Citation Nr: 19182829 Decision Date: 11/01/19 Archive Date: 11/01/19 DOCKET NO. 15-14 179 DATE: November 1, 2019 ORDER Entitlement to a rating in excess of 40 percent for lumbar spine disability is denied. Entitlement to a rating in excess of 10 percent for right lower extremity radiculopathy prior to June 6, 2019, is denied. Entitlement to a rating of 20 percent, and no higher, for right lower extremity radiculopathy from June 6, 2019, is granted. Entitlement to a separate rating of 10 percent, and no higher, for left lower extremity radiculopathy from March 19, 2013 to June 5, 2019, is granted. Entitlement to a separate rating of 20 percent, and no higher, for left lower extremity radiculopathy from June 6, 2019, is granted. Entitlement to a compensable rating for residual scar of lumbar spine disability is denied. Entitlement to a total disability rating based on individual unemployability (TDIU) is granted from June 6, 2019. REMANDED Entitlement to service connection for left knee disability, to include as secondary to lumbar spine disability, is remanded. Entitlement to service connection for right knee disability, to include as secondary to lumbar spine disability, is remanded. FINDINGS OF FACT 1. Throughout the appeal period, the evidence does not establish ankylosis of the thoracolumbar spine. 2. Prior to June 6, 2019, the Veteran has manifested no more than mild radiculopathy to the sciatic nerve, right lower extremity. 3. From June 6, 2019, the Veteran has manifested no more than moderate radiculopathy to the sciatic nerve, right lower extremity. 4. Resolving any doubt in favor of the Veteran, from March 19, 2013 to June 5, 2019, the Veteran has manifested no more than mild radiculopathy to the sciatic nerve, left lower extremity as a separately ratable neurological manifestation of service-connected lumbar spine disability. 5. Resolving any doubt in favor of the Veteran, from June 6, 2019, the Veteran has manifested no more than moderate radiculopathy to the sciatic nerve, left lower extremity as a separately ratable neurological manifestation of service-connected lumbar spine disability. 6. The Veteran’s posterior trunk scar is less than 6 square inches (39 square centimeters) and the scar is not deep, nonlinear, or painful, and does not cause any disabling effects, to include limitation of motion or function. 7. Resolving doubt in favor of the Veteran, his service-connected disabilities meet the percentage requirements for a schedular TDIU from June 6, 2019 and preclude him from securing and following substantially gainful employment consistent with his work and education background. CONCLUSIONS OF LAW 1. The criteria for entitlement to a rating in excess of 40 percent for lumbar spine disability have not been met. 38 U.S.C. §§ 1155, 5107(b); 38 C.F.R. §§ 4.1, 4.2, 4.6, 4.7, 4.27, 4.40, 4.45, 4.71a, Diagnostic Code 5237. 2. The criteria for a rating in excess of 10 percent for radiculopathy affecting the right lower extremity prior to June 6, 2019, have not been met. 38 U.S.C. §§ 1155, 5107(b); 38 C.F.R. §§ 3.102, 3.321(b), 4.1, 4.7, 4.40, 4.45, 4.71a, 4.124a, Diagnostic Code 8520. 3. The criteria for a rating of 20 percent, and no higher, for radiculopathy affecting the right lower extremity as of June 6, 2019, have been met. 38 U.S.C. §§ 1155, 5107(b); 38 C.F.R. §§ 3.102, 3.321(b), 4.1, 4.7, 4.40, 4.45, 4.71a, 4.124a, Diagnostic Code 8520. 4. The criteria for a rating of 10 percent, and no higher, for radiculopathy affecting the left lower extremity from March 19, 2013 to June 5, 2019, have been met. 38 U.S.C. §§ 1155, 5107(b); 38 C.F.R. §§ 3.102, 3.321(b), 4.1, 4.7, 4.40, 4.45, 4.71a, 4.124a, Diagnostic Code 8520. 5. The criteria for a rating of 20 percent, and no higher, for radiculopathy affecting the left lower extremity as of June 6, 2019, have been met. 38 U.S.C. §§ 1155, 5107(b); 38 C.F.R. §§ 3.102, 3.321(b), 4.1, 4.7, 4.40, 4.45, 4.71a, 4.124a, Diagnostic Code 8520. 6. The criteria for a compensable rating for posterior trunk scar have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.1, 4.2, 4.3, 4.7, 4.118, Diagnostic Code 7805. 7. The criteria for a total disability rating based on individual unemployability due to service-connected disabilities have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.340, 3.341, 4.3, 4.16, 4.19. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from November 1978 to May 1979 and from January 1982 to August 1987. The Board finds the Veteran’s claim for TDIU, which is based on his service-connected lumbar spine disability, is part and parcel of his increased rating claims and therefore before the Board. See Rice v. Shinseki, 22 Vet. App. 447 (2009). Although an August 2019 note from the Veteran indicated that he would like his case remanded for consideration of additional evidence by the Regional Office (RO), a later letter from his attorney clarifies that he is waiving initial RO consideration of the new evidence. Accordingly, the Board will proceed with adjudication. 1. Entitlement to a rating in excess of 40 percent for lumbar spine disability is denied. The Veteran seeks entitlement to a higher rating for his lumbar spine disability. Disability ratings are determined by applying the criteria set forth in VA’s Schedule for Rating Disabilities, which is based on the average impairment of earning capacity. Individual disabilities are assigned separate diagnostic codes. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. The basis of disability evaluations is the ability of the body as a whole, or of the psyche, or of a system or organ of the body to function under the ordinary conditions of daily life including employment. 38 C.F.R. § 4.10. In determining the severity of a disability, the Board is required to consider the potential application of various other provisions of the regulations governing VA benefits, whether or not they were raised by the Veteran, as well as the entire history of the Veteran’s disability. 38 C.F.R. § 4.1, 4.2; Schafrath v. Derwinski, 1 Vet. App. 589, 595 (1991). If the disability more closely approximates the criteria for the higher of two ratings, the higher rating will be assigned; otherwise, the lower rating is assigned. 38 C.F.R. § 4.7. When after careful consideration of all procurable and assembled data, a reasonable doubt arises regarding the degree of disability such doubt will be resolved in favor of the claimant. 38 C.F.R. § 4.3. Where factual findings show distinct time periods where the service-connected disability exhibits symptoms which would warrant different ratings, “staged” ratings may be assigned for such different periods of time. Hart v. Mansfield, 21 Vet. App. 505, 509-510 (2007). The Veteran’s lumbar myositis, status post L5-S1 laminectomy, is rated under 38 C.F.R. § 4.71a, Diagnostic Code 5237. Under the General Rating Formula for Diseases and Injuries of the Spine, a 40 percent rating is warranted for forward flexion of the thoracolumbar spine to 30 degrees or less; or, favorable ankylosis of the entire thoracolumbar spine. A 50 percent rating is warranted for unfavorable ankylosis of the entire thoracolumbar spine. A 100 percent evaluation is warranted for unfavorable ankylosis of the entire spine. 38 C.F.R. § 4.71a, General Rating Formula for Diseases and Injuries of the Spine. Any associated objective neurological abnormalities, including, but not limited to, bowel or bladder impairment, are to be evaluated separately under an appropriate diagnostic code. Id. at Note 1. When evaluating musculoskeletal disabilities based on limitation of motion, 38 C.F.R. § 4.40 requires consideration of functional loss caused by pain or other factors listed in that section that could occur during flare-ups or after repeated use and, therefore, not be reflected on range-of-motion testing. 38 C.F.R. § 4.45 requires consideration also be given to less movement than normal, more movement than normal, weakened movement, excess fatigability, incoordination, and pain on movement. See DeLuca v. Brown, 8 Vet. App. 202 (1995); see also Mitchell v. Shinseki, 25 Vet. App. 32, 44 (2011). Nonetheless, even when the background factors listed in § 4.40 or 4.45 are relevant when evaluating a disability, the rating is assigned based on the extent to which motion is limited, pursuant to 38 C.F.R. § 4.71a; a separate or higher rating under § 4.40 or 4.45 itself is not appropriate. See Thompson v. McDonald, 815 F.3d 781, 785 (Fed. Cir. 2016). Under 38 C.F.R. § 4.59, painful motion is a factor to be considered with any form of arthritis; however, 38 C.F.R. § 4.59 is not limited to disabilities involving arthritis. See Burton v. Shinseki, 25 Vet. App. 1 (2011). The preponderance of the evidence is against a rating in excess of 40 percent for the Veteran’s lumbar spine disability. The February 2014 and June 2015 VA examiners noted that the Veteran did not report flare-ups and that examination showed forward flexion to 40 degrees. During the June 2019 VA examination, range of motion examination showed flexion to 50 degrees. The Veteran reported severe lumbar spine flare-ups five times per month lasting for days during which time he has difficulty bending. The VA examiner opined that pain significantly limits functional ability and estimated that the Veteran’s range of motion was limited to 30 degrees flexion with repeated use over a period of time and during flare-ups based on the Veteran’s reports. The February 2014, June 2015, and June 2019 VA examiners all noted that there was no ankylosis. Review of the Veteran’s treatment records is also negative for any evidence of ankylosis of the thoracolumbar spine, much less the entire spine to support a disability rating in excess of 40 percent at any time during the appeal period. The Board notes that testing for pain in accordance with Correia v. McDonald, 28 Vet. App. 158 (2016), was conducted by the June 2019 VA examiner. The June 2019 VA examiner also obtained information from the Veteran regarding flare-ups in accordance with Sharp v. Shulkin, 29 Vet. App. 26 (2017). Consideration has also been given to assigning a rating under the Formula for Rating Intervertebral Disc Syndrome (IVDS) Based on Incapacitating Episodes. However, the Veteran does not have IVDS, as noted by the VA examiners during the appeal period. See 38 C.F.R. § 4.71a, Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes. The VA examinations noted radiculopathy of the lower extremities, which is addressed below, and no other neurological manifestations of the Veteran’s lumbar spine disability. The Veteran has asserted that his erectile dysfunction is secondary to his lumbar spine disability. However, the erectile dysfunction was not noted in the lumbar spine examinations as a manifestation and a March 2010 VA examiner opined that the erectile dysfunction is not related to the lumbar spine disability. As such, a separate rating for the Veteran’s erectile dysfunction is not warranted. For the foregoing reasons, the preponderance of the evidence is against the Veteran’s claim for a rating in excess of 40 percent for lumbar spine disability. In denying such a rating, the Board finds the benefit of the doubt doctrine is not applicable. 38 U.S.C. § 5107; 38 C.F.R. §§ 4.3, 4.7. 2. Entitlement to a rating in excess of 10 percent for right lower extremity radiculopathy prior to June 6, 2019, is denied. 3. Entitlement to a rating of 20 percent, and no higher, for right lower extremity radiculopathy from June 6, 2019, is granted. 4. Entitlement to a separate rating of 10 percent, and no higher, for left lower extremity radiculopathy from March 19, 2013 to June 5, 2019, is granted. 5. Entitlement to a separate rating of 20 percent, and no higher, for left lower extremity radiculopathy from June 6, 2019, is granted. The Veteran is currently receiving a 10 percent rating for right lower extremity radiculopathy associated with lumbar spine disability. He seeks entitlement to a higher rating and a separate rating for left lower extremity radiculopathy associated with his lumbar spine disability. Paralysis of the sciatic nerve is evaluated in accordance with the criteria set forth in 38 C.F.R. § 4.124a, Diagnostic Code 8520. Under these criteria, mild incomplete paralysis is rated as 10 percent disabling. Moderate incomplete paralysis is rated as 20 percent disabling. Moderately severe incomplete paralysis is rated as 40 percent disabling. Severe incomplete paralysis, with marked muscular atrophy, is rated as 60 percent disabling. Complete paralysis, with the foot dangles and drops, no active movement possible of muscles below the knee, flexion of knee weakened or (very rarely) lost, is rated as 80 percent disabling. 38 C.F.R. § 4.124a. The words “mild,” “moderate,” and “severe” as used in the various Diagnostic Codes are not defined in the Rating Schedule. Regulations provide that ratings for peripheral neurological disorders are to be assigned based the relative impairment of motor function, trophic changes, or sensory disturbance. 38 C.F.R. § 4.120. Consideration is also given for loss of reflexes, pain, and muscle atrophy. See 38 C.F.R. §§ 4.123, 4.124. The term “incomplete paralysis” indicates a degree of lost or impaired function substantially less than the type picture for complete paralysis given with each nerve, whether due to varied level of the nerve lesion or to partial regeneration. When the involvement is wholly sensory, the rating is for the mild, or at most, the moderate degree. See 38 C.F.R. § 4.124a; Miller v. Shulkin, 28 Vet. App. 376 (2017). Viewing the evidence as a whole, the Board finds that a rating in excess of 10 percent for right lower extremity radiculopathy is not warranted prior to June 6, 2019, and that a rating of 20 percent is warranted for right lower extremity radiculopathy from June 6, 2019; and that a separate 10 percent rating is warranted for left lower extremity radiculopathy from the beginning of the appeal period (March 19, 2013) to June 5, 2019, and that a 20 percent rating is warranted for left lower extremity radiculopathy from June 6, 2019. The February 2014 VA examiner noted right lumbar radiculopathy and piriformis syndrome. Muscle strength testing was 4 out of 5, or active movement against some resistance. There was no muscle atrophy. Reflex examination showed normal reflexes in the knees but hypoactive reflexes in the ankles. Sensory examination was normal in the upper anterior thigh, thigh/knee, and lower leg/ankle, but decreased in the foot/toes bilaterally. The straight leg raising test was positive on the right and negative on the left. The VA examiner noted radicular symptoms of mild numbness in the left lower extremity but no other radicular symptoms. However, the VA examiner then noted right side sciatic nerve involvement which was evaluated as mild, with no radiculopathy on the left side. No other neurologic abnormalities were noted. During the June 2015 VA examination, the Veteran reported lower back pain with radiation down the right lower extremity. The June 2015 VA examiner noted right lumbar radiculopathy and piriformis syndrome. Muscle strength testing showed 4 out of 5, or active movement against some resistance, bilaterally. There was no muscle atrophy. Reflex examination showed normal reflexes in the knees but hypoactive reflexes in the ankles. Sensory examination was normal in the upper anterior thigh, thigh/knee, and lower leg/ankle, but decreased in the foot/toes bilaterally. The straight leg raising test was positive on the right and negative on the left. The VA examiner noted radicular symptoms of mild numbness in the left lower extremity but no other radicular symptoms. However, the VA examiner then noted right side sciatic nerve involvement which was evaluated as mild, with no radiculopathy on the left side. No other neurologic abnormalities were noted. A December 2018 VA examiner noted bilateral peripheral neuropathy of the lower extremities. The Veteran reported that he had experienced left lower extremity numbness, cramps, and tingling for the prior six months. He also reported right lower extremity numbness and tingling. The VA examiner noted mild intermittent pain, paresthesias and/or dysesthesias, and numbness in the right lower extremity. The VA examiner noted moderate intermittent pain, mild paresthesias and/or dysesthesias, and mild numbness in the left lower extremity. The VA examiner noted mild incomplete paralysis of the sciatic nerve bilaterally. Muscle strength testing was 4 out of 5 or active movement against some resistance. There was no muscle atrophy. Reflexes were normal in the knees and hypoactive in the ankles. Sensation was decreased in the lower leg/ankle and foot/toes. The VA examiner noted loss of hair on the bilateral lower extremities. The December 2018 VA examiner opined that the Veteran’s left leg numbness was less likely than not due to the Veteran’s service-connected lumbar spine disability. The VA examiner noted that there was no objective evidence of left lumbar radiculopathy on examination. The VA examiner also explained that peripheral neuropathy is a different disease process from lumbar disability affecting nerve endings in the distal extremities most likely caused by his endocrine condition. The June 2019 VA examiner noted bilateral lower extremity radiculopathy secondary to the service-connected lumbar spine disability. Muscle strength testing was normal and there was no atrophy. Reflexes in the knees and ankles were hypoactive. Sensory examination in the upper anterior thigh and thigh/knee was normal, but sensation was decreased in the lower leg/ankle and foot/toes. Straight leg testing was normal. The VA examiner noted bilateral sciatic nerve involvement with moderate constant pain, paresthesias and/or dysesthesias, and numbness. The VA examiner evaluated the radiculopathy as moderate. Although the February 2014 and June 2015 VA examiners did not note radiculopathy of the left side sciatic nerve, the VA examiners noted left lower extremity radicular symptoms and a later VA examiner diagnosed the Veteran with left side sciatic radiculopathy. In addition, although the December 2018 VA examiner opined that the Veteran’s left lower extremity symptoms were not related to his lumbar spine disability, a later VA examiner connected these symptoms to his lumbar spine disability. Resolving doubt in favor of the Veteran, the Board finds the Veteran is entitled to a separate rating for left lower extremity radiculopathy related to his lumbar spine disability throughout the appeal period. Viewing the evidence as a whole, the Board finds the Veteran’s bilateral lower extremity radiculopathy most closely approximates mild radiculopathy prior to June 6, 2019. Prior to June 6, 2019, the Veteran described his symptoms as mild, with the exception of a report of moderate intermittent pain in the left lower extremity at the time of the December 2018 VA examination. Muscle strength testing during the February 2014, June 2015, and December 2018 VA examinations showed slightly less than normal readings, at 4 out of 5, and there was some decreased sensation and some hypoactive reflexes, but there was no evidence of muscle atrophy. The December 2018 VA examiner also noted loss of hair. The February 2014, June 2015, and December 2018 VA examiners all evaluated the Veteran’s radiculopathy as mild. The evidence does not show radiculopathy more closely approximating moderate radiculopathy prior to June 6, 2019. Accordingly, 10 percent ratings, and no higher, are appropriate for the Veteran’s left and right lower extremity radiculopathy prior to June 6, 2019. The Board also finds the Veteran’s bilateral lower extremity radiculopathy most closely approximates moderate radiculopathy as of June 6, 2019, warranting separate 20 percent ratings. There was some decreased sensation and the Veteran’s reflexes were hypoactive but muscle strength testing was normal with no atrophy. The Veteran’s symptoms were described as moderate and his overall radiculopathy was evaluated as moderate. The evidence does not show radiculopathy more closely approximating moderately severe radiculopathy. Accordingly, 20 percent ratings, and no higher, are appropriate for the Veteran’s left and right lower extremity radiculopathy as of June 6, 2019. Accordingly, the Board finds that a rating in excess of 10 percent for right lower extremity radiculopathy is not warranted prior to June 6, 2019, that a rating of 20 percent is warranted for right lower extremity radiculopathy from June 6, 2019, that a separate 10 percent rating is warranted for left lower extremity radiculopathy from the beginning of the appeal period to June 5, 2019, and that a 20 percent rating is warranted for left lower extremity radiculopathy from June 6, 2019. The preponderance of the evidence is against the assignment of higher, or additional, ratings. 6. Entitlement to a compensable rating for residual scar of lumbar laminectomy is denied. The Veteran’s posterior trunk scar is assigned a separate noncompensable rating under 38 C.F.R. § 4.118, Diagnostic Code 7805. Such provides that any disabling effects of other scars and other effects of scars evaluated under Diagnostic Codes 7800, 7801, 7802, and 7804 that are not considered in a rating provided under those Diagnostic Codes should be evaluated under an appropriate Diagnostic Code. As Diagnostic Code 7800 pertains to burn scars, other scars, or other disfigurement of the head, face, or neck, such is inapplicable in the instant case as the Veteran’s scar is on his trunk. Burn scars or scars due to other causes, not of the head, face, or neck, that are deep and nonlinear are awarded a 10 percent rating when they have an area or areas of at least 6 square inches but less than 12 square inches. 38 C.F.R. § 4.118, Diagnostic Code 7801. Higher disability ratings are available with a greater area or areas of involvement. Burn scars or scars due to other causes not of the head, face, or neck, that are superficial and nonlinear are awarded a 10 percent rating only when they have an area or areas of 144 square inches or greater. 38 C.F.R. § 4.118, Diagnostic Code 7802. One or two scars that are unstable or painful are awarded a 10 percent rating. Three or four scars a 20 percent disability rating. Five or more scars that are unstable or painful warrant a 30 percent disability rating. 38 C.F.R. § 4.118, Diagnostic Code 7804. The February 2014 and June 2015 VA examiners noted a linear scar on the Veteran’s posterior trunk that was not painful, unstable, or greater than 39 square centimeters (6 square inches). The VA examiners noted a linear scar, 6.5 centimeters long. The June 2019 VA examiner also noted the residual scar of the Veteran’s lumbar laminectomy located on the Veteran’s posterior trunk that was not painful, unstable, or greater than 39 square centimeters (6 square inches). The VA examiner noted that the scar did not result in limitation of function, to include limitation of motion. The Veteran’s posterior trunk scar is less than 6 square inches (39 square centimeters), not deep, nonlinear, or painful, and did not cause any disabling effects, to include limitation of motion or function. Accordingly, the Board finds that a compensable rating for the posterior trunk scar is not warranted at any time during the appeal period. 7. Entitlement to TDIU is granted. The Veteran seeks entitlement to a TDIU contending that his service-connected disabilities prevent him from obtaining or maintaining substantially gainful employment. TDIU may be assigned when the disabled person is unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities, provided that the Veteran meets the schedular requirements. If there is only one service-connected disability, this disability should be rated at 60 percent or more, but if there are two or more disabilities, at least one should be rated at 40 percent or more with sufficient additional service-connected disability to bring the combination to 70 percent or more. The ultimate question of whether a Veteran is capable of substantially gainful employment is not a medical one; that determination is for the adjudicator. See Geib v. Shinseki, 733 F.3d 1350, 1354 (Fed. Cir. 2013); Floore v. Shinseki, 26 Vet. App. 376, 381 (2013). Here, in light of the above determinations, the Veteran meets the schedular criteria for TDIU pursuant to 38 C.F.R. § 4.16(a) as of June 5, 2019. The Veteran is in receipt of service-connected benefits including 40 percent for his lumbar spine disability, 20 percent for right lower extremity radiculopathy, 20 percent for left lower extremity radiculopathy, and 10 percent for GERD. His combined rating is 70 percent. Therefore, the remaining inquiry is whether such disabilities rendered the Veteran unable to secure or follow a substantially gainful occupation. The Veteran has a high school education and some vocational training in refrigeration. He worked as a supervisor of floor staff on machines and quality control in manufacturing, spending most of his time walking and standing to supervise staff. He reported that eventually his back and right leg pain was too severe to continue working and he ended his employment. He also reported that he applied for other positions but was turned down to his physical problems, including his back. He reported military experience as a warehouse worker. See August 2017 Vocational Assessment; July 2017 Veteran’s Statement; January 2001 Social Security Administration Assessment. The February 2014 and June 2015 VA examiners opined that the Veteran is limited to a sedentary job. The June 2015 VA examiner explained that the Veteran could only perform a position, such as office work, where he could adjust or change his body position, not push, pull, lift, or carry objects more than 10 pounds repeatedly, and not stand or walk for more than 15 minutes consecutively. The June 2019 VA examiner opined that the Veteran’s lumbar spine disability results in difficulty with prolonged standing, walking, or climbing stairs. Given the Veteran’s functional impairment, including limitations in standing and walking, his educational background of high school and some vocational training in refrigeration, and his occupational history of working in manufacturing and warehouses where he was required to stand and walk to perform his position, the Board finds the evidence is at least in equipoise as to whether the Veteran’s service-connected disabilities prevent him from securing and maintaining gainful employment. REASONS FOR REMAND 1. Entitlement to service connection for left knee disability, to include as secondary to lumbar spine disability, is remanded. 2. Entitlement to service connection for right knee disability, to include as secondary to lumbar spine disability, is remanded. The Veteran asserts that his bilateral knee disability is related to his service-connected lumbar spine disability. A February 2014 VA examiner diagnosed the Veteran with patellar enthesopathy and degenerative changes of both knees. The VA examiner opined that the Veteran’s bilateral knee disability is less likely than not proximately due to or the result of the Veteran’s service-connected back disability. The VA examiner explained that the degenerative changes are secondary to the normal process of aging, and that the patellar enthesopathy has a different etiology unrelated to the lumbar condition. However, the VA examiner did not offer an opinion regarding the aggravation aspect of secondary service connection. Accordingly, an opinion should be obtained regarding whether the Veteran’s bilateral knee disability is at least as likely as not aggravated by his service-connected lumbar spine disability. The matters are REMANDED for the following action: 1. Obtain outstanding VA treatment records, including any VA treatment records from August 2019 to the present. 2. After obtaining any outstanding records to the extent possible, ask the appropriate examiner (for knee disability) to review the Veteran’s file. The necessity of an in-person examination, with any appropriate testing, is left to the discretion of the examiner. For each knee disability, the examiner should opine whether it is at least as likely as not (a 50 percent or greater probability) that the disability is aggravated by the Veteran’s service-connected lumbar spine with radiculopathy disability. Note that aggravation means any incremental increase in disability in non-service-connected disabilities (i.e., any additional impairment of earning capacity) resulting from service-connected condition. The examiner is asked to explain the reasons behind any opinions expressed and conclusions reached. The examiner is reminded that the term “as likely as not” does not mean “within the realm of medical possibility,” but rather that the evidence of record is so evenly divided that, in the examiner’s expert opinion, it is as medically sound to find in favor of the proposition as it is to find against it. Bethany L. Buck Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board A. Purcell, Associate Counsel The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential, and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.