Citation Nr: 21003475 Decision Date: 01/21/21 Archive Date: 01/21/21 DOCKET NO. 18-46 061 DATE: January 21, 2021 ORDER Entitlement to an effective date prior to June 19, 2015, for the grant of service connection for a right shoulder strain is denied. Entitlement to an effective date prior to June 19, 2015, for the grant of service connection for left lower extremity radiculopathy is denied. Entitlement to an effective date prior to June 19, 2015, for the grant of service connection for degenerative disc disease of the lumbar spine is denied. Entitlement to service connection for hypertension is denied. Entitlement to service connection for an acquired psychiatric disorder, to include depression and anxiety is denied. Entitlement to service connection for a left arm or shoulder disorder is denied. Entitlement to service connection for a bilateral hand disorder is denied. Entitlement to service connection for erectile dysfunction is denied. Entitlement to service connection for a sleep disorder is denied. REMANDED Entitlement to an initial rating greater than 10 percent for a right shoulder strain prior to September 4, 2018 and a staged initial rating greater than 20 percent thereafter is remanded. Entitlement to an initial rating greater than 10 percent for left lower extremity radiculopathy is remanded. Entitlement to an initial rating greater than 20 percent for degenerative disc disease of the lumbar spine is remanded. Entitlement to an increased rating greater than 10 percent for left knee strain is remanded. Entitlement to an increased rating greater than 30 percent for internal derangement of the right knee is remanded. Entitlement to service connection for a right leg disorder, to include radiculopathy is remanded. Entitlement to service connection for a stomach disorder, to include gastroesophageal reflux disease (GERD) is remanded. FINDINGS OF FACT 1. A November 2000 rating decision denied service connection for a right shoulder disorder and notice of that rating decision was sent to the Veteran that same month. The Veteran did not appeal the November 2000 rating decision or submit new and material evidence within the one-year appeal period of that decision. 2. On June 19, 2015, the Veteran filed an intent to file, which was acknowledged by the agency of original jurisdiction (AOJ) on June 19, 2015. 3. On September 23, 2015, the Veteran filed a formal claim seeking service connection for a right shoulder disorder, a left lower extremity disorder, and a lumbar spine disorder. 4. The evidence of record does not show that a claim to reopen the claim for entitlement to service connection for a right shoulder disorder was received subsequent to the November 2000 final rating decision and prior to the June 19, 2015 intent to file. 5. The evidence of record does not show that a claim for entitlement to service connection for a left lower extremity disorder or a lumbar spine disorder was received prior to June 19, 2015. 6. The Veteran’s hypertension was not incurred in and is not etiologically related to any incident of active duty service. 7. The Veteran’s acquired psychiatric disorder was not incurred in and is not etiologically related to any incident of active duty service. 8. The Veteran’s bilateral hand shaking was not incurred in and is not etiologically related to any incident of active duty service. 9. The Veteran’s sleep disturbance was not incurred in and is not etiologically related to any incident of active duty service. 10. The preponderance of the evidence of record is against finding that the Veteran has, or has had at any time during the appeal period, a current diagnosis of a left arm or shoulder disorder. 11. The preponderance of the evidence of record is against finding that the Veteran has, or has had at any time during the appeal period, a current diagnosis of erectile dysfunction. CONCLUSIONS OF LAW 1. The criteria for entitlement to an effective date earlier than June 19, 2015 for the award of service connection for a right shoulder disorder have not been met. 38 U.S.C. §§ 5110, 5107; 38 C.F.R. §§ 3.102, 3.400. 2. The criteria for entitlement to an effective date earlier than June 19, 2015 for the award of service connection for a left lower extremity disorder have not been met. 38 U.S.C. §§ 5110, 5107; 38 C.F.R. §§ 3.102, 3.400. 3. The criteria for entitlement to an effective date earlier than June 19, 2015 for the award of service connection for a lumbar spine disorder have not been met. 38 U.S.C. §§ 5110, 5107; 38 C.F.R. §§ 3.102, 3.400. 4. The criteria for entitlement to service connection for hypertension have not been met. 38 U.S.C. §§ 1110, 5107(b); 38 C.F.R. §§ 3.102, 3.303(a), 3.307, 3.309. 5. The criteria for entitlement to service connection for an acquired psychiatric disorder have not been met. 38 U.S.C. §§ 1110, 5107(b); 38 C.F.R. §§ 3.102, 3.303(a). 6. The criteria for entitlement to service connection for a bilateral hand disorder have not been met. 38 U.S.C. §§ 1110, 5107(b); 38 C.F.R. §§ 3.102, 3.303(a). 7. The criteria for entitlement to service connection for a sleep disorder have not been met. 38 U.S.C. §§ 1110, 5107(b); 38 C.F.R. §§ 3.102, 3.303(a). 8. The criteria for entitlement to service connection for a left arm or shoulder disorder have not been met. 38 U.S.C. §§ 1110, 5107(b); 38 C.F.R. §§ 3.102, 3.303(a). 9. The criteria for entitlement to service connection for erectile dysfunction have not been met. 38 U.S.C. §§ 1110, 5107(b); 38 C.F.R. §§ 3.102, 3.303(a). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the U.S. Army from September 1999 to September 2000 and from January 2005 to September 2005. The Board will first clarify its jurisdiction for two issues on appeal. In a February 2016 notice of disagreement to a December 2015 rating decision which denied increased ratings for right and left knee disorders, the Veteran’s attorney checked that both the evaluation and the effective date for each knee were being appealed. However, because higher ratings were not granted in the December 2015 rating decision, effective dates were not assigned in that rating decision. Therefore, because the December 2015 rating decision on appeal did not assign effective dates pertaining to the right or left knee disabilities, the issues of entitlement to earlier effective dates for right and left knee disabilities are not currently before the Board. To the extent that the Veteran’s notice of disagreement may be construed as a request for earlier effective dates for previous grants of service connection or increased ratings, the Board has no jurisdiction and would dismiss those issues as improper freestanding claims. See Rudd v. Nicholson, 20 Vet. App. 296, 300 (2006). In March 2020, after this appeal was certified to the Board, the Veteran’s private attorney filed a motion to withdraw from representation. In May 2020, the Board granted this motion, citing good cause under 38 C.F.R. § 20.608. A July 2020 Report of General Information notes that the Veteran called and expressed interest in appointing a different representative in his pending appeal. In December 2020, the Board sent the Veteran a letter advising him that he must submit a completed VA Form 21-22, “Appointment of Veterans Service Organization as Claimant’s Representative” within 30 days if he wished to be represented in his appeal by a different representative. However, the Veteran did not respond to the Board’s December 2020 letter or submit the requested form appointing a different representative. As the Veteran has not properly appointed a new representative, he is unrepresented in the current appeal. The Board has considered the Veteran’s claims and decided entitlement based on the evidence or record. The Veteran has not raised any other issues, nor have any other issues been reasonably raised by the record, with respect to his claims. See Doucette v. Shulkin, 28 Vet. App. 366, 369-70 (2017) (confirming that the Board is not required to address issues unless they are specifically raised by the claimant or reasonably raised by the evidence of record). Effective Date In general, the effective date of an award of disability compensation, in conjunction with a grant of entitlement to service connection, shall be the day following separation from active service or the date entitlement arose if the claim is received within one year of separation from service; otherwise, the effective date shall be the date of receipt of the claim, or the date entitlement arose, whichever is later. 38 U.S.C. § 5110; 38 C.F.R. § 3.400(b)(2)(i). This rule applies for both original claims for service connection and for claims reopened after final disallowance. VA amended its adjudication regulations on March 24, 2015 to require that all claims governed by VA’s adjudication regulations be filed on standard forms prescribed by the Secretary, regardless of the type of claim or posture in which the claim arises. See 79 Fed. Reg. 57660 (Sept. 25, 2014). The amendments, however, are only effective for claims and appeals filed on or after March 24, 2015. The Veteran’s appeals pertaining to the issues of entitlement to an earlier effective date for the grant of service connection for a right shoulder disorder, a lumbar spine disorder, and left lower extremity radiculopathy was initiated after March 24, 2015; accordingly, the amended regulations requiring that all claims be filed on standard VA forms apply to that appeal. There is no provision in the law for awarding an earlier effective date based simply on the presence of the disability. See Brannon v. West, 12 Vet. App. 32, 34-35 (1998) (the mere presence of medical evidence of a condition does not establish an intent on the part of the veteran to seek service connection for the disability). 1. Entitlement to an effective date prior to June 19, 2015 for the grant of service connection for a right shoulder strain; entitlement to an effective date prior to June 19, 2015 for the grant of service connection for left lower extremity radiculopathy; and entitlement to an effective date prior to June 19, 2015 for the grant of service connection for degenerative disc disease of the lumbar spine Service connection for a right shoulder disorder was initially denied in a November 2000 rating decision. Notification of the November 2000 rating decision was provided to the Veteran that same month. The Veteran did not file a timely notice of disagreement to the November 2000 rating decision, and new and material evidence pertinent to the claim was not received within one year of the rating decision. Accordingly, the November 2000 rating decision which denied service connection for a right shoulder disorder is final. See 38 U.S.C. § 7105; 38 C.F.R. § 20.1103. Service connection for a right shoulder strain, left lower extremity radiculopathy, and degenerative disc disease of the lumbar spine was granted in a December 2015 rating decision, effective June 19, 2015. The Veteran contends that an earlier effective date is warranted for the grant of service connection for these disabilities. The Veteran’s formal claim for entitlement to service connection for a right shoulder disorder, left lower leg disorder, and lumbar spine disorder was received by VA on September 23, 2015. In its December 2015 rating decision, the AOJ explained that an effective date of June 19, 2015 was awarded based upon the date of receipt of an intent to file, received on June 19, 2015. Although the June 2015 intent to file is not associated with the claims file, a letter from the AOJ to the Veteran dated June 19, 2015 reflects acknowledgment of receipt of an intent to file on June 19, 2015. Therefore, although the date of receipt of the formal claim is September 23, 2015, because the intent to file was received within one year of the formal claim, VA will consider the complete claim as having been filed on June 19, 2015. 38 C.F.R. § 3.155(b). Although the Veteran filed a claim seeking service connection for a right shoulder disorder in September 2000, that claim was denied in a November 2000 final rating decision. Additionally, VA did not receive new and material evidence relevant to the Veteran’s right shoulder claim within one year of the September 2000 rating decision. Accordingly, the September 2000 rating decision is final, and the date of claim for the current appeal of entitlement to an earlier effective date for a right shoulder disorder is June 19, 2015. The record does not contain any communications from the Veteran earlier than June 19, 2015 indicating an intent to file claims for service connection for a left lower leg disorder or a lumbar spine disorder. Therefore, the June 19, 2015 intent to file represents the earliest claim for service connection for a left lower leg disorder and a lumbar spine disorder. The applicable regulations in this case are clear that the effective date of an original award of service connection is the date of receipt of claim or the date entitlement arose, whichever is later. 38 C.F.R. § 3.400(b)(2)(i). In this case, the earliest date that may be assigned is the date of claim. The currently assigned effective date of June 19, 2015 is the date of claim and there is no legal basis for an earlier effective date. The claims must be denied. Service Connection Service connection may be established for a disability resulting from disease or injury which was clearly present in service or for a disease diagnosed after discharge from service, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. Establishing service connection generally requires medical or, in certain circumstances, lay evidence of (1) a current disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the present disability. Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). In addition, certain chronic diseases, such as hypertension, may be presumed to have been incurred in, or aggravated by, service if the disease becomes manifest to a compensable degree within one year of separation from qualifying military service. 38 U.S.C. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309. Also, service connection on the basis of continuity of symptomatology may be established for the chronic diseases specified at 38 C.F.R. § 3.309(a). Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). 2. Entitlement to service connection for hypertension; entitlement to service connection for an acquired psychiatric disorder, to include depression and anxiety; entitlement to service connection for a bilateral hand disorder; and entitlement to service connection for a sleep disorder The record establishes current diagnoses of hypertension and depression and anxiety. October 2016 VA treatment records reflect a diagnosis of hypertension, and VA treatment records in 2016 note diagnoses of depression and anxiety. Thus, current disabilities of hypertension and depression with anxiety are demonstrated. Although the evidence of record does not confirm diagnoses of a bilateral hand disorder or sleep apnea, the medical evidence contains complaints of hand shaking and difficulty sleeping. However, the record does not establish in-service incurrence of these disabilities. Service treatment records are negative for any indication of elevated blood pressure readings, psychiatric symptoms, problems with either or both hands, or difficulty sleeping. A November 2004 examination reflects that the Veteran’s blood pressure was 116/72, and the Veteran’s heart, upper extremities, and psychiatric systems were reported to be normal. In a report of medical history, completed at that time, the Veteran denied high or low blood pressure, frequent trouble sleeping, depression or excessive worry, and nervous trouble of any type. An April 2005 report of medical history also reflects that the Veteran denied impaired use of the arms, legs, hands, or feet; high or low blood pressure; nervous trouble of any sort; frequent trouble sleeping; and depression or excessive worry. The Veteran has not provided any lay statements suggesting that he experienced elevated blood pressure, psychiatric symptoms, hand symptoms, or difficulty sleeping during service or continuously since service. In fact, he has not provided any statements whatsoever linking these disabilities to active duty service. Additionally, there is no competent and credible evidence linking the Veteran’s current hypertension, depression with anxiety, hand shaking, or difficulty sleeping to any incident of service or to a service-connected disability. Therefore, in-service incurrence of hypertension, depression with anxiety, hand shaking symptoms, and sleep disturbance is not established and the claims for service connection are denied. 38 U.S.C. § 5107(b). Service connection is possible for hypertension as a chronic disease under 38 C.F.R. §§ 3.307 and 3.309 if it becomes manifest to a compensable degree within one year of separation from qualifying military service. 38 U.S.C. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309(a). Also, service connection on the basis of continuity of symptomatology can be established for the chronic diseases specified at 38 C.F.R. § 3.309(a). Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). However, the medical evidence of record does not demonstrate a diagnosis of hypertension within one year of service discharge. The first medical evidence of a diagnosis of hypertension is shown in October 2016, over 11 years after service discharge. Further, as noted above, the Veteran has not provided any lay statements indicating that he experienced symptoms of hypertension during and continuously since service discharge. Therefore, service connection on a presumptive basis or based upon continuity of symptomatology is not warranted for hypertension. The Board is grateful for the Veteran’s honorable service. However, given the record before it, the Board finds that evidence in this case does not reach the level of equipoise. See 38 U.S.C. § 5107 (a) (“[A] claimant has the responsibility to present and support a claim for benefits....”); Fagan v. Shinseki, 573 F.3d 1282, 1286 (Fed. Cir. 2009) (stating that the claimant has the burden to “present and support a claim for benefits” and noting that the benefit of the doubt standard in section 5107(b) is not applicable based on pure speculation or remote possibility); Skoczen v. Shinseki, 564 F.3d 1319, 1323-29 (Fed. Cir. 2009) (interpreting section 5107(a) to obligate a claimant to provide an evidentiary basis for his or her benefits claim, consistent with VA’s duty to assist, and recognizing that “[w]hether submitted by the claimant or VA... the evidence must rise to the requisite level set forth in section 5107(b),” requiring an approximate balance of positive and negative evidence regarding any issue material to the determination). 3. Entitlement to service connection for a left arm or shoulder disorder and entitlement to service connection for erectile dysfunction After thorough review of the evidence of record, the Board concludes that the Veteran does not have a current diagnosis of a left arm or shoulder disorder or erectile dysfunction, and has not had one at any time during the pendency of the claim or recent to the filing of the claims. 38 U.S.C. §§ 1110, 5107(b); Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009); Romanowsky v. Shinseki, 26 Vet. App. 289, 294 (2013); McClain v. Nicholson, 21 Vet. App. 319, 321 (2007); 38 C.F.R. § 3.303 (a), (d). The Veteran’s VA medical treatment records do not show any complaints of or treatment for left arm or shoulder symptoms or erectile dysfunction. Further, the Veteran has not provided any lay statements or other evidence suggesting that he experiences symptoms of such disorders. In fact, during a December 2015 VA examination which found the Veteran’s left arm and shoulder to be normal, the Veteran denied a history of left shoulder pain or injury and denied seeking medical care for a left shoulder condition during service. Additionally, the Veteran’s service treatment records are silent for any complaints of or treatment for a left arm or shoulder condition and erectile dysfunction. The existence of a current disability is the cornerstone of a claim for VA disability compensation. 38 U.S.C. § 1110; see Degmetich, 104 F.3d at 1332 (holding that interpretation of section 1110 of the statute as requiring the existence of a present disability for VA compensation purposes cannot be considered arbitrary). In the absence of proof of a present disability, there can be no valid claim. Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). As there is no evidence showing that the Veteran has a diagnosed left arm or shoulder disorder or erectile dysfunction and there is no evidence suggesting that he experiences symptoms of such disorders, the preponderance of the evidence is against the claims for entitlement to service connection for a left arm or shoulder disorder and erectile dysfunction. Because the preponderance of the evidence is against the claims, the benefit-of-the-doubt doctrine is not for application, and the claims must be denied. 38 U.S.C. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). REASONS FOR REMAND 1. Entitlement to an initial rating greater than 10 percent for a right shoulder strain prior to September 4, 2018 and a staged initial rating greater than 20 percent thereafter; entitlement to an initial rating greater than 20 percent for degenerative disc disease of the lumbar spine; entitlement to an increased rating greater than 10 percent for left knee strain; and entitlement to an increased rating greater than 30 percent for internal derangement of the right knee are remanded. The Veteran most recently underwent VA examinations assessing the severity of his right knee, left knee, and lumbar spine disabilities in May 2018, and his right shoulder disability in September 2018. Review of the May 2018 and September 2018 VA examinations show that the VA examiners were unable to describe any significant additional limitations in functional ability during flare-ups or after repetitive motion with respect to the right shoulder, lumbar spine, right knee, and left knee because the Veteran was not being examined while a flare-up was taking place or after repeated use over time. However, this is a medical rationale recently deemed inadequate by the U.S. Court of Appeals for Veterans Claims (Court) in Sharp v. Shulkin, 29 Vet. App. 26, 33 (2017). In Sharp v. Shulkin, the Court held that, for a joint examination to be adequate, the examiner “must express an opinion on whether pain could significantly limit” a veteran’s functional ability, and that determination “should, if feasible, be portrayed in terms of the degree of additional range-of-motion loss due to pain on use or during flare-ups.” 29 Vet. App. 26, (2017). The Court stated that the examiner must “obtain information about the severity, frequency, duration, precipitating and alleviating factors, and extent of functional impairment [resulting from flare-ups] from the veterans themselves.” Sharp, 29 Vet. App. at 34. The examiner must also “offer flare opinions based on estimates derived from information procured from relevant sources, including the lay statements of veterans,” and the examiner’s determination should, if feasible, be portrayed in terms of the degree of additional range-of-motion loss due to pain on use or during flare-ups. Id. Following the Court’s reasoning in Sharp, the Board finds that the May 2018 and September 2018 VA examiners did not obtain sufficient evidence from the Veteran as to the precipitating and alleviating factors of flare-ups, symptoms experienced during flare-ups, or the resultant impact on his activities. Further, the examiners did not provide sufficient rationale for the opinions that they would be unable to say without resorting to mere speculation whether pain, weakness, fatigability, or incoordination significantly limited functional ability with repeated use over time and during flare-ups because the Veteran was not being examined during a flare-up or after repeated use over time. Also, the VA examiners acknowledged that the Veteran experienced pain during range of motion testing in both knees, the lumbar spine, and the right shoulder which caused functional loss, but did not report the point at which pain began. In addition, in Correia v. McDonald, 28 Vet. App. 158, 168-70 (2016), the Court held that the final sentence of 38 C.F.R. § 4.59 creates a requirement that certain range of motion testing be conducted whenever possible in cases of joint disabilities. 28 Vet. App. 158. The final sentence of 38 C.F.R. § 4.59 provides that “[t]he joints involved should be tested for pain on both active and passive range of motion, in weight-bearing and nonweight-bearing and, if possible, with the range of motion of the opposite undamaged joint.” The Court found that, to be adequate, a VA examination of the joints must include the results of the range of motion testing described in the final sentence of 38 C.F.R. § 4.59. The May 2018 and September 2018 VA examinations do not fully comply with the requirements of 38 C.F.R. § 4.59, as discussed in Correia. The examinations provided one set of range of motion results for the joints tested, but did not indicate whether these results were from testing conducted in active motion, passive motion, weight-bearing, or nonweight-bearing. Accordingly, they do not satisfy the requirements of 38 C.F.R. § 4.59 as discussed in Correia. Based on the foregoing, the Board finds that these issues should be remanded, and that the Veteran should be afforded new VA examinations that fully satisfy the requirements of Sharp and Correia. 2. Entitlement to service connection for a right leg disorder, to include radiculopathy, is remanded. Although the May 2018 VA examiner determined that the Veteran did not have radiculopathy of the right lower extremity associated with his service-connected lumbar spine disability, the examination reflects findings of a positive straight leg raising test and mild intermittent pain in the right lower extremity. These findings were not explained by the examiner in her determination that there was no right lower extremity radiculopathy. Additionally, VA treatment records from February 2018 note the Veteran’s complaints of chronic pain from the low back down the right leg. Additionally, in May 2017, the Veteran reported that he experienced bilateral leg tingling, that his right leg went numb while sitting for too long, and that a straight leg raising test was positive at 60 degrees. In light of this evidence, which was not considered or addressed by the May 2018 examiner, a new VA peripheral nerves examination is warranted to determine whether the Veteran has right lower leg radiculopathy associated with his service-connected lumbar spine disorder. 3. Entitlement to an initial rating greater than 10 percent for left lower extremity radiculopathy is remanded. The claim for entitlement to an increased rating for left lower extremity radiculopathy is inextricably intertwined with the claims for a higher rating for a lumbar spine disability and for service connection for right lower extremity radiculopathy, as the disability benefits questionnaires for the lumbar spine and for peripheral neuropathy may contain findings pertinent to the severity of the left lower extremity radiculopathy. As a result, the examinations requested may reveal more severe symptomatology entitling the Veteran to a higher rating for the radiculopathy in his left lower extremity. Thus, this claim will be remanded as well. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991). 4. Entitlement to service connection for a stomach disorder, to include gastroesophageal reflux disease (GERD) is remanded. The Veteran’s service treatment records document a diagnosis of acid reflux in May 2005. Additionally, post-service VA treatment records reflect diagnoses of and treatment for GERD beginning in 2007, approximately two years after service discharge. Given the in-service evidence of acid reflux and the medical evidence of treatment for GERD soon after service discharge, a VA examination is warranted to determine the etiology of his current symptoms. 38 U.S.C. § 5103A (d)(2), 38 C.F.R. § 3.159(c)(4)(i); see also McLendon v. Nicholson, 20 Vet. App. 79, 83 (2006). The matters are REMANDED for the following action: 1. Schedule the Veteran for a VA examination by an appropriate clinician to determine the current severity of his service-connected right and left knee disorders, lumbar spine disorder, and right shoulder disorder. The examiner should provide a full description of the disabilities and report all signs and symptoms necessary for evaluating the Veteran’s disabilities under the rating criteria. Range of motion of the joints should be reported in degrees, noting by comparison the normal range of motion. The examiner should also test and report the range of motion in active motion, passive motion, weight-bearing, and nonweight-bearing. If there is pain on range of motion, the examiner must state at which point pain began. The examiner 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 examiner should identify any symptoms and functional impairments due the joint disabilities alone and discuss the effect of the Veteran’s 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 without speculation, the examiner must state whether the need to speculate is due to a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts), a deficiency in the record (additional facts are required), or the examiner (does not have the knowledge or training). 2. Provide the Veteran with a VA peripheral nerves examination to determine the existence and etiology of his right lower extremity radiculopathy. The Veteran’s claims file, all electronic records, and a copy of this remand must be reviewed by the examiner, and the examiner must state that this evidence was reviewed in the examination report. All pertinent symptomatology and findings must be reported in detail. All indicated tests and studies must be accomplished. Based upon a complete review of the evidence of record, to include the Veteran’s lay statements and the medical evidence documenting symptoms of pain down the right leg, numbness, tingling, and positive straight leg raising tests, the VA examiner must provide the following opinions: (a.) Does the Veteran have a current diagnosis of right lower leg radiculopathy or peripheral neuropathy? (b.) Is it at least as likely as not that the Veteran’s radiculopathy or neuropathy was caused or incurred as a result of his active duty service? (c.) Is it at least as likely as not that the Veteran’s radiculopathy or neuropathy was caused or aggravated beyond its normal progression by the Veteran’s service-connected lumbar spine disorder? (Continued on the next page)   Aggravation is defined as any increase in severity of a nonservice-connected disease or injury that is proximately due to or the result of a service-connected disease or injury, and not due to the natural progress of the nonservice-connected disease. The examiner is advised that a finding that the right lower extremity radiculopathy or neuropathy was aggravated beyond the normal progression due to a service-connected disability does not require evidence of permanent worsening and may encompass any additional impairment in earning capacity resulting from an already service-connected condition. A complete rationale for all opinions must be provided. The examiner is advised that the Veteran is competent to report observable symptomatology. 3. Provide the Veteran with a new VA examination by appropriate physician to determine the etiology of the Veteran’s GERD. The Veteran’s claims file, all electronic records, and a copy of this remand must be reviewed by the examiner, and the examiner must state that this evidence was reviewed in the examination report. All pertinent symptomatology and findings must be reported in detail. All indicated tests and studies must be accomplished. Based upon a complete review of the evidence of record, the VA examiner must state whether it is at least as likely as not (i.e., a 50 percent probability or more) that any GERD or other stomach disorder currently diagnosed, or diagnosed during the appeal, even if currently resolved, was caused by or incurred as a result of the Veteran’s active duty service. The examiner must consider and discuss all pertinent evidence in the claims file, to specifically include the in-service evidence of acid reflux, the post-service evidence of diagnoses of and treatment for GERD within two years of service discharge, and the Veteran’s lay statements. The examiner is advised that the Veteran is competent to report observable symptomatology. ANTHONY C. SCIRÉ, JR Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board M. Katz, 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.