Citation Nr: 18152429 Decision Date: 11/21/18 Archive Date: 11/21/18 DOCKET NO. 17-22 141 DATE: November 21, 2018 ORDER New and material evidence having been received, the petition to reopen a claim of service connection for a right elbow disability is granted. New and material evidence having been received, the petition to reopen a claim of service connection claim for a left shoulder disability is granted. New and material evidence having been received, the petition to reopen a claim of service connection claim for a left knee disability is granted. Entitlement to service connection for a right elbow disability is denied. Entitlement to service connection for a left shoulder disability is denied. Entitlement to service connection for a left knee disability is granted. Entitlement to service connection for a left wrist disability is denied. Entitlement to service connection for headaches on an aggravation basis is granted. In a July 2017 rating decision, the RO denied service connection for sleep apnea associated with Persian Gulf War (traumatic brain injury (TBI)), TBI, and unspecified anxiety and insomnia (claimed as mental health and memory loss associated to TBI) . The Veteran has submitted notices of disagreement dated February 2018 and July 2018. From a review of the electronic record, the RO has acknowledged the notices of disagreement and it appears they are in the process of responding with a statement of the case. Under these circumstances, the Board declines to take jurisdiction of this issue pursuant to Manlincon v. West, 12 Vet. App. 238, 240-41 (1999). REMANDED Entitlement to service connection for peripheral vestibular disorder (vertigo) claimed as dizziness, giddiness, and left hypoactive labyrinth is remanded. Entitlement to service connection for vestibular neuronitis is remanded. Entitlement to service connection for a cervical disability is remanded. Entitlement to a compensable rating for right hand status post third metacarpal bone fracture is remanded. FINDINGS OF FACT 1. In August 2008, the RO denied the Veteran’s claim of service connection for right elbow epicondylitis (tendonitis). The Veteran failed to file a timely notice of disagreement and no new and material evidence was received within a year of the rating decision’s issuance 2. Certain evidence received since the August 2008 decision is neither cumulative nor redundant of the evidence of record at the time of the August 2008 denial and, by itself or in conjunction with the evidence previously assembled, relates to an unestablished fact necessary to substantiate the claim of service connection. 3. In August 2008, the RO denied the Veteran’s claim of service connection for left shoulder arthritis. The Veteran failed to file a timely notice of disagreement and no new and material evidence was received within a year of the rating decision’s issuance 4. Certain evidence received since the August 2008 decision is neither cumulative nor redundant of the evidence of record at the time of the August 2008 denial and, by itself or in conjunction with the evidence previously assembled, relates to an unestablished fact necessary to substantiate the claim of service connection. 5. In August 2008, the RO denied the Veteran’s claim of service connection for a left knee ligament disability. The Veteran failed to file a timely notice of disagreement and no new and material evidence was received within a year of the rating decision’s issuance 6. Certain evidence received since the August 2008 decision is neither cumulative nor redundant of the evidence of record at the time of the August 2008 denial and, by itself or in conjunction with the evidence previously assembled, relates to an unestablished fact necessary to substantiate the claim of service connection. 7. The preponderance of the evidence is against finding that the Veteran has a right elbow disability (or undiagnosed illness) due to a disease or injury in service, to include from exposure to environmental hazards of Southwest Asia. 8. The preponderance of the evidence is against finding that the Veteran has a left shoulder disability (or undiagnosed illness) due to a disease or injury in service, to include from exposure to environmental hazards of Southwest Asia. 9. The evidence is at least in equipoise as to whether his left knee disability is at least as likely as not related to service. 10. The preponderance of the evidence is against finding that the Veteran has a left wrist disability (or undiagnosed illness) due to a disease or injury in service, to include from exposure to environmental hazards of Southwest Asia. 11. Resolving reasonable doubt in the Veteran’s favor, his preexisting headaches were aggravated by an in-service head trauma. CONCLUSIONS OF LAW 1. The August 2008 RO rating decision, denying the Veteran’s service connection claim for right elbow epicondylitis (tendonitis) is final. 38 U.S.C. § 7105. 2. Evidence received since the August 2008 RO rating decision is new and material; accordingly, the claim of service connection for a right elbow disability is reopened. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. 3. The August 2008 RO rating decision denying the Veteran’s service connection claim for left shoulder arthritis is final. 38 U.S.C. § 7105. 4. Evidence received since the August 2008 RO rating decision is new and material; accordingly, the claim of service connection for a left shoulder disability is reopened. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. 5. The August 2008 RO rating decision denying the Veteran’s service connection claim for a left knee ligament disability is final. 38 U.S.C. § 7105. 6. Evidence received since the August 2008 RO rating decision is new and material; accordingly, the claim of service connection for a left knee disability is reopened. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. 7. The criteria for an award of service connection for a right elbow disability, to include as due to an undiagnosed illness, have not been met. 38 U.S.C. §§ 1110, 5103, 5103A, 5107; 38 C.F.R. §§ 3.6, 3.159, 3.303, 3.307, 3.309. 8. The criteria for an award of service connection for a left shoulder disability, to include as due to an undiagnosed illness, have not been met. 38 U.S.C. §§ 1110, 5103, 5103A, 5107; 38 C.F.R. §§ 3.6, 3.159, 3.303, 3.307, 3.309. 9. The criteria for service connection for a left knee disability have been met. 38 U.S.C. §§ 1110, 5107(b); 38 C.F.R. §§ 3.102, 3.303(a). 10. The criteria for an award of service connection for a left wrist disability, to include as due to an undiagnosed illness, have not been met. 38 U.S.C. §§ 1110, 5103, 5103A, 5107; 38 C.F.R. §§ 3.6, 3.159, 3.303, 3.307, 3.309. 11. The criteria for service connection for headaches have been met. 38 U.S.C. §§ 1110, 5107(b); 38 C.F.R. §§ 3.102, 3.303(a). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS New and Material Evidence Following notification of an initial review and adverse determination by the Regional Office (RO), a notice of disagreement must be filed within one year from the date of notification thereof; otherwise, the determination becomes final and is not subject to revision except on the receipt of new and material evidence. 38 U.S.C. §§ 5108, 7105; 38 C.F.R. § 3.156. Following receipt of a notice of a timely disagreement, the RO is to issue a statement of the case. 38 C.F.R. § 19.26. A substantive appeal must be filed within 60 days from the date that the agency of original jurisdiction mails the statement of the case to the appellant, or within the remainder of the 1-year period from the date of mailing of the notification of the determination being appealed, whichever period ends later. 38 C.F.R. § 20.302(b). Otherwise, the determination becomes final and is not subject to revision except on the receipt of new and material evidence. 38 U.S.C. §§ 5108, 7105; 38 C.F.R. § 3.156. When a claim to reopen is presented, a two-step analysis is performed. The first step of which is a determination of whether the evidence presented or secured since the last final disallowance of the claim is “new and material.” See Elkins v. West, 12 Vet. App. 209, 218-19 (1999) (en banc); see also 38 U.S.C. § 5108; Hodge v. West, 155 F.3d 1356, 1359-60 (Fed. Cir. 1998). The provisions of 38 C.F.R. § 3.156 (which define “new and material evidence”) provides as follows: New evidence means existing evidence not previously submitted to agency decisionmakers. Material evidence means existing 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 substantiating the claim. 38 C.F.R. § 3.156(a). Second, if VA determines that the evidence is new and material, the VA may then proceed to evaluate the merits of the claim on the basis of all evidence of record, but only after ensuring that the duty to assist has been fulfilled. See Winters v. West, 12 Vet. App. 203, 206 (1999) (en banc) (discussing the analysis set forth in Elkins), overruled on other grounds sub nom. Winters v. Gober, 219 F.3d 1375, 1378 (Fed. Cir. 2000); Elkins, supra. The second step becomes applicable only when the preceding step is satisfied. See Vargas-Gonzalez v. West, 12 Vet. App. 321, 325 (1999). In order for evidence to be sufficient to reopen a previously disallowed claim, it must be both new and material. If the evidence is not material, the inquiry ends and the claim cannot be reopened. See Smith v. West, 12 Vet. App. 312, 314 (1999). In Evans v. Brown, 9 Vet. App. 273 (1996), the Court held that to reopen a previously and finally disallowed claim, there must be new and material evidence presented or secured since the time that the claim was finally denied on any basis. Additionally, evidence considered to be new and material sufficient to reopen a claim should be evidence that tends to prove the merits of the claim that was the specified basis for the last final disallowance of the claim. In Justus v. Principi, 3 Vet. App. 510 (1992), the Court held that for new and material evidence purposes only, new evidence is presumed to be credible. The only exception would be where evidence presented is either (1) beyond the competence of the individual making the assertion or (2) inherently incredible. If new and material evidence has been received with respect to a claim that has become final, then the claim is reopened and decided on a de novo basis. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. The Veteran’s claims of service connection for a right elbow disability, a left shoulder disability, and a left knee disability were denied in an August 2008 RO decision. The Veteran failed to file a timely notice of disagreement, and no evidence was received within the appeal period after the decision. As such, the decisions became final. 38 U.S.C. § 7105(c); 38 C.F.R. § 3.156(b) (new and material evidence received within the appeal period after a decision is considered as having been received in conjunction with the prior claim); Bond v. Shinseki, 659 F.3d 1362 (Fed. Cir. 2011) (VA must determine whether evidence received during the appeal period after a decision contains new and material evidence per 3.156(b) and failure to readjudicate the appeal after receipt of such evidence renders the decision non-final). The evidence of record at the time of the August 2008 denial included the service treatment records, private medical evidence from Dr. J.A.R., private treatment records from Hospital Metropolitano, private medical evidence from Dr. J.L.M., and post-service VA medical records. Post-service treatment records included a July 2004 MRI of the knee showing a grade 2 signal involving the posterior horn of the medial meniscus. The Veteran underwent surgery in July 2004. He again reported knee pain in July 2005. Post-service treatment records also showed complaints of right elbow pain in February 2005. The Veteran stated that the pain had an onset date of 8 months earlier. July 2005 x-rays showed soft tissue swelling at the lateral right elbow joint space. The basis for the denials was the fact that treatment for all three disabilities arose after the Veteran’s February 2003 discharge from service, with no evidence linking them to active service. Evidence received since the August 2008 rating decision includes an August 2015 correspondence in which the Veteran alleges that his disabilities may be due to exposure to hazardous materials during the Gulf War. The Veteran’s DD 214 reflects that he was ordered to active duty in support of Operation Desert Spring; and that he has service in Southwest Asia from October 2002 to January 2003. The Court has interpreted the language of 38 C.F.R. § 3. 156(a) as creating a low threshold and viewed the phrase “raises a reasonable possibility of substantiating the claim” as enabling rather than precluding the reopening of a claim. The Court emphasized that the regulation is designed to be consistent with 38 C.F.R. § 3.159(c)(4), which does not require new and material evidence as to each previously unproven element of a claim. It was indicated that it would be illogical to require that a claimant submit medical nexus evidence when he has provided new and material evidence as to another missing element, as it would force the Veteran to provide medical nexus evidence to reopen his claim so that he could be provided with a medical nexus examination by VA. Shade v. Shinseki, No. 08-3548 (U.S. Vet. App. Nov. 2, 2010). In determining whether the submitted evidence is new and material, VA must consider whether the new evidence could, if the claim were reopened, reasonably result in substantiation of the claim. Shade v. Shinseki, 24 Vet. App. 110, 118 (2010). Thus, pursuant to Shade, evidence is new if it has not been previously submitted to agency decisionmakers and is material if, when considered with the evidence of record, would at least trigger VA’s duty to assist by providing a medical opinion, which might raise a reasonable possibility of substantiating the claim. Id. The Board finds that the August 2008 correspondence meets the low threshold of 38 C.F.R. § 3.156(a) and is new and material evidence to reopen the Veteran’s claims because it indicates that his disabilities may be due to service. As new and material evidence has been received, the claims for entitlement to service connection are reopened. Service Connection Applicable law provides that service connection will be granted if it is shown that the Veteran suffers from disability resulting from an injury suffered or disease contracted in line of duty, or for aggravation of a preexisting injury suffered or disease contracted in line of duty, in the active military, naval, or air service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303. That an injury occurred in service alone is not enough; there must be chronic disability resulting from that injury. If there is no showing of a resulting chronic condition during service, then a showing of continuity of symptomatology after service is required to support a finding of chronicity. 38 C.F.R. § 3.303(b). Additionally, for Veterans who have served 90 days or more of active service during a war period or after December 31, 1946, certain chronic disabilities are presumed to have been incurred in service if manifest to a compensable degree within one year of discharge from service. 38 U.S.C. §§ 1101, 1112; 38 C.F.R. §§ 3.307, 3.309. Service connection may also be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Entitlement to service connection for a right elbow disability In the Veteran’s original January 2008 service connection claim for a right elbow disability, he stated that his disability began in February 2005 (two years after discharge from service). Likewise, in an April 2008 correspondence, the Veteran stated that “the conditions I have never began when I was in active service.” In an August 2015 correspondence, the Veteran requested a Gulf War Environmental Hazard Exposure examination, suggesting that he believed his disability was due to environmental hazards from the Gulf War, and that his disability might be an undiagnosed illness that could be presumptively service connected insofar as he is a Persian Gulf War Veteran. A Persian Gulf Veteran is defined as a Veteran who served on active duty in the Armed Forces in the Southwest Asia Theater of operations during the Persian Gulf War. See 38 U.S.C. § 1117(f); 38 C.F.R. § 3.317(d). A “qualifying chronic disability” includes (a) undiagnosed illness, (b) a medically unexplained chronic multi-symptom illness (such as chronic fatigue syndrome, fibromyalgia, and functional gastrointestinal disorders (excluding structural gastrointestinal diseases) that is defined by a cluster of signs or symptoms, or (c) any diagnosed illness that the Secretary determines, in regulations, warrants a presumption of service connection. See 38 C.F.R. § 3.317(a)(2); see also 75 Fed. Reg. 61995 -97 (2010); see also 76 Fed. Reg. 41696 -98 (July 15, 2011). Under 38 U.S.C. § 1117(a)(1), compensation is warranted for a Persian Gulf Veteran who exhibits objective indications of a “qualifying chronic disability” that became manifest during service on active duty in the Armed Forces in the Southwest Asia theater of operations during the Persian Gulf War, or to a degree of 10 percent during the presumptive period prescribed by the Secretary. The period within which such disabilities must become manifest to a compensable degree in order for entitlement to compensation to be established is December 31, 2016. 38 C.F.R. § 3.317(a)(1)(i). Furthermore, the chronic disability must not be attributed to any known clinical disease by history, physical examination, or laboratory tests. See 38 U.S.C. § 1117; 38 C.F.R. § 3.317(a), (b). The term “objective indications of a qualifying chronic disability” include both “signs,” in a medical sense of objective evidence perceptible to an examining physician, and other, non-medical indicators that are capable of independent verification. See 38 C.F.R. § 3.317(a)(3). Signs or symptoms that may be manifestations of undiagnosed illness or a chronic multi-symptom illness include the following: fatigue, unexplained rashes or other dermatological signs or symptoms, headache, muscle pain, joint pain, neurological signs or symptoms, neuropsychological signs or symptoms, signs or symptoms involving the upper or lower respiratory system, sleep disturbances, gastrointestinal signs or symptoms, cardiovascular signs or symptoms, abnormal weight loss, or menstrual disorders. See 38 U.S.C. § 1117(g). The question for the Board is whether the Veteran has a current disability that began during service or is at least as likely as not related to an in-service injury, event, or disease. The Board concludes that, while the Veteran has a current right elbow disability (epicondylitis), the preponderance of the evidence weighs against finding that such disability began during service or is otherwise related to an in-service injury, event, or disease. 38 U.S.C. §§ 1110, 5107(b); Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009); 38 C.F.R. § 3.303(a), (d). At the Veteran’s December 2015 VA examination, he once again reported that after active duty service, he began to experience right elbow pain. The December 2015 VA examiner opined that the Veteran’s disability was not related to a specific exposure event experienced by the Veteran while in Southwest Asia. She further explained that epicondylitis is a disease with a clear and specific etiology and diagnosis. Moreover, the medical evidence does not support the fact that lateral epicondylitis is related to a specific exposure event. The service treatment records are silent for the condition, which began after active military service. Given that the opinion was provided following examination of the Veteran and review of the record, and as a clear rationale was provided, such opinion is deemed highly probative. While the Veteran believes that his right elbow disability relates to an in-service injury, event, or disease, he is not competent to provide a nexus opinion in this case. This issue is also medically complex, as it requires interpretation of complicated diagnostic medical testing. Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007). Consequently, the Board gives more probative weight to the December 2015 VA examiner. The Board recognizes that in an October 2018 correspondence, the Veteran stated that at a February 2018 DRO hearing, there was an agreement that new examinations be ordered. The Veteran noted that the RO afforded him a new examination with regard to his right hand, but no other examinations were ordered. The hearing report reflects an agreement that “VA examination(s) will be requested.” The fact that it said “examination(s)” leads the Board to believe that a single examination was a possibility, or that examinations would be provided for certain disabilities but not others, or that examinations would be provided for all the disabilities. The Board finds that there is nothing to indicate that an examination for each disability must be provided. Given that the Board finds the December 2015 VA examination to be adequate and probative, it finds that an additional examination in this case is not necessary but rather would only serve to delay the claim, with no benefit flowing to the Veteran. Soyini v. Derwinski, 1 Vet. App. 540, 546 (1991). As the preponderance of the evidence is against this claim, the benefit-of-the-doubt doctrine does not apply, and the claim of entitlement to service connection for a right elbow disability must be denied. See Gilbert v. Derwinski, 1 Vet. App 49 (1990). Entitlement to service connection for a left shoulder disability In the Veteran’s original January 2008 service connection claim, he stated that his left shoulder disability began in May 2007 (four years after discharge from service). Likewise, in an April 2008 correspondence, the Veteran stated that “the conditions I have never began when I was in active service…I had problems with my left knee first. My right knee also (had) problems. Then I (had) problems with my elbows, the left one first, then the right one and last I (had) problems with my left shoulder.” In an August 2015 correspondence, the Veteran requested a Gulf War Environmental Hazard Exposure examination, suggesting that he believed his disability was due to environmental hazards from the Gulf War, and that his disability might be an undiagnosed illness that could be presumptively service connected insofar as he is a Persian Gulf War Veteran. The question for the Board is whether the Veteran has a current disability that began during service or is at least as likely as not related to an in-service injury, event, or disease. The Board concludes that, while the Veteran has a current left shoulder disability, the preponderance of the evidence weighs against finding that the Veteran’s disability began during service or is otherwise related to an in-service injury, event, or disease. 38 U.S.C. §§ 1110, 5107(b); Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009); 38 C.F.R. § 3.303(a), (d). The first evidence of a left shoulder disability is a May 2007 x-ray that showed “very minimal acromioclavicular joint hypotrophy without impingement.” The Veteran underwent a December 2015 VA examination. The examiner noted that the service treatment records were silent for any shoulder complaints. She opined that the Veteran’s bilateral shoulder impingement syndrome and arthritis of the shoulder are two well known medical conditions not etiologically related to environmental exposure. The Veteran submitted an August 2016 Disability Benefits Questionnaire in which Dr. J.L.J. noted that the Veteran had full range of motion of the left shoulder. He also noted that the Veteran had been diagnosed with a left shoulder disability in May 2011. He then opined that the Veteran’s left shoulder impingement and acromioclavicular joint degenerative joint disease are at least as likely as not related to military service. The Court has held that the Board must determine how much weight is to be attached to each medical opinion of record. See Guerrieri v. Brown, 4 Vet. App. 467 (1993). Greater weight may be placed on one medical professional’s opinion over another, depending on factors such as reasoning employed by the medical professionals and whether or not, and the extent to which, they reviewed prior clinical records and other evidence. Gabrielson v. Brown, 7 Vet. App. 36 (1994). Adequate reasons and bases, in short, must be presented if the Board adopts one medical opinion over another. In assessing evidence such as medical opinions, the failure of the physician to provide a basis for his opinion goes to the weight or credibility of the evidence in the adjudication of the merits. See Hernandez-Toyens v. West, 11 Vet. App. 379, 382 (1998). Other factors for assessing the probative value of a medical opinion are the physician’s access to the claims file and the thoroughness and detail of the opinion. See Prejean v. West, 13 Vet. 444, 448-9 (2000). In some cases, the physician’s special qualifications or expertise in the relevant medical specialty or lack thereof may be a factor. In every case, the Board must support its conclusion with an adequate statement of its reasoning of why it found one medical opinion more persuasive than the other. In determining the probative value to be assigned to a medical opinion, the Board must consider three factors. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). The initial inquiry in determining probative value is to assess whether a medical expert was fully informed of the pertinent factual premises (i.e., medical history) of the case. A review of the claims file is not required, since a medical professional can also become aware of the relevant medical history by having treated a Veteran for a long period of time or through a factually accurate medical history reported by a Veteran. Nieves-Rodriguez, 22 Vet. App. at 303-04. The second inquiry involves consideration of whether the medical expert provided a fully articulated opinion. See Id. A medical opinion that is equivocal in nature or expressed in speculative language does not provide the degree of certainty required for medical nexus evidence. See McLendon v. Nicholson, 20 Vet. App. 79 (2006). The third and final factor in determining the probative value of an opinion involves consideration of whether the opinion is supported by a reasoned analysis. The most probative value of a medical opinion comes from its reasoning. Therefore, a medical opinion containing only data and conclusions is not entitled to any weight. In fact, a review of the claims file does not substitute for a lack of a reasoned analysis. See Nieves-Rodriguez, 22 Vet. App. at 304; see also Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007) (“[A] medical opinion... must support its conclusion with an analysis that the Board can consider and weigh against contrary opinions”). The Board notes that both examiners appear fully informed of the pertinent factual premises, though Dr. J.L.J. stated that the disability was diagnosed in May 2011 (eight years after service), when in fact the Veteran had very minimal acromioclavicular joint hypotrophy in May 2007 (four years after service). As to factor two, both opinions were fully articulated. However, with regard to the third factor, the Board finds that December 2015 VA examiner to be more probative. The positive nexus opinion provided by Dr. J.L.J. was not supported by any rationale whatsoever. Indeed, Dr. J.L.J offered no justification for his opinion that the disability is related to service. As noted above, a medical opinion containing only data and conclusions is not entitled to any weight. Consequently, the Board finds the December 2015 VA examiner’s opinion to be more probative than that of Dr. J.L.J. While the Veteran believes that his left shoulder disability is related to an in-service injury, event, or disease, he is not competent to provide a nexus opinion in this case. This issue is also medically complex, as it requires interpretation of complicated diagnostic medical testing. Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007). Consequently, the Board gives more probative weight to the December 2015 VA examiner. In an October 2018 correspondence, the Veteran stated that at a February 2018 DRO hearing, there was an agreement that new examinations be ordered. The Veteran noted that the RO afforded him a new examination with respect to his right hand, but that no other examinations were ordered. The Board notes that the hearing report reflects an agreement that “VA examination(s) will be requested.” The fact that it said “examination(s)” leads the Board to believe that a single examination was a possibility, or that examinations would be provided for certain disabilities but not others, or that examinations would be provided for all the disabilities. The Board finds that there is nothing to indicate that an examination for each disability must be provided. Given that the Board finds the December 2015 VA examination to be adequate and probative, it finds that an additional examination in this case is not necessary but rather would only serve to delay the claim, with no benefit flowing to the Veteran. Soyini v. Derwinski, 1 Vet. App. 540, 546 (1991). As the preponderance of the evidence is against this claim, the benefit-of-the-doubt doctrine does not apply, and the claim for entitlement to service connection for a left shoulder disability must be denied. See Gilbert v. Derwinski, 1 Vet. App 49 (1990). Entitlement to service connection for a left knee disability In the Veteran’s original January 2008 service connection claim for a left knee disability, he stated that his disability began in July 2004. At the Veteran’s December 2015 VA examination, he reported that during military service, he had to walk for prolonged periods with heavy equipment. He stated that at the time, he had bilateral knee pain (left greater than right), but he denied going in for an evaluation. He stated that returning from deployment, he sought private treatment, and underwent surgery in July 2004. The examiner diagnosed the Veteran a left knee medial meniscus posterior horn tear by MRI status post partial meniscotomy. She opined that it was less likely than not that the Veteran’s disability was caused by or a result of a specific exposure event experienced by the Veteran during service. She reasoned that there was no medical evidence that links the MRI findings with exposure to fumes, dust, smoke, or any other contaminants. She also noted that the service treatment records were silent for left knee complaints. The Veteran submitted an August 2016 Disability Benefits Questionnaire in which Dr. J.L.J. opined that in light of the Veteran’s history, the date of symptoms, and his duties during service, it is at least as likely as not that his left knee disability is related to service. The service treatment records fail to reflect any findings attributable to a left knee disability. However, the Board notes that a July 2004 MRI reflects that the Veteran had a grade 2 signal involving the posterior horn of the medial meniscus. An October 2004 memorandum reflects that he underwent surgery. In this case, neither medical opinion is more probative than the other. The VA examiner only rendered an opinion regarding whether the Veteran’s left disability was caused by environmental hazards (fumes, dust, smoke). It did not address whether the knee disability could have been caused by excessive walking while carrying heavy equipment (as the Veteran contended). Dr. J.L.J.’s opinion was not supported by much rationale. However, Dr. J.L.J. did cite the proximity of the Veteran’s symptoms to service, as well as the Veteran’s duties as justification for the opinion. Moreover, the Board notes that while the first documentation of symptoms does not fall within the one year presumptive period, they do appear close enough to service (17 months after discharge), to find that it is at least as likely as not that his left knee disability is related to service, considering the record fails to show any intervening event. In light of the above, the Board affords the benefit of the doubt to the Veteran and finds that service connection for a left knee disability is warranted. Entitlement to service connection for a left wrist disability The service treatment records fail to reflect any findings attributable to a left wrist disability. When the Veteran sought treatment for various disabilities in an April 2008 correspondence, he acknowledged that he never had them during active service. At the time, he listed knee problems, then elbow problems, and then shoulder problems. He did not report any wrist symptoms at that time. In an August 2015 correspondence, the Veteran requested a Gulf War Environmental Hazard Exposure examination, suggesting that he believed his disability was due to environmental hazards from the Gulf War, and that his disability might be an undiagnosed illness that could be presumptively service connected insofar as he is a Persian Gulf War Veteran. The question for the Board is whether the Veteran has a current disability that began during service or is at least as likely as not related to an in-service injury, event, or disease. The Board concludes that, while the Veteran has a current left wrist disability, the preponderance of the evidence weighs against finding that the Veteran’s disability began during service or is otherwise related to an in-service injury, event, or disease. 38 U.S.C. §§ 1110, 5107(b); Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009); 38 C.F.R. § 3.303(a), (d). At the Veteran’s December 2015 VA examination, he could not remember the onset date of his left wrist symptoms. Following a thorough examination, the examiner diagnosed the Veteran with a left wrist sprain. She noted that this is a disability with a clear and specific etiology diagnosis. She opined that the disability is not related to a specific exposure event experienced by the Veteran in service in Southwest Asia. She noted the service treatment records are silent for a left wrist disability, and medical evidence does not support the fact that a left wrist sprain is a condition related to an exposure event in Southwest Asia. While the Veteran believes his left wrist disability is related to an in-service injury, event, or disease, he is not competent to provide a nexus opinion in this case. This issue is also medically complex, as it requires interpretation of complicated diagnostic medical testing. Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007). Consequently, his statements as to nexus do not constitute probative evidence. The Board recognizes that in an October 2018 correspondence, the Veteran stated that at a February 2018 DRO hearing, there was an agreement that new examinations be ordered. The Veteran noted that the RO afforded him a new examination with regards to his right hand; but that no other examinations were ordered. The Board notes that the hearing report reflects an agreement that “VA examination(s) will be requested.” The fact that it said “examination(s)” leads the Board to believe that a single examination was a possibility, or that examinations would be provided for certain disabilities but not others, or that examinations would be provided for all the disabilities. The Board finds that there is nothing to indicate that an examination for each disability must be provided. Given that the Board finds the December 2015 VA examination to be adequate and probative, it finds that an additional examination in this case is not necessary but rather would only serve to delay the claim, with no benefit flowing to the Veteran. Soyini v. Derwinski, 1 Vet. App. 540, 546 (1991). As the preponderance of the evidence is against this claim, the benefit-of-the-doubt doctrine does not apply, and the claim for entitlement to service connection for a left wrist disability must be denied. See Gilbert v. Derwinski, 1 Vet. App 49 (1990). Entitlement to service connection for headaches The Veteran submitted two lay statements dated August 2017 and August 2017. The authors of the statements were fellow National Guardsmen who stated that in July 1996, while field training in Panama, a mortar cannon fell onto the Veteran’s head, causing him to lose consciousness. Service treatment records substantiate the lay statements. An individual sick slip dated July 1996 reflects that the Veteran sustained trauma to the left side of his head. He was diagnosed with trauma to the left parietal area with a mild laceration. The Veteran underwent a VA examination in May 2017. He reported that he has experienced infrequent headaches since 1993. However, he stated that since the 1996 trauma to the head, his headaches have become more severe. The examiner noted that there were no reports of headaches in the service treatment records. Nonetheless, the examiner stated that the Veteran’s headaches, which clearly and unmistakably preexisted the Veteran’s service, were aggravated beyond their natural progression due to the in-service event. He stated that the Veteran had headaches prior to the in-service trauma, but they were very infrequent (0-1 per week) and not severe. The present level of the Veteran’s headaches is 2-4 per week and described as severe, and lasting up to seven hours. VA law provides that a Veteran is presumed to be in sound condition, except for defects, infirmities or disorders noted when examined, accepted, and enrolled for service, or where clear and unmistakable evidence establishes that an injury or disease existed prior to service and was not aggravated by service. 38 U.S.C. §§ 1111, 1132, 1137. The presumption of soundness attaches only where there has been an induction examination during which the disability about which the Veteran later complains was not detected. See Bagby v. Derwinski, 1 Vet. App. 225, 227 (1991). The regulations provide expressly that the term “noted” denotes “[o]nly such conditions as are recorded in examination reports,” 38 C.F.R. § 3.304(b), and that “[h]istory of pre- service existence of conditions recorded at the time of examination does not constitute a notation of such conditions.” Id. at (b)(1). For purposes of illustrating the analysis to be used in such cases, the Board notes the decision of the U.S. Court of Appeals for the Federal Circuit (Federal Circuit) in Wagner v. Principi, 370 F.3d 1089 (Fed.Cir. 2004), issued on June 1, 2004, summarizing the effect of 38 U.S.C. § 1111 on claims for service-connected disability: When no preexisting condition is noted upon entry into service, the Veteran is presumed to have been sound upon entry. The burden then falls on the government to rebut the presumption of soundness by clear and unmistakable evidence that the Veteran’s disability was both preexisting and not aggravated by service. The government may show a lack of aggravation by establishing that there was no increase in disability during service or that any “increase in disability [was] due to the natural progress of the” preexisting condition. 38 U.S.C. § 1153. If this burden is met, then the Veteran is not entitled to service-connected benefits. However, if the government fails to rebut the presumption of soundness under section 1111, the Veteran’s claim is one for service connection. This means that no deduction for the degree of disability existing at the time of entrance will be made if a rating is awarded. See 38 C.F.R. § 3.322. On the other hand, if a preexisting disorder is noted upon entry into service, the Veteran cannot bring a claim for service connection for that disorder, but the Veteran may bring a claim for service-connected aggravation of that disorder. In that case section 1153 applies and the burden falls on the Veteran to establish aggravation. See Jensen v. Brown, 19 F.3d 1413, 1417 (Fed.Cir. 1994). If the presumption of aggravation under section 1153 arises, the burden shifts to the government to show a lack of aggravation by establishing “that the increase in disability is due to the natural progress of the disease.” 38 U.S.C. § 1153; see also 38 C.F.R. § 3.306; Jensen, 19 F.3d at 1417; Wagner, 370 F. 3d at 1096. In this case, the service in question appears to have been active duty for training (ACDUTRA), per the correspondence from the fellow servicemembers. It does not appear that an enlistment examination was performed. Under these circumstances, the presumption of soundness does not apply. However, under 38 C.F.R. Section 3.6, disability incurred or aggravated in the line of duty qualifies as active service. While the medical examiner here used the incorrect standard for preexisting condition (because there is no soundness to rebut), the finding that aggravation occurred in service, based on increase in frequency of headaches is enough to substantiate the claim of aggravation. The RO denied the claim because it found that the service treatment records did not include a line of duty report. Consequently, it found that the injury did not occur while the Veteran was on active duty. However, the Board notes that the July 1996 individual sick slip includes findings by the unit commander and the medical officer. Both stated that the injury occurred in the line of duty. The Board finds that the evidence is at least in equipoise with regard to whether the Veteran’s head trauma occurred in the line of duty and whether it aggravated a preexisting disability. Consequently, in affording the benefit of the doubt to the Veteran, the Board finds that entitlement to service connection for headaches on an aggravation basis is warranted. REASONS FOR REMAND Entitlement to service connection for peripheral vestibular disorder (vertigo) claimed as dizziness, giddiness, and left hypoactive labyrinth is remanded. Entitlement to service connection for vestibular neuronitis is remanded. The Veteran underwent a VA examination in November 2016. The examiner was asked whether the Veteran’s “left hypoactive labyrinth also claimed as dizziness and giddiness (which clearly and unmistakably existed prior to service) aggravated beyond its natural progression by or during service?” The same question was asked regarding the Veteran’s vestibular neuronitis “(which clearly and unmistakably existed prior to service).” The questions presupposed that these conditions existed prior to service (when in fact they did not). The examiner correctly pointed out that the Veteran stated that he did not have vertigo following his July 1996 head trauma. The examiner stated that “There is no preexisting condition and therefore no baseline of severity.” The examiner then stated that “the claimed vertigo condition began in 2016, 20 years after the head trauma. There is no evidence of natural progression nor aggravation.” The Board finds the opinion inadequate because the examiner correctly noted that there was no preexisting disability, but then rendered an opinion regarding aggravation (as if there was a preexisting disability). Additionally, the Board notes that in an August 2015 correspondence, the Veteran requested a Gulf War Environmental Hazard Exposure examination, suggesting that he believed his disability was due to environmental hazards from the Gulf War, and that his disability might be an undiagnosed illness that could be presumptively service connected insofar as he is a Persian Gulf War Veteran. The November 2016 VA examiner’s opinion never addressed whether the Veteran’s disabilities could be related to presumed exposure to environmental hazards. In light of the fact that the Veteran has now been service connected for headaches, he should be afforded a new examination to determine the etiology of the vestibular disabilities. The examiner should be asked whether it is at least as likely as not that the Veteran’s vestibular neuronitis and peripheral vestibular disorder (vertigo) claimed as dizziness, giddiness, and left hypoactive labyrinth are due to presumed exposure to hazardous materials during service in Southwest Asia. The examiner should also be asked whether the disabilities were caused by or aggravated by his service connected tinnitus or headaches. Entitlement to service connection for a cervical disability At his December 2015 VA examination, the Veteran stated that his cervical spine pain consisted of irradiating pain to his head with headaches. The Board notes the possibility that these two disabilities could be related. The Board also recognizes that the in-service head trauma could also have resulted in a cervical spine disability. Consequently, the Board finds that a new examination is warranted to determine the nature and etiology of the Veteran’s cervical spine disability, to include whether it is at least as likely as not related to in-service head trauma. Entitlement to a compensable rating for right hand status post third metacarpal bone fracture The Veteran underwent VA examinations in December 2015 and March 2018. The VA examiners noted that the Veteran experienced flare-ups, but they failed to render an opinion regarding the additional loss of function during these flare-ups. In Sharp v. Shulkin, 29 Vet. App. 26 (2017), the Court found inadequate an examiner’s failure to estimate motion loss in terms of degrees during periods of flare-ups on the basis that they did not actually observe such flare-ups first hand. In Sharp, the Court held that a VA examiner must attempt to elicit information from the record and the Veteran regarding the severity, frequency, duration, or functional loss manifestations during flare-ups before determining that an estimate of motion loss in terms of degrees could not be given. It also held that any inability to furnish such an estimate must be predicated on a lack of medical knowledge among the medical community at large, rather than insufficient knowledge by the individual examiner. In the absence of an opinion regarding functionality during a flare-up (measured in terms of an estimated loss of motion), the Board finds that the prior examinations are inadequate, and that a new examination is warranted. The matters are REMANDED for the following action: 1. Schedule the Veteran for VA examination(s) by appropriate clinician(s) to determine the nature and etiology of any cervical spine disability; vestibular neuronitis; and peripheral vestibular disorder (vertigo) claimed as dizziness, giddiness, and left hypoactive labyrinth. With regard to the cervical spine, the examiner must opine whether it is at least as likely as not related to an in-service head trauma that occurred in July 1996. The examiner must also opine whether it is at least as likely as not (1) proximately due to service-connected headaches, or (2) aggravated beyond its natural progression by service-connected headaches. The examiner should note that this aggravation does not need to have occurred during service. If aggravation is found, the examiner should identify baseline level of disability prior to such aggravation. With regard to the Veteran’s peripheral vestibular disorder (vertigo) claimed as dizziness, giddiness, and left hypoactive labyrinth, and vestibular neuronitis, the examiner must opine whether any disability began during or is causally related to presumed exposure to hazardous materials in Southwest Asia. The examiner must also opine whether the disabilities constitute undiagnosed illness or chronic unexplained multi-symptom illness. Finally, the examiner must opine whether it is at least as likely as not that each disability is (1) proximately due to service-connected headaches and/or tinnitus, or (2) aggravated beyond its natural progression by service-connected headaches and/or tinnitus. The examiner should note that this aggravation does not need to have occurred during service. If aggravation is found, the examiner should identify baseline level of disability prior to such aggravation. 2. Schedule the Veteran for an examination of the current severity of the Veteran’s right hand, status post third metacarpal bone fracture. The examiner must attempt to elicit information regarding the severity, frequency, and duration of any flare-ups, and the degree of functional loss during flare-ups. To the extent possible, the examiner should identify any symptoms and functional impairments due to the right hand disability and discuss the effect of the disability on any occupational functioning and activities of daily living. If it is not possible to provide a specific measurement, or an opinion regarding flare-ups, symptoms, or functional impairment without speculation, the examiner must state whether the need to speculate is due to a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts), a deficiency in the record (additional facts are required), or the examiner (does not have the knowledge or training). The AOJ should advise the examiner that all joints examination should comply with the requirements of Sharp v. Shulkin, 29 Vet. App. 26 (2017) on assessing any functional loss due to flare-ups and use over time; Correia v. McDonald, 28 Vet. App. 158 (2016) on how range of motion is tested; and DeLuca v. Brown, 8 Vet. App. 202 (1995). The Court has held that a lack of opportunity to observe a flare-up is not a sufficient basis for declining to estimate its functional effects. The examiner should provide an estimate and is free to indicate the level of confidence in such estimate on a scale of 1 to 5, with 5 very the most confident and 1 being the least confident. ERIC S. LEBOFF Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD M. Prem, Counsel