Citation Nr: 21070967 Decision Date: 11/29/21 Archive Date: 11/29/21 DOCKET NO. 17-37 239 DATE: November 29, 2021 ORDER Entitlement to a 20 percent rating, and no higher, for limited extension of the left knee from March 20, 2020, is granted. Entitlement to a 20 percent rating, and no higher, for limited extension of the right knee from March 20, 2020, is granted. Entitlement to a separate 10 percent rating, and no higher, for instability of the left knee from May 24, 2018, is granted. Entitlement to a separate 10 percent rating, and no higher, for instability of the right knee from May 24, 2018, is granted. REMANDED Entitlement to service connection for a cervical spine condition is remanded. Entitlement to service connection for swelling in the left hand is remanded. Entitlement to service connection for right side numbness in arm is remanded. FINDINGS OF FACT 1. The Veteran's left knee condition manifested functional impairment equivalent to extension limited to 15 degrees from March 20, 2020. 2. The Veteran's right knee condition manifested functional impairment equivalent to extension limited to 15 degrees from March 20, 2020. 3. The Veteran has manifested functional impairment equivalent to slight instability of the left knee from May 24, 2018. 4. The Veteran has manifested functional impairment equivalent to slight instability of the right knee from May 24, 2018. CONCLUSIONS OF LAW 1. The criteria for entitlement to a 20 percent rating, and no higher, for limited extension of the left knee from March 20, 2020, are met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.2, 4.10, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code (DC) 5261. 2. The criteria for entitlement to a 20 percent rating, and no higher, for limited extension of the left knee from March 20, 2020, are met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.2, 4.10, 4.40, 4.45, 4.59, 4.71a, DC 5261. 3. The criteria for entitlement to a separate 10 percent rating, and no higher, for instability of the left knee from May 24, 2018, are met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.2, 4.10, 4.40, 4.45, 4.59, 4.71a, DC 5257 (2020). 4. The criteria for entitlement to a separate 10 percent rating, and no higher, for instability of the right knee from May 24, 2018, are met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.2, 4.10, 4.40, 4.45, 4.59, 4.71a, DC 5257 (2020). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Army from July 1984 to July 2004. These matters come before the Board of Veterans' Appeals (Board) on appeal of a rating decision issued by the Department of Veterans Affairs (VA). The Veteran testified before the undersigned Veterans Law Judge during a hearing in November 2019. A transcript of the hearing is associated with the claims file. The Board previously remanded these matters in February 2020. The agency of original jurisdiction (AOJ) was asked to obtain a clarifying VA medical opinion regarding the etiology of the Veteran's cervical spine disorder, left hand swelling, and right arm numbness, and to obtain a VA examination reflecting the current severity of the Veteran's left and right knee disorders. The Veteran underwent a VA examination in March 2020, and the AOJ obtained addendum medical opinions in July 2020. After reviewing the record, the Board finds that there is substantial compliance with the prior remand directives as to the claim for increased ratings for the knees. The Board will now issue a decision on the merits of those issues. Regrettably, the opinions on the cervical spine, left hand, and right arm require further clarification before a decision may be made on the merits. Those matters will be addressed in the remand section below. 1. Entitlement to a 20 percent rating, and no higher, for limited extension of the left knee from March 20, 2020, is granted. 2. Entitlement to a 20 percent rating, and no higher, for limited extension of the left knee from March 20, 2020, is granted. 3. Entitlement to a separate 10 percent rating, and no higher, for instability of the left knee from May 24, 2018, is granted. 4. Entitlement to a separate 10 percent rating, and no higher, for instability of the right knee from May 24, 2018, is granted. Effective February 7, 2021, VA revised the criteria for evaluating musculoskeletal disorders. See Schedule for Rating Disabilities: Musculoskeletal System and Muscle Injuries, 85 Fed. Reg. 76453, 76464 (Nov. 30, 2020); Correction, 86 Fed. Reg. 8142, 8143 (Feb. 4, 2021) (changing the new diagnostic code applicable to plantar fasciitis from 5285 to 5269). VA's General Counsel has held that where a law or regulation changes during the pendency of a claim for a higher rating, the Board must first determine whether the revised version is more favorable to the veteran. In so doing, it may be necessary for the Board to apply both the old and new versions of the regulation. If the revised version of the regulation is more favorable, the retroactive reach of that regulation under 38 U.S.C. § 5110(g) can be no earlier than the effective date of that change. VA must consider the claim for a higher rating pursuant to the former and revised regulations during the latter part of this appeal. See VAOPGCPREC 3 2000, 65 Fed. Reg. 33,422 (2000); DeSousa v. Gober, 10 Vet. App. 461, 467 (1997). Therefore, the Board will consider the Veteran's claim under the old criteria prior to February 7, 2021, and both the old and new rating criteria from February 7, 2021. The criteria that is more favorable to the Veteran will be applied. In this regard, the Board observes that former regulation 38 C.F.R. § 19.9(b)(2) (now 38 C.F.R. § 20.904(d)(2)) provided that the Board has the authority to consider appeals in light of laws, including but not limited to statutes, regulations and court decisions that were not previously considered by the agency of original jurisdiction. In Disabled American Veterans v. Sec of Veterans Affairs, 327 F.3d 1339 (Fed. Cir. 2003), the United States Court of Appeals for the Federal Circuit (Federal Circuit) specifically upheld the validity of 38 C.F.R. § 19.9(b)(2) (now renumbered as 38 C.F.R. § 20.904(d)(2)). Id. at 1349. As such, pursuant to 38 C.F.R. § 20.904(d)(2), the Board will proceed to adjudicate the Veteran's claim. In rating 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). The functional loss may be due to absence of part, or all, of the necessary bones, joints and muscles, or associated innervation, or other pathology and evidenced by visible behavior of the claimant undertaking the motion. Weakness is as important as limitation of motion, and a part that becomes painful on use must be regarded as seriously disabled. 38 C.F.R. § 4.40. Pain on movement, swelling, deformity, or atrophy of disuse as well as instability of station, disturbance of locomotion, interference with sitting, standing, and weight bearing are relevant considerations for determination of joint disabilities. 38 C.F.R. § 4.45. Painful, unstable, or malaligned joints, due to healed injury, are entitled to at least the minimal compensable rating for the joint. 38 C.F.R. § 4.59; Burton v. Shinseki, 25 Vet. App. 1 (2011) (holding that 38 C.F.R. § 4.59 applies to disabilities other than arthritis). However, painful motion alone is not a functional loss without some restriction of the normal working movements of the body. Mitchell v. Shinseki, 25 Vet. App. 32, 43 (2011). In Correia v. McDonald, 28 Vet. App. 158 (2016), the Court held that the final sentence of 38 C.F.R. § 4.59 requires that the examiner record the results of range of motion testing "for pain on both active and passive motion [and] in weight-bearing and non-weight-bearing and, if possible, with range of motion measurements of the opposite undamaged joint." In Sharp v. Shulkin, 29 Vet. App. 26 (2017), the Court held that VA examiners must obtain information about the severity, frequency, duration, precipitating and alleviating factors, and extent of functional impairment of flare ups from the veterans themselves, when a flare-up is not observable at the time of examination. Such information must be considered in rating the Veteran's functional impairment. Under 38 C.F.R. § 4.71a, DC 5256, a 30 percent rating is assigned for favorable ankylosis in full extension, or in slight flexion between 0 and 10 degrees, a 40 percent rating is assigned favorable ankylosis in flexion between 10 and 20 degrees, a 50 percent rating is assigned for favorable ankylosis in flexion between 20 and 45 degrees, and a 60 percent rating is assigned for extremely unfavorable ankylosis in flexion at an angle of 45 degrees or more. Prior to the regulatory change, 38 C.F.R. § 4.71a DC 5257, provided for a 10 percent rating for slight recurrent subluxation or lateral instability; a 20 percent rating is warranted for moderate recurrent subluxation or lateral instability; and a 30 percent rating is warranted for severe recurrent subluxation or lateral instability. The terms "slight", "moderate", and "severe" are not defined in the regulations. Absent an express definition, it is presumed that VA regulations employ words using their ordinary dictionary meanings. "Slight" is generally defined as "small in size, degree, or amount"; "moderate" is generally defined as "of average or medium quality, amount, scope, range, etc."; and "severe" is defined as "extremely intense.'" Webster's New World Dictionary 1038, 871, 1071 (3d ed. 1988)). The Board must consider all factors that result in an equitable and just determination. As of February 7, 2021, under the amended regulations, DC 5257 states that a 30 percent rating is assigned for recurrent subluxation or instability with unrepaired or failed repair of complete ligament tear causing persistent instability, and a medical provider prescribes both an assistive device and bracing for ambulation. A 20 percent rating is assigned for either one of the following: (a) sprain, incomplete ligament tear, or repaired complete ligament tear causing persistent instability, and a medical provider prescribes a brace and/or assistive device for ambulation; or (b) unrepaired or failed repair of complete ligament tear causing persistent instability, and a medical provider prescribes either an assistive device or bracing for ambulation. A 10 percent rating is assigned for sprain, incomplete ligament tear, or complete ligament tear (repaired, unrepaired, or failed repair) causing persistent instability, without a prescription from a medical provider for an assistive device or bracing for ambulation. As to patellar instability under 38 C.F.R. § 4.71a, DC 5257, the amended criteria provide a 30 percent rating for a diagnosed condition involving the patellofemoral complex with recurrent instability after surgical repair that requires a prescription by a medical provider for a brace and either a cane or a walker. A 20 percent rating is assigned for a diagnosed condition involving the patellofemoral complex with recurrent instability after surgical repair that requires a prescription by a medical provider for one of the following: a brace, cane, or walker. A 10 percent rating is assigned for a diagnosed condition involving the patellofemoral complex with recurrent instability (with or without history of surgical repair) that does not require a prescription from a medical provider for a brace, cane, or walker. Under 38 C.F.R. § 4.71a, DC 5258, a 20 percent rating is assigned for cartilage, semilunar, dislocated, with frequent episodes of "locking," pain, and effusion into the joint. Under 38 C.F.R. § 4.71a, DC 5259, a 10 percent rating is assigned for cartilage, semilunar, removal of, symptomatic. Under 38 C.F.R. § 4.71a, DC 5260, a 10 percent rating is warranted for flexion of the knee limited to 45 degrees; a 20 percent rating is warranted for flexion limited to 30 degrees; and a 30 percent rating is warranted for flexion limited to 15 degrees. Under 38 C.F.R. § 4.71a, DC 5261, a 10 percent rating is warranted for extension of the knee limited to 10 degrees; a 20 percent rating is warranted for extension limited to 15 degrees; a 30 percent rating is warranted for extension limited to 20 degrees; a 40 percent rating is warranted for extension limited to 30 degrees; and a 50 percent rating is warranted for extension limited to 45 degrees. Normal range of motion of the knee is 0 degrees of extension to 140 degrees of flexion. See 38 C.F.R. § 4.71a, Plate II. Even if a veteran did not have compensable limited motion of the knee under DC 5260 or 5261, a separate rating could be assigned if there was evidence of full range of motion "inhibited by pain." Lichtenfels v. Derwinski, 1 Vet. App. 484, 488 (1991). A rating assigned under DC 5260 or 5261 does not preclude, as a matter of law, a separate evaluation under DC 5258 or 5259. Lyles v. Shulkin, 29 Vet. App. 107, 115 (2017). It is also noted that the revisions that went into effect on February 7, 2021, did not make any substantive changes to Diagnostic Codes 5258, 5260, and 5261. Regarding the changes to DC 5257, the Board finds that the prior version is more favorable to the Veteran because the new version sets more criteria and qualifiers as to when disability ratings may be assigned for instability. 38 C.F.R. § 4.71a, DC 5257 (2021) (i.e., requiring a surgical procedure and a prescription for an assistive device in order to grant a 20 percent rating for patellar instability). Although the Veteran was prescribed braces by his private knee doctor for patellar instability, he has never had a surgical procedure on his knees as is required for a higher rating. See Medical Treatment Record Non-Government Facility, June 2011. The prior version will be applied to this claim. The Board finds that the most probative evidence supports the assignment of 20 percent ratings each for the left and right knee based on extension limited to 15 degrees during flare-ups from March 20, 2020, the date of a VA examination showing such findings. See 38 C.F.R. § 3.340(o); DeLuca, 8 Vet. App. at 206; see also C&P Exam, March 2020. The evidence also reaches the level of equipoise as to whether separate 10 percent ratings may be assigned for left and right knee instability from the date of receipt of the claim, May 24, 2018. However, no other higher staged ratings are appropriate during the appeal period. 38 C.F.R. § 4.7. In reaching this conclusion, the Board has reviewed VA examination reports from 2018, 2019, and 2020. In July 2018, the examiner diagnosed bilateral knee instability, patellofemoral pain syndrome, knee joint osteoarthritis and recurrent subluxation. Range of motion testing showed 10 to 40 degrees flexion and 40 to 10 degrees extension in the right knee and 5 to 70 degrees flexion and 70 to 5 degrees extension in the left knee. The Veteran performed repetitive use testing without additional functional loss. Pain not causing functional loss was noted on examination. There was objective evidence of pain with weightbearing and crepitus. The examiner noted the reports of flare-ups and functional loss after repeated use over time, but found that it was not possible to estimate degrees of lost motion during such periods without resorting to speculation. Muscle strength testing showed active motion against gravity in both extremities, but no atrophy or ankylosis. The examiner found a history of moderate recurrent subluxation in the right knee, and slight lateral instability in the bilateral knees, with a history of recurrent effusion in both knees. Joint stability testing was normal. The examiner found no evidence of a meniscal condition. She found that the Veteran used braces constantly, but also that he had never had a surgical procedure on the knees. In June 2019, the examiner found that range of motion testing showed 5 to 60 degrees flexion and 60 to 5 degrees extension in the right knee and 10 to 50 degrees flexion and 50 to 10 degrees extension in the left knee. The Veteran performed repetitive use testing without additional functional loss. The examiner considered the Veteran's reports of flare-ups and functional loss after repeated use over time, but found that he would not suffer functional loss in range of motion greater than those values under ordinary range of motion testing. Muscle strength was normal, and there was no atrophy or ankylosis. The examiner found no history of joint instability, and joint stability testing was normal. She found no evidence of a meniscal condition, and noted that the Veteran used braces constantly and a cane occasionally for the knee disorders. She again found no surgical history. In March 2020, the Veteran reported, among other things that his knees give out, swell, and hurt more. He endorsed flare-ups 2 to 3 times per week. Range of motion testing showed 10 to 90 degrees flexion and 90 to 10 degrees extension in the right knee and the same values in the left knee. Pain causing functional loss was noted on examination. The Veteran performed repetitive use testing, but had additional functional loss to 15 to 70 degrees flexion and 70 to 15 degrees extension in the right knee, 15 to 80 degrees flexion and 80 to 15 degrees extension in the left knee. The examiner found objective evidence of pain on passive range of motion and in non-weightbearing. After repeated use over time, the examiner found that the Veteran would have additional functional impairment equivalent to the values experienced after repetitive use testing. The examiner considered the Veteran's reports of flare-ups and found that pain would create additional functional loss equivalent to 15 to 60 flexion and 60 to 15 extension in the right knee, and 10 to 60 flexion and 60 to 10 extension in the left knee. There was no ankylosis or atrophy of the knee joint. Joint stability testing was normal, but there was a history of slight recurrent subluxation in the bilateral knees. The examiner found no meniscal condition. He determined that the Veteran used braces and a cane for the knees, but again confirmed that there was no surgical history. He observed that the Veteran continued to work as a teacher. The Board has reviewed the remainder of the Veteran's VA and private medical records. They do not show functional impairment to the extent that higher ratings may be assigned, other than as specified herein. 38 C.F.R. § 4.7. Based on the evidence of record, the Board finds that 20 percent ratings are warranted for the right and left knee based on findings showing extension limited to 15 percent at the March 20, 2020, VA examination. 38 C.F.R. § 4.71a, DC 5261. The Veteran's bilateral knees were previously rated each as 10 percent under a hybrid DC 5003-5260 for arthritis with painful, but not otherwise compensable, range of flexion. See 38 C.F.R. § 4.59; Rating Decision Codesheet, July 2020. He has not manifested compensable range of flexion at any point during the rating period. See 38 C.F.R. §§ 4.2, 4.71a, DC 5620. Accordingly, the Board will assign 20 percent ratings for each knee under DC 5261 effective March 20, 2020, the earliest date showing increased severity of extension limited to 15 percent, and continue the 10 percent ratings prior to that time. 38 C.F.R. § 3.400(o). The Board has considered the Veteran's reports of functional loss with flare-ups and after repeated use over time. In that regard, the Board notes that it assigned separate 20 percent ratings based on the March 2020 VA examiner's finding that the Veteran would suffer extension limited to 15 degrees during flare-ups. The evidence does not suggest additional limitations during flare-ups or after repeated use over time to the extent that a higher rating is warranted. 38 C.F.R. § 4.7. There is also no basis for assigning separate compensable ratings based upon limitation of flexion, even when considering the Veteran's complaints of pain, pain on motion, and functional loss. Regarding instability, the Board will assign separate 10 percent ratings each for the right and left knee from May 24, 2018, the date the Veteran's claim was received. 38 C.F.R. § 3.400. The Veteran has reported that his knees give out sometimes and lock up on him. Applicable law has held that a veteran is competent to report instability, as such is within the capacity of a lay person. English v. Wilkie, 30 Vet. App. 347 (2018). Therefore, the Board will resolve reasonable doubt in the Veteran's favor, and assign separate 10 percent ratings as indicated above. A higher rating than 10 percent has been considered for instability of the knees. Nevertheless, the Board observes that objective stability testing was repeatedly normal during the rating period, including at the 2018, 2019, and 2020 VA exams. Given the lack of functional impairment on objective testing, this suggests that the bilateral knee instability was no more than slight. 38 C.F.R. § 4.71a, DC 5257. There is no evidence of ankylosis of the knee joint or its functional equivalent, impairment of the tibia or fibula, or genu recurvatum to support a higher rating under those codes. See 38 C.F.R. § 4.71a, DC 5256, 5272, 5273. The Board observes that the Veteran's representative asserted that the VA medical opinions in July 2020 "provided no medical opinion nor any medical analysis" relevant to the claim for increased ratings for the knees. The Board agrees, and will not afford the medical opinions any probative weight in this matter. An addendum medical opinion is not necessary in this case. The Board is aware that a previous remand asked for a medical opinion "regarding whether the evidence, including VA treatment records dated after June 2015 and the Veteran's reports of knee locking and giving way, demonstrate more severe left or right knee disabilities." A VA examination documented the current severity of the knee conditions in March 2020. Moreover, it is ultimately for the rating specialist to decide whether a disorder is more or less severe, and such a decision does not require medical expertise. 38 C.F.R. § 4.2. The Veteran's lay statements have been considered. However, disability ratings are determined by the application of the rating schedule, which does not support entitlement to higher staged ratings in this case, other than as already discussed. In sum, 20 percent ratings are assigned for each knee from March 20, 2020, based on functional impairment equivalent to extension limited to 15 degrees, and separate 10 percent ratings are assigned based on lay reports of knee instability from May 24, 2018. No other higher staged ratings are appropriate based on the record. REASONS FOR REMAND 5. Entitlement to service connection for a cervical spine condition The above matter must be remanded for an adequate medical opinion. See 38 U.S.C. § 5103A(d); Barr v. Nicholson, 21 Vet. App. 303 (2007) (holding that when VA provides a medical opinion, it must be adequate for decisional purposes). The record reflects medical opinions from Dr. W.B. in July 2020. As to direct service connection for the cervical spine disorder, he reasoned that there was a five year gap between discharge from service and complaints of cervical symptoms. As to secondary service connection to a lumbar spine disorder, Dr. W.B. stated "there is no proximal notes to show this nor is it likely...since 2015" he then reiterated the same opinion provided for direct service connection. The Board finds that this rationale is not sufficient and further clarification is necessary. See Stefl v. Nicholson, 21 Vet. App. 120, 125 (2007). Absence of evidence of treatment is not dispositive in the question of a nexus between a disability and military service. It does not appear that the examiner considered the specific nature of the Veteran's injuries or reviewed relevant private medical records, as requested in the prior remand directives. Moreover, the examiner did not provide a rationale for why he thought it was unlikely that a cervical spine condition was not caused or aggravated by a lumbar spine disorder. Given the foregoing, the Board finds that an addendum medical opinion is necessary before a decision may be made on the merits. 6. Entitlement to service connection for swelling in the left hand 7. Entitlement to service connection for right side numbness in arm The evidence suggests that the above claims may be related to radiculopathy of the cervical spine. See C&P Exam, March 2020 (diagnosing left cervical spine radiculopathy). Therefore, they are inextricably intertwined and must be remanded for further development. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991). The rationale provided by Dr. W.B. for the opinions in July 2020 is also insufficient. A further examination and medical opinion is required. Moreover, there exists some doubt as to whether the Veteran has exhibited a right arm numbness disorder resulting in functional impairment during the appeal period. Compare C&P Exam, March 2020 ("A diagnosis related to right hand numbness was not provided because the veteran responded "no" to questions regarding the right upper extremity and the examination did not find any neurological deficit in the right upper extremity given that he denied having right arm symptoms and objective testing") with Medical Treatment Non-Government Facility, June 2011 (records from Southern Neurologic and Spine Institute, showing that the Veteran complained of numbness in his right hand and arm). The matters are REMANDED for the following actions: 1. Secure for the record copies of complete updated clinical records of all VA and non-VA treatment the Veteran has received for the disorders on appeal. 2. Obtain an addendum medical opinion regarding the nature and etiology of the Veteran's cervical spine disorder. If the clinician believes that a VA examination is necessary to answer the questions below, one should be scheduled. The clinician is asked to review the claims file and opine as follows: (a) Is it at least as likely as not that the Veteran's cervical spine disorder had onset during or is causally related to military service, to include the parachute accident in 1997? (b) Is it at least as likely as not that any cervical spine disorder is proximately due to or a result of a service-connected disability, to include a lumbar spine disorder? (c) Is it at least as likely as not that cervical spine disorder underwent any incremental increase in disability, regardless of its permanence, due to a service-connected disability, to include a lumbar spine disorder? The term "incremental increase in disability" means additional impairment of earning capacity. Objective measurement, or numerical quantification is not required to ascertain an increase in disability. Any "incremental increase in disability" need not be permanent. A complete rationale should be provided for all opinions. The clinician is asked to consider and discuss relevant lay and medical evidence, to specifically include: Service treatment records, including the 1997 injury while parachuting and the 2004 separation exam finding a normal neck and spine VA examination from Dr. E.U. in September 2009, and MRI testing in October 2009 Records from Southern Neurologic and Spinal Institute, including January 2010 reports in which the Veteran denied neck pain The Veteran's hearing testimony in 2019 Letter from Dr. L.A. dated October 2012 The clinician is reminded that the term "at least as likely as not," does not mean "within the realm of medical possibility," but rather that the evidence of record is so evenly divided that it is as medically sound to find in favor of the proposition as it is to find against. 3. Schedule the Veteran for a VA examination for his left hand and right arm disorders. The examiner is asked to review the claims file and opine on the following: (a) Please list all disorders resulting in functional impairment of earning capacity relating to the left hand nerves/swelling and the right arm numbness supported by the medical record since 2009 (b) For each disorder listed, is it at least as likely as not that it began during or is etiologically related to military service, to include the 1997 parachute accident? (c) For each disorder listed, is it at least as likely as not that it is proximately due to or a result of a service-connected disability, to include a lumbar spine disorder? (d) For each disorder listed, is it at least as likely as not that it underwent any incremental increase in disability, regardless of its permanence, due to a service-connected disability, to include a lumbar spine disorder? A complete rationale should be provided for all opinions. The clinician is asked to consider and discuss relevant lay and medical evidence, to specifically include: Letter from Dr. L.A. dated October 2012 Service treatment records, including a military examination showing reports of left hand swelling in 2004 VA examination reports, including in July 2017 and March 2020 Private medical records, including from Southern Neurologic and Spine Institute The Veteran's hearing testimony in 2019 The examiner is reminded that the term "at least as likely as not," does not mean "within the realm of medical possibility," but rather that the evidence of record is so evenly divided that it is as medically sound to find in favor of the proposition as it is to find against. MICHAEL A. HERMAN Veterans Law Judge Board of Veterans' Appeals Attorney for the Board D. Reed, 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.