Citation Nr: 21002154
Decision Date: 01/12/21	Archive Date: 01/12/21

DOCKET NO. 20-18 478
DATE: January 12, 2021

ORDER

The request to reopen the claim of entitlement to service connection for bilateral hearing loss is denied.

Service connection for obstructive sleep apnea as secondary to service-connected traumatic brain injury, depressive disorder, headaches, and tinnitus is granted.

Service connection for a left elbow disorder is denied.

Service connection for Morton's neuroma is denied.

Service connection for a left ankle disorder is denied.

Service connection for a right ankle disorder is denied.

A disability rating in excess of 10 percent for service-connected intervertebral disc syndrome (IVDS) with degenerative arthritis is denied.

An initial rating in excess of 10 percent for service-connected radiculopathy of the sciatic nerve of the right lower extremity is denied.

An initial rating in excess of 10 percent for service-connected right wrist chronic sprain with recurrent tenosynovitis is denied.

A disability rating of 10 percent for service-connected status post arthroscopic surgery of the left knee is granted.

An initial rating in excess of 10 percent for service-connected patellofemoral pain syndrome of the right knee is denied.

A disability rating in excess of 30 percent for service-connected headaches is denied.

A compensable disability rating for symptoms of traumatic brain injury (TBI) which are not already rated under a separate diagnostic code is denied.

REMANDED

Entitlement to service connection for a left wrist disorder is remanded.

Entitlement to service connection for a left shoulder disorder is remanded.

Entitlement to service connection for a right elbow disorder is remanded

Entitlement to service connection for bilateral pes planus is remanded.

Entitlement to a disability rating in excess of 50 percent for service-connected depressive disorder with TBI is remanded.   

Entitlement to a total disability rating based on individual unemployability (TDIU) due to service-connected depressive disorder with TBI is remanded.

FINDINGS OF FACT

1.  Evidence received since the final September 2013 rating decision that denied service connection for bilateral hearing loss is not new and material. 

2.  The evidence is at least evenly balanced as to whether the Veteran’s current diagnosis of obstructive sleep apnea is caused by his service-connected TBI, depressive disorder, headaches, and tinnitus.

3.  The preponderance of the evidence is against finding a current diagnosis of a left elbow disability at any time during the pendency of the claim or recent to the filing of the claim that is related to an event, injury, or disease during service.

4.  The preponderance of the evidence is against finding a current diagnosis of Morton’s neuroma at any time during the pendency of the claim or recent to the filing of the claim that is related to an event, injury, or disease during service.

5.  The preponderance of the evidence is against finding a current diagnosis of a left ankle disability at any time during the pendency of the claim or recent to the filing of the claim that is related to an event, injury, or disease during service.

6.  The preponderance of the evidence is against finding a current diagnosis of a right ankle disability at any time during the pendency of the claim or recent to the filing of the claim that is related to an event, injury, or disease during service.

7.   The Veteran’s IVDS with degenerative arthritis did not more nearly approximate forward flexion limited to 60 degrees or less, combined range of motion of the thoracolumbar spine limited to 120 degrees or less; 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 throughout the entire appeal period.

8.  The Veteran’s radiculopathy of the sciatic nerve of the right lower extremity is manifested by no more than mild incomplete paralysis.

9.  The Veteran’s right wrist chronic sprain with recurrent tenosynovitis is manifested by pain and reduced range of motion, with no evidence of ankylosis and normal muscle strength testing.

10.  The evidence shows that the Veteran’s left knee is manifested by noncompensable limitation of motion due to pain; flexion is not limited to 45 degrees or less and extension is not limited to 10 degrees or more, even with consideration of reduced function on repetitive motion or during flare-ups; there is no evidence of recurrent subluxation or lateral instability, no ankylosis, no dislocated semilunar cartilage, removal of semilunar cartilage, impairment of the tibia and fibula, or genu recurvatum.

11.  The preponderance of the evidence shows that the flexion of the right knee was not limited to 30 degrees or less with consideration of reduced function on repetitive motion or during flare-ups at any time during the appeal period; or, extension limited to 10 degrees or more even with consideration of reduced function on repetitive motion or during flare-ups with no evidence of ankylosis, recurrent subluxation or lateral instability, dislocated semilunar cartilage, removal of semilunar cartilage, impairment of the tibia and fibula, or genu recurvatum.

12. The evidence of record reflects that throughout the entire appeal period the Veteran’s service-connected headaches are characterized by prostrating attacks but the preponderance of the evidence shows that the headaches are not productive of severe economic inadaptability.

13.  The preponderance of the evidence shows that the Veteran does not have any symptoms of TBI residuals that are not already rated under a separate diagnostic code.

CONCLUSIONS OF LAW

1.  The criteria to reopen the previously denied service connection claim for bilateral hearing loss are not met. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. 

2.  The criteria for service connection for obstructive sleep apnea as secondary to service-connected TBI, depressive disorder, headaches, and tinnitus are met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.310.

3.  The criteria for service connection for a left elbow disorder are not met.  38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303.

4.  The criteria for service connection for Morton's neuroma are not met.  38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303.

5.  The criteria for service connection for a left ankle disorder are not met.  38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303.

6.  The criteria for service connection for a right ankle disorder are not met.  38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303.

7.  The criteria for a disability rating in excess of 10 percent for service-connected IVDS with degenerative arthritis are not met.  38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.71a, Diagnostic Code 5242, 5243.

8.  The criteria for an initial rating in excess of 10 percent for service-connected radiculopathy of the sciatic nerve of the right lower extremity are not met.  38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.124a, Diagnostic Code 8520.

9.  The criteria for an initial rating in excess of 10 percent for service-connected right wrist chronic sprain with recurrent tenosynovitis are not met.  38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.71a, Diagnostic Codes 5214 and 5215.

10.  The criteria for a disability rating of 10 percent, but no higher, for service-connected status post arthroscopic surgery of the left knee are more nearly approximated. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.59, 4.71a, Diagnostic Codes 5003, 5260, 5261.

11.  The criteria for an initial rating in excess of 10 percent for service-connected patellofemoral pain syndrome of the right knee are not met.  38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.59, 4.71a, Diagnostic Code 5003, 5260.

12.  The criteria for a disability rating in excess of 30 percent for service-connected headaches are not met.  38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.124a, Diagnostic Code 8100.

13.  The criteria for a compensable disability rating for symptoms related to service-connected TBI which are not already rated under a separate diagnostic code are not met.  38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.124a, Diagnostic Code 8045.

REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

The Veteran served on active duty from August 1982 to October 1988.

This case is before the Board of Veterans’ Appeals (Board) on appeal from an October 2017 Regional Office (RO) rating decision.  

The Veteran’s notice of disagreement (NOD) was received in January 2018.  The RO issued a statement of the case (SOC) in March 2020.  The Veteran’s VA Form 9, substantive appeal to the Board, was received in April 2020.

During the pendency of the appeal, the RO issued a rating decision in March 2020 granting an increased rating for service-connected headaches to 30 percent, effective March 28, 2017 and granted an increased rating for service-connected right wrist sprain with recurrent tenosynovitis to 10 percent, effective March 28, 2017.

Regarding characterization of the appeal, the issue of whether the Veteran is unable to obtain or maintain employment due to his service-connected depressive disorder with TBI has been reasonably raised by the record.  Thus, the Board has now expanded the appeal to include the matter of entitlement to a TDIU due to his service-connected depressive disorder with TBI.  See Rice v. Shinseki, 22 Vet. App. 447, 453-54 (2009).

Service Connection

Establishing service connection generally requires competent evidence of the following: (1) A current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) nexus between the claimed in-service disease and the present disability. 38 C.F.R. § 3.303; see Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009).  Pursuant to 38 C.F.R. § 3.303(b), a claimant may establish the second and third elements by demonstrating continuity of symptomatology for specific chronic disabilities listed in 38 C.F.R. § 3.309(a). See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). 

Service connection for a claimed disability may be established on a secondary basis for a disability that is proximately due to or the result of a service-connected disease or injury.  38 C.F.R. § 3.310(a).  Establishing service-connection on a secondary basis requires evidence sufficient to show (1) that a current disability exists and (2) that the current disability was either (a) caused by or (b) aggravated by a service-connected disability.  38 C.F.R. § 3.310(a).

1. Whether new and material evidence has been received to reopen the previously denied claim of service connection for bilateral hearing loss.

The Veteran contends that his current bilateral hearing loss is caused by or related to active service. 

The Board concludes that new evidence that relates to an unestablished fact necessary to substantiate the claim was not associated with the claims file since the final September 2013 rating decision denying service connection for bilateral hearing loss.  38 U.S.C. §§ 7103, 7105; 38 C.F.R. §§ 3.156, 3.303. 

In this regard, the Veteran originally filed a service connection claim for bilateral hearing loss in June 2012.  In a September 2013 rating decision, the RO denied the Veteran’s service connection claim for bilateral hearing loss on the basis that the evidence shows that the Veteran did not have a current bilateral hearing loss disability under VA regulations. The relevant evidence of record at the time of the September 2013 rating decision included service treatment records, VA treatment records, private treatment record, and notification of failure of the Veteran to report for VA examinations.  

Although notified of the denial in September 2013 at his then current address of record, the Veteran did not initiate an appeal with the September 2013 rating decision within one year of notice of the rating decision.  Moreover, no new and material evidence pertinent to the claim was received within the one-year appeal period, nor were additional, relevant service records, warranting reconsideration of the claim, received at any time thereafter.   See 38 C.F.R. §§ 3.156(b), (c).  Accordingly, the September 2013 rating decision is final.  See 38 C.F.R. § 20.1103. 

A finally decided service connection claim shall be reopened and reviewed if new and material evidence is presented or secured with respect to that claim. 38 U.S.C. § 5108; 38 C.F.R. § 3.156(c).  VA regulation defines “new” evidence as evidence not previously submitted to agency decision makers and “material” evidence as evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. 38 C.F.R. § 3.156(a).  New and material evidence can be neither cumulative nor redundant of the evidence of record at the time of the last 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 determining whether new and material evidence has been received, VA must initially decide whether evidence received since the prior final denial is, in fact, new.  This analysis is undertaken by comparing the newly received evidence with the evidence previously of record.  After evidence is determined to be new, the next question is whether it is material. 

The provisions of 38 U.S.C. § 5108 require a review of all evidence submitted by or on behalf of a claimant since the last final denial on any basis to determine whether a claim must be reopened.  See Evans v. Brown, 9 Vet. App. 273, 282-83 (1996).  Furthermore, for purposes of the “new and material” analysis, the credibility of the evidence is presumed.  Justus v. Principi, 3 Vet. App. 510, 512-13 (1992). 

The Board notes that the threshold for determining whether new and material evidence raises a reasonable possibility of substantiating a claim is “low.” Shade v. Shinseki, 24 Vet. App. 110, 117 (2010).  When evaluating the materiality of newly submitted evidence, the focus must not be solely on whether the evidence remedies the principal reason for denial in the last prior decision; rather the determination of materiality should focus on whether the evidence, taken together, could at least trigger the duty to assist or consideration of a new theory of entitlement.  See Id. at 118, 124 (Lance, J. concurring). 

In March 2017, the Veteran filed another service connection claim for bilateral hearing loss.  The Veteran was provided with a VA examination in June 2017.  This evidence is new in that it was not of record at the time of the September 2013 rating decision.  Nonetheless, it is not material as the VA examination reflects that the Veteran does not have a current hearing loss disability based on VA regulations.  

Impaired hearing is defined as a disability under VA law when the auditory threshold in any of the frequencies 500, 1000, 2000, 3000, 4000 Hertz is 40 decibels (dB) or greater; or when the auditory thresholds for at least three of the frequencies 500, 1000, 2000, 3000, or 4000 Hertz are 26 decibels or greater; or when speech recognition scores using the Maryland CNC Test are less than 94 percent.  38 C.F.R. § 3.385.  The threshold for normal hearing is from 0 to 20 decibels; higher threshold levels indicate some degree of hearing loss.  Hensley v. Brown, 5 Vet. App. 155, 157 (1993).

The results of the June 2017 audiogram do not meet the definition of a hearing loss disability under 38 C.F.R. § 3.385.  As such, there is no reasonably possibility of substantiating a claim of service connection for hearing loss.  Accordingly, having determined that new and material evidence has not been submitted, the Veteran’s request to reopen the claim of entitlement to service connection for bilateral hearing loss is not warranted.

2. Entitlement to service connection for obstructive sleep apnea as secondary to service-connected disability.

The Veteran contends that his current obstructive sleep apnea is caused by or aggravated by his service-connected TBI, depressive disorder, headaches, and/or tinnitus.

The Board concludes that the Veteran has a current diagnosis of obstructive sleep apnea that is caused by his service-connected TBI, depressive disorder, headaches, and tinnitus.  38 U.S.C. §§ 1110, 1131, 5107(b); 38 C.F.R. §§ 3.303(a), 3.310.

In this regard, an April 2009 private sleep study shows that the Veteran was diagnosed with obstructive sleep apnea.  A February 2019 VA treatment record reveals that the Veteran had obstructive sleep apnea that is being treated with CPAP.  Accordingly, the evidence reflects that the Veteran has a current diagnosis of obstructive sleep apnea.

Regarding the issue of whether the Veteran’s obstructive sleep apnea is secondary to his service-connected TBI, depressive disorder, headaches, and/or tinnitus, the record contains conflicting medical opinions.  In this regard, a March 2019 VA physician determined that it is less likely as not the Veteran’s obstructive sleep apnea is singly or in combination secondary to any (and all) of his service-connected TBI and/or depression.  The physician explained that metasearch of available medical literature including current editions of Fishman’s Pulmonology Disorders and Harrison’s fail to reveal any substantive basis for obstructive sleep apnea being secondary to TBI and/or depression.  The remainder of the Veteran’s service-connected conditions are all musculoskeletal, auditory, or cutaneous and would in no way singly or any combination rise to the level of comprising a 50 percent or greater probability of causing obstructive sleep apnea.

In contrast, in May 2020, a private physician provided the medical opinion that it is more likely than not that the Veteran’s sleep apnea is caused by and/or aggravated by his service-connected major depressive disorder with TBI, headaches, and tinnitus.  She explained that it is well established in the scientific literature that sleep apnea in a veteran is more likely than not secondary to PTSD and mood disorder citing the study, Sleep Disorders in US Military Personnel: A High Rate of Comorbid Insomnia and Obstructive Sleep Apnea.  She noted that the incidence of sleep apnea in veterans suffering from PTSD, TBI, and mood disorder is almost 10 times higher than the incidence of sleep apnea in the general population and 3-4 times higher than the obese population.  The physician stated that the mechanism of the development of sleep apnea is the same in both obese patients and patients suffering from PTSD as they both alter REM sleep.  She concluded that PTSD, TBI, and mood disorder cause sleep apnea directly and/or aggravate the effect of obesity on the causation of sleep apnea.

The May 2020 private medical opinion is probative on the issue of whether the Veteran’s obstructive sleep apnea is at least in part caused by his service-connected disabilities.  Specifically, the private physician provided a thorough rationale for her medical opinion based on the evidence of record and medical literature.  She explained in detail why she disagreed with the March 2019 VA examiner and discussed in detail the medical literature that supported her rationale.  In contrast, the March 2019 VA examiner did not specifically discuss the medical literature he relied upon to determine that is less likely as not the Veteran’s obstructive sleep apnea is singly or in combination secondary to any (and all) of his service-connected TBI and/or depression.  He only noted that a metasearch of available medical literature failed to reveal any substantive basis for obstructive sleep apnea being secondary to TBI and/or depression.  

After careful review of the evidence to include the aforementioned medical opinions, there is no reason to accord more weight to the negative medical opinion over the positive medical opinion.  Thus, the evidence is at least evenly balanced with respect to whether obstructive sleep apnea is caused by the opioids used to treat the Veteran’s service-connected PTSD, TBI, headaches, and tinnitus and the Board resolves any reasonable doubt in favor of the Veteran.  Accordingly, the Board finds that entitlement to service connection for obstructive sleep apnea is warranted.

3.  Entitlement to service connection for a left elbow disorder.

The Veteran contends that he has a left elbow disorder related to being thrown off of a 155 Howitzer tow and physical training.  See March 2017 claim.

The question for the Board is whether the Veteran has a current disability that began during service or is at least as likely as not related to an in-service injury, event, or disease.

The Board concludes that the Veteran does not have a current diagnosis of a left elbow at any time during the pendency of the claim or recent to the filing of the claim that is related to an event, injury, or disease during service.  See 3.303; Romanowsky v. Shinseki, 26 Vet. App. 289, 294 (2013); McClain v. Nicholson, 21 Vet. App. 319, 321 (2007).

In this regard, VA and private treatment records do not show that the Veteran complained of, or received treatment for symptoms of a left elbow disorder.  Furthermore, there are no VA or private treatment records that document a current diagnosis of a left elbow disorder at any time during the appeal period or near the filing the service connection claim.   

Pain alone, without an accompanying diagnosis of a present disease, can qualify as a disability” if it “reaches the level of a functional impairment of earning capacity.” Saunders v. Wilkie, 886 F.3d 1356, 1367-69 (Fed. Cir. 2018).  However, the Veteran has not specified the symptoms of his left elbow disorder to include left elbow pain and the medical evidence of record does not reflect that the Veteran experiences any symptoms of a left elbow disorder.  

In conclusion, the preponderance of the evidence shows that the Veteran does not have a current diagnosis of left elbow disorder.  Congress specifically limits entitlement for service-connected disease or injury to cases where an in-service disease or injury has resulted in a disability.  Accordingly, the Veteran’s claim of entitlement to service connection for a left elbow is not warranted.

4.  Entitlement to service connection for Morton's neuroma.

The Veteran contends that he has Morton’s neuroma related to physical training during active military service.  See March 2017 claim.

The question for the Board is whether the Veteran has a current disability that began during service or is at least as likely as not related to an in-service injury, event, or disease.

The Board concludes that the Veteran does not have a current diagnosis of Morton’s neuroma at any time during the pendency of the claim or recent to the filing of the claim that is related to an event, injury, or disease during service.  See 3.303; Romanowsky v. Shinseki, 26 Vet. App. 289, 294 (2013); McClain v. Nicholson, 21 Vet. App. 319, 321 (2007).

In this regard, VA and private treatment records do not show that the Veteran was diagnosed with Morton’s neuroma.  After reviewing the claims file and evaluating the Veteran, a July 2017 VA examiner diagnosed the Veteran with bilateral flat foot (pes planus) and plantar fasciitis.  The examiner did not provide a diagnosis of Morton’s neuroma.   The examiner noted that the Veteran provided a history of surgical resection of a left fifth toe bone growth around 2005-2007; however, the left fifth toe had been asymptomatic for many years.  The Veteran’s symptoms of the bilateral foot are attributed to bilateral pes planus and service-connected bilateral plantar fasciitis.  

Although the Veteran is competent to report his bilateral foot symptoms, he is not competent to provide a diagnosis of Morton’s neuroma or a nexus opinion regarding this issue.  The issue is medically complex, as it requires knowledge and interpretation of medical testing and physical evaluation.  Therefore, it is outside the competence of the Veteran, because the record does not show that he has the medical training or credentials to make such a determination. Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007); see also Kahana v. Shinseki, 24. Vet. App. 428 (2011). 

In conclusion, the preponderance of the evidence shows that the Veteran does not have a current diagnosis of Morton’s neuroma.  Congress specifically limits entitlement for service-connected disease or injury to cases where an in-service disease or injury has resulted in a disability.  Accordingly, the Veteran’s claim of entitlement to service connection for Morton’s neuroma is not warranted.

5.  Entitlement to service connection for a left ankle disorder.

6.  Entitlement to service connection for a right ankle disorder. 

The Veteran contends that he has a bilateral ankle disorder due to being thrown off of a 155 Howitzer tow and physical training.  See March 2017 claim.

The question for the Board is whether the Veteran has a current disability that began during service or is at least as likely as not related to an in-service injury, event, or disease.

The Board concludes that the Veteran does not have a current diagnosis of a bilateral ankle disability at any time during the pendency of the claim or recent to the filing of the claim that is related to an event, injury, or disease during service.  See 3.303; Romanowsky v. Shinseki, 26 Vet. App. 289, 294 (2013); McClain v. Nicholson, 21 Vet. App. 319, 321 (2007).

In this regard, VA and private treatment records do not show that the Veteran was diagnosed with a bilateral ankle disorder.  A July 2017 VA examiner determined that the Veteran did not have a current diagnosis of a bilateral ankle disorder.  The examiner explained that there were no objective abnormal findings noted on the physical examination.  The Veteran’s medical history is consistent with a bilateral ankle strain or tendinitis, but there are no medical records to assist with making a diagnosis of an ankle condition.  

However, during the July 2017 VA examination, the Veteran reported that he developed intermittent bilateral posteromedial ankle pain about 10 years ago.  The condition has gradually progressed and now occurs several days a week when he wakes up in the morning and becomes worse if he tried to run or does prolonged walking and/or standing.  

“Pain alone, without an accompanying diagnosis of a present disease, can qualify as a disability” if it “reaches the level of a functional impairment of earning capacity.” Saunders v. Wilkie, 886 F.3d 1356, 1367-69 (Fed. Cir. 2018).  However, the medical and lay evidence of record does not reflect that the Veteran’s bilateral ankle pain results in any functional impairment of earning capacity.  Furthermore, there is no evidence the Veteran’s lay statements of bilateral ankle pain are related to an injury, event, or disease in service. See Sanchez-Benitez v. Principi, 259 F.3d 1356, 1362 (Fed. Cir. 2001) (holding a claim based on “pain alone” fails “when there is no sufficient factual showing that the pain derives from an in-service disease or injury.”).

In this regard, the Veteran’s service treatment records reveal that the Veteran did not complain of, receive treatment for, or was diagnosed with a left ankle disorder during active military service.  However, an April 1985 service treatment record documents that the Veteran sought treatment for right ankle pain for the past three months.  He was diagnosed with unresolved, mild right ankle sprain.  There is no further documentation of symptoms of a right ankle disorder in the Veteran’s service treatment record.  The Veteran denied experiencing, at that time or in the past, bone, joint, or other deformity or reported any problems with either ankle in a December 1985 Report of Medical History as part of a reenlistment examination.  In addition, the December 1985 reenlistment examination reveals that his lower extremities were evaluated as normal and a bilateral ankle disorder was not documented in the summary of defects and diagnoses section.  There is no indication that the Veteran’s current bilateral ankle pain is related to active military service as the Veteran does not contend that the onset of his bilateral ankle pain began during service with continuous symptoms to the present.  In fact, the Veteran specifically noted that the onset of his bilateral ankle pain began in approximately 2007.  Furthermore, a January 2017 VA examiner provided the medical opinion that the Veteran that the claimed condition was less likely than not incurred in or caused by the claimed in-service injury, event, or illness.  He explained that there were no objective abnormal findings noted in the current physical examination of both ankles.  The service treatment records document a right ankle sprain in April 1985.  Nonetheless, the medical records are essentially silent for right ankle or a left ankle condition for over 27 years.  The Board finds that this medical opinion is probative as to the issue of whether the Veteran’s bilateral ankle pain is related to active military service as the examiner provided a clear rationale based on the evidence of record.  Thus, the above evidence and analysis reflects that the Veteran’s symptoms of bilateral ankle pain are not due to disease or injury in service.

Moreover, although the Veteran is competent to report his bilateral ankle symptoms, the question of whether these symptoms are due to a disease or injury relates to an internal medical process that extends beyond an immediately observable cause-and-effect relationship that is of the type that the courts have found to be beyond the competence of witnesses.  Compare Jandreau v. Nicholson, 492 F.3d 1372, 1376 (Fed. Cir. 2007) (lay witness capable of diagnosing dislocated shoulder); Barr v. Nicholson, 21 Vet. App. 303, 308-09 (2007) (lay person competent to identify varicose veins); Falzone v. Brown, 8 Vet. App. 398, 403 (1995) (lay person competent to testify to pain and visible flatness of his feet); with Clemons v. Shinseki, 23 Vet. App. 1, 6 (2009) (“It is generally the province of medical professionals to diagnose or label a mental condition, not the claimant”); Woehlaert v. Nicholson, 21 Vet. App. 456, 462 (2007) (unlike varicose veins or a dislocated shoulder, rheumatic fever is not a condition capable of lay diagnosis); Jandreau, 492 F.3d at 1377, n. 4 (“sometimes the layperson will be competent to identify the condition where the condition is simple, for example a broken leg, and sometimes not, for example, a form of cancer”). Thus, the Veteran’s own assertions as to the etiology of his bilateral ankle symptoms are not competent.

In conclusion, the preponderance of the evidence shows that the Veteran does not have a current diagnosis of a bilateral ankle disorder.  Congress specifically limits entitlement for service-connected disease or injury to cases where an in-service disease or injury has resulted in a disability.  Accordingly, the Veteran’s claim of entitlement to service connection for a bilateral ankle disorder is not warranted.

Increased Rating

Disability ratings are determined by applying the criteria set forth in VA’s Schedule for Rating Disabilities, which is based on the average impairment of earning capacity.  Individual disabilities are assigned separate diagnostic codes.  See 38 U.S.C. § 1155; 38 C.F.R. § 4.1.  Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for that rating.  Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7.   Any reasonable doubt regarding a degree of disability will be resolved in favor of the veteran.  38 C.F.R. § 4.3.  When the evidence is in relative equipoise, the veteran is accorded the benefit of the doubt.  38 U.S.C. § 5107(b).  

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, when the current appeal arises from the initially assigned rating, consideration 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).  Moreover, staged ratings are appropriate in any increased rating claim in which distinct time periods with different ratable symptoms can be identified.  Hart v. Mansfield, 21 Vet. App. 505 (2007).  

When evaluating musculoskeletal disabilities based on limitation of motion, 38 C.F.R. § 4.40 requires consideration of functional loss caused by pain or other factors listed in that section that could occur during flare-ups or after repeated use and, therefore, not be reflected on range-of-motion testing.  38 C.F.R. § 4.45 requires consideration also be given to less movement than normal, more movement than normal, weakened movement, excess fatigability, incoordination, and pain on movement.  See DeLuca v. Brown, 8 Vet. App. 202 (1995); see also Mitchell v. Shinseki, 25 Vet. App. 32, 44 (2011).  Nonetheless, even when the background factors listed in § 4.40 or 4.45 are relevant when evaluating a disability, the rating is assigned based on the extent to which motion is limited, pursuant to 38 C.F.R. § 4.71a; a separate or higher rating under § 4.40 or 4.45 itself is not appropriate.  See Thompson v. McDonald, 815 F.3d 781, 785 (Fed. Cir. 2016) (“[I]t is clear that the guidance of § 4.40 is intended to be used in understanding the nature of the veteran’s disability, after which a rating is determined based on the § 4.71a criteria.”).  Under 38 C.F.R. § 4.59, painful motion is a factor to be considered with any form of arthritis; however, 38 C.F.R. § 4.59 is not limited to disabilities involving arthritis.  See Burton v. Shinseki, 25 Vet. App. 1 (2011). 

The Court held that the final sentence of 38 C.F.R. § 4.59 requires that the examiner record the results of range of motion testing “for pain on both active and passive motion [and] in weight-bearing and non-weight-bearing and, if possible, with range of motion measurements of the opposite undamaged joint.”  Correia v. McDonald, 28 Vet. App. 158 (2016).  Furthermore, in Sharp v. Shulkin, 29 Vet. App. 26 (2017), the Court held that VA examiners must obtain information about the severity, frequency, duration, precipitating and alleviating factors, and extent of functional impairment of flares from the veterans themselves, when a flare-up is not observable at the time of examination. 

7.  Entitlement to a disability rating in excess of 10 percent for service-connected IVDS with degenerative arthritis.

The Veteran contends that he is entitled to a higher rating for his service-connected IVDS with degenerative arthritis, currently rated as 10 percent disabling. 

The Veteran’s IVDS with degenerative arthritis is rated under 38 C.F.R. § 4.71a, Diagnostic Code 5242.  Under the General Rating Formula for Diseases and Injuries of the Spine, a 10 percent rating is warranted 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 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 rating is warranted for forward flexion of the thoracolumbar spine to 30 degrees or less; or, favorable ankylosis of the entire thoracolumbar spine.  A 50 percent rating is warranted for unfavorable ankylosis of the entire thoracolumbar spine.  A 100 percent evaluation is warranted for unfavorable ankylosis of the entire spine.  38 C.F.R. § 4.71a, General Rating Formula for Diseases and Injuries of the Spine.  

Any associated objective neurological abnormalities, including, but not limited to, bowel or bladder impairment, are to be evaluated separately under an appropriate diagnostic code.  Id. at Note 1. 

The preponderance of the evidence in this case is against the assignment of a rating in excess of 10 percent for arthritis of the thoracolumbar spine.  The Veteran stated in the July 2017 VA examination he was experiencing an increase in low back pain.  He had low back pain every day that would extend to the right buttock and the right lateral and anterolateral thigh just above the right knee.  The Veteran reported that he developed flare-ups that were activity related and most nights when he was sleeping.  The Veteran reported in a March 2019 VA examination that he experienced back pain at approximately L5/S1 in the midline with some radiation into the left upper buttocks radiating in to the let fifth toe and radiating symptoms on the right side. There was no motor weakness and no history of bowel or bladder sphincter abnormality.  Nonetheless, even considering the Veteran’s lay reported of symptoms, the degree of any additional limitation reflected by such statements would not result in limitation of more nearly approximating 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.  In this regard, the July 2017 VA examination reveals that the Veteran had forward flexion within normal limits from zero to 70 degrees.  Combined range of motion of the thoracolumbar spine was 220 degrees.  The joint function was not additionally limited by pain, fatigue, weakness, lack of endurance, or incoordination after repetitive use.  The Veteran was able to perform repetitive use testing and there was no additional loss function or range of motion after three repetitions.  The examiner noted that the joint function of the spine was not additionally limited by pain fatigue, weakness, lack of endurance, or incoordination after repetitive use.  The Veteran did not have guarding or muscle spasm of the thoracolumbar spine.  The examiner noted that there was les movement than normal, disturbance of locomotion, interference with sitting, and interference with standing.  The March 2019 VA examination shows that initial range of motion measurements were from zero to 65 degrees. Combined range of motion of the thoracolumbar spine was 215 degrees.  Pain was noted on the exam, but pain did not result in or cause functional loss.  The Veteran was able to perform repetitive-use testing with at least three repetitions.  There was no additional loss of function after three repetitions.  There was no evidence of pain, fatigue, weakness, lack of endurance, or incoordination that cause functional loss.  The examiner was unable to say without mere speculation whether pain, fatigue, weakness, or incoordination did not significantly limit functional ability with repeated us over a period of time or during a flare-up.  The examiner explained that there is no conceptual or empirical basis for making such determination without directly observing function under flare up condition and there was a lack of supporting objective documentation in the file.  The examiner noted that passive range of motion of the spine was not performed as it was not feasible to do this in a sage and reasonable manner.  The examiner also reported that non-weight bearing assessment was not applicable, because there was no objective evidence pain when the spine was in a non-weight bearing position at rest.  The March 2019 examination revealed that the Veteran did not have guarding or muscle spasm of the thoracolumbar spine and there were no additional factors contributing to disability.  

Consideration has also been given to assigning a rating under the Formula for Rating IVDS Based on Incapacitating Episodes.  While the Veteran is diagnosed with IVDS, the evidence of record shows that the Veteran was not prescribed bed rest by a physician for a duration that meets the criteria for a higher rating.  See 38 C.F.R. § 4.71a, Formula for Rating IVDS Based on Incapacitating Episodes. 

Regarding neurological impairment, the Veteran has already been granted service connection for radiculopathy of the sciatic nerve of the bilateral lower extremity associated with IVDS with degenerative arthritis.  The lay and medical evidence of record is against a finding that the Veteran has any other neurological abnormality associated with his spine disability.

For the foregoing reasons, the preponderance of the evidence is against the Veteran’s claim for a rating in excess of 10 percent for degenerative joint disease of the thoracic spine.  Accordingly, the benefit of the doubt doctrine is not applicable.  38 U.S.C. § 5107; 38 C.F.R. §§ 4.3, 4.7. 

8.  Entitlement to an initial rating in excess of 10 percent for service-connected radiculopathy of the sciatic nerve of the right lower extremity.

The Veteran contends that he is entitled to a higher disability rating for service-connected radiculopathy of the sciatic nerve of the right lower extremity.  

Paralysis of the sciatic nerve is evaluated in accordance with the criteria set forth in 38 C.F.R. § 4.124a, Diagnostic Code 8520.  (Neuritis and neuralgia of that group are evaluated under Diagnostic Codes 8620 and 8720.).  Under these criteria, mild incomplete paralysis is rated as 10 percent disabling.  Moderate incomplete paralysis is rated as 20 percent disabling.  Moderately severe incomplete paralysis is rated as 40 percent disabling.  Severe incomplete paralysis, with marked muscular atrophy is rated as 60 percent disabling.  Complete paralysis, with the foot dangles and drops, no active movement possible of muscles below the knee, flexion of knee weakened or (very rarely) lost is rated as 80 percent disabling.  38 C.F.R. § 4.124a.  

The words “mild,” “moderate,” and “severe” as used in the various Diagnostic Codes are not defined in the Rating Schedule.  Regulations provide that ratings for peripheral neurological disorders are to be assigned based the relative impairment of motor function, trophic changes, or sensory disturbance.  38 C.F.R. § 4.120.  Consideration is also given for loss of reflexes, pain, and muscle atrophy.  See 38 C.F.R. §§ 4.123, 4.124.

The term “incomplete paralysis” indicates a degree of lost or impaired function substantially less than the type picture for complete paralysis given with each nerve, whether due to varied level of the nerve lesion or to partial regeneration.  When the involvement is wholly sensory, the rating is for the mild, or at most, the moderate degree.  The disability ratings for the peripheral nerves are for unilateral involvement; when bilateral, the ratings combine with application of the bilateral factor.  38 C.F.R. § 4.124a, Note at “Diseases of the Peripheral Nerves.”  The Note to 38 C.F.R. § 4.124a establishes a maximum disability rating for conditions that are wholly sensory, as opposed to a minimum disability rating for conditions that are more than wholly sensory.  See Miller v. Shulkin, 28 Vet. App. 376 (2017).  

The maximum rating which may be assigned for neuritis not characterized by organic changes will be moderately severe incomplete paralysis for sciatic nerve involvement.  See 38 C.F.R. § 4.123.  

Regarding impairment of motor functions, VA examinations in July 2017 and March 2019 shows that strength testing of right hip flexion right knee extension, right ankle plantar flexion, right ankle dorsiflexion, and right great toe extension were normal.  Straight leg testing was normal.  The March 2019 examiner noted that there was no motor weakness in the right lower extremity.

Regarding sensory disturbance, the July 2017 and March 2019 VA examinations show that the sensory evaluations were normal.  Specifically, the results for sensation to light touch testing were normal for the right upper anterior thigh (L2), right thigh/knee (L3/4), right lower leg/ankle (L4/L5/S1), and right foot/toes (L5).   

Regarding loss of reflexes, VA examinations in July 2017 and March 2019 reflect that deep tendon reflexes in the right knee and right ankle were normal. 

Regarding pain, the July 2017 VA examiner documented that the Veteran had radicular pain or other signs or symptoms due to radiculopathy.  Specifically, the examiner determined that the Veteran experienced mild intermittent pain and mild numbness in the right lower extremity.  During the examination, the Veteran reported that he had low back pain that extended to the right buttock, right lateral thigh, and anterolateral thigh just above the right knee.  The March 2019 VA examination reveals that the Veteran did not have constant or intermittent pain of the right lower extremity.  There was evidence of mild numbness of the right lower extremity.  The Veteran reported radiating symptoms on the right side, mostly with numbness and tingling in the right great toe.

The medical evidence showed that there was no muscle atrophy of the right lower extremity.  There was also no lay or medical evidence of trophic changes of the right lower extremity.

Regarding complete paralysis, the evidence of record shows the Veteran’s right lower extremity radiculopathy is not manifested by complete paralysis to include right foot dangling and drop, no active movement possible of muscles below the right knee, and/or flexion of right knee weakened or lost.

Based on the above, the Board finds that the disability is primarily manifest by subjective pain and numbness of the right lower extremity.  The most probative evidence of record is against a finding that the disability is manifest by impairment of motor functions, trophic changes, sensory disturbance, loss of reflexes, muscle atrophy, or complete paralysis.  Thus, the level of impairment is most analogous to mild incomplete paralysis.

The Board has considered all other potentially applicable Diagnostic Codes, but there is no evidence showing the Veteran has neurological impairment associated with any other peripheral nerves that have not already been service-connected.  Therefore, a separate or higher rating under a different Diagnostic Code is not warranted.  

In conclusion, the Board finds that the preponderance of the evidence is against the Veteran’s claim for a rating in excess of 10 percent for service-connected radiculopathy of the sciatic nerve of the right lower extremity.  In denying such a rating, the Board finds the benefit of the doubt doctrine is not applicable.  38 U.S.C. § 5107; 38 C.F.R. §§ 4.3, 4.7.

9.  Entitlement to an initial rating in excess of 10 percent for service-connected right wrist chronic sprain with recurrent tenosynovitis.

The Veteran’s service-connected right wrist chronic sprain with recurrent tenosynovitis is currently rated as 10 percent disabling under 38 C.F.R. § 4.71a, Diagnostic Codes 5215-5024.  Hyphenated diagnostic codes are used when a rating under one diagnostic code requires use of an additional diagnostic code to identify the basis for the evaluation assigned.  38 C.F.R. § 4.27.  In this case, Diagnostic Code 5024 is used to identify tenosynovitis, which is rated on limitation of motion of the affected part.  The assignment of Diagnostic Code 5215 shows that the Veteran’s service-connected right wrist chronic sprain with recurrent tenosynovitis is rated as analogous to limitation of motion of the wrist.

A distinction is made between major (dominant) and minor musculoskeletal groups for rating upper extremities. 38 C.F.R. § 4.69.  The Veteran’s right hand is dominant.

Under diagnostic code 5215, limitation of motion of wrist evidence by palmar flexion limited in line with forearm or dorsiflexion less than 15 degrees warrant a 10 percent disability rating.  This is the maximum disability rating under Diagnostic Code 5215.

The Board has considered whether the Veteran is entitled to higher disability rating under other relevant diagnostic codes. In this regard, Diagnostic Code 5214 evaluates ankylosis of the wrist.  The July 2017 and March 2019 VA examinations reveal that the Veteran does not have ankylosis of the right wrist.  Thus, the Veteran is not entitled to a disability rating in excess of 10 percent under Diagnostic Code 5214.

The regulations relating to limitation of motion and DeLuca are not for application, as the Veteran is receiving the highest rating for limitation of motion of the wrist and a higher rating requires ankylosis

The Veteran reported right wrist pain.  Some activities can bring on pain to include repetitively lifting heavy items or doing repetitive activities such as writing or typing for prolonged periods.  He takes Tylenol for pain relief.  See July 2017 VA examination. Muscle strength testing of the right wrist was normal.  There was also no evidence of muscle atrophy.  See July 2017 and March 2019 VA examinations.  The July 2017 and March 2019 VA examiners determined that there were no additional contributing factors of disability with respect to the right wrist.  VA treatment records document that the Veteran has moderate median neuropathy of the right wrist.  However, the medical evidence reflects that the neuropathy of the right wrist is related to his nonservice-connected carpal tunnel syndrome and not his service-connected right wrist chronic sprain with tenosynovitis.  Thus, evaluating the Veteran’s right wrist disability under muscle injuries of the forearm and hand or disease of the nerve is not warranted.

10.  Entitlement to a compensable disability rating for service-connected status post arthroscopic surgery of the left knee.

The Veteran contends that he is entitled to a higher disability rating because his symptoms of the left knee had worsened. 

The Veteran’s service-connected status post arthroscopic surgery of the left knee is currently evaluated as noncompensable under 38 C.F.R. § 4.71a, Diagnostic Code 5257.  Under Diagnostic Code 5257, slight recurrent subluxation or lateral instability warrants a 10 percent disability rating.  A 20 percent disability rating is warranted for moderate recurrent subluxation or lateral instability.  Severe recurrent subluxation or lateral instability warrants a 30 percent disability rating. Ratings based on instability of the knee may be separately assigned because they do not also encompass painful motion. 

The words “slight,” “moderate” and “severe” are not defined in the VA Schedule. Rather than applying a mechanical formula, the Board must evaluate all of the evidence to the end that its decisions are equitable and just. 38 C.F.R. § 4.6.  According to MERRIAM WEBSTER’S COLLEGIATE DICTIONARY 999 (11th Ed. 2007), “slight” means small in amount.  “Moderate” means limited in scope or effect.  “Severe” means very painful or harmful or of a great degree. 

Notably, the use of terminology such as “moderate” or “severe” by VA examiners and others, although an element of evidence to be considered by the Board, is not necessarily dispositive of an issue.  The United States Court of Appeals for Veterans Claims recently held that nothing in Diagnostic Code 5257 provides that objective medical evidence is required or is to be favored over lay evidence in determining whether to assign a rating for lateral instability of the knee.  English v. Wilkie, 30 Vet. App. 347, 349 (2018).  Thus, objective medical evidence cannot be categorically found more probative than lay evidence with respect to this Diagnostic Code.  See English, 30 Vet. App. at 352-53.  All evidence must be evaluated in arriving at a decision regarding an increased rating.  38 C.F.R. §§ 4.2, 4.6. 

The assigned Diagnostic Code 5257 suggests that status post arthroscopic surgery of the left knee is rated based on slight recurrent subluxation or lateral instability.  38 C.F.R. § 4.71a.   A review of the evidence reflects that status post arthroscopic surgery of the left knee could be rated based on noncompensable limitation of motion, by analogy to arthritis, particularly because the status post arthroscopic surgery of the left knee has not been productive of recurrent subluxation or lateral instability at any time during the relevant rating period.  Nonetheless, the medical evidence shows that the Veteran’s status post arthroscopic surgery of the left knee results in painful noncompensable limitation of flexion of the left knee warranting a 10 percent disability rating, albeit under Diagnostic Code 5260 or 5261, rather than under Diagnostic Code 5257.  

In this regard, rating by analogy to a closely related condition that best approximates the disability picture is appropriate. See 38 C.F.R. §§ 4.20 and 4.27.  

While the record does not specifically identify arthritis of the left knee, the noncompensable painful motion warrants a 10 percent rating, as analogous to arthritis.  See 38 C.F.R. §  4.71a, Diagnostic Code 5003.

Therefore, the assigned Diagnostic Code should be Diagnostic Code 5260 to show that status post arthroscopic surgery of the left knee is rated based on noncompensable limitation of motion.  However, a rating in excess of 10 percent for the left knee disability is not warranted.  

In this regard, the preponderance of the medical and lay evidence shows that the Veteran did not have slight, moderate, or severe recurrent subluxation or lateral instability of the left knee throughout the appeal period.  Specifically, the Veteran did not assert that he experienced symptoms of recurrent subluxation or instability of the left knee to include giving way or weakness.  Anterior, posterior, medial, and lateral instability tests of the left knee were normal.  The examiner determined that joint instability testing revealed no evidence of joint instability.  The July 2017 VA examination shows that the Veteran did not have a history of recurrent subluxation or lateral instability of the left knee.  The Veteran had a history of recurrent effusion in the left knee.  The examiner documented that the Veteran reported swelling of the left knee about once a month.  The March 2019 VA examination reveals that there was no history of recurrent subluxation or lateral instability of the left knee.  Joint in stability was performed and there was no evidence of joint instability.  Anterior, posterior, medial, and lateral instability tests of the left knee were normal. 

The Board has also considered the other Diagnostic Codes pertaining to the knee and leg.  Other disability ratings may be assigned only if the symptomatology for a disability is not duplicative or overlapping with the symptomatology of any other disability.  See Esteban v. Brown, 6 Vet. App. 259, 261-62 (1994); Lyles v. Shulkin, 29 Vet. App. 107 (2017) (holding that 38 C.F.R. § 4.14 prohibits paying compensation twice for the same symptoms or functional impairment).  

Limitation of motion of the knee is evaluated under Diagnostic Codes 5260 and 5261.  Under Diagnostic Code 5260, (limitation of flexion), a 10 percent disability rating is warranted for flexion limited to 45 degrees. Limitation of flexion to 30 degrees warrants a 20 percent disability rating.  A 30 percent disability rating is assigned for flexion limited to 15 degrees or less. 

 In order for the Veteran to receive a 10 percent rating under Diagnostic Code 5261 (limitation of leg extension), the evidence must show that his knee disability is manifested by leg extension limited to 10 degrees.  A 20 percent rating under Diagnostic Code 5261 is warranted if the evidence shows leg extension limited to 15 degrees.  The Veteran is entitled to a 30 percent disability rating for leg extension limited to 20 degrees.  

A veteran who has both compensable limitation of flexion and compensable limitation of extension of the same leg must be rated separately under Diagnostic Codes 5260 and 5261 to be adequately compensated for functional loss associated with injury to the leg.  See VAOPGCPREC 9-04 (September 17, 2004).  

The Veteran’s lay reports indicate his left knee disability results in daily, diffuse left knee pain.  See July 2017 and March 2019 VA examination reports.  He wears a left knee brace every day.  He takes Tylenol and applies icy hot to both knees for pain relief.  He experiences flare-ups that are activity related.  The Veteran reported that he avoids running and he has difficulty with prolonged walking, prolonged sitting in one position, prolonged standing, and lifting and carrying heavy items.  See July 2017 and March 2019 VA examination reports.  However, even considering the Veteran’s lay reports of symptoms and noted functional loss, the degree of additional limitation reflected by the Veteran’s lay statements does not rise to a level of limitation of motion that more nearly approximates flexion limited to 45 degrees and/or extension limited to 10 degrees of the left knee.  In this regard, the medical evidence shows that left knee flexion at the worst was limited to 120 degrees and extension was to zero degrees after repetitive use testing.  See July 2017 and March 2019 VA examinations.  There was evidence of pain noted on the examination and there was mild diffuse tenderness of the left knee during the examination in July 2017.  There was mild pain on non-weight bearing of the left knee during the last 20 degrees of active extension during the July 2017 VA examination.  The July 2017 examiner determined that he unable to say without mere speculation whether pain, weakness, fatigability, or incoordination significantly limited functional ability with repetitive use over time or during flare-ups.  The examiner explained that he unable to assess for repeated use over a period of time in this setting.  The examiner stated that he was unable to determine or describe any specific physical or functional limitations that would occur due to pain, weakness, fatigability, or incoordination when a joint is used repeatedly over time or during flare-ups since it would be speculative with regard to these hypothetical situations. The March 2019 VA examiner also determined that he was unable to say without mere speculation that pain, weakness, fatigability, or incoordination significantly limited functional ability of the left knee with repetitive use over time or during flare-ups.  The examiner explained that there is no conceptual or empirical basis for making such determination without directly observing function under these conditions.  The examiner also noted that for this Veteran, there was no persistent evidence of record considered valid or reproducible for rating purposes that indicates a loss of function during these conditions.  The examiner further noted that there was a lack of supporting objective documentation in the file.  The March 2019 VA examiner observed that there was left thigh atrophy consistent with persistent and ongoing pathology in the left knee.  In light of the foregoing, the preponderance of the evidence shows that the Veteran’s service-connected status post arthroscopic surgery of the left knee does not result compensable limitation of flexion or extension.  Nonetheless, as the medical evidence reflects that the Veteran experiences painful noncompensable limitation of flexion of the left knee, the evidence is at least evenly balanced regarding whether the Veteran is entitled to 10 percent disability rating for painful flexion of the left knee.  See 38 C.F.R. § 4.59 (“The intent of the schedule is to recognize painful motion with joint or periarticular pathology as productive of disability. It is the intention to recognize actually painful, unstable, or malaligned joints, due to healed injury, as entitled to at least the minimum compensable rating for the joint.” Accordingly, the Board finds that entitlement to a 10 percent disability rating for painful noncompensable limitation of flexion of the left knee is warranted throughout the appeal period.

Regarding whether the Veteran’s service-connected left knee disability warrants a higher or separate disability rating under other Diagnostic Codes pertaining to the knee and leg, the preponderance of the evidence does not support a separate compensable rating or a rating higher than 10 percent.  Disabilities of the knee and leg may also be evaluated under Diagnostic Codes 5256, 5258, 5259, 5262, or 5263.  However, the medical and lay evidence shows that the Veteran’s left knee disability is not manifested by ankylosis, recurrent subluxation or lateral instability, dislocation of the semi-lunar cartilage, symptomatic removal of semilunar cartilage, any impairment of the tibia and fibula, or genu recurvatum throughout the relevant appeal period.  Thus, Diagnostic Codes 5256, 5258, 5259, 5262 and 5263 are not applicable in this case.  

In conclusion, the Veteran’s status post arthroscopic surgery of the left knee results in painful limitation of motion of the left knee, and as such, the criteria for the assignment of a 10 percent rating on the basis of noncompensable painful motion rated by analogy to arthritis, is warranted. 

11. Entitlement to an initial rating in excess of 10 percent for service-connected patellofemoral pain syndrome of the right knee.

The Veteran’s service-connected patellofemoral pain syndrome is currently evaluated as 10 percent disabling under 38 C.F.R. § 4.71a, Diagnostic Code 5260.  Under Diagnostic Code 5260, (limitation of flexion), a 10 percent disability rating is warranted for flexion limited to 45 degrees. Limitation of flexion to 30 degrees warrants a 20 percent disability rating.  A 30 percent disability rating is assigned for flexion limited to 15 degrees or less. 

 In order for the Veteran to receive a 10 percent rating under Diagnostic Code 5261 (limitation of leg extension), the evidence must show that his knee disability is manifested by leg extension limited to 10 degrees.  A 20 percent rating under Diagnostic Code 5261 is warranted if the evidence shows leg extension limited to 15 degrees.  The Veteran is entitled to a 30 percent disability rating for leg extension limited to 20 degrees.  

A veteran who has both compensable limitation of flexion and compensable limitation of extension of the same leg must be rated separately under Diagnostic Codes 5260 and 5261 to be adequately compensated for functional loss associated with injury to the leg.  See VAOPGCPREC 9-04 (September 17, 2004).  

The Veteran’s lay reports indicate his right knee disability results in daily, diffuse right knee pain.  See July 2017 and March 2019 VA examination reports.  He wears a knee brace every day.  He takes Tylenol and applies icy hot to both knees for pain relief.  He experiences flare-ups that are activity related.  The Veteran reported that he avoids running and he has difficulty with prolonged walking, prolonged sitting in one position, prolonged standing, and lifting and carrying heavy items.  See July 2017 and March 2019 VA examination reports. However, even considering the Veteran’s lay reports of symptoms and noted functional loss, the degree of additional limitation reflected by the Veteran’s lay statements does not rise to a level of limitation of motion that more nearly approximates flexion limited to 30 degrees and/or extension limited to 10 degrees of the right knee.  In this regard, the medical evidence shows that right knee flexion at the worst was limited to 130 degrees and extension was to zero degrees after repetitive use testing.  See July 2017 and March 2019 VA examinations.  There was mild pain on passive range of motion and on non-weight bearing of the right knee during the last 10 degrees of flexion during the July 2017 VA examination.  The July 2017 examiner determined that he unable to say without mere speculation whether pain, weakness, fatigability, or incoordination significantly limited functional ability with repetitive use over time or during flare-ups.  The examiner explained that he unable to assess for repeated use over a period of time in this setting.  The examiner stated that he was unable to determine or describe any specific physical or functional limitations that would occur due to pain, weakness, fatigability, or incoordination when a joint is used repeatedly over time r during flare-ups since it would be speculative with regard to these hypothetical situations. The March 2019 VA examiner also determined that he was unable to say without mere speculation that pain, weakness, fatigability, or incoordination significantly limited functional ability of the right knee with repetitive use over time or during flare-ups.  The examiner explained that there is no conceptual or empirical basis for making such determination without directly observing function under these conditions.  The examiner also noted that for this Veteran, there was no persistent evidence of record considered valid or reproducible for rating purposes that indicates a loss of function during these conditions.  The examiner further noted that there was a lack of supporting objective documentation in the file.

The Board has also considered whether the Veteran is entitled to a higher or separate rating under other Diagnostic Codes pertaining to the knee and leg.  A separate rating under other disability ratings may be assigned only if the symptomatology for a disability is not duplicative or overlapping with the symptomatology of any other disability.  See Esteban v. Brown, 6 Vet. App. 259, 261-62 (1994); Lyles v. Shulkin, 29 Vet. App. 107 (2017) (holding that 38 C.F.R. § 4.14 prohibits paying compensation twice for the same symptoms or functional impairment).  

To this end, the preponderance of the evidence does not support a separate rating higher than 10 percent. Disabilities of the knee and leg may also be evaluated under Diagnostic Codes 5256, 5257, 5258, 5259, 5262 or 5263.  However, the medical and lay evidence shows that the Veteran’s right knee disability is not manifested by ankylosis, recurrent subluxation or lateral instability, dislocation of the semi-lunar cartilage, symptomatic removal of semilunar cartilage, any impairment of the tibia and fibula, or genu recurvatum throughout the relevant appeal period.  Thus, Diagnostic Codes 5256, 5257, 5258, 5259, 5262 and 5263 are not applicable in this case.  

In conclusion, the preponderance of the evidence is against the Veteran’s claim for a rating in excess of 10 percent for service-connected patellofemoral pain syndrome of the right knee.  In denying such a rating, the benefit of the doubt doctrine is not applicable.  38 U.S.C. § 5107; 38 C.F.R. §§ 4.3, 4.7. 

12.  Entitlement to a disability rating in excess of 30 percent for service-connected headaches

The Veteran’s service-connected headaches are evaluated under 38 C.F.R. § 34.124a, Diagnostic Code 8100 for migraine headaches.  Under Diagnostic Code 8100, migraine headaches with characteristic prostrating attacks averaging one in two months over the last several months are rated as 10 percent disabling.  A 30 percent disability rating is warranted for migraine headaches with characteristic prostrating attacks occurring on an average once a month over the last several months are rated 30 percent disabling.  38 C.F.R. § 4.124a, Diagnostic Code 8100.  Migraine headaches manifested by very frequent completely prostrating and prolonged attacks productive of severe economic inadaptability warrant a 50 percent disability rating.  38 C.F.R. § 4.124a, Diagnostic Code 8100.

Notably, the regulation does not specifically define a “characteristic prostrating migraine;” however, “prostration” is defined as extreme exhaustion or powerlessness.  DORLAND’S ILLUSTRATED MEDICAL DICTIONARY 1531 (32nd ed. 2012) [hereinafter DORLAND’S].  VA regulations also do not define “economic inadaptability.”  The Court, however, has noted that nothing in Diagnostic Code 8100 requires the Veteran to be completely unable to work to qualify for a 50 percent rating.  See Pierce v. Principi, 18 Vet. App. 440, 445-46 (2004).

The medical and lay evidence of record reflects that the Veteran’s headaches more closely approximate frequent completely prostrating attacks, however, the preponderance of the evidence shows that the headaches are not productive of severe economic inadaptability throughout the appeal period.  In this regard, the June 2017 VA examination reveals that the Veteran reported he experiences intermittent headache.  He took over the counter Tylenol as needed which helped his headache.  The Veteran stated that he missed work due to severe headache.  The examiner documented that the Veteran headache pain was pulsating or throbbing on both sides of the head.  He experienced sensitivity to light and sound that was associated with his headaches.  Typical headache pain would last less than one day.  The examiner documented that the Veteran did not have characteristic prostrating attacks of migraine/non-migraine headache pain.  A March 2019 VA examination shows that the Veteran experienced migraine and tension headaches.  Migraine headaches would occur about twice per week with photo/phonophobia, nausea, photopsia, blurred vision, and vertigo.  He preferred a dark, quiet room during the event.  His migraine headache could last all day.  He would take Sumatriptan for the migraine as needed.  It would help depending on the timing in which he would take the medication.  The Veteran’s tension headaches would occur daily.  They tended to occur after awakening.  Tension headaches would last all day and were primarily frontal or occipital.  He would take Aleve about twice per week, but it would not help significantly.  The examiner noted that the Veteran experienced pulsating or throbbing head pain and pain was localized to one side of the head.  He experienced nausea, sensitivity to light, sensitivity to sound, and changes in vision associated with headaches.  The duration of typical head pain was less than one day.  The examiner determined that the Veteran had characteristic prostrating attacks of migraine/non-migraine headache pain once every month.  The examiner provided the opinion that the Veteran did not have very prostrating and prolonged attacks of migraine/non-migraine pain productive of severe economic adaptability.  However, the examiner also stated in the VA examination report that the Veteran had frequent migraine events that were very debilitating.  The examiner documented that the Veteran was currently unemployed, but his unemployment seems to be more related to his severe depression, rather than due to his headaches.  The examiner noted that the Veteran lost up to one week of work in the last twelve months due to his headaches.

The Veteran is competent to describe the frequency, severity, and duration of his headaches, and there is no reason to doubt his credibility in this regard.  The lay and medical evidence reflect that the Veteran did not experience frequent completely prostrating attacks at the time of the June 2017 VA examination.  As noted above, the Veteran reported intermittent headaches that would typically last less than one day.  There was no indicating that these headaches were prostrating, such as would cause the Veteran to lay down.  However, the March 2019 VA examination reflects that the Veteran’s headache symptoms increased in severity, resulting in very frequent completely prostrating attacks.  The examiner documented that the Veteran had frequent migraine events that were very debilitating.  During the examination, the Veteran explained that his migraine headaches would occur about twice per week with photo/phonophobia, nausea, photopsia, blurred vision, and vertigo.  He preferred a dark, quiet room during the event indicating that the attacks were prostrating.  Nonetheless, the Veteran’s headaches are not prolonged as the duration was usually less than one day.  

Furthermore, the preponderance of the evidence shows that the Veteran’s headaches were not productive of severe economic inadaptability throughout the entire appeal period.  Specifically, the Veteran asserted that he lost about one week in the past 12 months due to his headaches.  See March 2019 VA examination.  The Veteran previously worked as a car salesman and General Manager at a car dealership.  The medical records show that the Veteran was let go at the dealership at least in part due to his major depression in 2017.  Thereafter, the Veteran obtained his real estate license and works as a real estate agent; however, his depressive symptoms have impacted his success in real estate.  See VA treatment records dated in March 2018, May 2018, and January 2020.  The medical and lay evidence does not indicate that his headaches significantly impacted or interfered with his ability to work.  Accordingly, the headaches are not productive of severe economic inadaptability.  Here, the current 30 percent rating reflects the level of functional impairment caused by the headaches which adequately accounts for the level of occupational functional impairment throughout the appeal period.

13.  Entitlement to a compensable disability rating for TBI which are not already rated under a separate diagnostic code. 

The Veteran’s TBI residuals include a diagnosed psychiatric disorder and headaches.  These symptoms are separately rated under the appropriate diagnostic codes pursuant to the regulatory guidance on how to rate TBI residuals at 38 C.F.R. § 4.124a, Diagnostic Code 8045.  The Veteran contends that a separate compensable rating for his residuals of TBI is warranted under Diagnostic Code 8045.

Diagnostic Code 8045 states that there are three main areas of dysfunction that may result from traumatic brain injuries and have profound effects on functioning: cognitive (which is common in varying degrees after a traumatic brain injury), emotional/behavioral, and physical.  Each of these areas of dysfunction may require evaluation.  38 C.F.R. § 4.124a, Diagnostic Code 8045.  Here, in accordance with Diagnostic Code 8045, the Veteran has already been rated for depressive disorder under Diagnostic Code 9434.  The Veteran’s headaches are separately rated under Diagnostic Code 8100. 

As explained under 38 C.F.R. § 4.124a, Diagnostic Code 8045, cognitive impairment is defined as decreased memory, concentration, attention, and executive functions of the brain.  Executive functions are goal setting, speed of information processing, planning, organizing, prioritizing, self-monitoring, problem solving, judgment, decision making, spontaneity, and flexibility in changing actions when they are not productive.  Not all of these brain functions may be affected in a given individual with cognitive impairment, and some functions may be affected more severely than others.  In a given individual, symptoms may fluctuate in severity from day to day.  Under Diagnostic Code 8045, cognitive impairment is evaluated under the table titled “Evaluation of Cognitive Impairment and Other Residuals of TBI Not Otherwise Classified.”

Subjective symptoms may be the only residual of a traumatic brain injury or may be associated with cognitive impairment or other areas of dysfunction.  Under Diagnostic Code 8045, subjective symptoms that are residuals of a traumatic brain injury, whether or not they are part of cognitive impairment, are to be evaluated under the subjective symptoms facet in the table titled “Evaluation of Cognitive Impairment and Other Residuals of TBI Not Otherwise Classified.”  However, as is the case here, the residuals with a distinct diagnosis (depressive disorder and headaches) have already been properly separately evaluated under other diagnostic codes rather than under the “Evaluation of Cognitive Impairment and Other Residuals of TBI Not Otherwise Classified” table, irrespective of whether those diagnoses are based on subjective symptoms.

Physical (including neurological) dysfunction is to be evaluated based on the following list, under an appropriate diagnostic code: Motor and sensory dysfunction, including pain, of the extremities and face; visual impairment; hearing loss and tinnitus; loss of sense of smell and taste; seizures; gait, coordination, and balance problems; speech and other communication difficulties, including aphasia and related disorders, and dysarthria; neurogenic bladder; neurogenic bowel; cranial nerve dysfunctions; autonomic nerve dysfunctions; and endocrine dysfunctions.  Id. 

Ratings for cognitive impairment and other residuals of traumatic brain injury not otherwise classified are based on a table of 10 important facets related to cognitive impairment and subjective symptoms.  A 100 percent evaluation is assigned if “total” is the level of evaluation for one or more facets.  If no facet is “total,” then the overall percentage evaluation is based on the highest facet.  A 70 percent evaluation is assigned if “3” is the highest level of evaluation for any facet.  If the highest level of evaluation for any facet is “2,” then the appropriate disability rating is 40 percent.  A 10 percent evaluation is warranted when the highest level of evaluation for any facet is “1.”  Finally, a noncompensable (0 percent) rating is assigned when the level of the highest facet is “0.”

There may be an overlap of manifestations of conditions evaluated under the table titled “Evaluation Of Cognitive Impairment And Other Residuals Of TBI Not Otherwise Classified” with manifestations of a comorbid mental or neurologic or other physical disorder that can be separately evaluated under another diagnostic code.  In such cases, no more than one evaluation based on the same manifestations is to be assigned.  If the manifestations of two or more conditions cannot be clearly separated, a single evaluation is assigned under whichever set of diagnostic criteria allows the better assessment of overall impaired functioning due to both conditions.  However, if the manifestations are clearly separable, separate evaluations for each condition should be assigned.  38 C.F.R. § 4.124a, Diagnostic Code 8045 Note (1).

The table titled “Evaluation Of Cognitive Impairment And Other Residuals Of TBI Not Otherwise Classified” provides evaluations (numeric designations of 0, 1, 2, 3, and total) for the following 10 facets: Impairment of memory, attention, concentration, executive functions; Impairment of Judgment; Impairment of Social Interaction; Impairment of Orientation; Impairment of Motor Activity; Impairment of Visual Spatial Orientation; Subjective Symptoms; Neurobehavioral Effects; Communication; and, Consciousness.

Turning to the evidence of records, a June 2017 VA examination shows that the Veteran reported that his residuals of TBI include headaches, which have persisted on both sides of his head and some memory loss.  For example, he does not - recognize some people with whom he went to school.  Assessment of facets of TBI related cognitive impairment and subjective symptoms of TBI revealed a complaint of mild impairment of memory loss, attention, concentration, and/or executive functions, but without objective evidence on testing.  The examiner noted that the Veteran stated that he had mild memory loss.  The Veteran’s judgment was normal and his social interaction was routinely appropriate.  With respect to orientation, the examiner determined that the Veteran was always oriented to person, time, place, and situation.  Motor activity and visual spatial orientation was normal.  The Veteran had subjective symptoms that interfered with work; instrumental activities of daily living; or work, family, or other close relationships.  The examiner explained that the Veteran has headaches, anxiety, and insomnia due to combination of sleep apnea, anxiety, and pain.   The Veteran had one or more neurobehavior effects that did not interfere with workplace interaction or social interaction.  The examiner noted that the Veteran reported that he often had irritability due to lack of sleep and depression also interfered with social interactions at times.  The Veteran was able to communicate by spoken and written language and to comprehend spoken and written language.  Consciousness was normal.  The examiner also documented that he neurological examination, including mental status, cranial nerves, coordination, motor exam, sensory exam, Babinski sign and other reflexes, Romberg testing, gait, tandem walking, and heel and toe walking were normal.

A March 2019 VA examination the Veteran reported that he has been increasingly burdened by headaches as a residual of TBI.  Assessment of facets of TBI related cognitive impairment and subjective symptoms of TBI revealed a complaint of mild impairment of memory loss, attention, concentration, and/or executive functions, but without objective evidence on testing.  The examiner noted that the Veteran reported that following the TBI he had trouble with short-term memory and felt that he had forgotten a large number of his friends from high school.  The Veteran’s judgment was normal and his social interaction was routinely appropriate.  With respect to orientation, the examiner determined that the Veteran was always oriented to person, time, place, and situation.  Motor activity was normal.  Visual and spatial orientation was normal.  The examiner noted that the Veteran had three or more subjective symptoms that mildly interfere with work, instrumental activities of daily living; or work, family, or other close relationships.  The examiner described that the symptoms that the if he had a migraine while he is working, he usually stays home.  The examiner on listed headaches as a subjective symptom.  The Veteran had one or more neurobehavioral effects that did not interfere with workplace or social interaction.  The examiner stated that irritability sometime s interferes with the Veteran’s social interaction and he felt more withdrawn.  The Veteran was able to communicate by spoken and written language and to comprehend spoken and written language.  Consciousness was normal.  The examiner noted that the Veteran’s residual headaches impact his ability to work in that when he had a migraine he was unable to work.  The Veteran noted that he was currently not working mainly due to his major depression.  The examiner determined that the Veteran’s functional impairment that impede his ability to work are more likely due to his co-morbid major depressive disorder.  The depression also likely explained his subjective memory complaints, as well. 

Based on a review of the evidence of record , the most pertinent of which was discussed above, the evidence shows that the Veteran’s symptoms of TBI which are not already rated under a separate diagnostic code more closely approximate a severity level of 0 under each facet.  In this regard, the Veteran’s symptoms of memory, attention, concentration, and executive functioning impairment were evaluated under Diagnostic Code 9434 for major depressive disorder.  The Veteran’s mild memory loss was documented as a symptom of the Veteran’s depressive disorder with TBI and was considered in the assignment of the 50 percent disability rating for his service-connected depressive disorder.  See June 2017 and March 2019 VA examinations and October 2017 rating decision.  Diagnostic Code 8045, note (1) reveals that there may be an overlap of manifestations of conditions evaluated under the table titled “Evaluation of Cognitive Impairment and Other Residuals of TBI Not Otherwise Classified” with manifestations of a comorbid mental or neurologic or other physical disorder that can be separately evaluated under another diagnostic code.  In such cases, VA cannot assign more than one evaluation based on the same manifestations as this would constitute pyramiding.  See 38 C.F.R. § 4.14 (the evaluation of the same disability under various diagnoses is to be avoided and the evaluation of the same manifestation under different diagnoses are to be avoided).  Thus, as the symptoms under memory, attention, concentration, and executive functioning facet were separately accounted for under another diagnostic code, a severity level of “0” is warranted.  

With respect to subjective symptoms, the April 2019 VA examiner determined that the Veteran had three or more subjective symptoms that mildly interfere with work; instrumental activities of daily living; or work, family, or other close relationships.  The examiner attributed these subjective symptoms to the Veteran’s headaches.  The Veteran’s subjective symptoms of headaches were considered and evaluated under a separate diagnostic code.  See June 2017 and March 2019 VA examinations and October 2017 rating decision.  Accordingly, a severity level of “0” is warranted for subjective symptoms.  

The remaining facets of judgement, social interaction, orientation, motor activity, visual spatial orientation, neurobehavior effects, communication, and consciousness facets reveal a severity level of 0.

Given the above, the preponderance of the evidence shows that the highest level of impairment was not one or above in any of the facets throughout the appeal period.  Accordingly, a compensable disability rating for TBI which are not already rated under a separate diagnostic code is not warranted.

REASONS FOR REMAND

1. Entitlement to service connection for a left wrist disorder is remanded.

Regarding the Veteran’s service connection claim for a left wrist disorder, the Veteran was provided with a VA examination in July 2017.  The VA examiner did not provide a diagnosis of left wrist disorder or provide a medical opinion with respect to the Veteran’s service connection claim for a left wrist disorder.  The Veteran reported in the July 2017 VA examination that he had episodes of bilateral wrist pain in the volar aspect of the wrists during active duty.  He explained that he intermittent pain which became worse and in the 1990s he was diagnosed with carpal tunnel syndrome.  The Veteran’s service treatment records reveal that the Veteran sought treatment for left wrist pain in January 1982 and he was diagnosed with tenosynovitis versus dislocation of wrist.  In light of the foregoing, the Veteran should be provided with another VA examination and medical opinion. 

2. Entitlement to service connection for a left shoulder disorder is remanded.

With respect to the Veteran’s service connection claim for a left shoulder disorder, the Veteran contends that he has a current left shoulder disorder related to being thrown off of a 155 Howitzer tow during service.  A July 2017 VA examination reflects that the Veteran has a current diagnosis of mild recurrent left shoulder strain.  The July 2017 VA examiner provided the opinion that the claimed condition was less likely than not incurred in or caused by the claimed in-service injury, event, or illness.  The examiner explained that the Veteran’s service treatment records and subsequent medical records over the next 27 years are essentially silent for a left shoulder disorder.  The Board notes that the examiner did not address the Veteran’s lay statement that he sustained bilateral anterolateral shoulder pain when he was blown about 10 feet because the pressure that was release for taking apart a Howitzer that has continued to the present.  Accordingly, the Veteran should be provided with another VA medical opinion that discusses the Veteran’s lay statements as to the onset and continuous nature of his symptoms of a left shoulder disorder.   

3. Entitlement to service connection for a right elbow disorder is remanded.

Regarding the Veteran’s service connection claim for a right elbow disorder, the Veteran contends that he has a current right elbow disorder that is related to being thrown off of a 155 Howitzer tow during service.  The Veteran was not provided with a VA examination with respect to his claim.  A September 2019 VA treatment record shows that the Veteran has a current diagnosis of right ulnar neuropathy across the elbow.  Service treatment records document that the Veteran fell on his right side in July 1987.  Although there is no documentation that he injured his right elbow, there is evidence he hurt his right shoulder and right side of his neck.  The Veteran is also service connected for right wrist chronic sprain with recurrent tenosynovitis and right shoulder strain.  In light of the foregoing, the Board finds that the Veteran should be provided with a VA examination to determine if his current right elbow disorder is related to active military service and or secondary to service-connected for right wrist chronic sprain with recurrent tenosynovitis and/or right shoulder strain.

4. Entitlement to service connection for a bilateral pes planus is remanded.

With respect to the Veteran’s service connection claim for bilateral pes planus, he contends that it is caused by or related physical training during active service.  A July 2017 VA examiner shows that the Veteran has a current diagnosis of bilateral pes planus.  The VA examiner determined that the claimed condition is less likely than not incurred in or caused by the claimed in-service injury, event, or illness.  The examiner explained that the Veteran’s service treatment records and subsequent medical records have been essentially silent for a foot condition until recently.  The Veteran reported during the July 2017 VA examiner that he developed bilateral foot pain during service in the 1980s.  He stated that he developed a lot of bruising on the bottom of the feet.  The condition was initially intermittent, but over the years has gradually progressed and now occurs every day.  A January 1985 service treatment record documents that the Veteran sought treatment for mildly painful brown pigmented lesions at the plantar aspect of the bilateral feet.  Another January 1985 service treatment record documents that the Veteran sought follow up treatment for macules on the soles of feet.  He was diagnosed with plantar fasciitis in July 1985.  As the VA examiner did not address the Veteran’s lay statements as to the onset of his symptoms of a bilateral foot disorder with recurrent symptoms to the present or the service treatment records that document treatment for bilateral foot pain, the Board finds that the Veteran should be provided with another medical opinion.

5. Entitlement to a disability rating in excess of 50 percent for service-connected depressive disorder with TBI.   

Regarding the Veteran’s increased rating claim for service-connected depressive disorder, in a May 2020 Appeal Brief, the Veteran’s attorney cited to a Mental Disorder DBQ dated in April 2020 provided by a private psychologist.  Unfortunately, the claims file does not contain a copy of the April 2020 Mental Disorder DBQ.  Thus, a remand is necessary in order to attempt to obtain a copy of this medical record.

Furthermore, the statements  and arguments provided by the Veteran’s attorney in May 2020 indicates that the Veteran’s symptoms of depressive disorder with TBI have increased in severity since the most recent VA examination in March 2019.  Thus, a remand is necessary to obtain a new VA examination to evaluate the current severity of the Veteran’s service-connected depressive disorder to include the functional impact of the Veteran’s symptoms on his ability to obtain and maintain employment.

6. Entitlement to a TDIU based on the Veteran’s service-connected depressive disorder with TBI.

As for the matter of the Veteran’s entitlement to a TDIU due to depressive disorder with TBI, the lay and medical evidence reflects that the Veteran was fired from his job at a car dealership at least in part due to his depressive disorder and his lack of motivation due to his depressive disorder has negatively affected his ability to be successful as a real estate agent.  As such, the issue of entitlement to a TDIU due to depressive disorder with TBI has been reasonably raised by the record, and the Board has now expanded the appeal to include this matter.  See Rice v. Shinseki, 22 Vet. App. 447, 453-54 (2009) and Mayhue v. Shinseki, 24 Vet. App. 273 (2011).  

The RO should notify the Veteran how to substantiate a claim for TDIU and ask the Veteran to completed VA Form 21-8940, Veteran’s Application for Increased Compensation Based on Unemployability.  Furthermore, the claim for TDIU is inextricably intertwined with the increased rating claim for depressive disorder with TBI, because the VA examination for depressive disorder with TBI, as well as, any decision with respect to those claims, may affect the Veteran’s claim for a TDIU.  

The matters are REMANDED for the following action:

1.  Notify the Veteran of how to substantiate his claim for TDIU and ask him to complete VA Form 21-8940 (Veteran’s Application for Increased Compensation Based on Unemployability).  

2.  Contact the Veteran and ask him to provide VA with a copy of the April 2020 Mental Disorder DBQ provided by a private psychologist and/or elicit from him the appropriate information and consent to obtain such private medical record.  After securing the information and appropriate consent from the Veteran, if necessary, VA should attempt to obtain such private treatment record.  All attempts to secure this evidence must be documented in the claims file.

3.  Arrange for the Veteran to undergo a VA examination for the Veteran’s service connection claim for a left wrist disorder.    

The claims file, including a copy of this remand, must be made available to the examiner for review, and the examiner should indicate that the claims folder was reviewed.  

The examiner is requested to review all pertinent records associated with the claims file and offer an opinion as to whether it is at least as likely as not (i.e., a 50 percent or greater probability) that any left wrist disorder found in the medical record or during examination had its onset during active military service or is otherwise related to active military service to include the documented in-service complaints of left wrist pain in January 1982.  

If the examiner determines that the Veteran does not have a current diagnosis of a left wrist disorder, then whether the Veteran’s left wrist pain is at least as likely as not (i.e., a 50 percent or greater probability) related to an injury, event, or disease in service to include the documented in-service complaints of left wrist pain in January 1982 and/or the documented accident in July 1987.

In addressing the above, the examiner must consider and discuss all pertinent medical evidence and all lay assertions.  If lay assertions in any regard are discounted, the medical specialist should clearly so state, and explain why.  The medical specialist cannot dismiss the Veteran’s allegations of an injury in service solely because the injury is not documented in the Veteran’s service treatment records, although the lack of contemporaneous documentation can be a factor considered if the medical specialist explains why such would likely be documented in the Veteran’s service treatment records or recent post-service treatment record.  The examiner also may not dismiss the Veteran’s complaints of post-service symptoms solely because they are not documented in medical treatment records.

The examiner must provide a complete explanation for all conclusions reached.

4.  Obtain a VA medical opinion with respect to the Veteran’s service connection claim for a left shoulder disorder.  Arrange for the Veteran to undergo a VA examination only if one is deemed necessary in the judgment of the individual designated to provide the medical opinion.

The claims file, including a copy of this remand, must be made available to the medical specialist for review, and the medical specialist should indicate that the claims folder was reviewed.  

The medical specialist is requested to review all pertinent records associated with the claims file and offer an opinion as to whether it is at least as likely as not (i.e., a 50 percent or greater probability) that the Veteran’s: recurrent left shoulder strain and/or any other left shoulder disorder found in the medical record had its onset during active military service or is otherwise related to active military service to include the fall in July 1987.  

In addressing the above, the medical specialist must consider and discuss all pertinent medical evidence and all lay assertions, to include any assertions as to onset and continuity of symptoms.  If lay assertions in any regard are discounted, the medical specialist should clearly so state, and explain why.  The medical specialist cannot dismiss the Veteran’s allegations of an injury in service solely because the injury is not documented in the Veteran’s service treatment records, although the lack of contemporaneous documentation can be a factor considered if the medical specialist explains why such would likely be documented in the Veteran’s service treatment records or recent post-service treatment record.  The examiner also may not dismiss the Veteran’s complaints of post-service symptoms solely because they are not documented in medical treatment records.

The medical specialist must provide a complete explanation for all conclusions reached.

5.  Arrange for the Veteran to undergo a VA examination for the Veteran’s service connection claim for a right elbow disorder.    

The claims file, including a copy of this remand, must be made available to the examiner for review, and the examiner should indicate that the claims folder was reviewed.  

The examiner is requested to review all pertinent records associated with the claims file and offer an opinion as to whether it is at least as likely as not (i.e., a 50 percent or greater probability) that right ulnar neuropathy across the elbow and/or any other right elbow disorder found in the medical record or during examination had its onset during active military service or is otherwise related to active military service to include the fall on his right side in July 1987.  

If any right elbow disorder is found not to be related to service, the medical specialist must opine as to whether the elbow disorder is at least as likely as not caused or aggravated the Veteran’s service-connected right wrist and/or right shoulder disability.  Both causation and aggravation must be addressed.  If aggravation is found, the examiner must attempt to establish a baseline level of severity of the right elbow disorder prior to aggravation by the service-connected right wrist disability and/or right shoulder disability.

In addressing the above, the examiner must consider and discuss all pertinent medical evidence and all lay assertions.  If lay assertions in any regard are discounted, the medical specialist should clearly so state, and explain why.  The medical specialist cannot dismiss the Veteran’s allegations of an injury in service solely because the injury is not documented in the Veteran’s service treatment records, although the lack of contemporaneous documentation can be a factor considered if the medical specialist explains why such would likely be documented in the Veteran’s service treatment records or recent post-service treatment record.  The examiner also may not dismiss the Veteran’s complaints of post-service symptoms solely because they are not documented in medical treatment records.

The examiner must provide a complete explanation for all conclusions reached.

6. Obtain a VA medical opinion with respect to the Veteran’s service connection claim for bilateral pes planus.  Arrange for the Veteran to undergo a VA examination only if one is deemed necessary in the judgment of the individual designated to provide the medical opinion.

The claims file, including a copy of this remand, must be made available to the medical specialist for review, and the medical specialist should indicate that the claims folder was reviewed.  

The medical specialist is requested to review all pertinent records associated with the claims file and offer an opinion as to whether it is at least as likely as not (i.e., a 50 percent or greater probability) that the Veteran’s bilateral pes planus had its onset during active military service or is otherwise related to active military service to include the documented treatment for bilateral foot pain during service and/or physical training.   

In addressing the above, the medical specialist must consider and discuss all pertinent medical evidence and all lay assertions, to include any assertions as to onset and continuity of symptoms.  If lay assertions in any regard are discounted, the medical specialist should clearly so state, and explain why.  The medical specialist cannot dismiss the Veteran’s allegations of an injury in service solely because the injury is not documented in the Veteran’s service treatment records, although the lack of contemporaneous documentation can be a factor considered if the medical specialist explains why such would likely be documented in the Veteran’s service treatment records or recent post-service treatment record.  The examiner also may not dismiss the Veteran’s complaints of post-service symptoms solely because they are not documented in medical treatment records.

The medical specialist must provide a complete explanation for all conclusions reached.

7.  Arrange for the Veteran to undergo VA examination for evaluation of his depressive disorder with TBI.

The contents of the entire, electronic claims file to include a complete copy of this remand must be made available to the examiner, and the examination should include discussion of the Veteran’s documented history and lay assertions.

All appropriate tests and studies should be accomplished and all clinical findings should be reported in detail.

The examiner should elicit from the Veteran his complete educational, vocational, and employment history and should note his complaints regarding the impact of his depressive disorder with TBI on employment.  The examiner should identify all limitations or functional impairment caused solely by his service-connected depressive disorder with TBI.  

(Continued on the next page)

 

The examiner must provide a complete explanation for all conclusions reached.

 

L. B. CRYAN

Veterans Law Judge

Board of Veterans’ Appeals

Attorney for the Board	B. Berry, 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.