Citation Nr: 21076311 Decision Date: 12/23/21 Archive Date: 12/23/21 DOCKET NO. 18-31 195 DATE: December 23, 2021 ORDER Service connection for allergic rhinitis is granted. An effective date prior to October 6, 2015 for the grant of service connection for right lower extremity (RLE) radiculopathy is denied. An effective date prior to October 6, 2015 for the grant of service connection for lumbar spine arthritis with lumbar spondylolisthesis (lumbar spine disability) is denied. An effective date of March 28, 2008, and no earlier, for the grant of service connection for posttraumatic stress disorder (PTSD) is granted. REMANDED Entitlement to an evaluation in excess of 50 percent for service-connected PTSD is remanded. Entitlement to an evaluation in excess of 10 percent for a service-connected lumbar spine disability is remanded. Entitlement to an evaluation in excess of 20 percent for RLE radiculopathy is remanded. Entitlement to a total disability rating based on individual unemployability (TDIU) due to service-connected disabilities is remanded. FINDINGS OF FACT 1. The Veteran served in Iraq in 2005 and 2006; allergic rhinitis was diagnosed in 2010. 2. VA received the Veteran's original claim of entitlement to service connection for a lumbar spine disability on October 16, 2015; there is no prior unadjudicated pending claim. 3. VA received the Veteran's original claim of entitlement to service connection for RLE radiculopathy on October 16, 2015; there is no prior unadjudicated pending claim. 4. On March 28, 2008, VA received the Veteran's claim for service connection for PTSD; an August 2008 rating decision denied service connection for PTSD; and subsequently, VA received relevant service department records showing combat status after that decision, which the Board finds were, at least in part, necessary to the grant the claim of entitlement to service connection for PTSD, resolving any doubt in favor of the Veteran. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for allergic rhinitis are met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.317; Presumptive Service Connection for Respiratory Conditions Due to Exposure to Particulate Matter, 86 Fed. Reg. 42,724 (August 5, 2021). 2. The criteria for an effective date prior to October 16, 2015 for the grant of service connection for a lumbar spine disability have not been met. 38 U.S.C. § 5110(a); 38 C.F.R. § 3.400. 3. The criteria for an effective date prior to October 16, 2015 for the grant of service connection for RLE radiculopathy have not been met. 38 U.S.C. § 5110(a); 38 C.F.R. § 3.400. 4. The criteria for an effective date of March 28, 2008 for the grant of service connection for PTSD are met. 38 U.S.C. § 5110(a); 38 C.F.R. §§ 3.156(c), 3.400. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from August 1999 to January 2000, February 2000 to July 2000, and from January 2002 to June 2002, with other periods of service. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a rating decision by a Department of Veterans Affairs (VA) Regional Office (RO). In September 2020, the Veteran testified before the undersigned Veterans Law Judge. See Hearing Transcript (September 2020). Although the Veteran's authorized VA representative at that time, and presently, is Alexandra Jackson, she was not present at the hearing. Instead, an attorney (Anna Mikhaylina) identified as affiliated with the law firm of Ms. Jackson represented the Veteran at this proceeding with full consent of the Veteran. See Hearing Transcript at 2. At the hearing, Ms. Mikhaylina was afforded an opportunity to withdraw the challenge raised as to the qualifications of VA examiners, but she declined to do soarguing that two different VA examiners lacked the qualification to conduct the examinations. See Hearing Transcript at 3. Once there is a challenge to the competency of an examiner made with some degree of specificity, "[t]he Board must then make factual findings regarding the qualifications and provide reasons [or] bases for concluding whether [] the medical examiner was competent to provide the opinion." Francway v. Wilkie, 940 F.3d 1304, 1307, 1308 (Fed. Cir. 2019). First, Ms. Mikhaylina stated that with regard to a 2018 VA examiner, who performed the Veteran's lumbar spine and radiculopathy examination, "It is unclear if he has an orthopedic specialty or a specialty that deals with muscles or pain. And for that, we object to his qualifications and competency." See Hearing Transcript at 3. Additionally, she objected to the adequacy of the examination as she perceived there were "internal inconsistencies." See Hearing Transcript at 4. The Board notes that this examination was conducted for the purposes of collecting information regarding symptoms and objective testing and not for the purpose of providing etiological opinions, and it isn't clear that an orthopedic specialist is required. Further, VA is presumed to have properly chosen an examiner who is qualified to provide competent medical evidence, but the requirement that the veteran raise the issue of the competency of the medical examiner is best referred to simply as a "requirement" and not a "presumption of competency." Francway v. Wilkie, 940 F.3d 1304, 1307, n. 1 (Fed. Cir. 2019) (en banc). Notwithstanding, to the extent that the competence of the 2018 back examiner has been challenged, remand is necessary to obtain information regarding the qualifications of the 2018 back examiner. Id. Second, Ms. Mikhaylina also objected to the competency of the examiner who conducted an examination regarding rhinitis, whom she described as not being a specialist that deals with Gulf War Veterans. See Hearing Transcript at 7. The Board finds this argument moot as the claim for service connection is granted herein. The Board notes that after the issues on appeal were certified to the Board in July 2018, updated VA treatment records were associated with the claims file. See BVA Letter (July 2018); CAPRI (November 2020); CAPRI (February 2021). Additional pertinent evidence that is submitted to the agency of original jurisdiction (AOJ) after the statement of the case (SOC) but prior to certification to the Board is to be addressed in a supplemental statement of the case (SSOC). 38 C.F.R. § 19.31(b). After certification to the Board, such evidence must be referred back to the AOJ for initial review, unless the claimant or her representative waives this right, or when the benefit being sought is allowed in full by the Board. 38 C.F.R. § 20.1304(c). In an October 2021 letter, the Board informed the Veteran that additional evidence had been received from the AOJ. See BVA General (October 2021). The letter informed the Veteran that the records were not previously considered by the AOJ and asked the Veteran if he wished to waive his right to that review. The letter specified that if no response was received within 45 days from the date of the correspondence, the Veteran's appeal would be remanded to the AOJ for initial review of the additional pertinent evidence. See BVA General (October 2021). No response was received. The Board finds, however, that remand is not necessary regarding the issue of service connection for allergic rhinitis as it is granted in full; thus, there is no prejudice to the Veteran in proceeding to adjudicate this claim. The Board also finds that remand is not required regarding the earlier effective date claims as VA treatment records dated after 2018 are not relevant to the resolution of those issues, which turn on the date of claims made by the Veteran and the dates of entitlement to service connection all prior to 2018. 1. Entitlement to service connection for allergic rhinitis. The Veteran contends that his allergic rhinitis is caused by his exposure to burn pits in Iraq. See Hearing Transcript at 30. The Board finds that the preponderance of the evidence demonstrates that allergic rhinitis was due to burn pit exposure while serving in Iraq. See 38 C.F.R. §§ 3.2(i), 3.317(e)(1), (2); Presumptive Service Connection for Respiratory Conditions Due to Exposure to Particulate Matter, 86 Fed. Reg. 42,724 (August 5, 2021). Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. § 3.303. The three-element test for service connection requires evidence of: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the current disability and the in-service disease or injury. Shedden v. Principi, 381 F.3d 1163, 1166 -67 (Fed. Cir. 2004). Additionally, service connection for asthma, rhinitis, and sinusitis, to include rhinosinusitis, shall be service-connected even though there is no evidence of such disease during the period of service if it becomes manifest to any degree (including noncompensable) within 10 years from the date of separation from military service that includes a qualifying period of service in Southwest Asia during the Persian Gulf War, or Afghanistan, Syria, Djibouti, or Uzbekistan on or after September 19, 2001, during the Persian Gulf War. See Presumptive Service Connection for Respiratory Conditions Due to Exposure to Particulate Matter, 86 Fed. Reg. 42,724 (August 5, 2021), to be codified at 38 C.F.R. § 3.320. A veteran who has such a qualifying period of service shall be presumed to have been exposed to fine, particulate matter during such service. See 86 Fed. Reg. 42,724. First, the Veteran's DD 214 shows that the Veteran had active service from June 2005 to May 2006. See Certificate of Release or Discharge from Active Duty (October 2015). The Veteran's service personnel records (SPRs) demonstrate that he served in Iraq from September 16, 2005 to April 2, 2006. See DPRIS DD 214 Certificate of Release or Discharge from Active Duty (April 2008). Thus, the Veteran served in Southwest Asia during the Persian Gulf War. See 38 C.F.R. §§ 3.2(i), 3.317(e)(1), (2). Second, the Veteran has a current diagnosis of allergic rhinitis as evidenced by VA treatment records dated in September 2020 and April 2017. See CAPRI (November 2020); CAPRI (May 2018). Rhinitis is one of the above-noted enumerated conditions that is eligible for presumptive service connection. See 86 Fed. Reg. 42,724. The only issue for resolution is whether the allergic rhinitis manifested within 10 years from the date of separation from military service that includes a qualifying period of service in Southwest Asia; here, that is April 2, 2006. Private medical records note a diagnosis of allergic rhinitis on August 12, 2010, well within 10 years from April 2006. See Medical Treatment Record Non-Government Facility (November 2017). Accordingly, the evidence shows that the Veteran's allergic rhinitis manifested within 10 year of his service in Iraq during the Persian Gulf war. Presumptive service connection is thus warranted. Effective Dates Generally, the effective date of an award of disability compensation based on an original claim shall 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. Unless otherwise provided, the effective date of compensation will be fixed in accordance with the facts found, but will not be earlier than the date of receipt of the claimant's application. 38 U.S.C. § 5110(a). If a claim is filed within one year after separation from service, service connection will be effective as of the day after separation. 38 C.F.R. § 3.400(b)(2). Where a claim is granted after the submission of new and material evidence, the effective date is the later of the date of receipt of the new claim or the date entitlement arose. 38 C.F.R. § 3.400(q)(2). If, however, at any time after VA issues a decision on a claim, if VA receives or associates with the claims file relevant official service department records that existed but were not associated with the claims file when VA first decided the claim, VA will reconsider the claim, rather than requiring new and material evidence. 38 C.F.R. § 3.156(c)(1). A claim is not reconsidered, however, where VA could not have obtained the records when it initially decided the claim because the records did not exist at that time, or because the claimant failed to provide sufficient information to identify and obtain the records from the respective service department, the Joint Services Records Research Center, or any other official source. 38 C.F.R. § 3.156(c)(2). Prior to March 24, 2015, a claim was "a formal or informal communication in writing requesting a determination of entitlement, or evidencing a belief in entitlement, to a benefit." 38 C.F.R. § 3.1(p). An informal claim is "[a]ny communication or action indicating intent to apply for one or more benefits." 38 C.F.R. § 3.155(a). VA must look to all communications from a claimant that may be interpreted as applications or claims - formal and informal - for benefits and is required to identify and act on informal claims for benefits. Servello v. Derwinski, 3 Vet. App. 196, 198 (1992). The essential elements for any claim, whether formal or informal, are: (1) an intent to apply for benefits; (2) an identification of the benefits sought; and (3) a communication in writing. Brokowski v. Shinseki, 23 Vet. App. 79, 84 (2009); MacPhee v. Nicholson, 459 F.3d 1323, 1326-27 (Fed. Cir. 2006) (holding that the plain language of the regulations requires a claimant to have intent to file a claim for VA benefits). For claims or appeals filed on or after March 24, 2015, a claim for benefits must be submitted on a standardized form. Standard Claims and Appeals Forms, 79 Fed. Reg. 57,660, 57,686 (Sept. 25, 2014) (eff. Mar. 24, 2015). Claims or appeals pending before VA on that date are to be decided based on the regulations as they existed prior to the amendment. Standard Claims and Appeals Forms, 79 Fed. Reg. 57,660, 57,686. With regard to the date of entitlement, the term date entitlement arose is the date when the claimant met the requirements for the benefits sought, on a facts found basis. 38 U.S.C. § 5110(a); McGrath v. Gober, 14 Vet. App. 28, 35 (2000). These facts found include the date the disability first manifested and the date entitlement to benefits was authorized by law and regulation. See generally 38 C.F.R. § 3.400. For instance, if a claimant filed a claim for benefits for a disability before he actually had the disability, the effective date for benefits can be no earlier than the date the disability first manifested. Ellington v. Peake, 541 F.3d 1364, 1369-70 (Fed. Cir. 2008). However, the date entitlement arose is not the date that the RO receives the evidence, but the date to which that evidence refers. McGrath, 14 Vet. App. at 35. 2. Entitlement to an effective date prior to October 6, 2015 for the grant of service connection for service-connected RLE radiculopathy. 3. Entitlement to an effective date prior to October 6, 2015 for the grant of service connection for the service-connected lumbar spine disability. The Veteran contends that he is entitled to an effective date of October 20, 2014. See NOD (November 2016). The earlier effective date issues were not addressed at the hearing, and the Veteran's attorney noted they would be submitting argument in support of this claim. See Hearing Transcript at 32. Although a memorandum was submitted thereafter, no additional argument was made. See Third Party Correspondence (March 2021). The Board concludes that the preponderance of the evidence is against an effective date earlier than earlier than October 6, 2015 for the grant of service connection for a lumbar spine disability and RLE radiculopathy. 38 U.S.C. § 5110(a); 38 C.F.R. § 3.400. VA received the Veteran's claim for service connection on October 16, 2015. See VA 21-526EZ, Fully Developed Claim (October 2015). A November 2015 VA opinion was obtained. The examiner opined that the Veteran's lumbar spine disability and right lower extremity radiculopathy were related to active duty. See C&P Exam (November 2015). Thereafter, the RO granted service connection for a lumbar spine disability and for RLE radiculopathy, effective October 6, 2015, the date of the Veteran's claim for service connection. See Rating Decision (November 2015). The Board finds that the date of claim was October 16, 2015. The Veteran filed a claim for service connection on October 16, 2015. See VA 21-526EZ, Fully Developed Claim (October 2015). No earlier submission (prior to March 24, 2015) can be interpreted as a formal or informal communication of the intent to file a claim regarding the lumbar spine or the RLE. On and after March 24, 2015, no earlier formal claim was filed. Although the Veteran asserts entitlement to an effective date of October 20, 2014, that was the date a formal claim was submitted for tinnitus and PTSD. That claim made no mention of a lumbar spine or RLE disorder. See VA 21-526 Veterans Application for Compensation or Pension (October 2014). Accordingly, the date of claim was October 16, 2015. The Board finds that the date of entitlement was November 2, 2015, the date of a VA examination that provided positive nexus opinions regarding the lumbar spine and RLE disabilities. See C&P Exam (November 2015). Even if, however, the date of entitlement was prior to that date or prior to the date of the claim, the proper effective date is the later of the two dates. Therefore, an earlier effective date is not warranted for the lumbar spine and RLE disabilities. Accordingly, the claims are denied. 4. Entitlement to an effective date prior to October 20, 2014 for the grant of service connection for PTSD. The Veteran contends that he is entitled to an effective date of March 20, 2008. See NOD (November 2016). The earlier effective date issues were not addressed at the hearing, as the Veteran's attorney noted they would be submitting argument in support. See Hearing Transcript at 32. Although a memorandum was submitted thereafter, no additional argument was made. See Third Party Correspondence (March 2021). The Board concludes that the preponderance of the evidence supports an effective date of March 28, 2008 for a grant of service connection of PTSD based on reconsideration of a claim upon receipt of official service department records that existed but were not associated with the claims file at the time of the July 2008 rating decision. 38 U.S.C. § 5107; 38 C.F.R. § 3.156(c)(1), 3.400(q), (r). On March 28, 2008, VA received the Veteran's claim for service connection for PTSD. See VA 21-526 Veterans Application for Compensation or Pension (March 2008). The Veteran asserted that, while stationed in Iraq, he saw several medical evacuations while working base security, and was almost blown up by a mortar attack. See VA 21-0781, Statement in Support of Claim for PTSD (May 2008); VA 21-4138 Statement In Support of Claim (May 2008). The Veteran's SPRS noted he served in a combat location, Iraq, as a TOW gunner. See DPRIS DD 214 Certified Original Certificate of Release or Discharge From Active Duty (April 2008). In a May 2008 VA examination for headaches, the Veteran reported psychiatric symptoms and the examiner noted the possibility of PTSD. See Medical Treatment Record Government Facility (May 2008). A PTSD examination was conducted. The examiner diagnosed PTSD, based on the Veteran's reports of stressors while deployed to Iraq, to include rocket attacks and other life threatening events. See VA Examination (May 2008). A July 2008 rating decision denied the claim for service connection for PTSD. See Rating Decision (July 2008). The claim was denied because the RO found that there was no evidence of combat service and no possible verification of the Veteran's alleged stressors as the Veteran had not provided sufficient detail. See Rating Decision (July 2008); VA Memo (July 2008). In July 2008, the Veteran submitted a lay statement regarding his stressors, noting that a particular incident took place on December 31, 2005. See Correspondence (July 2008). The Veteran also submitted a listing of terrorist incidents in Iraq from a website. See Third Party Correspondence (July 2008). In August 2008, the RO again denied service connection, stating that the Veteran had not responded to the request for additional information regarding the claimed stressors. See Rating Decision (August 2008). The Veteran did not appeal that decision nor submit new and material evidence within one year. The rating decision is thus final based on the evidence then of record. See 38 U.S.C. § 7105(c); 38 C.F.R. § 20.1103. There is no document submitted after the August 2008 rating decision until an October 20, 2014 claim. On October 20, 2014, VA received a claim for service connection for PTSD. See VA 21-526 Veterans Application for Compensation or Pension (October 2014). Next, the RO obtained a February 2015 opinion based on receipt of a positive opinion from a Vet Center counselor. See Third Party Correspondence (December 2014); VA 21-2507a Request for Physical Examination (January 2015); C&P Exam (February 2015). The examiner noted that the DSM 5 was used to confirm the diagnosis of combat related PTSD but otherwise did not provide an opinion. See C&P Exam (February 2015). The RO requested an addendum opinion that addressed whether any stressors were related to the fear of hostile military or terrorist activity. See VA 21-2507a Request for Physical Examination (April 2015). In an addendum opinion, the VA examiner opined that the Veteran's PTSD was based on stressors related to the fear of hostile military or terrorist activity. See C&P Exam (April 2015). Then, May 2015 rating decision granted service connection for PTSD, effective October 20, 2014, which was the date of receipt of the claim to reopen. See Rating Decision (May 2015). The Board observes that the May 2015 rating decision noted the presence of new service personnel records. See Military Personnel Records (April 2015). As noted, additional SPRs were associated with the claims file in April 2015, after the initial 2008 rating decision. See 38 C.F.R. § 3.156(c)(1). These SPRs included combat fitness reports for participation in combat operations in Iraq in September 2005. See Military Personnel Record (April 2015). The relevant law provides that, at any time after VA issues a decision on a claim, if VA receives or associates with the claims file relevant official service department records that existed but were not associated with the claims file when VA first decided the claim, VA will reconsider the claim, rather than requiring new and material evidence. 38 C.F.R. § 3.156(c)(1). An award made based all or in part on the records is effective on the date entitlement arose or the date VA received the previously decided claim, whichever is later, or such other date as may be authorized by the provisions of this part applicable to the previously decided claim. 38 C.F.R. § 3.156(c)(3). Here, the record shows that, initially, these records existed in 2008 and were sufficiently identified by the Veteran as they were performance reports. 38 C.F.R. § 3.156(c)(2). However, it is not clear if the grant of service connection was based, even partially, on the new SPRs showing that the Veteran engaged in combat operations. Further, although the RO attempted to obtain an opinion prior to receipt of these records, thus indicating the records were not necessary to the grant of service connection, they also noted review of the personnel records in the rating decision. Without more, and resolving all doubt in favor of the Veteran, the Board finds that the RO based the grant of service connection at least in part on the newly received SPRs that showed participation in combat activities. 38 C.F.R. § 3.156(c)(3). The Board notes that a retroactive evaluation of disability resulting from disease or injury subsequently service connected on the basis of the new evidence from the service department must be supported adequately by medical evidence. 38 C.F.R. § 3.156(c)(4). Here, a PTSD examination was conducted in May 2008. The examiner diagnosed PTSD, based on the Veteran's reports of stressors while deployed to Iraq, to include rocket attacks and other life-threatening events. See VA Examination (May 2008). Thus, the medical evidence supports the grant of service connection in 2008. Accordingly, an effective date of March 28, 2008 is warranted, but no earlier. REASONS FOR REMAND 1. Entitlement to an evaluation in excess of 50 percent for service-connected PTSD is remanded. 2. Entitlement to an evaluation in excess of 10 percent for a service-connected lumbar spine disability is remanded. 3. Entitlement to an evaluation in excess of 20 percent for RLE radiculopathy is remanded. The Veteran contends entitlement to higher evaluations for his service-connected PTSD, lumbar spine disability, and RLE radiculopathy. See Hearing Transcript at 2-3. The Board finds that remand is warranted for initial review of additional pertinent evidence. Additional pertinent evidence that is submitted to the AOJ after an SOC but prior to certification to the Board is to be addressed in a SSOC. 38 C.F.R. § 19.31(b). After certification to the Board, such evidence must be referred back to the AOJ for initial review, unless the claimant or her representative waives this right, or when the benefit being sought is allowed in full by the Board. 38 C.F.R. § 20.1304(c). An SOC and an SSOC regarding these issues were issued in June 2018. See SSOC (June 2018); SOC (June 2018). The claim was certified to the Board in July 2018. See BVA Letter (July 2018). In November 2020 and February 2021, updated VA treatment records that address the above-noted issues were associated with the file. See CAPRI (November 2020); CAPRI (February 2021). In an October 2021 letter, the Board informed the Veteran that additional evidence had been received from the AOJ. See BVA General (October 2021). The letter informed the Veteran that the records were not previously considered by the AOJ and asked the Veteran if he wished to waive his right to that review. The letter specified that if no response was received within 45 days from the date of the correspondence, the Veteran's appeal would be remanded to the AOJ for initial review of the additional pertinent evidence. See BVA General (October 2021). No response was received. Remand is thus required. Additionally, recent evidentiary submissions suggest that the Veteran's disabilities may have worsened since the last VA examinations. Therefore, on remand, new VA examinations should be obtained provide a full description of the disability and report all signs and symptoms necessary for evaluating the Veteran's disability under the rating criteria. See 38 C.F.R. § 3.159; see also Palczewski v. Nicholson, 21 Vet. App. 174, 181 (2007); Snuffer v. Gober, 10 Vet. App. 400, 403 (1997); Caffrey v. Brown, 6 Vet. App. 377, 381 (1995) (VA must provide a new examination where a veteran claims the disability is worse than when originally rated and the available evidence is too old to adequately evaluate the current severity). 4. Entitlement to TDIU is remanded. The Veteran submitted a private medical opinion in which the examiner found him unemployable due to a combination of disabilities. See Third Party Correspondence (April 2021). The issue of TDIU, therefore, was raised during the administrative appeal of the Veteran's claims for an increased rating and is thus a component of that claim. See Rice v. Shinseki, 22 Vet. App. 447, 454-455 (2009). The Board finds that remand is warranted as this issue is inextricably intertwined with the increased evaluation claims as the resolution of those claims could have a significant impact on a determination of whether the Veteran is unemployable. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991). The matters are REMANDED for the following action: 1. Provide the Veteran, and his representative, with information regarding the June 2018 Back Conditions VA examiner's qualifications. If the information cannot be provided, send correspondence to the Veteran, and his representative, explaining why it cannot be provided. 2. Schedule the Veteran for an examination by an appropriate clinician to determine the current severity of his service-connected PTSD. 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. The examiner must attempt to elicit information regarding the severity, frequency, and duration of symptoms. To the extent possible, the examiner should identify any symptoms and social and occupational impairment due to his service-connected PTSD alone. 3. Schedule the Veteran for an examination by an appropriate clinician to determine the current severity of his service-connected lumbar spine disability and right lower extremity radiculopathy. The examiner should provide a full description of the disabilities and report all signs and symptoms necessary for evaluating the Veteran's disabilities lumbar spine and radiculopathy 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. 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). In so doing, the examiner must attempt to elicit information regarding the severity, frequency, and duration of any flare-ups, and the degree of functional loss during flare-ups. 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 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). 4. Readjudicate the issues on appeal. If the benefit sought is not granted to the Veteran's satisfaction, send the Veteran and his representative a Supplemental Statement of the Case and provide an opportunity to respond. If necessary, return the case to the Board for further appellate review. C.A. SKOW Veterans Law Judge Board of Veterans' Appeals Attorney for the Board K.M., 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.