Citation Nr: 21066704 Decision Date: 11/01/21 Archive Date: 11/01/21 DOCKET NO. 15-30 319 DATE: November 1, 2021 ORDER Entitlement to a rating in excess of 10 percent for bilateral hearing loss is denied. Entitlement to a TDIU due to service-connected disabilities, on an extraschedular basis, for the period from August 28, 2013, to February 1, 2019, is granted. REMANDED Entitlement to a compensable rating for painful extension of the left knee, to include restoration of a 10 percent rating is remanded. FINDINGS OF FACT 1. Throughout the period on appeal, the Veteran's hearing impairment has been no worse than Level IV in the right ear and Level III in the left ear. 2. While the Veteran did not meet the schedular threshold for a TDIU prior to February 1, 2019, the Veteran's service-connected disabilities rendered him unable to secure and follow a substantially gainful occupation during this period. CONCLUSIONS OF LAW 1. The criteria for a rating in excess of 10 percent for bilateral hearing loss have not been met. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.321, 4.1, 4.3, 4.10, 4.85, Diagnostic Code 6100, 4.86. 2. The criteria for a total disability rating based upon individual unemployability (TDIU) due to service-connected disabilities, on an extraschedular basis, for the period from August 28, 2013, to February 1, 2019, have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.340, 4.3, 4.16, 4.18. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Navy from July 1975 to April 1986. These matters come before the Board of Veterans' Appeals (Board) on appeal from April 2014 and August 2014 rating decisions issued by the Department of Veterans Affairs (VA) Regional Offices (ROs). In September 2016, the Veteran testified at a Board hearing before the undersigned Veterans Law Judge (VLJ). A transcript of that hearing is associated with the claims file. In September 2020, the Board remanded these matters to the RO for further development. 1. Entitlement to a rating in excess of 10 percent for bilateral hearing loss The Veteran contends that his service-connected hearing loss is more severe than presently evaluated, and productive of a greater degree of impairment than is reflected by the disability rating currently assigned. The Board notes that assignment of a disability rating for hearing loss is derived by a mechanical application of the rating schedule to the specific numeric designations assigned after audiology testing is completed. Lendenmann v. Principi, 3 Vet. App. 345 (1992). In this regard, hearing loss is rated based on 38 C.F.R. § 4.85, DC 6100, which provides criteria for evaluating hearing impairment using pure tone threshold averages and speech discrimination scores. Numeric designations are assigned based upon a mechanical use of tables found in 38 C.F.R. § 4.85. Scores are then matched against Table VI to find the numeric designation, then the designations are matched with Table VII to find the percentage evaluation to be assigned for the hearing impairment. To evaluate the degree of disability from defective hearing, the Rating Schedule establishes eleven auditory acuity levels from Level I for essentially normal acuity through Level XI for profound deafness. 38 C.F.R. §§ 4.85, 4.87, Tables VI, VIa, VII. Organic impairment of hearing acuity is measured by the results of controlled speech discrimination tests together with the puretone threshold average. See 38 C.F.R. § 4.85(a), (d). "Puretone threshold average" as used in Tables VI and VI(a) is the sum of the puretone thresholds at 1000, 2000, 3000 and 4000 Hertz and divided by four. This average is used in all cases (including those of 38 C.F.R. § 4.86) to determine a Roman numeral designation from Tables VI and VI(a). 38 C.F.R. § 4.85(d). Table VI, "Numeric Designation of Hearing Impairment Based on Puretone Threshold Average and Speech Discrimination," is used to determine a Roman numeral designation (I through XI) for hearing impairment based on a combination of the percent of speech discrimination (horizontal rows) and the puretone threshold average (vertical columns). The Roman numeral designation is located at the point where the row and column intersect. 38 C.F.R. § 4.85(b). Additionally, Table VII, "Percentage Evaluations of Hearing Impairment," is used to determine the percentage evaluation by combining the Roman numeral designations for hearing impairment in each ear. The horizontal rows represent the ear having better the percentage evaluation is located at the point where the row and the column intersect. 38 C.F.R. § 4.85(e). The Veteran is in receipt of a 10 percent evaluation for bilateral hearing loss. He contends that an initial rating in excess of 10 percent is warranted. Turning to the evidence of record, the Veteran was afforded a VA examination in April 2012. The Veteran's puretone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 20 30 30 25 30 LEFT 25 25 20 15 30 The average puretone thresholds at these frequencies were 29 in the right ear and 23 in the left ear. Speech audiometry revealed speech recognition ability of 72 percent in the right ear and 76 percent in the left ear. The audiologist found that the Veteran's test results were valid for VA rating purposes. However, the audiologist marked that the use of speech discrimination scores was not appropriate for the Veteran but did not provide an explanation for that finding. Additionally, the associated VA audiogram reflects that the testing reliability was fair. The Board also notes that the VA examination results do not reflect the Veteran has an exceptional pattern of hearing loss for rating purposes. Based on these results, the RO granted the Veteran service connection for bilateral hearing loss and assigned a rating of 10 percent. The Board notes that it appears the RO considered the Veteran's speech discrimination scores when applying this rating because when considering such scores and based upon the puretone thresholds, Table VI shows that the Veteran had a Level IV hearing acuity in the right ear and a Level III hearing acuity in the left ear, which warrants a 10 percent rating under Table VII. The Veteran was afforded another VA examination in March 2014. The Veteran reported that the functional impact of his disability was that he had to look at people to understand what they are saying even with hearing aids and that he had to ask people to repeat what they had said. The Veteran's puretone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 20 20 20 20 30 LEFT 30 20 25 25 30 The average puretone thresholds at these frequencies were 23 in the right ear and 25 in the left ear. Speech audiometry revealed speech recognition ability of 84 percent in the right ear and 90 percent in the left ear. The audiologist found that the Veteran's test results were valid for VA rating purposes and that the use of speech discrimination scores was appropriate for the Veteran. The Board also notes that these VA examination results do not reflect the Veteran has an exceptional pattern of hearing loss for rating purposes. Based on these results, Table VI shows that the Veteran had a Level II hearing acuity in the right ear and a Level I hearing acuity in the left ear. Under Table VII, such hearing acuity warrants a noncompensable rating. Based on this examination, the RO reduced the Veteran's disability rating to 10 percent in an August 2014 rating decision. This matter was before the Board in September 2020 to consider the propriety of the reduced rating for the Veteran's bilateral hearing loss. After consideration of the evidence of record, the Board found that the burden to justify a reduction in the Veteran's disability rating was not met. See Brown v. Brown, 5 Vet. App. 413, 420 (1993). Accordingly, the Veteran's 10 percent rating for bilateral heating loss was restored. In addition to the restoration of the Veteran's 10 percent rating, the Board also remanded the Veteran's claim for consideration of whether a rating in excess of 10 percent was warranted. Notably, the AOJ was instructed to interpret the results of a March 2019 private audiogram, including whether the Maryland CNC test was used by the examiner and the actual pure tone threshold results in numerical values. The Veteran was afforded a VA examination in December 2020, which included an interpretation of the March 2019 private audiogram. As to the audiogram, the examiner noted the Veteran's statements at the time that "the hearing would go out and come back in.... at the end of November, it went out completely and did not return." The examiner indicated that the Veteran's average puretone thresholds at the time of the March 2019 audiogram were 60 decibels in the right ear and 83 decibels in the left ear. The examiner indicated that overall, the intra-test audiogram results were consistent, that speech recognition testing matched the pure tone average, and that speech understanding scores were consistent with the type and degree of hearing loss. The examiner indicated that the audiogram noted use of W-22 word lists, not the Maryland CNC word lists. Finally, the examiner notes that based on the Veteran's statement of his hearing loss, an assumption can be made that the Veteran had suffered some sort of sudden onset of hearing loss that has resolved, and that the March 2019 audiogram was conducted during this episode of loss. The examiner added that the Veteran's current thresholds were in line with previous audiometric findings. At the time of the December 2020 examination, Veteran's puretone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 30 25 20 25 30 LEFT 40 35 40 40 55 The average puretone thresholds at these frequencies were 25 in the right ear and 43 in the left ear. Speech audiometry revealed speech recognition ability of 96 percent in the right ear and 94 percent in the left ear. The audiologist found that the Veteran's test results were valid for VA rating purposes and that the use of speech discrimination scores was appropriate for the Veteran. The Board also notes that these VA examination results do not reflect the Veteran has an exceptional pattern of hearing loss for rating purposes. Based on these results, Table VI shows that the Veteran had a Level I hearing acuity in the right ear and a Level I hearing acuity in the left ear. Under Table VII, such hearing acuity warrants a noncompensable rating. Based on the foregoing, the Board finds that a rating in excess of 10 percent is not warranted for the Veteran's bilateral hearing loss. Throughout the period on appeal, the Veteran's hearing impairment has been no worse than Level IV in the right ear and Level III in the left ear. While the Board acknowledges that the March 2019 audiogram showed a more sever degree of hearing loss, the December 2020 examiner concluded that the findings were consistent with the Veteran's reports of sudden hearing loss which has since resolved. Additionally, the Board notes that the March 2019 audiometric findings have little probative value, as they do not contain speech discrimination scores obtained from a Maryland CNC test. Furthermore, application of the March 2019 threshold findings alone to Table VIa is inapplicable this case, as there is no indication that an examiner certified that use of the speech discrimination test was not appropriate for the Veteran. See 38 C.F.R. § 4.85(C). The Board has considered the Veteran's lay statements, in which he generally contends that his hearing is worse than currently rated, and does not doubt that he experiences a degree of decreased hearing. However, as was indicated above, rating a hearing loss disability involves the mechanical application of rating criteria to the results of specified audiometric studies. For these reasons, a rating in excess of 10 percent for bilateral hearing loss must be denied. 2. Entitlement to a TDIU due to service-connected disabilities prior to February 1, 2019 A total disability rating may be granted where the schedular rating is less than 100 percent and the veteran is unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities. 38 C.F.R. § 4.16. Generally, to be eligible for TDIU, a percentage threshold must be met. 38 C.F.R. §§ 3.340, 3.341, 4.16(a). If there is only one service-connected disability, or two or more with the same etiology or affecting the same body system, the disability rating must be 60 percent or more. 38 C.F.R. § 4.16(a). If there are two or more disabilities, there shall be at least one disability rated at 40 percent or more, and sufficient additional disabilities to bring the combined rating to 70 percent or more. Where a Veteran is unemployable by reason of his or her service-connected disabilities but fails to meet the percentage standards set forth in § 4.16(a), TDIU the claim should be submitted to the Director of Compensation Service, for extraschedular consideration. 38 C.F.R. § 4.16(b). The Board is precluded from assigning a TDIU rating on an extraschedular basis in the first instance. Instead, the Board must refer any claim that meets the criteria for referral for consideration of entitlement to TDIU on an extraschedular basis to the Director of Compensation Service. Bowling v. Principi, 15 Vet. App. 1 (2001). As the record currently stands, the Veteran's percentage ratings do not meet the schedular requirements for a TDIU under 38 C.F.R. §4.16(a) for the entire applicable period prior to February 1, 2019. Here, while the Veteran was service-connected for several disabilities, his combined evaluation was 60 percent, with none of his disabilities rated at 40 percent or more. If a veteran fails to meet the applicable percentage standards enunciated in 38 C.F.R. § 4.16(a), an extraschedular rating is for consideration where the veteran is unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities. 38 C.F.R. § 4.16(b). The sole fact that a veteran is unemployed or has difficulty obtaining employment is not enough. The question is whether the veteran is capable of performing the physical and mental acts required by employment, not whether he or she can find employment. Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993) (citing 38 C.F.R. §§ 4.1, 4.15, 4.16(a)). Thus, the Board must evaluate whether there are circumstances, apart from any non-service-connected conditions and advancing age, which would justify a total rating based on unemployability. See id.; see also 38 C.F.R. § 4.16(b). In making this determination, consideration may be given to his or her level of education, special training, and previous work experience, but not to his or her age or occupational impairment caused by non-service-connected disabilities. It should additionally be noted that marginal employment or employment provided on account of disability or special accommodation is not substantially gainful. See 38 C.F.R. §§ 3.341, 4.16, 4.18, 4.19; Hersey v. Derwinski, 2 Vet. App. 91, 94 (1992); Faust v. West, 13 Vet. App. 342 (2000). Entitlement to TDIU is based on an individual's particular circumstances. Rice, 22 Vet. App. at 452. 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). In general, the effective date is the date of receipt of the claim, or the date entitlement arose, whichever is later. 38 U.S.C. § 5110(b)(2); 38 C.F.R. § 3.400(o). The effective date for the grant of a TDIU is governed by the increased rating provisions of 38 C.F.R. § 3.400(o). See Hurd v. West, 13 Vet. App. 449 (2000). Under the regulation, if the increase occurred within one year prior to the claim, the increase is effective as of the date the increase was "factually ascertainable." Harper v. Brown, 10 Vet. App. 125 (1997); 38 C.F.R. § 3.400(o)(2). If the increase occurred more than one year prior to the claim, the increase is effective the date of claim. 38 C.F.R. § 3.400(o)(2); see Gaston v. Shinseki, 605 F.3d 979 (Fed. Cir. 2010) (finding that a Veteran's claim for increased disability compensation must have occurred during the one year prior to the date of the Veteran's claim for the Veteran to receive the benefit of an earlier effective date). Turning to the evidence of record, the Veteran submitted a TDIU claim on August 28, 2013. See August 2013 VA Form 21-8490. The Veteran reported education through high school, including additional technical training as an electrician. Id. After his discharge from service, the Veteran worked as an electrician in construction. Thereafter, he worked as a forklift operator and then as a warehouse supervisor from November 2007 to June 2009. See August 2010 SSA Work History Report. The Veteran last worked at Walmart as a sales associate in the hardware department between approximately January 2010 and June 2010. See id. He reported that his service-connected disabilities interfered with his ability to work, including resulting in an inability to stand for prolonged periods of time. At the time the Veteran was working at Walmart, a February 2010 VA treatment record reflects that the Veteran reported difficultly placing items on the upper shelves for his job. A June 2010 Walmart separation form signed by an assistant manager reflects that the Veteran voluntary left his job due to health reasons. Accordingly, the Board finds that the Veteran's statements regarding his employment history and the circumstances of his last employment are credible and supported by the other evidence of record. Based on the foregoing, the Board concludes that the Veteran was last employed in any capacity in June 2010. Based on the date of filing of the Veteran's TDIU claim, August 28, 2013, the Board will examine the evidence of record dating back to the period prior The Board's decision issued in September 2020 granted the Veteran's claim for a TDIU from February 1, 2019. That decision includes a conclusive discussion of the lay and medical evidence of record as it pertains to the Veteran's ability to secure or follow a substantially gainful occupation as a result of his service-connected disabilities, dating back to the period prior to the filing of his TDIU claim in August 2013. For the sake of brevity, the discussion of the evidence and the related favorable findings are incorporated herein by reference. Accordingly, the discussion below will be limited only to the evidence necessary to establish the Veteran's entitlement to a TDIU prior to February 1, 2019. As outlined above, the Veteran's claim was referred to the Director of Compensation and Pension Service, for consideration of whether a TDIU on an extraschedular basis is warranted under 38 C.F.R. §4.16(b). In June 2021, the Director opined that evidence fails to support the contention that any of the service-connected disabilities or a combination of the effects of those disabilities prevented employment prior to February 1, 2019. The Director noted the Veteran's work history and a Social Security Administration (SSA) determination that the Veteran was disabled due to his left knee, pes planus, back pain, hypertension, and obesity. The Director indicated that the medical evidence showed that the Veteran would have difficulty with prolonged weight bearing, standing, walking, bending, pushing, pulling, lifting, carrying, and working overhead. However, it was noted that the Veteran would be able to perform those activities intermittently and his conditions would have no impact on sedentary employment. The Director's decision is not binding on the Board, and the Board will conduct its own de novo review of the TDIU claim. See Wages v. McDonald, 27 Vet. App. 233 (2015) (holding that a decision of TDIU under 38 C.F.R. § 4.16(b) by the Director is not evidence, and is not a policy decision, but is simply a decision or adjudication that is adopted by the RO and reviewed de novo by the Board). In this regard, the Director's decision did not address the Veteran's level of education, special training, and previous work experience, as it related to his ability to secure or follow a substantially gainful occupation. Here, the Board finds the Veteran's SSA determination particularly persuasive in determining whether he was able to secure or follow a substantially gainful occupation prior to February 1, 2019. While SSA determinations are not binding on the Board, it is the duty of the Board to assess the credibility and weight to be given such evidence. Washington v. Derwinski, 1 Vet. App. 459, 465-66 (1991); Wood v. Derwinski, 1 Vet. App. 190, 193 (1991); see also Murincsak v. Derwinski, 2 Vet. App. 363, 372 (1992) (finding that SSA determinations should be given appropriate consideration and weight in determining to award or deny an appellant TDIU). Notably, a March 2011 SSA disability determination found the Veteran was disabled for SSA purposes due to several disabilities, including due to severe impairments with his service-connected left knee disability and pes planus. The March 2011 SSA determination noted that the Veteran reported sleeping poorly due to his pain and found that the Veteran was unable to perform any past relevant work as a result of his physical impairments. Additionally, the determination noted that the Veteran's job skills do not transfer to other occupations within his residual functional capacity. The Board finds the SSA determination probative based on its analysis of the evidence, which included an analysis of the pertinent medical evidence in the Veteran's claims file, and thus it is entitled to probative value. In coming to this conclusion, the Board only considers the evidence as it pertains to the service-connected disabilities and the transferability of his education and work experience to other occupations. Additionally, the Board finds that the medical records corroborate that the Veteran experienced work-related inabilities with his service-connected disabilities prior to February 1, 2019. In a July 2011 VA examination for his left knee, the Veteran reported that he was no longer able to work in construction, had to have someone come in to clean his house, that he had to cook sitting down, and that he could not drive or operate a vehicle with a clutch. He also reported that he required a cane for ambulation. The examiner indicated that the effect of the condition on the Veteran's usual occupation was that he would be limited with crouching and walking. At the time of a March 2012 Disability Benefits Questionnaire for the Veteran's right carpal tunnel syndrome with radiculopathy, the Veteran was noted to have functional impairment as to incoordination, with an impaired ability to execute skilled movements smoothly. In March 2012, the Veteran was also noted to have an impaired grip, with inability to use the right hand for fine motor movement. In August 2013 and March 2014, the Veteran underwent several VA examinations for his service-connected disabilities, which included August 2013 findings that his service-connected left ankle condition would more likely than not prevent physically demanding employment, as the Veteran demonstrated he would not be able to stand, walk, lift, push, pull, carry, or work overhead repetitively for prolonged periods of time. Findings from March 2014 VA examinations indicate that the Veteran's bilateral ankle condition would more likely than not result in at least moderate difficulty with prolonged weight bearing and repetitive activities such as standing, walking, bending, pushing, pulling, lifting, carrying, and working overhead. During a March 2014 VA examination for the Veteran's bilateral hearing loss, he indicated that he had to look at people to understand what they were saying even with hearing aids. He also added that he had to ask people to repeat themselves. In April 2016, a VA examiner opined that the Veteran's right upper extremity carpal tunnel syndrome would result in minimal limitations to pushing, pulling, lifting, carrying, and working overhead, especially if these tasks comprised most of the work activities on a daily basis. Additionally, during the September 2016 Board hearing, the Veteran reported that he could no longer work as an electrician due to his service-connected carpal tunnel and feet conditions. See Board hearing transcript, p. 7. He also explained that when he tries to use a keyboard his hands cramp up, which he believes is due to his service-connected right carpal tunnel syndrome. Id. at p. 9. He further reported that the constant pain he experiences from his service-connected disabilities interferes with his ability to concentrate. See February 2015 Notice of Disagreement. A July 2019 VA treatment record reflects that the Veteran's left knee pain progressed and that his knee had been swelling quite severely, while a March 2017 VA treatment record reflects that the Veteran fell regularly and used a cane for his bad knee. Based on the above, the Board finds that the Veteran's service-connected disabilities rendered him unable to secure and follow a substantially gainful occupation prior to February 1, 2019. The evidence conclusively shows that the Veteran's service-connected left knee, bilateral ankle, and right carpal tunnel syndrome with radiculopathy causes impairment with standing, walking, bending, pushing, pulling, gripping, performing fine motor movements with the hands, lifting, carrying, and working overhead. The evidence also establishes that the Veteran ambulated with a cane during this period. The Board finds that his functional impairment limits the Veteran's ability to perform any occupational task that requires physical activity, to include his former employment as an electrician, forklift operator, and warehouse supervisor. While the evidence does not establish that the Veteran would be precluded from non-strenuous employment, this is outweighed by the probative SSA determination that the Veteran's past work did not provide transferrable skills. This finding is also supported by the Veteran's highest level of education as a high school diploma, with additional technical training as an electrician. Even assuming the Veteran had skills that would transfer to a non-strenuous occupation, his ability to perform such an occupation would undoubtedly be limited by his inability to stand for prolonged periods, the functional impairment caused by his service-connected carpal tunnel with radiculopathy, and the hearing impairment caused by his service-connected hearing loss and tinnitus. Based on the foregoing, the Board finds that the Veteran's service-connected disabilities rendered him unable to secure and follow a substantially gainful occupation prior to February 1, 2019. Additionally, the evidence shows work-related inabilities caused by his service-connected disabilities that rendered him unemployable dating back to as early as March 2011; more than one year prior to his August 2013 claim for TDIU. Accordingly, the increase is effective the date of claim, August 28, 2013. See 38 C.F.R. § 3.400(o)(2); see Gaston v. Shinseki, 605 F.3d 979 (Fed. Cir. 2010) Accordingly, a grant of TDIU is warranted on an extraschedular basis for the period from August 28, 2013, to February 1, 2019. REASONS FOR REMAND Entitlement to a compensable rating for painful extension of the left knee, to include restoration of a 10 percent rating is remanded. When this matter was before the Board in September 2020, it was remanded, in pertinent part, to obtain a retrospective opinion. The requested opinion was necessary to assess the severity of the left Veteran's left knee disability during the period surrounding the reduction of his 10 percent rating for painful extension of the left knee. To that extent, the examiner was specifically instructed to comment on whether range of motion measurements for active motion, passive motion, weight-bearing, and/or non-weight-bearing, including as applicable after repeated use over time and/or during flare-ups, could be estimated for VA examinations conducted in August 2013, April 2016, and January 2020. The September 2020 remand further instructed that if the examiner was unable to provide a retrospective opinion as to these specific range of motion findings, he or she should clearly explain so in the report. The Veteran was afforded a VA medical opinion and an addendum medical opinion in March 2021 and May 2021, respectively. The March 2021 examiner discussed the range of motion findings at the time of the previous examinations, but failed to provide the additional range of motion estimates as instructed by the September 2020 remand. Likewise, while the May 2021 examiner noted the findings for active range of motion testing during the previous examinations and the Veteran's reports as they related to flare-ups and functional loss, no additional range of motion estimates were provided as instructed. Additionally, neither examiner commented as to why such estimates could not be provided. Based on the foregoing, the Board finds remand is necessary to obtain an addendum medical opinion. A resolution of this matter hinges on findings that address the severity of the Veteran's left knee disability, expressed in degrees of range of motion, as relevant to the criteria of Diagnostic Codes 5260 and 5261. The matters are REMANDED for the following action: 1. Obtain a retrospective medical opinion to determine the severity of the Veteran's service-connected left knee disability. The claims file, including a copy of this remand, must be made available to, and be reviewed by the examiner. The examiner is asked to respond to the following: a.) Based on the Veteran's lay statements and the other evidence of record, the examiner should provide an opinion, if possible, estimating range of motion measurements for active motion, passive motion, weight-bearing, and/or non-weight-bearing, including as applicable after repeated use over time and/or during flare-ups, for the other VA examinations conducted during the appeal period. See, e.g., July 2011, August 2013, April 2016, and January 2020 VA examination reports. If the examiner is unable to provide a retrospective opinion as to these specific range of motion findings, he or she should clearly explain so in the report and must state whether the need to speculate is caused by a deficiency in the state of general medical knowledge, i.e., no one could respond given medical science and the known facts, or by a deficiency in the record or the examiner, i.e., additional facts are required, or the examiner does not have the needed knowledge or training. MARJORIE A. AUER Veterans Law Judge Board of Veterans' Appeals Attorney for the Board A. Marsh II, Associate 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.