Citation Nr: 20081876 Decision Date: 12/31/20 Archive Date: 12/31/20 DOCKET NO. 18-06 087 DATE: December 31, 2020 ORDER A higher (compensable) initial rating for a back scar is dismissed. An effective date earlier than January 7, 2010, for service connection for a back scar is dismissed. An effective date earlier than January 7, 2010, for service connection for right lower extremity radiculopathy is dismissed. An effective date earlier than January 7, 2010, for service connection for left lower extremity radiculopathy is dismissed. A higher initial rating of 20 percent, but no higher, for degenerative arthritis of the lumbar spine (lumbar spine disability) is granted. A total disability rating based on individual unemployability due to service connected disabilities (TDIU), from January 7, 2010, is granted. REMANDED Service connection for hepatitis C is remanded. Service connection for a kidney disorder, including as due to hepatitis C, is remanded. A higher initial rating in excess of 10 percent for right lower extremity radiculopathy is remanded. A higher initial rating in excess of 10 percent for left lower extremity radiculopathy is remanded. FINDINGS OF FACT 1. Per November 17, 2020 Board testimony, prior to the promulgation of a decision in the present appeal, the Veteran asked to withdraw the issue of a higher initial rating for a back scar. 2. Per November 17, 2020 Board testimony, prior to the promulgation of a decision in the present appeal, the Veteran asked to withdraw the issue of an earlier effective date for service connection for a back scar. 3. Per November 17, 2020 Board testimony, prior to the promulgation of a decision in the present appeal, the Veteran asked to withdraw the issue of an earlier effective date for service connection for right lower extremity radiculopathy. 4. Per November 17, 2020 Board testimony, prior to the promulgation of a decision in the present appeal, the Veteran asked to withdraw the issue of an earlier effective date for service connection for left lower extremity radiculopathy. 5. For the entire initial rating period on appeal from January 7, 2010, the lumbar spine disability has more nearly approximated pain and limitation of forward flexion to 60 degrees or less with a combined range of motion of the thoracolumbar spine of 120 degrees or less. 6. For the period from January 7, 2010, the Veteran has been unable to maintain substantially gainful employment as a result of service-connected disabilities. CONCLUSIONS OF LAW 1. The criteria for the withdrawal of a substantive appeal have been met regarding the appeal for a higher initial rating for a back scar. 38 U.S.C. § 7105(b)(2), (d)(5); 38 C.F.R. § 20.204. 2. The criteria for the withdrawal of a substantive appeal have been met regarding the appeal for an earlier effective date for service connection for a back scar. 38 U.S.C. § 7105(b)(2), (d)(5); 38 C.F.R. § 20.204. 3. The criteria for the withdrawal of a substantive appeal have been met regarding the appeal for an earlier effective date for service connection for right lower extremity radiculopathy. 38 U.S.C. § 7105(b)(2), (d)(5); 38 C.F.R. § 20.204. 4. The criteria for the withdrawal of a substantive appeal have been met regarding the appeal for an earlier effective date for service connection for left lower extremity radiculopathy. 38 U.S.C. § 7105(b)(2), (d)(5); 38 C.F.R. § 20.204. 5. Resolving reasonable doubt in favor of the Veteran, for the entire initial rating period on appeal from January 7, 2010, the criteria for a higher initial disability rating of 20 percent, but no higher, for the lumbar spine disability have been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 4.3, 4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5242. 6. Resolving reasonable doubt in the Veteran’s favor, the criteria for a TDIU have been met for period from January 7, 2010. 38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.340, 3.341, 4.3, 4.15, 4.16(b), 4.18, 4.19, 4.25. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran, who is the appellant, served on active duty from April 1972 to August 1975. 1. A higher initial rating for a back scar 2. An earlier effective date for service connection for a back scar 3. An earlier effective date for service connection for right lower extremity radiculopathy 4. An earlier effective date for service connection for left lower extremity radiculopathy Under 38 U.S.C. § 7105, the Board may dismiss any appeal that fails to allege a specific error of fact or law in the determination being appealed. A veteran may withdraw a substantive appeal by telling the Board of the decision to withdraw either in writing or on the record at a Board personal hearing. 38 C.F.R. § 20.204. Per the November 2020 Board hearing testimony, the Veteran asked to withdraw the issues of a higher initial rating for a back scar, an earlier effective date for service connection for a back scar, an earlier effective date for service connection for right lower extremity radiculopathy, and an earlier effective date for service connection for left lower extremity radiculopathy. As the Veteran has withdrawn the appeals regarding a higher initial rating for a back scar, an earlier effective date for service connection for a back scar, an earlier effective date for service connection for right lower extremity radiculopathy, and an earlier effective date for service connection for left lower extremity radiculopathy, there remains no allegation of errors of fact or law for appellate consideration as to these issues. Accordingly, the Board does not have jurisdiction to review these issues, and the issues of a higher initial rating for a back scar, an earlier effective date for service connection for a back scar, an earlier effective date for service connection for right lower extremity radiculopathy, and an earlier effective date for service connection for left lower extremity radiculopathy will be dismissed. 5. Rating the lumbar spine disability Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (Rating Schedule) found in 38 C.F.R. Part 4. 38 U.S.C. § 1155. It is not expected that all cases will show all the findings specified; however, findings sufficiently characteristic to identify the disease and the disability therefrom and coordination of rating with impairment of function will be expected in all instances. 38 C.F.R. § 4.21. Where there is a question as to which of two disability ratings shall be applied, the higher rating will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. It is the defined and consistently applied policy of VA to administer the law under a broad interpretation, consistent, however, with the facts shown in every case. 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. When evaluating disabilities of the musculoskeletal system, 38 C.F.R. § 4.40 allows for consideration of functional loss due to pain and weakness causing additional disability beyond that reflected on range of motion measurements. DeLuca v. Brown, 8 Vet. App. 202 (1995); Mitchell v. Shinseki, 25 Vet. App. 32 (2011). Further, 38 C.F.R. § 4.45 provides that consideration also be given to decreased movement, weakened movement, excess fatigability, incoordination, and pain on movement, swelling, and deformity or atrophy of disuse. Painful motion is considered limited motion at the point that pain actually sets in. See VAOPGCPREC 9-98. For the initial rating period on appeal from January 7, 2010, the Veteran is in receipt of an initial 10 percent disability rating for the lumbar spine disability under the General Rating Formula for Diseases and Injuries of the Spine (General Rating Formula). See 38 C.F.R. § 4.71a, Diagnostic Code 5242. The Veteran contends that a higher initial disability rating for the lumbar spine disability is warranted due to pain and limited flexion in the lumbar spine. See November 2020 Board hearing transcript. Disabilities of the spine are rated under the General Rating Formula for Diagnostic Codes 5235 to 5243, unless 5243 is rated under the Formula for Rating Intervertebral Disc Syndrome (IVDS) Based on Incapacitating Episodes (IVDS Rating Formula). Ratings under the General Rating Formula are made with or without symptoms such as pain (whether or not it radiates), stiffness, or aching in the area of the spine affected by residuals of injury or disease. The General Rating Formula provides a 10 percent disability rating for forward flexion of the thoracolumbar spine greater than 60 degrees but not greater than 85 degrees; or, combined range-of-motion of the thoracolumbar spine greater than 120 degrees but not greater than 235 degrees; or, muscle spasm, guarding, or localized tenderness not resulting in abnormal gait or abnormal spinal contour; or, vertebral body fracture with loss of 50 percent or more of the height. A 20 percent rating is provided for forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees; or, the combined range-of-motion of the thoracolumbar spine not greater than 120 degrees; or, muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis. A 40 percent disability rating is provided for forward flexion of the thoracolumbar spine 30 degrees or less, or favorable ankylosis of the entire thoracolumbar spine. A 50 percent disability rating is assigned for unfavorable ankylosis of the entire thoracolumbar spine. A 100 percent disability rating is assigned for unfavorable ankylosis of the entire spine. Note (1) to the rating formula specifies that any associated objective neurologic abnormalities, including, but not limited to, bowel or bladder impairment, should be separately rated under an appropriate diagnostic code. Note (2) (See also Plate V) provides that, for VA compensation purposes, normal forward flexion of the lumbar spine is zero to 90 degrees, extension is zero to 30 degrees, left and right lateral flexion are zero to 30 degrees, and left and right lateral rotation are zero to 30 degrees. The combined range-of-motion refers to the sum of the range of forward flexion, extension, left and right lateral flexion, and left and right rotation. The normal combined range-of-motion of the lumbar spine is 240 degrees. The normal ranges of motion for each component of spinal motion provided in this note are the maximum that can be used for calculation of the combined range-of-motion. Note (3) provides that, in exceptional cases, an examiner may state, that because of age, body habitus, neurologic disease, or other factors not the result of disease or injury of the spine, the range-of-motion of the spine in a particular individual should be considered normal for that individual, even though it does not conform to the normal range-of-motion stated in Note (2). Provided that the examiner supplies an explanation, the examiner’s assessment that the range-of-motion is normal for that individual will be accepted. Note (4) instructs to round each range-of-motion measurement to the nearest five degrees. Note (5) provides that, for VA compensation purposes, unfavorable ankylosis is a condition in which the entire lumbar spine, or the entire spine is fixed in flexion or extension, and the ankylosis results in one or more of the following: difficulty walking because of a limited line of vision; restricted opening of the mouth and chewing; breathing limited to diaphragmatic respiration; gastrointestinal symptoms due to pressure of the costal margin on the abdomen; dyspnea or dysphagia; atlantoaxial or cervical subluxation or dislocation; or neurologic symptoms due to nerve root stretching. Fixation of a spinal segment in neutral position (zero degrees) always represents favorable ankylosis. Under Diagnostic Code 5243 (Intervertebral Disc Syndrome), a 10 percent disability rating is assigned with incapacitating episodes having a total duration of at least 1 weeks but less than 2 weeks during the past 12 months; a 20 percent disability rating is assigned with incapacitating episodes having a total duration of at least 2 weeks but less than 4 weeks during the past 12 months; a 40 percent disability rating is assigned with incapacitating episodes having a total duration of at least 4 weeks but less than 6 weeks during the past 12 months; and a maximum 60 percent disability rating is assigned with incapacitating episodes having a total duration of at least 6 weeks during the past 12 months. Note (1) provides that an incapacitating episode is a period of acute signs and symptoms due to intervertebral disc syndrome that requires bed rest prescribed by a physician and treatment by a physician. Note (2) provides that if intervertebral disc syndrome is present in more than one spinal segment, provided that the effects in each spinal segment are clearly distinct, each segment should be evaluated on the basis of incapacitating episodes or under the General Rating Formula for Diseases and Injuries of the Spine, whichever method results in a higher rating for that segment. After a review of all the evidence, lay and medical, and resolving reasonable doubt in favor of the Veteran, the Board finds that for the entire initial rating period on appeal from January 7, 2010, the criteria for a higher initial rating of 20 percent, but no higher, for the lumbar spine disability have been met. For the initial rating period on appeal from January 7, 2010, the lumbar spine disability has more nearly approximated pain and limitation of forward flexion to 60 degrees or less with a combined range of motion of the thoracolumbar spine of 120 degrees or less. November 2008, January 2009, and March 2009 private treatment records reflect flexion in the thoracolumbar spine was measured to 40 degrees. A June 2010 VA examination report shows the Veteran reported worsening back pain in the last five years, and that back pain limited the ability to walk. The Veteran endorsed episodes of flare ups and functional impairment described as a decreased ability to walk and sit and an overall decreased limitation of motion and range of motion in the thoracolumbar spine. During the June 2010 VA examination, flexion was measured to 90 degrees, with a combined range of motion of 180 degrees. Although the Veteran reported decreased range of motion during episodes of flare ups, the June 2010 VA examiner did not estimate any additional loss of motion during episodes of flare ups. The Veteran underwent another VA examination in June 2016, during which the Veteran again endorsed episodes of flare ups that were frequent, especially when standing and walking. Range of motion in the thoracolumbar spine was measured to 65 degrees of flexion, with a combined range of motion of 135 degrees, with pain noted upon examination that caused functional loss. While the Veteran reported experiencing flare ups, the June 2016 VA examiner did not estimate any additional loss of motion during such episodes. Based on the foregoing evidence, the Board finds that the lumbar spine disability has more nearly approximated forward flexion limited to less than 60 degrees with a combined range of motion of 120 degrees or less, when accounting for additional loss of motion during episodes of flare ups. Accordingly, considering the additional limitations during flareups, the Board resolves reasonable doubt in favor of the Veteran and finds that the criteria for a higher initial 20 percent rating for the lumbar spine disability have been met for the entire rating period from January 7, 2010. During the November 2020 Board hearing, the Veteran conveyed that a 20 percent disability rating would fully satisfy the appeal as to this issue. See November 2020 Board hearing transcript, pgs. 18-19. Such a full grant of benefits sought, coupled with express indication that the rating percentage sought fully satisfies the appeal, is distinguished from a case where a veteran does not express satisfaction with a partial increased rating during an appeal that is less than the maximum schedular rating. See A.B. v. Brown, 6 Vet. App. 35, 39 (1993) (recognizing that a claimant may limit the claim or appeal to the issue of entitlement to a particular disability rating which is less than the maximum allowed by law for a particular service connected disability). The Board finds the Veteran’s waiver of the remaining aspects of the appeal for a higher initial rating for the lumbar spine disability in excess of the 20 percent granted was knowing and intelligent, and is supported by the evidence of record. Because a higher 20 percent initial rating for the lumbar spine disability is granted for the entire initial rating period from January 7, 2010, which the Veteran represented would fully satisfy the initial rating issue on appeal, the Veteran has limited this appeal in both extent and time by withdrawing the aspects of the appeal that encompassed an initial rating higher than 20 percent for the entire initial rating period, including any questions of extraschedular referral or rating. See 38 C.F.R. § 20.204 (providing that an appellant may withdraw an issue at any time before the Board issues a final decision). For these reasons, any question of a higher disability rating for the lumbar spine disability is rendered moot with no remaining questions of law or fact to decide. See 38 U.S.C. § 7104; Sabonis v. Brown, 6 Vet. App. 426, 430 (1994) (where the law is dispositive, the claim must be denied due to a lack of legal merit). In summary, the Board finds that the service connected lumbar spine disability more closely approximates the criteria for a 20 percent rating under Diagnostic Code 5242 for the entire initial rating period on appeal from January 7, 2010; therefore, the appeal is fully granted, leaving no remaining rating questions, including questions of referral for extraschedular rating under 38 C.F.R. § 3.321(b). 38 U.S.C. § 7104. 6. TDIU The Veteran contends that a TDIU is warranted due to the service-connected lumbar spine disability and right and left lower extremity radiculopathies. See November 2020 Board hearing transcript. A TDIU may be assigned 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. The service-connected disabilities, employment history, educational and vocational attainment, and all other factors having a bearing on the issue will be addressed in both instances. 38 C.F.R. § 4.16(a), (b). If there is only one such disability, it must be rated at 60 percent or more; if there are two or more disabilities, at least one disability must be rated at 40 percent or more, with sufficient additional disability to bring the combined rating to 70 percent or more. 38 C.F.R. § 4.16(a). In evaluating a veteran’s employability, consideration may be given to the level of education, special training, and previous work experience in arriving at a conclusion, but not to age or impairment caused by non-service-connected disabilities. 38 C.F.R. §§ 3.341, 4.16, 4.19. If a veteran’s disabilities do not meet the objective combined rating percentage criteria of 38 C.F.R. § 4.16(a), it then becomes necessary to consider whether the criteria for referral for extraschedular consideration are met under § 4.16(b) criteria. 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. Submission to the Director of Compensation and Pension Service, for extraschedular consideration is warranted in all cases of veterans who are unemployable by reason of service-connected disabilities, but who fail to meet the percentage standards set forth in § 4.16(a). 38 C.F.R. § 4.16(b). Individual unemployability must be determined without regard to any non service connected disabilities or a veteran’s advancing age. 38 C.F.R. §§ 3.341(a), 4.19; Van Hoose v. Brown, 4 Vet. App. 361 (1993). The sole fact that a veteran is unemployed or has difficulty obtaining employment is not enough. A high rating in itself is recognition that the impairment makes it difficult to obtain or keep employment, but the ultimate question is whether a veteran is capable of performing the physical and mental acts required by employment, not whether a veteran can find employment. Id. at 361. When reasonable doubt arises as to the degree of disability, such doubt will be resolved in a veteran’s favor. 38 C.F.R. § 4.3. For the entire initial rating period on appeal from January 7, 2010, service connection has been established for the lumbar spine disability (20 percent disabling), right lower extremity radiculopathy (10 percent disabling), left lower extremity radiculopathy (10 percent disabling), and a back scar (0 percent disabling). Because the Veteran’s combined rating fails to meet the schedular percentage standards of 38 C.F.R. § 4.16(a), the claim for a total rating may be considered only under 38 C.F.R. § 4.16(b). Pursuant to the September 2018 Board remand, the appeal for a TDIU was referred to the Director of Compensation and Pension Service for extraschedular consideration under 38 C.F.R. § 4.16(b). In April 2020, the Director of Compensation and Pension Service adjudicated and denied a TDIU under 38 C.F.R. § 4.16(b). Because the appeal for a TDIU under § 4.16(b) has already been reviewed and denied by the Director of Compensation and Pension Service, the Board may consider, de novo, whether a TDIU is warranted under the provisions of 38 C.F.R. § 4.16(b), which provides that a veteran who is unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities shall be rated totally disabled. See Wages v. McDonald, 27 Vet. App. 233 (2015) (holding that a decision of TDIU under 38 C.F.R. § 4.16(b) by the Director of Compensation and Pension Service is not evidence, and is not a policy decision, but is simply a decision or adjudication that is adopted by the RO and reviewed de novo by the Board); Kuppamala v. McDonald, 27 Vet. App. 447 (2015) (the Board reviews the Director of Compensation and Pension Service’s extraschedular decision de novo, and may assign an extraschedular rating when appropriate). The ultimate issue of whether a TDIU should be awarded is not a medical issue, but rather is a determination for the adjudicator. See Moore v. Nicholson, 21 Vet. App. 211, 218 (2007) (ultimate question of whether a veteran is capable of substantial gainful employment is not a medical one; that determination is for the adjudicator), rev’d on other grounds sub nom, Moore v. Shinseki, 555 F.3d 1369 (Fed. Cir. 2009). Although VA must give full consideration, per 38 C.F.R. § 4.15, to “the effect of combinations of disability,” VA regulations place responsibility for the ultimate TDIU determination on VA, not a medical examiner’s opinion. Geib v. Shinseki, 733 F.3d 1350, 1354 (Fed. Cir. 2013); 38 C.F.R. § 4.16(a); see also Smith v. Shinseki, 647 F.3d 1380, 1385-86 (Fed. Cir. 2011) (VA is not required to obtain an industrial survey from a vocational expert before making a TDIU determination but may choose to do so in an appropriate case). After a review of all the lay and medical evidence, the Board finds that the evidence is at least in equipoise on the question of whether the service-connected lumbar spine disability and right and left lower extremity radiculopathies have rendered the Veteran unable to maintain substantially gainful employment for the period from January 7, 2010 forward. The Veteran contends being unable to maintain substantial employment in a position in which he has experience due to the service-connected lumbar spine disability and right and left lower extremity radiculopathies. During a September 2015 Board hearing, the Veteran testified that he had been working as a truck driver for 20 years, and stopped working toward the end of 2009 as it was getting hard for him to climb in and out of the truck, hooking up trailers to the truck, and using a dolly. The Veteran testified that he had earned a General Educational Diploma and obtained a commercial driving license. The Veteran also testified that prior to truck driving, he had previously worked in his father’s body shop and had worked in a warehouse operating forklifts and stocking items. The Veteran reported being awarded Social Security Disability Income in 2010 due to the lumbar spine disability. During the November 2020 Board hearing, the Veteran testified that he has been prescribed a cane and a walker to assist his mobility due to pain and weakness caused by the right and left lower extremity radiculopathies. The record reflects the Veteran has a high school education and last worked full-time in 2009 as a truck driver. See January 2010 VA 21-8940 Veterans Application for Increased Compensation Based on Unemployability (TDIU Application). Additionally, the record includes an October 2009 private treatment record wherein the Veteran reported pain radiating along the sciatic joint region bilaterally, which pain increases with prolonged sitting and enduring the vibrations while truck driving. A June 2010 VA examination report contains findings that the lumbar spine disability prevents the Veteran from standing or walking for prolonged periods of time due to back pain and limited mobility in his back. Furthermore, the VA examiner stated that the effect of the lumbar spine disability is that it makes it difficult for the Veteran to work as a truck driver due to decreased lumbar spine mobility and because the Veteran has to take prescription pain medication to function, which affects his ability to operate a vehicle and work as a truck driver. Overall, the record reflects symptoms of the lumbar spine disability and right and left lower extremity radiculopathies would preclude the Veteran from maintaining substantially gainful employment in a position similar to that of a truck driver or working in a warehouse driving forklifts, for which he has training and experience. Resolving reasonable doubt in favor of the Veteran, the Board finds that the combination of symptoms and functional impairment caused by the service-connected lumbar spine disability and right and left lower extremity radiculopathies have prevented the Veteran from maintaining substantially gainful employment for the period from January 7, 2010 forward. 38 C.F.R. §§ 3.340, 3.341, 4.15, 4.16. REASONS FOR REMAND 1. Service connection for hepatitis C is remanded. 2. Service connection for a kidney disorder is remanded. The Veteran asserts that hepatitis C was contracted during military service as he was treated for liver disease during service in 1973. During the November 2020 Board hearing, the Veteran testified that he had been treated for hepatitis during service while stationed in Germany and was hospitalized for approximately two to three weeks due to jaundice. The Veteran testified that service providers who treated the Veteran for liver disease speculated that the Veteran may have contracted hepatitis C from eating with an improperly sterilized mess kit. The Veteran also testified that medical providers have advised him that hepatitis C had contributed to the development of his current kidney disorders. An April 2002 private treatment record reflects the Veteran had tested positive for the hepatitis C antibody. The April 2002 private provider noted the Veteran had been treated for an episode of jaundice during service, which could easily be explained by intravenous (IV) drug use. The Veteran was provided with a VA examination for hepatitis C in July 2014, the examination report for which contains the VA examiner’s opinion that it is less likely than not that the current hepatitis C had its onset during service or was caused by service because there is no military medical record about any hepatitis infection. However, the July 2014 VA examiner based the negative nexus opinion on an absence of evidence, did not provide a medical rationale for the opinion rendered, did not address hepatitis C risk factors during service, and did not address the January 1975 service treatment record reflecting the Veteran was treated for liver disease/yellow jaundice/infectious hepatitis in 1973. Because the July 2014 VA examiner’s opinion was based on an absence of evidence, was not supported by medical rationale, and was premised on incomplete facts, the Board finds that it is inadequate and that remand for a new VA examination and VA opinion is needed. 3. Rating the right lower extremity radiculopathy is remanded. 4. Rating the left lower extremity radiculopathy is remanded. The Veteran generally contends that higher initial ratings in excess of 10 percent for the right and left lower extremity radiculopathies are warranted due to weakness and instability in the right and left legs. See November 2020 Board hearing transcript. The record reflects the Veteran has not been provided with a peripheral nerve VA examination. As such, remand is needed to provide the Veteran with a VA examination in order to evaluate the severity of the right and left lower extremity radiculopathies. The matters are REMANDED for the following actions: 1. Schedule the appropriate VA examination to assess the claimed hepatitis C. The relevant documents in the electronic file should be made available to, and be reviewed by, the VA examiner. The VA examiner should note such review in the requested medical opinion. The VA examiner should provide the following opinions: a) Is it at least as likely as not (50 percent or higher degree of probability) that the currently diagnosed hepatitis C had its onset during active service, including as due to eating with an improperly sterilized mess kit? b) Is it at least as likely as not (50 percent or higher degree of probability) that the currently diagnosed hepatitis C is etiologically related to the liver disease/yellow jaundice/infectious hepatitis treated during service in 1973? In rendering the requested opinion, the VA examiner should consider and discuss all identified risk factors, prior to, during, and after service, including IV drug use. Additionally, the VA examiner should identify and discuss the medical and lay evidence, to include any medical principles and literature, relied upon to support the underlying medical opinion. c) If, and only if, the current hepatitis C is opined to be etiologically related to service, is it at least as likely as not (50 percent or higher degree of probability) that the currently diagnosed kidney disorders were caused by the hepatitis C infection? d) If, and only if, the current hepatitis C is opined to be etiologically related to service, is it at least as likely as not (50 percent or higher degree of probability) that the currently diagnosed kidney disorders were worsened beyond their normal progression by the hepatitis C infection? 2. Schedule a VA examination to assist in determining the current severity and functional impairment of the right and left lower extremity radiculopathies. The VA examiner should report the extent of the right and left lower extremity radiculopathy symptoms in accordance with the VA rating criteria. J. PARKER Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board E. Choi, 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.