Citation Nr: 20021393 Decision Date: 03/25/20 Archive Date: 03/25/20 DOCKET NO. 15-41 328 DATE: March 25, 2020 ORDER Entitlement to an evaluation in excess of 30 percent for left lower extremity peripheral neuropathy is denied. Entitlement to an evaluation in excess of 30 percent for right lower extremity peripheral neuropathy is denied. Entitlement to an initial evaluation of 10 percent for left hand peripheral neuropathy prior to December 11, 2017, is denied, and an evaluation of 20 percent is granted from that date, subject to the law and regulations governing the payment of monetary benefits. Entitlement to an initial evaluation of 10 percent for right hand peripheral neuropathy prior to December 11, 2017, is denied, and an evaluation of 30 percent is granted from that date, subject to the law and regulations governing the payment of monetary benefits. Entitlement to a total disability rating based on individual unemployability (TDIU), from February 19, 2014, through August 5, 2015, is granted, subject to the law and regulations governing the payment of monetary benefits. REMANDED Entitlement to service connection for a sinus disorder, to include as secondary to diabetes mellitus, is remanded. Entitlement to service connection for headaches, to include as secondary to diabetes mellitus, is remanded. Entitlement to an initial compensable evaluation for bilateral hearing loss is remanded. Entitlement to an initial evaluation in excess of 10 percent for tinnitus is remanded. Entitlement to a TDIU prior to February 18, 2014, is remanded. FINDINGS OF FACT 1. The Veteran’s left lower extremity peripheral neuropathy is not characterized by complete paralysis of the quadriceps extensor muscles. 2. The Veteran’s right lower extremity peripheral neuropathy is not characterized by complete paralysis of the quadriceps extensor muscles. 3. Prior to December 11, 2017, the Veteran’s left hand peripheral neuropathy was characterized by mild incomplete paralysis of the ulnar nerve. 4. From December 11, 2017, the Veteran’s left hand peripheral neuropathy has been characterized by moderate incomplete paralysis of the ulnar nerve. 5. Prior to December 11, 2017, the Veteran’s right hand peripheral neuropathy was characterized by mild incomplete paralysis of the ulnar nerve. 6. From December 11, 2017, the Veteran’s right hand peripheral neuropathy has been characterized by moderate incomplete paralysis of the ulnar nerve. 7. The functional impairment from the Veteran’s service-connected disabilities, alone, were of such severity from February 19, 2014, through August 5, 2015, as to effectively preclude all forms of substantially gainful employment for which the Veteran’s education and occupational experience would otherwise qualify him. CONCLUSIONS OF LAW 1. The criteria for an evaluation in excess of 30 percent for left lower extremity peripheral neuropathy have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.3, 4.7, 4.124a, Diagnostic Code 8526. 2. The criteria for an evaluation in excess of 30 percent for right lower extremity peripheral neuropathy have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.3, 4.7, 4.124a, Diagnostic Code 8526. 3. The criteria for an initial evaluation of 10 percent for left hand peripheral neuropathy prior to December 11, 2017 have not been met; the criteria for a 20 percent, but not greater, evaluation from that date have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.3, 4.7, 4.124a, Diagnostic Code 8616. 4. The criteria for an initial evaluation of 10 percent for right hand peripheral neuropathy prior to December 11, 2017 have not been met: the criteria for a 30 percent, but not greater, evaluation from that date have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.3, 4.7, 4.124a, Diagnostic Code 8616. 5. The criteria for a TDIU from February 19, 2014, through August 5, 2015 have been met. 38 U.S.C. §§ 1155, 5107(b); 38 C.F.R. §§ 3.102, 3.340, 3.341, 4.16, 4.18, 4.19. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service from September 1963 to August 1967. This claim was previously before the Board in January 2019, at which time the Board remanded it for additional development. The requested development has been completed on the issues of entitlement to increased evaluations for left and right lower extremity peripheral neuropathy, left and right hand peripheral neuropathy, and entitlement to a TDIU from February 19, 2014 through August 5, 2015, and these issues are properly before the Board for appellate consideration. Increased Rating Disability ratings are based upon VA’s Schedule for Rating Disabilities as set forth in 38 C.F.R. Part 4. The percentage ratings represent as far as can practicably be determined the average impairment in earning capacity in civil occupations. 38 U.S.C. § 1155. The disability must be viewed in relation to its history. 38 C.F.R. § 4.1. A higher evaluation shall be assigned where the disability picture more nearly approximates the criteria for the next higher evaluation. 38 C.F.R. § 4.7. In general, when an increase in the disability rating is at issue, it is the present level of disability that is of primary concern. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994). However, consideration also must be given as to whether staged ratings should be assigned to reflect entitlement to a higher rating at any point during the pendency of the claim. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). 1. Entitlement to an evaluation in excess of 30 percent for left lower extremity peripheral neuropathy 2. Entitlement to an evaluation in excess of 30 percent for right lower extremity peripheral neuropathy Diagnostic Code 8526 provides ratings for paralysis of the anterior crural (femoral) nerve. Severe incomplete paralysis is rated 30 percent disabling. Complete paralysis of the quadriceps extensor muscles is rated 40 percent disabling. Diagnostic 8626 provides a rating for neuritis of the anterior crural nerve, and Diagnostic Code 8726 provides a rating for neuralgia of the anterior crural nerve. 38 C.F.R. § 4.124a. At an August 2014 VA examination, the Veteran reported severe constant pain, paresthesias and/or dysesthesias, and numbness in the lower extremities. Strength, deep tendon reflexes, and vibration sensation were decreased in the lower extremities. Light touch was decreased in the ankles and lower legs and absent in the feet and toes. The examiner opined that the Veteran had mild incomplete paralysis of the sciatic nerves. The Veteran had another VA examination in May 2016 at which he reported mild intermittent pain in the lower extremities, mild paresthesias and/or dysesthesias, and moderate numbness. There was decreased strength in the knees, and otherwise normal strength in the lower extremities. Deep tendon reflexes and vibration sensation were decreased in the lower extremities, and light touch/monofilament testing was decreased in the feet/toes. The examiner felt that the Veteran had mild incomplete sciatic nerve paralysis. A private physician wrote in June 2016 that the Veteran had painful dysesthesias and cold sensations from the mid tibias. It had slowly progressed, and the physician felt that there would continue to be slow worsening of numbness and gait imbalance. The Veteran reported increased lower extremity neuropathy at August 2016 VA treatment. His wife wrote in October 2017 that the Veteran does not have much feeling in his feet and ankles. He could not stand or walk for more than five minutes, needed a cane to walk, and used a wheelchair when they went somewhere with a lot of walking. The Veteran had fallen once during the year due to neuropathy. October 2017 private treatment records indicate that the Veteran had decreased sensation in the lower extremities. The Veteran had an examination arranged through VA in April 2019 at which he reported intermittent pain, severe paresthesias and/or dysesthesias, and severe numbness in the lower extremities. Strength, deep tendon reflexes, light touch, position sense, vibration sensation, and cold sensation were decreased bilaterally. The examiner felt that the Veteran had mild incomplete paralysis of the femoral nerve. The Veteran does not qualify for evaluations of 40 percent, the next highest available, for left and right lower extremity peripheral neuropathy because the record, including the April 2019 examination, does not show complete paralysis of the quadriceps extensor muscles. See 38 C.F.R. § 4.124a, Diagnostic Code 8526. Finally, in light of the holding in Hart, supra, the Board has considered whether the Veteran is entitled to “staged” ratings for his service-connected left and right lower extremity peripheral neuropathy, as the Court indicated can be done in this type of case. Based upon the record, we find that at no time during the claims period have the disabilities on appeal been more disabling than as currently rated under the present decision of the Board. Because the evidence preponderates against the claims for evaluations in excess of 30 percent for left and right lower extremity peripheral neuropathy, the benefit of the doubt doctrine is inapplicable, and the claims must be denied. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 55-57 (1990). 3. Entitlement to an initial evaluation in excess of 10 percent for left hand peripheral neuropathy 4. Entitlement to an initial evaluation in excess of 10 percent for right hand peripheral neuropathy Diagnostic Code 8516 provides ratings for paralysis of the ulnar nerve. Mild incomplete paralysis is rated 10 percent disabling on the major side and 10 percent on the minor side; moderate incomplete paralysis is rated 30 percent disabling on the major side and 20 percent on the minor side; and severe incomplete paralysis is rated 40 percent disabling on the major side and 30 percent on the minor side. Complete paralysis of the ulnar nerve, the “griffin claw” deformity, due to flexor contraction of ring and little fingers, atrophy very marked in dorsal interspace and thenar and hypothenar eminences; loss of extension of ring and little fingers, cannot spread the fingers (or reverse), cannot adduct the thumb; flexion of wrist weakened, is rated 60 percent disabling on the major side and 50 percent on the minor side. Diagnostic Code 8616 provides a rating for neuritis of the ulnar nerve. Diagnostic Code 8716 provides a rating for neuralgia of the ulnar nerve. The term “incomplete paralysis” with this and other peripheral nerve injuries indicates a degree of lost or impaired function substantially less than the type pictured 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 should be for the mild, or at most, the moderate degree. The ratings for the peripheral nerves are for unilateral involvement; when there is bilateral involvement, the VA adjudicator is to combine the ratings for the peripheral nerves, with application of the bilateral factor. 38 C.F.R. § 4.124a. The record, including the March 2014 and April 2019 examinations, shows that the Veteran is right-handed. Service connection is in effect for the left hand from March 8, 2011 and the right hand from March 13, 2014. Therefore, increased ratings will be considered from these dates. At August 2011 VA treatment the Veteran reported numbness in his left hand. A nerve conduction study showed left median distal motor latency delay. At September 2011 VA neurology treatment it was noted that the Veteran had numbness and tingling in his hands and that he had diabetic peripheral neuropathy. The Veteran had a VA examination in October 2011 at which the left upper extremity did not have constant or intermittent pain, paresthesias and/or dysesthesias, or numbness. Light touch was decreased to the left hand and fingers. Position sense, vibration sensation, and cold sensation were normal. The examiner did not feel that the Veteran had left upper extremity diabetic peripheral neuropathy. At September 2013 VA neurology treatment, the Veteran reported stinging pains in his hands that was exacerbated by cold weather or fine motor activities. On examination, there was full strength in the arms, except for decreased grip strength. Light touch was intact in the arms and decreased in the hands. A nerve conduction study showed bilateral mild symmetric generalized axonal sensorimotor polyneuropathy. The Veteran had a VA examination in March 2014 at which he reported numbness in his hands and fingers. It was difficult to “pick up objects,” and he “cut fingers with a hobby knife” without realizing it. The numbness was getting worse. The symptoms were paresthesias and/or dysesthesias, which were moderate on the right and severe on the left, and numbness, which was moderate on the right and severe on the left. There was not constant or intermittent pain. On examination, there was decreased strength and deep tendon reflexes. Light touch was decreased in the forearms and right hand/fingers, and absent in the left hand/fingers. Vibration sensation was decreased bilaterally. The examiner felt that overall the Veteran had bilateral mild incomplete paralysis of the ulnar nerves. The Veteran underwent a left intramuscular ulnar nerve decompression in May 2014 due to cubital tunnel syndrome and carpal tunnel syndrome. At an August 2014 VA examination, it was noted that there was no additional feeling in the left hand post-surgery, and there was still numbness and tingling in the left arm and hand. The symptoms were paresthesias and/or dysesthesias, which were moderate bilaterally, and numbness, which was severe on the left and moderate on the right. There was not constant or intermittent pain. On examination, there was decreased strength and deep tendon reflexes. Light touch was decreased in the forearms and fingers. Vibration sensation and position sense were decreased bilaterally. The examiner felt that overall the Veteran had bilateral mild incomplete paralysis of the ulnar nerves. An October 2014 nerve conduction study and EMG were consistent with diffuse, predominantly axonal sensorimotor polyneuropathy, superimposed moderate right median mononeuropathy, at or distal to the wrist, and right ulnar mononeuropathy, across the elbow segment. At the May 2016 VA examination, the Veteran did not report upper extremity pain. There was mild paresthesias and/or dysesthesias and numbness. Left wrist strength and grip strength were reduced. Deep tendon reflexes, light touch/monofilament testing, and vibration were normal. The examiner felt that the Veteran had mild incomplete ulnar nerve paralysis. The Veteran’s wife wrote in an October 2017 statement received on December 11, 2017, that the Veteran could no longer work on cars or models because his fine motor skills were gone. He could not open a bottle of soda or hold onto smaller objects. The Veteran had an examination arranged through VA in April 2019 at which he reported moderate numbness in the upper extremities. There was not constant or intermittent pain or paresthesias and/or dysesthesias. Strength, deep tendon reflexes, position sense, vibration sensation, and cold sensation were decreased bilaterally. Light touch was decreased in the left upper extremity and normal in the right upper extremity. The examiner diagnosed the Veteran with moderate incomplete radial nerve paralysis in the left and right upper extremities. The Veteran does not qualify for ratings greater than 10 percent prior to December 11, 2017, for right and left upper extremity peripheral neuropathy. At the October 2011 VA examination, the examiner did not feel that the Veteran had left hand peripheral neuropathy, and the symptoms were decreased light touch. September 2011 VA treatment records showed a diagnosis of neuropathy, and an August 2011 nerve conduction study showed left median distal motor latency delay. The March 2014 VA examiner felt that overall the Veteran had bilateral mild incomplete paralysis of the ulnar nerves. It was difficult for him to “pick up objects,” and he had accidentally “cut himself with a knife” due to the neuropathy. The May 2016 VA examiner also felt that the Veteran had mild left and right hand peripheral neuropathy. Overall, the record does not show that the left and right hand peripheral neuropathy was moderate, as is required for evaluations in excess of 10 percent. 38 C.F.R. § 4.124a, Diagnostic Code 8616. The Veteran’s wife’s statement that was submitted on December 11, 2017 indicates that his fine motor skills were gone, and that he could no longer work on cars, models, perform repairs, or open a bottle of soda. The April 2019 examiner felt that the Veteran had moderate incomplete radial nerve paralysis in the left and right upper extremities. Therefore, evaluations of 30 percent for the right (major) upper extremity and 20 percent for the left (minor) upper extremity are granted from December 11, 2017. See 38 C.F.R. § 4.124a, Diagnostic Code 8616. The Veteran does not qualify for evaluations of 40 percent for the right hand and 30 percent for the left hand because the record does not show severe peripheral neuropathy of the hands. See id. It is noted that at the April 2019 examination there was moderate numbness in the upper extremities and that there was not pain or paresthesias and/or dysesthesias. Overall, the symptomatology is consistent with the assigned 30 and 20 percent, but not higher, ratings from December 11, 2017. TDIU 5. Entitlement to a TDIU from February 19, 2014, through August 5, 2015 It is the established policy of VA that all veterans who are unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities shall be rated totally disabled. 38 C.F.R. § 4.16(b). A TDIU will be considered to exist when there is present any impairment of mind or body which is sufficient to render it impossible for the average person to follow a substantially gainful occupation. Total disability ratings for compensation may be assigned, where the schedular rating is less than total, when the disabled person is, in the judgment of the rating agency, unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities, provided that if there is only one such disability, this disability shall be ratable at 60 percent or more, and that, if there are two or more such disabilities, there shall be at least one disability ratable at 40 percent or more, and sufficient additional disability to bring the combined rating to 70 percent or more. 38 C.F.R. § 4.16(a). For the purpose of determining whether there is one disability evaluated at 60 percent, or one disability evaluated at 40 percent where the combined rating of all service-connected disabilities is 70 percent or greater, disabilities resulting from a common etiology will be considered as “one disability.” Where these percentage requirements are not met, entitlement to benefits on an extraschedular basis may be considered when a veteran is unable to secure and follow a substantially gainful occupation by reason of service-connected disability. See 38 C.F.R. § 4.16(b). The Board does not have the authority to assign an extraschedular TDIU in the first instance. See Bowling v. Principi, 15 Vet. App. 1 (2001). In determining whether unemployability exists, consideration may be given to the veteran’s level of education, special training, and previous work experience, but may not be given to his or her age or to any impairment caused by nonservice-connected disabilities. 38 C.F.R. §§ 3.341, 4.16, 4.19. The central inquiry is, “whether the veteran’s service-connected disabilities alone are of sufficient severity to produce unemployability.” Hatlestad v. Brown, 5 Vet. App. 524, 529 (1993). Neither nonservice-connected disabilities nor advancing age may be considered in the determination. 38 C.F.R. §§ 3.341, 4.19; Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993). In the Veteran’s case, for the period from February 19, 2014, through August 5, 2015, service connection was in effect for peripheral neuropathy of the left lower extremity, rated 30 percent, peripheral neuropathy of the right lower extremity, rated 30 percent, peripheral neuropathy of the left hand, diabetes, rated 20 percent, peripheral neuropathy of the right hand, rated 10 percent, tinnitus, rated 10 percent, bilateral hearing loss, rated 0 percent, and left arm scars, rated 0 percent. The combined rating was 70 percent. Since the upper and lower extremity neuropathy are all related to the service-connected diabetes, they will be considered one disability for TDIU. Therefore, the Veteran met the schedular requirement because the combined rating was at least 70 percent with one disability rated at least 40 percent. 38 C.F.R. § 4.16(a). Service connection for posttraumatic stress disorder was in effect from May 27, 2014, with a rating of 30 percent. The Veteran is an electrician, and he last worked in 2008. He has a high school education, and additional vocational training. In a December 2019 rating decision, a TDIU was granted effective August 6, 2015, which was the date he filed a claim for a TDIU. Evidence of unemployability is submitted during the appeal from an assigned disability rating, a claim for a TDIU will be considered part and parcel of the claim for benefits for the underlying disability. Rice v. Shinseki, 22 Vet. App. 447, 453-54 (2009). Therefore, the issue of entitlement to a TDIU prior to that date is before the Board due to the increased rating claims. The record shows that the Veteran met the schedular requirements for a TDIU under 38 C.F.R. § 4.16(a) as of February 19, 2014. Furthermore, the service-connected disabilities prevented him from working as of that date. The Board notes that the effective date of August 6, 2015, was used because that was the date a TDIU claim was specifically filed. There is nothing in the record to indicate that the Veteran first became unable to follow a substantially gainful occupation as of that date. Therefore, a TDIU is granted for the period from February 19, 2014, through August 5, 2015. REASONS FOR REMAND VA treatment records to January 2020 have been associated with the claims file. The RO should attempt to obtain all relevant VA treatment records dated from January 2020 to the present, while the claim is in remand status. Bell v. Derwinski, 2 Vet. App. 611 (1992). 1. Entitlement to service connection for a sinus disorder, to include as secondary to diabetes mellitus, is remanded. The Veteran had an examination arranged through VA in April 2019 at which he was diagnosed with chronic sinusitis. The examiner did not provide an opinion regarding whether sinusitis is related to service on a direct basis. In an examination report addendum from later in April 2019, a physician opined that it is less likely than not that a sinus disorder is directly related to active service. The rationale was the lack of treatment during or within a year of service and that the separation examination was negative. The notes to the treatment records included with the opinion only indicate sinus symptoms beginning in December 2013. It was noted at the April 2019 examination that the onset of symptoms was 1980. In May 2014 the Veteran wrote that he had had sinus issues for several years. Therefore, the April 2019 opinion on service connection on a direct basis is inadequate because it does not consider the longevity of the Veteran’s symptomatology. A new opinion must be obtained before the claim can be decided on the merits. 2. Entitlement to service connection for headaches, to include as secondary to diabetes mellitus, is remanded. The Veteran had an examination for headaches that was arranged by VA in April 2019. In an examination report addendum from later in April 2019, a physician opined that it is less likely than not that the Veteran’s headaches are directly related to active duty. The rationale included the lack of pertinent service treatment records. However, the service treatment records show that in September 1963 the Veteran complained of a cold and fever with a headache. Furthermore, in January 1966 the Veteran suffered a concussion when he fell and hit his head. The April 2019 opinion is inadequate because it does not consider this in-service treatment. Therefore, a new opinion must be obtained before the claim can be decided on the merits. 3. Entitlement to an initial compensable evaluation for bilateral hearing loss is remanded. 4. Entitlement to an initial evaluation in excess of 10 percent for tinnitus is remanded. The Veteran had an examination arranged through VA in April 2019. The examiner wrote that the Veteran’s responses were inconsistent and that the pure tone averages did not match the speech recognition scores. The pure tone air and bone conduction thresholds were not consistent during testing. The examiner noted that the Veteran was able to hear her talking at a normal conversation level but did not respond to pure tones until the profound hearing loss range. She felt that the test results had a poor reliability and inconsistent findings. The record shows that the Veteran has dementia, and the examination report does not indicate that the unreliable results were due to a lack of effort by the Veteran. Therefore, the Veteran should be scheduled for a new examination before the claims can be decided on the merits. 5. Entitlement to a TDIU prior to February 18, 2014, is remanded. Prior to February 18, 2014, service connection was in effect for peripheral neuropathy of the left lower extremity, rated 20 percent, peripheral neuropathy of the right lower extremity, rated 20 percent, peripheral neuropathy of the left hand, rated 10 percent, and diabetes, rated 10 percent. The combined rating was 50 percent. Since the Veteran did not have one service-connected disability with an evaluation of at least 60 percent, or two or more disabilities with a combined rating of at least 70 percent with one disability rated at 40 percent, the initial criteria for schedular consideration for the grant of TDIU under 38 C.F.R. § 4.16(a) were not met. A TDIU evaluation can still be awarded if it is established by the evidence of record that service-connected disabilities rendered the Veteran unable to secure and follow substantially gainful employment. If this is established, the case is to be sent to the Director of Compensation Service for extraschedular consideration. See 38 C.F.R. §§ 3.340(a), 3.341(a), 4.16(b). The Veteran’s wife wrote in October 2017 that the Veteran was forced to retire early in 2008 because of neuropathy. He climbed ladders as part of his work, which had become dangerous due to the lack of balance and control in his feet. An October 2011 VA examiner felt that the Veteran would be unable to work in his former occupation of electrician due to neuropathy. Since there is probative evidence of record that the Veteran may have been unable to secure and follow a substantially gainful occupation due to his service-connected disabilities prior to February 18, 2014, the Board therefore finds that consideration of this TDIU claim for extra-schedular consideration is appropriate under 38 C.F.R. § 4.16(b). In light of this evidence, the Board finds the issue of entitlement to TDIU benefits under 38 C.F.R. § 4.16(b) should be referred to the Director of Compensation Service for adjudication. For all of the above reasons, the Board finds that a remand for this referral is warranted. The matters are REMANDED for the following action: 1. Obtain VA treatment records from January 2020 to the present. 2. Obtain an addendum to the April 2019 examiner’s opinion regarding the etiology of the sinusitis. The Veteran’s claims folder should be provided to the reviewer prior to completion of the opinion. The examiner should opine whether it is at least as likely as not (50 percent or greater probability) that sinusitis is related to an in-service injury, event, or disease. The examiner should also provide an opinion as to whether sinusitis is at least as likely as not (50 percent or greater probability) (1) proximately due diabetes mellitus, or (2) aggravated beyond its natural progression by diabetes mellitus. The term ‘at least as likely as not’ does not mean within the realm of medical possibility, but rather that the medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor as it is to find against it. The examiner must discuss the medical rationale for all opinions expressed, whether favorable or unfavorable, if necessary, citing to specific evidence in the file. The examiner should also consider the Veteran’s reports of having sinus symptomatology since at least 1980. If the examiner cannot provide his or her requested opinion without resorting to speculation, he or she should state why that is the case. 3. Obtain an addendum to the April 2019 examiner’s opinions regarding the etiology of the Veteran’s headaches. The Veteran’s claims folder should be provided to the reviewer prior to completion of the opinion. The examiner should opine whether it is at least as likely as not (50 percent or greater probability) that headaches are related to an in-service injury, event, or disease. The examiner should also provide an opinion as to whether headaches are at least as likely as not (50 percent or greater probability) (1) proximately due diabetes mellitus, or (2) aggravated beyond its natural progression by diabetes mellitus. The term ‘at least as likely as not’ does not mean within the realm of medical possibility, but rather that the medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor as it is to find against it. The examiner must discuss the medical rationale for all opinions expressed, whether favorable or unfavorable, if necessary, citing to specific evidence in the file. The examiner should specifically discuss the September 1963 complaints of headaches and the January 1966 concussion from the service treatment records. If the examiner cannot provide his or her requested opinion without resorting to speculation, he or she should state why that is the case. 4. Thereafter, schedule the Veteran for an appropriate VA examination to ascertain the severity of his bilateral hearing loss and tinnitus. The entire claims file for the Veteran must be made available to and reviewed by the examiner. All appropriate tests and studies should be conducted, and the results reported. The VA examiner must address the extent of functional and industrial impairment due to the Veteran’s disabilities being examined and furnish a full description of the effects of the service-connected disability upon the Veteran’s ordinary activity, including employment. All opinions must be supported by a complete rationale. If the examination results are not reliable, the examiner should state why that is so. 5. Refer the case to the Director of Compensation for an opinion respecting whether the Veteran was unemployable due to his service-connected disability under 38 C.F.R. § 4.16(b) prior to February 18, 2014. Michael J. Skaltsounis Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Scott Shoreman, 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.