Citation Nr: 21003636 Decision Date: 01/22/21 Archive Date: 01/22/21 DOCKET NO. 15-19 989 DATE: January 22, 2021 ORDER Entitlement to service connection for unspecified insomnia disorder is granted. Entitlement to an effective date prior to April 19, 2015 for the grant of service connection for right hip strain limitation of extension is denied. Entitlement to an effective date prior to April 19, 2015 for the grant of service connection for right hip strain limitation of flexion is denied. Entitlement to an effective date prior to April 19, 2015 for the grant of service connection for right hip strain impairment is denied. Entitlement to an effective date prior to September 19, 2012 for the grant of service connection for left hip osteoarthritis with femoral acetabular impingement syndrome, status-post femur surgery (left hip osteoarthritis) limitation of extension is denied. Entitlement to an effective date prior to September 19, 2012 for the grant of service connection for left hip osteoarthritis limitation of flexion is denied. Entitlement to an effective date prior to September 19, 2012 for the grant of service connection for left hip osteoarthritis impairment is denied. Entitlement to an effective date prior to September 19, 2012 for the grant of service connection for lumbar fact arthropathy with mild spondylosis (lumbar spine arthropathy) is denied. REMANDED Entitlement to service connection for erectile dysfunction is remanded. Entitlement to service connection for obstructive sleep apnea (OSA) is remanded. Entitlement to service connection for a left leg disability is remanded. Entitlement to service connection for a nasal disability is remanded. Entitlement to service connection for a disability manifesting in a blood clot in the right leg is remanded. Entitlement to service connection for a liver disability is remanded. Entitlement to service connection for a disability manifesting in memory loss is remanded. Entitlement to an evaluation in excess of 10 percent for right hip strain limitation of extension is remanded. Entitlement to a compensable evaluation for right hip strain limitation of flexion is remanded. Entitlement to a compensable evaluation for right hip strain impairment is remanded. Entitlement to an evaluation in excess of 10 percent for left hip osteoarthritis limitation of extension is remanded. Entitlement to a compensable evaluation for left hip osteoarthritis limitation of flexion is remanded. Entitlement to a compensable evaluation for left hip osteoarthritis impairment is remanded. Entitlement to an evaluation in excess of 10 percent for lumbar spine arthropathy is remanded. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) is remanded. FINDINGS OF FACT 1. The Veteran’s unspecified insomnia disorder was incurred during service. 2. The first correspondence that can be interpreted as a claim of service connection for a right hip disability was received on March 28, 2016; VA received an intent to file a claim on April 19, 2015. 3. The first correspondence that can be interpreted as a claim of service connection for a left hip disability was received on September 19, 2012. 4. The first correspondence that can be interpreted as a claim of service connection for a back disability was received on September 19, 2012. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for unspecified anxiety disorder have been met. 38 U.S.C. §§ 1110, 1131, 5107(b) (2012); 38 C.F.R. §§ 3.102, 3.303, 3.304 (2019). 2. The criteria for entitlement to an effective date prior to April 19, 2015 for the grant of service connection for right hip strain limitation of extension have not been met. 38 U.S.C. §§ 5101, 5110 (2012); 38 C.F.R. §§ 3.1, 3.155, 3.400 (2014, 2018, 2019). 3. The criteria for entitlement to an effective date prior to April 19, 2015 for the grant of service connection for right hip strain limitation of flexion have not been met. 38 U.S.C. §§ 5101, 5110 (2012); 38 C.F.R. §§ 3.1, 3.155, 3.400 (2014, 2018, 2019). 4. The criteria for entitlement to an effective date prior to April 19, 2015 for the grant of service connection for right hip strain impairment have not been met. 38 U.S.C. §§ 5101, 5110 (2012); 38 C.F.R. §§ 3.1, 3.155, 3.400 (2014, 2018, 2019). 5. The criteria for entitlement to an effective date prior to September 19, 2012 for the grant of service connection for left hip osteoarthritis limitation of extension have not been met. 38 U.S.C. §§ 5101, 5110 (2012); 38 C.F.R. §§ 3.1, 3.155, 3.400 (2014, 2018, 2019). 6. The criteria for entitlement to an effective date prior to September 19, 2012 for the grant of service connection for left hip osteoarthritis limitation of flexion have not been met. 38 U.S.C. §§ 5101, 5110 (2012); 38 C.F.R. §§ 3.1, 3.155, 3.400 (2014, 2018, 2019). 7. The criteria for entitlement to an effective date prior to September 19, 2012 for the grant of service connection for left hip osteoarthritis impairment have not been met. 38 U.S.C. §§ 5101, 5110 (2012); 38 C.F.R. §§ 3.1, 3.155, 3.400 (2014, 2018, 2019). 8. The criteria for entitlement to an effective date prior to September 19, 2012 for the grant of service connection for lumbar spine arthropathy have not been met. 38 U.S.C. §§ 5101, 5110 (2012); 38 C.F.R. §§ 3.1, 3.155, 3.400 (2014, 2018, 2019). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from February 1977 to February 1997. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from October 2013, May 2017, December 2017, and January 2019 rating decisions by the Department of Veterans Affairs (VA). Several issues were remanded in September 2018 and June 2019; the case has since been re-assigned to the undersigned. In response to a May 2019 statement of the case (SOC), the Veteran filed a simultaneous substantive appeal (VA Form 9) and VA Form 10182 in May 2019 for the issues of an increased rating for lumbar spine arthropathy and an earlier effective date for the grant of service connection for lumbar spine arthropathy. After VA requested clarification in October 2020, the Veteran stated that he wished for these issues to remain in the legacy legal framework. See November 2020 correspondence. As a result, the Board has jurisdiction of these issues in the current matter and will adjudicate them accordingly. The record reflects that the Veteran’s service-connected disabilities may have prevented him from working during the appeal period. See July 2019 VA Form 21-8940. Because a TDIU rating is inherent in any claim for an increased rating, see Rice v. Shinseki, 22 Vet. App. 447 (2009), it has been added as an issue. Although evidence, such as VA treatment records, has been received since the Agency of Original Jurisdiction (AOJ) last adjudicated the effective date issues denied herein waiver is not required because the analysis for an effective date is dependent on documents received prior to the effective date assigned, rather than new evidence such as treatment records. Thus, the Board finds there is no prejudice in proceeding with adjudication of those issues. 1. Entitlement to service connection for insomnia. Service connection may be established for a disability resulting from a disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. Service connection requires evidence showing: (1) a current disability; (2) incurrence or aggravation of a disease or injury in service; and (3) a nexus between the current disability and the disease or injury incurred or aggravated in service. See Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability was incurred in service. 38 C.F.R. § 3.303(d). The Veteran reported that he has had trouble sleeping starting in service and continuing from that time. See, e.g., February 2020 VA examination. He submitted a private opinion from his treating physician who opined that the Veteran had a “chronic sleep disorder” dating back to his time in the military, at which time he would often wake up through the night and was unable to sleep longer than one to three hours on any given night. The physician noted that these symptoms persisted well past his time in active duty and continued through the present time. See July 2019 private opinion. A February 2020 VA psychological examiner diagnosed unspecified insomnia disorder and opined that it was less likely than not that the Veteran’s disorder was incurred in service. However, the examiner relied on the absence of medical evidence and inappropriately found that the Veteran’s statements were insufficient because they were not corroborated in the record. The Board finds the Veteran’s report of problems sleeping in service competent and credible. Thus, the VA examiner’s opinion is inadequate because the examiner relied on the absence of medical evidence, and the opinion is assigned no probative weight. Although the July 2019 private physician did not specifically diagnose unspecified insomnia disorder, the Board resolves reasonable doubt that the “chronic sleep disorder” is similar to, if not the same as, unspecified insomnia disorder, as diagnosed by the VA examiner. Because the July 2019 private opinion is supported by evidence of record and contains a detailed rationale, the opinion is adequate and assigned significant probative weight. Thus, entitlement to service connection for unspecified insomnia disorder is warranted, and the matter is granted. Effective Date Prior to February 19, 2019, except as otherwise provided, the effective date of an evaluation and award of compensation based on an original claim, a claim reopened after final disallowance, or a claim for increase will be the date of receipt of the claim or the date entitlement arose, whichever is later. 38 U.S.C. § 5110 (2012); 38 C.F.R. § 3.400 (2018). Prior to March 24, 2015, a claim is a formal or informal communication in writing requesting a determination of entitlement, or evidencing a belief in entitlement, to a benefit. 38 C.F.R. § 3.1(p) (2014). The essential elements for any claim, whether formal or informal, are: (1) intent to apply for benefits; (2) identification of the benefits sought; and (3) communication in writing. Brokowski v. Shinseki, 23 Vet. App. 79, 84 (2009). From March 24, 2015, a claim must be filed on a designated VA form. See 38 C.F.R. § 3.1(p) (2018); 79 Fed. Reg. 57,696 (Sept. 25, 2014). From March 24, 2015 to February 19, 2019, aside from submitting a formal claim, a Veteran may file an intent to file a claim via a saved electronic application, written intent on a prescribed intent to file a claim form, or oral intent communicated to designated VA personnel and recorded in writing. If VA receives a complete application appropriate to the benefit sought within one year of receipt of the intent to file a claim, VA will consider the complete claim filed as of the date the intent to file a claim was received. 38 C.F.R. § 3.155 (2018). 2. Entitlement to an effective date prior to April 19, 2015 for the grants of service connection for right hip strain limitation of extension, right hip strain limitation of flexion, and right hip strain impairment. The Veteran first filed a claim for a right hip disability on March 28, 2016. See March 2016 VA Form 21-526b. The Veteran had previously filed an Intent to File a Claim on April 19, 2015, see April 2015 VA Form 21-0966, and the AOJ assigned an effective date of April 19, 2015 for the grants of service connection related to the Veteran’s right hip disabilities based on the date VA received the intent to file a claim. To establish an effective date earlier than April 19, 2015 for the grants of service connection for right hip strain limitation of extension, right hip strain limitation of flexion, and right hip strain impairment, the Veteran would need to show (1) that he had a prior claim of service connection for a right hip disability that remained pending prior to April 19, 2015, and, if so, (2) that such disability first manifested prior to April 19, 2015. See 38 C.F.R. § 3.400. There is no evidence the Veteran intended to file a disability compensation claim for a right hip disability prior to his claim for a bilateral hip disability on March 28, 2016. Consequently, regardless of when the Veteran’s right hip disabilities first manifested, there is simply no basis for awarding an effective date prior to April 19, 2015 for the grants of service connection for right hip strain limitation of extension, right hip strain limitation of flexion, and right hip strain impairment, and the issues must be denied. 3. Entitlement to an effective date prior to September 19, 2012 for the grants of service connection for left hip osteoarthritis limitation of extension, left hip osteoarthritis limitation of flexion, and left hip osteoarthritis impairment. To establish an effective date earlier than September 19, 2012 for the grants of service connection for left hip osteoarthritis limitation of extension, left hip osteoarthritis limitation of flexion, and left hip osteoarthritis impairment, the Veteran would need to show (1) that he had a prior claim of service connection for a left hip disability that remained pending prior to September 19, 2012, and, if so, (2) that such disability first manifested prior to September 19, 2012. See 38 C.F.R. § 3.400. There is no evidence the Veteran intended to file a disability compensation claim for a left hip disability prior to his claim for a left leg disability on September 19, 2012, which the AOJ interpreted to be a claim for a left hip disability. Consequently, regardless of when the Veteran’s left hip disabilities first manifested, there is simply no basis for awarding an effective date prior to September 19, 2012 for the grants of service connection for left hip osteoarthritis limitation of extension, left hip osteoarthritis limitation of flexion, and left hip osteoarthritis impairment, and the issues must be denied. 4. Entitlement to an effective date prior to September 19, 2012 for the grant of service connection for lumbar spine arthropathy. To establish an effective date earlier than September 19, 2012 for the grant of service connection for lumbar spine arthropathy, the Veteran would need to show (1) that he had a prior claim of service connection for a back disability that remained pending prior to September 19, 2012, and, if so, (2) that such disability first manifested prior to September 19, 2012. See 38 C.F.R. § 3.400. There is no evidence the Veteran intended to file a disability compensation claim for a back disability prior to his claim on September 19, 2012. Consequently, regardless of when the Veteran’s back disability first manifested, there is simply no basis for awarding an effective date prior to September 19, 2012 for the grant of service connection for lumbar spine arthropathy, and the issue must be denied. REASONS FOR REMAND 1. Entitlement to service connection for erectile dysfunction. The Veteran asserts that his erectile dysfunction is related to his hypertension or medications taken for his service-connected lumbar spine disability, and he submitted a medical article in support of his assertion. See March 2019 correspondence. A January 2020 VA examiner diagnosed erectile dysfunction and opined it was less likely than not that the Veteran’s hypertension caused his disability. The examiner noted the Veteran’s hypertension was well-controlled and then stated that there was no indication that hypertension caused erectile dysfunction. This opinion is inadequate because it is conclusory. The examiner also opined the Veteran’s erectile dysfunction was not aggravated by hypertension because the Veteran had mild erectile dysfunction and controlled hypertension. This opinion is also conclusory and there is no discussion of any relation to the Veteran’s lumbar spine arthropathy. As a result, remand is necessary for new opinions. 2. Entitlement to service connection for OSA. The Veteran reported that he has had difficulty breathing while sleeping since service, and he did not know what sleep apnea was at the time. See, e.g., April 2018 statement. His wife confirmed that he has been gasping for breath in his sleep since they were married in 1982. See June 2014 statement. He also asserts that his sleep apnea could be due to extensive traveling during his last few years of service and submitted medicals in support of his assertion. See November 2017 claim and medical articles. Finally, he asserted that his disability may be due to medication taken for pain control for his service-connected lumbar spine arthropathy and submitted medical articles in support of his assertion. See March 2019 correspondence. A January 2020 VA examiner diagnosed OSA and opined it was less likely than not that the disability was related to service. The examiner noted that the Veteran had gained significant weight after service and obesity is the number one factor for developing OSA. This opinion is inadequate because it does not include discussion of lay reports that the Veteran had difficulty breathing while sleeping during service or that the Veteran travelled significantly during his last few years of service. As a result, remand is necessary for a new opinion. The January 2020 VA examiner also opined it was less likely than not that the Veteran’s OSA was related to his hypertension but merely stated that OSA was not caused by hypertension and cannot be aggravated by it. This opinion is inadequate because it is conclusory and did not discuss the Veteran’s pain medication taken as a result of his service-connected back arthropathy. As a result, remand is necessary for a new opinion. 3. Entitlement to service connection for a left leg disability. It is well-established that the Veteran injured his left femur during service and did not get immediate adequate treatment. See, e.g., April 2015 statement. He was diagnosed with myositis ossificans during service. See September 1981 service treatment records (STRs). In July 2005, he had an excision of bony exostosis of the femur. See private treatment records. During a March 2017 VA examination, the Veteran was diagnosed with femoral acetabular impingement syndrome and status-post bone spur surgery on the left femur. It does not appear the examiner provided an opinion regarding the Veteran’s left leg disability. A January 2020 VA examiner opined that the Veteran’s myositis ossificans was removed by surgery without residuals and thus the Veteran did not have a current disability. The examiner did not discuss the previous diagnoses of acetabular impingement syndrome and status-post bone spur surgery. As a result, the opinion is inadequate, and remand for a new opinion is necessary. 4. Entitlement to service connection for a nasal disability. The Veteran has private diagnoses of chronic sinusitis, septal deviation, inferior turbinate hypertrophy, and chronic rhinitis, status-post functional endoscopic sinus surgery, septoplasty and submucosal resection of inferior turbinates. See, e.g., August 2011 private treatment records. The Veteran and his wife reported that he got hit in the face several times while playing softball during service. See August 2014 statements. The January 2020 VA examiner diagnosed chronic sinusitis and allergic rhinitis and opined that these disabilities were less likely than not related to service. The opinion is inadequate because the examiner relied on the absence of medical evidence in STRs and cited medical literature without further discussion of the Veteran’s history. Thus, remand is necessary for a new medical opinion. 5. Entitlement to service connection for a disability manifesting in a blood clot in the right leg. Private treatment records reflect that the Veteran had deep vein thrombosis in his right leg after service that resolved by May 2008. See August 2006 private treatment records; May 2008 private treatment records. An October 2013 VA examiner noted that STRs reflected a right calf thrombophlebitis during service, but the Board cannot find that entry in STRs at this time. The Board will resolve reasonable doubt at this time and presume that the Veteran was diagnosed with right calf thrombophlebitis during service. A January 2020 VA examiner opined that the Veteran did not have a current venous disability and that the Veteran’s deep vein thrombosis in 2006 had resolved, but also noted that the Veteran has a genetic mutation inherited from his parents that make him a high risk for deep vein thrombosis. Indeed, September 2019 private treatment records reflect that the Veteran is diagnosed with factor V Leiden mutation. Because the January 2020 VA examiner’s opinion is inconsistent due to claiming the Veteran does not have a disability while also noting that the Veteran has a mutation, remand for clarity as to the nature of the Veteran’s current disability and whether it is congenital is necessary. 6. Entitlement to service connection for a liver disability. The January 2020 VA examiner opined that the Veteran did not have a current liver disability. However, January 2009 private treatment records reflect that a treating physician thought that the Veteran’s elevated liver tests were most likely related to a fatty liver or steatohepatitis. Because the January 2020 VA examiner did not discuss whether the Veteran has steatohepatitis, remand for a new opinion is necessary. 7. Entitlement to service connection for a disability manifesting in memory loss. The Veteran has asserted several reasons why he should be service-connected for his memory loss. He reported that he traveled extensively for his last five years of service, averaging 265 days a year, and submitted medical articles in support of his assertion. See November 2017 claim and supporting medical articles. He also asserted that medications he takes for his musculoskeletal disabilities, such as Flexeril, increased his memory problems, see April 2018 correspondence, as well as the pain itself from his service-connected lumbar spine arthropathy. See March 2019 correspondence. The Veteran’s treating physician opined that the Veteran’s chronic sleep disorder (now service-connected as unspecified insomnia disorder) “played a role” in his reported poor memory and recall. See July 2019 private opinion. At this time, the opinion is inadequate because it is ambiguous and without a supporting rationale. If the Veteran wishes to obtain an opinion with adequate rationale from his physician, he is welcome to do so. During a February 2020 VA psychological examination, the Veteran reported that he first started noticing memory issues in the mid-1980s. He felt that his memory issues were related to frequently travelling on airplanes during service with changing of altitudes. He has not had neuropsychological testing. The VA examiner opined that he could not provide a relevant diagnosis because neuropsychological testing was needed and was outside of the scope of the examiner’s practice. Because subsequent testing was not attempted, the examination is inadequate, and remand for a new examination is warranted. 8. Entitlement to evaluations in excess of 10 percent for right hip strain limitation of extension and left hip osteoarthritis limitation of extension; entitlement to compensable evaluations for right hip strain limitation of flexion, right hip strain impairment, left hip osteoarthritis limitation of flexion, and left hip osteoarthritis impairment. VA examinations must include joint testing for active and passive motion in both weight-bearing and non-weight-bearing circumstances. Correia v. McDonald, 28 Vet. App. 158 (2016). Specifically, merely stating that there is pain on passive range of motion is not sufficient; there must be passive range of motion measurements. Additionally, estimated ranges of motion should be provided during flare-ups, if feasible, even if the Veteran is not experiencing one during the examination. See Sharp v. Shulkin, 29 Vet. App. 26 (2017). In this case, the VA hip examination of record does not fully comport with the requirements of Correia or Sharp. See March 2017 VA examination. Thus, remand is necessary for a new VA hip examination. 9. Entitlement to an evaluation in excess of 10 percent for lumbar spine arthropathy. The VA examination for the Veteran’s lumbar spine arthropathy is also not compliant with Correia. Specifically, merely stating that there is pain on passive range of motion is not sufficient; there must be passive range of motion measurements. See June 2020 VA examination. As a result, remand for a new examination is warranted. The Board must consider any associated neurological abnormalities associated with the Veteran’s lumbar spine arthropathy. See 38 C.F.R. § 4.71a, General Rating Formula for Diseases and Injuries of the Spine, Note (1). The Veteran is service-connected for bilateral lower extremity radiculopathy from May 21, 2020, which is not the entire period of appeal. Private treatment records from December 2019 reflect pain radiating down both legs. Because the evidence suggests that the Veteran had bilateral radiculopathy prior to May 21, 2020, a retrospective opinion regarding when the Veteran’s bilateral lower extremity radiculopathy manifested is necessary. 10. Entitlement to TDIU. The matter of entitlement to TDIU is inextricably intertwined with the other remanded increased rating issues; accordingly, it must be remanded as well. The matters are REMANDED for the following action: 1. The AOJ should obtain, if possible, records of relevant private evaluations and treatment the Veteran has received. The Veteran must assist in the matter by identifying his private healthcare providers and by submitting releases for VA to obtain any private records identified. 2. After the development in the first directive is completed, the AOJ should arrange for a VA medical opinion, with examination or telehealth interview of the Veteran only if deemed necessary by a medical professional, to determine the nature and likely cause of his erectile dysfunction. The examiner should review the claim file (including this remand) and note such review was conducted. Based on review of the record, the examiner should provide an opinion with detailed rationale that responds to the following: Is it at least as likely as not (50% or greater probability) that the Veteran’s erectile dysfunction was either caused or aggravated by his service-connected hypertension or lumbar spine disability? Please explain why. The opinion must address whether the disability increased in severity beyond its natural progression (i.e., was aggravated). If aggravation is found, please identify to the extent possible the baseline level of disability prior to the aggravation. The examiner must discuss the medications the Veteran takes for his lumbar spine disability and the medical article submitted in March 2019. The examiner may not cite to medical literature without discussing the specific facts of the Veteran’s case. The examiner may not rely solely on the absence of medical evidence without further explanation. 3. After the development in the first directive is completed, the AOJ should arrange for a VA medical opinion, with examination or telehealth interview of the Veteran only if deemed necessary by a medical professional, to determine the nature and likely cause of his obstructive sleep apnea. The examiner should review the claim file (including this remand) and note such review was conducted. Based on review of the record, the examiner should provide an opinion with detailed rationale that responds to the following: (a.) Is it at least as likely as not (50% or greater probability) that the Veteran’s obstructive sleep apnea was either incurred in or otherwise related to the Veteran’s military service? Please explain why. The examiner must discuss the Veteran and his wife’s reports that he had difficulty breathing while asleep since service. The examiner must also discuss the Veteran’s frequent flying during his last few years of service and the medical articles submitted in November 2017 and March 2019, as appropriate. The examiner may not rely solely on the absence of medical evidence during or immediately after service. (b.) Is it at least as likely as not (50% or greater probability) that the Veteran’s obstructive sleep apnea was either caused or aggravated by his service-connected hypertension or lumbar spine disability? Please explain why. The opinion must address whether the disability increased in severity beyond its natural progression (i.e., was aggravated). If aggravation is found, please identify to the extent possible the baseline level of disability prior to the aggravation. The examiner must discuss medications taken for the Veteran’s lumbar spine disability. The examiner may not cite to medical literature without discussing the specific facts of the Veteran’s case. The examiner may not provide a conclusory opinion that does not discuss the facts of the Veteran’s case. 4. After the development in the first directive is completed, the AOJ should arrange for a VA medical opinion, with examination or telehealth interview of the Veteran only if deemed necessary by a medical professional, to determine the nature and likely cause of any left leg disability. The examiner should review the claim file (including this remand) and note such review was conducted. Based on review of the record, the examiner should provide an opinion with detailed rationale that responds to the following: (a.) Please identify, by diagnosis, all left leg disabilities present during the appeal period (from September 2012). The examiner must discuss the March 2017 diagnoses of acetabular impingement syndrome and status-post bone spur surgery. (b.) For each disability diagnosed, is it at least as likely as not (50% or greater probability) that such disability was either incurred in or otherwise related to the Veteran’s military service? Please explain why. The examiner may not rely solely on the absence of medical evidence immediately after service. 5. After the development in the first directive is completed, the AOJ should arrange for a VA medical opinion, with examination or telehealth interview of the Veteran only if deemed necessary by a medical professional, to determine the nature and likely cause of any nasal disability. The examiner should review the claim file (including this remand) and note such review was conducted. Based on review of the record, the examiner should provide an opinion with detailed rationale that responds to the following: Is the Veteran’s chronic sinusitis, septal deviation, inferior turbinate hypertrophy, and chronic rhinitis at least as likely as not (50% or greater probability) incurred in or otherwise related to his military service? Please explain why. The examiner may not rely on the absence of medical evidence in service and immediately thereafter and may not rely on medical literature without further discussion of the specific facts of the Veteran’s case. Conclusory opinions will be deemed inadequate. The examiner must discuss the reports of being hit in the face during softball practice during service. 6. After the development in the first directive is completed, the AOJ should arrange for a VA medical opinion, with examination or telehealth interview of the Veteran only if deemed necessary by a medical professional, to determine the nature and likely cause of any disability manifesting in a blood clot in the right leg. The examiner should review the claim file (including this remand) and note such review was conducted. Based on review of the record, the examiner should provide an opinion with detailed rationale that responds to the following: (a.) Is the Veteran’s factor V Leiden mutation a congenital defect, congenital disease, or neither? Please explain why. (A defect is a condition that can neither improve nor worsen. A congenital disease, for VA adjudication purposes, is a congenital condition that is subject to improvement and/or worsening.) (b.) If the Veteran’s factor V Leiden mutation is a congenital defect, is it subject to a superimposed disease or injury during service that resulted in additional disability? Please explain why. (c.) If the Veteran’s factor V Leiden mutation is a congenital disease, is there clear and unmistakable evidence that it pre-existed service? Please explain why. The examiner must use the clear and unmistakable standard. (d.) If the Veteran’s factor V Leiden mutation is a congenital disease and it clearly and unmistakably pre-existed service, is there clear and unmistakable evidence that either (i) there was no increase in disability during service, or (ii) any increase in disability during service was due to the natural progression of the disease? Please explain why. The examiner must use the clear and unmistakable evidence standard and discuss the previous note that the Veteran had right calf thrombophlebitis during service. (e.) If the Veteran’s factor V Leiden mutation is a congenital disease that did not clearly and unmistakably pre-exist service, or that it pre-existed service but did not clearly and unmistakably increase in severity beyond natural progression during service, is it at least as likely as not (50 percent or greater probability) that the Veteran’s factor V Leiden mutation is related to service? Please explain why. In this circumstance only, the Veteran would be presumed sound upon entering service and the examiner may not rely on the presence of the disability prior to service. 7. After the development in the first directive is completed, the AOJ should arrange for a VA medical opinion, with examination or telehealth interview of the Veteran only if deemed necessary by a medical professional, to determine the nature and likely cause of any liver disability. The examiner should review the claim file (including this remand) and note such review was conducted. Based on review of the record, the examiner should provide an opinion with detailed rationale that responds to the following: (a.) Please identify, by diagnosis, all liver disabilities present during the appeal period (from September 2012). The examiner must discuss January 2009 private treatment records suggesting the Veteran may have steatohepatitis. (b.) For each liver disability diagnosed, is it at least as likely as not (50% or greater probability) the disability was either caused or aggravated by the Veteran’s service-connected hypertension? Please explain why. The opinion must address whether the disability increased in severity beyond its natural progression (i.e., was aggravated). If aggravation is found, please identify to the extent possible the baseline level of disability prior to the aggravation. The examiner may not cite to medical literature without further discussing the specific facts of the Veteran’s case. 8. After the development in the first directive is completed, the AOJ should arrange for a VA examination or telehealth interview of the Veteran to determine the nature and likely cause of any disability manifesting in memory loss, to include neuropsychological or cognitive testing, if possible. The examiner should review the claim file (including this remand) and note such review was conducted. Based on review of the record and examination or interview of the Veteran, the examiner should provide an opinion with detailed rationale that responds to the following: (a.) Please identify, by diagnosis, all disabilities manifesting in memory loss present during the appeal period (from November 2017). (b.) For each disability diagnosed, is it at least as likely as not (50% or greater probability) that the disability was either caused or aggravated by the Veteran’s service-connected unspecified insomnia disorder or lumbar spine disability? Please explain why. The opinion must address whether the disability increased in severity beyond its natural progression (i.e., was aggravated). If aggravation is found, please identify to the extent possible the baseline level of disability prior to the aggravation. The examiner must discuss (i) the July 2019 private opinion that the Veteran’s insomnia “played a role” in memory loss, (ii) the Veteran’s assertions that his chronic pain from his lumbar spine disability affected his memory, and (iii) the medications taken for his lumbar spine disability affected his memory. The examiner may not solely rely on the absence of medical evidence or medical literature without further discussing the facts of the Veteran’s case. (c.) For each disability diagnosed, is it at least as likely as not (50% or greater probability) that the disability was either incurred in or otherwise related to the Veteran’s active duty service? Please explain why. The examiner must discuss (i) the Veteran’s report of onset of symptoms during service and continuing from that time, and (ii) his assertion that frequent flying affected his memory loss, with medical articles received in November 2017. 9. After the development in the first directive is completed, the AOJ should arrange for an orthopedic examination of the Veteran to assess the current severity of his service-connected hip disabilities. The examiner must review the entire record in conjunction with the examination and note such review was conducted. Pathology, symptoms (frequency and severity), and any associated impairment of function should be described in detail. All indicated tests or studies should be completed. Range of motion measurements should be included for active and passive motion in both weight-bearing and non-weight-bearing circumstances. If pain is noted, the point in the range of motion at which pain starts should be clearly noted. If feasible, the examiner must assess the additional functional impairment on repeated use or during flare-ups in terms of the degree of additional range of motion loss, using lay observations specifically elicited from the Veteran. If not feasible, the examiner must provide a detailed explanation and rationale for why such could not be accomplished. Specifically, if the medical professional cannot provide an opinion without resorting to mere speculation, he or she must provide a complete explanation for why an opinion cannot be rendered; a rationale based on the fact that the Veteran is not having a flare-up at the time of the examination will not be deemed adequate. 10. After the development in the first directive is completed, the AOJ should arrange for an orthopedic examination of the Veteran to assess the current severity of his service-connected lumbar spine disability. The examiner must review the entire record in conjunction with the examination and note such review was conducted. Pathology, symptoms (frequency and severity), and any associated impairment of function should be described in detail. All indicated tests or studies should be completed. The examiner is requested to respond to the following: When did the Veteran’s bilateral lower extremity radiculopathy first manifest and at what severity? Please explain why. The examiner is encouraged to request information from the Veteran and may not solely rely on the absence of medical evidence when determining whether he had radiculopathy. Range of motion measurements should be included for active and passive motion in both weight-bearing and non-weight-bearing circumstances, including for the opposite undamaged joint, if applicable. If pain is noted, the point in the range of motion at which pain starts should be clearly noted. If feasible, the examiner must assess the additional functional impairment on repeated use or during flare-ups in terms of the degree of additional range of motion loss, using lay observations specifically elicited from the Veteran. If not feasible, the examiner must provide a detailed explanation and rationale for why such could not be accomplished. Specifically, if the medical professional cannot provide an opinion without resorting to mere speculation, he or she must provide a complete explanation for why an opinion cannot be rendered; a rationale based on the fact that the Veteran is not having a flare-up at the time of the examination will not be deemed adequate. (Continued on next page)   11. If upon completion of the above action the issues remain denied, the case should be returned to the Board after compliance with appellate procedures. E. I. VELEZ Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board J. Sandler, 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.