Citation Nr: 20037115 Decision Date: 06/01/20 Archive Date: 06/01/20 DOCKET NO. 19-29 665 • DATE: June 1, 2020 ORDER The petition to reopen the claim for service connection for sleep apnea is granted. The appeal is allowed to that extent only. Entitlement to a rating in excess of 20 percent for diabetes mellitus prior to July 11, 2018, is denied. Entitlement to a 40 percent rating for diabetes mellitus, as of July 11, 2018, is granted. Entitlement to a rating in excess of 20 percent for degenerative disc disease (DDD) thoracolumbar spine (claimed as intervertebral disc degeneration) is denied. The claim that an October 2017 rating decision denying service connection for temporomandibular joint disorder (TMJ) should be revised on the grounds of clear and unmistakable error (CUE) is dismissed without prejudice to refiling. REMANDED Entitlement to service connection for sleep apnea is remanded. Entitlement to service connection for right knee injury with resultant surgery is remanded. REFERRED The issue of whether a July 2015 rating decision denying service connection for sleep apnea should be revised on the grounds of clear and unmistakable error (CUE) was raised on a September 2018 VA 21-526EZ and is referred to the Agency of Original Jurisdiction (AOJ) for adjudication. FINDINGS OF FACT 1. A July 2015 rating decision denied the claim of entitlement to service connection for sleep apnea; the Veteran did not appeal the denial nor submit new and material evidence within the pertinent time period. 2. The July 2015 rating decision is final. 3. The additional evidence received since the July 2015 rating decision is not cumulative and redundant of evidence at the time of the July 2015 rating decision. 4. The diabetes mellitus required a restricted diet and one or more daily injections of insulin but regulations of activities prior to July 11, 2018. 5. The diabetes mellitus required a restricted diet, one or more daily injections of insulin, and regulation of activities as of July 11, 2018. 6. The DDD of the thoracolumbar spine is productive of restriction in forward flexion of 60 degrees, no guarding or muscle spasms, and pain on motion. 7. The Regional Office most recently denied service connection for TMJ in an October 2017 rating decision; although CUE has been referred to, the Moving Party has advanced no specific errors of law or any argument with regards to this claim. CONCLUSIONS OF LAW 1. The July 2015 rating decision that denied the claim of entitlement to service connection for sleep apnea is final. 38 U.S.C. § 7105 (2012); 38 C.F.R. §§ 3.104, 20.302, 20.1103 (2019). 2. Since the July 2015 rating decision, new and material evidence has been received, and the claim of entitlement to service connection for sleep apnea is reopened. 38 U.S.C. § 5108 (2012); 38 C.F.R. § 3.156 (2019). 3. The criteria for a disability rating of 40 percent prior to July 11, 2018, for diabetes mellitus have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.119, Diagnostic Code 7913 (2019). 4. The criteria for a disability rating of 40 percent, as of July 11, 2018, for diabetes mellitus have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.119, Diagnostic Code 7913 (2019). 5. The criteria for a rating in excess of 20 percent for DDD of the thoracolumbar spine have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.71a, Diagnostic Code 5242 (2019). 6. The criteria for dismissal of a claim of CUE in the denial of service connection for TMJ have been met. 38 U.S.C. § 7105(b)(2), (d)(5); 38 C.F.R. §§ 3.105, 20.204, 20.1404(b) (2019). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from March 1981 to March 1984; October 1990 to January 1991; January 2003 to July 2004; and July 2005 to December 2010. This case comes before the Board of Veterans’ Appeals (Board) on appeal from an October 2018 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO). New and Material To reopen a previously and finally-disallowed claim, there must be new and material evidence presented or secured since the time that the claim was finally disallowed on any basis. 38 U.S.C. § 7104(b). In considering whether to reopen a claim, VA must assume the credibility of the aforementioned evidence which supports the Veteran’s claim as required by Justus v. Principi, 3 Vet. App. 510, 513 (1992) ([i]n determining whether evidence is new and material, “credibility” of newly presented evidence is to be presumed unless evidence is inherently incredible or beyond competence of witness.). New evidence means existing evidence not previously submitted to agency decision makers. Material evidence means existing evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. New and material evidence can be neither cumulative nor redundant of the evidence of record at the time of the last prior final denial of the claim sought to be reopened and must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a). In Shade v. Shinseki, 24 Vet. App. 110, 117 (2010), the Court of Appeals for Veterans Claims (Court) held that, when evaluating the materiality of newly submitted evidence VA should not limit its consideration to whether the newly submitted evidence relates specifically to the reason why the claim was last denied, but instead should consider whether the evidence could reasonably substantiate the claim were the claim to be reopened, including by triggering VA’s duty to obtain a VA examination. Id. at 118. 1. The petition to reopen the claim of entitlement to service connection for sleep apnea is granted, to that extent only. A July 2015 rating decision denied service connection for sleep apnea. The Veteran did not file a notice of disagreement, and the decision became final. 38 C.F.R. §§ 20.200, 20.302. The evidence of record at the time of the previous denial consisted of service treatment records, VA medical records, private medical records, and a July 2015 VA medical opinion. The claim was denied because the RO determined that the Veteran’s sleep apnea did not result from an undiagnosed illness or that it occurred in or was caused or aggravated by service. Since this previous denial, the Veteran has undergone a September 2016 VA sleep study. At the study, the Veteran reported that she had experienced eight to nine years of sleep problems. This coincides with when the Veteran served on active duty. This evidence was not previously of record, and the Board find this evidence meets the low threshold of Shade as it may go to the elements of current disability and inservice incurrence. Accordingly, the petition to reopen this claim is granted. Increased Rating Disability evaluations are determined by the application of the facts presented to VA’s Schedule for Rating Disabilities (Rating Schedule) at 38 C.F.R. Part 4. The percentage ratings contained in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and the residual conditions in civilian occupations. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.321(a), 4.1. Where the question for consideration is the propriety of the initial evaluation assigned, consideration of the medical evidence since the effective date of the award of service connection and consideration of the appropriateness of a “staged” rating is required. See Fenderson v. West, 12 Vet. App. 119, 125-26 (1999). VA adjudicators must consider whether to assign different ratings at different times during the rating period to compensate the Veteran for times when the disability may have been more severe than at others. The Court since has extended this practice even to established ratings, not just initial ratings. See Hart v. Mansfield, 21 Vet. App. 505, 509-10 (2007). 2. Entitlement to a 40 percent rating for diabetes mellitus, as of July 11, 2018, is granted. The Veteran was granted service connection for diabetes mellitus in an April 2012 rating decision. She later filed for an increase to this disability in August 2018 and was denied an increase in an October 2018 rating decision. This appeal arises from disagreement with this decision. Diabetes has been rated under Diagnostic Code 7913 of 38 C.F.R. § 4.119. This Diagnostic Code authorizes compensable ratings of 10, 20, 40, 60, and 100 percent. Under Diagnostic Code 7913, a 20 percent rating is warranted for diabetes when diabetic symptoms require insulin, or a hypoglycemic agent, and a restricted diet but not regulation of activities for management. A 40 percent rating is warranted for diabetes when diabetic symptoms require insulin, a restricted diet, and regulation of activities for management. A 60 percent rating is warranted when diabetic symptoms also include episodes of ketoacidosis or hypoglycemic reactions requiring one or two hospitalizations a year or twice a month visits to a diabetic care provider, and complications that would not be compensable if separately evaluated. A 100 percent rating requires more than one daily injection of insulin, a restricted diet, and regulation of activities with episodes of ketoacidosis or hypoglycemic reactions requiring hospitalization at least 3 times per year or weekly visits to a diabetic care provider, plus either progressive loss of weight and strength or complications that would be compensable if separately evaluated. Regulation of activities is defined by VA as “avoidance of strenuous occupational and recreational activities” and is tied to control of blood sugar, not to physical capacity. Strenuous activity can lead to fluctuation of blood sugar levels and trigger episodes of ketoacidosis or hypoglycemia. Id. Medical evidence is required demonstrating that the disorder requires regulation of activities. See Camacho v. Nicholson, 21 Vet. App. 360, 364 (2007). Moreover, compensable complications of diabetes are evaluated separately unless they are part of the criteria used to support a total evaluation. Noncompensable complications are considered part of the diabetic process. Id. at Note (1). Importantly, in addressing an increased rating claim for diabetes mellitus, it is well settled that a claimant must satisfy all of the requirements for each of the progressively higher ratings for diabetes in Diagnostic Code 7913. See Middleton v. Shinseki, 727 F.3d 1172, 1178 (Fed. Cir. 2013); Camacho v. Nicholson, 21 Vet. App. 360 (2007). Also, in applying most provisions of the rating code, VA considers whether a claimant’s symptoms more closely approximate the next higher evaluation. See 38 C.F.R. §§ 4.7, 4.21 (2017). The courts have held, however, that because of the successive and cumulative nature of the rating code for diabetes, these approximation regulations are not for application. See Middleton, 727 F.3d at 1178. The Veteran submitted a July 11, 2018 Diabetes DBQ that was completed by her private physician. She was reportedly prescribed insulin with more than one injection per day; and her diabetes required regulation of activities. It was explained “avoidance of strenuous occupational and recreational activities with the intention of avoiding hypoglycemia.” She later underwent a VA examination for her diabetes in October 2018. At that examination, in addition to being prescribed insulin once a day and the need to regulate her activities as part of managing her diabetes, it was also reported that she managed her condition by restricted diet. As it concerned regulation of her activities, the VA examiner reported the Veteran must avoid over-exerting herself at work to avoid frequent hypoglycemic episodes. To be entitled to a higher rating for the entire period, the Veteran’s diabetes would need to be managed by all three elements for a higher 40 percent rating: insulin/ hypoglycemic agent, restricted diet, and regulation of activities. As noted, the criteria for the progressively increasing ratings for diabetes are stated in the conjunctive rather than the disjunctive, i.e., each level of increase in the rating requires additional criteria which must all be met to warrant the increase in the rating requirements of a 40 percent rating are conjunctive. See Camacho, supra. While the record indicates the Veteran was managing her diet during the appeal period, it was attributed to the pre-operative preparation and post-operative treatment associated with her gastrectomy/ bariatric surgery in August 2018. The record also indicates that the need to manage her weight was due to her diagnosis of diabetes. VA medical records reported the Veteran’s “impetus for surgery was diagnosis with diabetes.” To that extent, the need to manage her diet and undergo surgery preceded her diabetes and was not used to manage her diabetes. Moreover, the Veteran’s own physician did not report a restricted diet as a part of the treatment for her diabetes in July 2018. However, the Veteran was already rated at a 20 percent rating for her diabetes. This rating, as discussed, requires a restricted diet along with insulin or a hypoglycemic agent. Accordingly, the Board finds the evidence is in equipoise that her condition warranted a 40 percent rating due to a restricted diet, regulation of activities, and insulin, when it was first reported her condition required regulation of activities at her July 11, 2018 private examination. A 60 percent rating is not warranted at any time. While the October 2018 VA examination report indicated that the Veteran had episodes of hypoglycemia that required visits to her physician twice a month and hospitalization within the past year, she did not have any compensable complications of diabetes. As noted, the “and” is conjunctive in this diagnostic code’s criteria. Thus, she would need to have had both at least one hospitalization due to her hypoglycemic episode and a noncompensable complication of diabetes, such as diabetic retinopathy, to warrant a 60 percent rating. While diabetic neuropathy is a complication of the Veteran’s condition, she is already separately rated at a compensable rating for these conditions. The Board acknowledges that prior to April 2, 2018, the Veteran was rated at a noncompensable rating for her neuropathy of the bilateral lower extremities associated with her diabetes condition. To that extent, there is an issue as to whether a 60 percent rating is appropriate for the period on appeal before April 2, 2018. The Board finds a 60 percent rating still would not be appropriate. The episodes of hypoglycemia requiring visits to her physician twice a month and a hospitalization within the past year was not reported until the October 2018 VA examination. Notably, her private physician did not report these issues at her July 2018 examination. On the contrary is was reported that she had zero episodes of ketoacidosis and hypoglycemia requiring hospitalization over the past 12 months. To that extent, as the record stands, the period as to which the Veteran had noncompensable complications of her diabetes (August 2017 through April 2018) and, also, the remaining criteria for a 60 percent rating, do not overlap. Absent additional medical records indicating when the Veteran’s diabetic symptoms began to include episodes of ketoacidosis or hypoglycemic reactions requiring one or two hospitalizations a year or twice a month visits to a diabetic care provider, a 60 percent rating is not warranted. Therefore, a rating in excess of 20 percent is denied prior to July 11, 2018; and a 40 percent rating is granted as of July 11, 2018. 3. Entitlement to a rating in excess of 20 percent for DDD of the thoracolumbar spine is denied. The Veteran was granted service connection for degenerative disc disease in an April 2012 rating decision with a 20 percent rating. She later filed for an increase to this disability in August 2018 and was denied an increase in an October 2018 rating decision. This appeal arises from disagreement with the September 2014 rating decision. The Veteran’s degenerative disc disease has been evaluated under Diagnostic Code 5243. 38 C.F.R. § 4.71a. Diagnostic Codes 5243 refers to intervertebral disc syndrome. Under the General Rating Formula for Diseases and Injuries of the Spine, a 20 percent evaluation is warranted 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 evaluation is warranted for disability of the thoracolumbar spine when there is forward flexion of the thoracolumbar spine to 30 degrees or less, or favorable ankylosis of the entire thoracolumbar spine. Unfavorable ankylosis of the entire thoracolumbar spine is evaluated as 50 percent disabling, and unfavorable ankylosis of the entire spine is evaluated as 100 percent disabling. 38 C.F.R. § 4.71a, Diagnostic Codes 5235-5243. In addition, the General Rating Formula for Diseases and Injuries of the Spine provides, in pertinent part, the following: Note (1): Evaluate any associated objective neurologic abnormalities, including, but not limited to, bowel or bladder impairment, separately, under an appropriate diagnostic code. Note (5): For VA compensation purposes, unfavorable ankylosis is a condition in which the entire cervical spine, the entire thoracolumbar 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. Additionally, intervertebral disc syndrome is to be evaluated either under the General Rating Formula for Diseases and Injuries of the Spine or under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes, whichever method results in the higher evaluation when all disabilities are combined under 38 C.F.R. § 4.25. In evaluating disabilities of the musculoskeletal system, it is necessary to consider, along with the schedular criteria, functional loss due to flare-ups of pain, fatigability, incoordination, pain on movement, and weakness. DeLuca v. Brown, 8 Vet. App. 202 (1995). Painful motion is an important factor of disability, and actually painful, unstable, or maligned joints are entitled to at least the minimum compensable rating for the joint. See 38 C.F.R. § 4.59; Burton v. Shinseki, 25 Vet. App. 1 (2011). Nevertheless, pain itself does not rise to the level of functional loss as contemplated by the VA regulations applicable to the musculoskeletal system. Mitchell v. Shinseki, 25 Vet. App. 32 (2011). Moreover, functional impairment must be supported by adequate pathology. Id.; Johnson v. Brown, 9 Vet. App. 7, 10 (1996) (both citing to 38 C.F.R. § 4.40). The Veteran underwent a VA examination in October 2018. She reported back pain that had been getting worse the past eighteen months. She had back pain, spasms, numbness, weakness, and pain in her lateral thighs. Range of motion testing revealed forward flexion to 60 degrees, extension to 15 degrees or greater, right and left lateral flexion to 20 degrees, and right and left lateral rotation to 20 degrees. Pain caused functional loss on forward flexion, extension, right lateral flexion, right lateral rotation, and left lateral rotation. Localized tenderness or pain on palpation of the joint or associated tissue was located at L4-L5 in direct relation to the Veteran’s degenerative disc condition. Repetitive-use testing was completed, but there was no additional loss of function or range of motion. Her flare-ups reportedly resulted in pain but the examiner was unable to describe the loss in range of motion. It was noted that during her flare-ups the loss of range of motion would vary. It would depend on how strenuously her back was used. However, at its worse, it was reported the Veteran could not move it at all without pain. However, there were times where the loss of range of motion was minimal. Neither guarding nor muscle spasms of the spine were reported. While radiculopathy was reported, the Veteran is separately service-connected for those conditions. VA medical records during the period on appeal indicate the Veteran endured chronic low back pain. As the record stands, the Veteran is not entitled to an increase for her back disability rating. During the period on appeal, her forward flexion was at 60 degrees, and there was no report of guarding or muscle spasms. There is no evidence that the Veteran has been diagnosed with any ankylosis of the spine. The Board has reviewed the Veteran’s reports of pain in the context of Deluca and Mitchell. To the extent the pain from her back disability limits her range of motion, the Board finds that the Veteran is already compensated for painful motion with her current 20 percent rating. Moreover, as noted, pain itself does not rise to the level of functional loss as contemplated by the VA regulations applicable to the musculoskeletal system. Mitchell v. Shinseki, 25 Vet. App. 32 (2011). Also, absent additional measurements of limited range of motion, the Board does not find the Veteran’s current back disability warrants an increase. As such, an increase for the Veteran’s back disability is denied. Clear and Unmistakable Error (38 C.F.R. § 3.105) 4. The claim for C.U.E. is denied. The Board does not reach substantive arguments related to the Veteran’s CUE claim. The claim is dismissed because it was not plead with the requisite specificity. Generally, CUE must be plead with some degree of specificity as to what the alleged error is and, unless it is the kind of error that if true would be CUE on its face, the claimant must also give persuasive reasons as to why the result of the prior determination would have been manifestly different but for the alleged error. Fugo v. Brown, 6 Vet. App. 40, 44 (1993); see also Phillips v. Brown, 10 Vet. App. 25 (1997) (distinguishing denial of CUE due to pleading deficiency and denial of CUE on merits). Non-specific allegations of failure to follow regulations or failure to give due process, or any other general, non-specific allegations of error are insufficient to satisfy the requirement that a CUE motion be pled with specificity. Any motion which fails to comply with these requirements shall be dismissed without prejudice to re-filing. 38 C.F.R. § 20.1404(b); Disabled American Veterans v. Gober, 234 F.3d 682, 698-99 (Fed. Cir. 2000). Where there are multiple decisions, a failure to specify the dates of the RO (or Board) decision being collaterally attacked, renders the pleading of CUE insufficient. Mindenhall v. Brown, 7 Vet. App. 271, 275 (1994). The Board notes that the obligation to read pro se filings liberally does not apply to this case because the Veteran is represented by counsel. Andrews v. Nicholson, 421 F.3d 1278, 1283-84 (Fed. Cir. 2005). Moreover, if they were to apply, the Veteran’s pro se filings would also lack the requisite specificity. The history of the claim is as follows. The Veteran was denied service connection for TMJ in an October 2017 rating decision. She later filed a September 2018 VA 21-526EZ stating “request reconsideration of rating dated 10 11 2017 regarding sleep apnea and TMJ….” She also included a private examination for TMJ. In turn, the RO adjudicated whether revision was warranted in the October 2017 rating decision that denied TMJ on the basis of CUE in an October 2018 rating decision. That decision is currently on appeal. On the Veteran’s December 2018 Notice of Disagreement, she reported her areas of disagreement were “service connection” and “the evaluation of disability.” She included a paragraph describing the issues she was having with getting her medical records that indicated she had TMJ during service and how this was upsetting to her. While her August 2019 Statement of the Case described the issue on appeal as an issue for service connection, when the RO discussed the denial, it included an argument as to why CUE was not appropriate in this case. Later, in her April 2020 Informal Hearing Presentation completed by her representative, the representative listed the issue as service connection for TMJ; and the representative did not make any specific claims regarding TMJ or CUE as it relates to the October 2017 rating decision. More specifically, this IHP did not list which adverse rating decision it was appealing. To raise allegations of CUE, the Veteran must plead with specificity the errors of fact or law that he or she believes are present in specific decisions. 38 C.F.R. § 3.105; see also Cook v. Principi, 318 F.3d 1334, 1337 (Fed. Cir. 2002). The Veteran has not specified the basis upon which she believes CUE has occurred for this claim. Neither her NOD, her Form 9, or IHP have reported her issues of CUE. As the claim lacks specificity, the Veteran’s CUE claim is dismissed without prejudice. The Board reminds the Veteran and her representative they are free to submit a properly pled motion of CUE at any point in the future. REASONS FOR REMAND 5. Entitlement to service connection for sleep apnea is remanded. While the claims record includes a VA opinion for this claim. The opinion of record does not address direct service connection. Additionally, the Veteran must undergo a VA examination for this claim. The record indicates the Veteran has a current diagnosis of sleep apnea. More specifically, the Veteran underwent a September 2016 sleep study which confirmed her diagnosis of mild obstructive sleep apnea. Additionally, the Veteran contends that her sleep apnea diagnosis is due to service. At her sleep study, she reported that she had endured eight to nine years of sleep problems. Additionally, her inservice records note that she reported trouble with sleeping, as early as March 1984. Yet an etiology opinion regarding whether her current sleep apnea diagnosis is related to service is still needed. Moreover, VA medical records report the Veteran has experienced poor sleep due to her depression. Accordingly, this claim is remanded for a VA examination and an etiology opinion for direct service connection and secondary service connection. 6. Entitlement to service connection for right knee injury with resultant surgery is remanded. A VA examination and etiology opinion is needed for this claim. VA medical records report the Veteran has knee pain and has undergone a right knee arthroscopy. Also, VA medical records indicate the Veteran had issues with her right knee during service. In October 1990, she received physical therapy for the pain she had endured in her knees for the past two weeks. Painful flexion in her right knee was reported. Again, in August 2008 bilateral knee pain was reported. Mild peri-articular tenderness over the patellar tendons was reported for both knees. To that extent, the Board finds a remand is needed for an etiology opinion. The matters are REMANDED for the following action: 1. Obtain updated medical records, VA and private, and associate them with the record. 2. Obtain an addendum opinion from an appropriate clinician to determine the nature and etiology of the Veteran’s sleep apnea condition with adequate supporting rationale as a basis for the opinion. The electronic file should be made available to the examiner for review. The VA examiner is asked to respond to the following inquiry: (a.) Is it at least as likely as not that the Veteran has a sleep apnea condition that was incurred in or aggravated by active duty? (b.) Is it at least as likely as not that the Veteran has a sleep apnea condition that was caused or aggravated by her service-connected conditions, specifically her service-connected acquired psychiatric condition? 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 certain conclusion is so evenly divided that it is as medically sound to find in favor of such a conclusion as it is to find against it. The VA examiner must provide separate findings and rationales as to whether the Veteran's sleep apnea condition is caused by, or aggravated by, her service-connected disabilities. Aggravation" means any increase in severity of a nonservice-connected disease or injury that is proximately due to or the result of a service-connected disease, and not due to the natural progress of the nonservice-connected disease. If aggravation is found, the examiner should attempt to quantify the extent of additional disability resulting from the aggravation. 3. Schedule the Veteran for an appropriate examination to ascertain the nature and etiology of her right knee injury. The electronic file should be made available to the examiner for review. The VA examiner is asked to respond to the following inquiries: (a.) Whether it is at least as likely as not that the right knee injury was incurred in or aggravated by military service? (b.) Is it at least as likely as not that the Veteran has a right knee injury that was caused or aggravated by her service-connected left knee condition, or other service-connected conditions? 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 certain conclusion is so evenly divided that it is as medically sound to find in favor of such a conclusion as it is to find against it. The VA examiner must provide separate findings and rationales as to whether the Veteran's right knee condition is caused by, or aggravated by, her service-connected disabilities. Aggravation" means any increase in severity of a nonservice-connected disease or injury that is proximately due to or the result of a service-connected disease, and not due to the natural progress of the nonservice-connected disease. If aggravation is found, the examiner should attempt to quantify the extent of additional disability resulting from the aggravation. G. A. WASIK Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Wade, Jamille 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.