Citation Nr: 19106911 Decision Date: 01/30/19 Archive Date: 01/29/19 DOCKET NO. 16-50 613 DATE: January 30, 2019 ORDER Entitlement to an increased rating in excess of 10 percent for service-connected right knee strain with degenerative changes is denied. REMANDED Entitlement to service connection for an acquired psychiatric disorder, to include posttraumatic stress disorder (PTSD). Entitlement to service connection for bilateral hearing loss. Entitlement to service connection for tinnitus. Entitlement to service connection for a right foot disability. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU). FINDINGS OF FACT Throughout the entire rating period on appeal, service-connected right knee strain with degenerative changes manifested as forward flexion to 110 degrees with painful motion, with extension to 0 degrees, with painful motion. CONCLUSION OF LAW The criteria for an increased rating in excess of 10 percent disabling for service-connected right knee strain with degenerative changes have not been met. 38 U.S.C. §§ 1155, 5103(a), 5103A, 5107 (2012); 38 C.F.R. §§ 4.3, 4.7, 4.71a, DC 5003-5261 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active duty service with the United States Army from April 1982 to March 1985. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from an October 2012 rating decision from the Department of Veterans Affairs (VA) Regional Office in Guaynabo, Puerto Rico (RO). Jurisdiction over the claim was subsequently transferred to the VA RO in St. Petersburg, Florida. The Board has recharacterized the claim for service connection for PTSD as a claim for service connection for an acquired psychiatric disorder, to include PTSD. See Clemons v. Shinseki, 23 Vet. App. 1 (2009) (finding that a claim for benefits for one psychiatric disability also encompassed benefits based on other psychiatric diagnoses and should be considered by the Board to be within the scope of the filed claim). Within an August 2013 notice of disagreement, the Veteran reported that service-connected right knee strain with degenerative changes has limited his ability to work, causing him to lose jobs and long-term employment. Therefore, a claim for entitlement to a TDIU raised in relation to the appeal for an increased rating for service-connected right knee strain with degenerative changes, and that issue was added to the appeal. See Rice v. Shinseki, 22 Vet. App. 447, 453-54 (2009). Neither the Veteran nor his representative have raised any issues with the duty to notify or duty to assist. See Scott v McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that “the Board’s obligation to read filings in a liberal manner does not require the Board... to search the record and address procedural arguments when the veteran fails to raise them before the Board.”); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to duty to assist argument). Increased Rating Entitlement to an increased rating in excess of 10 percent disabling for service-connected right knee strain with degenerative changes Disability ratings are determined by applying the criteria set forth in VA’s Schedule for Rating Disabilities. The percentage ratings are based on the average impairment of earning capacity and individual disabilities are assigned separate diagnostic codes. 38 U.S.C. § 1155 (2012); 38 C.F.R. § 4.1 (2017). If two evaluations are potentially applicable, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that evaluation; otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7 (2017). Any reasonable doubt regarding a degree of disability will be resolved in favor of the veteran. 38 C.F.R. § 4.3 (2017). The United States Court of Appeals for Veterans Claims (Court) has held that staged ratings are appropriate for an increased rating claim when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings. Hart v. Mansfield, 21 Vet. App. 505 (2007). The relevant temporal focus for adjudicating an increased rating claim is on the evidence concerning the state of the disability from the time period one year before the claim was filed until VA makes a final decision on the claim. Id. The Board finds that a staged rating is not appropriate for the evaluation of the Veteran’s service-connected right knee strain with degenerative changes in this case. Pyramiding, that is the evaluation of the same disability, or the same manifestation of a disability, under different diagnostic codes, is to be avoided when evaluating a Veteran’s service-connected disability. 38 C.F.R. § 4.14 (2017). However, it is possible for a veteran to have separate and distinct manifestations from the same injury which would permit rating under several diagnostic codes; the critical element in permitting the assignment of several evaluations under various diagnostic codes is that none of the symptomatology for any one of the conditions is duplicative or overlapping with the symptomatology of the other condition. See Esteban v. Brown, 6 Vet. App. 259, 261- 62 (1994). In evaluating disabilities of the musculoskeletal system, it is necessary to consider, along with the schedular criteria, functional loss due to flare-ups of pain, fatigability, incoordination, pain on movement, and weakness. DeLuca v. Brown, 8 Vet. App. 202 (1995). Functional loss may be due to due to pain, supported by adequate pathology and evidenced by visible behavior of the claimant undertaking the motion. 38 C.F.R. § 4.40 (2017). Weakened movement, excess fatigability, incoordination, pain on movement, swelling, deformity, or atrophy of disuse are relevant factors in regard to joint disability. 38 C.F.R. § 4.45 (2017). With any form of arthritis, painful motion is an important factor of the disability; therefore, the facial expression, wincing, etc., on pressure or manipulation, should be carefully noted and definitely related to affected joints. Muscle spasm will greatly assist the identification. The intent of the schedule is to recognize painful motion with joint or particular pathology as productive of disability. It is the intention to recognize actually painful, unstable, or malaligned joints, due to healed injury, as entitled to at least the minimum compensable rating for the joint. Crepitation either in the soft tissues such as the tendons or ligaments, or crepitation within the joint structures should be noted carefully as points of contact which are diseased. Flexion elicits such manifestations. The joints involved should be tested for pain on both active and passive motion, in weight-bearing and nonweight-bearing and, if possible, with the range of the opposite undamaged joint. 38 C.F.R. § 4.59 (2017). The Veteran has been rated under Diagnostic Code 5003-5261 for his service connected right knee disability (hyphenated diagnostic codes are used when a rating under one diagnostic code requires use of an additional diagnostic code to identify the basis for the evaluation assigned; the additional code is shown after the hyphen). Under Diagnostic Code 5003, degenerative arthritis is rated based on limitation of motion under the appropriate diagnostic codes for the specific joint involved. However, when the limitation of motion of the specific joint or joints involved is noncompensable under the appropriate diagnostic codes, a rating of 10 percent is for application for each such major joint or group of minor joints affected by limitation of motion, to be combined, not added under Diagnostic Code 5003. Limitation of motion must be objectively confirmed by findings such as swelling, muscle spasm, or satisfactory evidence of painful motion. In the absence of limitation of motion, a 10 percent evaluation is assigned with x-ray evidence of involvement of two or more major joints; a 20 percent rating is assigned with x-ray evidence of involvement of two or more major joints with occasional incapacitating exacerbations. 38 C.F.R. § 4.71a (2017). Under Diagnostic Code 5261, limited extension of the leg, a 10 percent evaluation is warranted where extension is limited to 10 degrees; a 20 percent evaluation is warranted where extension is limited to 15 degrees; a 30 percent evaluation is warranted where extension is limited to 20 degrees; and a 40 percent evaluation is warranted where extension is limited to 30 degrees. 38 C.F.R. § 4.71a (2017). Under Diagnostic Code 5260, limited flexion of the leg, a 10 percent evaluation is warranted where flexion is limited to 45 degrees; a 20 percent evaluation is warranted where flexion is limited to 30 degrees; and a 30 percent evaluation is warranted where flexion is limited to 15 percent. 38 C.F.R. § 4.71a (2017). VA’s Office of General Counsel has provided guidance concerning increased rating claims for knee disorders. Separate disability ratings may be assigned for distinct disabilities resulting from the same injury so long as the symptomatology for one condition was not “duplicative of or overlapping with the symptomatology” of the other condition. See Esteban, 6 Vet. App. at 262. VA’s General Counsel interpreted that compensating a claimant for separate functional impairment under Diagnostic Code 5257 and 5003 does not constitute pyramiding. VAOPGCPREC 23-97. In VAOPGCPREC 9-98, VA’s General Counsel reiterated that if a veteran has a disability rating under Diagnostic Code 5257 for instability of the knee, and there is also X-ray evidence of arthritis, a separate rating for arthritis could also be based on painful motion under 38 C.F.R. § 4.59. In addition, the General Counsel considered a hypothetical situation in which a knee disability was evaluated under Diagnostic Code 5259 that was productive of pain, tenderness, friction, osteoarthritis established by x-rays, and a slight loss of motion. For the purposes of the hypothetical, it was assumed that Diagnostic Code 5259 did not involve limitation of motion. Given the findings of osteoarthritis, the General Counsel stated that the availability of a separate evaluation under Diagnostic Code 5003 in light of sections 4.40, 4.45, 4.59 must be considered. See Lichtenfels v. Derwinski, 1 Vet. App. 484, 488 (1991). Absent x-ray findings of arthritis, limitation of motion should be considered under Diagnostic Codes 5260 and 5261. The claimant’s painful motion may add to the actual limitation of motion so as to warrant a rating under Diagnostic Codes 5260 or 5261. The General Counsel further noted in VAOPGCPREC 9-98 that the removal of the semilunar cartilage may involve restriction of movement caused by tears and displacements of the menisci, but that the procedure may result in complications such as reflex sympathetic dystrophy, which can produce loss of motion. Therefore, limitation of motion is a relevant consideration under Diagnostic Code 5259, and the provisions of 38 C.F.R. § 4.40, 4.45, and 4.59 must be considered. In addition, the VA General Counsel has held that separate ratings may be assigned under Diagnostic Code 5260 and Diagnostic Code 5261 for disability of the same joint. VAOPGCPREC 9-2004. Specifically, where a veteran has both a limitation of flexion and a limitation of extension of the same leg, the limitations must be rated separately to adequately compensate for functional loss associated with injury to the leg. In rendering a decision on appeal, the Board must analyze the credibility and probative value of all medical and lay evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant. 38 U.S.C. § 1154 (a) (2012); Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). The standard of proof to be applied in decisions on claims for veterans’ benefits is set forth in 38 U.S.C. § 5107. A claimant is entitled to the benefit of the doubt when there is an approximate balance of evidence for and against the claim. See 38 C.F.R. § 3.102 (2017). When a claimant seeks benefits and the evidence is in relative equipoise, the claimant prevails. See Gilbert, 1 Vet. App. 49. The preponderance of the evidence must be against the claim for benefits to be denied. See Alemany v. Brown, 9 Vet. App. 518 (1996). The Veteran contends that an increased rating of 30 percent is warranted for service-connected right knee disability within an August 2013 notice of disagreement. After a review of all the evidence, lay and medical, the Board finds that for the entire rating period, a right knee disability manifested as forward flexion to 110 degrees with painful motion, and extension to 0 degrees, with pain. Given these findings, no more than a single 10 percent rating is warranted based on limitation of motion. In an April 2012 VA examination, the Veteran reported intermittent pain of the right knee and the sensation that his right knee will give way. The Veteran also reported flare ups occurred with prolonged standing, jogging and running. The Veteran required the use of a brace to ambulate. Within the April 2012 VA examination report, on range of motion testing, right knee flexion was to 110 degrees with pain, and extension to zero degrees with pain. On repetitive use testing of the right knee yielded the same results. The Veteran had functional loss or impairment of the right knee due to pain on movement. Joint stability testing and muscle strength testing showed the Veteran’s right knee was normal. The Veteran did not have right knee subluxation/ dislocation, meniscal conditions or joint replacement. Based on the evidence above, higher or separate ratings are not warranted under Diagnostic Codes 5260 or 5261 for a right knee disability for the rating period no appeal. The Veteran is currently in receipt of a 10 percent rating under Diagnostic Code 5003-5261. The next higher 20 percent rating under Diagnostic Code 5261 is assigned for extension limited to 15 degrees, and the next higher 20 percent rating under Diagnostic Code 5260 is assigned for flexion limited to 30 degrees. For the entire rating period, the Veteran’s disability does not approximate 15 degrees extension or 30 degrees flexion in the right knee. Rather, the Veteran has not exhibited a compensable degree of limitation of flexion or extension for the period on appeal, and the assigned 10 percent rating was assigned under the provisions of 38 C.F.R. § 4.59, which allows the minimum compensable rating for joints with evidence of painful motion with arthritis. Further, a separate rating is not warranted under Diagnostic Code 5260 where painful motion is already considered by the assigned 10 percent rating under Diagnostic Code 5261. Therefore, the Board finds that a rating in excess of 10 percent disabling for right strain with degenerative changes is not warranted for the rating period on appeal. 38 C.F.R. § 4.71a, DC 5260, 5261 (2017). The Board has considered whether separate compensable ratings are warranted for the right knee under other applicable provisions of the diagnostic code. The evidence of record does not reflect ankylosis of the right knee to warrant a rating under DC 5256. The April 2012 VA examination shows that the Veteran has had measurable range of motion in right knee joints without ankylosis. The Veteran does not have recurrent subluxation or lateral instability of the right knee to warrant a compensable rating under DC 5257. While he has reported having the feeling of his knee giving, a clinical finding of recurrent subluxation or lateral instability within the meaning of Diagnostic Code 5275 has not been shown. An April 2012 VA examination shows that there was no joint instability, and that the knee joint was found to be normal on stability testing. Additionally, there was no recurrent patellar dislocation. In the absence of recurrent subluxation and lateral instability in the right knee, the Veteran’s right knee disability has not met or more nearly approximated the criteria for separate 10 percent disability rating under Diagnostic Code 5257. 38 C.F.R. § 4.71a (2017). The record does not reflect dislocated semilunar cartilage in the right knee to warrant a rating under Diagnostic Code 5258. See 38 C.F.R. § 4.71a (2017). For these reasons, a separate rating is not warranted under Diagnostic Code 5258. Additionally, the April 2012 VA examination of record shows that the Veteran had not had removal of semilunar cartilage in the right knee to warrant a rating under Diagnostic Code 5259 for removal of semilunar cartilage which is symptomatic. For the reasons discussed above, the Board finds that the preponderance of the evidence is against the Veteran’s claim for an increased rating for right knee strain with degenerative changes in excess of 10 percent for the entire rating period on appeal. Because the preponderance of the evidence is against the claim, the benefit of the doubt doctrine is not for application. See 38 U.S.C. § 5107 (2012); 38 C.F.R. § 3.102 (2017). REASONS FOR REMAND 1. Entitlement to service connection for PTSD Pursuant to VA’s duty to assist, VA will provide a medical examination or obtain a medical opinion based upon a review of the evidence of record if VA determines it is necessary to decide the claim. 38 C.F.R. § 3.159 (c)(4)(i) (2017). A medical examination or medical opinion may be deemed necessary where the record contains competent medical evidence of a current diagnosed disability, establishes that the veteran suffered an event, injury or disease in service, and indicates that the claimed disability may be associated with the established event, injury or disease in service. See Id; McLendon v. Nicholson, 20 Vet App. 79, 83 (2006). Within a June 2015 statement, the Veteran reported that while he was stationed in Germany, he was involved in a motor vehicle accident during a combat training exercise from which he sustained right knee and head injuries. The Veteran further reported that he has been suffering for 25 years from this traumatic event and has sought mental health treatment at the San Juan and Orlando VA Medical Centers. Service treatment records show that the Veteran was involved in a motor vehicle accident in January 1984, in which he injured his right patella. Military personnel records show the Veteran was stationed in Germany Private treatment records show the Veteran was admitted to a hospital in January 2011 for polysubstance abuse and suicide attempt. The Veteran was subsequently diagnosed with depression. VA treatment records show the Veteran was placed on the San Juan VA Medical Center’s high risk for suicide list in February 2012. The VA psychiatrist diagnosed the Veteran with alcohol dependence with physiological dependence, alcohol induced mood disorder, and cocaine dependence in early partial remission. The Board notes that direct service connection for disability resulting from a veteran’s own drug or alcohol abuse is precluded for all VA benefit claims filed after October 31, 1990. See VAOPGCPREC 7-99; VAOPGCPREC 2-98. Compensation cannot be awarded pursuant to 38 U.S.C. §§ 1110, 1131 and 38 U.S.C § 105 (a) either for primary alcohol abuse disabilities or for secondary disabilities that result from primary alcohol abuse. Allen v. Principi, 237 F.3d 1368, 1376 (Fed. Cir. 2001). Primary alcohol abuse disability means an alcohol abuse disability arising from voluntary and willful drinking to excess. Id. Service connection, however, may be granted for an alcohol or drug abuse disability as secondary to, or as a symptom of, a service-connected disability. See Allen, 237 F.3d 1368 at 1375. The Veteran has not been provided a VA examination in conjunction with his claim for service connection for an acquired psychiatric disorder, to include PTSD and requests such in his June 2015 statement. Prior to rendering a decision on the appeal, the Board finds that remand necessary for a VA examination to determine the nature and etiology of any acquired psychiatric disorder, to include PTSD, if diagnosed. 2. Entitlement to service connection for bilateral hearing loss and tinnitus During a March 2012 VA audiological examination, pure tone thresholds showed that the Veteran had bilateral hearing loss for VA purposes, however, the VA examiner indicated that the Veteran’s puretone test thresholds were not valid for rating purposes. The VA examiner reasoned that inconsistent responses and the Veteran’s overall behavior during the test suggested exaggerated responses, and that positive Stenger/contralateral interference was used to obtain better left ear responses than voluntarily offered. As to the etiology of the Veteran’s left ear hearing loss, the March 2012 VA examiner opined that left ear hearing loss was less likely than not caused by or a result of an event in military service. The examiner reasoned that while the Veteran had evidenced increased hearing loss while in service, and that exposure to high levels of noise causes either immediate hearing loss, or progressive hearing deficits during prolonged periods of exposure, no retroactive hearing effect is expected after years of being exposed to noise. While the VA examiner discussed the Veteran’s increased hearing loss in service, the VA examiner failed to discuss that the March 1985 audiological evaluation shows that pure tone thresholds were recorded at 40 decibels at the 4000 Hz frequency, thus, evidencing that the Veteran had a left ear hearing disability on separation for VA purposes. Id. Therefore, the Board finds remand necessary for a new VA audiological examination to discuss in-service findings of a hearing loss disability in the left ear, and for updated pure tone threshold test results to accurately make a determination as to the question for service question for bilateral hearing loss. See 38 C.F.R. § 3.159 (c)(4)(i) (2017). The Board finds that the issues of entitlement to service connection for hearing loss and tinnitus are inextricably intertwined, and the claim for tinnitus must also be remanded. Harris v. Derwinski, 1 Vet. App. 180 (1991). 3. Entitlement to service connection for a right foot disability Within a March 2012 VA examination, the Veteran reported that he had a childhood incident in which he sustained trauma to his right foot and had a fracture. He subsequently had surgical repair of the right foot and was in a cast for more than four months. The Veteran indicated that when he had the fracture, he sliced his right great toe tendon which was also surgically repaired. He stated that he re-injured his right foot while in service when he was involved in a motor vehicle accident in Germany, and also due to the activities required of an Infantryman. An August 2011 x-ray of the bilateral feet showed a small right calcaneal bone spur. The VA examiner also diagnosed the Veteran with right great toe adhesive capsulitis first MTP joint. The Board finds that the March 2012 VA medical opinion is insufficient. Therefore, a VA examination is necessary prior to rendering a decision on the appeal. 4. Entitlement to a TDIU The Veteran seeks entitlement to a TDIU as raised within an August 2013 notice of disagreement. Rice, 22 Vet. App. at 453-54. The Board finds that further development is needed prior to the adjudication of the Veteran’s claim of entitlement to a TDIU. VA regulations provide for a TDIU rating when the schedular rating is less than total, where it is found that the disabled person is unable to secure or follow a substantially gainful occupation as a result of a single service-connected disability ratable at 60 percent or more, or as a result of two or more disabilities, provided at least one disability is ratable at 40 percent or more and there is sufficient additional service-connected disability to bring the combined rating to 70 percent or more. 38 C.F.R. 3.340, 4.16(a) (2017). Veterans who are unable to secure gainful employment by reason of service-connected disabilities, but fail to meet the percentage criteria in 38 C.F.R. 4.16 (a), may receive extraschedular consideration. See 38 C.F.R. 4.16 (b) (2017). Specifically, rating boards should submit to the Director, Compensation Service, for extraschedular consideration all cases of veterans who are unemployable by reason of service-connected disabilities, but who fail to meet the percentage standards set forth in 38 C.F.R. 4.16 (a). Id. The rating board will include a full statement as the veteran’s service-connected disabilities, employment history, educational and vocational attainment, and all other factors having a bearing on the issue. Id. The Veteran is currently rated for service-connected right knee strain with degenerative changes, rated at 10 percent disabling. The Veteran’s current combined disability rating is 10 percent, effective March 14, 2011. As such, the Veteran’s combined disability rating does not meet the percentage requirements of 38 C.F.R. 4.16 (a) for consideration of a TDIU rating throughout the rating period on appeal. As discussed above, the failure to meet the schedular percentage requirements does not preclude the availability of a TDIU rating on an extraschedular basis under 38 C.F.R. 4.16 (b). The Veteran has contested within an August 2013 notice of disagreement that his service-connected right knee disability has affected his ability to work, causing him to lose jobs and long-term employment. The Veteran has not yet completed an Application for Increased Compensation Based on Unemployability, and therefore, the Board is unable to ascertain the Veteran’s prior work experience, level of education and other important information relevant to a claim for entitlement to a TDIU. Regardless, the Board cannot assign an extraschedular rating in the first instance, and the claim must be referred to the Director, Compensation Service, for extraschedular consideration. See Floyd v. Brown, 9 Vet. App. 88 (1996); Bagwell v. Brown, 9 Vet. App. 337 (1996); See 38 C.F.R. 4.16 (b) (2017). If, and only if, the Director determines that an extraschedular evaluation is not warranted, does the Board then have jurisdiction to decide the extraschedular TDIU claim on the merits. See Anderson v. Shinseki, 22 Vet. App. 423 (2009). These matters are REMANDED for the following action: (Please note, this appeal has been advanced on the Board’s docket pursuant to 38 C.F.R. § 20.900 (c). Expedited handling is requested.) 1. Obtain and associate with the record all outstanding VA treatment records since 2012. 2. The AOJ should request that the Veteran submit a Veteran’s Application for Increased Compensation Based on Individual Unemployability which includes information about the Veteran’s education and work history. 3. After the above development in Requests 1-2, schedule the Veteran for a VA psychiatric examination to address the nature and etiology of any acquired psychiatric disorder, to include depression, alcohol dependence with physiological dependence, alcohol induced mood disorder, cocaine dependence in early partial remission, and PTSD. The record must be provided to and reviewed by the examiner in conjunction with the examination. All indicated diagnostic studies should be conducted. The VA examiner is asked to provide all current psychiatric diagnoses, and for each diagnosis, the VA examiner should determine whether it is at least as likely as not (a 50 percent or greater probability) that the diagnosis was caused by or was incurred in service. As for rendering a nexus opinion for PTSD, if diagnosed, the examiner must determine if PTSD is related to a verified in-service stressor, to include the Veteran’s January 1984 motor vehicle accident. The term “at least as likely as not” does not mean “within the realm of medical possibility.” Rather, it means that the weight of medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of that conclusion as it is to find against it. The examiner must provide a complete explanation for his or her opinion(s), based on his or her clinical experience, medical expertise, and established medical principles. If any of the above requested opinions cannot be made without resort to speculation, the examiner must state this and specifically explain whether there is any potentially available information that, if obtained, would allow for a non-speculative opinion to be provided. 4. After the above development in Requests 1-2, the AOJ should refer the case for a VA audiological examination to determine the nature and etiology of bilateral hearing loss and tinnitus. The evidence of record should be made available to the examiner for review. All indicated tests and studies should be accomplished, and all clinical findings should be reported in detail. The examination must include a pure tone audiometry test and a controlled speech discrimination test using the Maryland CNC word list. The VA examiner should determine whether it is at least as likely as not (a 50 percent probability or greater) that bilateral hearing loss and tinnitus were incurred in or caused by active service, to include by conceded acoustic trauma. In rendering the requested opinion, the examiner is instructed to specifically acknowledge and comment on the Veteran’s March 1985 separation audiological evaluation, showing the Veteran has left ear hearing loss for VA purposes. The examiner must provide a complete explanation for his or her opinion(s), based on his or her clinical experience, medical expertise, and established medical principles. If any of the above requested opinions cannot be made without resort to speculation, the examiner must state this and specifically explain whether there is any potentially available information that, if obtained, would allow for a non-speculative opinion to be provided. 5. After the above development in Requests 1-2, the AOJ should refer the case for a VA orthopedic examination to determine the nature and etiology of a right foot disability. The evidence of record should be made available to the examiner for review. All required testing must be performed. The VA examiner is requested to give the following opinions: a. Whether there is clear and unmistakable evidence (obvious, manifest, undebatable) that the Veteran’s right foot disability pre-existed his military service. The Board notes that the Veteran has limited flexion of the right great toe “noted” on his February 1982 enlistment examination. The examiner should determine whether this noted impairment involves a “noted” impairment or disability of the right foot on entrance. The term “clear and unmistakable” is an onerous standard. In other words, clear and unmistakable evidence leads to a conclusion that is undebatable. b. If it is determined that the Veteran’s right foot disability clearly and unmistakably pre-existed his military service, determine whether there is clear and unmistakable evidence (obvious, manifest, undebatable) that any such pre-existing right foot disability was NOT aggravated in service. c. If it is found that there is clear and unmistakable evidence that the Veteran’s right foot disability existed prior to service AND that there is clear and unmistakable evidence that the condition was NOT aggravated by service, the examiner should clearly indicate the clear and unmistakable evidence supporting his/her conclusions. d. If, however, it is determined that there is no clear and unmistakable evidence establishing that the Veteran’s right foot disability pre-existed military service and that the pre-existing condition was NOT aggravated in service, the examiner must take as conclusive fact that the Veteran was sound on entrance into the military. If that is the conclusion reached, the examiner should provide an opinion as to whether it is at least as likely as not (50 percent probability or greater) that any currently diagnosed right foot disability was caused by or was incurred in service. The term “at least as likely as not” does not mean “within the realm of medical possibility.” Rather, it means that the weight of medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of that conclusion as it is to find against it. The examiner must provide a complete explanation for his or her opinion(s), based on his or her clinical experience, medical expertise, and established medical principles. If any of the above requested opinions cannot be made without resort to speculation, the examiner must state this and specifically explain whether there is any potentially available information that, if obtained, would allow for a non-speculative opinion to be provided. 6. Refer the Veteran’s TDIU claim to the Director, Compensation Service, for consideration of TDIU on an extraschedular basis. Include a full statement as to the Veteran’s service-connected disability, employment history, educational and vocational attainment, and all other factors having a bearing on the issue, to include any completed Application for Increased Compensation Based on Unemployability. See 38 C.F.R. 4.16 (b) (2017). 7. The AOJ must ensure that the required actions have been accomplished to the extent possible in compliance with this REMAND. If any action is not undertaken, or is taken in a deficient manner, corrective action must be undertaken before the claims file is returned to the Board. 8. After all development has been completed, the AOJ should review the case again based on the additional evidence. If the benefits sought are not granted, the AOJ should furnish the Veteran and his representative with a supplemental statement of the case, and should give the Veteran a reasonable opportunity to respond before returning the record to the Board for further review. K. Parakkal Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD M. R. Woodarek, Associate Counsel