Citation Nr: 18159588 Decision Date: 12/20/18 Archive Date: 12/19/18 DOCKET NO. 18-34 290 DATE: December 20, 2018 ORDER The application to reopen a claim of service connection for bilateral knee disability is granted. The application to reopen a claim of service connection for bilateral foot disability is granted. The application to reopen a claim of service connection for neurological disability of the left upper extremity is granted. The application to reopen a claim of service connection for neurological disability of the left lower extremity is granted. Entitlement to service connection for bilateral chondromalacia of the knees is granted. REMANDED Entitlement to service connection for cervical spine disability is remanded. Entitlement to service connection for bilateral foot disability other than right great toe fracture (to include sagging of the arches, plantar fasciitis, and pes planus), to include as secondary to service-connected lumbosacral strain and degenerative disc disease of the lumbosacral spine, is remanded. Entitlement to service connection for neurological disability of the left upper extremity is remanded. Entitlement to service connection for neurological disability of the left lower extremity, to include as secondary to service-connected lumbosacral strain and degenerative disc disease of the lumbosacral spine, is remanded. Entitlement to a rating in excess of 20 percent for lumbosacral strain and degenerative disc disease of the lumbosacral spine is remanded. Entitlement to a rating in excess of 10 percent for sciatic nerve radiculopathy of the right lower extremity is remanded. (The issue of whether the recoupment of severance pay in the amount of $2,849.28 by withholding VA disability compensation benefits was proper is the subject of a separate decision by the Board) FINDINGS OF FACT 1. The Veteran’s claims of service connection for bilateral knee disability, bilateral foot disability (claimed as sagging of the arches), and neurological disability of the left upper and lower extremities (claimed as numbness of the hands and feet) were originally denied on the merits in a September 1996 rating decision on the basis that there was no medical evidence of any such disabilities that were related to service; the Veteran did not appeal this decision within one year of its issuance and new and material evidence was not received within that year. 2. The claims of service connection for bilateral knee disability and bilateral foot disability were again denied in a March 2003 rating decision on the basis that new and material evidence had not been received; the Veteran did not appeal this determination, but new and material evidence was received within a year of the issuance of the March 2003 decision. 3. The Veteran’s claim of service connection for bilateral knee disability was readjudicated and again denied in an August 2004 rating decision on the basis that new and material evidence had not been received; the Veteran did not appeal this decision within one year of its issuance and new and material evidence was not received within that year. 4. Evidence received since the September 1996 and August 2004 agency of original jurisdiction (AOJ) decisions includes information that was not previously considered and which relates to unestablished facts necessary to substantiate the claims of service connection for bilateral knee disability, bilateral foot disability, neurological disability of the left upper extremity, and neurological disability of the left lower extremity, the absence of which was the basis of the previous denials. 5. The evidence is at least evenly balanced as to whether the Veteran’s bilateral chondromalacia of the knees began during active service. CONCLUSIONS OF LAW 1. The AOJ’s September 1996 and August 2004 rating decisions that denied the claims of service connection for bilateral knee disability, bilateral foot disability, neurological disability of the left upper extremity, and neurological disability of the left lower extremity are final. 38 U.S.C. § 7105 (d)(3); 38 C.F.R. §§ 3.104, 3.156(a)-(b), 20.302, 20.1103. 2. The evidence received since the September 1996 and August 2004 AOJ decisions is new and material and sufficient to reopen the claims of service connection for bilateral knee disability, bilateral foot disability, neurological disability of the left upper extremity, and neurological disability of the left lower extremity. 38 U.S.C. § 5108; 38 C.F.R. § 3.156 (a). 3. With reasonable doubt resolved in favor of the Veteran, the criteria for service connection for bilateral chondromalacia of the knees are met. 38 U.S.C. §§ 1110, 5107(b); 38 C.F.R. §§ 3.102, 3.303(a). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from September 1990 to March 1995. These matters come before the Board of Veterans’ Appeals (Board) from a July 2017 rating decision. As for characterization of the issues on appeal, the Board notes that the AOJ adjudicated the bilateral knee and left upper and lower extremity neurological issues on appeal on a de novo basis in a February 2018 statement of the case. As explained in more detail below, claims of service connection for bilateral knee disability and neurological disability of the left upper and lower extremities were most recently denied by way of final September 1996 and August 2004 rating decisions. Hence, the Board must initially determine whether new and material evidence has been submitted with regard to the claims of service connection for bilateral knee disability and neurological disability of the left upper and lower extremities. See Jackson v. Principi, 265 F.3d 1366 (Fed. Cir. 2001). Only where the Board concludes that new and material evidence has been received does it have jurisdiction to consider the merits of these claims. Hickson v. West, 11 Vet. App. 374, 377 (1998). Accordingly, the Board has included the issues of whether new and material evidence has been received to reopen the claims of service connection for bilateral knee disability, neurological disability of the left upper extremity, and neurological disability of the left lower extremity, as indicated above. Also, in light of the Veteran’s reported symptoms and contentions, to encompass all disorders that are reasonably raised by the record, and as service connection has already been awarded for right great toe fracture, the Board has re-characterized the claims of service connection for sagging of the arches of both feet (also claimed as bilateral plantar fasciitis and pes planus) and cervical strain as claims of service connection for bilateral foot disability other than right great toe fracture (to include sagging of the arches, plantar fasciitis, and pes planus) and cervical spine disability. See Clemons v. Shinseki, 23 Vet. App. 1 (2009) (holding that, in determining the scope of a claim, the Board must consider the claimant’s description of the claim, the symptoms described, and the information submitted or developed in support of the claim). Lastly, the Board has also included the separate issue of entitlement to an increased rating for sciatic nerve radiculopathy of the right lower extremity because this is being considered as part of the claim for an increased rating for the service-connected back disability. See 38 C.F.R. § 4.71a, General Rating Formula for Diseases and Injuries of the Spine, Note (1) (providing that associated objective neurologic abnormalities, including, but not limited to, bowel or bladder impairment, are to be evaluated separately, under an appropriate diagnostic code). As a final preliminary matter, the Board points out that the Veteran submitted a notice of disagreement (NOD) in June 2018 with respect to the denial of his application to reopen a claim of service connection for bilateral hip degenerative joint disease in the July 2017 rating decision. Although a statement of the case has not yet been issued, information contained in the Veterans Appeals Control and Locator System (VACOLS) reflects that the AOJ has acknowledged the Veteran’s June 2018 NOD and is currently in the process of adjudicating the appeal. As such, the application to reopen the claim of service connection for bilateral hip degenerative joint disease will not be addressed at this time. I. Applications to Reopen Generally, an AOJ decision denying a claim which has become final may not thereafter be reopened and allowed. 38 U.S.C. § 7105 (d)(3). The exception to this rule is 38 U.S.C. § 5108, which provides that if new and material evidence is presented or secured with respect to a claim which has been disallowed, the Secretary shall reopen the claim and review the former disposition of the claim. 38 U.S.C. § 5108. New evidence is defined as existing evidence not previously submitted to VA, and material evidence is defined as existing evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. New and material evidence can be neither cumulative nor redundant of the evidence of record at the time of the last prior final denial of the claim sought to be reopened, and must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156 (a). The newly presented evidence is presumed to be credible for purposes of determining whether it is new and material. Justus v. Principi, 3 Vet. App. 510, 512-513 (1992). When evaluating the materiality of newly submitted evidence, the focus must not be solely on whether the evidence remedies the principal reason for denial in the last prior decision; rather the determination of materiality should focus on whether the evidence, taken together, could at least trigger the duty to assist or consideration of a new theory of entitlement. See Shade v. Shinseki, 24 Vet. App. 110, 117 (2010). For the purpose of determining whether new and material evidence has been presented to reopen a claim, the evidence for consideration is that which has been presented or secured since the last time the claim was finally disallowed on any basis. Evans v. Brown, 9 Vet. App. 273, 285 (1996). The applications to reopen claims of service connection for bilateral knee disability, bilateral foot disability, neurological disability of the left upper extremity, and neurological disability of the left lower extremity The AOJ initially denied the Veteran’s claims of service connection for bilateral knee disability, bilateral foot disability (claimed as sagging of the arches), and neurological disability of the left upper and lower extremities (claimed as numbness of the hands and feet) on the merits by way of a September 1996 rating decision on the basis that there was no medical evidence of any such disabilities that were related to service. Specifically, the AOJ explained that although there was evidence of treatment in service for sagging of the foot arches and bilateral knee problems, no permanent residual or chronic disability was shown in the Veteran’s service treatment records or demonstrated by evidence following service. Also, there was no evidence of any disability to account for his claimed intermittent numbness of the hands and feet. The Veteran was notified of the AOJ’s September 1996 decision, he did not appeal the decision within one year of its issuance, and new and material evidence was not received within that year. Therefore, the September 1996 decision became final. See 38 U.S.C. § 7105 (d)(3); Bond v. Shinseki, 659 F.3d 1362 (Fed. Cir. 2011); 38 C.F.R. §§ 3.104, 3.156(a)-(b), 20.302, 20.1103. The Veteran’s claims of service connection for bilateral knee disability and bilateral foot disability were again denied in a March 2003 rating decision on the basis that new and material evidence had not been received. VA treatment records were subsequently associated with the claims file within a year of the March 2003 decision. As this additional evidence documents treatment for bilateral knee symptoms, onychomycosis of the feet, and a possible left foot heel spur, new and material evidence was received within a year of the March 2003 rating decision and that decision was not final. See 38 C.F.R. § 3.156 (b), (c); Muehl v. West, 13 Vet. App. 159, 161 (1999) (holding that records constituting new and material evidence received within one year after AOJ decision rendered AOJ decision non-final); 38 C.F.R. § 3.400 (q) (providing that, as to new and material evidence received within appeal period, “effective date will be as though the former decision had not been rendered”). See also Bond, 659 F.3d at 1367-68 (to comply with the directive of 38 C.F.R. § 3.156 (b) that new and material evidence be treated as having been filed in connection with the pending claim, VA must evaluate submissions received during the relevant period and determine whether they contain new evidence relevant to a pending claim). The claim of service connection for bilateral knee disability was readjudicated and again denied in an August 2004 rating decision on the basis that new and material evidence had not been received. The Veteran was notified of the AOJ’s August 2004 decision, he did not appeal the decision within one year of its issuance, and new and material evidence was not received within that year. Therefore, the August 2004 decision became final. See 38 U.S.C. § 7105 (d)(3); Bond, 659 F.3d at 1362; 38 C.F.R. §§ 3.104, 3.156(a)-(b), 20.302, 20.1103. The pertinent new evidence received since the September 1996 denial of service connection for bilateral foot disability and neurological disability of the left upper and lower extremities includes VA treatment records dated from June 2002 to December 2016, a February 2003 VA examination report, the report of a May 2017 VA foot examination, and a September 2017 VA neurological examination report. The pertinent new evidence received since the August 2004 denial of service connection for bilateral knee disability includes the report of a May 2017 VA knee examination. This additional evidence includes evidence of bilateral foot pain, onychomycosis of the feet, a possible left foot heel spur, diminished upper and lower extremity reflexes, and left upper and lower extremity weakness, numbness, pain, and paresthesias/dysesthesias and diagnoses of bilateral chondromalacia of the knees, right great toe fracture, right subchondral cyst, left C5-C6 radiculopathy, and left median nerve peripheral neuropathy. Hence, the additional evidence pertains to an element of the claims that was previously found to be lacking and raises a reasonable possibility of substantiating the claims by indicating that the Veteran has current bilateral knee disability, bilateral foot disability, and neurological disability of the left upper extremity and possible neurological disability of the left lower extremity. The Veteran’s service treatment records document treatment for bilateral knee problems and left lower extremity neurological symptoms and he contends that he has experienced bilateral knee problems ever since service, that his foot pain is associated with an abnormal gait caused by his service-connected back disability, that his left upper extremity neurological disability is associated with his claimed cervical spine disability that he contends has existed ever since service, and that his claimed left lower extremity neurological disability is associated with his service-connected back disability. The evidence is, therefore, new and material, and the claims of service connection for bilateral knee disability, bilateral foot disability, neurological disability of the left upper extremity, and neurological disability of the left lower extremity are reopened. See Shade, 24 Vet. App. at 110. II. Service Connection Service connection will be granted if the evidence demonstrates that current disability resulted from an injury suffered or disease contracted in active military, naval, or air service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). Establishing service connection generally requires competent evidence of three things: (1) current disability; (2) in-service injury or disease; and (3) a relationship between the two. Saunders v. Wilkie, 886 F.3d 1356, 1361 (Fed. Cir. 2018). Consistent with this framework, service connection is warranted for a disease first diagnosed after service when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). Entitlement to service connection for bilateral chondromalacia of the knees The Veteran contends that he has current bilateral knee disability that had its onset in service. The Board concludes, for the following reasons, that the Veteran has a current diagnosis of bilateral chondromalacia of the knees, and that the evidence is at least evenly balanced as to whether this disability began during active service. 38 U.S.C. §§ 1110, 5107(b); Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009); 38 C.F.R. § 3.303 (a). The report of the May 2017 VA knee examination shows the Veteran has a current diagnosis of bilateral chondromalacia of the knees. There is also evidence of bilateral knee symptoms in service and evidence of continuous symptoms in the years since service which indicates that the current bilateral knee disability was incurred in service. In this regard, service treatment records reflect that the Veteran was treated for right knee pain in November 1990 after sustaining a twisting injury to the knee. Examination revealed that the right knee was tender to palpation. His right knee was again evaluated in December 1990 and he was diagnosed as having patellar tendonitis. In April 1993, he was evaluated for a one-year history of chronic bilateral knee pain. The knees were painful with ambulation and when the knees were bent and examination revealed knee pain to palpation and positive McMurray’s testing with clicking. Moreover, the Veteran initially filed a claim of service connection for bilateral knee disability in June 1995, within three months of his separation from service, and his post-service medical records and lay statements indicate that his bilateral knee symptoms have continued in the years since service. The Veteran is competent to report continuous bilateral knee symptoms in the years since service. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); see also Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006). There is nothing to explicitly contradict these reports and they are consistent with the evidence of record. Thus, the Board finds that the reports of continuous bilateral knee symptoms in the years since service are credible. In sum, the evidence reflects that the Veteran experienced bilateral knee symptoms in service and that there have been continuous symptoms in the years since service. He has also been diagnosed as having current bilateral chondromalacia of the knees. There is no medical opinion contrary to a conclusion that the current bilateral knee disability had its onset in service. In light of the above, the Board finds that the evidence is at least evenly balanced as to whether the evidence indicates that the current bilateral chondromalacia of the knees had its onset in service. As the reasonable doubt created by this relative equipoise in the evidence must be resolved in favor of the Veteran, entitlement to service connection for the currently diagnosed bilateral chondromalacia of the knees is warranted. 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102. See also Buchanan, 451 F.3d at 1335 (“[N]othing in the regulatory or statutory provisions [relating to evidence to be considered] require both medical and competent lay evidence; rather, they make clear that competent lay evidence can be sufficient in and of itself”). REASONS FOR REMAND 1. Entitlement to service connection for cervical spine disability is remanded. The Veteran’s VA treatment records reflect that he has reported neck pain and that there is x-ray evidence of degenerative changes of the cervical spine. He has contended that scoliosis of the cervical spine was discovered at the time of his discharge from service and that he has continued to experience neck problems in the years since service. He has already been awarded service connection for lumbosacral strain and degenerative disc disease of the lumbosacral spine (formerly diagnosed as chronic low back strain and scoliosis) and it is unclear from a review of his claims file whether his claimed scoliosis has also involved his cervical spine. The Board cannot make a fully-informed decision on the issue of entitlement to service connection for cervical spine disability because no VA examiner has opined whether the claimed cervical spine disability was incurred in service. Hence, an appropriate VA examination should be conducted upon remand. 38 U.S.C. § 5103A (d); McLendon v. Nicholson, 20 Vet. App. 79 (2006). Also, the evidence indicates that there may be outstanding relevant VA treatment records. The most recent VA treatment records in the claims file are from the Durham VA Health Care System (dated to October 2003) and from the Fayetteville Vista electronic records system (dated to November 2017). Any VA treatment records are within VA’s constructive possession, and are considered potentially relevant to the remaining issues on appeal. A remand is required to allow VA to obtain them. 2. Entitlement to service connection for bilateral foot disability other than right great toe fracture (to include sagging of the arches, plantar fasciitis, and pes planus), to include as secondary to service-connected lumbosacral strain and degenerative disc disease of the lumbosacral spine, is remanded. The Veteran contends that he has bilateral foot disability other than right great toe fracture that was incurred in service. In the alternative, he contends that his disability is associated with his service-connected back disability. He was afforded a VA foot examination in May 2017, but it appears that this examination was solely focused on his currently service-connected right great toe fracture and it is otherwise unclear whether he has experienced any other current foot disability. The Board cannot make a fully-informed decision on the issue of entitlement to service connection for bilateral foot disability other than right great toe fracture because no VA examiner has determined whether the Veteran has any such disability or opined whether any such disability was incurred in service or caused or aggravated by service-connected back disability. Hence, the Veteran should be afforded another appropriate VA examination upon remand. Also, all outstanding VA treatment records should be secured upon remand. 3. Entitlement to service connection for neurological disability of the left upper extremity is remanded. The Veteran was afforded a VA neurological examination in September 2017 and was diagnosed as having left C5-C6 radiculopathy and left median nerve peripheral neuropathy. The physician who conducted the examination opined that the Veteran’s left upper extremity neurological disability was not related to his service-connected sciatic nerve radiculopathy of the right lower extremity. The Board cannot make a fully-informed decision on the issue of entitlement to service connection for neurological disability of the left upper extremity because no VA examiner has opined whether this claimed disability is directly related to service. Thus, an appropriate medical opinion should be obtained upon remand. Also, all outstanding VA treatment records should be secured upon remand. Moreover, because a decision on the remanded issue of entitlement to service connection for cervical spine disability could significantly impact a decision on the issue of entitlement to service connection for neurological disability of the left upper extremity, the issues are inextricably intertwined. A remand of the claim for service connection for neurological disability of the left upper extremity is required. 4. Entitlement to service connection for neurological disability of the left lower extremity, to include as secondary to service-connected lumbosacral strain and degenerative disc disease of the lumbosacral spine, is remanded. The examiner who conducted the September 2017 VA neurological examination explained that although the Veteran’s left lower extremity was symptomatic (i.e., he experienced left lower extremity pain, numbness, paresthesias/dysesthesias, and mild loss of strength), there were no objective findings during the examination to support a diagnosis of left lower extremity radiculopathy. The Board points out, however, that even in the absence of a specifically diagnosed disability, evidence of pain alone is sufficient in some circumstances to show the existence of a current disability. See Saunders, 886 F.3d at 1364-65 (pain need not be diagnosed as connected to a current underlying condition to function as an impairment and pain alone can be considered a disability under 38 U.S.C. § 1110). The Board cannot make a fully-informed decision on the issue of entitlement to service connection for neurological disability of the left lower extremity because no VA examiner has opined whether any of the Veteran’s left lower extremity pain was incurred in service or caused or aggravated by service-connected disability. Furthermore, as explained in more detail below, the Board is remanding the claim for an increased rating for the service-connected back disability in order to afford the Veteran a new VA back examination. As additional information may be obtained that is relevant to the issue of entitlement to service connection for neurological disability of the left lower extremity during the back examination that is being sought upon remand, Board action on this claim, at this juncture, would be premature. Also, all outstanding VA treatment records should be secured upon remand. 5. Entitlement to a rating in excess of 20 percent for lumbosacral strain and degenerative disc disease of the lumbosacral spine and entitlement to a rating in excess of 10 percent for sciatic nerve radiculopathy of the right lower extremity are remanded. While the Veteran was most recently afforded a VA examination regarding his service-connected back disability in May 2017, the examination does not comply with the requirements in Sharp v. Shulkin, 29 Vet. App. 26, 34-36 (2017). Specifically, the Veteran reported flare ups of increased back pain and stiffness. The examiner stated that an opinion as to the extent of any additional functional impairment of the back in terms of range of motion loss during flare ups could not be provided, but this opinion was only based on the fact that the Veteran was not experiencing a flare up at the time of the examination. Hence, the Veteran should be afforded a new VA back examination upon remand. Moreover, as additional information will be obtained during the requested VA back examination which is pertinent to the issue of entitlement to an increased rating for sciatic nerve radiculopathy of the right lower extremity, Board action on this matter at this time would be premature. Hence, this matter is being remanded, as well. Also, all outstanding VA treatment records should be secured upon remand. The matters are REMANDED for the following action: 1. Ask the Veteran to identify the location and name of any VA or private medical facility where he has received treatment for foot disability, neurological disability of the left upper extremity, neurological disability of the lower extremities, cervical spine disability, and back disability, to include the dates of any such treatment. Ask the Veteran to complete a VA Form 21-4142 for all records of his treatment for foot disability, neurological disability of the left upper extremity, neurological disability of the lower extremities, cervical spine disability, and back disability from any sufficiently identified private treatment provider from whom records have not already been obtained. Make two requests for any authorized records, unless it is clear after the first request that a second request would be futile. 2. Obtain the Veteran’s VA treatment records from the Durham VA Health Care System for the period since October 2003; from the Fayetteville Vista electronic records system for the period since November 2017; and all such relevant records from any other sufficiently identified VA facility. 3. After all efforts have been exhausted to obtain and associate with the claims file any additional treatment records, schedule the Veteran for an examination by an appropriate clinician to determine the nature and etiology of any current cervical spine disability. The examiner must opine whether any cervical spine disability experienced by the Veteran since approximately April 2017 at least as likely as not (1) began during active service; (2) manifested within one year after discharge from service (in the case of any currently diagnosed arthritis); or (3) is related to an in-service injury, event, or disease, including the Veteran’s reported scoliosis in service. The examiner must provide reasons for each opinion given. 4. After all efforts have been exhausted to obtain and associate with the claims file any additional treatment records, schedule the Veteran for an examination by an appropriate clinician to determine the nature and etiology of any current foot disability other than right great toe fracture. The examiner must opine whether any foot disability other than right great toe fracture experienced by the Veteran since approximately September 2002 at least as likely as not (1) began during active service; (2) is related to an in-service injury, event, or disease, including the Veteran’s foot problems documented in his service treatment records; (3) is caused by service-connected lumbosacral strain and degenerative disc disease of the lumbosacral spine; or (4) is aggravated by service-connected lumbosacral strain and degenerative disc disease of the lumbosacral spine. If the Veteran has experienced pes planus at any time since approximately September 2002, the examiner must indicate whether the pes planus is a congenital condition or an acquired condition (see 38 C.F.R. § 4.57 for guidance as to what constitutes congenital versus acquired pes planus). If any current pes planus is an acquired condition, the examiner must opine whether it at least as likely as not was permanently aggravated beyond its natural progression by service. The examiner must provide reasons for each opinion given. 5. After all efforts have been exhausted to obtain and associate with the claims file any additional treatment records, obtain an addendum opinion from an appropriate clinician regarding whether any neurological disability of the left upper extremity experienced by the Veteran since approximately April 2017 at least as likely as not (1) began during active service; (2) manifested within one year after discharge from service; or (3) is related to an in-service injury, event, or disease. The clinician must provide reasons for each opinion given. 6. After all efforts have been exhausted to obtain and associate with the claims file any additional treatment records, schedule the Veteran for an examination by an appropriate clinician of the current severity of his service-connected back disability and of the nature and etiology of any current neurological disability of the left lower extremity. The examiner must test the Veteran’s active motion, passive motion, and pain with weight-bearing and without weight-bearing of the thoracolumbar spine. 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. To the extent possible, the examiner should identify any symptoms and functional impairments due to the service-connected back disability alone and discuss the effect of the Veteran’s disability on any occupational functioning and activities of daily living. If it is not possible to provide a specific measurement, or an opinion regarding flare-ups, symptoms, or functional impairment without speculation, the examiner must state whether the need to speculate is due to a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts), a deficiency in the record (additional facts are required), or the examiner (does not have the knowledge or training). The examiner may not rely solely upon his or her inability to personally observe the Veteran during a period of flare-up. The examiner must also opine whether any neurological disability of the left lower extremity experienced by the Veteran since approximately April 2017 at least as likely as not (1) began during active service; (2) manifested within one year after discharge from service; (3) is related to an in-service injury, event, or disease, including the Veteran’s lower extremity neurological symptoms documented in his service treatment records; (4) is caused by service-connected lumbosacral strain and degenerative disc disease of the lumbosacral spine; or (5) is aggravated by service-connected lumbosacral strain and degenerative disc disease of the lumbosacral spine. The examiner must provide reasons for each opinion given. Jonathan Hager Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD B. Elwood, Counsel