Citation Nr: 18150655 Decision Date: 11/15/18 Archive Date: 11/15/18 DOCKET NO. 16-00 152A DATE: November 15, 2018 ORDER An effective date of November 19, 1994 for the award of service connection for a right armpit scar is granted, subject to the regulations governing the payment of monetary awards. Entitlement to service connection for tinnitus is denied. Entitlement to service connection for irritable bowel syndrome (IBS) is denied. Entitlement to service connection for acid reflux is denied. REMANDED Entitlement to service connection for sleep apnea is remanded. Entitlement to service connection for kidney stones is remanded. Entitlement to service connection for headaches is remanded. Entitlement to service connection for an acquired psychiatric disorder, to include unspecified depressive disorder with mixed features, is remanded. Entitlement to an evaluation in excess of 30 percent for injury to intrinsic muscles (Group IV) of shoulder with peripheral neuropathy of the circumflex nerve is remanded. Entitlement to an initial compensable evaluation for right armpit scar associated with injury to intrinsic muscles (Group IV) of shoulder with peripheral neuropathy of the circumflex is remanded. Entitlement to an effective date earlier than September 20, 2012 for the assignment of a 30 percent evaluation for injury to intrinsic muscles (Group IV) of shoulder with peripheral neuropathy of the circumflex nerve is remanded. FINDINGS OF FACT 1. An unappealed November 1995 rating decision awarded service connection for residuals of injury of the right axilla, but did not separately award service connection for a residual scar. 2. A November 1995 VA examination, that was associated with the claims file at the time of the November 1995 rating decision, showed that the Veteran had a right armpit scar that was a residual of the injury of the right axilla. 3. Tinnitus has not been present during the pendency of the claim. 4. IBS was not manifested in the Veteran’s service and is not shown to be related to his service. 5. Acid reflux was not manifested in the Veteran’s service and is not shown to be related to his service. CONCLUSIONS OF LAW 1. The criteria for an effective date of November 19, 1994, and no earlier, for service connection for a right armpit scar are met. 38 U.S.C. §§ 5109A, 5110, 7105; 38 C.F.R. §§ 3.105, 3.400. 2. The criteria for service connection for tinnitus have not been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. 3. The criteria for service connection for IBS have not been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. 4. The criteria for service connection for acid reflux have not been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty with honorable service for VA purposes from November 28, 1988 to November 27, 1991. The Veteran had dishonorable service for VA purposes from November 28, 1991 to November 18, 1994. These matters are on appeal from April 2013 and February 2015 decisions. The Board notes that the RO had characterized the Veteran’s psychiatric claim as only a claim for service connection for unspecified depressive disorder with mixed features; however, as the scope of the Veteran’s claim of service connection for unspecified depressive disorder encompasses other psychiatric disorders reasonably raised by the record, the Board has recharacterized the issue on appeal as that reflected on the title page. See Clemons v. Shinseki, 23 Vet. App. 1 (2009). Earlier Effective Date-Right Armpit Scar In a November 1995 rating decision, service connection for residuals of injury of right axilla was granted effective from November 19, 1994. In an April 2013 rating decision, service connection for a right armpit scar was granted effective from September 20, 2012. The Veteran is seeking an earlier effective date for the award of service connection of the right armpit scar. Initially the Board notes that the veteran has not specifically alleged that the November 1995 rating decision contained clear and unmistakable error (CUE); however, CUE in the November 1995 rating decision is raised by the record. Since that matter is inextricably intertwined with the effective date issue on appeal, it must be addressed. In light of the Board’s favorable findings, the Veteran is not prejudiced by the Board adjudicating the matter in the first instance. The general rule regarding the assignment of an effective date for an award based on an original claim for VA benefits is that the effective date “shall be fixed in accordance with the facts found, but shall not be earlier than the date of receipt of application therefor.” 38 U.S.C. § 5110(a); 38 C.F.R. § 3.400. An exception to the general rule applies if an application for benefits is received within one year from the date of a veteran’s discharge or release from active service, and an award is made on the basis of that application. Only in that limited situation, the effective date of the award is made retroactive to the day following the date of discharge from service. 38 U.S.C. § 5110(b)(1); 38 C.F.R. § 3.400(b)(2). Otherwise, the effective date will be the later of the date of receipt of claim or the date on which entitlement arose. 38 U.S.C. § 5110; 38 C.F.R. § 3.400(b)(2). An unappealed rating decision is final and binding based on the evidence of record at the time of such decision in the absence of CUE in the decision. Where evidence establishes CUE in a prior decision, the decision will be reversed or amended. 38 U.S.C. § 7105(c); 38 C.F.R. § 3.105(a). The effective date for an award based on a finding of CUE will be the date benefits would have been payable if the new decision had been made on the date of the reversed decision. 38 U.S.C. § 5109A(b); 38 C.F.R. § 3.400(k). CUE is a very specific and rare kind of error. It is the kind of error, of fact or of law, that when called to the attention of later reviewers compels the conclusion, to which reasonable minds could not differ, that the result would have been manifestly different but for the error. The Court of Appeals for Veterans Claims (Court) has set forth a three-pronged test to determine whether CUE is present in a prior determination: (1) either the correct facts, as they were known at the time, were not before the adjudicator (more than a simple disagreement as to how the facts were weighed or evaluated) or the statutory or regulatory provisions extant at that time were incorrectly applied; (2) the error must be undebatable and of the sort which, had it not been made, would have manifestly changed the outcome at the time it was made; and (3) a determination that there was CUE must be based on the record and law that existed at the time of the prior adjudication in question. Damrel v. Brown, 6 Vet. App. 242 (1994), Russell v. Principi, 3 Vet. App. 310 (1992). In June 1995, the Veteran filed a claim seeking service connection for residuals of an injury to the right axilla. He indicated that he had experienced a puncture wound to the axilla and that his arm was “torn up.” The evidence of record at the time of the November 1995 rating decision included a November 1995 VA examination, which noted that the Veteran had a 10 cm well-healed scar and decreased sensation as a result of the right axilla injury. A November 1995 rating decision awarded service connection for residuals of an injury of the right axilla. This rating decision acknowledged the presence of a well-healed scar related to the injury, but indicated that there was no distal motor or sensory defect and did not grant service connection for the residual scar. A subsequent VA examination conducted in October 2012 noted the continued presence of the Veteran’s right armpit scar, and an April 2013 rating decision awarded service connection for the scar, evaluated as noncompensable, effective September 20, 2012, based on the findings of this examination. The Board finds that the November 1995 rating decision contained CUE. At the time of the decision, the November 1995 VA examination clearly established that a right armpit scar was a residual of the injury to the right axilla. Thus, the evidence reflected the Veteran injured his right axilla in service and that a residual scar of the armpit was related to that injury. As such, the elements of service connection for the right armpit scar were met at the time that he filed his initial service connection claim in June 1995. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. Therefore, the law was incorrectly applied in the November 1995 rating decision as service connection for the right armpit scar was not granted. This error is undebatable and if it had not been made, the outcome of the case would have been manifestly changed in November 1995, as service connection for the residual scar would have been granted at that time. Thus, the November 1995 rating decision contained CUE as it did not separately award service connection for the scar. Although the record reflects there was no distal motor or sensory defect at that time, considerations of such symptoms and impairment are relevant for rating purposes only, and are not pertinent to whether service connection for a disability is warranted. In light of the above, and because the Veteran filed his June 1995 claim for service connection within one year of his separation from active service, the Board finds that the award of service connection for right armpit scar should also be made effective as of November 19, 1994, the day after the date of his separation. 38 C.F.R. §§ 3.400, 4.118. Given the foregoing, the Veteran is entitled to an earlier effective date of November 19, 1994 for the award of service connection for right armpit scar. Service Connection Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active military service. 38 U.S.C. § 1131; 38 C.F.R. § 3.303(a). Disorders diagnosed after discharge will still be service connected if all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d); see also Combee v. Brown, 34 F.3d 1039, 1043 (Fed. Cir. 1994). In order to establish service connection on a direct basis, the record must contain: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Under 38 C.F.R. § 3.303(b), service connection may be established for certain chronic diseases listed under 38 C.F.R. § 3.309(a) by either (1) the existence of such a chronic disease noted during service, or during an applicable presumption period under 38 C.F.R. § 3.307, and present manifestations of that same chronic disease; or, (2) where the condition noted during service is not, in fact, shown to be chronic or where the diagnosis of chronicity can be legitimately questioned, then a showing of continuity of symptomatology after discharge is required to support the claim of service connection. 38 C.F.R. § 3.303(b); see also Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Where a Veteran served for 90 days or more of active service during a period of war or after December 31, 1946, and manifests certain chronic diseases, to a degree of 10 percent within one year from the date of termination of such service, such disease shall be presumed to have been incurred or aggravated in service, even though there is no evidence of such disease during the period of service. 38 U.S.C. §§ 1101, 1112, 1137; 38 C.F.R. §§ 3.307, 3.309. With disability compensation claims, VA adjudicators are directed to assess both medical and lay evidence. In addressing lay evidence and determining its probative value, if any, attention is directed to both competency (“a legal concept determining whether testimony may be heard and considered”) and credibility (“a factual determination going to the probative value of the evidence to be made after the evidence has been admitted”). See Layno v. Brown, 6 Vet. App. 465, 469 (1994). In terms of competency, lay evidence has been found to be competent with regard to a disease with “unique and readily identifiable features” that is “capable of lay observation.” See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). In weighing credibility, VA may consider interest, bias, inconsistent statements, bad character, internal inconsistency, facial plausibility, self-interest, consistency with other evidence of record, malingering, desire for monetary gain, and demeanor of the witness. See generally Caluza v. Brown, 7 Vet. App. 498 (1995), aff’d per curiam, 78 F.3d 604 (Fed. Cir. 1996). As indicated above, the Veteran had dishonorable service for VA purposes from November 28, 1991 to November 18, 1994. VA benefits are not payable unless the period of service that the claim is based upon was terminated by a discharge or release under conditions other than dishonorable. 38 U.S.C. § 5303; 38 C.F.R. § 3.12(a). Therefore, service connection is barred for any disability incurred in or aggravated by the Veteran’s period of service from November 28, 1991 to November 18, 1994. Tinnitus The Veteran has claimed service connection for tinnitus. The Veteran has made no specific allegations as to the etiology of his claimed tinnitus. The Veteran’s service treatment records are silent for any complaints, findings, treatment, or diagnosis of tinnitus. The Veteran’s service personnel records reflect that his military occupational specialty (MOS) was as a radioman. Post-service VA treatment records silent for any complaints, findings, treatment, or diagnosis of tinnitus or mention of ringing in the ears. During an August 2014 VA examination, the examiner indicated that the Veteran did not report tinnitus, and tinnitus was not noted during the examination. Although the Veteran claimed service connection for tinnitus in a February 2014 informal claim and in other procedural documents related to his compensation appeal, the remainder of the record does not support that the Veteran has tinnitus. Although the Veteran is competent to report having tinnitus, the Board finds the statements in his claim and other appellate forms not credible as to his having tinnitus and places greater weight of probative value on the August 2014 VA examination when he indicated he did not have tinnitus. See also Cartwright v. Derwinski, 2 Vet. App. 24, 25 (1991) (a pecuniary interest may affect the credibility of a claimant’s testimony). In sum, for the period on appeal, there is no competent and credible evidence that the Veteran has a current tinnitus disorder. See Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). There is no evidence of any current diagnosis or reported symptoms of tinnitus. As the preponderance of the evidence is against the claim, the benefit-of-the-doubt doctrine does not apply, and the claim is denied. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. IBS and Acid Reflux The Veteran is seeking entitlement to service connection for IBS and acid reflux. Post-service VA treatment records include diagnoses of diarrhea and gastroesophageal reflux disease (GERD). The Veteran’s service treatment records during his period of honorable service are silent for any complaints, findings, treatment, or diagnosis of IBS and acid reflux. Although a January 1989 treatment record notes the Veteran had diarrhea, it was attributed to possible viral syndrome and there was no subsequent documentation of continuing symptoms. The Board finds that a preponderance of the evidence is against the claims of service connection for IBS and acid reflux. Though the record reflects that the Veteran has current diagnoses, the preponderance of the evidence is against a finding of a linkage between the onset of the current diarrhea and GERD and the Veteran’s period of honorable service. Notably, there is no competent or credible evidence or opinion that suggests that there exists a medical relationship, or nexus, between the Veteran’s disabilities and the Veteran’s period of honorable service. Other than filing a claim for service connection, the Veteran has made no specific allegations as to the etiology of his claimed IBS and acid reflux. The Board acknowledges that lay persons may be competent to provide opinions on some medical issues. Kahana v. Shinseki, 24 Vet. App. 428 (2011). However, as to the etiology of IBS or acid reflux, the issue of causation of such a medical condition is a complex medical determination outside the realm of common knowledge of a lay person. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Although the Board has carefully considered the fact that the Veteran filed a claim for service connection for IBS and acid reflux, thereby suggesting that IBS and acid reflux are related to his service, there is no credible medical evidence which supports such a connection, and the Veteran lacks the medical expertise to competently determine the etiology of these disabilities. Moreover, IBS and acid reflux are not “chronic diseases” listed under 38 C.F.R. § 3.309. Therefore, the presumptive service connection provision of 38 C.F.R. § 3.307 does not apply to these disorders, and service connection based on continuity of symptomatology is also not available. Walker, 708 F.3d 1131. Finally, the Board acknowledges that the Veteran has not been provided a VA examination for the claimed IBS and acid reflux. However, the Board finds that VA examinations for the claimed conditions are not warranted as there is no evidence indicating an association between his service or circumstances of service and any current disability. As such, examinations are not required for these disabilities. 38 C.F.R. § 3.159; McLendon v. Nicholson, 20 Vet. App. 79 (2006). Thus, the preponderance of the evidence is against a nexus between the Veteran’s IBS and acid reflux and service. Accordingly, the benefit-of-the-doubt doctrine does not apply, and the claims must be denied. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. REASONS FOR REMAND Service Connection for Sleep Apnea A March 2016 VA treatment record reported that the Veteran underwent a sleep study, and there was no recommendation for CPAP therapy. A copy of that sleep study has not been associated with the claims file. Therefore, the Board finds that a remand is necessary to obtain a copy of this sleep study. 38 U.S.C. § 5103A(b); Bell v. Derwinski, 2 Vet. App. 611 (1992). Service Connection for Kidney Stones Regarding the Veteran’s claim for service connection for kidney stones, the record contains VA treatment records which include a diagnosis of kidney stones. Service treatment records from the Veteran’s period of honorable service show that in November 1990, the Veteran was treated for severe pain to the low back area and inability to urinate. He was assessed with possible renal calculi (kidney stones). In addition, the Veteran’s November 1994 separation Report of Medical Examination indicates a history of kidney stones from 1990 to 1994 (which would include some of his honorable period of service. The record reflects that the Veteran has not been afforded a VA examination in conjunction with his claim. Based on the above, the Board finds that a remand for a VA examination and opinion regarding the claim of service connection for kidney stones is necessary. 38 U.S.C. § 5103A(d)(2); McLendon v. Nicholson, 20 Vet. App. 79 (2006). Service Connection for Headaches During an October 2014 VA TBI examination, the examiner indicated that there was insufficient evidence to suggest that the Veteran has a TBI. The examiner also indicated that the Veteran reported suffering headaches on his November 1994 separation Report of Medical History and suffering headaches prior to service. The examiner also mentioned a September 1994 service treatment record which indicated headaches secondary to minor concussion. However, the September 1994 treatment occurred during the Veteran’s dishonorable service. The Board can only rely on facts found during the Veteran’s honorable period of service and cannot consider facts from his dishonorable period of service for purposes of compensation. The examiner opined that the Veteran had headaches prior to service and they were not related to his active duty. Once VA undertakes the effort to provide an examination, even if not statutorily obligated to do so, VA must provide an adequate one or notify the claimant when one will not or cannot be provided. Barr v. Nicholson, 21 Vet. App. 303 (2007). In this case, the October 2014 VA opinion is inadequate as the examiner failed to provide a rationale for the opinion provided. Remand is therefore necessary for a new VA examination and opinion. Service Connection for Acquired Psychiatric Disorder The Veteran seeks service connection for an acquired psychiatric disorder. A January 2015 VA examination indicated that the Veteran had a diagnosis of unspecified depressive disorder with mixed features, and VA treatment records note diagnoses of mood disorder, major depressive disorder, and posttraumatic stress disorder (PTSD). The Veteran’s November 1994 Report of Medical History at separation noted situational depression or excessive worry, but did not specify a date. The Board notes that a November 1992 treatment record indicated an assessment of adjustment disorder with depressed mood. However, the Board can only rely on facts found during the Veteran’s honorable period of service and cannot consider facts from his dishonorable period of service for purposes of compensation. The January 2015 VA examiner indicated that the Veteran described a history of problems adjusting to social situations in adolescence, when he dropped out of high school. The examiner indicated that the Veteran’s unspecified depressive disorder was not incurred in or caused by service. The examiner indicated that the Veteran had problems adjusting before service and these adjustment problems were exacerbated by events following service. As previously indicated, once VA undertakes the effort to provide an examination, even if not statutorily obligated to do so, VA must provide an adequate one or notify the claimant when one will not or cannot be provided. Barr v. Nicholson, 21 Vet. App. 303 (2007). The January 2015 VA examiner’s opinion is inadequate as the examiner did not explain whether the Veteran’s prior adjustment problems were exacerbated by his honorable service. Remand is therefore necessary for a new VA examination and opinion. Increased Rating for Right Armpit Scar Regarding the issue of entitlement to an initial compensable rating for right armpit scar, as the decision above has granted an earlier effective date of November 19, 1994, for entitlement to service connection for right armpit scar, adjudication of the increased rating claim is deferred pending implementation of the earlier effective date for the award of service connection. Increased Rating for injury to intrinsic muscles (Group IV) of shoulder with peripheral neuropathy of the circumflex nerve Regarding the Veteran’s claim for an increased rating for his service-connected injury to intrinsic muscles (Group IV) of shoulder with peripheral neuropathy of the circumflex nerve, the Veteran was last examined by VA in October 2012, where he was noted to have intermittent pain in the right upper extremity. However, in November 2017 VA mental health records, it was noted that the Veteran was suffering from increased severity of chronic shoulder pain which made it sometimes difficult to rest. While the exact shoulder was not specified, in light of the fact that six years have passed since the last VA examination and that the record indicates that there may be worsening symptomatology, the claim must be remanded for a new VA examination addressing the current symptoms of the service-connected injury to intrinsic muscles (Group IV) of shoulder with peripheral neuropathy of the circumflex nerve. 38 C.F.R. § 3.159(c)(4)(i); see Snuffer v. Gober, 10 Vet. App. 400, 403 (1997); see also Green v. Derwinski, 1 Vet. App. 121, 124 (1991). Earlier effective date for injury to intrinsic muscles (Group IV) of shoulder with peripheral neuropathy of the circumflex nerve The Board finds that the issue of entitlement to an earlier effective date for the 30 percent rating assigned for the Veteran’s service-connected injury to intrinsic muscles (Group IV) of shoulder with peripheral neuropathy of the circumflex nerve is inextricably intertwined with the remanded claim of entitlement to an increased rating for that same disorder. Harris v. Derwinski, 1 Vet. App. 180, 183 (1991). Therefore, remand is appropriate for the earlier effective date claim. All issues Finally, all updated VA treatment records should be obtained. The matters are REMANDED for the following actions: 1. Obtain and associate with the claims file a copy of the sleep study performed in March 2016 and discussed in March 2016 VA treatment records. 2. Obtain the Veteran’s VA treatment records for the period from November 2017 to the present. 3. After receiving all additional records, provide the Veteran an appropriate VA examination to determine the nature, extent, and etiology of his kidney stones. The electronic claims file must be made available to the examiner for review in connection with the examination. All indicated tests should be conducted, including any diagnostic testing, and the reports of any such studies incorporated into the examination reports to be associated with the claims file. After an examination of the Veteran and a review of the claims file, the examiner must provide an opinion as to whether it is at least as likely as not (a 50 percent or greater probability) that the Veteran’s kidney stones are related to his honorable period of service from November 28, 1988 to November 27, 1991, to include November 1990 treatment for possible renal calculi. The examiner is advised that the Veteran’s period of service from November 28, 1991 to November 18, 1994 is dishonorable and therefore a bar to benefits; as such, this period of service should not be considered. The examiner must provide a complete rationale for any opinion expressed. The examiner must consider the evidence of record, including the service and post-service treatment records. If the examiner cannot provide any requested opinion without resorting to speculation, he or she should expressly indicate this and provide a supporting rationale as to why an opinion cannot be made without resorting to speculation. 4. After receiving all additional records, provide the Veteran an appropriate VA examination to determine the nature, extent, and etiology of his headache disability. The electronic claims file must be made available to the examiner for review in connection with the examination. All indicated tests should be conducted, including any diagnostic testing, and the reports of any such studies incorporated into the examination reports to be associated with the claims file. After an examination of the Veteran and a review of the claims file, the examiner must provide opinions as to the following: a) Is there clear and unmistakable (obvious or manifest) evidence that any diagnosed headache disability preexisted the Veteran’s period of honorable active duty service (from November 28, 1988 to November 27, 1991)? b) If the answer is that a diagnosed headache disability clearly and unmistakably preexisted service, then is there clear and unmistakable (obvious or manifest) evidence that any such preexisting disability DID NOT increase in severity beyond the natural progression of the disability during the above noted period of honorable active duty service (i.e., the disability was not aggravated by service)? c) If the answer to questions (a) and (b) is “no,” then is it at least as likely as not (a 50 percent probability or greater) that any diagnosed headache disability is related to the Veteran’s active duty service? The examiner is advised that the Veteran’s period of service from November 28, 1991 to November 18, 1994 is dishonorable and therefore a bar to benefits; as such, this period of service should not be considered. The examiner must provide a complete rationale for any opinion expressed. The examiner must consider the evidence of record, including the service and post-service treatment records. If the examiner cannot provide any requested opinion without resorting to speculation, he or she should expressly indicate this and provide a supporting rationale as to why an opinion cannot be made without resorting to speculation. 5. After receiving all additional records, provide the Veteran an appropriate VA examination to determine the nature, extent, and etiology of his acquired psychiatric disability. The electronic claims file must be made available to the examiner for review in connection with the examination. All indicated tests should be conducted, including any diagnostic testing, and the reports of any such studies incorporated into the examination reports to be associated with the claims file. After an examination of the Veteran and a review of the claims file, the examiner must provide opinions as to the following: a) Is there clear and unmistakable (obvious or manifest) evidence that any diagnosed acquired psychiatric disability preexisted the Veteran’s period of honorable active duty service (from November 28, 1988 to November 27, 1991)? b) If the answer is that an acquired psychiatric disability preexisted service, then is there clear and unmistakable (obvious or manifest) evidence that any such preexisting disability DID NOT increase in severity beyond the natural progression of the disability during the above noted period of honorable active duty service (i.e., the disability was not aggravated by service)? c) If the answer to questions (a) and (b) is “no,” then is it at least as likely as not (a 50 percent probability or greater) that any diagnosed acquired psychiatric disability is related to the Veteran’s active duty service? The examiner is advised that the Veteran’s period of service from November 28, 1991 to November 18, 1994 is dishonorable and therefore a bar to benefits; as such, this period of service should not be considered. The examiner must provide a complete rationale for any opinion expressed. The examiner must consider the evidence of record, including the service and post-service treatment records. If the examiner cannot provide any requested opinion without resorting to speculation, he or she should expressly indicate this and provide a supporting rationale as to why an opinion cannot be made without resorting to speculation. 6. Schedule the Veteran for an examination by an appropriate clinician to determine the current severity of his service-connected injury to intrinsic muscles (Group IV) of shoulder with peripheral neuropathy of the circumflex nerve. The examiner should provide a full description of the disability and report all signs and symptoms necessary for evaluating the Veteran’s disability under the rating criteria. To the extent possible, the examiner should identify any symptoms and functional impairments due to the injury to intrinsic muscles (Group IV) of shoulder with peripheral neuropathy of the circumflex nerve alone and discuss the effect of the Veteran’s service-connected disability on any occupational functioning and activities of daily living. M. SORISIO Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Bonnie Yoon, Counsel