Citation Nr: 18156319 Decision Date: 12/07/18 Archive Date: 12/07/18 DOCKET NO. 95-36 519 DATE: December 7, 2018 ORDER Entitlement to service connection for type 2 diabetes mellitus is granted. Entitlement to service connection for diabetic retinopathy is granted. Entitlement to an initial rating of 50 percent for bilateral pes planus is granted. Entitlement to a rating in excess of 30 percent for chronic erosive gastritis with gastroesophageal reflux disease and hiatal hernia is dismissed. Entitlement to an effective date earlier than August 5, 2003, for the grant of service connection for a right ankle disability is denied. Entitlement to an effective date earlier than August 5, 2003, for the grant of service connection for a right knee disability is denied. Entitlement to an effective date earlier than August 5, 2003, for the grant of service connection for a left knee disability is denied. Entitlement to an effective date earlier than October 1, 2013, for the grant of service connection for bilateral pes planus is denied. Entitlement to an effective date prior to October 1991 for the grant of a 20 percent rating or a left ankle disability is denied. REMANDED Entitlement to service connection for umbilical hernia is remanded. Entitlement to service connection for prostate condition, including as secondary to a service-connected disability, is remanded. Entitlement to an initial rating in excess of 10 percent for a left knee disability prior to April 25, 2012, is remanded. Entitlement to a rating in excess of 20 percent for a left knee disability beginning April 25, 2012, is remanded. Entitlement to an initial rating in excess of 10 percent for a right knee disability prior to April 25, 2012, is remanded. Entitlement to a rating in excess of 20 percent for a right knee disability beginning April 25, 2012, is remanded. Entitlement to an initial rating in excess of 10 percent for a right ankle disability prior to April 25, 2012, is remanded. Entitlement to a rating in excess of 20 percent for a right ankle disability beginning April 25, 2012, is remanded. Entitlement to a rating in excess of 20 percent for a left ankle disability is remanded. Entitlement to a total disability rating due to individual unemployability based on service-connected disabilities (TDIU) for the period prior to June 18, 2005. Entitlement to an effective date prior to April 23, 2012, for the grant of special monthly compensation (SMC) at the housebound rate is remanded. FINDINGS OF FACT 1. The Veteran’s type 2 diabetes and related diabetic retinopathy is at least at likely as not caused in part by his functional limitations caused by service-connected musculoskeletal disabilities and/or the use of medication for his service-connected psychiatric disability. 2. During the appeal period the Veteran’s bilateral pes planus has more nearly approximated pronounced pes planus with marked pronation, extreme tenderness of plantar surfaces of the feet, marked inward displacement and severe spasm of the tendo achilles on manipulation. 3. At the February 2018 hearing before the Board, the Veteran reported that he was satisfied with the current 30 percent rating for chronic erosive gastritis with gastroesophageal reflux disease and hiatal hernia. 4. Any claim seeking service connection for a right knee, left knee or right ankle disability became final prior to August 5, 2003, became final. 5. VA did not receive a claim seeking service connection for pes planus prior to October 1, 2013. 6. The Veteran’s appeal of the initial rating assigned for a left ankle disability became final when a rating in excess of 10 percent for that disability was denied by the Board in July 1991. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for type 2 diabetes mellitus have been satisfied. 38 U.S.C. §§ 1110, 1112, 1131, 1154(a), 5107; 38 C.F.R §§ 3.102, 3.303, 3.310. 2. The criteria for entitlement to service connection for diabetic retinopathy have been satisfied. 38 U.S.C. §§ 1110, 1112, 1131, 1154(a), 5107; 38 C.F.R §§ 3.102, 3.303, 3.310. 3. The criteria for an initial 50 percent rating for bilateral pes planus have been satisfied. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.1-4.14, 4.71a, Diagnostic Code (DC) 5276. 4. The criteria for withdrawal of an appeal by the Veteran have been met regarding his appellate claim of entitlement to a rating in excess of 30 percent for chronic erosive gastritis with gastroesophageal reflux disease and hiatal hernia. 38 U.S.C. § 7105(b)(2), (d)(5); 38 C.F.R. § 20.204. 5. The criteria for entitlement to an effective date earlier than October 1, 2013, for the grant of service connection for bilateral pes planus have not been satisfied. 38 U.S.C. §§ 5108, 5110, 7104; 38 C.F.R. § 3.400. 6. The criteria for entitlement to an effective date earlier than August 5, 2003, for the grant of service connection for a right ankle disability have not been satisfied. 38 U.S.C. §§ 5108, 5110, 7104; 38 C.F.R. § 3.400. 7. The criteria for entitlement to an effective date earlier than August 5, 2003, for the grant of service connection for a right knee disability have not been satisfied. 38 U.S.C. §§ 5108, 5110, 7104; 38 C.F.R. § 3.400. 8. The criteria for entitlement to an effective date earlier than August 5, 2003, for the grant of service connection for a left knee disability have not been satisfied. 38 U.S.C. §§ 5108, 5110, 7104; 38 C.F.R. § 3.400. 9. The criteria for entitlement to an effective date prior to October 1991 for the grant of a 20 percent rating for a left ankle disability have not been satisfied. 38 U.S.C. §§ 5107, 5108, 5110, 7104; 38 C.F.R. § 3.400. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Service Connection The Board finds that service connection for type 2 diabetes and diabetic retinopathy is warranted. The evidence shows that the Veteran has had these disorders during the appeal period. The Veteran asserts that his type 2 diabetes and related diabetic retinopathy is caused at least in part by his inability to perform physical exercise as a result of his service-connected disabilities. In an August 2018 opinion, an expert in endocrinology from the Veteran’s Health Administration (VHA) opined that it was at least as likely as not that the Veteran’s type 2 diabetes was caused at least in part by his service-connected musculoskeletal disabilities and his taking of Seroquel for his service-connected psychiatric disability. The VHA expert observed that increased physical activity has been reported to be effective in preventing or delaying type 2 diabetes and is also recommended as part of the treatment regimen. The doctor further noted that the medication Seroquel has been associated to weight gain and type 2 diabetes. Moreover, in a March 2018 opinion, the Veteran’s treating endocrinologist also opined that the reduction of physical activity worsens insulin resistance and increases blood glucose levels, thus the Veteran’s reduction in physical activity due to his service-connected disabilities worsens his insulin resistance and his blood glucose control. The Board finds the opinions of the VHA expert and treating physician opinion highly probative as they contain clear conclusions with supporting data and a reasoned medical explanation connecting the two. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 301 (2008). The Board notes the negative nexus opinions of record; however, as the evidence of record is at least in equipoise on this issue, entitlement to service connection is warranted. 38 C.F.R. § 3.310; Allen v. Brown, 7 Vet. App. 439, 448 (1995) (en banc).   Increased Ratings Pes Planus The Veteran seeks a higher initial rating for his bilateral pes planus, which is currently rated at 30 percent disabling under Diagnostic Code (DC) 5276. A maximum 50 percent disability rating is warranted if the disorder is pronounced with marked pronation, extreme tenderness of plantar surfaces of the feet, marked inward displacement and severe spasm of the tendo achilles on manipulation, not improved by orthopedic shoes or appliances. 38 C.F.R. § 4.71a, DC 5276. Resolving all reasonable doubt in favor of the Veteran, the Board finds that the criteria for an initial 50 percent rating for pes planus have been more nearly approximated during the appeal period in light of his pain, tenderness, and marked pronation not improved by orthotics. As the Veteran has stated that a grant of a 50 percent rating for pes planus would satisfy his appeal (February 2018 Hearing Tr. at 44), the Board need not address whether a rating in excess of 50 percent is warranted. See AB v. Brown, 6 Vet. App. 35, 38 (1993). Gastrointestinal Disability At the April 2018 hearing before the Board, the Veteran reported that he was satisfied with the 30 percent rating for chronic erosive gastritis with gastroesophageal reflux disease and hiatal hernia. See February 2018 Hearing Tr. at 53. The Board interprets this statement as a withdrawal of his appeal as to this issue. As such, the appeal with regard to this issue is dismissed. See AB, supra; 38 C.F.R. § 20.204. Effective Dates The Veteran seeks an effective date prior to August 5, 2003 for the grant of service connection for his right knee, left knee and right ankle disabilities. He also seeks an effective date earlier than October 1, 2013, for the grant of service connection for bilateral pes planus, and effective date prior to October 3, 1991 for the establishment of a 20 percent rating for his left ankle disability. The Board finds that the effective dates assigned are correct and that no earlier effective date is warranted. Service Connection for Pes Planus The Veteran contends that he should be granted service connection for pes planus effective the day following his separation from service because he has had this condition since that time. Unless specifically provided otherwise in the statute, the effective date of an award based on an original claim for compensation benefits shall be the date of receipt of the claim or the date entitlement arose, whichever is later. 38 U.S.C. § 5110(a); 38 C.F.R. § 3.400. The effective date of an award of disability compensation shall be the day following separation from service or the date entitlement arose if the claim is received within one year of separation, otherwise the date of claim or the date entitlement arose, whichever is later. 38 U.S.C. § 5110(b); 38 C.F.R. § 3.400(b)(2). Here, the first time a claim for entitlement to service connection for pes planus was received by VA was when this issue was raised by the Veteran’s representative in an October 1, 2013, brief submitted to the Board. The RO granted service connection effective this date. The Board notes the Veteran’s contentions that he should be granted service connection for pes planus at an earlier time because it manifested prior to October 2013 and that he previously asserted a claim for a left foot disability. He contends that a claim seeking service connection for a right ankle and left foot disability were raised in 1993 and has remained pending since that time. See April 2018 Correspondence. He asserts that these issues were addressed in an August 1992 VA examination, that a claim was asserted at that time or in 1993, and remained unadjudicated until the Board granted service connection. See Id. He also asserts that a claim was raised by a January 25, 1982 VA examination and November 1981 podiatry report. See Id. The Veteran has failed to point to any communication prior to October 2013 that evidences an intention to seek compensation benefits for a foot disability. To the extent that the Veteran asserts that a claim was raised by a medical record or examination report, these documents may only be construed as informal claims for an increased rating under the former 38 C.F.R. 3.157(b) or when a claim disallowed for the reason that the service-connected disability was not compensable in degree. Cf. MacPhee v. Nicholson, 459 F.3d 1323, 1328 (Fed. Cir. 2006) (holding that VA medical records did not constitute an informal claim for benefits pursuant to § 3.157 because service-connection was not in effect for the disability at issue); cf. Crawford v. Brown, 5 Vet. App. 33, 35-36 (1993) (holding that § 3.157 did not apply because there had not been a prior allowance or disallowance of a formal claim for compensation or pension). Examination reports could not be construed as informal claims for entitlement to service connection unless they otherwise met the requirements of an informal claim. See Brokowski v. Shinseki, 23 Vet. App. 79, 84 (2009) (stating that the essential elements for any claim, whether formal or informal, are (1) an intent to apply for benefits, (2) an identification of the benefits sought, and (3) a communication in writing). The evidence shows that the Veteran asserted a claim for an increased rating for his left ankle in June 1992. He did not assert a claim for compensation relating to a right or left foot disorder at that time. He underwent a VA examination in connection with his claim in August 1992 that noted his complaints concerning his ankles, knees, back and feet; however, there is no indication in that record that the Veteran was seeking service connection for a knee, foot or back disability. In an October 1992 rating decision, his left ankle disability rating was increased to 20 percent. In a September 1993 correspondence, the Veteran stated that his “service connected disability (left and right ankle) developed arthritis” and that he sought to have the percentage of his service connected disability increased. There was no mention of a left or right foot disorder in that correspondence. In an August 1994 written statement, the Veteran “expanded” his claim to include a claim for a TDIU. His application for a TDIU (VA Form 21-8940) listed “left ankle and right ankle” as the disabilities that prevented him from working in a substantially gainful occupation. Again, there was no mention of a right or left foot disability in either of these documents. Thus, the Board finds that no claim seeking service connection for a right or left foot disorder was received by VA in 1993. Moreover, an effective date of an award of service connection is not based on the earliest medical evidence showing that the claimant has a condition related to service (or a service-connected condition), but on the date that the claimant’s application for service connection was received by VA. Lalonde v. West, 12 Vet. App. 377, 382 (1999). Because the Veteran did not file a formal or informal application for service connection for pes planus or another foot disorder prior to October 1, 2013, VA is precluded, as a matter of law, from granting an earlier effective date for the grant of service connection for this disability. As such, the appeal as to this issue must be denied because the RO has already assigned the earliest possible effective date provided by law. Right Knee, Left Knee, and Right Ankle The Veteran contends that he should be granted service connection for his right knee, left knee and right ankle disabilities as of January 1989. He asserts that entitlement to service connection for right and left knee disorders and a right ankle disorder was raised in a January 1989 written statement in which he stated that he reported to a VA examiner that both his knees and right foot were causing him problems because he “favors” his left ankle and places more weight on the right ankle. The Veteran stated in that correspondence that he felt these symptoms should be considered in addressing the proper rating for his left ankle disability. Even assuming that the Veteran’s January 1989 correspondence raised a claim seeking compensation benefits for bilateral knee and right ankle disabilities, the Board finds that these matters were previously adjudicated and became final. In a May 30, 1989 correspondence, the Veteran specifically sought service connection for a right lower extremity disorder as secondary to his service-connected left ankle disability. That claim was ultimately denied by the Board in a July 1991 decision, as was the Veteran’s claim for an increased rating for his left ankle disability. Although a claim of entitlement to service connection for a left knee disability was not specifically adjudicated, such a claim was implicitly denied by the Board in the July 1991 decision. “It is well established, however, that in certain circumstances, pursuant to the implicit denial doctrine, a claim for benefits will be deemed to have been denied, and thus finally adjudicated, even if VA did not expressly address that claim in its decision.” Cogburn v. Shinseki, 24 Vet. App. 205, 210 (2010) citing Adams v. Shinseki, 568 F.3d 956, 961 (Fed. Cir. 2009) (internal quotations omitted); Ingram v. Nicholson, 21 Vet. App. 232, 240 (2007). The Court in Ingram determined that where a decision discusses a claim in terms sufficient to put the claimant on notice that it was being considered and rejected, then it constitutes a denial of that claim even if the formal adjudicative language does not “specifically” deny that claim. Id. The key question in the “implicit denial” inquiry is whether it would be clear to a reasonable person that VA’s action that expressly refers to one claim is intended to dispose of others as well. Adams, 568 F.3d at 962-963. In Cogburn v. Shinseki, 24 Vet. App. 205 (2010), the Court listed four factors that must be considered when determining whether a claim was implicitly denied: (1) the specificity or relatedness of the claims (e.g., is the claim for a generalized set of symptoms, a specifically diagnosed disorder, or two (or more) specifically diagnosed disorders that are closely related); (2) whether the adjudication alluded to the pending claim in such a way that it could reasonably be inferred that the prior claim was denied; (3) the timing of the claims (e.g., were the claims filed in the same application, within a short period of time from each other, etc.); and (4) whether the claimant is represented. Id. at 212-214. Although the July 1991 Board decision did not explicitly deny service connection for a left knee disability, consideration of the Cogburn factors leads to a finding that such a claim was implicitly denied in the July 1991 Board decision. The Veteran was not represented by an attorney, but an analysis of the remaining factors shows that it would be clear to a reasonable person that VA was not granting benefits for a left knee disability. The Veteran contends that he raised the issue of entitlement to compensation for a left knee disability at the same time he sought an increased rating for his left ankle disability and service connection for a right leg disability. The July 1991 Board decision noted that the Veteran was seeking service connection for a right leg disability and the assignment of a higher evaluation for his left ankle disability. The Board denied service connection for a right leg disability and denied a rating in excess of 10 percent for the left ankle disability despite the Veteran’s assertions that his left ankle disability affected the function of his left lower extremity. In the July 1991 decision, the Board noted the Veteran’s assertions that he required an assistive device because of the pressure on his left leg and that his left leg was placed in a cast. The Board also addressed the Veteran’s October 1989 hearing testimony concerning his left and right leg symptoms. The Board finds that it provided enough information in its July 1991 decision for the Veteran to reasonably know that he was not being assigned a higher or separate rating for his left knee symptoms. See Ingram, supra. Thus, the relatedness, timing and specificity of the adjudication factors in Cogburn all support a finding that the implicit denial doctrine would apply, and that no claim seeking entitlement to service connection for a left knee disability remained pending. The Veteran further contends that a claim seeking service connection for a right ankle disability was raised in 1993 and has remained pending since that time. See April 2018 Correspondence. The Veteran’s claim seeking service connection for a right ankle disability was denied in a May 1995 rating decision that became final as to this issue. Although the Veteran submitted a notice of disagreement (NOD) with the continuation of the 20 percent rating assigned for his left ankle disability, he did not disagree with the denial of service connection for a right ankle disability or identify that decision as one that he wanted to appeal. See August 1995 NOD. Under the law, the effective date for a grant of service connection on the basis of the receipt of new and material evidence following a final prior disallowance is the date of receipt of the application to reopen, or the date entitlement arose, whichever is later. 38 U.S.C. § 5110; 38 C.F.R. § 3.400. After the issuance of the July 1991 Board decision and the May 1995 rating decision, VA did not receive a communication from the Veteran in which he sought to reopen his claims or seek service connection for right and left knee disabilities and a right ankle disability until August 5, 2003. As such, the RO assigned the earliest possible effective date for its grant of the reopened claims, which as noted above was received by VA on August 5, 2003. See Leonard v. Nicholson, 405 F.3d 1333 (Fed. Cir. 2005); Sears v. Principi, 349 F.3d 1326 (Fed. Cir. 2003). Because the Veteran’s bilateral knee and right ankle disabilities were caused by his service-connected left ankle disability, service connection was established. It does not follow, however, that because service connection is warranted that the effective date of service connection be the day following service or the date he filed his original claim because doing so would render meaningless many of the provisions of 38 U.S.C. § 5110 and 38 C.F.R. § 3.400. Indeed, in Sears, the United States Court of Appeals for the Federal Circuit (Federal Circuit) held that pursuant to 38 C.F.R. § 3.400(q), which it declared was a valid gap-filling regulation, there was no conflict between 38 U.S.C. §§ 5108 and 5110, and thus the earliest possible effective date of service connection for a reopened claim was the date the reopened claim was received. Id. at 1332. Thus, under the law, there is no basis to assign an earlier effective date for service connection for a right knee or left knee disability, or a right ankle disability. Increased Rating for Left Ankle Disability Under the applicable provisions, the effective date of an award of increased compensation shall be the date of receipt of claim or the date entitlement arose, whichever is later. 38 C.F.R. § 3.400 (o)(1). An exception to this general rule exists where the evidence of record shows that the increase took place within one year prior to the date the claim is received. In those instances, the appropriate effective date is the earliest date as of which it is factually ascertainable that an increase in disability had occurred, but only if the claim for an increase is received within one year from such date. See 38 U.S.C. § 5110 (b)(3); see also 38 C.F.R. § 3.400 (o)(2); Gaston v. Shinseki, 605 F.3d 979, 980 (Fed. Cir. 2010). Otherwise, the effective date for an award of increased compensation will be the date of receipt of claim or the date entitlement arose, whichever is later. See 38 U.S.C. § 5110 (a); see also 38 C.F.R. § 3.400 (o)(1); Swain v. McDonald, 27 Vet. App. 219, 224 (2015) (holding that the effective date for an increased rating is predicated on when the increase in the disability can be ascertained). Accordingly, in order to determine the appropriate effective date to be assigned, the Board must determine (1) the date the claim for an increased rating was received by VA and (2) the earliest date as of which it is factually ascertainable that an increase in disability had occurred. See Swain, 27 Vet. App. at 224. The Veteran here asserts that he submitted a timely NOD to the initial rating assigned for his left ankle disability, and thus seeks an earlier effective date for this left ankle disability. In a November 2011 decision, the Board determined that the Veteran had submitted a timely NOD to the March 1981 rating decision challenging the initial rating assigned for his left ankle disability. Nevertheless, the Board notes that after the issuance of the March 1981 rating decision and the Veteran’s NOD, the RO denied a rating in excess of 10 percent for his left ankle disability in rating decisions issued in April 1987 and April 1989. The Veteran also appealed these determinations, and in a July 1991 decision, the Board denied a rating in excess of 10 percent for a left ankle disability. Thus, any appeal of the initial rating assigned in the March 1981 rating decision became final by way of the July 1991 Board decision addressing that issue. Consequently, an effective date prior to June 1991 is precluded as a matter of law. To the extent that the Veteran has asserted that he is entitled to revision of the March 1981 rating decision on the basis of clear and unmistakable error (CUE) pursuant to 38 C.F.R. § 3.105, the Board finds that such a claim also fails because the March 1981 rating decision was subsumed by the July 1991 Board decision. A rating decision that is subsumed by a Board decision is not subject to revision or reversal on the basis of CUE. Brown v. West, 203 F.3d 1378, 1381 (Fed. Cir. 2000)). To reverse a rating decision that has been subsumed by a Board decision, the Veteran must collaterally attack the Board decision. Id. To date, the Veteran has not submitted a motion seeking revision of the December 1983 Board decision on the basis of CUE. 38 C.F.R. § 20.1404. Thus, to the extent the Veteran seeks revision of the March 1981 rating decision on the basis of CUE, the Board finds that such a claim must be denied. The Board further finds that the first evidence of record from which an increase in the Veteran’s left knee disability can be factually ascertained is the October 3, 1991, outpatient treatment record. The Veteran has not identified any record prior to this date (and within the one-year look-back period) evidencing an increase in his left ankle symptoms. Thus, the Board finds that an effective date prior to October 3, 1991, for the grant of a 20 percent rating for a left ankle disability is warranted. REMANDED ISSUES The remaining service connection claims are remanded for medical opinions addressing whether the Veteran’s umbilical hernia or prostate condition is caused or aggravated by his now service-connected type 2 diabetes or any complication of that disease. The Board finds that the Veteran’s claims seeking higher ratings must be remanded for recent medical records to be associated with the file and so that new VA examinations can be performed addressing the current severity of his conditions, including any functional loss during flare ups. The issues of entitlement to a TDIU prior to June 18, 2005, and entitlement to an earlier effective date for the grant of SMC at the housebound rate are remanded as intertwined with increased rating issues. Harris v. Derwinski, 1 Vet. App. 180, 183 (1991). The matters are REMANDED for the following action: 1. Obtain all outstanding VA medical records and ask the Veteran to provide authorizations for any private medical records he would like considered in connection with his appeal. 2. Ask the Veteran to complete an update VA Form 21-8940 Veterans Application for Increased Compensation Based on Unemployability covering the period prior to June 18, 2005. To the extent that the Veteran contends that any employment during the relevant period was marginal or not substantially gainful, the Veteran should be asked to provide information concerning his earnings during such periods, such as tax returns or Social Security income statements. 3. Schedule the Veteran for the appropriate VA examinations to address claims for service connection for an umbilical hernia or prostate condition. The examiner should opine whether it is at least as likely as not that the Veteran umbilical hernia or prostate condition (1) had an onset in service, (2) is related to an injury or disease incurred in service, (3) is caused by a service-connected disability (to include the now service-connected type 2 diabetes), or (4) is aggravated by a service-connected disability. The examiner should consider and address April 2016 and May 2016 opinions of Dr. Craig that the Veteran had abdominal pain from a diagnosed earlier periumbilical hernia in 1980 with in the Army, and that his later work as a letter carrier and his weight gain due to lack of exercise (caused by service-connected musculoskeletal disabilities) exacerbated this condition. 4. Schedule the Veteran for an examination by an appropriate clinician to determine the current severity of his service-connected left ankle, right ankle, left knee and right knee disabilities. 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. For the Veteran’s orthopedic disabilities, the examiner should conduct all indicated tests and studies, to include range of motion studies. The joints involved should be tested in both active and passive motion, in weight-bearing and non-weight-bearing and, if possible, with range of motion measurements of the opposite undamaged joint. If the examiner is unable to conduct the required testing or concludes that the required testing is not necessary in this case, he or she should clearly explain why that is so. The examiner should describe any pain, weakened movement, excess fatigability, instability of station and incoordination present. The examiner should also state whether the examination is taking place during a period of flare-up or after repeated use over time. If not, the examiner should ask the Veteran to describe the flare-ups he experiences, including: frequency, duration, characteristics, precipitating and alleviating factors, severity and/or extent of functional impairment he experiences during a flare-up of symptoms and/or after repeated use over time. Based on the Veteran’s lay statements and the other evidence of record, the examiner should provide an opinion estimating any additional degrees of limited motion caused by functional loss during a flare-up or after repeated use over time. A rationale should be provided. If the examiner cannot estimate the degrees of additional range of motion loss during flare-ups or after repetitive use without resorting to speculation, the examiner should state whether the need to speculate is caused by a deficiency in the state of general medical knowledge (i.e. no one could respond given medical science and the known facts) or by a deficiency in the record or the examiner (i.e. additional facts are required, or the examiner does not have the needed knowledge or training). STEVEN D. REISS Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Tracie N. Wesner, Counsel