Citation Nr: 18158173 Decision Date: 12/14/18 Archive Date: 12/14/18 DOCKET NO. 17-10 948A DATE: December 14, 2018 ORDER New and material evidence having been received, the petition to reopen the claim of service connection for a heart disability is granted. New and material evidence having been received, the petition to reopen the claim of service connection for loss of a creative organ and post-operative residuals of a hysterectomy is granted. New and material evidence having been received, the petition to reopen a claim of service connection for a skin disability is granted. New and material evidence having been received, the petition to reopen a claim of service connection for a lumbar spine disability is granted. Service connection for loss of a creative organ and post-operative residuals of a hysterectomy, including as secondary to service-connected uterine fibroids, is granted. An effective date earlier than February 7, 2013, for the grant of service connection for depressive disorder is denied. An effective date earlier than February 7, 2013, for the grant of service connection for a left foot disability is denied. An effective date earlier than February 7, 2013, for the grant of service connection for a right foot disability is denied. REMANDED Entitlement to service connection for tinnitus, including as secondary to a right and/or left ear disability, is remanded. Entitlement to service connection for a left and/or right ear disability is remanded. Entitlement to service connection for a heart disability is remanded. Entitlement to service connection for hypertension is remanded. Entitlement to service connection for a skin disability is remanded. Entitlement to service connection for diabetes mellitus, type II, is remanded. Entitlement to service connection for a lumbar spine disability is remanded. Entitlement to an earlier effective date and rating in excess of 10 percent for a left knee disability is remanded. Entitlement to an earlier effective date and a rating in excess of 10 percent for a right knee disability is remanded. Entitlement to an earlier effective and a rating in excess of 10 percent for a left ankle disability is remanded. Entitlement to an initial rating in excess of 10 percent from June 26, 2013, and a compensable rating prior to June 26, 2013, for a left foot disability is remanded. Entitlement to an initial compensable rating for a right foot disability is remanded. Entitlement to an earlier effective date and compensable disability rating for fibrocystic breast disease is remanded. Entitlement to an initial disability rating in excess of 10 percent from January 5, 2017, and a compensable rating prior to January 5, 2017, for headaches is remanded. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) is remanded. FINDINGS OF FACT 1. In a June 2006 rating decision, the Regional Office (RO) denied service connection for a skin disability, post-operative residuals of a hysterectomy, heart disability, and back disability. The Veteran did not file a notice of disagreement (NOD) and no new and material evidence was received within the appeal period. 2. The evidence received since the June 2006 rating decision is not duplicative or cumulative of evidence previously of record and it raises the reasonable possibility of substantiating the Veteran’s claim of service connection for a skin disability, post-operative residuals of a hysterectomy, heart disability, and back disability. 3. The evidence is at least in equipoise as to whether the Veteran’s loss of a creative organ and post-operative residuals of a hysterectomy are proximately due to or the result of her service-connected uterine fibroids. 4. Entitlement to service connection for posttraumatic stress disorder (PTSD), including depression, was denied in a June 2006 rating decision. The Veteran was notified of this denial and her procedural rights in a letter dated in June 2006. She did not submit a Notice of Disagreement (NOD) and no new and material evidence was received within one year of the June 2006 rating decision. 5. The Veteran re-filed her claim of service connection for depression in February 2013. Service connection was ultimately awarded and a noncompensable rating was assigned, effective February 7, 2013; a 10 percent rating was assigned, effective January 5, 2017. 6. The Veteran filed a claim of service connection for right and left foot disabilities in February 2013. Service connection was ultimately awarded and a noncompensable rating was assigned for the left and right foot disabilities, respectively, effective February 7, 2013, and a 10 percent disability rating was awarded for the left foot disability, effective June 26, 2013. There is no evidence that the Veteran filed a claim of service connection for a left or right foot disability prior to February 7, 2013. CONCLUSIONS OF LAW 1. The criteria for reopening the claim of service connection for a heart disability, post-operative residuals of a hysterectomy, skin disability, and lumbar spine disability have been met. 38 U.S.C. §§ 5108, 7105; 38 C.F.R. §§ 3.156, 20.302, 20.1103. 2. The criteria for service connection for loss of a creative organ and post-operative residuals of a hysterectomy, to include as secondary to service-connected uterine fibroids, have been met. 38 U.S.C. §§ 1110, 1116, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.310(a). 3. The criteria for an effective date prior to February 7, 2013, for the grant of service connection for depressive disorder, left foot disability, and right foot disability have not been met. 38 U.S.C. §§ 5101, 5107, 5110; 38 C.F.R. §§ 3.1, 3.102, 3.151, 3.159, 3.160, 3.400. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active duty service from December 1974 to July 1978 and from May 1980 to January 1995. These matters come before the Board of Veterans’ Appeals (Board) on appeal from May 2012 and July 2014 rating decisions issued by a Department of Veterans Affairs (VA) Regional Office (RO). In the May 2012 rating decision, the RO, in pertinent part, assigned a 10 percent disability rating for the Veteran’s service-connected right and left knee disabilities, respectively. The Veteran re-filed a claim for increased ratings for her bilateral knee disability in February 2013, which was within one year of the May 2012 rating decision. Accordingly, the Board construes the February 2013 claim as a Notice of Disagreement (NOD). In the July 2014 rating decision, the RO, in relevant part, granted service connection for a mental disability, including depression, anxiety, and sleep disorders, and assigned a noncompensable rating, effective February 7, 2013; granted service connection for a left and right foot disability and assigned a noncompensable rating, effective February 7, 2013, respectively; continued the 10 percent disability rating for the left ankle; continued the 10 percent disability ratings for left and right knee disability, respectively; continued the noncompensable rating for fibrocystic breast disease; denied service connection for a disability manifested by trouble with the ears, tinnitus, headaches, heart disability, skin disability, diabetes, high blood pressure, loss of creative organ; and, continued its previous denial of service connection for a back disability because the evidence submitted was not new and material. In a March 2017 rating decision, the RO, in pertinent part, increased the disability rating to 10 percent for the Veteran’s service-connected left foot disability, effective June 26, 2013, and increased the disability rating for unspecified depressive order to 10 percent, effective January 5, 2017. In Rice v. Shinseki, 22 Vet. App. 447 (2009), the Court of Appeals for Veterans Claims (Court) held that a claim for a TDIU due to a service connected disability is part and parcel of an increased rating claim for that disability when raised by the record. In the present case, VA examinations dated in April 2014 and December 2016 indicate that the Veteran’s bilateral knee and left ankle disabilities impact her ability to work. Furthermore, a June 2018 private opinion indicates that her service-connected disabilities prevent her from maintaining gainful work. Accordingly, the issue of entitlement to a TDIU is before the Board. See Roberson v. Principi, 251 F.3d 1378, 1384 (2001) (“[O]nce a veteran submits evidence of a medical disability and makes a claim for the highest rating possible, and additionally submits evidence of unemployability, the VA must consider... TDIU.”). Lastly, the Board notes that the Veteran has filed substantive appeals for the issues of an earlier effective date and increased rating for scar of the left foot, an earlier effective date and increased rating for scars of the left foot, ankle and right knee, and earlier effective date and increased rating for migraines. However, these issues have not been certified to the Board. Accordingly, these issues will be adjudicated in a separate decision. New and Material Applicable law provides that a final decision cannot be reopened unless new and material evidence is presented. 38 U.S.C. § 5108. New evidence means existing evidence not previously submitted to agency decision makers. 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. 38 C.F.R. § 3.156(a). 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. Id. The credibility of the evidence is presumed in determining whether new and material evidence has been submitted. Justus v. Principi, 3 Vet. App. 510, 513 (1992). The threshold for determining whether new and material evidence raises a reasonable possibility of substantiating a claim is “low.” See Shade v. Shinseki, 24 Vet. App. 110, 117 (2010). Moreover, in determining whether this low threshold is met, consideration need not be limited to consideration of whether the newly submitted evidence relates specifically to the reason why the claim was last denied, but instead should ask whether the evidence could reasonably substantiate the claim were the claim to be reopened, either by triggering the VA’s duty to assist or through consideration of an alternative theory of entitlement. Id. at 118. Whether new and material evidence has been received to reopen claims of service connection for a heart disability, post-operative residuals of a hysterectomy, skin disability, and lumbar spine disability In the present case, the claims of service connection for residuals of a hysterectomy, heart disability, skin disability, and back disability were denied in a June 2006 rating decision. The claim of service connection for residuals of hysterectomy and back were denied because there was no evidence that these disabilities were related to service. The issue of service connection for a heart disability was denied because there was no evidence of a chronic heart disability related to service and the issue of service connection for a skin disability was denied because there was no evidence of a skin disability unrelated to surgery or onychomycosis of the left third fingernail. The evidence of record at the time of the June 2006 rating decision consisted of the claim form, service treatment records, DD Form 214, military personnel records, and a VA examination for a skin disability. Since the June 2006 rating decision, VA treatment records, statements from the Veteran and her representative, and an April 2011 VA examination have been associated with the claims file. After a review of the evidence, the Board finds that new and material evidence has been received to reopen the claims of service connection for residuals of a hysterectomy, heart disability, skin disability, and back disability. The evidence is new, as it was not part of the record at the time of the June 2006 rating decision. It is also material as it relates to an unestablished fact necessary to substantiate the claim. Specifically, an April 2011 VA examination and March 2012 treatment note assessed the Veteran with status post hysterectomy secondary to uterine fibroids. With regard to the heart disability, additional VA treatment records reveal chronic coronary artery disease and an assessment of minimal mitral valve insufficiency. Moreover, the Veteran was assessed with skin disabilities in October 2014 and September 2015, including idiopathic guttate hypomelanosis, acanthosis nigricans, and acne. Lastly, a July 2014 VA treatment note revealed the Veteran’s complaints of chronic lower back pain since 1992 while she was serving in the military. The newly added evidence suggests that the Veteran has a chronic heart disability, has a present skin disability, her hysterectomy was related to her service-connected uterine fibroids, and that her back disability commenced in service. Accordingly, the evidence is new and material and the claim of service connection for residuals of a hysterectomy, heart disability, skin disability, and back disability are reopened. Service Connection Service connection will be granted for a disability resulting from disease or injury incurred in or aggravated by active military service. 38 U.S.C. § 1110; 38 C.F.R. §3.303(a). To establish service connection the evidence must show: (1) a present disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service. Shedden v. Principi, 381 F. 3d 1163, 1167 (Fed. Cir. 2004). Secondary service connection may be granted for a disability, which is proximately due to, the result of, or aggravated by, an established service connected disorder. 38 C.F.R. § 3.310; Allen v. Brown, 7 Vet. App 439, 449 (1995). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall resolve reasonable doubt in favor of the claimant. 38 U.S.C. § 5107 (2012); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Entitlement to service connection for loss of a creative organ and post-operative residuals of a hysterectomy, including as secondary to service-connected uterine fibroids The Veteran asserts that service connection is warranted for loss of her creative organ and residuals of a hysterectomy, to include as secondary to her service-connected uterine fibroids. She underwent a total abdominal hysterectomy with a bilateral salpingo-oophorectomy in April 2005. Thus, a present disability has been established by the evidence. The Veteran’s service treatment records reveal that she was found to have a mildly enlarged right ovary in December 1982. The Veteran subsequently complained of cramping and pelvic pain. In May 1994 she complained of pain in her right fallopian tube and noted a history of tubal ligation. As such, an in-service incurrence has been shown. Following discharge from service, the Veteran was found to have a fibrotic uterus with multiple fibrotic masses and was advised in September 1995 that she may need a hysterectomy in the future. She was ultimately service-connected for uterine fibroids. Thus, the remaining question is whether the Veteran’s total hysterectomy is related to her service and/or secondary to her service-connected uterine fibroids. The Veteran underwent a VA examination in June 2005. The examiner concluded that her total abdominal hysterectomy was necessitated by uterine fibroids. However, the bilateral salpingo-oophorectomy was not caused by the uterine fibroids. The Veteran underwent a VA examination in April 2011. The examiner noted that the Veteran’s medical history included a status post total abdominal hysterectomy with bilateral salpingo-oophorectomy, which was secondary to uterine fibroids. The Veteran’s March 2012 treatment records noted a past medical history and current diagnosis of status post complete hysterectomy in 2005, secondary to uterine fibroids. After a review of the evidence, the Board finds that the evidence is at least in equipoise as to whether the Veteran’s status post total abdominal hysterectomy with bilateral salpingo-oophorectomy is secondary to her service-connected uterine fibroids. In this regard, the June 2005 examiner, April 2011 examiner, and March 2012 VA treatment records noted that the Veteran’s hysterectomy was secondary to her uterine fibroids. The Board acknowledges that the June 2005 examiner indicated that the bilateral salpingo-oophorectomy procedure was not caused by the uterine fibroids. However, the examiner failed to provide a rationale as to how the hysterectomy was necessitated by the uterine fibroids but not linked to the bilateral salpingo-oophorectomy procedure. Furthermore, the April 2011 examiner noted that both procedures, the total abdominal hysterectomy with bilateral salpingo-oophorectomy, were secondary to her uterine fibroids. As the April 2011 opinion was not fully clear as to whether the hysterectomy residuals had been caused by, or aggravated by the service-connected uterine fibroids the Board will take the more liberal interpretation of causation, obviating the need to establish a baseline level of disability. Based on the above evidence, and resolving any reasonable doubt in the Veteran’s favor, the Board finds that the evidence is in equipoise and the benefit of the doubt is given to the Veteran. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. Accordingly, service connection for loss of a creative organ and post-operative residuals of a hysterectomy, to include proximately due to her service-connected uterine fibroids, is warranted. 38 C.F.R. §§ 3.102, 3.310(a). Effective Dates It is well established that the effective date for a reopened claim, after a final adjudication, shall be the date of receipt of the new claim or the date entitlement arose, whichever is later. See Nelson v. Principi, 18 Vet. App. 407, 409 (2004); Leonard v. Principi, 17 Vet. App. 447, 451 (2004); Sears v. Principi, 16 Vet. App. 245, 247 (2002), aff’d, 349 F. 3d 1326 (Fed. Cir. 2003); see also Lapier v. Brown, 5 Vet. App. 215, 216-17 (1993) (holding that an award granted on a reopened claim may not be made effective prior to the date of receipt of the claim). Entitlement to an effective date prior to February 7, 2013, for the grant of service connection for depressive disorder, left foot disability, and right foot disability In the present case, the Veteran filed a claim of service connection for depression in November 2004. This issue was adjudicated in a final rating decision in June 2006. The Veteran was notified of this decision and her appellate and procedural rights in a letter dated in June 2006. There was no new and material evidence received within the one-year appeal period. Thus, the decision denying service connection for depression became final. 38 U.S.C. § 7105(c); 38 C.F.R. §§ 3.156(b), 20.302, 20.1103; Bond v. Shinseki, 659 F.3d 1362, 1367-68 (Fed. Cir. 2011). Subsequently, the Veteran re-filed her claim of service connection for a psychiatric disability and the RO received it on February 7, 2013. Service connection for a mental disability, including depression, anxiety, and sleep disorders, was granted in a July 2014 rating decision, effective February 7, 2013. Based on the procedural history as noted above, the Board finds that an earlier effective date for the award of service connected for a mental disability, including depression, is not warranted. With regard to the issues of an earlier effective date for service-connection for a left and right foot disability, the Board likewise finds that an earlier effective date is not warranted. In this regard, the Veteran initially filed a claim of service connection for a bilateral foot disability on February 7, 2013. There is no evidence that she filed a claim for service connection for a right and/or left foot disability prior to this date. Service connection for left and right foot disabilities was awarded in a July 2014 rating decision, effective February 7, 2013. Thus, the Board finds that an earlier effective date is not warranted. REASONS FOR REMAND 1. Entitlement to service connection for diabetes mellitus, type II is remanded; 2. Entitlement to an earlier effective date and compensable disability rating for fibrocystic breast disease is remanded; 3. Entitlement to an initial disability rating in excess of 10 percent from January 5, 2017, and a compensable rating prior to January 5, 2017, for unspecified depressive disorder is remanded. At the outset, the Board notes that the Veteran indicated that she was receiving disability benefits from the Social Security Administration (SSA) for mental and physical disabilities. See e.g., 07/09/2018, Medical Treatment Record- Government Facility, p. 47. Thus, the Board finds that a remand is warranted for the remaining issues in order for the RO to obtain and associated the SSA records with the claims file. Furthermore, the Board notes that the claims file and Regional Office (RO) indicated that the Veteran had active duty service from December 1974 to July 1978 and from May 1980 to January 1995. However, only the Veteran’s DD Form 214 for the periods of December 1974 to July 1978, May 1980 to September 1984, and March 1991 to January 1995 are associated with the claims file. The DD Form 214 for the period of September 1984 to March 1991 is not associated with the claims file. Accordingly, the Board finds that a remand is warranted for the remaining issues of service connection in order for the RO to obtain and associate the additional DD Form(s) 214 with the claims file. 4. Entitlement to service connection for tinnitus, including as secondary to bilateral ear disability, is remanded; 5. Entitlement to service connection for a bilateral ear disability is remanded. The Veteran complained of left ear pain and was diagnosed with otitis media while in service. She underwent a VA examination in July 2014, at which time she was diagnosed with a small pustule left auricle and tinnitus attributable to this diagnosis. Furthermore, the examiner indicated that she had dry skin of the right auricle. The Veteran relayed that the problems with her ears started in service and come and go every 3 to 4 months. Furthermore, she indicated that she applied peroxide with a Q-tip but received no medical evaluation or treatment throughout the years. The examiner ultimately concluded that that it was less likely than not that the Veteran’s ear disability was incurred in service because there was no medical documentation of a chronic ear condition while on active military or since retirement. The Board finds that July 2014 examination is insufficient to determine the present claim. In this regard, the examiner conclusively determined that the Veteran’s ear disability was not incurred in service because there were no documented complaints of a chronic ear condition without taking into account or discussing her lay statements of continued ear pain in service and post-service and her self-treatment with peroxide. Accordingly, the Board finds that a new VA examination is warranted in order to assess the nature and etiology of any ear disability and associated tinnitus. 6. Entitlement to service connection for a heart disability is remanded; 7. Entitlement to service connection for hypertension is remanded; 8. Entitlement to service connection for a skin disability is remanded; 9. Entitlement to service connection for a lumbar spine disability is remanded. The Veteran’s service treatment records reveal complaints of a rash on her low back, right thigh, hip, and lower abdomen in July 1980. Furthermore, throughout service, the Veteran complained of chest pain and difficulty breathing. Lastly, the Veteran indicated that her lower back pain commenced while in service in 1992. Throughout the rating period on appeal, the Veteran has been assessed with disc degenerative disease of the lumbar spine, hypertension, coronary artery disease with a history of a stent in 2001, minimal mitral valve insufficiency, and idiopathic guttate hypomelanosis, acanthosis nigricans, and acne. Given that the Veteran has present disabilities that may be related to service, the Board finds that VA examinations are warranted in order assess the nature and etiology of her heart disability, hypertension, skin disability, and lumbar spine disability. 10. Entitlement to an earlier effective date and rating in excess of 10 percent for a left knee disability is remanded; 11. Entitlement to an earlier effective date and a rating in excess of 10 percent for a right knee disability is remanded. VA examinations were performed in April 2011 and December 2016 for the Veteran’s claim of an increased rating for her service-connected right and left knee disabilities. However, the Board finds that these examinations are inadequate. In this regard, the Veteran reported flare-ups during the April 2011 examination. However, the examiner did not estimate the motion loss in terms of degrees during periods of flare-ups. Furthermore, the December 2016 examiner indicated that he was unable to render an opinion regarding additional motion loss in terms of degrees of lost motion because the Veteran was not experiencing a flare-up during the examination. The Board finds that a new VA examination is warranted on remand. In this regard, a recent decision issued by the United States Court of Appeals for the Veterans’ Claims (CAVC) addressed what constitutes an adequate explanation of an examiner’s ability to estimate motion loss in terms of degrees during periods of flare-ups. Sharp v. Shulkin, 29 Vet. App. 26, 33 (2017). 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. Id. Accordingly, the Board finds that a new VA examination is warranted in order to assess the current severity of the Veteran’s bilateral knee disability. 12. Entitlement to an earlier effective and a rating in excess of 10 percent for a left ankle disability is remanded. The Veteran was afforded a VA examination to address the severity of her left ankle disability in April 2014 and December 2016. While range of motion testing results were provided, there is no indication that active and passive range of motion testing was conducted. See 38 C.F.R. § 4.59; Correia v. McDonald, 28 Vet. App. 158 (2016). Furthermore, the Veteran reported flare-ups during the examinations. However, the April 2014 examiner provided no estimated motion loss due to flare-ups and the December 2016 examiner indicated that he was unable to render an opinion regarding flare-ups because the Veteran was not experiencing a flare-up at that time. See Sharp v. Shulkin, 29 Vet. App. 26, 33 (2017). Accordingly, the Board finds that the examinations are insufficient to determine the severity of the Veteran’s left ankle disability and a new VA examination is warranted. 13. Entitlement to an initial rating in excess of 10 percent from June 26, 2013, and a compensable rating prior to June 26, 2013, for a left foot disability is remanded; 14. Entitlement to an initial compensable rating for right foot disability is remanded. The Veteran was afforded VA examinations in April 2014 and December 2016. Although he reported flare-ups, the April 2014 examiner did not discuss any additional functional loss during a flare-up and the December 2016 examiner indicated that he was unable to provide an opinion regarding any additional loss due to flare-ups because the Veteran was not experiencing a flare-up at that time. The Board finds that the April 2014 and December 2016 VA examinations are insufficient to determine the present claim following the recent decision of Sharp, 29 Vet. App. at 33 as discussed. Accordingly, the Board finds that a new VA examination is warranted in order to assess the severity of the Veteran’s service-connected bilateral foot disability. 15. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) is remanded. Entitlement to a TDIU is an element of all increased rating claims. See Rice v. Shinseki, 22 Vet. App. 447, 453 (2009). Entitlement to a TDIU is raised where a veteran: (1) submits evidence of a medical disability; (2) makes a claim for the highest rating possible; and (3) submits evidence of unemployability. Roberson v. Principi, 251 F. 3d 1378 (Fed. Cir. 2001). The Veteran stated that she is no longer working due to her service-connected disabilities. VA examinations dated in April 2014 and December 2016 indicated that her bilateral knee and left ankle disability impacted her ability to work. Furthermore, a June 2018 private opinion indicated that her service-connected disabilities prevented her from maintaining gainful work. Accordingly, the Board finds that a TDIU claim has been raised by the record in this case. A review of the record shows that the Veteran has not been provided the specific notice required in response to a claim for a TDIU, to include a request to submit a VA Form 21-8940, and the originating agency has not adjudicated the TDIU issue. Therefore, the Board finds that further action is required of the originating agency before the Board decides the TDIU issue. The matters are REMANDED for the following actions: 1. Obtain and associate with the claims file the Veteran’s updated VA treatment records from March 2017 to the present. 2. Contact the SSA and request that it provide documentation of the Veteran’s award of disability benefits and copies of all records developed in association with the decision for incorporation into the record. 3. Obtain and associate with the claims file the Veteran’s DD Form 214 from September 1984 to March 1991 and any associated personnel records. 4. After completion of #1, #2, and #3, schedule the Veteran for a VA examination(s) to determine the nature and etiology of her right or left ear disability, tinnitus, heart disability, hypertension, back disability, and skin disabilities. The examiner(s) should identify and discuss any right or left ear disability, tinnitus, heart disability, hypertension, back disability, and skin disability identified during the examination and pendency of this claim (February 2013). For each diagnosed disability, please respond to the following: A. Is it at least as likely as not (probability of at least 50 percent) that the Veteran’s right or left ear disability, tinnitus, heart disability, hypertension, back disability, and/or skin disability had their onset in and/or are otherwise related to her period of active service? B. With regard to the disability of tinnitus, if service connection is warranted for a right or left ear disability, is it at least as likely as not (probability of at least 50 percent) that the Veteran’s tinnitus was caused by her right and/or left ear disability? C. With regard to the disability of tinnitus, if service connection is warranted for a right or left ear disability, is it at least as likely as not (probability of at least 50 percent) that the Veteran’s tinnitus was aggravated (worsened beyond its natural progression) by her right and/or left ear disability? If aggravation is found, is there medical evidence created prior to the aggravation or between the aggravation and current level of disability that shows a baseline of her tinnitus prior to aggravation? If so, please identify. The examiner should provide a comprehensive rationale for each opinion provided. The examiner is advised that the Veteran is competent to report her symptoms and history, and such reports are to be considered in formulating any opinion. If any opinion cannot be given without resorting to speculation, the examiner should explain why and 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), the record (additional facts are required), or the examiner does not have the knowledge or training. As appropriate, the AOJ should conduct additional development or supplement the record. 5. After completion of #1, #2, and #3, schedule the Veteran for a VA examination to determine the nature and severity of her service-connected right and left knee disabilities. The claims file, including this remand, should be reviewed by the examiner to become familiar with the Veteran’s pertinent medical history and such review should be noted in the examination report. Complete range of motion testing should be accomplished and the examiner should note the point at which there is pain on motion, if any. Specifically, active and passive range of motion testing as well as weight-bearing and non-weight-bearing testing must be conducted. If possible, the examiner should indicate how far back (i.e., one year, two years, etc.) these results would apply. The examiner should also note any additional loss of function with repetition due to factors such as pain, weakness, fatigability, and pain on movement. The extent of additional limitation should be expressed in degrees. The examiner is advised that flare-ups have been reported. Accordingly, the examiner must express an opinion on whether the flare-ups are associated with additional functional loss. If so, he or she should estimate the degree of lost motion during such flare-ups. The examiner is to 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 cannot be given. Should the examiner maintain that they cannot do so without resorting to speculation, they must explain why this is so. Note: Any inability to furnish such an estimate must be predicated on a lack of medical knowledge among the medical community at large and not the insufficient knowledge of the examiner. The examiner may indicate the degree of confidence that they place on their estimate, on a scale of 1 to 5, with 1 being least confident and 5 being most confident. The presence or absence of ankylosis should be noted. The examiner is to indicate the presence or absence of lateral instability and/or recurrent subluxation in the Veteran’s left and/or right knee, if any. If instability is present, the examiner is to state whether such instability is slight, moderate, or severe. If instability is not found, the examiner should so state. Furthermore, the examiner must indicate whether there is cartilage, semilunar, dislocated, with frequent episodes of locking, pain, and effusion of the joint or partial removal of the semilunar cartilage. The examiner must discuss the impact of the Veteran’s right and/or left knee disability on her ability to work, if any. The examiner should provide a comprehensive rationale for each opinion provided. The examiner is advised that the Veteran is competent to report her symptoms and history, and such reports are to be considered in formulating any opinion. If any opinion cannot be given without resorting to speculation, the examiner should explain why and 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), the record (additional facts are required), or the examiner does not have the knowledge or training. As appropriate, the AOJ should conduct additional development or supplement the record. 6. After completion of #1, #2, and #3, schedule the Veteran for a VA examination to determine the nature and severity of her left ankle disability. The claims file, including this remand, should be reviewed by the examiner to become familiar with the Veteran’s pertinent medical history and such review should be noted in the examination report. Complete range of motion testing should be accomplished and the examiner should note the point at which there is pain on motion, if any. Specifically, active and passive range of motion testing as well as weight-bearing and non-weight-bearing testing must be conducted, and if possible, with the range of the opposite undamaged joint (right ankle). If possible, the examiner should indicate how far back (i.e., one year, two years, etc.) these results would apply. The examiner should describe the severity of such limitation of motion (i.e., moderate or marked). The examiner should also note any additional loss of function with repetition due to factors such as pain, weakness, fatigability, and pain on movement. The extent of additional limitation should be expressed in degrees. The examiner is advised that the Veteran has reported flare-ups throughout the pertinent time of this appeal and he or she must express an opinion on whether the flare-ups are associated with additional functional loss. If so, he or she should estimate the degree of lost motion during such flare-ups. The examiner may indicate the degree of confidence that they place on their estimate, on a scale of 1 to 5, with 1 being least confident and 5 being most confident. The 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 cannot be given. Any inability to furnish such an estimate must be predicated on a lack of medical knowledge among the medical community at large and not the insufficient knowledge of the examiner. Further, the examiner should note the presence, or absence, of (i) ankylosis of the left ankle, including whether ankylosis of the ankle in plantar flexion is less than 30 degrees, between 30 degrees and 40 degrees, or more than 40 degrees, or whether ankylosis of the ankle in dorsiflexion is between 0 degrees and 10 degrees, or at more than 10 degrees or with abduction, adduction, inversion, or eversion deformity; (ii) ankylosis of the subastragalar or tarsal joint, noting poor or good weight-bearing position; (iii) malunion of the os calcis or astragalus, noting marked or moderate deformity; and (iv) astragalectomy. The examiner is also to provide an opinion as to whether the left ankle disability causes loss or permanent loss of use of the left foot. The examiner must discuss the impact of the Veteran’s left ankle disability on her ability to work, if any. The examiner should provide a comprehensive rationale for each opinion provided. The examiner is advised that the Veteran is competent to report her symptoms and history, and such reports are to be considered in formulating any opinion. If any opinion cannot be given without resorting to speculation, the examiner should explain why and 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), the record (additional facts are required), or the examiner does not have the knowledge or training. As appropriate, the AOJ should conduct additional development or supplement the record. 7. After completion of #1, #2, and #3, schedule the Veteran for a VA examination to ascertain the current severity and manifestations of her service-connected left and right foot disabilities. The examiner should review the claims file, including a copy of this remand, and such review should be noted in the report. The examiner should identify all manifestations of the Veteran’s right and left foot disabilities and any residuals thereof. The examiner should specifically report the nature and severity of any service-connected flatfoot, weak foot, claw foot (pes cavus), metatarsalgia (Morton’s disease), hallux valgus, hallux rigidus, hammer toes, or malunion/nonunion of the tarsal or metatarsal bones. The examiner should also determine whether the overall disability picture of the Veteran’s left and right foot disabilities approximate moderate, moderately severe, or severe injuries of the foot. If possible, the examiner should indicate how far back (i.e., one year, two years, etc.) these results would apply. The examiner should also note any additional loss of function with repetition due to factors such as pain, weakness, fatigability, and pain on movement. The extent of additional limitation should be expressed. If flare-ups are reported, the examiner must express an opinion on whether the flare-ups are associated with additional functional loss, i.e., moderate, moderately severe, or severe. The examiner must attempt to elicit information from the record and the Veteran regarding the severity, frequency, duration, or functional loss manifestations during flare-ups. Any inability to furnish such an estimate must be predicated on a lack of medical knowledge among the medical community at large and not the insufficient knowledge of the examiner. The examiner must discuss the impact of the Veteran’s left and right foot disabilities on her ability to work, if any. The examiner should provide a comprehensive rationale for each opinion provided. The examiner is advised that the Veteran is competent to report her symptoms and history, and such reports are to be considered in formulating any opinion. If any opinion cannot be given without resorting to speculation, the examiner should explain why and 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), the record (additional facts are required), or the examiner does not have the knowledge or training. As appropriate, the AOJ should conduct additional development or supplement the record. 8. Provide the Veteran with notice of how to substantiate a claim for entitlement to TDIU. Additionally, provide her with VA Form 21-8940 in connection with the inferred claim for entitlement to a TDIU, and request that she supply the requisite information. Eric S. Leboff Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD S. Hurley, Associate Counsel