Citation Nr: 21002263 Decision Date: 01/13/21 Archive Date: 01/13/21 DOCKET NO. 17-02 573 DATE: January 13, 2021 ORDER Entitlement to a separate disability rating of 10 percent, but no more, for left knee instability is granted on and after April 25, 2013, subject to the laws and regulations governing the payment of monetary benefits. Entitlement to a disability rating in excess of 10 percent for degenerative arthritis of the left knee is denied. REMANDED Entitlement to a disability rating in excess of 20 percent for a herniated disk of the lumbar spine is remanded. Entitlement to a disability rating for a left ankle disability in excess of 10 percent prior to July 16, 2020, and in excess of 20 percent on and after July 16, 2020, is remanded. Service connection for sleep apnea is remanded. Service connection for hemorrhoids is remanded. Service connection for a left heel or foot disability is remanded. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) is remanded. FINDING OF FACT For the period on appeal, the Veteran’s degenerative arthritis of the left knee was manifested as painful motion and slight lateral instability, but not ankylosis, limitation of flexion to 45 degrees, limitation of extension to 10 degrees, dislocated or removed semilunar cartilage, or impairment of the tibia or fibula. CONCLUSIONS OF LAW 1. With resolution of reasonable doubt in the Veteran’s favor, on and after April 25, 2013, the criteria for a separate rating of 10 percent, but no higher, for left knee instability have been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.102, 4.1-4.14, 4.21, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5257 (2020). 2. The criteria for a disability rating in excess of 10 percent for degenerative arthritis of the left knee have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.1-4.14, 4.21, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5260 (2020). REASONS AND BASES FOR FINDING AND CONCLUSIONS The Veteran served on active duty in the Marine Corps from January 1975 to June 1975 and in the Air Force from September 1991 to December 1991. The Veteran testified before the undersigned Veterans Law Judge during an October 2019 hearing and a transcript is of record. These matters are on appeal from an April 2014 rating decision. The Veteran’s claim for service connection for a left heel disability has been recharacterized as a left heel or foot disability.  See Clemons v. Shinseki, 23 Vet. App. 1, 5 (2009).  In a March 2020 decision, the Board remanded the issues being decided below to attempt to obtain additional records and to afford the Veteran an additional VA examination.  The Agency of Original Jurisdiction (AOJ) has done so. The July 2020 VA examination for left knee and lower leg conditions is adequate because it was based upon consideration of the Veteran’s pertinent medical history, his lay assertions and current complaints, and because it described his left knee in detail sufficient to allow the Board to make a fully informed determination.  There was therefore substantial compliance with the remand directives with regard to that issue.  See Stegall v. West, 11 Vet. App. 268 (1998). The Board will discuss the compliance of the AOJ with its instructions with regard to the other issues on appeal below. The Board also remanded a claim for service connection for an acquired psychiatric disorder, to include post-traumatic stress disorder (PTSD) and depression. In an August 2020 rating decision, the AOJ granted service connection for PTSD and/or a mental condition. This issue is no longer before the Board. Neither the Veteran nor his representative have raised any issues with the duty to notify or duty to assist with regard to the issues being decided below. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that “the Board’s obligation to read filings in a liberal manner does not require the Board... to search the record and address procedural arguments when the veteran fails to raise them before the Board.”); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to a duty to assist argument). 1. Left Knee Instability 2. Degenerative Arthritis of the Left Knee The Veteran contends that his degenerative arthritis of the left knee warrants a higher rating than that currently assigned. It is currently rated under 38 C.F.R. § 4.71a, Diagnostic Code 5260, for limitation of leg flexion, with a 10 percent rating on and after June 23, 2004. VA received the Veteran’s claim for an increased rating on April 25, 2013. Disability ratings are determined by applying a schedule of ratings that is based on average impairment of earning capacity. Separate Diagnostic Codes identify the various disabilities. 38 U.S.C. § 1155; 38 C.F.R. Part 4 (2020). Each disability must be viewed in relation to its history and the limitation of activity imposed by the disabling condition should be emphasized. 38 C.F.R. § 4.1. “Staged” ratings are appropriate for an increased rating claim when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings. Hart v. Mansfield, 21 Vet. App. 505 (2007). When entitlement to compensation has already been established and an increased rating is at issue, the relevant temporal focus for adjudicating an increased rating claim is on the evidence concerning the state of the disability from the time period one year before the claim was filed.  Hart, at 509; see also 38 U.S.C. § 5110(b)(3) (2012); 38 C.F.R. § 3.400(o)(2) (2020).  Where there is a question as to which of two disability evaluations shall be applied, the higher evaluation is to be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating is to be assigned. 38 C.F.R. § 4.7. In determining the appropriate rating for musculoskeletal disabilities, particular attention is focused on functional loss of use of the affected part. Factors of joint disability include increased or limited motion, weakened movement, excess fatigability, incoordination, and painful movement, including during flare-ups and after repeated use. DeLuca v. Brown, 8 Vet. App. 202, 206-08 (1995); 38 C.F.R. § 4.45. A finding of functional loss due to pain must be supported by adequate pathology and evidenced by the visible behavior of the claimant. 38 C.F.R. § 4.40. Additionally, “pain itself does not rise to the level of functional loss as contemplated by the VA regulations applicable to the musculoskeletal system.” Mitchell v. Shinseki, 25 Vet. App. 32, 38 (2011). Pain in a particular joint may result in functional loss, but only if it limits the ability to perform the normal working movements of the body with normal excursion, strength, speed, coordination, or endurance. Id.; 38 C.F.R. § 4.40. Under 38 C.F.R. § 4.59, painful joints are entitled to at least the minimum compensable rating for the joint. In this case, at least the minimum compensable rating has been in effect during the entire appeal period. 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.”). Limitation of flexion of the leg is evaluated as follows: flexion limited to 15 degrees (30 percent); flexion limited to 30 degrees (20 percent); flexion limited to 45 degrees (10 percent); and flexion limited to 60 degrees (noncompensable). 38 C.F.R. § 4.71a, Diagnostic Code 5260. Limitation of extension of the leg is evaluated as follows: extension limited to 45 degrees (50 percent); extension limited to 30 degrees (40 percent); extension limited to 20 degrees (30 percent); extension limited to 15 degrees (20 percent); extension limited to 10 degrees (10 percent); and extension limited to 5 degrees (noncompensable). 38 C.F.R. § 4.71a, Diagnostic Code 5261 (2020). For VA purposes, a normal range of knee motion is from 0 degrees of extension to 140 degrees of flexion. 38 C.F.R. § 4.71, Plate II. There are additional Diagnostic Codes that apply to knee disorders. 38 C.F.R. § 4.71a, Diagnostic Code 5256 (2020) pertains to ankylosis of the knee. Recurrent subluxation or lateral instability of the knee is evaluated as follows: severe (30 percent); moderate (20 percent); and slight (10 percent). 38 C.F.R. § 4.71a, Diagnostic Code 5257. Meniscal conditions are evaluated as follows: dislocated semilunar cartilage with frequent episodes of “locking,” pain, and effusion into the joint (20 percent); and symptomatic removal of semilunar cartilage (10 percent). 38 C.F.R. § 4.71a, Diagnostic Codes 5258 and 5259 (2020). Impairment of the tibia and fibula is evaluated as follows: nonunion with loose motion, requiring a brace (40 percent); malunion with marked knee or ankle disability (30 percent); malunion with moderate knee or ankle disability (20 percent); and malunion with slight knee or ankle disability (10 percent). 38 C.F.R. § 4.71a, Diagnostic Code 5262 (2020). The Veteran was afforded a VA examination in April 2014. The clinician’s diagnoses included a torn meniscus and arthroscopy in 1981 as well as degenerative arthritis of the left knee. The Veteran reported that, during flare ups, his knee gives way and he cannot bend over or straighten without difficulty. On examination, range of motion was reported as a full range of motion, with objective evidence of painful motion at 90 degrees of flexion but no objective evidence of painful motion on extension. There was no additional loss of range on repetition. The clinician found no functional loss or impairment due to any of the DeLuca factors. There was no tenderness or pain to palpation of the joint line or soft tissues. Muscle strength was normal. Anterior, posterior, and medial-lateral instability were normal and the examiner noted no history of recurrent patellar subluxation or dislocation. There was no tibial or fibular impairment. There was a meniscal tear with frequent episodes of joint pain and effusion, but no dislocation or frequent episodes of locking. The Veteran had not had a meniscectomy. The Veteran reported that his 1981 surgery was the removal of a bursa and scraping of the patella for bone chips, with residuals of pain and swelling. The Veteran did not use any assistive devices. The clinician found that the Veteran’s left knee symptoms would have no impact on his ability to work. The clinician added that flare ups or repeated use over time would limit range of motion by approximately 10 degrees. The Veteran was afforded an additional VA examination in July 2020. The Veteran reported pain and weakness. He also reported severe daily flare ups, precipitated by walking or standing for too long. He reported functional impairment in the form of stiffness. On examination, range of motion was reported as 0 degrees of extension to 90 degrees of flexion. The range of motion contributed to functional loss in the form of inability to perform the normal working movements of the body with normal excursion, length, speed, coordination and/or endurance. Pain was noted on flexion and extension and caused functional loss. There was objective evidence of mild to moderate localized tenderness or pain on palpation of the joint or associated soft tissue. There was evidence of evidence of pain with weight bearing but no objective evidence of crepitus. There was no additional loss of range on repetition. The clinician found that the examination was neither medically consistent nor inconsistent with the Veteran’s statements describing functional loss with repetitive use over time or flare ups but that, under those circumstances, pain, weakness, fatigability or incoordination would not significantly limit functional ability. There were no additional factors contributing to disability. Muscle strength was with active movement against some resistance, but not normal strength, and there was no muscle atrophy. There was no ankylosis and the clinician found no history of recurrent subluxation, effusion, or instability. Anterior, posterior, medial, and lateral stability testing was normal. There was no tibial or fibular impairment. The clinician noted the Veteran’s history of a meniscal condition but found no current symptoms. The clinician noted the Veteran’s arthroscopy during the 1980s and found that its only residual was chronic pain. The Veteran reported occasionally using a brace but clarified that it provided assistance for stability for his ankle condition. The clinician found that the Veteran’s left knee disability would have an impact on his ability to work by interfering with standing for long periods. The clinician also noted that there was objective evidence of pain on passive range of motion testing, but no evidence of pain on non-weight bearing. Based on the evidence described above, the Board finds that, affording the Veteran the benefit of the doubt, his left knee instability warrants a separate 10 percent rating throughout the period on appeal. Stability testing during the period on appeal has consistently found no instability but the Veteran has reported his knee giving way. Diagnostic Code 5257 does not require objective medical evidence of lateral instability for a rating to be assigned. See English v. Wilkie, 30 Vet. App. 347 (2018). Because the Veteran has competently and credibly reported left knee instability, the Board finds that a separate 10 percent rating is warranted for slight lateral instability. The Veteran’s knee instability is not more accurately described as moderate. The medical records do not describe instability of the knee joint and VA examiners have consistently found that the left knee joint is normal on all stability tests. The Board finds that knee instability that causes functional impairment but is undetectable on all forms of examination is best characterized as slight. The Veteran did not provide a lay description of the frequency or severity of his instability other than what was documented in his medical records. Additionally, the July 2020 VA examiner found that there was no history of lateral instability or recurrent subluxation. The preponderance of the evidence described above also shows that the Veteran’s degenerative arthritis of the left knee does not warrant a rating in excess of 10 percent under Diagnostic Code 5260. No examiner or treatment provider has found that the Veteran’s left leg flexion has been limited to less than 90 degrees during this period. Even if the Board were to interpret the April 2014 finding that flare ups or repetition over time would limit range of motion by 10 degrees as a finding that flexion would be limited to 80 degrees under those circumstances, a 20 percent rating under Diagnostic Code 5260 requires limitation to 30 degrees. The preponderance of the evidence also shows that the Veteran’s left knee disability was not manifested by ankylosis or impairment of the tibia or fibula during this period. The preponderance of the evidence described above also shows that the Veteran’s degenerative arthritis of the left knee does not warrant a separate rating under Diagnostic Code 5261. The Veteran is already being compensated by the 10 percent rating assigned under Diagnostic Code 5260 for painful motion of the left knee joint. A 10 percent rating under Diagnostic Code 5261 requires limitation to 10 degrees. All extension findings during the period on appeal were either to 0 degrees or some degree of hyperextension. The Board also acknowledges the Veteran’s meniscal tear, but there is nothing in the record to indicate that the meniscus is dislocated or that any portion of it has been removed. Separate ratings under Diagnostic Code 5258 or 5259 are therefore not warranted. The Board has considered the Veteran’s lay statements. The Veteran is competent to report his own observations with regard to the symptoms of his left knee disability and his descriptions are credible. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). The Board has accepted those statements as the basis for granting a separate 10 percent rating for left knee instability. However, nothing in the Veteran’s lay statements provides a basis for assigning higher ratings than those assigned herein under any Diagnostic Code pertaining to musculoskeletal disabilities of the knee. In addition, the Board considered whether higher ratings are warranted under the regulations relating to additional functional loss due to pain, weakness, fatigability, incoordination, and other factors under DeLuca, 8 Vet. App. at 204-07; 38 C.F.R. §§ 4.40, 4.45. There is nothing to indicate that the Veteran’s pain or any other DeLuca factor causes functional impairment equivalent to the criteria for ratings in excess of those already in effect or assigned herein. Because the Board considered the applicable ratings under every Diagnostic Code pertaining to musculoskeletal disabilities of the knee, the Board finds that there are no other potentially applicable Diagnostic Codes by which higher ratings can be assigned. REASONS FOR REMAND 1. Entitlement to a disability rating in excess of 20 percent for a herniated disk of the lumbar spine is remanded. The Veteran was most recently afforded a VA examination for his service-connected low back disability in July 2020. The clinician found that the Veteran had no radicular pain or any other signs or symptoms due to radiculopathy and therefore provided no further information regarding radiculopathy. However, the clinician did not reconcile this with the Veteran’s reports of leg pain during the period on appeal or a private treatment record diagnosing sciatica in the left lower extremity. Because more detailed findings regarding the severity of the Veteran’s radiculopathy symptoms are necessary for the Board to be able to determine whether separate ratings for radiculopathy are warranted, a remand for a new examination is warranted. 2. Entitlement to a disability rating for a left ankle disability in excess of 10 percent prior to July 16, 2020, and in excess of 20 percent on and after July 16, 2020, is remanded. The Veteran was most recently afforded a VA examination for his service-connected low back disability in July 2020. Although the Veteran reported that his left ankle turns outward, causing balance problems, and the clinician noted that the Veteran occasionally wears a brace “for stability for ankle condition,” the clinician found that there was no suspicion of ankle instability and therefore did not complete stability testing. The clinician did not reconcile this finding with the Veteran’s statements. For this reason, a remand for a new examination is warranted. 2. Service connection for sleep apnea is remanded. Once VA undertakes the effort to provide an examination when developing a service connection claim, even if not statutorily obligated to do so, it must provide one that is adequate for purposes of the determination being made. Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). The Veteran was afforded a VA examination in July 2020. The Veteran reported that his symptoms had their onset thirty years ago, but the clinician’s opinion that it was less likely than not that the Veteran’s sleep apnea was incurred in or caused by active duty service was based entirely on the length of time before the Veteran sought treatment. This is not an adequate rationale. In addition, a veteran is presumed to have been in sound condition at entry into service except as to defects, infirmities, or disabilities noted at the time of such entry, or where clear and unmistakable evidence demonstrates that the injury or disease existed before entry and was not aggravated by such service. 38 U.S.C. § 1111 (2012). If a condition is noted on an entrance examination report, the presumption of soundness does not attach - the only benefits that can be awarded are for aggravation of such condition by application of 38 U.S.C. § 1153 (2012) and 38 C.F.R. § 3.306 (2020). Wagner v. Principi, 370 F.3d 1089, 1096 (Fed. Cir. 2004). However, a history of preservice existence of conditions recorded at the time of examination does not constitute a notation of such conditions but will be considered together with all other material evidence in determinations as to inception. 38 C.F.R. § 3.304(b)(1) (2020). The record does not contain an entrance examination for the Veteran’s 1991 period of active duty service. For this reason, the presumption of soundness attaches with regard to this issue for that period. As stated above, the Veteran reported in 2020 that his symptoms had their onset thirty years before. The Veteran has also submitted statements by people who served with him in the Air Force Reserve and observed his symptoms. The record therefore raises the possibility that his sleep apnea symptoms were present prior to that period of service. However, the July 2020 VA medical opinion did not address this possibility. For these reasons, the Board finds that the July 2020 VA medical opinion is inadequate. A remand for a new opinion is therefore warranted. 3. Service connection for hemorrhoids is remanded. The Veteran was afforded a VA examination in July 2020. The Veteran reported that his symptoms had their onset in 1975 as a result of an injury to his anus, but the clinician’s opinion that it was less likely than not that the Veteran’s hemorrhoids were incurred in or caused by active duty service was based entirely on the length of time before the Veteran sought treatment. This is not an adequate rationale. In addition, the record does not contain an entrance examination for the Veteran’s 1991 period of active duty service. For this reason, the presumption of soundness attaches with regard to this issue for that period. As stated above, the Veteran reported that his symptoms had their onset in 1975. The Veteran has also submitted statements by people who served with him in the Air Force Reserve and observed his symptoms, including reporting that his symptoms flared up during his 1991 period of active duty service. The record therefore raises the possibility that his hemorrhoid symptoms were present prior to that period of service. However, the July 2020 VA medical opinion did not address this possibility. For these reasons, the Board finds that the July 2020 VA medical opinion is inadequate. A remand for a new opinion is therefore warranted. 4. Service connection for a left heel or foot disability is remanded. The Veteran was afforded a VA examination in July 2020. The clinician’s opinion that it was less likely than not that the Veteran’s left heel disability was incurred in or caused by active duty service was based entirely on there being “no evidence to support a definitive diagnosis.” Because the Veteran reported functional impairment during this examination and the clinician did not reconcile this finding with those statements, it is not clear whether the clinician’s rationale reflects the decision in Saunders v. Wilkie, 886 F.3d 1356, 1368 (Fed. Cir. 2018), that “pain in the absence of a presently-diagnosed condition can cause functional impairment.” In addition, the record does not contain an entrance examination for the Veteran’s 1991 period of active duty service and, although the Veteran reported at the time of his November 1974 entrance examination that he had a wart removed from his left heel at the age of eighteen, the examination report noted that his feet were normal. For these reasons, the presumption of soundness attaches with regard to this issue for both periods of active duty service. The Veteran testified during the October 2017 hearing that wearing combat boots aggravated his symptoms. The record therefore raises the possibility that his left heel symptoms were present prior to active duty service. However, the July 2020 VA medical opinion did not address this possibility. For these reasons, the Board finds that the July 2020 VA medical opinion is inadequate. A remand for a new opinion is therefore warranted. 5. Entitlement to a TDIU is remanded. During the Veteran’s July 2020 VA examination for low back conditions, he reported that he cannot work due to his low back symptoms. In a January 2016 decision, the Social Security Administration (SSA) found that the Veteran had been disabled since May 18, 2015 as a result of his low back and psychiatric disabilities, both of which are service-connected. Because the record raises the possibility that the Veteran might be unemployable as a result of his service-connected disabilities, the issue of entitlement to a TDIU has been raised in connection with the claim on appeal for an increased rating for a herniated disk of the lumbar spine. See Rice v. Shinseki, 22 Vet. App. 447 (2009); 38 C.F.R. § 4.16(a) (2020). The issue of the Veteran’s entitlement to a TDIU is inextricably intertwined with the lumbar spine claim. Therefore, the AOJ should develop a claim for a TDIU. The matters are REMANDED for the following action: 1. Provide the Veteran and his representative with notice concerning how to substantiate the claim for a TDIU, to include providing him with a VA Form 21-8940. 2. Arrange for the Veteran to have an examination by an appropriate clinician for the purpose of determining the current severity of his service-connected low back disability. The electronic claims file must be made available to the clinician for review. The clinician is to provide a detailed review of the Veteran’s pertinent medical history, current complaints, and the nature and extent of any symptoms of his service-connected low back disability during the period on appeal. The clinician is advised that VA received the Veteran’s claim on April 25, 2013. The clinician must attempt to elicit information regarding the severity, frequency, and duration of any flare-ups, and the degree of functional loss during flare-ups. To the extent possible, the clinician should identify any symptoms and functional impairments due to the low back disability alone and discuss the effect of the Veteran’s low back disability on any occupational functioning and activities of daily living. If it is not possible to provide a specific measurement, or an opinion regarding flare-ups, symptoms, or functional impairment based on direct observation, the clinician should provide an estimate, if at all possible, of the additional impairment due to flare-ups based on the other evidence of record and the Veteran’s statements. If the clinician is unable to provide such an opinion without resort to speculation, the clinician must provide a rationale for this conclusion, with specific consideration of the instructions in the VA Clinician’s Guide to estimate, “per [the] veteran,” what extent, if any, flare-ups affect functional impairment. The clinician must include a discussion of any specific facts that cannot be determined if unable to opine without speculation. The clinician is advised that a statement that the examination did not take place during a flare-up or after repetitive use over time is not a sufficient rationale for inability to provide an opinion. Although an independent review of the claims file is required, the Board calls the clinician’s attention to the following: a. A July 2013 private treatment record in which the Veteran reported a history of sciatica pain, as well as numbness and tingling, and the treatment provider’s diagnosis of “[m]echanical back pain, likely discogenic with sciatica pain left leg.” b. The Veteran’s reports during an April 2014 VA examination of his back frequently going out and requiring him to lie in bed for 2-4 days to recover and of pain down both legs but especially the left leg. c. The Veteran’s testimony during the October 2017 hearing, including his reports of emergency room visits due to his back going out, of pain in both legs but predominantly the left leg, and of a need for bed rest for days during flare ups. d. A November 2017 private treatment record diagnosing sciatica of the left side. e. The Veteran’s statements during the July 2020 VA examination regarding the severity of his symptoms, including flare ups. 3. Arrange for the Veteran to have an examination by an appropriate clinician for the purpose of determining the current severity of his service-connected left ankle disability. The electronic claims file must be made available to the clinician for review. The clinician is to provide a detailed review of the Veteran’s pertinent medical history, current complaints, and the nature and extent of any symptoms of his service-connected left ankle disability during the period on appeal. The clinician is advised that VA received the Veteran’s claim on April 25, 2013. The clinician must attempt to elicit information regarding the severity, frequency, and duration of any flare-ups, and the degree of functional loss during flare-ups. To the extent possible, the clinician should identify any symptoms and functional impairments due to the left ankle disability alone and discuss the effect of the Veteran’s left ankle disability on any occupational functioning and activities of daily living. If it is not possible to provide a specific measurement, or an opinion regarding flare-ups, symptoms, or functional impairment based on direct observation, the clinician should provide an estimate, if at all possible, of the additional impairment due to flare-ups based on the other evidence of record and the Veteran’s statements. If the clinician is unable to provide such an opinion without resort to speculation, the clinician must provide a rationale for this conclusion, with specific consideration of the instructions in the VA Clinician’s Guide to estimate, “per [the] veteran,” what extent, if any, flare-ups affect functional impairment. The clinician must include a discussion of any specific facts that cannot be determined if unable to opine without speculation. The clinician is advised that a statement that the examination did not take place during a flare-up or after repetitive use over time is not a sufficient rationale for inability to provide an opinion. Although an independent review of the claims file is required, the Board calls the clinician’s attention to the following: a. The Veteran’s reports during an April 2014 VA examination regarding his symptoms, including his report of his ankle rolling with too much work or walking. b. The Veteran’s testimony during the October 2017 hearing, including his reports that he can roll the ankle very easily and that it is habitually weakened. c. The Veteran’s statements during the July 2020 VA examination regarding the severity of his symptoms, including turning outward, balance problems, and flare ups, as well as the clinician’s finding that the Veteran occasionally uses a brace for ankle stability. 4. Arrange for an opinion by an appropriate clinician for the purpose of determining the etiology of the Veteran’s sleep apnea. The entire claims file and a copy of this remand must be made available to the clinician for review. A new physical or telehealth examination is only required if deemed necessary by the clinician. The clinician must provide opinions as to the following: a. Whether the Veteran’s sleep apnea clearly and unmistakably existed prior to his September 1991 to December 1991 period of active duty service. b. If the answer to a) is yes, whether the Veteran’s sleep apnea was clearly and unmistakably not aggravated (i.e., not permanently worsened beyond the natural progression) during or as a result of service. c. If the answer to a) or b) is no, with regard to his September 1991 to December 1991 period of active duty service, whether it is at least as likely as not (50 percent or greater probability) that the Veteran’s sleep apnea had its origin in service or is related to the Veteran’s active service. d. With regard to his January 1975 to June 1975 period of active duty service, whether it is at least as likely as not (50 percent or greater probability) that the Veteran’s sleep apnea had its origin in service or is related to the Veteran’s active service. Although an independent review of the claims file is required, the Board calls the clinician’s attention to the following: a. A June 2014 statement by someone who served with the Veteran in the Air Force Reserve and during the 1991 period of active duty service regarding his observation of the Veteran’s symptoms. b. An October 2015 statement by someone who served with the Veteran in the Air Force regarding his observation of the Veteran’s symptoms. c. The Veteran’s statement during the July 2020 VA examination that his symptoms had their onset thirty years prior to the examination. The rationale for any opinion expressed should be provided. Note that a lack of documented treatment in service, while probative, cannot serve as the sole basis for a negative finding. If an opinion cannot be made without resort to speculation, the clinician should so state and provide reasoning as to why this is so. 5. Arrange for an opinion by an appropriate clinician for the purpose of determining the etiology of the Veteran’s hemorrhoids. The entire claims file and a copy of this remand must be made available to the clinician for review. A new physical or telehealth examination is only required if deemed necessary by the clinician. The clinician must provide opinions as to the following: a. Whether the Veteran’s hemorrhoids clearly and unmistakably existed prior to his September 1991 to December 1991 period of active duty service. b. If the answer to a) is yes, whether the Veteran’s hemorrhoids were clearly and unmistakably not aggravated (i.e., not permanently worsened beyond the natural progression) during or as a result of service. c. If the answer to a) or b) is no, with regard to his September 1991 to December 1991 period of active duty service, whether it is at least as likely as not (50 percent or greater probability) that the Veteran’s hemorrhoids had their origin in service or are related to the Veteran’s active service. d. With regard to his January 1975 to June 1975 period of active duty service, whether it is at least as likely as not (50 percent or greater probability) that the Veteran’s hemorrhoids had their origin in service or are related to the Veteran’s active service. Although an independent review of the claims file is required, the Board calls the clinician’s attention to the following: a. A March 2014 statement by a Navy Corpsman who treated the Veteran in the 1970s and recalls that his hemorrhoids were diagnosed in 1977 or 1978. b. A June 2014 statement by someone who served with the Veteran in the Air Force Reserve and during the 1991 period of active duty service regarding his observation of the Veteran’s symptoms, including that his hemorrhoids flared up during that period of active duty. c. An October 2015 statement by someone who served with the Veteran in the Air Force regarding his observation of the Veteran’s symptoms. d. The Veteran’s testimony during the October 2017 hearing that his hemorrhoids had their onset after a 1975 incident of military sexual trauma. e. The Veteran’s statement during the July 2020 VA examination that his symptoms had their onset in 1975 after an injury to the anus. The clinician is advised that, by granting service connection for posttraumatic stress disorder (PTSD) secondary to assault, VA has conceded that an assault occurred. The rationale for any opinion expressed should be provided. Note that a lack of documented treatment in service, while probative, cannot serve as the sole basis for a negative finding. If an opinion cannot be made without resort to speculation, the clinician should so state and provide reasoning as to why this is so. 6. Arrange for an opinion by an appropriate clinician for the purpose of determining the etiology of the Veteran’s left heel or foot disability. The entire claims file and a copy of this remand must be made available to the clinician for review. A new physical or telehealth examination is only required if deemed necessary by the clinician. The clinician is advised that, even if there is no diagnosable pathology of the left heel or foot, he or she must consider pain to constitute a disability if it has caused functional impairment during the period on appeal. The clinician is advised that VA received the Veteran’s claim on April 25, 2013. The clinician must provide opinions as to the following: a. Whether the Veteran’s left heel or foot disability clearly and unmistakably existed prior to his January 1975 to June 1975 or September 1991 to December 1991 periods of active duty service. b. If the answer to a) with regard to either period is yes, whether the Veteran’s left heel or foot disability was clearly and unmistakably not aggravated (i.e., not permanently worsened beyond the natural progression) during or as a result of service during that period. c. If the answer to a) or b) is no with regard to either period, whether it is at least as likely as not (50 percent or greater probability) that the Veteran’s left heel or foot disability had its origin during that period of service, had its onset within one year of separation from that period of active duty service, or is related to the Veteran’s active service. Although an independent review of the claims file is required, the Board calls the clinician’s attention to the following: a. The Veteran’s report at the time of his November 1974 entrance examination of wart removal from his left heel at the age of eighteen. b. A February 1975 service treatment record noting June 1973 surgery for removal of a plantar wart from the left heel and possible discomfort at the site of the scar. c. A March 1975 service treatment record noting the Veteran’s report of pain along the sides of the left heel, with edema, swelling, and tenderness. d. A July 1977 treatment record noting the Veteran’s report of left heel pain and drainage from the scar tissue area approximately once a month e. A July 1977 treatment record noting the Veteran’s report of a fall onto his left heel and ankle, with a finding of a possible fracture of the left heel and ankle. f. A March 1979 treatment record noting the Veteran’s report of a “bad left heel.” g. The Veteran’s March 1994 report of surgery in 1985 to remove a layer of scar tissue and a keratoma from the left heel. h. A December 2006 medical opinion by the Veteran’s private treating physician that he had degenerative changes of the left ankle and foot and that these were more likely than not the result of in-service injury. i. A November 2014 VA x-ray showing degenerative joint disease of the left foot and a heel spur. j. The Veteran’s testimony during the October 2017 hearing that wearing combat boots aggravated the site of his 1973 surgery. k. The Veteran’s reports during the July 2020 VA examination regarding the functional impact of his left foot symptoms. The rationale for any opinion expressed should be provided. Note that a lack of documented treatment in service, while probative, cannot serve as the sole basis for a negative finding. If an opinion cannot be made without resort to speculation, the clinician should so state and provide reasoning as to why this is so. 7. Ensure that the directives specified in this remand have been implemented. If they have not, appropriate corrective action must be undertaken before readjudication. Stegall v. West, 11 Vet. App. 268 (1998). 8. Then, readjudicate the claims, including the TDIU claim. If any decision is unfavorable to the Veteran, issue a Supplemental Statement of the Case and allow the applicable time for response. Then, return the case to the Board. D. Martz Ames Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Ryan Frank, 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.