Citation Nr: 21069920
Decision Date: 11/22/21	Archive Date: 11/22/21

DOCKET NO. 10-41 150
DATE: November 22, 2021

ORDER

Entitlement to service connection for scar tissue with numbness is dismissed.

As new and material evidence has been received, the Veteran's claim to entitlement to service connection for a cervical spine disability is reopened.

Entitlement to service connection for fibromyalgia is denied.

Entitlement to a compensable evaluation for bilateral hearing loss is denied.

Entitlement to an increased rating in excess of 10 percent prior to September 28, 2009 for lumbar strain stenosis status post interlaminar decompression surgery, degenerative joint disease (back disability) is denied.

Entitlement to an increased rating in excess of 20 percent from September 28, 2009 to September 21, 2015 to not include the temporary 100 percent evaluation from May 18, 2015 to August 1, 2015, for lumbar strain stenosis status post interlaminar decompression surgery, degenerative joint disease is denied.

Entitlement to an increased rating in excess of 40 percent from September 21, 2015 for lumbar strain stenosis status post interlaminar decompression surgery, degenerative joint disease is denied.

REMANDED

Entitlement to service connection for a cervical spine disability is remanded.

Entitlement to service connection for a left knee disability is remanded.

Entitlement to service connection for a right knee disability is remanded.

Entitlement to service connection for a left ankle disability is remanded.

Entitlement to service connection for a right ankle disability is remanded.

Entitlement to service connection for a sleep disorder to include sleep apnea is remanded.

Entitlement to a total disability rating based on individual unemployability (TDIU) prior to September 21, 2015 is remanded.

FINDINGS OF FACT

1. The agency of original jurisdiction (AOJ) granted service connection for scar tissue with numbness in a February 2016 rating decision.

2. A March 2009 rating decision denied entitlement to service connection for a cervical spine disability. The Veteran was notified of that decision, but did not initiate an appeal, and new and material evidence was not received within one year of the notice of the rating decision, therefore the decision became final.

3. The evidence received since that decision, when considered by itself or in connection with evidence previously assembled, relates to unestablished facts necessary to substantiate the claim, and raises a reasonable possibility of substantiating the claim of service connection for a cervical spine disability.

4. The Veteran does not have a current diagnosis of fibromyalgia.

5. The Veteran's service-connected bilateral hearing loss has been manifested by no worse than level I hearing acuity in the right ear and level I hearing acuity in the left ear

6. The evidence on record prior to September 28, 2009 does not show a finding of the Veteran's forward flexion of the back disability that is greater than 60 degrees but not greater than 85 degrees or combined range of motion of the thoracolumbar spine of 120 degrees but not greater than 235 degrees, and no manifestation of muscle spasms or guarding severe enough to result in abnormal spinal contour; no forward flexion of 30 degrees or less even when considering flares and functional impairment on use; ankylosis; or incapacitating episodes of IVDS.

7. The evidence on record from September 28, 2009 to September 21, 2015 to not include the temporary 100 percent evaluation from May 18, 2015 to August 1, 2015 does not show a finding of the Veteran's forward flexion of the thoracolumbar spine of 30 degrees or less even when considering flareups and functional impairment on use; ankylosis; or incapacitating episodes of IVDS.

8. Review of the evidence on record from September 21, 2015 does not show a finding of the Veteran's back disability displayed no unfavorable ankylosis or vertebral fracture of the spine; or incapacitating episodes of IVDS having a total duration of at least 6 weeks during any 12-month period.

CONCLUSIONS OF LAW

1. The criteria for dismissal for the issue entitlement to service connection for scar tissue with numbness have been met. 38 U.S.C. § 7105 ; 38 C.F.R. § 19.55.

2. The March 2009 rating decision, which denied the Veteran's claim of entitlement to service connection for a cervical spine disability, is final. 38 U.S.C. § 7105 (c); 38 C.F.R. §§ 3.104, 3.156, 20.201, 20.302, 20.1103.

3. Evidence received since the March 2009 rating decision in relation to the Veteran's claim for entitlement to service connection for a cervical spine disability is new and material; therefore, the claim is reopened. 38 U.S.C. § 5108; 38 C.F.R. § 3.156.

4. The criteria for service connection for fibromyalgia have not been met. 38 U.S.C. §§ 1101, 1110, 1131; 38 C.F.R. §§ 3.102 , 3.159, 3.303, 3.304, 3.310, 4.2.

5. The criteria for a compensable evaluation for bilateral hearing loss have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.1, 4.3, 4.7, 4.85, Diagnostic Code 6100.

6. The criteria for a rating in excess of 10 percent for a back disability prior to September 28, 2009, have not been met. 38 U.S.C. §§ 1155, 5102, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.326, 4.1, 4.7, 4.71a, Diagnostic Code 5237.

7. The criteria for a rating in excess of 20 percent for a back disability for the September 28, 2009 to September 21, 2015 to not include the temporary 100 percent evaluation from May 18, 2015 to August 1, 2015, have not been met. 38 U.S.C. §§ 1155, 5102, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.326, 4.1, 4.7, 4.71a, Diagnostic Code 5237.

8. The criteria for a rating in excess of 40 percent for a back disability from September 21, 2015, have not been met. 38 U.S.C. §§ 1155, 5102, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.326, 4.1, 4.7, 4.71a, Diagnostic Code 5242-5238.

REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

The Veteran served in active-duty service with the Army from September 1990 to July 1995 to include Reserve service.

This matter is on appeal from a June 2015 rating decision. The Veteran testified at a May 2014 hearing before a Veterans Law Judge (VLJ) concerning the evaluation of a back disability; a transcript of the hearing has been associated with the claims record. The Board remanded this appeal in July 2014 and September 2020 for additional development.

The Board notes that in the September 2020 Board remand, the issues on appeal included increased evaluations for the Veteran's back disability and bilateral hearing loss; entitlement to service connection for left lower extremity radiculopathy; service connection for left and right knee disability; right and left ankle disability; sleep disorder; cervical spine disability; fibromyalgia; scar tissue with numbness; and TDIU prior to September 21, 2015.

A May 2021 rating decision granted service connection for a left lower extremity radiculopathy. As such, the remaining issues before the Board are increased evaluations for the Veteran's back disability and bilateral hearing loss; entitlement to service connection for left and right knee disability; right and left ankle disability; sleep disorder; cervical spine disability; fibromyalgia; scar tissue with numbness; and TDIU prior to September 21, 2015.

Dismissal

It is well-established judicial precedent that when there is no case or controversy, or when a once live case or controversy becomes moot, an appellate body lacks jurisdiction. The law provides that the Board may dismiss an appeal that fails to allege specific error of fact or law in the determination being appealed. 38 U.S.C. § 7105.

Concerning the issue of scar tissue with numbness, the Board notes that the Veteran raised this issue in September 2013. In A February 2016 rating decision, service connection for a surgical scar on the back was granted. 

The Board notes that it is well-established that the initial rating is a down-stream issue which must be separately appealed after a grant of service connection. Grantham v. Brown, 114 F.3d 1156 (Fed. Cir. 1997). Effective March 24, 2015, regulations provide that an appeal or review must be submitted via a specific form provided by VA. 38 C.F.R. § 20.201 (a)(1). 

In a submitted February 2016 notice of disagreement, the Veteran listed the issue of surgical scar on the back with a note of "it hurts" along with seeking a percentage of 10 percent; however, the Board notes that the Veteran checked the box for seeking service connection and not for the evaluation of the disability. The Board also notes that a December 2017 rating decision increased the evaluation of the scar disability to 10 percent and indicated that this was considered a total grant of the benefits sought by the Veteran.

Review of the claims record does not show the Veteran submitted any statements or testimony relating to a scar other than the surgical scar on his back.

As the Veteran has been granted service connection for a scar, the respective claim has been rendered moot, and there is no outstanding error of fact or law for the Board to address. Thus, the appeal as to the issue of entitlement to service connection for scar tissue with numbness must be dismissed as the benefits sought have already been granted.

New and Material Evidence

In order to reopen a claim which has been denied by a final decision, the claimant must present new and material evidence. 38 U.S.C. § 5108  . New evidence means existing evidence not previously submitted to VA. Material evidence means existing evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. New and material evidence can be neither cumulative nor redundant of the evidence of record at the time of the last prior final denial of the claim and must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156 (a). For purposes of reopening a claim, the credibility of newly submitted evidence is generally presumed. See Justus v. Principi, 3 Vet. App. 510, 513 (1992) (in determining whether evidence is new and material, the "credibility" of newly presented evidence is to be presumed unless the evidence is inherently incredible or beyond the competence of the witness).

The language of 38 C.F.R. § 3.156  (a) creates a low threshold for finding new and material evidence and views the phrase "raises a reasonable possibility of substantiating the claim" as "enabling rather than precluding reopening." Evidence "raises a reasonable possibility of substantiating the claim," if it would trigger VA's duty to provide an examination in adjudicating a non-final claim. Shade v. Shinseki, 24 Vet. App. 110 (2010).

Concerning the Veteran's claim for a cervical spine disability, the issue was denied in a March 2009 rating decision. Evidence at the time of decision included the Veteran's service treatment records (STRs) and VA medical treatment records. The rating decision determined that the evidence did not show the Veteran with a current diagnosis or evidence of an inservice event or injury in the Veteran's STRs.  The Veteran did not appeal the issue within one year of the decision and it became final.

New evidence since that decision includes lay statements, VA and private medical treatment records, and the Veteran's substantive appeal. The Board notes that during a January 2010 Social Security Administration (SSA) medical examination, the Veteran reported neck soreness for the past 16 years to include aches and stiffness. The medical treatment record also shows the Veteran with a reported history of neck pain to include undergoing a surgical procedure in September 2014.

The provided records raise a reasonable possibility of substantiating the claim. Therefore, new and material evidence has been received, and the claim for service connection for a cervical spine disability is reopened. See Shade v. Shinseki, 24 Vet. App. 110, 118 (2010).

Service Connection

Service connection is granted on a direct basis when there is competent, credible evidence of (1) a current disability, (2) in-service incurrence or aggravation of an injury or disease, and (3) a nexus, or link, between the current disability and the in-service disease or injury. 38 U.S.C. §§ 1110, 1131; Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009); 38 C.F.R. § 3.303 (a), (d).

The Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive and provide the reasons for its rejection of any material evidence favorable to the claimant. See Wensch v. Principi, 15 Vet. App. 362, 367 (2001). Board determinations with respect to the weight and credibility of evidence are factual determinations going to the probative value of the evidence. Layno v. Brown, 6 Vet. App. 465, 469 (1994).

In relevant part, 38 U.S.C. § 1154 (a) requires that the VA give "due consideration" to "all pertinent medical and lay evidence" in evaluating a claim to disability. Lay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional." Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). In fact, competent medical evidence is not necessarily required when the determinative issue involves either medical etiology or a medical diagnosis. Id. at 1376-77; see also Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006); Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009).

When a claimant seeks benefits and the evidence is in relative equipoise, the claimant prevails. 38 U.S.C. § 5107 (b); see Gilbert v. Derwinski, 1 Vet. App. 49 (1990); 38 C.F.R. § 3.102. The preponderance of the evidence must be against the claim for benefits to be denied. See Alemany v. Brown, 9 Vet. App. 518 (1996).

Concerning the issue of fibromyalgia, the Board notes that the Veteran filed a claim for entitlement to service connection for fibromyalgia in September 2013.

However, review of the claims record does not show any objective medical evidence to show a current diagnosis for fibromyalgia. The Veteran has not submitted any competent or probative evidence to indicate the Veteran has fibromyalgia or has symptoms relating to fibromyalgia. The appellant has been allowed the opportunity to furnish medical evidence in support of the claim but has not done so. 38 U.S.C. § 5107 (a).

The Board notes that the Veteran had not received a VA examination for his claimed fibromyalgia. However, the Board finds VA was not obliged to provide an examination or obtain an opinion on the Veteran's claimed fibromyalgia because there was no competent evidence or lay evidence that shows or suggests the Veteran with fibromyalgia. See McLendon v. Nicholson, 20 Vet. App. 79 (2006); see also 38 U.S.C. § 5103A (d), 38 C.F.R. § 3.159 (c)(4)(i). As the threshold for finding that the evidence of record indicates that the claimed disability or symptoms may be related was not met, VA was not obliged to provide an examination or obtain an opinion in response to this claim. McLendon, 20 Vet. App. at 83

As such, the Board finds the Veteran does not have a current disability of a fibromyalgia at any time during the pendency of the claim. 38 U.S.C. §§ 1110  , 1131, 5107(b); Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992); Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009); Romanowsky v. Shinseki, 26 Vet. App. 289, 294 (2013); McClain v. Nicholson, 21 Vet. App. 319, 321 (2007); 38 C.F.R. § 3.303 (a), (d).

Absent such showing, there can be no basis for granting service connection for such disability. As the preponderance of the evidence is against the claim for service connection, the benefit of the doubt doctrine is not for application. See 38 U.S.C. § 5107 (b); 38 C.F.R. § 4.3.

Increased Rating

Disability evaluations are determined by the application of VA's Schedule for Rating Disabilities (Rating Schedule), 38 C.F.R. Part 4. The percentage ratings contained in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and the residual conditions in civil occupations. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.321(a), 4.1. 

Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. 

Where entitlement to compensation has already been established and an increase in the disability rating is at issue, it is the present level of disability that is of primary concern. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994). Nevertheless, where the evidence contains factual findings that show a change in the severity of symptoms during the course of the rating period on appeal, assignment of staged ratings would be permissible. See Fenderson v. West, 12 Vet. App. 119 (1999).

Bilateral hearing loss

Evaluations of defective hearing range from noncompensable to 100 percent based on organic impairment of hearing acuity as measured by the results of a controlled speech discrimination test (Maryland CNC) together with the average hearing threshold level measured by puretone audiometry tests in the frequencies of 1000, 2000, 3000, and 4000 cycles per second (Hertz). To evaluate the degree of disability from service-connected defective hearing, the rating schedule establishes 11 auditory hearing acuity levels designated from Level I, for essentially normal hearing acuity, through Level XI, for profound deafness. 38 C.F.R.§ 4.85, Tables VI and VII, Diagnostic Code 6100. Disability ratings for hearing loss are derived from a mechanical application of the rating schedule to the numeric designations resulting from audiometric testing. See Lendenmann v. Principi, 3 Vet. App. 345 (1992).

An exceptional pattern of hearing impairment occurs when the puretone threshold at each of the four specified frequencies (1000, 2000, 3000, and 4000 Hertz) is 55 decibels or more. In that situation, 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. 38 C.F.R. § 4.86(a). Further, when the average puretone 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 Roman numeral. Each ear will be considered separately. 38 C.F.R. § 4.86(b).

The Veteran is currently service connected for bilateral hearing loss evaluated as noncompensable under Diagnostic Code 6100.

The Veteran was afforded a May 2015 VA examination. The Veteran reported that he could not hear out of his left ear and used his right ear to listen; the Veteran stated that he could not hear his wife or child and would need to turn everything "sky high."

The Board notes that when the Veteran's puretone threshold levels were tested, the examiner noted the Veteran's results were "initially exaggerated" but improved following reinstruction to a consistent level to be considered valid.

However, when conducting the Maryland CNC test, the examiner did not find the speech discrimination scores to be not appropriate for the Veteran; the examiner found the scores to be unreliable and observed the Veteran "did not seem to be trying very hard and would skip words without even attempting a guess."

 As such, the Board finds the May 2015 VA examination results to be inaccurate and therefore affords it less probative value.

The Veteran was afforded a January 2016 VA examination. The Veteran reported difficulty understanding speech with competing sounds or if he was unable to see the speaker's face. Upon testing, the Veteran's pure tone threshold levels in decibels were measured as followed:

 	 	 	HERTZ	 	 

 	1000	2000	3000	4000	AVG

RIGHT	35	40	55	65	48.75

LEFT	40	45	55	55	48.75

Speech recognition scores based on the Maryland CNC Test was 100 percent for the right ear and 100 percent for the left ear. 

Applying the air conduction results to the applicable criteria, under Table VI, the right ear pure tone threshold average of 48.75 decibels combined with the right ear speech discrimination of 100 percent results in a Roman numeral designation of I, and the left ear pure tone threshold average of 48.75 decibels when combined with the left ear speech recognition of 100 percent results in a Roman numeral designation of I. Application of these findings to Table VII corresponds to a noncompensable rating under 38 C.F.R. § 4.85, Diagnostic Code 6100.

The Veteran was afforded a March 2021 VA examination. The Veteran noted that it was difficulty to hear words clearly in sound and expressed frustration talking to others. Upon testing, the Veteran's pure tone threshold levels in decibels were measured as followed:

 	 	 	HERTZ	 	 

 	1000	2000	3000	4000	AVG

RIGHT	35	50	60	65	53

LEFT	35	50	55	65	51

Speech recognition scores based on the Maryland CNC Test was 94 percent for the right ear and 94 percent for the left ear. 

Applying the air conduction results to the applicable criteria, under Table VI, the right ear pure tone threshold average of 53decibels combined with the right ear speech discrimination of 94 percent results in a Roman numeral designation of I, and the left ear pure tone threshold average of 51 decibels when combined with the left ear speech recognition of 94 percent results in a Roman numeral designation of I. Application of these findings to Table VII corresponds to a noncompensable rating under 38 C.F.R. § 4.85, Diagnostic Code 6100.

After review of the record, the Board finds that the preponderance of evidence is against a finding for a compensable evaluation for bilateral hearing loss. Based on application of VA's method for evaluating hearing loss and the private and VA examinations of record, the Board finds that these evaluations do not provide a basis for awarding a compensable evaluation for bilateral hearing loss.

Aside from the VA examinations in January 2016 and March 2021, there are no other audiometric testing results which comply with the requirements of 38 C.F.R. § 4.85 for rating purposes during the applicable period.

Although the Veteran has stated his hearing is worse than the criteria associated with a non-compensable rating, as addressed above, evaluation of the severity of the Veteran's hearing loss requires the mechanical application of rating criteria to objectively obtained audiometric testing results. See Lendenmann v. Principi, 3 Vet. App. 345 (1992). 

The current non-compensable rating is reflected by the rating evidence of record and there is no indication that the findings in the January 2016 and March 2021 VA audiological examinations are inadequate.

Accordingly, the evidence is not sufficient to demonstrate that the Veteran's bilateral hearing loss meets the criteria for a compensable evaluation.38 C.F.R. § 4.85.

As the preponderance of the evidence is against a compensable evaluation for bilateral hearing loss, there is no doubt to be resolved; and an increased rating is not warranted. 38 U.S.C. § 5107(b); 38 C.F.R. §§ 3.102, 4.3.

Back disability

The Veteran is currently service connected for a back disability evaluated at 10 percent prior to September 28, 2009; 20 percent from September 28, 2009 to September 21, 2015; and at 40 percent from September 21, 2015 evaluated under Diagnostic code 5242-5238.

A hyphenated diagnostic code is used when a rating under one diagnostic code requires use of an additional diagnostic code to identify the basis for the evaluation assigned; the additional code is shown after the hyphen.

The Board notes that during the pendency of the appeal, portions of the rating schedule addressing the musculoskeletal system were revised effective February 7, 2021; however, the diagnostic codes used to evaluate the Veteran's lumbar degenerative disc disease was not changed.

Disability of the musculoskeletal system is primarily the inability, due to damage or infection in parts of the system, to perform the normal working movements of the body with normal excursion, strength, speed, coordination, and endurance. 38 C.F.R. § 4.40. Functional loss may be due to pain, supported by adequate pathology and evidenced by the visible behavior in undertaking the motion. 38 C.F.R. § 4.59 (discussing facial expressions such as wincing, muscle spasm, crepitation, etc.). Weakness is as important as limitation of motion, and a part that becomes painful on use must be regarded as seriously disabled. Excess fatigability and incoordination should be taken into account in addition to more movement than normal, less movement than normal, and weakened movement. 38 C.F.R. § 4.45.

The intent of the schedule is to recognize painful motion with joint or periarticular pathology as productive of disability. It is the intention to recognize actually painful, unstable, or malaligned joints, due to healed injury, as entitled to at least the minimum compensable rating for the joint. See 38 C.F.R. § 4.59. Although the first sentence of 38 C.F.R. § 4.59 refers only to arthritis, the regulation applies to joint conditions other than arthritis. Burton v. Shinseki, 25 Vet. App. 1, 3-5 (2011).

In evaluating disabilities of the musculoskeletal system, it is necessary to consider, along with the schedular criteria, functional loss due to flare-ups of pain, fatigability, incoordination, pain on movement, and weakness. DeLuca v. Brown, 8 Vet. App. 202 (1995).

Although pain may cause functional loss, pain itself does not constitute functional loss. Rather, pain must affect some aspect of "the normal working movements of the body," such as "excursion, strength, speed, coordination, and endurance," in order to constitute functional loss. Mitchell v. Shinseki, 25 Vet. App. 32, 38-43 (2011) (quoting 38 C.F.R. § 4.40 ).

The United States Court of Appeals for Veterans Claims (Court) clarified that although pain may be a cause or manifestation of functional loss, limitation of motion due to pain is not necessarily rated at the same level as functional loss where motion is impeded. See Mitchell v. Shinseki, 25 Vet. App. 32 (2011); cf. Powell v. West, 13 Vet. App. 31, 34 (1999); Hicks v. Brown, 8 Vet. App. 417, 421 (1995); Schafrath, at 592. Instead, the Mitchell Court explained that pursuant to 38 C.F.R. §§ 4.40 and 4.45, the possible manifestations of functional loss include decreased or abnormal excursion, strength, speed, coordination, or endurance (38 C.F.R. § 4.40 ), as well as less or more movement than is normal, weakened movement, excess fatigability, and pain on movement (as well as swelling, deformity, and atrophy) that affects stability, standing, and weight-bearing (38 C.F.R. § 4.45 ).

For purposes of 38 C.F.R. § 4.59, objectively confirmed limitation of motion must be corroborated by a person, either lay or medical professional, and may not be satisfied by the Veteran's own observations. Id. 

The most recent amendment to 38 C.F.R. § 4.71a changed the Diagnostic Codes for spine disorders to 5235 to 5243, and spine disorders are rated under the General Rating Formula for Diseases and Injuries of the Spine. 

Under the applicable criteria, the General Rating Formula for Diseases and Injuries of the Spine provides that a rating of 10 percent is assignable for forward flexion of the thoracolumbar spine greater than 60 degrees but not greater than 85 degrees. A 20 percent is assignable for forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees. A 40 percent rating is assignable where forward flexion of the thoracolumbar spine is 30 degrees or less, or there is favorable ankylosis of the entire thoracolumbar spine. A 50 percent rating is assignable for unfavorable ankylosis of the entire thoracolumbar spine. A 100 percent rating is assignable for unfavorable ankylosis of the entire spine.

Ankylosis is the immobility and consolidation of a joint due to disease, injury or surgical procedure. See Lewis v. Derwinski, 3 Vet. App. 259 (1992) [citing Saunders Encyclopedia and Dictionary of Medicine, Nursing, and Allied Health at 68 (4th ed. 1987)]. 

The rating criteria define normal range of motion for the various spinal segments for VA compensation purposes. Normal forward flexion of the thoracolumbar spine is zero to 90 degrees, extension is zero to 30 degrees, left and right lateral flexion are zero to 30 degrees, and left and right lateral rotation are zero to 30 degrees. The combined range of motion refers to the sum of the range of forward flexion, extension, left and right lateral flexion, and left and right rotation. The normal combined range of motion of the thoracolumbar spine is 240 degrees. Further, the normal ranges of motion for each component of spinal motion are the maximum that can be used for calculation of the combined range of motion. See 38 C.F.R. § 4.71a , General Rating Formula for Diseases and Injuries of the Spine, Note (2), as added by 68 Fed. Reg. 51,454 (Aug. 27, 2003). 

Also, the current schedular rating criteria instructs to evaluate intervertebral disc syndrome (IVDS or degenerative disc disease) either under the general rating formula for diseases and injuries of the spine or under the formula for rating IVDS based on incapacitating episodes, whichever method results in the higher evaluation. 

The Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes (in pertinent part): a 10 percent disability rating is warranted with incapacitating episodes having a total duration of at least one week but less than 2 weeks during the past 12 months; a 20 percent disability rating is warranted with incapacitating episodes having a total duration of at least 2 weeks but less than 4 weeks during the past 12 months; a 40 percent disability rating is warranted with incapacitating episodes having a total duration of at least 4 weeks but less than 6 weeks during the past 12 months; and a 60 percent disability rating is warranted with incapacitating episodes having a total duration of at least 6 weeks during the past 12 months. 

Note (1): For purposes of evaluations under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes, an incapacitating episode is a period of acute signs and symptoms due to IVDS that requires bed rest prescribed by a physician and treatment by a physician. 

The evaluation criteria are meant to encompass and take into account the presence of pain, stiffness, or aching, which are generally present when there is a disability of the spine. Therefore, an evaluation based on pain alone would not be appropriate, unless there is specific nerve root pain, for example, that could be evaluated under the neurologic sections of the rating schedule. See 68 Fed. Reg. 51, 455 (Aug. 27, 2003).as less or more movement than is normal, weakened movement, excess fatigability, and pain on movement (as well as swelling, deformity, and atrophy) that affects stability, standing, and weight-bearing (38 C.F.R. § 4.45). 

In a March 2009 VA examination, the Veteran reported symptoms of stiffness, numbness, muscle spasm, and constant pain in the lower back described as sharp, aching and cramping. The Veteran did not report any loss of bowel or bladder control, incapacitating episodes, or flareups.

The Veteran reported impairment where "I have to do as little as possible due to everything causing increase in pain." The Veteran noted that raising his legs or getting in and out of vehicles would increase pain; the Veteran stated that he had difficulty bending or performing strenuous exercise due to pain.

Upon physical examination the Veteran demonstrated full range of motion (ROM) with pain at 75 degrees flexion and 20 degrees right lateral flexion. The examiner did not find any muscle spasm, ankylosis, or IVDS.

In a January 2010 SSA medical examination, the Veteran reported symptoms of constant and sharp low back pain associated with sever spasms; the Veteran stated that weight-bearing would exacerbate the pain. 

Upon physical examination the Veteran demonstrated flexion to only 30 degrees, "mildly reduced" extension, and minimal motion on lateral bending and rotation. The examiner found the Veteran was limited in his ability to prolong walk, sit, stand, squat, bend, heavy lifting, and endurance. The Veteran reported wearing a back brace and used a cane to assist with ambulation.

In a November 2009 VA examination, the Veteran reported symptoms of stiffness, fatigue, spasm, decreased motion and limited walking. The Veteran stated that he has suffered falls along with a hospitalization in 2000, however he denied any incapacitation in the past 12 months. The Veteran reported flareups with physical activity and functional impairment where he experienced difficulty with weight-bearing activities.

Upon physical examination, the Veteran demonstrated 35 degrees flexion with a combined ROM of 80 degrees. The Veteran reported pain on all motions and was able to perform repetitive motion without additional loss of motion.

The examiner found muscle spasm that did not result in abnormal gait or guarding. The examiner did not find evidence of ankylosis.

In a January 2010 VA medical center (VAMC) kinesiology note, the Veteran reported back issues where he was unable to pick things off of the ground. The Veteran demonstrated trunk flexion to "30 [inches]" and was noted be limited and stiff as well as spasms on other motions.

At a May 2012 Decision Review Officer (DRO) hearing, the Veteran testified to symptoms of pain, swelling and spasms that limited his walking and prevented him from jogging. The Veteran stated that in 2000 spasms sent him to the emergency room.

In a June 2012 VA examination for mental disorders, the Veteran reported increased pain and muscle spasms in his back that cause him to "hit the floor" and spend most of his time at home.

In a June 2012 VA examination, the Veteran reported symptoms of intermittent spasms since 2000 that have worsened; the Veteran described shooting pains with spasms that were aggravated by walking. The Veteran did not report flareups.

Upon physical examination the Veteran demonstrated 45 degrees flexion with a combined ROM of 170 degrees; the Veteran reported pain on all motion and demonstrated no loss of motion with repetition.

The examiner did not find evidence of guarding, muscle spasm, or IVDS. The examiner noted that diagnostic testing found arthritis but with no vertebral fracture.

The examiner noted the Veteran reported that he was unable to stand or walk very far and was unable to walk; the examiner then noted the Veteran had not sought pain management since February 2011. 

In September 2013 the Veteran reported limited ROM with pain in all motions. At the May 2014 hearing, the Veteran testified that his back had worsened, and he was unable to take out the garbage or cut the grass and tried to do as little as possible.

In April 2015 the Veteran reported a 20-year history of back and leg pain with ongoing complaints of lumbar stenosis. The treating provider scheduled surgery to treat the Veteran's back symptoms on May 18, 2015.

In a May 14, 2015 VA examination, the Veteran reported symptoms of constant pain with problems with his right leg. The Veteran did not report any flareups. Upon physical examination the Veteran demonstrated flexion to 20 degrees with 55 degrees in combined ROM. The Veteran reported pain on all motions and was unable to perform repetitive testing due to too much pain. The examiner noted the Veteran stated that he was to have an operation soon.

The examiner found the Veteran with guarding that did not result in abnormal gait or spinal contour. The examiner did not find the Veteran with ankylosis or IVDS.

In a January 2016 VA examination, the Veteran asserted that his condition had worsened. The Veteran reported flareups of increased pain and stiffness and functional impairment where he was limited in his ability to sit, walk, bend or use the stairs.

Upon physical examination, the Veteran demonstrated flexion to 30 degrees with a combined ROM of 115 degrees. The Veteran reported pain on all motions and pain with weight-bearing. The Veteran was able to perform repetitive motion without additional loss of motion. The examiner found the findings not consistent or inconsistent with the Veteran's reported flareups and repetitive motion.

The examiner estimated the Veteran's flexion on repetitive motion to 5 degrees flexion and 0 degrees during flareups. The examiner found evidence of guarding without abnormal gait or spinal contour but did not find the Veteran with ankylosis or IVDS.

In a January 2019 VA examination the Veteran reported symptoms of constant pain and only able to walk or sit for 5 minutes. The Veteran did not report any flareups or functional impairment.

Upon physical examination, the Veteran demonstrated flexion to 15 degrees with a combined ROM of 120 degrees. The examiner observed the Veteran was unable to bend over to pick up items from the floor and reported pain with flexion, extension and left lateral flexion. The Veteran did not report pain with weight-bearing.

The examiner did not find the Veteran with ankylosis, or IVDS. The examiner noted the Veteran with guarding but did not indicate whether this resulted in abnormal gait or spinal contour. The examiner also noted the Veteran performed repetitive testing but did not report the ROM.

In a May 2021 VA examination, the Veteran reported that his symptoms have progressed with stiffness, limited mobility, and dull aching pain. The Veteran reported flareups occurring 2 to 3 times a week that were painful and made it difficult to perform work-related or daily activities and functional impairment where he was unable to stand for long periods.

Upon physical examination the Veteran demonstrated flexion to 50 degrees with a combined ROM of 160 degrees. The Veteran reported pain on all motions. The Veteran was able to perform repetitive testing with no loss of motion. The examiner found the Veteran on repetitive testing and flareups demonstrated 40 degrees flexion with a combined ROM of 105 and 115 degrees.

The examiner did note the Veteran with pain with weight bearing and active that did not result in functional loss. The examiner stated that they were unable to record passive ROM as it was too unsafe to test.

The examiner found the Veteran with spasms and guarding that did not result in abnormal gait or spinal contour. The examiner did not find the Veteran with ankylosis or IVDS.

Upon review of all relevant evidence of record, the Board finds that the disability picture associated with the Veteran's back disability does not meet or more nearly approximate the criteria for an evaluation greater than 10 percent prior to September 28, 2009; in excess of 20 percent from September 28, 2009 to September 21, 2015 to not include the temporary 100 percent evaluation from May 18, 2015 to August 1, 2015; and in excess of 40 percent since September 21, 2015.

The Board notes that for a 20 percent evaluation, the Veteran must demonstrate forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees; or combined range of motion of the thoracolumbar spine not greater than 120 degrees; or muscles spasms or guarding severe enough to result in abnormal gait or spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis. 38 C.F.R. § 4.71a, Diagnostic Code 5243. For a 40 percent evaluation, the Veteran must demonstrate forward flexion of the thoracolumbar spine to 30 degrees or less, or with favorable ankylosis of the entire thoracolumbar spine.

Review of the medical treatment record prior to September 28, 2009 to include VA examinations does not show the Veteran's ROM for flexion of the back was measured or documented at 30 to 60 degrees or a combined ROM not greater than 120 degrees. The Veteran was not found to have muscle spasm, guarding, or localized tenderness not resulting in abnormal gait or abnormal spinal contour; or, vertebral body fracture with loss of 50 percent or more of the height.

There has been no showing of unilateral loss of lateral spine motion in the standing position, severe lumbosacral strain with listing of the whole spine to the opposite side, positive Goldthwaite's sign, marked limitation of forward bending in standing position, abnormal mobility on forced motion, or loss of strength. There was also no evidence of muscle atrophy. Without such pathology, an evaluation greater than 10 percent prior to September 28, 2009 is not warranted.

Review of the medical treatment record since from September 28, 2009 to September 21, 2015 to not include the temporary 100 percent evaluation from May 18, 2015 to August 1, 2015 to include VA examinations does not show forward flexion of the Veteran's lumbar spine disability was not limited to 30 degrees or less and the Veteran did not have any type of spinal ankylosis, including in consideration of functional loss due to pain on motion, weakness and fatigability. 

There has been no showing of unilateral loss of lateral spine motion in the standing position, severe lumbosacral strain with listing of the whole spine to the opposite side, positive Goldthwaite's sign, marked limitation of forward bending in standing position, abnormal mobility on forced motion, or loss of strength. There was also no evidence of muscle atrophy. Without such pathology, a disability evaluation greater than 20 percent is not warranted.

Concerning the Veteran's 40 percent evaluation since September 21, 2015; the Board notes that addressed above, a 40 percent evaluation is warranted if forward flexion of the thoracolumbar spine is 30 degrees or less or there is favorable ankylosis of the entire thoracolumbar spine. A 50 percent evaluation is warranted if there is unfavorable ankylosis of the entire thoracolumbar spine. A 100 percent evaluation is warranted for unfavorable ankylosis of the entire spine. 38 C.F.R. § 4.71a , General Rating Formula for Diseases and Injuries of the Spine. Review of the claims record during the applicable period to include VA examinations in January 2016, January 2019, and May 2021, do not show a finding of ankylosis. 

The Board also finds that there is no basis for the assignment of any higher rating based on consideration of any of the factors addressed in 38 C.F.R. §§ 4.40, 4.45 and DeLuca, 8 Vet. App. at 204-07. The competent medical evidence reflects that the assigned 10 percent, 20 percent, and 40 percent ratings for the applicable periods properly compensates the Veteran for the extent of functional loss resulting from any such symptoms.

The Board acknowledges that the Veteran had pain, weakened movement and less movement than normal. This is well documented in the lay and medical evidence. Furthermore, the Board again accepts that he has functional impairment, pain and limited motion as demonstrated by the VA examinations. See DeLuca, supra. The Board further finds that the Veteran's own reports of symptomatology to be credible. However, neither the lay nor medical evidence reflects the functional equivalent of impairment required for an evaluation in excess of 10 percent prior to September 28, 2009; 20 percent from September 28, 2009 to September 21, 2015; and 40 percent from September 21, 2015. 

The Board further finds that the Veteran's own reports of symptomatology to be credible. Lay people are competent to report on matters observed or within their personal knowledge. See Layno v. Brown, 6 Vet. App. 465, 470 (1994). Therefore, the Veteran is competent to provide statements of symptoms which are observable to his senses and there is no reason to doubt his credibility. However, the Board must emphasize that the Veteran is not competent to interpret accurately clinical findings pertaining to a lumbar spine disability as this requires highly specialized knowledge and training. 38 C.F.R. § 3.159 (a)(1). See also Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007).

The Board notes that there is no evidence of muscle atrophy or guarding resulting in abnormal gait and spinal contour in the VA examinations of record. Therefore, even when considering functional limitations due to pain and the other factors identified in 38 C.F.R. §§ 4.40, 4.45. 38 C.F.R. §§ 4.2, 4.3, 4.7, 4.45, 4.71a; DeLuca. 

With no objective evidence that the Veteran meets the criteria for an increased evaluation based on limitation of motion even considering subjective symptoms such as pain and tenderness, the Board concludes that the greater weight of evidence is against assigning an evaluation in excess of excess of 10 percent prior to September 28, 2009; 20 percent from September 28, 2009 to September 21, 2015; and 40 percent from September 21, 2015 as contemplated by the holding in Deluca.

The Board notes that the May 2021 VA examination found evidence of pain with weight bearing but do not include measurements of passive range of motion or specify range of motion with and without weight-bearing as they indicated it was too unsafe to test due to pain. See Correia v. McDonald, 28 Vet. App. 158 (2016).

However, generally, active range of motion testing produces more restrictive results than passive range of motion testing, in that passive range of motion testing requires the physician to force the joint through its motions. There is no indication that the range of motion testing in these examinations was performed other than on weight-bearing. 

Therefore, there is no prejudice to the Veteran in relying on these examinations that involved active range of motion testing because such results tend to produce the "worst case scenario" of impairment and thus would tend to support the highest possible rating."

The Board also notes that at the Veteran's November 2009, June 2012, May 2015, and January 2016 VA examinations the Veteran reported pain on all motions. The Court has clearly indicated that painful motion does not equate to limited motion. Mitchell, 25 Vet. App. at 41. In fact, the Court considered the argument that pain throughout all ranges should warrant the maximum rating and found that the "Secretary has persuasively argued that such an interpretation would lead to absurd results." Id. at 43. Indeed, nothing in the case law supports the contention that a Veteran should be given maximum disability ratings simply because he or she may experience pain throughout the range of motion. Id. at 43. Rather, pain must affect some aspect of the normal working movements of the body such as excursion, strength, speed, coordination, and endurance to constitute a functional loss and it is the presence of this functional loss that is the relevant question in assigning disability ratings. Id. 

As explained above, although there may be pain on all movement, there is no objective evidence that the Veteran's pain results in additional functional loss that would warrant an increased schedular rating during this period. The Veteran's statements of limitations are deemed credible and probative evidence, but such evidence does not show that any additional limitation due to pain does not more nearly approximate a finding of an evaluation in excess of 10 percent prior to September 28, 2009; 20 percent from September 28, 2009 to September 21, 2015; and 40 percent from September 21, 2015. See 38 C.F.R. § 4.45, 4.71a, Diagnostic Code 5242; DeLuca, 8 Vet. App. at 202 ; Mitchell v. Shinseki, 25 Vet. App. 32 (2011).

Regarding an increased evaluation based on incapacitating episodes, the Board notes that under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes, a higher rating of a 20 percent disability rating is warranted with incapacitating episodes having a total duration of at least 2 weeks but less than 4 weeks during the past 12 months, and 40 percent is warranted where the evidence reveals incapacitating episodes having a total duration of at least four weeks but less than six weeks during the past 12 months. 

However, the VA examinations of record do not show any findings of IVDS. Although the Veteran reported spasms in 2000 that sent him to the emergency room, the Veteran has not provided any documentation of the visit to be associated with the record to show that this was an incapacitation episode or related to IVDS. Accordingly, the provisions for evaluating intervertebral disc syndrome are also not for application for the Veteran's service-connected back disability because the evidence of record does not document any IVDS or incapacitating episodes as a result of IVDS. See 38 C.F.R. § 4.71, Diagnostic Code 5243.

Accordingly, the Board finds that the preponderance of the evidence is against the assignment of a rating evaluation in excess of 10 percent prior to September 28, 2009; 20 percent from September 28, 2009 to September 21, 2015; and 40 percent from September 21, 2015. Gilbert v. Derwinski, 1 Vet. App. 49 (1990); 38 U.S.C. § 5107; 38 C.F.R. § 3.102. As the preponderance of the evidence is against the award of an increased evaluation, the benefit of the doubt doctrine is not applicable. See 38 U.S.C. § 5107 (b); 38 C.F.R. §§ 4.3, 4.7.

REASONS FOR REMAND

The Board finds that remand is warranted for additional development.

Cervical spine disability

The Board notes that in a January 2010 Social Security Administration (SSA) medical examination, the Veteran reported neck soreness for the past 16 years to include symptoms of aches and stiffness. The Veteran also reported functional limitations affecting his ability to walk, sit, stand, squat, bend, endurance, and lifting weights; however, the examiner did not indicate which particular disability contributed to the limitations as the Veteran also reported symptoms related to a back and knee disability.

Review of the claims record shows the Veteran reported a history of symptoms relating to his neck to include pain and stiffness; the Board also notes that the Veteran in July 2014 reported that an MRI revealed cervical stenosis and myelopathy and subsequently underwent a September 2014 surgical procedure to treat his cervical spine symptoms.

The Board notes that in Saunders v. Wilkie, 886 F.3d 1356 (Fed. Cir. 2018), the Federal Circuit found that the term "disability" as used in 38 U.S.C. § § 1110 refers to the functional impairment of earning capacity, not the underlying cause of said disability and held that pain alone can serve as a functional impairment and therefore qualify as a disability. In other words, where pain alone results in functional impairment, even if there is no identified underlying diagnosis, it can constitute a disability. The Board also notes that that the Veteran's reported symptoms and diagnoses could have served as a current disability for service connection during the period of the appeal the disability was present. See McClain v. Nicholson, 21 Vet. App. 319, 322-23 (2007) (the fact that a disability has resolved during the appeal period does not preclude a finding of service connection for the disability).

Review of the record does not show that the Veteran has been afforded a VA examination regarding the nature and etiology of the Veteran's claimed cervical spine disability.

Sleep disorder to include obstructive sleep apnea

Review of the claims record shows a May 2013 sleep study that diagnosed the Veteran with clinically significant sleep apnea. However, the claims record does not show the Veteran has been afforded a VA examination regarding the nature and etiology of the Veteran's claimed sleep disorder to include obstructive sleep apnea.

Left and Right ankle disability

The Veteran was afforded VA examinations in May 2015 and May 2021. The May 2015 VA examiner did not find a current diagnosed disability for either the left or right ankle; however, in the May 2021 VA examination, the examiner diagnosed the Veteran with an ankle sprain. 

The Board notes that the Veteran at both examinations reported stepping into a hole during basic training that injured his ankle and reported issues with both ankles since. 

Although the May 2021 VA examiner diagnosed the Veteran with an ankle sprain, the examiner did not specify which ankle was affected and their opinion did not discuss the Veteran's reported statements on the nature and etiology of the ankle disability or explain why they were not considered.

As such, the Board finds the May 2021 opinion inadequate.

Left and Right knee disability

The Board notes that the Veteran's service treatment record shows complaints for left knee pain in October 1991 and October 1992 as well as right knee pain in April 1995. In a January 2010 SSA examination the Veteran reported chronic knee pain in both knees. In a May 2015 record, the treating provider noted that an x-ray found arthritis in both knees.

The Veteran was afforded a May 2015 and a May 2021 VA examination. The May 2015 VA examiner diagnosed the Veteran with a left knee disability but did not find a right knee disability diagnosis; however, the examiner did not address the January 2010 SSA exam findings or the April 1995 complaint of right knee pain.

In the May 2021 VA examination, the Veteran reported the onset in 1990 where he injured his lower legs and knees from basic training and later worsened when he fell down the stairs. The examiner diagnosed the Veteran with a left knee strain and gave a negative etiology opinion where there was no chronic left knee disability during the Veteran's service.

However, the examiner did not address the January 2010 SSA exam findings of bilateral knee pain or the April 1995 complaint of right knee pain in determining whether there was right knee disability; the examiner also did not address the Veteran's statements on the nature and etiology of his knee pain and did not explain why such statements were not considered.

As such, the Board finds the May 2021 opinions to be inadequate and remand warranted to obtain adequate opinions and examinations.

As the outcome of the remanded issues could have a significant impact on the Veteran's claim of entitlement to a TDIU, the issue of entitlement to a TDIU is inextricably intertwined with the remanded claims for service-connection and is also remanded. Harris v. Derwinski, 1 Vet. App. 180 (1991).

The matters are REMANDED for the following action:

1. Obtain and associate with the claims file all updated and outstanding treatment records. Any applicable VISTA imaging should be produced.

2. Request that the Veteran provide the names and addresses of any and all healthcare providers who provided treatment for the Veteran's claimed sleep disorder; cervical spine disability; left and right ankle disability; and left and right knee disability. After acquiring this information and obtaining any necessary authorization, obtain and associate any pertinent records with the claims folder.

(a.) If any records cannot be obtained after reasonable efforts have been made, issue a formal determination that such records do not exist or that further efforts to obtain such records would be futile, which should be documented in the claims file. The Veteran must be notified of the attempts made and why further attempts would be futile, and allowed the opportunity to provide such records, as provided in 38 U.S.C. § 5103A (b)(2) and 38 C.F.R. § 3.159(e).

3. Schedule a VA examination with an appropriate provider to determine the nature and etiology of the Veteran's sleep disorder; cervical spine disability; left and right ankle disability; and left and right knee disability. The complete record, to include a copy of this remand, must be made available to and reviewed by the examiner. The examination report must include a notation that this record review took place.

The examiner should respond to the following:

(a.) Identify each current cervical spine disability; left and right ankle disability; and left and right knee disability, which may include pain alone that rises to the level of functional impairment. If either disability existed during the appeal period but has resolved, this should be made clear.

(b.) The examiner should record in detail the Veteran's history of his claimed cervical spine disability; left and right ankle disability; and left and right knee disability and how they affect his ability to function.

(c.) Is it as least as likely as not (a 50 percent or greater probability) the Veteran's sleep disorder to include obstructive sleep apnea arose in service or is etiologically related to his military service?

(d.) For each cervical spine disability identified, whether resolved or active, please address whether it is at least as likely as note (a probability of 50 percent or greater) that such disability is etiologically related to the Veteran's military service?

If the Veteran is diagnosed with only pain, the examiner must determine whether such results in any functional impairment.

(e.) For each left ankle disability identified, whether resolved or active, please address whether it is at least as likely as note (a probability of 50 percent or greater) that such disability is etiologically related to the Veteran's military service?

If the Veteran is diagnosed with only pain, the examiner must determine whether such results in any functional impairment.

(f.) For each right ankle disability identified, whether resolved or active, please address whether it is at least as likely as note (a probability of 50 percent or greater) that such disability is etiologically related to the Veteran's military service?

If the Veteran is diagnosed with only pain, the examiner must determine whether such results in any functional impairment.

(g.) For each left knee disability identified, whether resolved or active, please address whether it is at least as likely as note (a probability of 50 percent or greater) that such disability is etiologically related to the Veteran's military service?

If the Veteran is diagnosed with only pain, the examiner must determine whether such results in any functional impairment.

(h.) For each left knee disability identified, whether resolved or active, please address whether it is at least as likely as note (a probability of 50 percent or greater) that such disability is etiologically related to the Veteran's military service?

If the Veteran is diagnosed with only pain, the examiner must determine whether such results in any functional impairment.

(i.) In addressing any of the above, the VA examiner should address and discuss the October 1991, October 1992, and April 1995 complaints of left and right knee pain from marches or sprints in the Veteran's service treatment records; the January 2010 SSA examination findings; the May 2015 and May 2021 VA examination findings to include the Veteran's statements of injury to the ankle and knees from stepping in a hole during basic training and falling down the stairs.

(j.) The examiner is advised that the Veteran is competent to report in-service events and treatment, and the Veteran's symptoms and history, and such reports and assertions must be specifically acknowledged and considered in formulating any opinions. If the examiner rejects the Veteran's reports, the examiner must provide a reason for doing so.

(k.) If the examiner cannot provide the above opinions, the examiner is advised that he/she must explain why the requested opinion cannot be provided (i.e., because the limits of medical knowledge had been exhausted or because further information to assist in making the determination is needed, such as additional records and/or diagnostic studies).

(l.) If the examiner cannot provide an answer because further information is needed to assist in making the determination, all reasonable steps to obtain the missing information should be exhausted before concluding that the answer cannot be provided.

(m.) If the VA examiner is unable to provide an opinion without resort to speculation, he or she should explain whether the inability is due to the limits of the examiner's medical knowledge, medical knowledge in general or there is evidence that, if obtained, would permit the opinion to be provided. A clearly stated rationale for any opinion offered should be provided.

4. After completion of the above and any additional development deemed necessary, the issues on appeal should be reviewed with consideration of all applicable laws and regulations. 

If any benefit sought remains denied, the Veteran should be furnished a supplemental statement of the case and be afforded the opportunity to respond. Thereafter, the case should be returned to the Board for appellate review.

 

 

MICHAEL LANE

Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board	J. Yang, Attorney-Advisor

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.