Citation Nr: 18154330 Decision Date: 11/29/18 Archive Date: 11/29/18 DOCKET NO. 15-14 577 DATE: November 29, 2018 ORDER The rating reduction for traumatic brain injury (TBI) to zero percent, effective November 1, 2013, was improper, and the 10 percent rating is restored. The rating reduction for posttraumatic stress disorder (PTSD) to 30 percent, effective November 1, 2013, was improper, and the 50 percent rating is restored. A total disability rating based upon individual unemployability due to service-connected disabilities (TDIU) for the period prior to December 16, 2013, is granted. Entitlement to specially adapted housing is granted. The claim of entitlement to special home adaptation grant is denied as moot. REMANDED Entitlement to a rating in excess of 20 percent for degenerative joint disease of the lumbar spine (back disability) prior to February 6, 2015, is remanded. Entitlement to a rating in excess of 40 percent for degenerative joint disease of the lumbar spine (back disability) is remanded. FINDINGS OF FACT 1. A May 2009 rating decision granted service connection for PTSD evaluated as 50 percent disabling. 2. At the time of the reduction in August 2013, the Veteran’s PTSD did not show improvement in ability to function under the ordinary conditions of life and work. 3. Since May 2009, the Veteran’s PTSD has been productive of social and occupational impairment with occupational and social impairment with reduced reliability and productivity due to such symptoms as chronic sleep impairment, anxiety, and irritability. 4. An October 2010 rating decision granted service connection for TBI evaluated as 10 percent disabling. 5. At the time of the reduction in August 2013, the Veteran’s TBI did not show improvement in ability to function under the ordinary conditions of life and work. 6. Since October 2010, the Veteran’s TBI has been productive of memory and attention deficits. 7. Service connection is in effect for a back disability with associated radiculopathies, which have been rated as 100 percent disabling. 8. Manifestations of the Veteran’s service-connected back disability with associated radiculopathies cause loss of use of his lower extremities. CONCLUSIONS OF LAW 1. The criteria for restoration of a 10 percent rating for TBI, effective November 1, 2013, have been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.102, 3.105, 3.159, 3.344, 4.1, 4.2, 4.3, 4.7, 4.130 (2017). 2. The criteria for restoration of a 50 percent rating for PTSD, effective November 1, 2013, have been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.102, 3.105, 3.159, 3.344, 4.1, 4.2, 4.3, 4.7, 4.130 (2017). 3. The criteria for an award of TDIU have been met. 38 U.S.C. §§ 1155, 5107(b) (2012); 38 C.F.R. §§ 3.102, 3.340, 3.341, 4.16 (2017). 4. The criteria for a certificate of eligibility for specially adapted housing have been met. 38 U.S.C. § 2101 (2012); 38 C.F.R. § 3.809 (2017). 5. The criteria for entitlement to assistance in acquiring specially adapted housing have been met, thereby precluding a special home adaptation grant. 38 U.S.C. §§ 2101(a), (b), 5107 (2002); 38 C.F.R. §§ 3.350(a), 3.809, 4.63 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active duty from April 2004 to August 2006, to include combat service in Iraq. Commendations include the Purple Heart Medal and Combat Infantryman Badge. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from August 2013 and September 2014 rating decisions issued by the Department of Veterans Affairs (VA) Regional Office (RO) in New Orleans, Louisiana. In May 2015, the Veteran requested a hearing before a Veterans Law Judge, but in July 2015, he withdrew his hearing request. 1. The rating reduction for TBI to zero percent, effective November 1, 2013, was improper, and the 10 percent rating is restored. In this case, the 10 percent rating for the service-connected TBI was in effect for less than 5 years; thus, the provisions of 38 C.F.R. § 3.344 (c) are applicable. Reduction is warranted where reexamination shows actual improvement in a veteran’s ability to function under the ordinary conditions of life and work. Faust v. West, 13 Vet. App. 342, 350 (2000); see also 38 C.F.R. § 3.344. In determining whether a veteran’s ability to function under the ordinary conditions of life and work, the Board will look at post-reduction evidence. To the extent relevant to this case, the Veteran’s TBI has been rated under Diagnostic Code 8045: his initial 10 percent rating was reduced to zero percent effective November 1, 2013. Under 38 C.F.R. § 4.124a, Diagnostic Code 8045, there are three main areas of dysfunction that may result from a TBI and have profound effects on functioning: cognitive (which is common in varying degrees after a traumatic brain injury), emotional/behavioral, and physical. Each of these areas of dysfunction may require evaluation. Cognitive impairment is defined as decreased memory, concentration, attention, and executive functions of the brain. Executive functions are goal setting, speed of information processing, planning, organizing, prioritizing, self-monitoring, problem solving, judgment, decision making, spontaneity, and flexibility in changing actions when they are not productive. Not all of these brain functions may be affected in a given individual with cognitive impairment, and some functions may be affected more severely than others. In a given individual, symptoms may fluctuate in severity from day to day. VA is to evaluate cognitive impairment under the table titled “Evaluation of Cognitive Impairment and Other Residuals of a Traumatic Brain Injury Not Otherwise Classified.” Subjective symptoms may be the only residual of a TBI or may be associated with cognitive impairment or other areas of dysfunction. Subjective symptoms that are residuals of a TBI, whether or not they are part of cognitive impairment, should be evaluated under the subjective symptoms facet in the table titled “Evaluation of Cognitive Impairment and Other Residuals of a Traumatic Brain Injury Not Otherwise Classified.” However, VA is to separately evaluate any residual with a distinct diagnosis that may be evaluated under another diagnostic code, such as migraine headache or Meniere’s disease, even if that diagnosis is based on subjective symptoms, rather than under the “Evaluation of Cognitive Impairment and Other Residuals of a Traumatic Brain Injury Not Otherwise Classified” table. VA is to evaluate emotional/behavioral dysfunction under 38 C.F.R. § 4.130 (Schedule of ratings-mental disorders) when there is a diagnosis of a mental disorder. When there is no diagnosis of a mental disorder, evaluate emotional/behavioral symptoms under the criteria in the table titled “Evaluation of Cognitive Impairment and Other Residuals of Traumatic Brain Injury Not Otherwise Classified.” VA is to evaluate physical (including neurological) dysfunction based on the following list, under an appropriate diagnostic code: motor and sensory dysfunction, including pain, of the extremities and face; visual impairment; hearing loss and tinnitus; loss of sense of smell and taste; seizures; gait, coordination, and balance problems; speech and other communication difficulties, including aphasia and related disorders, and dysarthria; neurogenic bladder; neurogenic bowel; cranial nerve dysfunctions; autonomic nerve dysfunctions; and endocrine dysfunctions. The preceding list of types of physical dysfunction does not encompass all possible residuals of a TBI. For residuals not listed in 38 C.F.R. § 4.124a, Diagnostic Code 8045, that are reported on an examination, VA is to evaluate under the most appropriate diagnostic code. Each condition is to be evaluated separately, as long as the same signs and symptoms are not used to support more than one evaluation, and combine under 38 C.F.R. § 4.25 the evaluations for each separately rated condition. The evaluation assigned based on the “Evaluation of Cognitive Impairment and Other Residuals of a Traumatic Brain Injury Not Otherwise Classified” table will be considered the evaluation for a single condition for purposes of combining with other disability evaluations. Diagnostic Code 8045 instructs that VA should consider the need for special monthly compensation for such problems as loss of use of an extremity, certain sensory impairments, erectile dysfunction, the need for aid and attendance (including for protection from hazards or dangers incident to the daily environment due to cognitive impairment), being housebound, etc. The table titled “Evaluation of Cognitive Impairment and Other Residuals of a Traumatic Brain Injury Not Otherwise Classified” addresses 10 facets of a traumatic brain injury related to cognitive impairment and subjective symptoms. It provides criteria for levels of impairment for each facet, as appropriate, ranging from 0 to 3, and a 5th level, the highest level of impairment, labeled “total.” Not every facet has every level of severity. The consciousness facet, for example, does not provide for an impairment level other than “total,” since any level of impaired consciousness would be totally disabling. A 100 percent evaluation is assigned if “total” is the level of evaluation for one or more facets. If no facet is evaluated as “total,” the overall 38 C.F.R. § as follows: 0 = 0 percent; 1 = 10 percent; 2 = 40 percent; and 3 = 70 percent. For example, a 70 percent evaluation is assigned if 3 is the highest level of evaluation for any facet. The Veteran has stated his disagreement with the reduction because he does not believe his TBI has improved. He is correct, and the Board will restore the 10 percent rating. In October 2010, the RO assigned an initial 10 percent rating for TBI as 1 was the highest level of evaluation for any TBI facet, which was based on medical evidence, namely the July 2010 VA examination report, showing problems with memory and attention. In reducing the Veteran’s rating, the RO compared the results of two examinations. The first was conducted in July 2010. The examiner found that the TBI residuals resulted in decreased attention and mild memory deficits (without objective evidence on testing). The examiner explained that despite his memory and attention deficits, the Veteran is highly functional and performed well on tasks: noting that functional communication was intact and that he was able to compensate with written notes. The examiner further noted that the Veteran was a full-time student. The second examination was conducted in October 2012. The examiner found that the TBI resulted in no residuals that have not already been attributed to another service-connected disability. The examiner checked a box that states “[n]o complaints of impairment of memory, attention, concentration, or executive function,” but did not provide further explanation, to include when such symptoms, which were reported on VA examination in July 2010, ceased. In December 2013, the Veteran disagreed with the August 2013 rating decision that reduced his TBI rating to zero percent: essentially arguing that his TBI residuals were not evaluated prior to the reduction. In an October 28, 2013, VA treatment record, a clinician noted that the Veteran talked slowly due to TBI residuals. A February 2015 VA TBI examination report shows that the clinician noted mild memory loss: noting that the Veteran reported very poor short-term memory, to include forgetting conversations, names, tasks, and medications. This case turns on whether the evidence shows actual improvement in everyday life since the July 2010 VA examination, which provided the basis for the initial 10 percent rating. Critically, the initial 10 percent rating was predicated on the presence of one TBI facet: mild memory loss and attention deficits. Here, there is little difference between the above-discussed examinations. While the October 2012 VA examination shows no memory deficits (or other TBI residuals), the above-discussed VA treatment records and VA examination reports show a continuation of memory deficits, which would warrant at least one TBI residual facet for memory, attention, concentration, and executive functions. Additionally, the fact that the Veteran did not recall the October 2012 TBI examination in his December 2013 notice of disagreement creates additional doubt as to whether the Veteran’s TBI symptoms (e.g. memory loss) have improved since the August 2013 reduction. See 38 C.F.R. § 3.344 (b) (stating that the rating should not be reduced where improvement is doubtful). Overall, the evidence does not reveal improvement in the disability under the conditions of ordinary life and work. Instead, the evidence tends that the symptoms noted in the July 2010 VA examination, namely memory and attention deficits, have persisted after the reduction. After resolving any doubt in the Veteran’s favor, the Board finds that the Veteran’s TBI has not shown actual improvement. As a result, the Board finds that the reduction was in error, and the prior 10 percent rating will be restored. 2. The rating reduction for PTSD to 30 percent, effective November 1, 2013, was improper, and the 50 percent rating is restored. In this case, the 50 percent rating for the service-connected PTSD was in effect for less than 5 years; thus, the provisions of 38 C.F.R. § 3.344 (c) are applicable. Reduction is warranted where reexamination shows actual improvement in a veteran’s ability to function under the ordinary conditions of life and work. Faust, 13 Vet. App. at 350; see also 38 C.F.R. § 3.344. In determining whether a veteran’s ability to function under the ordinary conditions of life and work, the Board will look at post-reduction evidence. To the extent relevant to this case, the Veteran’s PTSD has been rated under Diagnostic Codes 9411: his initial 50 percent rating was reduced to 30 percent effective November 1, 2013. Under Diagnostic Code 9411, the criteria for a 30 percent rating include occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks although generally functioning satisfactorily, with routine behavior, self-care, and conversation normal due to such symptoms as depressed mood, anxiety, suspiciousness, panic attacks weekly or less often, chronic sleep impairment, and mild memory loss. A 50 percent is warranted for occupational and social impairment with reduced reliability and productivity due to such symptoms as flattened affect; circumstantial, circumlocutory, or stereotyped speech; panic attacks more than once a week; difficulty in understanding complex commands; impairment of short- and long-term memory (e.g., retention of only highly learned material, forgetting to complete tasks); impaired judgment; impaired abstract thinking; disturbances of motivation and mood; and difficulty in establishing and maintaining effective work and social relationships. A 70 percent is warranted for occupational and social impairment, with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood, due to such symptoms as suicidal ideation; obsessional rituals which interfere with routine activities; speech intermittently illogical, obscure, or irrelevant; near-continuous panic or depression affecting the ability to function independently, appropriately and effectively; impaired impulse control (such as unprovoked irritability with periods of violence); spatial disorientation; neglect of personal appearance and hygiene; difficulty in adapting to stressful circumstances (including work or a work like setting); and an inability to establish and maintain effective relationships. A 100 percent rating is warranted if evidence shows total occupational and social impairment, due to such symptoms as gross impairment in thought processes or communication; persistent delusions or hallucinations; grossly inappropriate behavior; persistent danger of hurting self or others; intermittent inability to perform activities of daily living (including maintenance of minimal personal hygiene); disorientation to time or place; and memory loss for names of close relatives, own occupation, or own name. 38 C.F.R. § 4.130. The use of the phrase “such symptoms as,” followed by a list of examples, provides guidance as to the severity of symptomatology contemplated for each rating. In particular, use of such terminology permits consideration of items listed as well as other symptoms and contemplates the effect of those symptoms on the claimant’s social and work situation. See Mauerhan v. Principi, 16 Vet. App. 436 (2002); see also Vazquez-Claudio v. Shinseki, 713 F.3d 112, 117 (Fed. Cir. 2013) (explaining that the symptoms that could give rise to a given rating are those in like kind, i.e., of similar duration, severity, and frequency, to those provided in the non-exhaustive lists). The Veteran has stated his disagreement with the reduction because he does not believe his PTSD has improved. He is correct, and the Board will restore the 50 percent rating. In reducing the Veteran’s rating, the RO compared the results of two examinations. The first was conducted in March 2009. The examiner opined that the Veteran’s PTSD resulted in social and occupational impairment with reduced reliability and productivity due to such symptoms sleep impairment and irritability. While the Veteran reported that his mood is generally good, the examiner noted that his sleep difficulties and irritability make it difficult for him to interact cooperatively with others. The second examination was conducted in October 2012. The examiner opined that the Veteran’s PTSD resulted in social and occupational impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks, although functioning satisfactorily with normal routine behavior, self-care, and conversation due to symptoms such as anxiety, chronic sleep impairment, and disturbances of motivation and mood. During the examination, the Veteran reported frequent sleep disturbance, irritability, and anxiety. The examiner also noted diminished interest in significant activities, feelings of detachment or estrangement from others, and restricted range of affect. See also VA TBI examination (October 2012) (showing that the Veteran reported the same symptoms during his TBI examination). A third examination was conducted in February 2015. The examiner opined that the Veteran’s PTSD resulted in social and occupational impairment with occasional decrease in work efficiency. Based on a detailed account of the Veteran’s mental history, the examiner determined that the Veteran’s mental health symptoms were mild. Further, VA treatment records note that the Veteran has consistently reported symptoms such as irritability, sleep impairment, and lack of interest. See, e.g., VA treatment record (April 12, 2010; March 31, 2013). Additionally, in a July 2014 VA examination report pertaining to the need for special monthly compensation, an examiner stated that the Veteran’s PTSD causes severe anxiety, impairs his ability to problem solve, and impairs sleep. The Board notes that there is little difference between the above-discussed examinations. Significantly, while the October 2012 and February 2015 VA examiners characterized the Veteran’s symptoms as mild, neither examiner noted improvement since the August 20113 reduction. On the contrary, VA examination reports, treatment records, and lay statements throughout the appeal show that sleep impairment, irritability, and anxiety have predominated the Veteran’s psychiatric disability picture, with no clear evidence of improvement. Indeed, the fact that clinicians have consistently prescribed medication to treat these symptoms creates additional doubt as to whether the Veteran’s PTSD symptoms have improved. See 38 C.F.R. § 3.344 (b). After resolving any doubt in the Veteran’s favor, the Board finds that the Veteran’s PTSD has not shown actual improvement. As a result, the Board finds that the reduction was in error, and the prior 50 percent rating will be restored. 3. A TDIU is granted. The Veteran seeks entitlement to a TDIU. He contends he has been unable to maintain substantially gainful employment since January 2012. See, e.g., VA Form 8940 (April 17, 2012). Total disability ratings for compensation may be assigned, where the schedular rating is less than total, when the disabled person is unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities, provided that if there is only one such disability, this disability shall be ratable at 60 percent or more, and that, if there are two or more such disabilities, there shall be at least one disability ratable at 40 percent or more, and sufficient additional disability to bring the combined rating to 70 percent or more. 38 C.F.R. § 4.16 (a). VA will grant a total rating for compensation purposes based on unemployability when the evidence shows that the veteran is precluded, by reason of his service-connected disabilities, from obtaining and maintaining any form of gainful employment consistent with his education and occupational experience. 38 C.F.R. §§ 3.340, 3.341, 4.16. Consideration may be given to a veteran’s level of education, special training, and previous work experience, but not to his age or the impairment caused by nonservice-connected disabilities. 38 C.F.R. §§ 3.341, 4.16, 4.19. Unlike the regular disability rating schedule which is based on the average work-related impairment caused by a disability, “entitlement to a TDIU is based on an individual’s particular circumstances.” Rice v. Shinseki, 22 Vet. App. 447, 452 (2009). The ultimate question of whether a Veteran is capable of substantial gainful employment is an adjudicatory determination, not a medical one. See Geib v. Shinseki, 733 F.3d 1350, 1354 (Fed. Cir. 2013). Throughout the pendency of the appeal, the Veteran’s service-connected disabilities have exceeded the schedular criteria for a TDIU. See 38 C.F.R. § 4.16. In this regard, his has been in receipt of service connection for radiculopathy of the right upper extremity, rated 70 percent disabling; radiculopathy of the left upper extremity, rated 60 percent disabling; PTSD, rated 50 percent disabling; a back disability, rated 40 percent disabling; radiculopathy of the left lower extremity, rated 40 percent disabling; radiculopathy of the right lower extremity, rated 40 percent disabling; shell fragment wound of the right thigh, rated 30 percent disabling; a right thigh disability, rated 20 percent disabling; a cervical spine disability, rated 20 percent disabling; a shoulder disability, rated 20 percent disabling; tinnitus, rated 10 percent disabling; a right thigh scar, rated 10 percent disabling; a right elbow scar, rated 10 percent disabling; TBI, rated 10 percent disabling; and a right hand disability, rated zero percent disabling. Additionally, the Board finds that the Veteran’s service-connected disabilities alone have been of sufficient severity to produce unemployability. Critically, the evidence shows that the Veteran’s physical disabilities impair his ability to stand, ambulate, and even perform activities of daily living. See, e.g., VA examination (July 2010). Additionally, a VA clinician determined that pain medication taken for his service-connected disabilities, limitations of his service-connected back disability and associated radiculopathies, and his PTSD render him incapable of managing his financial affairs. After resolving any doubt in the Veteran’s favor, the Board finds that the collective impact of the Veteran’s service-connected disabilities render him incapable of obtaining or maintaining substantially, even in light of his education and occupational history. See Geib, 733 F.3d 1350. Accordingly, TDIU is granted. 4. Entitlement to specially adapted housing is granted. A veteran is eligible for assistance in the acquisition of housing with special features made necessary by the veteran’s service-connected disability if he or she is entitled to compensation for a permanent and total service-connected disability that is due to, as relevant here, “loss of use of one lower extremity together with residuals of organic disease or injury which so affect the functions of balance or propulsion as to preclude locomotion without the aid of braces, crutches, canes, or a wheelchair.” 38 U.S.C. § 2101 (a); see also Jensen v. Shulkin, 29 Vet. App. 66, 78-79 (2017) (finding that “loss of use” exists if a veteran has suffered a deprivation of his ability to use his lower extremity so severe that he is precluded from perambulating without of the required assistive devices and that this definition indicates that locomotion is precluded even if a veteran is capable on occasion of moving about unaided). First, the Veteran’s service-connected back disability with associated radiculopathy of the upper and lower extremities, which have been rated 100 percent disabling, are permanently and totally disabling. See, e.g., Rating Decision, Codesheet (March 2015) (showing that the Veteran’s back disability is rated 40 percent disabling and his associated radiculopathy of the right upper extremity is rated 70 percent disabling, radiculopathy of the left upper extremity is rated 60 percent disabling, and radiculopathy of the left and right lower extremities are each rated 40 percent disabling). Second, manifestations of the Veteran’s service-connected back disability and associated radiculopathies result in loss of use of his lower extremities for purposes of entitlement to specially adapted housing. In this regard, in the July 2014 VA examination for housebound status or permanent need for regular aid and attendance, a VA clinician reported that the Veteran’s back disability and associated radiculopathies impair his propulsion and ability to ambulate: explaining that he is unable to push off with his right foot and experiences lower extremity limitation of motion, weakness, paralysis, and lack of coordination. The results of the July 2014 VA examination are consistent with those of the more recent February 2015 VA examination, which shows that the back disability and associated radiculopathies result in severe impairment. Both examinations are consistent with the Veteran’s report that he requires cane or wheelchair to ambulate. See, e.g., Notice of Disagreement (December 2013). In light of Jensen v. Shulkin, the Board finds that the Veteran’s back disability and associated radiculopathies result in loss of use of the lower extremities as they sufficiently preclude ambulation without the use of assistive devices. As such, entitlement to a certificate of eligibility for assistance in acquiring specially adapted housing under 38 U.S.C. § 2101 (a) has been shown. 5. The claim of entitlement to special home adaptation grant is denied as moot. Having determined that the Veteran is eligible for assistance under 38 U.S.C. § 2101 (a) for specially adapted housing, the law precludes an award of special home adaptation grant under 38 U.S.C. § 2101 (b). Thus, his special home adaptation claim must be denied as moot. REASONS FOR REMAND 1. Entitlement to a rating in excess of 20 percent prior to February 6, 2015, and to a rating in excess of 40 percent for degenerative joint disease of the lumbar spine is remanded. In March 2013, the Social Security Administration (SSA) found that the Veteran is disabled due, in part, to his service-connected back disability. Significantly, however, the underlying medical records upon which the SSA disability decision was based have not been associated with the record. As VA examiners have found that the Veteran’s back disability and associated radiculopathies cause severe functional impairment, the outstanding SSA records likely contain evidence pertinent to the severity of the Veteran’s service-connected back disability. These records must be obtained. 38 C.F.R. § 3.159 (c)(2); see Golz v. Shinseki, 590 F.3d 1317, 1321 (Fed. Cir. 2010). Furthermore, a new VA spine examination is needed to comply with the last sentence of 38 C.F.R. § 4.59 as it pertains to testing the joints for pain on both active and passive motion, in weight-bearing and nonweight-bearing and, if possible, with the range of the opposite undamaged joint (or for an explanation as to why such testing cannot be conducted). See Correia v. McDonald, 28 Vet. App. 158, 168 (2016). The most recent VA examination, which was conducted in February 2015, does not provide this information or explanation as to why such cannot be provided. Additionally, upon remand, if the examination is not conducted during a flare-up, the VA examiner will be asked to estimate functional loss during flare-ups based on the Veteran’s description of any additional loss of function during flare-ups, information gleaned from his medical records, or discerned other sources available to the examiner. See Sharp v. Shulkin, 29 Vet. App. 26 (2017). Such information is necessary to adequately understand his additional or increased symptoms and limitations experienced during flares. Id. The matter is REMANDED for the following action: 1. Obtain complete SSA disability records for the Veteran, to include underlying medical records upon which the March 2013 SSA disability decision was based. If such records are unavailable, the Veteran’s claims file must be clearly documented to that effect and the Veteran notified in accordance with 38 C.F.R. § 3.159 (e). 2. Schedule the Veteran for an examination of the current severity of his service-connected lumbar spine disability. The examiner must test the Veteran’s active motion, passive motion, and pain with weight-bearing and without weight-bearing. The examiner must also attempt to elicit information regarding the severity, frequency, and duration of any flare-ups, and the degree of functional loss during flare-ups. 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). STEVEN D. REISS Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Joshua Castillo, Counsel