Citation Nr: 21072118
Decision Date: 12/02/21	Archive Date: 12/02/21

DOCKET NO. 17-30 420
DATE: December 2, 2021

ORDER

The application to reopen a claim of service connection for right shoulder disability is granted.

The application to reopen a claim of service connection for sleep apnea is granted.

Entitlement to service connection for right shoulder acromioclavicular joint osteoarthritis and rotator cuff tendonitis is granted.

Entitlement to service connection for right ankle degenerative joint disease is granted.

Entitlement to service connection for bilateral degenerative joint disease of the hands is granted.

Entitlement to service connection for irritable bowel syndrome is granted.

Entitlement to service connection for erectile dysfunction, secondary to service-connected posttraumatic stress disorder (PTSD), on a causation basis, is granted.

Entitlement to an effective date earlier than May 7, 2018 for the award of a separate rating for a left knee scar is denied.

Entitlement to an effective date earlier than May 7, 2018 for the award of an increased (30 percent) rating for degenerative arthritis of the left knee, status post reconstruction, is denied.

Entitlement to an effective date earlier than May 7, 2018 for the award of an increased (40 percent) rating for degenerative arthritis of the right knee is denied.

Entitlement to an effective date earlier than May 7, 2018 for the award of an increased (70 percent) rating for PTSD is denied.

REMANDED

Entitlement to service connection for bilateral foot disability is remanded.

Entitlement to service connection for thyroid disability is remanded.

Entitlement to service connection for disability manifested by fatigue, to include chronic fatigue syndrome, is remanded.

Entitlement to service connection for back disability is remanded.

Entitlement to service connection for bilateral wrist disability is remanded.

Entitlement to service connection for left ankle disability is remanded.

Entitlement to service connection for sleep apnea, to include as secondary to service-connected disability, is remanded.

Entitlement to a rating in excess of 20 percent for degenerative arthritis of the left acromioclavicular joint is remanded.

Entitlement to a rating in excess of 10 percent for partial loss of distal finger pad, right middle finger, is remanded.

Entitlement to an effective date earlier than June 5, 2018 for the award of a total disability rating based on individual unemployability (TDIU) due to service-connected disabilities is remanded.

Entitlement to an effective date earlier than May 7, 2018 for the award of eligibility for Dependents' Educational Assistance (DEA) benefits under 38 U.S.C. Chapter 35 is remanded.

FINDINGS OF FACT

1. The Veteran's claim of service connection for right shoulder disability (characterized as right acromioclavicular joint degenerative arthritis) was originally denied in an April 2006 rating decision on the basis that the disability was not incurred in or caused by service and did not manifest to a compensable degree within one year of his separation from service; the Veteran submitted a timely notice of disagreement (NOD) with the denial of service connection for right shoulder disability in July 2006 and a statement of the case (SOC) was issued in January 2013, but the Veteran did not file a substantive appeal.

2. The Veteran's claim of service connection for sleep apnea was originally denied in a March 2011 rating decision on the basis that there was no medical evidence of any such disability that was incurred in or caused by service; the Veteran did not appeal this decision within one year of its issuance and new and material evidence was not received within that year.

3. Evidence received since the April 2006 and March 2011 agency of original jurisdiction (AOJ) decisions includes information that was not previously considered and which relates to unestablished facts necessary to substantiate the claims of service connection for right shoulder disability and sleep apnea, the absence of which was the basis of the previous denials.

4. The evidence is at least evenly balanced as to whether the Veteran's right shoulder acromioclavicular joint osteoarthritis and rotator cuff tendonitis began during active service.

5. The evidence is at least evenly balanced as to whether the Veteran's right ankle degenerative joint disease manifested to a compensable degree within one year of his separation from service and is not attributable to intercurrent causes.

6. The evidence is at least evenly balanced as to whether the Veteran's bilateral degenerative joint disease of the hands manifested to a compensable degree within one year of his separation from service and is not attributable to intercurrent causes.

7. The Veteran served in the Southwest Asia theater of operations during the Persian Gulf War.

8. The evidence is at least evenly balanced as to whether the Veteran experiences irritable bowel syndrome which became manifest to a compensable degree in the years since service.

9. The Veteran's erectile dysfunction is caused by his service-connected PTSD. 

10. In the April 2006 rating decision, the AOJ awarded service connection for degenerative arthritis of the left knee, status post reconstruction, and degenerative arthritis of the right knee, and assigned initial 10 percent disability ratings, both from September 1, 2005; the Veteran submitted a timely NOD with the initial ratings assigned for the service-connected left and right knee disabilities in July 2006; the AOJ assigned a 20 percent rating for the service-connected left knee disability, from September 1, 2005, in a January 2013 rating decision and SOCs addressing the initial ratings assigned for the service-connected left and right knee disabilities were issued in January and February 2013, but the Veteran did not file a substantive appeal.

11. In an April 2012 rating decision, the AOJ awarded service connection for PTSD and assigned an initial 50 percent disability rating, from October 12, 2011; the Veteran did not appeal any aspect of this decision within one year of its issuance and new and material evidence was not received within that year.

12. In a December 2014 rating decision, the AOJ made the following determinations: awarded a separate 10 percent disability rating for painful motion, left knee, degenerative arthritis of the left knee, status post reconstruction, from May 16, 2014; denied entitlement to a rating in excess of 20 percent for degenerative arthritis of the left knee, status post reconstruction; denied entitlement to a rating in excess of 10 percent for degenerative arthritis of the right knee; and denied entitlement to a rating in excess of 50 percent for PTSD; the Veteran did not appeal any aspect of this decision within one year of its issuance and new and material evidence was not received within that year.

13. A claim for a TDIU (that was interpreted by the AOJ as including a claim for increased ratings for the service-connected left knee disability, right knee disability, and PTSD) was received on May 7, 2018.

14. An increase in the Veteran's service-connected left knee disability, right knee disability, and PTSD, so as to warrant a separate rating for a left knee scar, an increased (30 percent) rating for degenerative arthritis of the left knee, status post reconstruction, an increased (40 percent) rating for degenerative arthritis of the right knee, and an increased (70 percent) rating for PTSD was not factually ascertainable within the one-year period prior to his May 7, 2018 increased rating claim.

CONCLUSIONS OF LAW

1. The AOJ's April 2006 and March 2011 decisions that denied the claims of service connection for right shoulder disability and sleep apnea, respectively, are final. 38 U.S.C. § 7105; 38 C.F.R. §§ 3.104, 3.156(a)-(b), 19.52(a), 20.1103.

2. The evidence received since the April 2006 and March 2011 AOJ decisions is new and material and reopening of the claims of service connection for right shoulder disability and sleep apnea is therefore warranted. 38 U.S.C. § 5108; 38 C.F.R. § 3.156 (a).

3. With reasonable doubt resolved in favor of the Veteran, the criteria for service connection for right shoulder acromioclavicular joint osteoarthritis and rotator cuff tendonitis are met. 38 U.S.C. §§ 1110, 1131, 1154, 5107; 38 C.F.R. §§ 3.102, 3.303.

4. With reasonable doubt resolved in favor of the Veteran, the criteria for service connection for right ankle degenerative joint disease are met. 38 U.S.C. §§ 1110, 1112, 1113, 1131, 1137, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309(a), 4.71a, Diagnostic Code (DC) 5003.

5. With reasonable doubt resolved in favor of the Veteran, the criteria for service connection for bilateral degenerative joint disease of the hands are met. 38 U.S.C. §§ 1110, 1112, 1113, 1131, 1137, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309(a), 4.71A, Diagnostic Code (DC) 5003.

6. With reasonable doubt resolved in favor of the Veteran, the criteria for service connection for irritable bowel syndrome are met. 38 U.S.C. §§ 1110, 1117, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.317, 4.114, Diagnostic Code (DC) 7319.

7. The criteria for service connection for erectile dysfunction, as secondary to service-connected PTSD, on a causation basis, are met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.310.

8. The criteria for an effective date earlier than May 7, 2018 for the award of a separate rating for a left knee scar are not met. 38 U.S.C. §§ 5107 (b), 5110, 7105(d)(3); 38 C.F.R. §§ 3.104, 3.155 (in effect prior to March 24, 2015), 3.156 (a)-(b), 3.400, 4.118, Diagnostic Codes (DCs) 7800-7805 (prior to and since August 13, 2018), 19.20, 19.32, 19.52, 20.302, 20.1103.

9. The criteria for an effective date earlier than May 7, 2018 for the award of an increased (30 percent) rating for degenerative arthritis of the left knee, status post reconstruction, are not met. 38 U.S.C. §§ 5107 (b), 5110, 7105(d)(3); 38 C.F.R. §§ 3.104, 3.155 (in effect prior to March 24, 2015), 3.156 (a)-(b), 3.400, 4.71A, Diagnostic Codes (DCs) 5256-5263 (in effect prior to February 7, 2021), 19.20, 19.32, 19.52, 20.302, 20.1103.

10. The criteria for an effective date earlier than May 7, 2018 for the award of an increased (40 percent) rating for degenerative arthritis of the right knee are not met. 38 U.S.C. §§ 5107 (b), 5110, 7105(d)(3); 38 C.F.R. §§ 3.104, 3.155 (in effect prior to March 24, 2015), 3.156 (a)-(b), 3.400, 4.71a, Diagnostic Codes (DCs) 5256-5263 (in effect prior to February 7, 2021), 19.20, 19.32, 19.52, 20.302, 20.1103.

11. The criteria for an effective date earlier than May 7, 2018 for the award of an increased (70 percent) rating for PTSD are not met. 38 U.S.C. §§ 5107 (b), 5110, 7105(d)(3); 38 C.F.R. §§ 3.104, 3.155 (in effect prior to March 24, 2015), 3.156 (a)-(b), 3.400, 4.130, Diagnostic Code (DC) 9411, 19.52, 20.1103.

REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

The Veteran served on active duty from August 1984 to August 2005, which includes service in the Southwest Asia theater of operations.

These matters come before the Board of Veterans' Appeals (Board) from December 2014, May 2016, and July 2018 rating decisions.

In the December 2014 decision, the AOJ denied service connection for sleep apnea.

In the May 2016 decision, the AOJ denied service connection for right acromioclavicular joint degenerative arthritis, chronic fatigue syndrome, irritable bowel syndrome, left and right ankle arthritis, left and right finger arthritis, left and right wrist arthritis, lumbar spondylosis, erectile dysfunction, left and right foot arthritis, and a thyroid disability, and denied entitlement to ratings in excess of 10 percent for partial loss of distal finger pad, right middle finger, and left acromioclavicular joint degenerative arthritis.

In the July 2018 decision, the AOJ made the following determinations: awarded a separate noncompensable (0 percent) rating for a left knee scar, from May 7, 2018; awarded an increased (30 percent) rating for painful motion, left knee, degenerative arthritis of the left knee, status post reconstruction, from May 7, 2018; awarded an increased (40 percent) rating for degenerative arthritis of the right knee, from May 7, 2018; awarded an increased (70 percent) rating for PTSD, from May 7, 2018; awarded a TDIU, from June 5, 2018; and awarded eligibility for DEA benefits under 38 U.S.C. Chapter 35, from May 7, 2018.

An informal hearing conference with a Decision Review Officer (DRO) was conducted in May 2018 and a report of that conference has been associated with the Veteran's claims file.

The Veteran, through his representative, testified before the undersigned Veterans Law Judge (VLJ) at a July 2021 hearing and a transcript of the hearing is associated with his claims file.

As for characterization of the issues on appeal, claims of service connection for right shoulder disability and sleep apnea were denied by way of final April 2006 and March 2011 rating decisions, respectively. Where the claim in question has been finally adjudicated, the Board must initially determine whether new and material evidence has been submitted with regard to the claims of service connection for right shoulder disability and sleep apnea. Jackson v. Principi, 265 F.3d 1366 (Fed. Cir. 2001). Only where the Board concludes that new and material evidence has been received does it have jurisdiction to consider the merits of these claims. Hickson v. West, 11 Vet. App. 374, 377 (1998). Therefore, the Board has included the issues of whether new and material evidence has been received to reopen the claims of service connection for right shoulder disability and sleep apnea.

Moreover, in light of the Veteran's reported symptoms and contentions and to encompass all disorders that are reasonably raised by the record, the Board has re-characterized the claims of service connection for left and right foot arthritis, chronic fatigue syndrome (also claimed as sleep problems), lumbar spondylosis (back arthritis), left and right wrist arthritis, and left ankle arthritis as claims of service connection for bilateral foot disability, disability manifested by fatigue (to include chronic fatigue syndrome), back disability, bilateral wrist disability, and left ankle disability. See Clemons v. Shinseki, 23 Vet. App. 1 (2009) (holding that, in determining the scope of a claim, the Board must consider the claimant's description of the claim, the symptoms described, and the information submitted or developed in support of the claim; claim should not be limited to the disorder as characterized by the Veteran, but must be characterized and addressed based on the reasonable expectations of the non-expert claimant and the evidence in processing the claim).

As a final preliminary matter, the Board notes that the Veteran's representative submitted statements in February 2020, May 2020, and June 2021 in which she requested copies of the personnel file(s) and/or curriculum vitae(s) of an unidentified VA examiner. The Board acknowledges that once a request is made for information as to the competency of an examiner, a veteran has the right, absent unusual circumstances, to the curriculum vitae and other information about qualifications of the medical examiner, as required by VA's duty to assist. See Francway v. Wilkie, 940 F.3d 1304, 1308 (Fed. Cir. 2019). In this instance, however, the Veteran has been afforded multiple VA examinations that are pertinent to the issues on appeal and the Veteran's representative has not identified any specific examination or examiner for which she is requesting records. Moreover, neither the Veteran nor his representative have specifically challenged the qualifications of any examiner. Rather, the Veteran's representative has indicated generally that she needs the requested information in order to raise any such challenge, without identifying a specific examiner or examination. Under these circumstances, the Board finds that the Veteran's representative has not "raise[d] a challenge to the competence of the medical examiner" warranting remand pursuant to Francway, 940 F.3d at 1308.

I. Application to Reopen

Generally, an AOJ decision denying a claim which has become final may not thereafter be reopened and allowed. 38 U.S.C. § 7105 (d)(3). The exception to this rule is 38 U.S.C. § 5108, which provides that if new and material evidence is presented or secured with respect to a claim which has been disallowed, the Secretary shall reopen the claim and review the former disposition of the claim. 38 U.S.C. § 5108.

New evidence is defined as existing evidence not previously submitted to VA, and material evidence is defined as 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 sought to be reopened, and must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156 (a). The newly presented evidence is presumed to be credible for purposes of determining whether it is new and material. Justus v. Principi, 3 Vet. App. 510, 512-513 (1992). When evaluating the materiality of newly submitted evidence, the focus must not be solely on whether the evidence remedies the principal reason for denial in the last prior decision; rather the determination of materiality should focus on whether the evidence, taken together, could at least trigger the duty to assist or consideration of a new theory of entitlement. See Shade v. Shinseki, 24 Vet. App. 110, 117 (2010).

For the purpose of determining whether new and material evidence has been presented to reopen a claim, the evidence for consideration is that which has been presented or secured since the last time the claim was finally disallowed on any basis. Evans v. Brown, 9 Vet. App. 273, 285 (1996).

The applications to reopen claims of service connection for right shoulder disability and sleep apnea

The Veteran's claim of service connection for right shoulder disability (characterized as right acromioclavicular joint degenerative arthritis) was originally denied in an April 2006 rating decision on the basis that the disability was not incurred in or caused by service and did not manifest to a compensable degree within one year of his separation from service. The Veteran submitted a timely NOD with the denial of service connection for right shoulder disability in July 2006 and an SOC was issued in January 2013.

Appellate review is initiated by an NOD and completed by a substantive appeal filed after an SOC has been furnished to an appellant. 38 U.S.C. § 7105 (a); 38 C.F.R. § 19.20. A substantive appeal must be filed within 60 days from the date of mailing of an SOC, or within the remainder of the one-year period from the date of mailing of the notification of the determination being appealed, whichever period ends later. 38 U.S.C. § 7105 (b)(2); 38 C.F.R. § 19.52 (b)(1). In the absence of a properly perfected appeal, the AOJ may close the appeal and the decision becomes final. 38 U.S.C. § 7105 (d)(3); Roy v. Brown, 5 Vet. App. 554, 556 (1993); 38 C.F.R. § 19.32. The AOJ did so in this case, as evidenced by the fact that it did not certify to the Board the issue of entitlement to service connection for right shoulder disability following the January 2013 SOC.

As neither the Veteran nor his representative submitted any document that could be construed as a timely substantive appeal pertaining to the claim of service connection for right shoulder disability following the January 2013 SOC, the AOJ closed the appeal. The AOJ did not certify this issue to the Board at that time and no further action was taken by VA to suggest that the issue was on appeal. Thus, the April 2006 rating decision became final as to the denial of service connection for right shoulder disability. See 38 U.S.C. § 7105 (d)(3); Fenderson v. West, 12 Vet. App. 119, 128-31 (1999) (discussing the necessity of filing a substantive appeal which comports with governing regulations); 38 C.F.R. §§ 3.104, 20.1103.

The Veteran's claim of service connection for sleep apnea was originally denied in a March 2011 rating decision on the basis that there was no medical evidence of any such disability that was incurred in or caused by service. The Veteran was notified of the March 2011 decision, he did not appeal the decision within one year of its issuance, and new and material evidence was not received within that year. Therefore, the March 2011 decision became final. See 38 U.S.C. § 7105 (d)(3); Bond v. Shinseki, 659 F.3d 1362 (Fed. Cir. 2011); 38 C.F.R. §§ 3.104, 3.156(a)-(b), 19.52(a), 20.1103.

The pertinent new evidence received since the April 2006 denial of service connection for right shoulder disability and the March 2011 denial of service connection for sleep apnea includes the reports of a September 2014 VA sleep apnea examination and a June 2018 VA shoulder examination. This additional evidence reflects that the Veteran was diagnosed as having obstructive sleep apnea and right shoulder degenerative arthritis and rotator cuff tendonitis, and that he reported continuous right shoulder symptoms since service. Therefore, the additional evidence pertains to elements of the claims of service connection for right shoulder disability and sleep apnea that were previously found to be lacking and raises a reasonable possibility of substantiating the claims by indicating that the Veteran has current sleep apnea and that he has current right shoulder disability that may have been incurred in service. The evidence is, therefore, new and material, and the claims of service connection for right shoulder disability and sleep apnea are reopened. 

II. Service Connection

Service connection will be granted if the evidence demonstrates that current disability resulted from an injury suffered or disease contracted in active military, naval, air, or space service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a).  Establishing service connection generally requires competent evidence of three things: (1) current disability; (2) in-service injury or disease; and (3) a relationship between the two. Saunders v. Wilkie, 886 F.3d 1356, 1361 (Fed. Cir. 2018).  Consistent with this framework, service connection is warranted for a disease first diagnosed after service when all the evidence, including that pertinent to service, establishes that the disease was incurred in service.  38 C.F.R. § 3.303(d).

Pursuant to 38 C.F.R. § 3.303(b), where a chronic disease is shown as such in service, subsequent manifestations of the same chronic disease are generally service connected; if a chronic disease is noted in service but chronicity in service is not adequately supported, a showing of continuity of symptomatology after separation is required. Entitlement to service connection based on chronicity or continuity of symptomatology pursuant to 38 C.F.R. § 3.303(b) applies only when the disability for which the Veteran is claiming compensation is due to a disease enumerated on the list of chronic diseases in 38 U.S.C. § 1101(3) or 38 C.F.R. § 3.309(a). Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013).  In addition, such chronic diseases are presumed to have been incurred in service if they manifested to a compensable degree within one year of separation from service. 38 U.S.C. §§ 1101(3), 1112(a)(1), 1113; 38 C.F.R. §§ 3.307(a), 3.309(a). Arthritis is included among the list of chronic diseases.

Although entitlement to service connection on any of the presumptive bases noted above may not be established, a veteran is not precluded from establishing service connection on a direct basis. See 38 U.S.C. § 1113 (b); 38 C.F.R. § 3.303 (d) (the availability of service connection on a presumptive basis does not preclude consideration of service connection on a direct basis).

Service connection is also warranted for disability which is proximately due to or the result of service-connected disease or injury. 38 C.F.R. § 3.310.

1. Entitlement to service connection for right shoulder acromioclavicular joint osteoarthritis and rotator cuff tendonitis

The Veteran contends that he has current right shoulder disability which had its onset in service. The Board finds, for the following reasons, that the Veteran has current diagnoses of right shoulder acromioclavicular joint osteoarthritis and rotator cuff tendonitis, and that the evidence is at least evenly balanced as to whether this disability began during active service.

The reports of VA shoulder examinations dated in January 2016 and June 2018 show that the Veteran has been diagnosed as having right shoulder acromioclavicular joint osteoarthritis and rotator cuff tendonitis. Therefore, current right shoulder disability has been demonstrated.

Additionally, there is evidence of right shoulder symptoms in service and evidence of continuous symptoms in the years since service. In this regard, the Veteran reported during the June 2018 VA shoulder examination that he began to experience right shoulder pain during ruck marches in service. The Veteran's DD Form 214 reflects that he served in Southwest Asia in support of Operation Desert Shield and Operation Desert Storm from January 1991 to June 1991. Also, he reported during a January 2012 VA psychiatric examination and a February 2012 VA psychology consultation that his unit was attacked by enemy scud missiles while stationed in Riyadh, Saudi Arabia during the Persian Gulf War.

A determination that a veteran engaged in combat with the enemy may be supported by any evidence which is probative of that fact, and there is no specific limitation of the type or form of evidence that may be used to support such a finding. See VAOPGCPREC 12-99 (October 18, 1999) (combat determination should be made on a case by case basis where there is no medal specifically indicating combat service). Evidence submitted to support a claim that a veteran engaged in combat may include the veteran's own statements and an "almost unlimited" variety of other types of evidence. Gaines v. West, 11 Vet. App. 353, 359 (1998). Receiving enemy fire or firing on an enemy can constitute participation in combat. Sizemore v. Principi, 18 Vet. App. 264 (2004).

The Veteran is competent to report his exposure to incoming enemy fire in service and there is no evidence that explicitly contradicts his reports. Therefore, the Board finds that his reports of combat exposure in service are credible and that there is sufficient evidence that the Veteran participated in combat/was exposed to incoming enemy fire while serving in Southwest Asia.

Where a veteran engaged in combat, satisfactory lay evidence that an injury or disease was incurred in service will be accepted as sufficient proof of service connection where such evidence is consistent with the circumstances, conditions, or hardships of service. 38 U.S.C. § 1154 (b). The combat rules not only reduce the evidentiary burden for establishing in-service injury but allow a combat veteran to use "satisfactory lay or other evidence" to establish that he incurred the disability itself in service, even in cases where "there is no official record" that such injury or disability occurred. Reeves v. Shinseki, 682 F.3d 988, 998 (Fed. Cir. 2012).

The Veteran's reports of right shoulder pain in combat situations in service are satisfactory evidence and the reports are consistent with the circumstances of his service in Southwest Asia. There is no clear and convincing evidence to the contrary. Therefore, the presence of right shoulder pain during service is established. Moreover, the Veteran's post-service medical records and lay statements indicate that he has experienced continuous right shoulder symptoms in the years since service (see the June 2018 VA shoulder examination report).

The Veteran is competent to report continuous right shoulder symptoms in the years since service. Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006). Also, there is no evidence that explicitly contradicts his reports and they are generally consistent with the evidence of record and the circumstances of his service. Therefore, the Board concludes that the Veteran's reports of continuous right shoulder symptoms in the years since service are credible.

In sum, the evidence reflects that the Veteran experienced right shoulder pain in service and that there have been continuous symptoms in the years since service. Also, he has been diagnosed as having current right shoulder acromioclavicular joint osteoarthritis and rotator cuff tendonitis. There is no medical opinion that is contrary to a conclusion that the current right shoulder acromioclavicular joint osteoarthritis and rotator cuff tendonitis had its onset in service. Thus, the evidence is at least evenly balanced as to whether this disability had its onset in service. As the reasonable doubt created by this relative equipoise in the evidence must be resolved in favor of the Veteran, entitlement to service connection for right shoulder acromioclavicular joint osteoarthritis and rotator cuff tendonitis is warranted. 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102. See also Buchanan, 451 F.3d at 1335 ("[N]othing in the regulatory or statutory provisions [relating to evidence to be considered] require both medical and competent lay evidence; rather, they make clear that competent lay evidence can be sufficient in and of itself").

2. Entitlement to service connection for right ankle degenerative joint disease and bilateral degenerative joint disease of the hands

The Board concludes, for the following reasons, that the Veteran has current diagnoses of right ankle degenerative joint disease and bilateral degenerative joint disease of the hands, and that the evidence is at least evenly balanced as to whether these disabilities manifested to a compensable degree within one year of his separation from active service in August 2005. 38 U.S.C. §§ 1101, 1110, 1112, 1113, 1131, 1137, 5107(b); 38 C.F.R. §§ 3.303 (a), 3.307, 3.309(a).

The reports of VA ankle and hand examinations dated in March 2016 indicate that the Veteran has been diagnosed as having right ankle degenerative joint disease and bilateral degenerative joint disease of the hands. Therefore, current chronic diseases (right ankle and bilateral hand arthritis) have been demonstrated. See 38 C.F.R. § 3.309(a).

A May 2006 examination report from H.A. Kidd, D.O. reflects that the Veteran reported "arthritic type symptoms" with some achiness and stiffness in his hands and an approximately 3-month history of right ankle pain (especially with movement of the ankle). X-rays revealed a right inferior calcaneal spur and a diagnosis of osteoarthritis was provided.

The nurse practitioner who conducted the March 2016 VA ankle and hand examinations opined that the Veteran's claimed right ankle and hand disabilities were not likely ("less likely than not"/"less than 50 percent probability") incurred in or caused by service. As for the right ankle, the examiner reasoned, in pertinent part, that there were no service treatment records or VA records regarding a diagnosis or treatment of an ankle condition. The Veteran reported no intervening trauma. Examination and x-rays revealed mild degenerative joint disease, and this was consistent with the Veteran's age and body habitus.

With respect to the claimed hand disabilities, the examiner reasoned, in pertinent part, that the Veteran's service treatment records were negative regarding trauma to the hands. He denied any intervening trauma and there were no VA records regarding hand pain. X-rays revealed degenerative joint disease and these findings were consistent with the Veteran's age and occupation.

The March 2016 opinions are of little, if any, probative value because the examiner reasoned that there was no evidence of treatment for ankle or hand problems in the Veteran's treatment records. However, she did not acknowledge or discuss the private records of treatment for ankle and hand pain (to include the records of such symptoms within one year of the Veteran's separation from service, as noted above).

In sum, the evidence reflects that the Veteran has been diagnosed as having current right ankle and bilateral hand arthritis and the Board finds that the evidence is at least evenly balanced as to whether these disabilities manifested to a compensable degree (i.e., ankle and hand pain) within one year of his August 2005 separation from service and are not attributable to intercurrent causes. As the reasonable doubt created by this relative equipoise in the evidence must be resolved in favor of the Veteran, entitlement to service connection for right ankle degenerative joint disease and bilateral degenerative joint disease of the hands is warranted. 38 U.S.C. §§ 1101, 1110, 1112, 1113, 1131, 5107(b); 38 C.F.R. §§ 3.303. 3.307, 3.309(a), 4.71A, DC 5003.

3. Entitlement to service connection for irritable bowel syndrome

For veterans with service in the Southwest Asia theater of operations during the Persian Gulf War, service connection may be established under 38 U.S.C. § 1117; 38 C.F.R. § 3.317. Under this law and regulation, service connection may be warranted for a Persian Gulf veteran who exhibits objective indications of "a qualifying chronic disability" that became manifest during active military, naval or air service in the Southwest Asia theater of operations during the Persian Gulf War, or to a degree of 10 percent or more not later than December 31, 2026. 38 C.F.R. § 3.317 (a)(1). For purposes of 38 C.F.R. § 3.317, qualifying chronic disabilities include, among other things, a medically unexplained chronic multisymptom illness (MUCMI) (including irritable bowel syndrome). 38 C.F.R. § 3.317 (a)(2). 38 U.S.C. § 1117; 38 C.F.R. § 3.317 (a),(b).

The Board finds, for the following reasons, that the evidence is at least evenly balanced as to whether the Veteran experiences current irritable bowel syndrome which became manifest to a compensable degree in the years since his service in Southwest Asia.

Medical records, including VA primary care team notes dated in May 2014, August 2015, January 2016, and August 2016, indicate that the Veteran has been diagnosed as having irritable colon/bowel syndrome and was prescribed medication (i.e., dicyclomine) to treat his symptoms. He reported during the May 2014 VA evaluation that he experienced trouble with bowel movements "night and day." Also, he reported during a March 2016 VA intestinal conditions examination that he experienced occasional diarrhea and gas and had bowel movements twice daily.

The nurse practitioner who conducted the March 2016 VA intestinal conditions examination opined that the Veteran's claimed gastrointestinal disability was not likely ("less likely than not"/"less than 50 percent probability") incurred in or caused by service. She reasoned that although primary care diagnosed the Veteran as having "irritable colon," his review of systems was negative for any signs or symptoms diagnostic of irritable bowel syndrome, and no differential diagnosis was considered. During the March 2016 examination, the Veteran reported having two bowel movements daily without abdominal bloating or abdominal pain. Concurrently, he was diagnosed with alcohol hepatitis, which may contribute to his colon symptoms. 

Moreover, the examiner explained that the medical literature indicates that excessive alcohol consumption may impair the muscle movement in the small and large intestines, contributing to the diarrhea frequently observed in alcoholics. Acute alcohol consumption also damages the mucosa in the upper region of the small intestine and may even lead to the destruction of the tips of the villi. The findings of human and animal studies suggest that these mucosal defects favor the following sequence of events: alcohol induced mucosal damage in the small intestine increases the mucosa's permeability, facilitating the transport of large molecules, such as bacterial endotoxin and/or other toxins, into the blood or lymph. This results in the release of potentially toxic cytokines by certain white blood cells and Kupffer cells. These cytokines, in turn, exert multiple injurious effects on membranes and the microcirculation. The result is possible cell damage and even cell death in the liver and other organs. Motility disorders, maldigestion, and malabsorption in alcoholics can result in digestive problems, such as anorexia, nausea, and abdominal pain.

Based on the above, the Board finds that the Veteran served in the Southwest Asia theater of operations during the Persian Gulf War and that the evidence is at least evenly balanced as to whether he has irritable bowel syndrome which became manifest to a compensable degree in the years since service (given his symptoms and the criteria for a 10 percent rating under 38 C.F.R. § 4.114, Diagnostic Code 7319). As the reasonable doubt created by this relative equipoise in the evidence must be resolved in favor of the Veteran, entitlement to service connection for irritable bowel syndrome is warranted. 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102.

4. Entitlement to service connection for erectile dysfunction, secondary to service-connected PTSD

The Board finds, for the following reasons, that the Veteran has current erectile dysfunction that is caused by his service-connected PTSD.

Medical records, including an April 2018 VA urology note, indicate that the Veteran has been diagnosed as having erectile dysfunction. Thus, current disability has been demonstrated.

As for the etiology of the Veteran's erectile dysfunction, the physician who conducted a May 2014 VA primary care evaluation explained that the Veteran's erectile dysfunction was "partially related to [PTSD]" and could also partially be related to benign prostatic hypertrophy and alcohol abuse. Also, in a July 2014 VA primary care evaluation note, the same physician diagnosed the Veteran as having "erectile dysfunction, most likely psychogenic."

Although the May and July 2014 opinions are not accompanied by any specific explanation or rationale, the physician provided the opinions based upon treatment of the Veteran and consideration of his reported history. These opinions are therefore entitled to some probative weight. See Monzingo v. Shinseki, 26 Vet. App. 97, 106 (2012) (the fact that the rationale provided by an examiner "did not explicitly lay out the examiner's journey from the facts to a conclusion," did not render the examination inadequate); Acevedo v. Shinseki, 25 Vet. App. 286, 294 (2012) (medical reports must be read as a whole and in the context of the evidence of record). These opinions essentially indicate that the Veteran's erectile dysfunction is at least partially caused by his service-connected PTSD.

In light of the above medical opinions, the Board finds that the evidence reflects that the Veteran's erectile dysfunction is caused by his service-connected PTSD. There is no medical opinion that is contrary to this conclusion. Therefore, entitlement to service connection for erectile dysfunction, as secondary to service-connected PTSD, on a causation basis, is warranted. 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102.

III. Earlier Effective Dates

Generally, the effective date of an evaluation and award of pension, compensation or dependency and indemnity compensation based on an original claim, a claim reopened after final disallowance, or a claim for increase will be the date of receipt of the claim or the date entitlement arose, whichever is later. 38 U.S.C. § 5110 (a); 38 C.F.R. § 3.400. Specifically as to claims for increase, the effective date of an award of increased compensation shall be the earliest date as of which it is ascertainable that an increase in disability had occurred, if application is received within one year from such date. 38 U.S.C. § 5110 (b)(2).

The pertinent provisions of 38 C.F.R. § 3.400 clarify that, except as otherwise provided, the effective date of an evaluation and award of compensation based on a claim for increase will be the date of receipt of the claim or the date entitlement arose, whichever is the later. Specifically as to claims for increase, 38 C.F.R. § 3.400 provides that the effective date of an evaluation and award of compensation based on a claim for increase will be the date as of which it is factually ascertainable that an increase in disability had occurred if claim is received within 1 year from such date, otherwise, date of receipt of claim. 38 C.F.R. § 3.400 (o).

The United States Court of Appeals for Veterans Claims (Court) and VA's General Counsel have interpreted the laws and regulations pertaining to the effective date for an increase as follows: If the increase occurred within one year prior to the claim, the increase is effective as of the date the increase was "factually ascertainable." If the increase occurred more than one year prior to the claim, the award is effective the date of claim. If the increase occurred after the date of claim, the effective date is the date of increase. 38 U.S.C. § 5110 (b)(2); Harper v. Brown, 10 Vet. App. 125 (1997); 38 C.F.R. § 3.400 (o)(1),(2).

VA amended its adjudication regulations on March 24, 2015 to require that all claims governed by VA's adjudication regulations be filed on standard forms prescribed by the Secretary, regardless of the type of claim or posture in which the claim arises. See 79 Fed. Reg. 57660 (Sept. 25, 2014). The amendments, however, are only effective for claims and appeals filed on or after March 24, 2015. 

Under the former legal authority, any communication or action, indicating an intent to apply for one or more benefits under laws administered by VA, from a veteran or his representative, may be considered an informal claim. Such informal claim must identify the benefit sought. Upon receipt of an informal claim, if a formal claim has not been filed, an application form will be forwarded to the claimant for execution. If received within one year from the date it was sent to the veteran, it will be considered filed as of the date of receipt of the informal claim. 38 C.F.R. § 3.155 (a) (in effect prior to March 24, 2015).

There is no set form that an informal written claim must take. All that is required is that the communication indicates an intent to apply for one or more benefits under the laws administered by VA, and identify the benefits sought. Rodriguez v. West, 189 F.3d 1351 (1999).

Disability evaluations are determined by evaluating the extent to which a veteran's service-connected disability adversely affects his ability to function under the ordinary conditions of daily life, including employment, by comparing his symptomatology with the criteria set forth in the Schedule for Rating Disabilities (Rating Schedule). Separate diagnostic codes identify the various disabilities. 38 U.S.C. § 1155; 38 C.F.R. §§ 4.1, 4.2, 4.10.

If two evaluations are potentially applicable, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that evaluation; otherwise, the lower evaluation will be assigned. 38 C.F.R. § 4.7. In view of the number of atypical instances it is not expected, especially with the more fully described grades of disabilities, that all cases will show all the findings specified. Findings sufficiently characteristic to identify the disease and the disability therefrom, and above all, coordination of rating with impairment of function will, however, be expected in all instances. 38 C.F.R. § 4.21.

In evaluating a disability, the Board considers the current examination reports in light of the whole recorded history to ensure that the current rating accurately reflects the severity of the condition. The Board has a duty to acknowledge and consider all regulations that are potentially applicable. Schafrath v. Derwinski, 1 Vet. App. 589 (1991). The medical as well as industrial history is to be considered, and a full description of the effects of the disability upon ordinary activity is also required. 38 C.F.R. §§ 4.1, 4.2, 4.10.

Where entitlement to compensation has already been established and an increase in the disability rating is at issue, the present level of disability is of primary concern. Although a rating specialist is directed to review the recorded history of a disability in order to make a more accurate evaluation, see 38 C.F.R. § 4.2, the regulations do not give past medical reports precedence over current findings. Francisco v. Brown, 7 Vet. App. 55 (1994). Staged ratings are, however, appropriate for an increased rating claim when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings.

The relevant focus for adjudicating an increased rating claim is on the evidence concerning the state of the disability from the time period one year before the claim was filed until VA makes a final decision on the claim. Hart v. Mansfield, 21 Vet. App. 505 (2007).

Historically, in an April 2006 rating decision, the AOJ awarded service connection for degenerative arthritis of the left knee, status post reconstruction, and degenerative arthritis of the right knee, and assigned initial 10 percent disability ratings, both from September 1, 2005. The Veteran submitted a timely NOD with the initial ratings assigned for the service-connected left and right knee disabilities in July 2006 and SOCs addressing the left and right knee were issued in January 2013 and February 2013, respectively. However, neither the Veteran nor his representative submitted any document that could be construed as a timely substantive appeal pertaining to the initial ratings assigned for the service-connected left and right knee disabilities following the January and February 2013 SOCs, and the AOJ closed the appeals. The AOJ did not certify either of these issues to the Board at that time and no further action was taken by VA to suggest that either issue was on appeal. Thus, the April 2006 rating decision became final as to the initial ratings assigned for the service-connected left and right knee disabilities (to include whether any separate rating for left knee scarring was warranted). See 38 U.S.C. § 7105 (d)(3); Fenderson, 12 Vet. App. at 128-31; 38 C.F.R. §§ 3.104, 20.1103.

In an April 2012 rating decision, the AOJ awarded service connection for psychiatric disability (characterized as PTSD with depressive disorder) and assigned an initial 50 percent disability rating, from October 12, 2011. The Veteran was notified of the April 2012 decision, he did not appeal any aspect of the decision within one year of its issuance, and new and material evidence was not received within that year. Therefore, the April 2012 decision became final as to the initial rating assigned for the service-connected psychiatric disability. See 38 U.S.C. § 7105 (d)(3); Bond, 659 F.3d at 1362; 38 C.F.R. §§ 3.104, 3.156(a)-(b), 19.52(a), 20.1103.

In a December 2014 rating decision, the AOJ made the following determinations: awarded a separate 10 percent rating for painful motion, left knee, degenerative arthritis of the left knee, status post reconstruction, from May 16, 2014; denied a rating in excess of 20 percent for degenerative arthritis of the left knee, status post reconstruction; denied a rating in excess of 10 percent for degenerative arthritis of the right knee; and denied a rating in excess of 50 percent for PTSD with depressive disorder. The Veteran was notified of the December 2014 decision, he did not appeal any aspect of the decision with regard to the ratings assigned for the service-connected left and right knee disabilities and psychiatric disability within one year of its issuance, and new and material evidence was not received within that year. Therefore, the December 2014 decision became final as to the ratings assigned for the service-connected left knee disability (to include whether any separate rating for left knee scarring was warranted), right knee disability, and psychiatric disability. See Id.

In May 2018, the Veteran submitted a "Veteran's Application for Increased Compensation Based on Unemployability" form (VA Form 21-8940), which was interpreted by the AOJ as including a claim for increased ratings for the service-connected left and right knee disabilities and psychiatric disability. This form was received by VA on May 7, 2018. In the July 2018 rating decision, the AOJ awarded a separate noncompensable (0 percent) rating for a left knee scar, an increased (30 percent) rating for painful motion of the left knee, degenerative arthritis of the left knee, status post reconstruction, an increased (40 percent) rating for degenerative arthritis of the right knee, and an increased (70 percent) rating for PTSD. The award of these ratings was based on the findings made during June 2018 VA knee and psychiatric examinations. The AOJ assigned an effective date of May 7, 2018 for the award of the separate noncompensable rating for a left knee scar, the 30 percent rating for the service-connected left knee disability, the 40 percent rating for the service-connected right knee disability, and the 70 percent rating for the service-connected psychiatric disability, based on the date that the Veteran's increased rating claim was received by VA.

There is no evidence of any unadjudicated formal or informal increased rating claim for the Veteran's left knee disability, right knee disability, or psychiatric disability subsequent to the final December 2014 rating decision and prior to May 7, 2018. Therefore, the Board will consider the evidence pertinent to the period beginning on May 7, 2017 (one year prior to receipt of the Veteran's increased rating claim) to determine when an increase in the Veteran's left knee disability (to include when a separate rating for scarring was warranted), right knee disability, and psychiatric disability was factually ascertainable. 

1. Entitlement to an effective date earlier than May 7, 2018 for the award of a separate rating for a left knee scar, an increased (30 percent) rating for degenerative arthritis of the left knee, status post reconstruction, and an increased (40 percent) rating for degenerative arthritis of the right knee

The Veteran's left knee scar is rated under 38 C.F.R. § 4.118, DC 7805. The rating criteria for scars were revised during the claim period, effective August 13, 2018. See 83 Fed. Reg. 32,592 (July 13, 2018). VA's intent is that the claims pending prior to the effective date will be considered under both the old and new rating criteria, and whatever criteria is more favorable to the claimant will be applied. For claims filed on or after the effective date, only the new criteria will be applied. As the Veteran's increased rating claim was filed prior to August 13, 2018, the Board will consider whether an earlier effective date is warranted for the separate rating for the left knee scar on the basis of either the old or new rating criteria.

In order to warrant a compensable rating under the rating criteria in effect prior to August 13, 2018, a scar would need to involve the head, face or neck and have at least one characteristic of disfigurement (DC 7800); be deep and nonlinear and affect an area or areas of at least 6 square inches (39 square centimeters) (DC 7801); be superficial and nonlinear and affect an area or areas of 144 square inches (929 square centimeters) or greater (DC 7802); be unstable or painful (DC 7804); or have some other disabling effects not contemplated by DCs 7800-7804 (DC 7805). 38 C.F.R. § 4.118, DCs 7800-7805 (in effect prior to August 13, 2018).

In order to warrant a compensable rating under the rating criteria in effect since August 13, 2018, a scar would need to involve the head, face or neck and have at least one characteristic of disfigurement (DC 7800); be associated with underlying soft tissue damage and affect an area or areas of at least 6 square inches (39 square centimeters) (DC 7801); not be associated with underlying soft tissue damage and affect an area or areas of 144 square inches (929 square centimeters) or greater (DC 7802); be unstable or painful (DC 7804); or have some other disabling effects not contemplated by DCs 7800-7804 (DC 7805). 38 C.F.R. § 4.118, DCs 7800-7805 (in effect since August 13, 2018).

The Veteran's degenerative arthritis of the left knee, status post reconstruction, and degenerative arthritis of the right knee are rated under 38 C.F.R. § 4.71A, DCs 5010-5261. Hyphenated diagnostic codes are used when a rating under one code requires use of an additional diagnostic code to identify the basis for the rating assigned. 38 C.F.R. § 4.27. Here, the use of DCs 5010-5261 reflects that the Veteran's left and right knee disabilities are partially described as degenerative arthritis under DC 5003 and that the ratings assigned are based on limitation of knee extension under DC 5261.

During the pendency of the appeal, the rating criteria for evaluating musculoskeletal disabilities under 38 C.F.R. § 4.71A were amended effective February 7, 2021. See Schedule for Rating Disabilities: Musculoskeletal System and Muscle Injuries, 85 Fed. Reg. 230 (Nov. 30, 2020). These amendments revised select diagnostic codes "to ensure that this portion of the rating schedule uses current medical terminology and provides detailed and updated criteria for the evaluation of musculoskeletal disabilities." Id.

If a law or regulation changes during the course of a claim or an appeal, the version more favorable to the claimant will apply, to the extent permitted by any stated effective date in the amendment in question. 38 U.S.C. § 5110 (g); see also Kuzma v. Principi, 341 F.3d 1327 (Fed. Cir. 2003). If the revised version of the regulation is more favorable, the implementation of that regulation under 38 U.S.C. § 5110 (g) can be no earlier than the effective date of that change. If the former version is more favorable, VA can apply the earlier version of the regulation for the period prior to, and from, the effective date of the change. 38 U.S.C. § 5110; Kuzma, 341 F. 3d 1327. In this case, as explained above, the Board is only considering the evidence pertinent to the period from May 7, 2017 through May 6, 2018 to determine whether an effective date earlier than May 7, 2018 is warranted for the left and right knee ratings. Therefore, as the entire period under consideration is prior to February 7, 2021, the Board may only consider the Veteran's claim under the former criteria and the revised criteria are not for application in this instance.

Prior to the February 7, 2021 regulatory changes, degenerative arthritis established by X-ray findings was rated on the basis of limitation of motion under the appropriate codes for the specific joint or joints involved. If the limitation of motion is noncompensable, a rating of 10 percent is for application for each such major joint or group of minor joints affected by limitation of motion, to be combined, not added under DC 5003. Limitation of motion must be objectively confirmed by findings such as swelling, muscle spasm, or satisfactory evidence of painful motion. In the absence of limitation of motion, a 20 percent evaluation is merited for X-ray evidence of involvement of two or more major joints or two or more minor joint groups, with occasional incapacitating exacerbations. A 10 percent evaluation is merited for X-ray evidence of involvement of two or more major joints or two or more minor joint groups. 38 C.F.R. § 4.71a , DC 5003 (in effect prior to February 7, 2021).

Under DC 5261, limitation of knee extension is rated as follows: a 10 percent rating is warranted when it is limited to 10 degrees; a 20 percent rating is warranted when it is limited to 15 degrees; a 30 percent rating is warranted when it is limited to 20 degrees; a 40 percent rating is warranted when it is limited to 30 degrees; and a 50 percent rating is warranted when it is limited to 45 degrees. 38 C.F.R. § 4.71A, DC 5261.

VA's General Counsel has held that separate ratings can be provided for limitation of knee extension and flexion. VAOPGCPREC 9-2004 ; 69 Fed. Reg. 59,990 (2004).

Under DC 5260, limitation of knee flexion is rated as follows: a 10 percent rating is warranted when it is limited to 45 degrees; a 20 percent rating is warranted when it is limited to 30 degrees; and a 30 percent rating is warranted when it is limited to 15 degrees. 38 C.F.R. § 4.71A, DC 5260.

For rating purposes, normal range of motion in a knee joint is from 0 to 140 degrees. 38 C.F.R. § 4.71, Plate II.

Disabilities evaluated on the basis of limitation of motion require VA to apply the provisions of 38 C.F.R. §§ 4.40, 4.45, pertaining to functional impairment. The Court has instructed that in applying these regulations VA should obtain examinations in which the examiner determines whether the disability is manifested by weakened movement, excess fatigability, incoordination, pain, or flare-ups. Such inquiry is not to be limited to muscles or nerves. These determinations are, if feasible, to be expressed in terms of the degree of additional range-of-motion loss due to any weakened movement, excess fatigability, incoordination, flare-ups, or pain. The examiner should also determine the point, if any, at which such factors cause functional impairment. Moreover, the joints involved should be tested for pain on both active and passive motion, in weight-bearing and non weight-bearing and, if possible, with the range of the opposite undamaged joint. Correia v. McDonald, 28 Vet. App. 158 (2016); Mitchell v. Shinseki, 25 Vet. App. 32, 43-4 (2011); DeLuca v. Brown, 8 Vet. App. 202 (1995); see also Johnston v. Brown, 10 Vet. App. 80, 84-5 (1997); 38 C.F.R. § 4.59.

In this case, as noted above, the ratings that were assigned for the Veteran's service-connected left knee scar, degenerative arthritis of the left knee, status post reconstruction, and degenerative arthritis of the right knee in the July 2018 rating decision were based upon the Veteran's reported and observed symptoms during the June 2018 VA knee examination. There is no evidence in the claims file pertaining to the symptoms or severity of the Veteran's service-connected left or right knee disability (to include the presence and severity of any left knee scarring) during the period from May 7, 2017 through May 6, 2018. Also, neither the Veteran nor his representative have presented any specific argument as to why an earlier effective date is warranted for the award of increased ratings for the service-connected left knee disability (to include a separate rating for a left knee scar) and right knee disability.

In sum, the earliest that is factually ascertainable that a separate rating is warranted for a left knee scar, an increased (30 percent) rating is warranted for the service-connected left knee disability, and an increased (40 percent) rating is warranted for the service-connected right knee disability is the date of the June 2018 VA knee examination. Therefore, May 7, 2018 is the earliest possible effective date for these ratings. See 38 U.S.C. § 5110 (a); 38 C.F.R. § 3.400. Hence, there is no basis upon which to justify granting an effective date earlier than May 7, 2018 and an earlier effective date for the award of a separate rating for a left knee scar, an increased (30 percent) rating for degenerative arthritis of the left knee, status post reconstruction, and an increased (40 percent) rating for degenerative arthritis of the right knee is not warranted. As the preponderance of the evidence is the claim, the benefit of the doubt doctrine is not for application. 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102.

2. Entitlement to an effective date earlier than May 7, 2018 for the award of an increased (70 percent) rating for PTSD

The Veteran's PTSD is rated under 38 C.F.R. § 4.130, DC 9411. This disability is rated according to the General Rating Formula for Mental Disorders (General Rating Formula).

Under the General Rating Formula, a 70 percent rating is assigned when symptoms such as suicidal ideation; obsessional rituals which interfere with routine activities; intermittently illogical, obscure, or irrelevant speech; near-continuous panic or depression affecting the ability to function independently, appropriately and effectively; impaired impulse control (such as unprovoked irritability with periods of violence); spatial disorientation; neglect of personal appearance and hygiene; difficulty in adapting to stressful circumstances (including work or a worklike setting); or inability to establish and maintain effective relationships cause occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood.

A 100 percent rating is assigned when symptoms such as gross impairment in thought processes or communication; persistent delusions or hallucinations; grossly inappropriate behavior; persistent danger of hurting self or others; intermittent inability to perform activities of daily living (including maintenance of minimal personal hygiene); disorientation to time or place; or memory loss for names of close relatives, own occupation or own name cause total occupational and social impairment.

Under the General Rating Formula, the Board must conduct a "holistic analysis" that considers all associated symptoms, regardless of whether they are listed as criteria. Bankhead v. Shulkin, 29 Vet. App. 10, 22 (2017); 38 C.F.R. § 4.130. The Board must determine whether unlisted symptoms are similar in severity, frequency, and duration to the listed symptoms associated with specific disability percentages. Then, the Board must determine whether the associated symptoms, both listed and unlisted, caused the level of impairment required for a higher disability rating. Vazquez-Claudio v. Shinseki, 713 F.3d 112, 114-118 (Fed. Cir. 2013).

The list of symptoms under the rating criteria are meant to be examples of symptoms that would warrant the rating, but are not meant to be exhaustive, and the Board need not find all or even some of the symptoms to award a specific rating. On the other hand, if the evidence shows that the Veteran suffers symptoms or effects that cause occupational or social impairment equivalent to what would be caused by the symptoms listed in the diagnostic code, the appropriate equivalent rating will be assigned. Sellers v. Principi, 372 F.3d 1318, 1326 (Fed. Cir. 2004); Mauerhan v. Principi, 16 Vet. App. 436, 442-43 (2002).

When evaluating a mental disorder, the rating agency shall consider the frequency, severity, and duration of psychiatric symptoms, the length of remissions, and the Veteran's capacity for adjustment during periods of remission. The rating agency shall assign a rating based on all the evidence of record that bears on occupational and social impairment rather than solely on the examiner's assessment of the level of disability at the moment of the examination. 38 C.F.R. § 4.126 (a). When evaluating the level of disability from a mental disorder, VA will also consider the extent of social impairment, but shall not assign a rating solely on the basis of social impairment. 38 C.F.R. § 4.126 (b).

In this case, VA treatment records dated from July 2017 to April 2018 indicate that the Veteran was married and was employed with the Postal Service delivering mail in a rural route. He experienced a euthymic mood, occasional nightmares, distressing memories of traumatic experiences in service, impaired sleep, lowered frustration tolerance, depression/sadness, anxiety, ruminating worries, impaired concentration, and occasionally rapid speech.

Examinations revealed that the Veteran was casually and appropriately dressed, had good grooming and hygiene, and was polite and cooperative. His eye contact was normal, there were no involuntary movements or other apparent neurological abnormalities, his mood was occasionally euthymic, his affect was congruent with mood/mildly irritable/anxious, his thought processing was linear and organized, and his cognition was intact. There was no observed response to internal stimuli, no hallucinations, no suggestion of delusional content, and no expression of any active suicidal or homicidal ideation. The Veteran was fully alert and oriented, his cognition appeared to be intact, and his insight and judgement were good. Diagnoses of PTSD were provided. There is no other evidence in the claims file pertaining to the symptoms or severity of the Veteran's service-connected psychiatric disability during the period from May 7, 2017 through May 6, 2018.

The criteria for a 70 percent rating under the General Rating Formula are met if there are deficiencies in most of the areas of work, school, family relations, judgment, thinking, and mood. Bowling v. Principi, 15 Vet. App. 1, 11-14 (2001).

The Board acknowledges that there is evidence of some impairment in the areas of thinking and mood due to the Veteran's psychiatric disability during the period from May 7, 2017 through May 6, 2018. For instance, symptoms such as nightmares, intrusive thoughts of traumatic events, impaired concentration, depression, and anxiety are indicative of impairment in the areas of thinking and mood.

Regardless of any deficiencies in the areas of thinking and mood due to psychiatric symptoms, a 50 percent rating under the General Rating Formula contemplates impaired thinking and mood disturbances, and the overall evidence does not otherwise demonstrate impairment in most of the other areas that would warrant a 70 percent rating during the period from May 7, 2017 through May 6, 2018. Specifically, the Veteran was employed on a part time basis and married and there is no evidence of any significant occupational impairment or impairment of family relations due to his psychiatric disability during this period. Also, his judgement was good during this entire period, and there is no evidence of any schooling during this period. In sum, it is not shown that the Veteran had deficiencies in most of the areas needed for a 70 percent rating under the General Rating Formula at any time during the period from May 7, 2017 through May 6, 2018.

The evidence also fails to show most of the symptoms listed as examples in the criteria for a 70 percent rating during the period from May 7, 2017 through May 6, 2018. Although the Veteran experienced occasionally rapid speech, his speech was generally normal and there is no evidence of any illogical, obscure, or irrelevant speech. While he experienced consistent depression, there is no evidence that he was unable to perform any activities of daily living and his depression was not otherwise shown to affect his ability to function independently, appropriately, and effectively. Also, the Veteran did not experience any suicidal ideation, obsessed rituals, panic attacks, impaired impulse control, or spatial disorientation, and examinations consistently revealed that the Veteran was fully alert and oriented and had an appropriate appearance and good hygiene.

The Board's finding that the Veteran's disability did not meet or more closely approximate the criteria for a 70 percent rating during the period from May 7, 2017 through May 6, 2018 entails a finding that he did not meet the criteria for a 100 percent rating. Total occupational and social impairment was not shown in that he was married and worked for the Postal Service on a part time basis. Also, his symptoms were not manifested by gross impairment in thought processes or communication, persistent delusions or hallucinations, grossly inappropriate behavior, persistent danger of hurting self or others, an inability to perform activities of daily living (such as maintenance of minimal personal hygiene), disorientation to time or place, or memory loss for names of close relatives, own occupation, or own name.

Overall, the 70 percent rating that was assigned for the Veteran's service-connected PTSD in the July 2018 rating decision was based upon the Veteran's reported and observed symptoms during the June 2018 VA psychiatric examination. Therefore, the earliest that is factually ascertainable that a 70 percent rating is warranted for the service-connected psychiatric disability is the date of the June 2018 VA psychiatric examination. Therefore, May 7, 2018 is the earliest possible effective date for this rating. See 38 U.S.C. § 5110 (a); 38 C.F.R. § 3.400. Hence, there is no basis upon which to justify granting an effective date earlier than May 7, 2018 and an earlier effective date for the award of an increased (70 percent) rating for PTSD is not warranted. As the preponderance of the evidence is the claim, the benefit of the doubt doctrine is not for application. 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102.

REASONS FOR REMAND

1. Entitlement to service connection for bilateral foot disability and thyroid disability are remanded.

The Veteran contends that he experiences symptoms of bilateral foot disability, he has been diagnosed as having hypothyroidism, his treatment records reflect that he was treated for foot symptoms (including pain) within one year of his separation from service, and the physician who conducted a March 2016 VA chronic fatigue syndrome examination suggested in a March 2016 opinion that the Veteran's claimed fatigue may be associated with his thyroid disability. The list of signs or symptoms which may be manifestations of undiagnosed illness or a MUCMI includes fatigue. See 38 C.F.R. § 3.317.

Overall, the Veteran has persistent or recurrent symptoms of bilateral foot disability and current thyroid disability, the record indicates that the disabilities may be associated with service, and the record does not contain sufficient information to make a decision on the claims. Therefore, the Veteran should be afforded appropriate examinations upon remand to assess the nature of his claimed bilateral foot disability and thyroid disability and to obtain appropriate medical opinions as to whether any such disabilities are related to service. See 38 U.S.C. § 5103A (d); McLendon v. Nicholson, 20 Vet. App. 79 (2006).

Also, a January 2016 letter from the Social Security Administration (SSA) indicates that the Veteran was awarded SSA disability benefits for unspecified disability. Any outstanding records pertaining to the Veteran's claim(s) for SSA benefits may be relevant to the remaining issues on appeal. Hence, the AOJ should attempt to obtain any such relevant records upon remand.

Lastly, the evidence indicates that there may be outstanding relevant VA treatment records. The most recent VA treatment records in the claims file are from the Shreveport Vista electronic records system and are dated to August 2018. Any VA treatment records are within VA's constructive possession, and must be obtained regardless of their relevance as long as they are sufficiently identified. Sullivan v. McDonald, 815 F.3d 786, 793 (Fed. Cir. 2016) (VA has a duty to assist in obtaining sufficiently identified VA medical records regardless of their relevance). See also Jones v. Wilkie, 918 F.3d 922 (Fed. Cir. 2019) (confirming the holding in Sullivan). A remand is required to allow VA to obtain them.

2. Entitlement to service connection for disability manifested by fatigue, to include chronic fatigue syndrome, is remanded.

The Veteran was afforded a VA chronic fatigue syndrome examination in March 2016. The examiner who conducted the examination concluded that the Veteran did not have chronic fatigue syndrome and opined that his claimed disability was not likely incurred in or caused by service. This opinion is inadequate because although the examiner explained that the Veteran's fatigue was possibly due to sleep apnea, low B12, neuropathy, hypothyroidism, or alcohol abuse, the examiner did not provide any opinion as to whether the Veteran's claimed disability manifested by fatigue is a manifestation of undiagnosed illness or a MUCMI. Therefore, the Veteran should be afforded a new examination upon remand to assess the nature of his claimed disability manifested by fatigue and to obtain an appropriate medical opinion as to whether any such disability is related to service.

Also, all outstanding relevant SSA records and VA treatment records should be secured upon remand.

3. Entitlement to service connection for back disability, bilateral wrist disability, and left ankle disability are remanded.

The Veteran was afforded VA back, wrist, and ankle examinations in March 2016 and was diagnosed as having lumbar spondylosis. He also reported bilateral wrist and left ankle pain, but was not diagnosed as having any wrist or left ankle disabilities. The examiner who conducted the March 2016 examinations opined that the Veteran's claimed back, wrist, and left ankle disabilities were not likely incurred in or caused by service.

The March 2016 back opinion is inadequate because the examiner partially explained that the Veteran's claimed back disability has a "clear and specific etiology" and is not a MUCMI "of unknown etiology." The examiner also noted that the Veteran's bilateral hand and right ankle arthritis had a "clear and specific etiology," but the examiner did not specifically address the Veteran's claimed wrist and left ankle disabilities. The Board points out that an illness is a MUCMI where either the etiology or pathophysiology of the illness is inconclusive and the determination of whether an illness is "medically unexplained" is particular to the claimant in each case. Stewart v. Wilkie, 30 Vet. App. 383, 389 (2018).

In light of the above inadequacies, the Veteran should be afforded new appropriate examinations upon remand to determine the nature of any current wrist and left ankle disabilities and/or to obtain medical opinions as to whether any such disabilities and the current back disability are related to service.

Also, all outstanding relevant SSA records and VA treatment records should be secured upon remand.

4. Entitlement to service connection for sleep apnea, to include as secondary to service-connected disability, is remanded.

The Veteran contends that he has current sleep apnea that is associated with his service-connected psychiatric disability. He was afforded a VA examination in September 2014 and was diagnosed as having obstructive sleep apnea. The examiner who conducted the examination opined that it was not likely that the Veteran's PTSD was the cause of or related to his sleep apnea. This opinion is inadequate because the examiner did not address whether the Veteran's sleep apnea is aggravated by his service-connected PTSD. Also, the Veteran's medical records indicate that he experiences sleep problems associated with his service-connected gastroesophageal reflux disease (GERD) (see e.g,. the report of an October 2012 VA esophageal conditions examination). A medical opinion has not been obtained as to whether the Veteran's sleep apnea is associated with his service-connected GERD.

In light of the above inadequacies, an appropriate opinion should be obtained upon remand as to whether the Veteran's sleep apnea is related to service or is caused or aggravated by service-connected disability.

Also, all outstanding relevant SSA records and VA treatment records should be secured upon remand.

5. Entitlement to a rating in excess of 20 percent for degenerative arthritis of the left acromioclavicular joint is remanded.

While the Veteran was most recently afforded a VA examination regarding his service-connected left shoulder disability in June 2018, the examination does not comply with the requirements in Sharp v. Shulkin, 29 Vet. App. 26, 34-36 (2017). Specifically, the Veteran reported during the examination that he experienced approximately 4 to 5 flare ups of left shoulder symptoms per week and that the flare ups lasted approximately 1 to 2 days at a time. The examiner who conducted the June 2018 examination noted that the examination was not being conducted during a flare up and that the examination was neither medically consistent nor inconsistent with the Veteran's statements describing functional loss during flare ups. However, the examiner was unable to determine whether pain, weakness, fatigability or incoordination significantly limited functional ability during flare ups without resort to mere speculation, and the only explanation was that there was no conceptual or empirical basis for making such a determination without directly observing function under a flare up condition.

In light of the above inadequacy of the June 2018 examination, the Veteran should be afforded a new examination upon remand to determine the current severity and manifestations of his service-connected left shoulder disability.

Also, all outstanding relevant SSA records and VA treatment records should be secured upon remand.

6. Entitlement to a rating in excess of 10 percent for partial loss of distal finger pad, right middle finger, is remanded.

All outstanding relevant SSA records and VA treatment records should be secured upon remand.

7. Entitlement to an effective date earlier than June 5, 2018 for the award of a TDIU due to service-connected disabilities and entitlement to an effective date earlier than May 7, 2018 for the award of eligibility for DEA benefits under 38 U.S.C. Chapter 35 are remanded.

The Veteran contends that he has only worked on a very limited part-time basis (approximately 4 hours per week) with the Postal Service since 2008, and that he has earned less than the poverty rate since that time. However, his medical records suggest that he sometimes works additional hours as a substitute for other mail carriers (see e.g. the report of a June 2018 VA psychiatric examination), and the level of his earnings during the relevant claim period prior to June 5, 2018 (which dates back to 2014) is otherwise unclear. Therefore, the AOJ should contact the SSA and request the Veteran's earning statements since 2014.

Also, all outstanding relevant SSA records and VA treatment records should be secured upon remand.

Lastly, because the AOJ's implementation of the Board's award of service connection for right shoulder acromioclavicular joint osteoarthritis and rotator cuff tendonitis, right ankle degenerative joint disease, bilateral degenerative joint disease of the hands, irritable bowel syndrome, and erectile dysfunction and a decision on the other remanded service connection and increased rating issues could significantly impact a decision on the issues of entitlement to earlier effective dates for the award of a TDIU and eligibility for DEA benefits, the issues are inextricably intertwined. A remand of the TDIU and DEA issues is required.

The matters are REMANDED for the following action:

1. Implement the Board's award of service connection for right shoulder acromioclavicular joint osteoarthritis and rotator cuff tendonitis, right ankle degenerative joint disease, bilateral degenerative joint disease of the hands, irritable bowel syndrome, and erectile dysfunction, to include the assignment of initial disability ratings.

2. Ask the Veteran to identify the location and name of any VA or private medical facility where he has received treatment for sleep apnea, fatigue, left ankle disability, wrist disability, back disability, foot disability, thyroid disability, left shoulder disability, and right middle finger disability, to include the dates of any such treatment.

Ask the Veteran to complete a VA Form 21-4142 for all records of his treatment for sleep apnea, fatigue, left ankle disability, wrist disability, back disability, foot disability, thyroid disability, left shoulder disability, and right middle finger disability from any sufficiently identified private treatment provider from whom records have not already been obtained. Make two requests for any authorized records, unless it is clear after the first request that a second request would be futile.

3. Obtain the Veteran's outstanding VA treatment records from the Shreveport Vista electronic records system for the period since August 2018; and all such relevant records from any other sufficiently identified VA facility.

4. Contact the SSA and request the Veteran's earning statements for the period since 2014. If the SSA informs the AOJ that it cannot provide earnings statements to VA without the Veteran's approval, the AOJ should undertake to obtain any documentation needed from the Veteran to enable the AOJ to obtain his SSA earning statements.

5. Contact the SSA and request a copy of that agency's decision(s) for disability and/or supplemental security income benefits and all relevant records pertaining to the Veteran's claim(s). Document all requests for information as well as all responses in the claims file.

6. After all efforts have been exhausted to obtain and associate with the claims file any SSA records and additional treatment records, schedule the Veteran for an examination with an appropriate clinician to determine the nature of any current foot disability and whether any such disability is related to service.

The clinician should answer all of the following questions:

(a) Is it at least as likely as not that any identifiable foot disability experienced by the Veteran since approximately December 2015 (1) began during service; (2) manifested within one year after discharge from service (in the case of any currently diagnosed arthritis); OR (3) is related to an injury or disease during service?

(b) Is it at least as likely as not that any identifiable foot disability experienced by the Veteran since approximately December 2015 has at least a partially understood pathophysiology AND etiology?

(c) Is any pes planus experienced by the Veteran since approximately December 2015 a congenital condition or an acquired condition (see 38 C.F.R. § 4.57 for guidance as to what constitutes congenital versus acquired pes planus)? If any current pes planus is an acquired condition, is it at least as likely as not that the pes planus was permanently aggravated beyond its natural progression by service?

(d) Do any foot symptoms experienced by the Veteran since approximately December 2015 represent an objective indication of chronic disability resulting from (1) an undiagnosed illness; OR (2) a medically unexplained chronic multisymptom illness without conclusive pathophysiology OR etiology?

The clinician must provide reasons for each opinion given.

7. After all efforts have been exhausted to obtain and associate with the claims file any SSA records and additional treatment records, schedule the Veteran for an examination with an appropriate clinician to determine the nature of any current thyroid disability and whether any such disability is related to service.

The clinician should answer all of the following questions:

(a) Is it at least as likely as not that any thyroid disability experienced by the Veteran since approximately December 2015 (1) began during service; OR (2) is related to an injury or disease during service?

(b) Is it at least as likely as not that any thyroid disability experienced by the Veteran since approximately December 2015 has at least a partially understood pathophysiology AND etiology?

The clinician must provide reasons for each opinion given.

8. After all efforts have been exhausted to obtain and associate with the claims file any SSA records and additional treatment records, schedule the Veteran for an examination with an appropriate clinician to determine the nature of any current disability manifested by fatigue and whether any such disability is related to service.

The clinician should answer all of the following questions:

(a) Has the Veteran experienced chronic fatigue syndrome at any time since approximately December 2015?

(b) Is it at least as likely as not that any identifiable disability manifested by fatigue experienced by the Veteran since approximately December 2015 (1) began during service; OR (2) is related to an injury or disease during service?

(c) Is it at least as likely as not that any identifiable disability manifested by fatigue experienced by the Veteran since approximately December 2015 has at least a partially understood pathophysiology AND etiology?

(d) Does any fatigue experienced by the Veteran since approximately December 2015 represent an objective indication of chronic disability resulting from (1) an undiagnosed illness; OR (2) a medically unexplained chronic multisymptom illness without conclusive pathophysiology OR etiology?

The clinician must provide reasons for each opinion given.

9. After all efforts have been exhausted to obtain and associate with the claims file any SSA records and additional treatment records, obtain an addendum opinion from an appropriate clinician as to whether any current back disability is related to service.

The clinician should answer all of the following questions:

(a) Is it at least as likely as not that any back disability experienced by the Veteran since approximately December 2015 (1) began during service; (2) manifested within one year after discharge from service (in the case of any currently diagnosed arthritis); OR (3) is related to an injury or disease during service?

(b) Is it at least as likely as not that any back disability experienced by the Veteran since approximately December 2015 has at least a partially understood pathophysiology AND etiology?

The clinician must provide reasons for each opinion given.

10. After all efforts have been exhausted to obtain and associate with the claims file any SSA records and additional treatment records, schedule the Veteran for an examination with an appropriate clinician to determine the nature of any current wrist disability and whether any such disability is related to service.

The clinician should answer all of the following questions:

(a) Is it at least as likely as not that any identifiable wrist disability experienced by the Veteran since approximately December 2015 (1) began during service; (2) manifested within one year after discharge from service (in the case of any currently diagnosed arthritis); OR (3) is related to an injury or disease during service?

(b) Is it at least as likely as not that any identifiable wrist disability experienced by the Veteran since approximately December 2015 has at least a partially understood pathophysiology AND etiology?

(c) Do any wrist symptoms experienced by the Veteran since approximately December 2015 represent an objective indication of chronic disability resulting from (1) an undiagnosed illness; OR (2) a medically unexplained chronic multisymptom illness without conclusive pathophysiology OR etiology?

The clinician must provide reasons for each opinion given.

11. After all efforts have been exhausted to obtain and associate with the claims file any SSA records and additional treatment records, schedule the Veteran for an examination with an appropriate clinician to determine the nature of any current left ankle disability and whether any such disability is related to service.

The clinician should answer all of the following questions:

(a) Is it at least as likely as not that any identifiable left ankle disability experienced by the Veteran since approximately December 2015 (1) began during service; (2) manifested within one year after discharge from service (in the case of any currently diagnosed arthritis); OR (3) is related to an injury or disease during service?

(b) Is it at least as likely as not that any identifiable left ankle disability experienced by the Veteran since approximately December 2015 has at least a partially understood pathophysiology AND etiology?

(c) Do any left ankle symptoms experienced by the Veteran since approximately December 2015 represent an objective indication of chronic disability resulting from (1) an undiagnosed illness; OR (2) a medically unexplained chronic multisymptom illness without conclusive pathophysiology OR etiology?

The clinician must provide reasons for each opinion given.

12. After all efforts have been exhausted to obtain and associate with the claims file any SSA records and additional treatment records, obtain an addendum opinion from an appropriate clinician as to whether any current sleep apnea is related to service or is caused or aggravated by service-connected disability.

The clinician should answer all of the following questions:

(a) Is it at least as likely as not that any sleep apnea experienced by the Veteran since approximately May 2014 (1) began during service; (2) is related to an injury or disease during service; (3) is caused by service-connected PTSD and/or GERD; OR (4) is aggravated by service-connected PTSD and/or GERD?

(b) Is it at least as likely as not that any sleep apnea experienced by the Veteran since approximately May 2014 has at least a partially understood pathophysiology AND etiology?

The clinician must provide reasons for each opinion given.

13. After all efforts have been exhausted to obtain and associate with the claims file any additional treatment records, schedule the Veteran for an examination by an appropriate clinician to determine the current severity of his service-connected left shoulder disability. The examiner should provide a full description of the disability and report all signs and symptoms necessary for evaluating the Veteran's disability under the rating criteria.  

In so doing, the examiner must test the Veteran's active motion, passive motion, and pain with weight-bearing and without weight-bearing of both the left and right shoulder. The examiner must also attempt to elicit information regarding the severity, frequency, and duration of any flare-ups, and the degree of functional loss during flare-ups and with repeated use over time. If it is not possible to provide a specific measurement based on direct observation, the examiner should provide an estimate, if at all possible, of the additional impairment due to flare-ups and with repeated use over time based on the other evidence of record and the Veteran's statements.  

If it is not possible to provide a specific measurement without speculation, the examiner must state whether the need to speculate is due to a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts), a deficiency in the record (additional facts are required), or the examiner (does not have the knowledge or training). The examiner may not rely solely upon his or her inability to personally observe the Veteran during a period of flare-up or following repeated use over time.

The examiner must provide reasons for any opinion given.

 

 

Jonathan Hager

Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board	B. Elwood, 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.