percent for femoral nerve left lower extremity radiculopathy is remanded. The Veteran contends that he is entitled to increased ratings for his thoracolumbar spine, bilateral hip, bilateral knee, radiculopathy of the sciatic nerve left lower extremity and radiculopathy of the femoral nerve left lower extremity. The Veteran was provided VA examinations regarding these disabilities in December 2013. However, since the December 2013 VA examinations, the U.S. Court of Appeals for Veteran’s Claims (the Court) issued the decision in Correia v. McDonald, 28 Vet. App. 158, 166 (2016) concerning the adequacy of VA orthopedic examinations. The Court in Correia held that the final sentence of 38 C.F.R. § 4.59 requires that VA examinations include joint testing for pain on both active and passive motion, in weight-bearing and non-weight-bearing and, if possible, with range of motion measurements of the opposite undamaged joint. The Board’s review indicates that the VA joint examinations of record did not include the testing required under Correia and that remand for new examinations is required. The matters are REMANDED for the following action: 1. Obtain the Veteran’s VA treatment records for the period from July 2013 to the Present. 2. Schedule the Veteran for an appropriate VA examination, to determine the etiology of any current psychiatric disability, to include PTSD, anxiety and depressive disorder. The examiner should review the file and provide a complete rationale for all opinions expressed. For any current psychiatric disability found to be diagnosed, the examiner should provide an opinion as to whether it is at least as likely as not (50 percent or greater probability) that any such disability is related to the Veteran’s active service. In providing the opinion, the examiner should consider and discuss any lay statements of record, to include the Veteran’s statements regarding the onset and persistence of his symptoms. 3. Schedule the Veteran for an appropriate VA examination to determine the current nature and severity of his thoracolumbar spine, bilateral hip, and bilateral knee disabilities and radiculopathy of the sciatic nerve left lower extremity and radiculopathy of the femoral nerve left lower extremity disability. The claim file should be made available to and reviewed by the examiner and the examination report should state a review of the file was completed. All necessary tests should be performed and all findings should be reported in detail. The examiner should identify all thoracolumbar spine, bilateral hip, and bilateral knee disabilities and radiculopathy of the sciatic nerve left lower extremity and radiculopathy of the femoral nerve left lower extremity disability pathology found to be present. The examiner should conduct all indicated tests and studies, to include range of motion studies. The joints involved should be tested in both active and passive motion, in weight-bearing and non-weight-bearing and, if possible, with range of motion measurements of the opposite undamaged joint. If the examiner is unable to conduct the required testing or concludes that the required testing is not necessary in this case, he or she should clearly explain why that is so. The examiner should describe any pain, weakened movement, excess fatigability, instability of station and incoordination present. If pain is noted, the point during range of motion at which pain starts must be clearly indicated. The examiner should also state whether the examination is taking place during a period of flare-up. If not, the examiner should ask the Veteran to describe the flare-ups he experiences, including: frequency, duration, characteristics, precipitating and alleviating factors, severity and/or extent of functional impairment he experiences during a flare-up of symptoms and/or after repeated use over time. Based on the Veteran’s lay statements and the other evidence of record, the examiner should provide an opinion estimating any additional degrees of limited motion caused by functional loss during a flare-up or after repeated use over time. If the examiner cannot estimate the degrees of additional range of motion loss during flare-ups or after repetitive use without resorting to speculation, the examiner should state whether the need to speculate is caused by a deficiency in the state of general medical knowledge (i.e. no one could respond given medical science and the known facts) or by a deficiency in the record or the examiner (i.e. additional facts are required, or the examiner does not have the needed knowledge or training). 4. If upon completion of the above action the appeal remains denied, the case should be returned to the Board after compliance with appellate procedures. E. I. VELEZ Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD A. Arnold, Associate Counsel