Citation Nr: 21062601 Decision Date: 10/08/21 Archive Date: 10/08/21 DOCKET NO. 16-28 731 DATE: October 8, 2021 ORDER Service connection for a right-hand disability is granted. Service connection for a left-hand disability is granted. Service connection for a left knee disability is granted. Compensation under 38 U.S.C.§ 1151 for a bacterial infection claimed as a result of VA treatment is denied. A compensable initial rating for bilateral hearing loss is denied. REMANDED Entitlement to service connection for a cervical neck disability is remanded. Entitlement to service connection for a right knee disability is remanded. FINDINGS OF FACT 1. The competent and probative evidence is at least in equipoise that the Veteran's current bilateral hand degenerative arthritis began during active duty and has continued since that time. 2. The competent and probative evidence is at least in equipoise that the Veteran's current left knee osteoarthritis began during active duty and has continued since that time. 3. The weight of the competent and probative evidence is against finding the Veteran's bacterial infection in 2014 was proximately due to carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault by VA in furnishing reasonable care; or, that the additional disability was due to an event not reasonably foreseeable in furnishing the Veteran's VA treatment. 4. The Veteran has had no worse than Level III hearing loss in the right or left ear, with no exceptional pattern of hearing loss in either ear. CONCLUSIONS OF LAW 1. The criteria for service connection for bilateral hand degenerative arthritis are met. 38 U.S.C. §§ 1110, 1111, 1112, 1113, 5107(b); 38 C.F.R. §§ 3.102, 3.303(b), 3.307, 3.309(a). 2. The criteria for service connection for left knee osteoarthritis are met. 38 U.S.C. §§ 1110, 1111, 1112, 1113, 5107(b); 38 C.F.R. §§ 3.102, 3.303(b), 3.307, 3.309(a). 3. The criteria for entitlement to compensation under 38 U.S.C. § 1151 for a bacterial infection are not met. 38 U.S.C. §§ 1151, 5107(b); 38 C.F.R. §§ 3.102, 3.361. 4. The criteria for entitlement to an initial compensable rating for bilateral hearing loss are not met. 38 U.S.C. § 1155; 38 C.F.R. § § 4.3, 4.10, 4.85, Diagnostic Code (DC) 6100. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service in the United States Army from December 1953 to November 1955. These matters are before the Board of Veterans' Appeals (Board) on appeal from June 2015 and March 2016 (bilateral hearing loss) rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO). The Veteran testified before the undersigned Veterans Law Judge (VLJ) at a Board hearing in October 2017; a transcript of that hearing is of record. Subsequently, the Board remanded the above issue in March 2018 to provide the Veteran with examinations. These matters have now returned to the Board for appellate consideration. The Board finds there has been substantial compliance with its prior remand directives. See D'Aries v. Peake, 22 Vet. App. 97, 105 (2008). The Veteran was provided with examinations. The claims for service connection for a right knee disability and a cervical spine disability are addressed in the Remand portion below. Additionally, the Board remanded the issue of whether new and material evidence had been received to reopen the claim of service connection for a left foot disability for a statement of the case (SOC). The Veteran requested a hearing for that issue as indicated in his Form 9 (see 8/11/2020 Form 9), and that issue will be addressed by the Board in a separate decision. Service Connection Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303. In order to establish entitlement to service connection, there must be 1) evidence of a current disability; 2) medical, or in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and 3) causal connection between the claimed in-service disease or injury and the current disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Service connection for certain diseases may also be established on a presumptive basis by showing that such a disease manifested itself to a degree of 10 percent or more within one year from the date of separation from service. 38 U.S.C. §§ 1101, 1112; 38 C.F.R. §§ 3.307(a)(3), 3.309(a). In such cases, the disease is presumed under the law to have had its onset in service even though there is no evidence of such disease during the period of service. 38 C.F.R. § 3.307(a). A nexus between a current disability and an in-service injury or event may be established by evidence of continuity of symptomatology, if the condition is a chronic disease enumerated under 38 U.S.C. § 1101. Walker v. Shinseki, 708 F.3d 1331, 1338-40 (Fed. Cir. 2013). Arthritis is an enumerated chronic disease. See 38 U.S.C. §§ 1101, 1112. The Veteran is competent to report symptoms and experiences observable by his senses. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); 38 C.F.R. § 3.159(a). VA is required to give due consideration to all pertinent medical and lay evidence in evaluating a claim for disability benefits. Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed Cir. 2009). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 5758 (1990). 1. Entitlement to service connection for a right-hand disability. 2. Entitlement to service connection for a left-hand disability. The Veteran asserts service connection for a bilateral hand disability. After reviewing the relevant lay and medical evidence, the Board concludes that the Veteran has a current diagnosis of bilateral hand degenerative arthritis, and that the evidence is at least in equipoise that it began during service and has continued since then. 38 U.S.C. §§ 1110, 5107(b); 38 C.F.R. § 3.310(a). He has a current diagnosis of bilateral hand degenerative arthritis to include as reported at the February 2021 examination. As such, the first element of service connection is met. In the medical history portion of the 2021 DBQ, the examiner reported the Veteran's hand disability began in November 1954. The Veteran reported that he fell from a truck and burned his hands. He also asserted that he has had pain and limitation of movement since that incident in service. The Board finds the Veteran competent and credible to describe his pain and limitation of motion beginning in service and continuing since that time. Jandreau v. Nicholson, 492 F.3d 1372, 1377, 1377 n.4 (Fed. Cir. 2007). However, the examiner provided a negative nexus opinion. The examiner stated that the Veteran's bilateral hand disability was not at least as likely as not due to his burns in service. The examiner stated the records did not show chronic residuals. The examiner did not address the Veteran's contentions regarding pain and limitation of motion that began after his in-service injury. The Board finds this opinion to have little probative value. In this regard, the examiner relied on the absence of medical reports, while not addressing the Veteran's credible lay statements (stating his hand disabilities began during service and he has had symptoms since that time), to provide a negative nexus opinion. Additionally, the examiner's opinion is conclusory with adequate supporting rationale explaining why his degenerative arthritis is not due to service. As such, the Board places little probative value on this nexus opinion. After review of the competent and probative evidence, the Board finds that when resolving reasonable doubt in favor of the Veteran, the evidence is at least in equipoise that his bilateral hand degenerative arthritis began during service after his accident and has continued since that time. 38 C.F.R. § 3.303(b), 3.309(a). The Board acknowledges the negative nexus opinion but has found that it has little probative value as it relies on the absence of medical records while not addressing the Veteran's credible lay statements. Additionally, the Board has found the Veteran competent and credible to describe his bilateral hand degenerative arthritis pain and limitation of motion beginning in service and continuing since that time. As such, the Board finds that the positive and negative evidence of record balances out. 38 C.F.R. § 3.102; see Wise v. Shinseki, 26 Vet. App. 517, 531 (2014) (noting that the benefit of the doubt rule is a unique standard of proof, and "the nation, 'in recognition of our debt to our veterans,' has 'taken upon itself the risk of error' in awarding such benefits"). Thus, the Board finds that the evidence is at least in equipoise that the Veteran's current bilateral hand degenerative arthritis, a chronic disease, began during service and has continued since that time. 38 C.F.R. § 3.303(b), 3.309(a). Therefore, service connection for bilateral hand degenerative arthritis is warranted. 38 C.F.R. § 3.102, 3.303. 3. Entitlement to service connection for a left knee disability. The Veteran asserts service connection for a left knee disability. After reviewing the relevant lay and medical evidence, the Board concludes that the Veteran has a current diagnosis of left knee osteoarthritis, and that the evidence is at least in equipoise that it began during service and has continued since then. 38 U.S.C. §§ 1110, 1131, 5107(b); 38 C.F.R. § 3.310(a). He has a current diagnosis of left knee osteoarthritis to include as reported at the February 2021 examination. As such, the first element of service connection is met. In the medical history portion of the 2021 DBQ, the examiner reported the Veteran's knee disability began in 1954. The Veteran reported that he has had pain, numbness, and swelling in his legs since 1954 during a period of active duty. The Board finds the Veteran competent and credible to his pain and swelling beginning in service and continuing since that time. Jandreau v. Nicholson, 492 F.3d 1372, 1377, 1377 n.4 (Fed. Cir. 2007). However, the examiner provided a negative nexus opinion. The examiner stated that the Veteran's bilateral leg disability was less likely due to frostbite as there was no medical record of such an injury. The Board finds this opinion to have little probative value. In this regard, the examiner relied on the absence of medical reports, while not addressing the Veteran's credible lay statements (stating his knee disabilities began during service and he has had symptoms since that time), to provide a negative nexus opinion. Additionally, the examiner's opinion is conclusory with adequate supporting rationale explaining why his osteoarthritis is not due to service. As such, the Board places little probative value on this nexus opinion. After review of the competent and probative evidence, the Board finds that when resolving reasonable doubt in favor of the Veteran, the evidence is at least in equipoise that his left knee osteoarthritis began during service in 1954. 38 C.F.R. § 3.303(b), 3.309(a). The Board acknowledges the negative nexus opinion but has found that it has little probative value as it relies on the absence of medical records while not addressing the Veteran's credible lay statements. Additionally, the Board has found the Veteran competent and credible to describe his left knee pain and swelling beginning in service and continuing since that time. As such, the Board finds that the positive and negative evidence of record balances out. 38 C.F.R. § 3.102; see Wise v. Shinseki, 26 Vet. App. 517, 531 (2014) (noting that the benefit of the doubt rule is a unique standard of proof, and "the nation, 'in recognition of our debt to our veterans,' has 'taken upon itself the risk of error' in awarding such benefits"). Thus, the Board finds that the evidence is at least in equipoise that the Veteran's current left knee osteoarthritis, a chronic disease, began during service and has continued since that time. 38 C.F.R. § 3.303(b), 3.309(a). Therefore, service connection for left knee osteoarthritis is warranted. 38 C.F.R. § 3.102, 3.303. 4. Entitlement to compensation under 38 U.S.C. § 1151 for a bacterial infection claimed as a result of VA treatment. The Veteran asserts entitlement to compensation for a bacterial infection as the result of VA treatment. Under 38 U.S.C. § 1151, compensation shall be awarded for a qualifying additional disability or a qualifying death of a Veteran in the same manner as if such additional disability or death were service connected. For purposes of this section, a disability or death is a qualifying additional disability or qualifying death if the disability or death was not the result of the Veteran's willful misconduct and the disability or death was caused by hospital care, medical or surgical treatment, or examination furnished the Veteran under any law administered by the Secretary, either by a Department employee or in a Department facility as defined in section 1701(3)(A) of this title, and the proximate cause of the disability or death was: (A) carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on the part of the Department in furnishing the hospital care, medical or surgical treatment, or examination; or (B) an event not reasonably foreseeable. 38 U.S.C. § 1151. To determine whether a Veteran has an additional disability, VA compares the condition immediately before the beginning of the medical treatment upon which the claim is based to his or her condition after such treatment has stopped. 38 C.F.R. § 3.361(b). To establish that VA treatment caused additional disability, the evidence must show that the medical treatment resulted in the additional disability. Merely showing that a Veteran received treatment and that the Veteran has an additional disability, however, does not establish cause. 38 C.F.R. § 3.361(c)(1). The proximate cause of disability is the action or event that directly caused the disability, as distinguished from a remote contributing cause. To establish that carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on VA's part in furnishing medical treatment proximately caused a Veteran's additional disability, it must be shown that the medical treatment caused the Veteran's additional disability; and (i) VA failed to exercise the degree of care that would be expected of a reasonable health care provider, or (ii) VA furnished the hospital care, medical or surgical treatment, or examination without the Veteran's or, in appropriate cases, the Veteran's representative's informed consent. 38 C.F.R. § 3.361(d). Consent may be express (given orally or in writing) or implied under the circumstances specified in 38 C.F.R. § 17.32(b). 38 C.F.R. § 3.361(d)(1)(ii). Whether the proximate cause of a Veteran's additional disability was an event not reasonably foreseeable is in each claim to be determined based on what a reasonable health care provider would have foreseen. The event need not be completely unforeseeable or unimaginable but must be one that a reasonable health care provider would not have considered to be an ordinary risk of the treatment provided. In determining whether an event was reasonably foreseeable, VA will consider whether the risk of that event was the type of risk that a reasonable health care provider would have disclosed in connection with the informed consent procedures of 38 C.F.R. § 17.32 of this chapter. 38 C.F.R. § 3.361(d)(2). The Veteran asserts entitlement to compensation under § 1151 for an infection following VA treatment. An opinion was obtained in April 2020. The physician explained that the Veteran's infections, which occurred during the period on appeal, were at least as likely as not caused by the result of VA treatment. However, he did not have any further infections, complications, or residuals after he was discharged home in September 2014 to complete four weeks of intravenous antibiotic therapy at home. The examiner also determined that his infections were less likely than not the results of the attending VA personnel's failure to follow the appropriate standard of care. The physician reported the Veteran's surgical site was prepped with appropriate sterile techniques and he was given prophylactic antibiotics to prevent infections complications. The Veteran's infections were a known possible complication of his surgery. The Veteran was informed of the possibility of infection in April 2014. Additionally, the physician found there was not a failure by VA to timely diagnose or properly treat the infections. There was also no carelessness, negligence, lack of proper skill, error in judgment or similar instance. In support, the examiner explained that the Veteran was seen in the cardiology clinic one week after surgery and did not have any signs of an ongoing infection. He was hospitalized one week later after initial complains and signs of infections. The records supported a timely diagnosis and treatment of bacterial infections from May 2014 to September 2014. The Board finds this opinion to have great probative value. The examiner explains that while the Veteran had an additional disability due to VA treatment, bacterial infections, such disabilities resolved without complications or residuals. The examiner also thoroughly explained that the Veteran's infections were a known potential complication/risk that the Veteran was aware of as evidenced by his informed consent in April and May 2014. Lastly, the examiner supported the conclusions regarding failure to diagnose the infections or whether the infection was due to carelessness, negligence, lack of proper skill, error in judgment or similar instance. The Veteran's medical records indicate that he gave informed consent on May 15, 2014. His records show that he understood the potential risks and benefits. Additionally, best hygiene practices to avoid infections were provided. After reviewing the relevant lay and medical evidence, the Board concludes that the preponderance of the evidence is against finding the Veteran had an additional disability due to VA treatment. The Board acknowledges the Veteran's belief that his bacterial infections were due to VA treatment as he alleged during his hearing. As evidenced above, the examiner explained his infections were an additional disability due to treatment. However, the probative, competent evidence does not support proximate cause. In support of this, the examiner found that the Veteran had no lasting residuals after the treatment in question or complications as they resolved. The examiner added that his risk of infections were part of his informed consent, and his infections were not due to VA carelessness, negligence, lack of skill, or error in judgment. There was no failure to diagnose or treat his infections. He was seen a week later without signs of infections and then, once they appeared, he was hospitalized on approximately May 29, 2014. As such, the preponderance of the evidence is against a finding of additional disability due to VA treatment in this case. The benefit of the doubt rule is therefore not applicable, and the claim is denied. 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102. Increased Rating Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities, found in 38 C.F.R., Part 4. The percentages are based on the average impairment of earning capacity as a result of service-connected disability, and separate diagnostic codes identify the various disabilities and the criteria for specific ratings. 38 U.S.C. §§ 1155; 38 C.F.R. § 4.1. If two disability evaluations are potentially applicable, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for that rating; otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. All reasonable doubt as to the degree of disability will be resolved in favor of the claimant. 38 C.F.R. § 4.3. Where entitlement to compensation has already been established and an increase in the disability rating is at issue, the primary concern is the present level of disability. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). However, the Board must also consider staged ratings. Staged ratings are not appropriate in this matter as the evidence establishes that the Veteran's service-connected disability largely remained stable and constant. Hart v. Mansfield, 21 Vet. App. 505, 50910 (2007). The evaluation of the same disability under several diagnostic codes, known as pyramiding, must be avoided; however, separate ratings may be assigned for distinct disabilities resulting from the same injury so long as the symptomatology for one condition is not duplicative of or overlapping with the symptomatology of the other. Esteban v. Brown, 6 Vet. App. 2 59, 262 (1994); 38 C.F.R. § 4.14. The Veteran is competent to report symptoms and experiences observable by his senses. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); 38 C.F.R. § 3.159 (a). 5. Entitlement to a compensable initial rating for bilateral hearing loss. The Veteran asserts entitlement to an initial compensable rating for bilateral hearing loss. Disability ratings for hearing loss are assigned based on the results of controlled speech discrimination tests combined with the results of pure tone audiometry tests. See 38 C.F.R. § § 4.85, 4.87. An examination for VA rating purposes must be conducted by a state-licensed audiologist and must include a controlled speech discrimination test, specifically, the Maryland CNC test, and a pure tone audiometry test. 38 C.F.R. § 4.85(a). Further, disability ratings for hearing impairment are assigned through a structured formula, i.e., a mechanical application of the rating schedule to numeric designations that are assigned after audiometric evaluations have been rendered. Lendenmann v. Principi, 3 Vet. App. 345, 349 (1992). The rating criteria for hearing loss provide tables for combining the level of loss in the ears. Table VI is used to determine a Roman numeral designation for each ear based on a combination of the speech discrimination percentage and the average pure tone threshold, or the sum of thresholds at 1000, 2000, 3000, and 4000 Hertz, divided by four. Table VIA designates a Roman numeral based on the average pure tone thresholds only. Table VI is typically used, but Table VIA may be used for exceptional patterns of hearing loss. After a Roman numeral designation has been assigned for each ear, Table VII is used to determine the compensation rate by combining such designations for impairment in both ears. 38 C.F.R. § § 4.85, 4.86. When the pure tone threshold at each of the four specified frequencies (1000, 2000, 3000, and 4000 Hertz) is 55 decibels or more, the rating specialist will determine the Roman numeral designation for hearing impairment from either Table VI or Table VIA, whichever results in the higher numeral. Each ear will be evaluated separately. 38 C.F.R. § 4.86 (a). When the pure tone threshold is 30 decibels or less at 1000 Hertz, and 70 decibels or more at 2000 Hertz, the rating specialist will determine the Roman numeral designation for hearing impairment from either Table VI or Table VIA, whichever results in the higher numeral. That numeral will then be elevated to the next higher. 38 C.F.R. § 4.86(b). The Veteran underwent an examination for his bilateral hearing loss in December 2015. His results were as follows: 500Hz 1000Hz 2000Hz 3000Hz 4000Hz 6000Hz 8000Hz Average R 35 45 65 70 75 85 105+ 64 L 40 45 65 75 85 85 105+ 68 His Puretone average for the right ear was 64. For his left, it was 68. Speech recognition scores were 88 percent in the right ear and 84 percent in the left ear. He did not have an exceptional pattern of hearing impairment in either ear. 38 C.F.R. § 4.86(a). Such findings translate to Level III in the right ear and Level III in the left ear under Table VI. 38 C.F.R. § 4.85, Table VI. Applying Table VII, DC 6100, this equates to a noncompensable disability rating. A private hearing evaluation was provided in April 2016. However, the Board previously explained that it did not have numeric designation, but the hearing levels did not appear to be worse than the December 2015. Additionally, as the word recognition scores were lower, the Board found that a new examination was warranted. His most recent examination is from January 2021. His results were as follows: 500Hz 1000Hz 2000Hz 3000Hz 4000Hz 6000Hz 8000Hz Average R 45 50 80 90 100 110 110 80 L 35 50 80 80 75 100 105 71 His Puretone average for the right ear was 80. For his left, it was 71. Speech recognition scores were 96 percent in the right ear and 88 percent in the left ear. He did not have an exceptional pattern of hearing impairment in either ear. 38 C.F.R. § 4.86(a). Such findings translate to Level II in the right ear and Level III in the left ear under Table VI. 38 C.F.R. § 4.85, Table VI. Applying Table VII, DC 6100, this equates to a noncompensable disability rating. At the 2015 and 2021 examinations, the Veteran reported he had difficulty with hearing in conversations and required others to repeat themselves. He testified at the Board hearing that he had difficulty hearing his wife and others. He would need others to go with him to medical appointments to help with his hearing. The Veteran is competent to report these symptoms, and the Board also finds him credible, as the statements on these points are consistent. See Jandreau, 492 F.3d at 1377. Nevertheless, VA's rating of hearing impairment is based on specific measurements that must be gathered by a state-licensed audiologist using specific tests, as discussed above. As such, the medical evidence and test results are more probative and outweigh the lay subjective reports of a more severe degree of disability because they directly address the rating criteria for the Veteran's hearing loss. The Veteran's attorney asserted extraschedular consideration was warranted. The Board has considered this request, but finds that the conventional rating tools adequate to evaluate a veteran's symptomatology, such as difficult understanding the speech of others. Long v. Wilkie, 33 Vet. App. 167, 174 (2020). Indeed, VA's Schedule for Rating Disabilities has been found to contemplate the problems reported by the Veteran in terms of his difficulty hearing others. See Doucette v. Shulkin, 28 Vet. App. 366 (2017) (holding that "the rating criteria for hearing loss contemplate the functional effects of difficulty hearing and understanding speech"). As such, the Board declines to refer this matter for extraschedular consideration per 38 C.F.R. § 3.321(b) as the Veteran's hearing loss manifestations are contemplated by the applicable diagnostic code. Accordingly, the appeal for a compensable rating for hearing loss is denied. The Board has considered the applicability of the benefit of the doubt doctrine, but the preponderance of the evidence is against an initial compensable rating. 38 U.S.C. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). REASONS FOR REMAND 1. Entitlement to service connection for a cervical neck disability is remanded. The Veteran asserts service connection for a cervical neck disability. He has a current diagnosis of a cervical strain to include as reported in the February 2021 examination. As such, the first element of service connection is met. The examiner provided a negative nexus opinion. He stated that the records were silent to any specific illness, event, or injury in service. However, in the DBQ portion of the report, the Veteran had stated that he has had neck pain and stiffness for many years. The examiner did not sufficiently address this contention. As such, the Board finds that an additional examination or addendum is warranted to address the Veteran's contention. 2. Entitlement to service connection for a right knee disability is remanded. The Veteran asserts service connection for a right knee disability. He has a current diagnosis of a right knee strain, to include as reported at a February 2021 examination. The examiner provided a negative nexus opinion. He stated the Veteran's medical records did not support his knee disability being related to service. However, at the examination, he reported that he has had pain, numbness, and occasional swelling in his knee since 1954. The examiner did not sufficiently address the Veteran's assertions regarding the onset of his pain, swelling, and numbness. These matters are REMANDED for the following actions: 1. Obtain any outstanding VA treatment records. All requests and responses for the records must be documented. If any identified records cannot be obtained, notify the Veteran of the missing records, the efforts taken, and any further efforts that will be made by VA to obtain such evidence, and allow him an opportunity to provide the missing records. Request the Veteran to submit any relevant private treatment reports or provide VA with authorization to obtain any such records. 2. After completing #1, regarding the Veteran's cervical strain disability, obtain an addendum opinion or, if necessary, schedule the Veteran for an in-person examination. Then, address whether: (a.) Is it at least as likely as not (probability of approximately 50 percent) that the Veteran's disability was caused by a disease or injury in service? (b.) If no, is it at least as likely as not (probability of approximately 50 percent) that the Veteran's disability was either 1) proximately due to OR 2) aggravated by any service-connected disability? **The examiner must address all contentions raised by the Veteran, such as having neck pain and stiffness for many years, or his representative.** 3. After completing #1, regarding the Veteran's right knee strain disability, obtain an addendum opinion or, if necessary, schedule the Veteran for an in-person examination. Then, address whether: (a.) Is it at least as likely as not (probability of approximately 50 percent) that the Veteran's disability was caused by a disease or injury in service? (b.) If no, is it at least as likely as not (probability of approximately 50 percent) that the Veteran's disability was either 1) proximately due to OR 2) aggravated by any service-connected disability? **The examiner must address all contentions raised by the Veteran, such as having had pain, numbness, and occasional swelling in his knee since 1954 or his representative.** 4. Inform EACH examiner that a comprehensive rationale for all opinions is to be provided. All pertinent evidence, including both lay and medical, should be considered. The term "aggravated" refers to a worsening of the underlying condition beyond the natural progression of the disease, as opposed to temporary or intermittent flare-ups or symptoms that resolve with return to the baseline level of disability. If aggravation is found, please state, to the extent possible, the baseline level of disability prior to aggravation. (Continued on the next page) If an opinion cannot be given without resorting to speculation, the examiner should explain why and 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), the record (additional facts are required), or the examiner (does not have the knowledge or training). Paul Sorisio Veterans Law Judge Board of Veterans' Appeals Attorney for the Board G. Morales, 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.