Citation Nr: 21076690
Decision Date: 12/27/21	Archive Date: 12/27/21

DOCKET NO. 16-41 861A
DATE: December 27, 2021

ORDER

New and material evidence having been received, the request to reopen a claim of entitlement to service connection for a right knee disorder, for substitution purposes, is granted.

New and material evidence not having been received, the petition to reopen a claim of entitlement to service connection for headaches for, substitution purposes, is denied.

New and material evidence not having been received, the petition to reopen a claim of entitlement to service connection for an acquired psychiatric disorder, including anxiety disorder, for substitution purposes, is denied.

Entitlement to service connection for a left knee disability, for substitution purposes, is denied.

As the reduction in the evaluation of degenerative disc disease (DDD) of the lumbar spine from 40 percent to 10 percent, effective May 16, 2016, was improper, restoration of the 40 percent rating as of such date, for substitution purposes, is granted.

As the reduction of the disability rating for left bicipital tendinitis from 10 percent to 0 percent, effective May 16, 2016, was improper, restoration of the 10 percent rating, for substitution purposes, is granted.

Entitlement to an initial compensable rating for bilateral hearing loss, for substitution purposes, is denied.

Entitlement to a rating in excess of 20 percent for degenerative disc disease (DDD) of the lumbar spine, during the period prior to December 15, 2014, for substitution purposes, is denied.

Entitlement to a rating in excess of 40 percent for DDD of the lumbar spine, beginning December 15, 2014, for substitution purposes, is denied.

Entitlement to a rating in excess of 10 percent for right shoulder sprain prior to September 19, 2014, for substitution purposes, is denied.

Entitlement to a rating in excess of 20 percent for right shoulder sprain on and after September 19, 2014, for substitution purposes, is denied.

Entitlement to a rating in excess of 10 percent for left bicipital tendinitis, for substitution purposes, is denied.

REMANDED

Entitlement to service connection for a right knee disability, for substitution and/or accrued benefits purposes, is remanded.

Entitlement to service connection for right arm tendonitis, to include as secondary to the service-connected left bicipital tendinitis, for substitution and/or accrued benefits purposes, is remanded.

FINDINGS OF FACT

1.   In an August 2002 rating decision, the RO denied the Veteran's claim of entitlement to service connection for a right knee condition; although the Veteran filed a notice of disagreement to this decision, an appeal was not perfected.  

2.   Evidence added to the record since the August 2002 rating decision relates to an unestablished fact necessary to substantiate the claim of service connection for a right knee condition and raises a reasonable possibility of substantiating that claim.  

3.   In an October 2014 rating decision, the RO denied the Veteran's claim of entitlement to service connection for headaches; the Veteran did not appeal that decision within one year of notice thereof.  

4.   Evidence added to the record since the October 2014 rating decision does not, by itself or when considered with previous evidence of record, relate to an unestablished fact necessary to substantiate the claim of service connection for headaches.  

5.   In the October 2014 rating decision, the RO denied the Veteran's claim of entitlement to service connection for an acquired psychiatric disorder; the Veteran did not appeal that decision within one year of notice thereof.  

6.   Evidence added to the record since the October 2014 rating decision does not, by itself or when considered with previous evidence of record, relate to an unestablished fact necessary to substantiate the claim of service connection for an acquired psychiatric disorder, including anxiety disorder.  

7.   The Veteran's left knee disorder did not have its onset during active service, did not manifest until many years after separation from active service, and is not otherwise shown to be related to service.  

8.   The May 2016 rating decision reducing the rating for the Veteran's lumbar disability from 40 percent to 10 percent was based on an inadequate examination, which was less full and complete than the previous examination upon which the award of a 40 percent rating was based; the record at the time of the reduction does not contain sufficient evidence of improvement in the Veteran's condition and ability to function under the ordinary conditions of life and work, and the RO did not address this in the decision reducing the evaluation.  

9.   The May 2016 rating decision that reduced the rating for the Veteran's left bicipital tendinitis did not reflect specific considerations of 38 C.F.R. §§ 3.105, 3.344.  

10.   The September 2015 DBQ audiological examination revealed an average of 35 decibel loss in the right ear, with speech recognition of 88 percent, corresponding to Level II hearing; and, for the left ear, an average of 44 decibel loss, with a speech recognition score of 88 percent, corresponding to Level II hearing.  

11.   Prior to September 19, 2014, the Veteran's right shoulder sprain did not limit the arm's range of motion to the shoulder level.  

12.   From December 1, 2014, the Veteran's right shoulder sprain did not limit the arm's range of motion to midway between the side and shoulder level.  

13.   Prior to December 15, 2014, the Veteran's lumbar spine disability was manifested by forward flexion greater than 30 degrees without ankylosis; no incapacitating episodes having a total duration of at least six weeks during any 12 months, or any associated neurological pathology.  

14.   From December 15, 2014, the Veteran's service-connected DDD of the lumbar spine has been manifested by limitation of forward flexion of the thoracolumbar spine to 30 degrees when pain on motion is taken into consideration, but has not been productive of ankylosis or incapacitating episodes having a total duration of at least six weeks during any 12-months, or any associated neurological pathology (except for the already service-connected radiculopathy of the right lower extremity).  

15.   The Veteran's left bicipital (elbow) tendinitis is not manifested by flexion limited to 90 degrees or extension limited to 75 degrees.  

CONCLUSIONS OF LAW

1.   The criteria for reopening the claim of entitlement to service connection for a right knee disorder, for substitution purposes, have been met.  38 U.S.C. §§ 5108, 7105; 38 C.F.R. §§ 3.156, 20.1103.  

2.   The criteria for reopening the claim of entitlement to service connection for headaches, for substitution purposes, have not been met.  38 U.S.C. §§ 5108, 7105; 38 C.F.R. §§ 3.102, 3.156.  

3.   The criteria for reopening the claim of entitlement to service connection for an acquired psychiatric disorder, including anxiety disorder, have not been met.  38 U.S.C. §§ 5108, 7105; 38 C.F.R. §§ 3.102, 3.156.  

4.   The criteria for service connection for a left knee disability, for substitution purposes, have not been met.  38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304.  

5.   The reduction in rating for the Veteran's DDD of the lumbar spine from 40 percent to 10, effective May 16, 2016, was not proper; it is therefore void, and a restoration of a 40 percent rating from May 16, 2016, for substitution purposes, is warranted.  38 U.S.C. §§ 1155, 5107, 5112; 38 C.F.R. §§ 3.105, 3.344, 4.71a, Diagnostic Code (DC) 5243.  

6.   The reduction of the rating for left arm bicipital tenosynovitis, from 10 percent to 0 percent, effective May 16, 2016, was improper and is void ab initio.  38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.105, 3.344, 4.71a, DC 5024.  

7.   The criteria for an initial compensable rating for bilateral hearing loss, for substitution purposes, have not been met.  38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.1, 4.2, 4.7, 4.10, 4.16, 4.85, 4.86, Diagnostic Code 6100.  

8.   The criteria for a rating in excess of 10 percent prior to September 19, 2014, for right shoulder sprain, for substitution purposes, have not been met.  38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.1, 4.3, 4.7, 4.71a, Diagnostic Code 5201.  

9.   The criteria for a rating in excess of 20 percent from December 1, 2014, for right shoulder sprain, for substitution purposes, have not been met.  38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.1, 4.3, 4.7, 4.71a, Diagnostic Code 5201.  

10.   For the period prior to December 15, 2014, the criteria for a rating in excess of 20 percent for DDD of the lumbar spine, for substitution purposes, have not been met.  38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.321, 4.1-4.14, 4.40 4.46, 4.71a, Diagnostic Code 5243.  

11.   The criteria for a rating in excess of 40 percent for DDD of the lumbar spine, for substitution purposes, have not been met.  38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.321, 4.1-4.14, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5243.  

12.   The criteria for a rating in excess of 10 percent for left bicipital (elbow) tendinitis have not been met.  38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.3, 4.7, 4.40, 4.45, 4.59, 4.71a, DCs 5024, 5206, 5207, 5208.  

REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

The Veteran served on active duty from July 1998 to July 2002.  The Veteran died in November 2017.  The Appellant is the Veteran's surviving spouse and was properly substituted as the appellant in this case.  

This matter comes before the Board of Veterans' Appeals (Board) from rating decisions by the Department of Veterans Affairs (VA) Agency of Original Jurisdiction (AOJ).  

During the pendency of this appeal, in a May 2016 rating decision, the Veteran's degenerative disc disease of the lumbar spine was reduced to 10 percent, effective May 16, 2016, and the rating for the left bicipital tendinitis was reduced to 0 percent, effective May 16, 2016.  As the increased rating claims were pending at that time, the propriety of the reductions is also before the Board.  

New and Material Evidence

When a claimant fails to timely appeal an RO decision denying his claim for benefits, that decision becomes final and can no longer be challenged.  See DiCarlo v. Nicholson, 20 Vet. App. 52, 55 (2006) (Except as provided by law, when a case or issue has been decided and an appeal has not been taken within the time prescribed by law, the case is closed, the matter is ended, and no further review is afforded.).  However, pursuant to 38 U.S.C. § 5108, 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.  

Unappealed rating decisions by the RO are final with the exception that a claim may be reopened by submission of new and material evidence.  38 U.S.C. §§ 5108, 7105(c); 38 C.F.R. § 3.156.  When a veteran seeks to reopen a claim based on new evidence, VA must first determine whether the additional evidence is "new" and "material." Smith v. West, 12 Vet. App. 312 (1999).  

New evidence is defined as existing evidence not previously submitted to agency decision makers.  Material evidence means 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 previously of record and must raise a reasonable possibility of substantiating the claim.  38 C.F.R. § 3.156 (a).  

The determination of whether newly submitted evidence raises a reasonable possibility of substantiating the claim should be considered a component of the question of what new and material evidence is, rather than a separate determination to be made after the Board has found that evidence is new and material.  See Shade v. Shinseki, 24 Vet. App. 110 (2010).  

For the purpose of establishing whether new and material evidence has been received, the credibility of the evidence, although not its weight, is to be presumed.  Justus v. Principi, 3 Vet. App. 510, 513 (1992).  

1.   Whether new and material evidence has been received to reopen a claim of entitlement to service connection for a right knee disorder

The Veteran's claim for service connection for a right knee disorder was denied by the RO in August 2002.  The evidence of record at the time of the rating decision included the Veteran's service treatment records (STRs), which show that the Veteran was seen in April 1999 with complaints of pain in the right knee for the previous 3 weeks; he was diagnosed with patellofemoral pain syndrome, right knee.  Separation examination in May 2002 showed that a clinical evaluation of the lower extremities was normal.  

The record also included report of a VA examination, conducted in July 2002, at which time the Veteran reported that he had been experiencing pain in the right knee ever since he suffered a trauma to his knee during physical training in service.  He stated that the pain was associated with swelling, tightness, and weakness.  The pertinent diagnosis was right knee sprain, resolved.  

An August 2002 rating decision denied the Veteran's claim of entitlement to service connection for a right knee disability based on a finding that there was no evidence of a permanent, residual, or chronic right knee disability in the STRs or at a VA examination, or evidence of degenerative changes involving the right knee to a compensable degree within one year of separation from active service.  The in-service incident was considered to be acute and transitory.  

The Veteran filed a notice of disagreement (NOD) with this rating decision in April 2003, and a statement of the case (SOC) was issued in June 2003; however, the Veteran did not perfect the appeal.  Accordingly, the August 2002 rating decision became final.  See 38 U.S.C. § 7105 (c); 38 C.F.R. §§ 3.104, 20.302, 20.1103.  Moreover, no additional service records (warranting reconsideration of the claim) have been received at any time.  See 38 C.F.R. § 3.156 (c).  

The Veteran's request to reopen the claim for service connection for a right knee disorder (VA Form 21-4138) was received in November 2012.  

In this regard, the Board notes that the pertinent evidence added to the record since the final denial in August 2002 includes VA progress notes showing ongoing treatment for chronic right knee pain, and a statement from Dr. J.I., dated in November 2012, indicating that the Veteran had a history of knee injury at the time he was on active duty.  Dr. J.I. related that, to their knowledge, the Veteran was treated for knee pain in service, and he continued to have problems after service.  This evidence is both new and material and, therefore, sufficient to reopen the Veteran's claim.  The evidence is "new" as it had not been previously considered by VA, and "material" because it relates to unestablished facts necessary to substantiate the underlying service connection claim.  Therefore, the Board determines that this evidence is not cumulative or redundant of the evidence previously of record and relates to an unestablished fact necessary to substantiate the claim for service connection for a right knee disorder.  Accordingly, entitlement to service connection for a right knee disorder is reopened.  See 38 U.S.C. § 5108; 38 C.F.R. § 3.156.  

2.   Whether new and material evidence has been received to reopen a claim of entitlement to service connection for headaches

The Veteran first claimed entitlement to service connection for headaches in January 2014, and an October 2014 rating decision denied the claim.  Evidence of record at the time of the October 2014 rating decision includes the Veteran's STRs and VA treatment records dated from February 2003 to October 2014.  The RO noted that the Veteran's STRs did not show complaints, treatments, or diagnoses related to headaches.  The RO also noted that while the medical evidence showed that the Veteran received treatment for complaints of headaches, there was no link found between the headaches and military service.  The RO found that the headache condition did not manifest to a compensable degree within one year of release from service.  Consequently, the RO denied service connection as the claimed headaches were not related to the Veteran's service.  

The Veteran did not file a NOD with that determination within one year of the notification thereof on October 9, 2014.  Consequently, as no timely NOD or new and material evidence was received during the appeal period following the notice of determination, that decision became final.  See 38 C.F.R. § 3.156 (b); Buie v. Shinseki, supra; 38 C.F.R. §§ 20.200, 20.201, 20.1103.  New and material evidence is therefore required to reopen the claim of service connection for migraines.  See 38 U.S.C. § 5108; Jackson v. Principi, supra; 38 C.F.R. § 3.156.  Moreover, no additional relevant service records (warranting reconsideration of the claim) have been received at any time.  See 38 C.F.R. § 3.156 (c).  

The Veteran's request to reopen the claim for service connection for migraines (VA Form 21-526EZ) was received in August 2015.  Evidence received since the October 2014 rating decision consists of VA treatment records dated through April 2017.  The VA treatment notes reflect ongoing treatment for a variety of conditions, including chronic headaches; however, no etiology opinion was contained in these records.  

Additionally, while the Veteran has submitted additional statements regarding headaches during the course of the appeal, such are duplicative of the contentions that were previously of record at the time of the October 2014 rating decision.  

Therefore, the Board finds that, while some of the evidence added to the record is new, as it was not previously considered by VA, it is duplicative and not material, as it does not specifically address the reason the claim was previously denied.  Specifically, the Veteran has not submitted any new evidence indicating that he has a headache disability that is etiologically related to active service.  To the extent that the Veteran submitted new statements relating his claimed headaches to service, such statements are duplicative or cumulative of statements that were previously submitted.  

Therefore, the Board finds that new and material evidence has not been presented sufficient to reopen the appellant's claim of entitlement to service connection for headaches.  Accordingly, reopening of the claim of entitlement to service connection for headaches is not warranted.  38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, supra.  

3.   Whether new and material evidence has been received to reopen a claim of entitlement to service connection for an acquired psychiatric disorder, including anxiety disorder

In January 2014, the Veteran filed a claim for entitlement to service connection for a mental health condition.  The October 2014 rating decision denied entitlement to service connection for a mental health condition as the evidence did not show a nexus between the Veteran's service and current mental health condition, diagnosed as anxiety and depression.  The Board finds that the mental health condition claim currently on appeal is the same claim as the one denied in the October 2014 rating decision.  See Boggs v. Peake, 520 F.3d 1330, 1335 (Fed. Cir. 2008); Clemons v. Shinseki, 23 Vet. App. 1 (2009).  Therefore, the Board has recharacterized the claim as one to reopen service connection for an acquired psychiatric disorder.  

The evidence before VA at the time of the October 2014 rating decision consisted of the Veteran's STRs; private treatment reports dated from March 2003 to November 2010; VA medical records dated from September 2005 to October 2014; and the Veteran's lay assertions.  

In October 2014, the Veteran was advised of the decision and his appellate rights.  However, no further communication regarding his claim of entitlement to service connection was received until August 2015, when VA received a petition to reopen his claim for entitlement to service connection for a mental health condition.  Therefore, the October 2014 rating decision is final.  38 U.S.C. § 7105 (c); 38 C.F.R. §§ 3.104, 20.302, 20.1103.  In this regard, the Board has considered the applicability of 38 C.F.R. § 3.156 (b), which provides that, when new and material evidence is received prior to the expiration of the appeal period, it will be considered as having been filed in connection with the claim which was pending at the beginning of the appeal period.  However, in the instant case, such regulation is inapplicable as no relevant evidence pertaining to the Veteran's claim for service connection was received prior to the expiration of the appeal period stemming from the October 2014 rating decision.  See also Long v. Wilkie, 33 Vet. App. 167 (2020); Bond v. Shinseki, 659 F.3d 1362, 1367 (Fed. Cir. 2011); Roebuck v. Nicholson, 20 Vet. App. 307, 316 (2006); Muehl v. West, 13 Vet. App. 159, 161-62 (1999).  Moreover, no additional relevant service records (warranting reconsideration of the claim) have been received at any time.  See 38 C.F.R. § 3.156 (c).  

The Veteran's request to reopen his claim for service connection for a mental health condition (VA Form 21-526EZ) was received in August 2015.  Evidence received since the October 2014 rating decision includes VA progress notes dated from March 2015 to September 2017, and the Veteran's lay assertions.  

The new VA medical records show continued treatment for a psychiatric disorder, diagnosed as anxiety disorder and mood disorder.  These records affirm that the Veteran has a current disability; however, the existence of a current disability was established in the October 2014 rating decision, and as such, this evidence does not relate to an unestablished fact necessary to substantiate the claim.  No new evidence has been submitted that raises a reasonable probability of establishing a nexus between the Veteran's service and anxiety and mood disorder.  Consequently, the evidence associated with the claims file since October 2014 does not relate to or raise a reasonable probability of establishing a nexus between the Veteran's service and currently diagnosed psychiatric disorder.  

Moreover, other than the Veteran's cumulative assertions, no new evidence has been submitted showing a reasonable probability of establishing service connection for a psychiatric disability.  As such, the new evidence submitted is not material.  

After a review of the evidence mentioned above, the Board finds that new and material evidence relating to the appellant's claim of entitlement to service connection for a psychiatric disorder, including depression and anxiety, has not been received, and the claim may not be reopened.  There is no reasonable doubt to be resolved as to reopening the claim.  38 U.S.C. § 5107 (b), 38 C.F.R. § 3.102.  

Service Connection

Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active service.  See 38 U.S.C. § 1110; 38 C.F.R. § 3.303 (a).  "To establish a right to compensation for a present disability, a Veteran must show: "(1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service"- the so-called "nexus" requirement."  Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2010) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004).  

Certain chronic diseases, including arthritis, may be presumed to have been incurred in or aggravated by service if manifest to a compensable degree within one year of discharge from service, even though there is no evidence of such disease during service.  38 U.S.C. §§ 1101, 1112, (2012); 38 C.F.R. §§ 3.307, 3.309(a) (2019).  While the disease need not be diagnosed within the presumption period, it must be shown, by acceptable lay or medical evidence, that there were characteristic manifestations of the disease to the required degree during that time.  Id.  

For secondary service connection, it must be shown that the disability for which the claim is made is proximately due to or the result of or aggravated by a disability for which service connection has already been established.  38 C.F.R. § 3.310; Allen v. Brown, 7 Vet. App. 439 (1995) (en banc).  

The Veteran can provide competent reports of factual matters of which he has first-hand knowledge, such as experiencing pain in service, reporting to sick call, being placed on limited duty, and undergoing physical therapy.  See Washington v. Nicholson, 19 Vet. App. 362, 368 (2005).  Lay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a lay person is competent to identify the medical condition (noting that sometimes the lay person will be competent to identify the condition where the condition is simple, for example a broken leg, and sometimes not, for example, a form of cancer), (2) the lay person is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional.  See Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007).  Similarly, laypersons are competent to diagnose and provide nexus opinions to some extent, notably where the diagnosis or opinion is not of a complex nature.  Id., see also Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009).  

When there is an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant.  38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990).  

4.   Entitlement to service connection for a left knee disability

The appellant essentially contends that a currently diagnosed left knee disability is related to active military service.  

The question for the Board is whether the Veteran had a current disability that began during service or is at least as likely as not related to an in-service injury, event, or disease. 

In this regard, VA treatment reports show that the Veteran suffered a blunt trauma to the left knee in October 2010.  A primary care note, dated in April 2011, indicated that the Veteran recently dropped a massive beam onto the left knee, and he was being seen post-emergency room for follow up.  The assessment was knee injury, likely medial collateral ligament tear.  An MRI of the knee revealed a mild sprain of the medial collateral ligament and moderate prepatellar subcutaneous soft tissue edema.  A knee immobilizer was applied to the left leg.  A VA attending note, dated in April 2017 reported a finding of left patellar avulsion fracture.  

The Board concludes that, while the Veteran had a current diagnosis of ligament sprain of the left knee and left patellar avulsion fracture, the preponderance of the evidence weighs against a finding that the Veteran's diagnosis of left knee sprain and patellar avulsion fracture began during service or is otherwise related to an in service injury, event, or disease.  38 U.S.C. §§ 1110, 1131, 5107(b); Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009); 38 C.F.R. § 3.303 (a), (d).  

Significantly, the STRs are negative for any complaints or findings of a left knee injury or disability.  While the records show that the Veteran received treatment for right knee pain, there is no mention of an injury or treatment for the left knee.  Furthermore, as noted above, a left knee disability was not documented until October 2010, approximately 8 years after separation from service, and the lengthy gap between service and the first indication of a disorder is another factor that weighs against the claim.  See Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000).  

Moreover, there is no competent evidence indicating that there is a relationship between the Veteran's current left knee disability and active military service.  The Veteran has not submitted any competent evidence of a nexus to service; rather, the evidence indicates that the Veteran's left knee disability is related to a post service injury in October 2010.  Absent a competent medical opinion linking the Veteran's left knee disability to his period of service, service connection must be denied.  

In this regard, the Board acknowledges that the Veteran had not undergone a VA examination in connection with the left knee disability claim.  However, the record reflects no evidence establishing that an event, injury, or disease occurred in service.  To the extent a left knee disability is shown, the record does not show an injury, diagnosis, or an onset of manifestations of a disease during service or within one post-service year.  Therefore, the requirements for obtaining a VA medical opinion are not met.  38 C.F.R. § 3.159 (c)(4)(i); See McLendon v. Nicholson, 20 Vet. App. 79 (2006).  

The Board acknowledges the Veteran and appellant's prior contentions that the Veteran suffered from a left knee disability as a result of military service.  Although lay persons are competent to provide opinions on some medical issues, see Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011), as to the specific issue in this case, etiology of a left knee disability is outside the realm of common knowledge of a lay person.  See Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007) (lay persons not competent to diagnose cancer)."  Accordingly, the Board finds that the statements as to medical causation are not competent evidence to establish service connection for a left knee disability.  

Based on the foregoing, the Board finds that the preponderance of the evidence is against a grant of service connection for a left knee disability.  In reaching this conclusion, the Board has considered the benefit-of-the-doubt doctrine.  However, as the preponderance of the evidence is against the appellant's claim, that doctrine is not applicable, and service connection must be denied.  See 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. at 53-56 (1990). 

Rating Reductions

The law provides that where a rating decision was made without observance of law, although a remand for compliance with that law would normally be an adequate remedy, in a rating reduction case the erroneous reduction must be vacated and the prior rating restored.  Schafrath v. Derwinski, 1 Vet. App. 589, 595 (1991).  

Veteran's disability rating shall not be reduced unless an improvement in the disability is shown to have occurred.  38 U.S.C. § 1155 (2012).  When a veteran's disability rating is reduced by a RO without following the applicable regulations, the reduction is void ab initio.  See Greyzck v. West, 12 Vet. App. 288, 292 (1999).  

Prior to reducing a Veteran's disability rating, VA is required to comply with several general VA regulations applicable to all rating-reduction cases, regardless of the rating level or the length of time that the rating has been in effect. See 38 C.F.R. §§ 4.1 , 4.2, 4.10 (2020). These provisions impose a clear requirement that VA rating reduction be based upon review of the entire history of the Veteran's disability.  Schafrath, 1 Vet. App. at 594.  Such review requires VA to ascertain, based upon review of the entire recorded history of the condition, whether the evidence reflects an actual change in the disability and whether the examination reports reflecting such change are based upon thorough examinations. Thus, in any rating reduction case not only must it be determined that an improvement in a disability has actually occurred, but also that that improvement actually reflects an improvement in the Veteran's ability to function under the ordinary conditions of life and work.  See Faust v. West, 13 Vet. App. 342, 350 (2000).  

In certain rating reduction cases, VA benefits recipients are to be afforded greater protections, set forth in 38 C.F.R. § 3.344.  The provisions of 38 C.F.R. § 3.344 (c), however, specify that the provisions of 38 C.F.R. § 3.344 (a) and (b) are only applicable for ratings which have continued for long periods at the same level (five years or more).  They do not apply to disabilities which have not become stabilized and are likely to improve.  

Pursuant to 38 C.F.R. § 3.344 (a), if a rating has been in effect for more than 5 years, then rating agencies will handle cases of changes of medical findings or diagnosis so as to produce the greatest degree of stability of disability evaluations consistent with the laws and VA regulations governing disability compensation and pension.  38 C.F.R. § 3.344 (a).  It is essential that the entire record of examination and the medical-industrial history be reviewed to ascertain whether the recent examination is full and complete, including all special examinations indicated as a result of general examination and the entire case history.  Id.  

Examinations which are less thorough than those on which payments were originally based will not be used as a basis for reduction.  Id.  Ratings on account of diseases subject to temporary or episodic improvement will not be reduced on any one examination, except in those instances where all the evidence of record clearly warrants the conclusion that sustained improvement has been demonstrated. Id.  Moreover, though material improvement in the physical or mental condition is clearly reflected, the rating agency will consider whether the evidence makes it reasonably certain that the improvement will be maintained under the ordinary conditions of life.  Id.  

By regulation, the RO must observe the provisions of 38 C.F.R. § 3.344 (a) when reducing a disability rating that has been in place for more than five years.  Greyzck, 12 Vet. App. at 292. It is well established that failure of the RO to consider and apply the applicable provisions of 38 C.F.R. § 3.344 in such cases, renders rating decision void ab initio.  See Greyzck, 12 Vet. App. at 292; see also Hayes v. Brown, 9 Vet. App. 67, 73 (1996); Dofflemyer v. Derwinski, 2 Vet. App. 277 (1992).  The law provides that where a rating reduction was made without observance of law, although a remand for compliance with that law would normally be an adequate remedy, in a rating reduction case the erroneous reduction must be vacated, and the prior rating restored.  Schafrath, 1 Vet. App. at 595.  

The applicable legal standard summarized in Sorakubo v. Principi, 16 Vet. App. 120 (2002), requires that in the case of a rating reduction, the record must establish that the reduction is warranted by a preponderance of the evidence and that the reduction was in compliance with 38 C.F.R. § 3.344, if applicable.  See Brown, 5 Vet. App. at 42.  In addressing whether improvement is shown, the comparison point generally is the last examination on which the rating at issue was assigned or continued.  See Hohol v. Derwinski, 2 Vet. App. 169 (1992).  In general, the RO's reduction of a rating must have been supported by the evidence on file at the time of the reduction.  However, pertinent post-reduction evidence favorable to restoring the rating must also be considered.  Dofflemeyer v. Derwinski, 2 Vet. App. 277 (1992).  

5.   Whether the reduction in the disability rating for DDD of the lumbar spine from 40 percent to 10 percent was proper 

The appellant contends that the reduced rating from 40 percent to 10 percent, effective May 16, 2016, for the DDD of the lumbar spine was improper.  

The Board notes that the Veteran was not provided advance notice of the lumbar spine rating reduction pursuant to 38 C.F.R. § 3.105 (e).  In this regard, the May 2016 rating decision that reduced the Veteran's back rating from 40 percent to 10 percent as of May 16, 2016 did not result in a decrease in the total monthly compensation payments.  Therefore, advance notice pursuant to 38 C.F.R. § 3.105 (e) for the reduction was not required.  

The Veteran's lumbar spine disability was evaluated under 38 C.F.R. § 4.104, Diagnostic Code (DC) 5243.  

Diagnostic Code 5243 provides that IVDS is to be rated either under the General Rating Formula for Diseases and Injuries of the Spine or under the Formula for Rating IVDS Based on Incapacitating Episodes, whichever method results in the higher rating when all disabilities are combined under 38 C.F.R. § 4.25.  

The Formula for Rating IVDS Based on Incapacitating Episodes provides that a 10 percent rating is warranted for IVDS with incapacitating episodes having a total duration of at least one week but less than 2 weeks during the past 12 months.  A 20 percent rating is warranted for IVDS with incapacitating episodes having a total duration of at least 2 weeks but less than 4 weeks during the past 12 months.  A 40 percent rating is warranted for IVDS with incapacitating episodes having a total duration of at least 4 weeks but less than 6 weeks during the past 12 months.  A 60 percent rating is warranted for IVDS with incapacitating episodes having a total duration of at least 6 weeks during the past 12 months.  38 C.F.R. § 4.71a, Formula for Rating IVDS Based on Incapacitating Episodes.  

Note 1 to Diagnostic Code 5243 provides that, for purposes of ratings under Diagnostic Code 5243, an incapacitating episode is a period of acute signs and symptoms due to intervertebral disc syndrome that requires bed rest prescribed by a physician and treatment by a physician. Id.  at Note 1.  

Under the General Rating Formula for Diseases and Injuries of the Spine, a 10 percent rating is warranted for forward flexion of the thoracolumbar spine greater than 60 degrees but not greater than 85 degrees; or, combined range of motion of the thoracolumbar spine greater than 120 degrees but not greater than 235 degrees; or, muscle spasm, guarding, or localized tenderness not resulting in abnormal gait or abnormal spinal contour; or, vertebral body fracture with loss of 50 percent or more of the height.  A 20 percent rating is warranted for forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees; or the combined range of motion of the thoracolumbar spine not greater than 120 degrees; or, muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis.  A 40 percent rating is warranted for forward flexion of the thoracolumbar spine to 30 degrees or less; or, favorable ankylosis of the entire thoracolumbar spine.  A 50 percent rating is warranted for unfavorable ankylosis of the entire thoracolumbar spine. A 100 percent evaluation is warranted for unfavorable ankylosis of the entire spine.  38 C.F.R. § 4.71a, General Rating Formula for Diseases and Injuries of the Spine.  

Any associated objective neurological abnormalities, including, but not limited to, bowel or bladder impairment, are to be evaluated separately under an appropriate diagnostic code. Id.  at Note 1.  

Ankylosis is defined as "immobility and consolidation of a joint due to disease, injury, or surgical procedure." Dorland's Illustrated Medical Dictionary, 94 (32nd ed. 2012).  Fixation of a spinal segment in neutral position (zero degrees) always represents favorable ankylosis. Id. at Note 5.  

When evaluating musculoskeletal disabilities based on limitation of motion, 38 C.F.R. § 4.40 requires consideration of functional loss caused by pain or other factors listed in that section that could occur during flare-ups or after repeated use and, therefore, not be reflected on range-of-motion testing.  38 C.F.R. § 4.45 requires consideration also be given to less movement than normal, more movement than normal, weakened movement, excess fatigability, incoordination, and pain on movement.  See DeLuca v. Brown, 8 Vet. App. 202 (1995); see also Mitchell v. Shinseki, 25 Vet. App. 32, 44 (2011).  Nonetheless, even when the background factors listed in § 4.40 or 4.45 are relevant when evaluating a disability, the rating is assigned based on the extent to which motion is limited, pursuant to 38 C.F.R. § 4.71a; a separate or higher rating under § 4.40 or 4.45 itself is not appropriate.  See Thompson v. McDonald, 815 F.3d 781, 785 (Fed. Cir. 2016) ("[I]t is clear that the guidance of § 4.40 is intended to be used in understanding the nature of the veteran's disability, after which a rating is determined based on the § 4.71a criteria.").  

Under 38 C.F.R. § 4.59, painful motion is a factor to be considered with any form of arthritis; however, 38 C.F.R. § 4.59 is not limited to disabilities involving arthritis.  See Burton v. Shinseki, 25 Vet. App. 1 (2011).  

Service connection for DDD of the lumbar spine was initially granted in an August 2002 rating decision, and a 10 percent rating was assigned, effective July 28, 2002.  In June 2006, the RO increased the rating for the lumbar spine disability from 10 percent to 20 percent, effective September 16, 2005.  

The Veteran was assigned a 40 percent rating for the back disability based on a December 2014 VA examination.  During the examination, the Veteran reported experiencing constant back pain with sitting, standing, and walking; he also reported pain shooting down the right leg and numbness at the top of the right foot.  He described the severity of the back pain as an 8 out of 10.  The Veteran reported experiencing flareups with lifting heavy objects or twisting; the pain with flareups was described as a 9 out of 10.  The Veteran also reported a lack of endurance of the back muscles and noted that he experienced weakness during flareups.  The examiner reported lumbar spine range of motion of forward flexion to 50 degrees, extension to 5 degrees, right lateral flexion to 15 degrees, left lateral flexion to 10 degrees, right lateral rotation to 25 degrees, and left lateral rotation to 20 degrees.  It was noted that the Veteran had limited range of motion due to pain.  Localized tenderness was also noted at the right paraspinal area of the lumbar spine.  The Veteran was able to perform repetitive use testing; after three repetitions, forward flexion was to 20 degrees, extension to 5 degrees, lateral flexion to 10 degrees bilaterally, and lateral rotation was to 20 degrees, bilaterally.  No muscle spasm or guarding was noted.  The examiner indicated that the Veteran worked as a truck driver, operating a crane, and rigging loads and lifting heavy equipment; he noted that these activities would aggravate the Veteran's back condition.  

VA progress notes dated from November 2014 to March 2016 show that the Veteran continued to receive clinical attention and treatment for chronic back pain.  During a clinical visit in February 2015, the Veteran indicated that he still had sharp pain in the lower back that radiated to the right leg.  He stated that physical therapy did not help.  It was noted that the pain was persistent and debilitating.  The record also indicated that the Veteran was scheduled to receive injections in the back.  During a clinical visit in July 2015, the Veteran indicated that the back pain had become worse and was unrelenting; he noted that he had tried the back injection procedure, but he was unable to sit through the injection procedure.  The treatment reports noted that he was taking morphine to treat back pain.  

The Veteran was examined again in regard to this disability in May 2016.  The Veteran reported that he had chronic back pain and described the severity as a 9 out of 10; he also noted radiation of pain down the buttocks to the lateral side of the right thigh, the knee, and down to the right ankle.  The Veteran denied any flare ups.  The examiner reported lumbar spine range of motion of forward flexion to 70 degrees, extension to 20 degrees, right lateral flexion to 20 degrees, left lateral flexion to 30 degrees, right lateral rotation to 30 degrees, and left lateral rotation to 30 degrees.  It was noted that range of motion was limited only due to back condition.  Pain was noted on examination but did not result in or cause functional loss.  The examiner indicated that there was pain with weight bearing.  The Veteran was able to perform repetitive use testing with at least three repetitions, but there was no additional loss of function or range of motion after three repetitions.  No guarding or muscle spasm was noted.  Muscle strength testing was 5/5.  No muscle atrophy was noted.  The examiner noted that the diagnosis was essentially unchanged; besides, they found no evidence of right lower extremity radiculopathy or IVDS.  The examiner also noted that spondylolisthesis was noted on x-ray in February 2015.  

The Board finds that the May 2016 VA examination was inadequate to establish actual improvement in the Veteran's back disability.  In this regard, the examiner did not provide findings regarding range of motion testing on weightbearing, non weightbearing, or passive motion pursuant to Correia v. McDonald, 28 Vet. App. 158, 168 (2016), or an estimation of the Veteran's range of motion during flareups pursuant to Sharp v. Shulkin, 29 Vet. App. 26, 34-36 (2017).  The examination also did not consider the ameliorative effects of medication.  See Jones v. Shinseki, 26 Vet. App. 56 (2012).  In addition, the other medical evidence does not establish an actual improvement in the disability.  Furthermore, while not controlling, the Board notes that the that the Veteran's back condition is diagnosed as degenerative in nature.  

In sum, the preponderance of the evidence does not show actual improvement of the Veteran's lumbar spine DDD that was reasonably certain to be maintained under the ordinary conditions of life.  Therefore, the reduction was improper, and restoration of the 40 percent rating is warranted effective May 16, 2016.

6.   Whether reduction of the disability rating for left arm bicipital tendinitis, from 10 percent to 0 percent, was proper 

By way of background, service connection for left bicipital tendinitis was granted in an August 2002 rating decision, and a 10 percent initial rating was assigned, effective July 28, 2002.  In a May 2016 rating decision, the RO reduced the rating to noncompensable, effective May 16, 2016.  

Based on the foregoing history, prior to the May 2016 reduction, the Veteran was in receipt of a 10 percent rating for the left elbow disability between July 28, 2002 and May 16, 2016, a period of more than thirteen years.  

In this regard, the Board observes that VA regulations provide that, with respect to ratings that have continued at the same level for long periods (5 years or more), reductions are proper only after review of the entire record of examinations and medical-industrial history so as to ascertain whether the recent examination (upon which the reduction is based) is full and complete.  38 C.F.R. § 3.344 (a), (c).  Moreover, even where material improvement in the disability in question is clearly reflected, the rating agency must consider whether the evidence makes it reasonably certain that the improvement will be maintained under the ordinary conditions of life.  Id.  Indeed, in Brown v. Brown, the United States Court of Appeals for Veterans Claims held that, "in any rating-reduction case not only must it be determined that an improvement in a disability has actually occurred but also that that improvement actually reflects an improvement in the veteran's ability to function under the ordinary conditions of life and work."  Brown v. Brown, 5 Vet. App. 413, 421 (1993).  

The record shows that the RO's May 2016 reduction decision was based entirely on a May 2016 VA examination report.  Upon review, the Board observes that the RO did not indicate in its decision that it had reviewed the entire record of examinations and medical-industrial history.  The RO also made no determination as to whether the May 2016 examination report was full and complete.  In addition, the RO has not made any finding addressing whether it is reasonably certain that any improvement in the Veteran's left elbow condition would be maintained under ordinary conditions of life and work.  

For the foregoing reasons, the Board finds that the May 2016 rating reduction decision failed to comply with the provisions of 38 C.F.R. § 3.344 and is, therefore, void ab initio.  See Schafrath v. Derwinski, 1 Vet. App. 589, 594-96 (1991) (where a rating decision was made without observance of law in a rating reduction case, the erroneous reduction must be vacated, and the prior rating restored).  Because the RO failed to consider and apply the provisions of 38 C.F.R. § 3.105 (e) and 38 C.F.R. § 3.344 in its reduction of the Veteran's disability rating for the left bicipital tendinitis, the 10 percent rating must be restored from May 16, 2016.

Increased Rating

Disability evaluations are determined by the application of a schedule of ratings which is based on average impairment of earning capacity.  Generally, the degrees of disability specified are considered adequate to compensate for considerable loss of working time from exacerbations or illnesses proportionate to the severity of the several grades of disability.  See 38 C.F.R. § 4.1.  Separate diagnostic codes identify the various disabilities.  While the Board typically considers only those factors contained wholly in the rating criteria, it is appropriate to consider factors outside the specific rating criteria when appropriate in order to best determine the level of occupational and social impairment.  

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

When evaluating musculoskeletal disabilities based on limitation of motion, 38 C.F.R. § 4.40 requires consideration of functional loss caused by pain or other factors listed in that section that could occur during flare-ups or after repeated use and, therefore, not be reflected on range-of-motion testing.  38 C.F.R. § 4.45 requires consideration also be given to less movement than normal, more movement than normal, weakened movement, excess fatigability, incoordination, and pain on movement.  See DeLuca v. Brown, 8 Vet. App. 202 (1995); see also Mitchell v. Shinseki, 25 Vet. App. 32, 44 (2011).  Nonetheless, even when the background factors listed in § 4.40 or 4.45 are relevant when evaluating a disability, the rating is assigned based on the extent to which motion is limited, pursuant to 38 C.F.R. § 4.71a (musculoskeletal system) or § 4.73 (muscle injury); a separate or higher rating under § 4.40 or 4.45 itself is not appropriate.  See Thompson v. McDonald, 815 F.3d 781, 785 (Fed. Cir. 2016) ("[I]t is clear that the guidance of § 4.40 is intended to be used in understanding the nature of the veteran's disability, after which a rating is determined based on the § 4.71a [or 4.73] criteria.").  

When there is an approximate balance of evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant.  38 U.S.C. § 5107; 38 C.F.R. §§ 3.102, 4.3.  

7.   Entitlement to a compensable rating for bilateral hearing loss

The appellant contends that service-connected bilateral hearing loss is more disabling than reflected by the current disability rating assigned by the RO.  

Service connection was established for bilateral hearing loss in an October 2015 rating decision, and a noncompensable rating was assigned, effective January 29, 2014.  

The Veteran's hearing loss has been rated under the provisions of Diagnostic Code 6100.  In evaluating hearing impairment, disability ratings are derived by a mechanical application of the ratings schedule to the numeric designations assigned after audiometric evaluations are conducted.  See Lendenmann v. Principi, 3 Vet. App. 345, 349 (1992).  The ratings schedule provides a table for ratings purposes (Table VI) to determine a Roman numeral designation (I through XI) for hearing impairment.  Table VII is used to determine the percentage evaluation by combining the Roman numeral designations for hearing impairment in both ears.  38 C.F.R. § 4.85.  

When the Puretone threshold at each of the four specified frequencies (1000, 2000, 3000, and 4000 Hertz) is 55 decibels or more, Table VI or Table VIa is to be used, whichever results in the higher numeral.  38 C.F.R. § 4.86 (a).  Additionally, when the Puretone threshold is 30 decibels or less at 1000 Hertz, and 70 decibels or more at 2000 Hertz, Table VI or Table VIa is to be used, whichever results in the higher numeral.  Thereafter, that numeral will be elevated to the next higher numeral.  38 C.F.R. § 4.86 (b).  The evidence of record herein indicates that the Veteran's bilateral hearing loss pattern does not fit the requirements of an unusual pattern of hearing impairment.  

The Veteran was afforded a VA audiological evaluation in September 2015.  At that time, pure tone thresholds, in decibels, were as follows:

			HERTZ		

	500	1000	2000	3000	4000

RIGHT	25	25	25	35	55

LEFT	20	25	30	45	75

The average pure tone threshold was 35 in the right ear and 44 in the left ear.  Speech audiometry revealed speech recognition ability of 88 percent in the right ear and of 88 percent in the left ear.  The examiner reported a diagnosis of bilateral sensorineural hearing loss.  

The results of the examination correspond to Level II hearing in both ears.  See 38 C.F.R. § 4.85 (b).  When those values are applied to Table VII, a noncompensable disability rating is assigned.  38 C.F.R. § 4.85.  

The Board has also considered whether a compensable evaluation for hearing loss is warranted under 38 C.F.R. § 4.86.  Based on the September 2015 audiometric findings, however, the Veteran's disability did not meet the requirements of 38 C.F.R. § 4.86.  In this regard, the Veteran did not have Puretone thresholds of 55 decibels or more at each of the frequencies of 1000, 2000, 3000 and 4000 hertz or a Puretone threshold of 30 decibels or less at 1000 hertz and 70 decibels or more at 2000 hertz.  As such, it is apparent that the noncompensable disability evaluation for the Veteran's bilateral hearing loss is accurate and appropriately reflects his hearing loss under the provisions of 38 C.F.R. §§ 4.85 and 4.86(a).  

Based on these results, the Board concludes that a compensable rating for the Veteran's bilateral hearing loss is not warranted.  Although the VA examination and treatment record show that the Veteran clearly has hearing loss, the audiometric test results do not support entitlement to an increased evaluation for bilateral hearing impairment.  The Board has reviewed all the medical records in the claims file and found that there is no evidence related to hearing loss that supports a higher rating.  

It is apparent that the assigned noncompensable disability evaluation for the appeal period for the Veteran's bilateral hearing loss is accurate and appropriately reflects his hearing loss under the provisions of 38 C.F.R. §§ 4.85 and 4.86.  The Board has considered the statements made by the Veteran and appellant in which it is asserted that the Veteran's bilateral hearing loss disability warrants a compensable rating.  However, the Board is bound in its decisions by the VA regulations for the rating of hearing loss.  38 U.S.C. § 7104 (c).  Rating hearing loss requires the use of the Maryland CNC speech discrimination test and the pure tone threshold average determined by an audiometry test.  Application of the schedule to the facts of this case shows that the noncompensable disability evaluation presently assigned accurately reflects the degree of the Veteran's service-connected hearing impairment for rating purposes.  38 U.S.C. §§ 1155, 5107; 38 C.F.R. Part 4, § 4.85, Diagnostic Code 6100.  

8.   Entitlement to a rating in excess of 10 percent for right shoulder sprain prior to September 19, 2014

9.   Entitlement to a rating in excess of 20 percent for right shoulder sprain on and after December 1, 2014

The appellant contends that the Veteran's right shoulder sprain was more severe than rated.  The Veteran was rated 10 percent prior to September 19, 2014, and 20 percent from December 1, 2014 under DC 5201.  The Veteran was right hand dominant.  See May 2016 VA Shoulder and Arm Examination.  

Under DC 5201, limitation of motion of the major and minor extremity at the shoulder level warrants a 20 percent rating, the minimum rating assignable under DC 5201.  Limitation of motion midway between the side and shoulder level warrants a 30 percent rating for the major extremity and a 20 percent rating for the minor extremity.  Where motion is limited to 25 degrees from the side, a 40 percent rating is warranted for the major extremity and a 30 percent rating is warranted for the minor extremity.  38 C.F.R. § 4.71a, DC 5201.  

Normal ranges of motion of the shoulder are flexion (forward elevation) from 0 degrees to 180 degrees, abduction from 0 degrees to 180 degrees, external rotation from 0 degrees to 90 degrees, and internal rotation from 0 degrees to 90 degrees.  38 C.F.R. § 4.71, Plate I.  

Service connection was established for right shoulder sprain in an August 2002 rating decision, and a 10 percent rating was assigned, effective July 28, 2002.  

The Veteran's claim for an increased rating was received in March 2012.  In conjunction with the claim, the Veteran was afforded a VA examination in January 2013.  The Veteran reported pain in the anterior right shoulder with limitation of movement as a result.  The Veteran reported flareups, noting that lifting the right arm above the level of the horizon caused great discomfort.  On examination, the right shoulder had a flexion to 180 degrees, with no objective evidence of painful motion.  Abduction was 175 degrees, with painful motion beginning at 90 degrees.  The Veteran was able to perform repetitive use testing with three repetitions with no change in the range of motion.  Muscle strength testing was 5/5.  Testing for rotator cuff conditions was negative.  The examiner indicated that the Veteran did not have an AC joint condition or other impairment of the clavicle or scapula.  There was no tenderness of the AC joint.  

The records indicate that the Veteran underwent a right shoulder surgery in September 2014.  

By a rating action in April 2015, the RO assigned a temporary total rating for the right shoulder disability, based on surgical or other treatment necessitating convalescence, effective September 19, 2014; thereafter, an evaluation of 10 percent was resumed from December 1, 2014.  

On the occasion of a more recent VA examination in May 2016, the Veteran indicated that the shoulders throbbed all the time, right more than the left.  He denied any flareups of the shoulder.  On examination, the right shoulder had flexion to 100 degrees, abduction to 90 degrees, external rotation to 70 degrees, and internal rotation to 90 degrees.  It was noted that range of motion was limited only due to intrinsic shoulder condition.  The Veteran indicated that he could reach the upper extremities to the back as in being handcuffed, and could only reach the waist on lateral side; he further stated that he could not touch the head with the right hand without bending the head.  Pain was noted on the examination and caused functional loss.  The examiner indicated that there was evidence of pain with weight bearing.  The Veteran had moderate pain on palpation over the AC joint.  There was no evidence of crepitus.  The Veteran was not able to perform repetitive use testing with at least three repetitions.  Muscle strength testing was 5/5.  No muscle atrophy was noted.  Instability was noted.  The Veteran did not have loss of head or nonunion or fibrous union of the humerus.  The Veteran's right shoulder did not impact the ability to perform any type of occupational task.  

Prior to September 19, 2014, the Board finds that a disability rating in excess of 10 percent is not warranted.  The evidence does not indicate that the Veteran's shoulder disability limited the Veteran's arm range of motion to shoulder level.  The Veteran's January 2013 VA examiner found the Veteran had 180 degrees of flexion in the right shoulder.  Further, the Veteran's description of flare-ups indicated that the Veteran's lifting ability was moderately affected.  However, the description does not indicate that the Veteran's range of motion was limited to shoulder level.  As such, a 20 percent disability rating is not warranted for the Veteran's right shoulder disability prior to September 19, 2014.  

From December 1, 2014, the Board finds a disability rating in excess of 20 percent is not warranted.  The Veteran's right shoulder caused impairment of the right arm of 100 degrees of flexion.  There is no indication that the Veteran's right arm was limited to midway between the side and shoulder level.  The May 2016 examiner found 100 degrees of flexion.  Although the Veteran reported flare-ups of additional pain and inability to raise the arms above the head, these limitations do not meet the higher rating for a right shoulder disability.  Notably, the May 2016 VA examination report indicated that the Veteran had pain on examination that caused functional loss; however, the examiner stated that the Veteran did not have loss of head or nonunion or fibrous union of the humerus.  The Veteran's right shoulder did not impact the ability to perform any type of occupational task.  As such, a disability rating in excess of 20 percent from December 1, 2014 is not warranted.  

With regard to giving proper consideration to the effects of pain in assigning a disability rating, as well as the provisions of 38 C.F.R. § 4.45 and the holdings in DeLuca and Mitchell, the reports from the examinations conducted above document consideration of these principles.  There is no indication that increased compensation would be warranted for the Veteran's right shoulder at any time during the appeal period under these principles.  

As for the holding in Correia, given the Veteran died in November 2017, a remand for an examination to obtain the information required by Correia would not be appropriate.  Finally, as the examiners addressed the Veteran's flare-ups of shoulder disability, albeit without describing specific range of motion estimates during a flare up, a remand for another examination for the sole purpose of formal consideration of the holding in Sharp, supra, is inappropriate.  

Finally, as noted above, the evidence does not demonstrate ankylosis of the scapulohumeral articulation, impairment of the humerus, or impairment of the clavicle or scapula.  Therefore, application of DCs 5200, 5202, or 5203 is not warranted.  

Based on the foregoing, the Board finds that the preponderance of evidence is against a disability rating in excess of 10 prior to September 19, 2014, and in excess of 20 percent from December 1, 2014, for right shoulder strain for substitution and/or accrued benefits purposes, and the benefit-of-the-doubt rule does not apply.  38 U.S.C. § 5107 (b); 38 C.F.R. § 4.3; see Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990).  

10.   Entitlement to a rating in excess of 20 percent for DDD of the lumbar spine during the period prior to December 15, 2014

11.   Entitlement to a rating in excess of 40 percent for DDD of the lumbar spine from December 15, 2014

The appellant maintains that the Veteran's lumbar spine disability is more disabling than reflected by the ratings currently assigned.  

The Veteran's lumbar spine disability is evaluated under 38 C.F.R. § 4.104, Diagnostic Code (DC) 5243.  

Diagnostic Code 5243 provides that IVDS is to be rated either under the General Rating Formula for Diseases and Injuries of the Spine or under the Formula for Rating IVDS Based on Incapacitating Episodes, whichever method results in the higher rating when all disabilities are combined under 38 C.F.R. § 4.25.  

The Formula for Rating IVDS Based on Incapacitating Episodes provides that a 10 percent rating is warranted for IVDS with incapacitating episodes having a total duration of at least one week but less than 2 weeks during the past 12 months.  A 20 percent rating is warranted for IVDS with incapacitating episodes having a total duration of at least 2 weeks but less than 4 weeks during the past 12 months.  A 40 percent rating is warranted for IVDS with incapacitating episodes having a total duration of at least 4 weeks but less than 6 weeks during the past 12 months.  A 60 percent rating is warranted for IVDS with incapacitating episodes having a total duration of at least 6 weeks during the past 12 months.  38 C.F.R. § 4.71a, Formula for Rating IVDS Based on Incapacitating Episodes.  

Note 1 to Diagnostic Code 5243 provides that, for purposes of ratings under Diagnostic Code 5243, an incapacitating episode is a period of acute signs and symptoms due to intervertebral disc syndrome that requires bed rest prescribed by a physician and treatment by a physician. Id.  at Note 1.  

Under the General Rating Formula for Diseases and Injuries of the Spine, a 10 percent rating is warranted for forward flexion of the thoracolumbar spine greater than 60 degrees but not greater than 85 degrees; or, combined range of motion of the thoracolumbar spine greater than 120 degrees but not greater than 235 degrees; or, muscle spasm, guarding, or localized tenderness not resulting in abnormal gait or abnormal spinal contour; or, vertebral body fracture with loss of 50 percent or more of the height.  A 20 percent rating is warranted for forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees; or the combined range of motion of the thoracolumbar spine not greater than 120 degrees; or, muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis.  A 40 percent rating is warranted for forward flexion of the thoracolumbar spine to 30 degrees or less; or, favorable ankylosis of the entire thoracolumbar spine.  A 50 percent rating is warranted for unfavorable ankylosis of the entire thoracolumbar spine. A 100 percent evaluation is warranted for unfavorable ankylosis of the entire spine.  38 C.F.R. § 4.71a, General Rating Formula for Diseases and Injuries of the Spine.  

Any associated objective neurological abnormalities, including, but not limited to, bowel or bladder impairment, are to be evaluated separately under an appropriate diagnostic code. Id.  at Note 1.  

Ankylosis is defined as "immobility and consolidation of a joint due to disease, injury, or surgical procedure." Dorland's Illustrated Medical Dictionary, 94 (32nd ed. 2012).  Fixation of a spinal segment in neutral position (zero degrees) always represents favorable ankylosis. Id. at Note 5.  

The Veteran was afforded a VA examination for evaluation of the back in January 2013.  The Veteran reported having pain on a daily basis with some flareups that can be incapacitating.  The examiner reported lumbar spine range of motion of forward flexion to 65 degrees, extension to 20 degrees, lateral flexion was to 30 degrees bilaterally, and lateral rotation was to 30 degrees.  The Veteran was able to perform repetitive use testing with three repetitions.  The examiner indicated that the Veteran did not have any additional limitation in range of motion of the lumbar spine following repetitive use testing, but he did have functional impairment of the spine.  Functional impairment was caused by less movement than normal, weakened movement, excess fatigability, and pain on movement.  No tenderness, guarding or muscle spasms was noted in the lumbar spine.  Muscle strength testing was 5/5.  No muscle atrophy was noted.  Deep tendon reflexes were 2+.  Sensory examination was normal.  Straight leg raising was negative.  No neurological findings were noted.  The Veteran did not have IVDS of the lumbar spine.  The Veteran did not use any assistive devices as a normal mode of locomotion.  

On the occasion of a VA examination in December 2014, the Veteran reported experiencing constant back pain with sitting, standing, and walking; he also reported pain shooting down the right leg and numbness at the top of the right foot.  He described the severity of the back pain as an 8 out of 10.  The Veteran reported experiencing flareups with lifting heavy objects or twisting; the pain with flareups was described as a 9 out of 10.  The Veteran also reported a lack of endurance of the back muscles and noted that he experiences weakness during flareups.  The examiner reported lumbar spine range of motion of forward flexion to 50 degrees, extension to 5 degrees, right lateral flexion to 15 degrees, left lateral flexion to 10 degrees, right lateral rotation to 25 degrees, and left lateral rotation to 20 degrees.  It was noted that the Veteran had limited range of motion due to pain.  Localized tenderness was also noted at the right paraspinal area of the lumbar spine.  The Veteran was able to perform repetitive use testing; after three repetitions, forward flexion was to 20 degrees, extension to 5 degrees, lateral flexion to 10 degrees bilaterally, and lateral rotation was to 20 degrees, bilaterally.  No muscle spasm or guarding was noted.  No ankylosis was noted.  The examiner noted that the Veteran had IVDS of the thoracolumbar spine; however, he had not had any episodes of acute signs and symptoms due to IVDS that required bed rest prescribed by a physician and treatment by a physician in the past 12 months.  The examiner indicated that the Veteran worked as a truck driver, operating a crane, and rigging loads and lifting heavy equipment; he noted that these activities would aggravate the Veteran's back condition.  

VA progress notes dated from November 2014 to March 2016 show that the Veteran continued to receive clinical attention and treatment for chronic back pain.  During a clinical visit in February 2015, the Veteran indicated that he still had sharp pain in the lower back that radiated to the right leg.  He stated that physical therapy did not help.  It was noted that the pain was persistent and debilitating.  The record also indicated that the Veteran was scheduled to receive injections in the back.  During a clinical visit in July 2015, the Veteran indicated that the back pain had become worse and was unrelenting; he noted that he had tried the back injection procedure, but he was unable to sit through the injection procedure.  The treatment reports noted that he was taking morphine to treat back pain.  

The Veteran was examined again in regard to this disability in May 2016.  The Veteran reported that he had chronic back pain and described the severity as a 9 out of 10; he also noted radiation of pain down the buttocks to the lateral side of the right thigh, the knee and down to the right ankle.  The Veteran denied any flare ups.  The examiner reported lumbar spine range of motion of forward flexion to 70 degrees, extension to 20 degrees, right lateral flexion to 20 degrees, left lateral flexion to 30 degrees, right lateral rotation to 30 degrees, and left lateral rotation to 30 degrees.  It was noted that range of motion was limited only due to back condition.  Pain was noted on examination but did not result in or cause functional loss.  The examiner indicated that there was pain with weight bearing.  The Veteran was able to perform repetitive use testing with at least three repetitions, but there was no additional loss of function or range of motion after three repetitions.  No guarding or muscle spasm was noted.  Muscle strength testing was 5/5.  No muscle atrophy was noted.  The examiner noted that the diagnosis was essentially unchanged; besides, they found no evidence of RLE radiculopathy or IVDS.  The examiner also noted that spondylolisthesis was noted on x-ray in February 2015.  

Based on a review of the record, the Board finds that the Veteran did not demonstrate the criteria necessary for a disability rating in excess of 20 percent for DDD of the lumbar spine during the period prior to December 15, 2014.  Evidence prior to that date does not show forward flexion limited to 30 degrees or less and does not provide evidence of flare-ups.  There was no finding of ankylosis, and the records indicate that the Veteran had range of motion in the spine; there was no fixation.  Significantly, upon VA examination in January 2013, the Veteran's forward flexion was shown to be limited to 65 degrees.  The examiner indicated that the Veteran did not have any additional limitation in range of motion of the lumbar spine following repetitive use testing, but he did have functional impairment of the spine.  Functional impairment was caused by less movement than normal, weakened movement, excess fatigability, and pain on movement.  No tenderness, guarding or muscle spasms was noted in the lumbar spine.  

In light of the foregoing, the Board finds that, even taking into account any disability caused by pain, incoordination, or fatigability, an even higher disability rating is not warranted prior to December 15, 2014.  See 38 C.F.R. §§ 4.40, 4.45; see also DeLuca, 8 Vet. App. at 202.  

With regard to intervertebral disc syndrome, the evidence must demonstrate incapacitating episodes lasting a total duration of at least four weeks during the past twelve months to warrant an increased rating.  In this case, there is no evidence of incapacitating episodes having a total duration of at least 6 weeks during the past 12 months.  It is noteworthy that during the January 2013 VA examination, it was indicated that the Veteran did not have IVDS of the thoracolumbar spine.  As such, there is no competent and probative evidence of record showing the Veteran had incapacitating episodes with bed rest that was prescribed by a physician during the period in question.  No neurological findings were noted.  Therefore, the Board finds that these rating criteria will not provide the Veteran with a rating in excess of 20 percent for DDD of the lumbar spine.  Thus, a rating in excess of 20 percent is not available for incapacitating episodes.  See 38 C.F.R. § 4.71a.  

Moreover, no neurological complications of the Veteran's low back disability were present in the record.  

In conclusion, there is no basis for an evaluation in excess of 20 percent for the Veteran's DDD of the lumbar spine during the period prior to December 15, 2014.  As the preponderance of the evidence is against the claim, the benefit-of-the-doubt rule is not helpful.  See 38 U.S.C. § 5107 (b); Gilbert v. Derwinski, 1 Vet. App. 49, 54-56 (1990).  

Turning to the question of an increased evaluation on and after December 15, 2014, as noted above, the veteran may receive a 60 percent disability rating by showing that he suffered incapacitating episodes having a total duration of at least six weeks during the past twelve months.  The Veteran did not report any such problem; in fact, during the December 2014 VA examination, it was noted that the Veteran had not had any incapacitating episodes over the past 12 months.  The medical examinations of record and private medical records do not reflect incapacitating episodes having a total duration of at least 6 weeks during the past 12 months.  At no time had bed rest been prescribed.  Thus, a 60 percent disability rating is not warranted under the formula for rating intervertebral disc syndrome based on incapacitating episodes.  

Under the general rating formula for diseases of the spine, a disability rating in excess of 40 percent is also not warranted.  Specifically, a 40 percent disability is currently assigned to the Veteran's lumbar spine disability as the objective medical evidence reflects that forward flexion of the thoracolumbar spine is 30 degrees or less.  Upon review of the objective findings of record, however, there has never been any finding of unfavorable ankylosis of the entire thoracolumbar spine.  Thus, a 50 percent disability rating is not warranted for the Veteran's lumbar spine disability.  

The Board has also considered 38 C.F.R. §§ 4.40, 4.45, addressing the impact of functional loss, weakened movement, excess fatigability, incoordination, and pain, throughout the time period.  See also Deluca v. Brown, 8 Vet. App. 202, 206 (1995).  In this regard, on examination in December 2014, it was noted that the Veteran had limited range of motion due to pain.  Localized tenderness was also noted at the right paraspinal area of the lumbar spine.  The Veteran was able to perform repetitive use testing; after three repetitions, forward flexion was to 20 degrees, extension to 5 degrees, lateral flexion to 10 degrees bilaterally, and lateral rotation was to 20 degrees bilaterally.  No muscle spasm or guarding was noted.  Consequently, flexion is functionally limited to 20 degrees.  38 C.F.R. §§ 4. 40, 4.45; see also Deluca, Id.  It is not disputed that the Veteran has pain on motion, but the Board finds that the currently assigned 40 percent disability rating adequately compensates the Veteran for his pain and functional loss of motion in this case.  

The Board accepts that the Veteran had functional impairment, pain, and pain on motion.  The Board also finds the Veteran's own reports of symptomatology to be credible.  However, neither the lay nor medical evidence establishes the presence of unfavorable ankylosis.  

The assignment of an extra-schedular rating has also been considered in this case under 38 C.F.R. § 3.321 (b)(1); however, the record contains no objective evidence that the Veteran's service-connected lumbar spine disability resulted in marked interference with earning capacity or employment beyond that interference contemplated by the assigned evaluation.  The symptoms experienced by the Veteran are the very ones contemplated by the rating criteria.  Accordingly, the Board finds that the impairment resulting from the Veteran's spine disorder is appropriately compensated by the currently assigned schedular ratings and 38 C.F.R. § 3.321 are inapplicable.  

In summary, for the reasons and bases expressed above, the Board finds that the criteria are not met for the assignment of a schedular rating in excess of 40 percent for DDD of the lumbar spine from December 15, 2014.  38 U.S.C. § 5107 (b); 38 C.F.R. §§ 3.102; 4.3.  

12.  Entitlement to a rating in excess of 10 percent for left bicipital tendinitis

The appellant contends that a rating in excess of 10 percent for the Veteran's left bicipital (elbow) tendinitis is warranted.  The left elbow disability is rated as 10 percent disabling pursuant to DC 5024 for tenosynovitis.  

Diagnostic Code 5024 addressing tenosynovitis indicates that diseases under that code will be rated on limitation of motion of the affected parts.  Accordingly, the Board will address whether a higher rating is warranted based on limitation of motion.  

Diagnostic Code 5206 provides compensation for limitation of flexion of the forearm.  38 C.F.R. § 4.71a.  Limitation of forearm flexion of 110 degrees or more warrants a noncompensable rating for a major arm and a minor arm.  Limitation of forearm flexion to 100 degrees warrants a 10 percent rating for a major arm or a minor arm.  Limitation of forearm flexion to 90 degrees warrants a 20 percent rating for a major arm or a minor arm.  Limitation of forearm flexion to 70 degrees warrants a 30 percent rating for a major arm and a 20 percent rating for a minor arm.  Limitation of forearm flexion to 55 degrees warrants a 40 percent rating for a major arm and a 30 percent rating for a minor arm.  Limitation of forearm flexion to 45 degrees warrants a 50 percent rating for a major arm and a 40 percent rating for a minor arm.  

Diagnostic Code 5207 provides compensation for limitation of extension of the forearm.  38 C.F.R. § 4.71.  Limitation of forearm extension to 45 degrees warrants a 10 percent rating for a major arm or a minor arm.  Limitation of forearm extension to 60 degrees warrants a 10 percent rating for a major arm or a minor arm.  Limitation of forearm extension to 75 degrees warrants a 20 percent rating for a major arm or a minor arm.  Limitation of forearm extension to 90 degrees warrants a 30 percent rating for a major arm and a 20 percent rating for a minor arm.  Limitation of forearm extension to 100 degrees warrants a 40 percent rating for a major arm and a 30 percent rating for a minor arm.  Limitation of forearm extension to 110 degrees warrants a 50 percent rating for a major arm and a 40 percent rating for a minor arm.  

Under DC 5208, a 20 percent rating contemplates a combination of flexion limited to 100 degrees and extension to 45 degrees in either forearm.  

The Veteran was right-handed; therefore, the left elbow disability was on the minor arm.  

Full elbow extension and flexion is from 0 to 145 degrees, full pronation is to 80 degrees, and full supination is to 85 degrees.  38 C.F.R. § 4.71 Plate I.  

The revised VA regulations, effective February 7, 2021, clarify that DC 5024 includes tenosynovitis, tendinitis, tendinosis, or tendinopathy.  Under the revised regulations, the diseases listed under diagnostic codes 5013 through 5024 continue to be rated on limitation of motion of affected parts.  The language, "arthritis, degenerative, except gout which will be rated under diagnostic code 5002," was removed in the note following DC 5024.  

The Veteran's left elbow tendinitis, pursuant to the revised VA regulations, will continued to be evaluated under DCs 5024, 5206, 5207, and 5208.  

The Veteran was afforded a VA examination in April 2013.  The Veteran reported pain in the lower bicep 3 times per month; the Veteran also received cortisone shots.  It was noted that both biceps and brachioradialis had normal girth, power tone, and were firmly attached.  The Veteran denied any flareups.  The left elbow had flexion to 145 degrees, with no objective evidence of painful motion.  Extension was 0 degrees.  There was no evidence of localized tenderness or pain on palpation of the joint.  There was no evidence of crepitus.  Muscle strength testing was 5/5.  No muscle atrophy was noted.  No ankylosis was noted.  The examiner indicated that the Veteran's left elbow disorder did not impact the ability to perform any type of occupational task.  

On the occasion of a more recent VA examination in May 2016, the Veteran denied any flareups.  The left elbow had flexion to 145 degrees, extension to 0 degrees, forearm supination to 85 degrees, and pronation to 80 degrees.  No pain was noted on examination.  There was no evidence of pain with weight bearing.  There was no evidence of localized tenderness or pain on palpation of the joint.  There was no evidence of crepitus.  The Veteran was able to perform repetitive use testing with at least three repetitions.  He was not significantly limited by pain, weakness, fatigability, or incoordination.  Muscle strength testing was 5/5.  No muscle atrophy was noted.  No ankylosis was noted.  The examiner indicated that the Veteran's left elbow disorder did not impact the ability to perform any type of occupational task.  

Based on the evidence reviewed above, a rating higher than 10 percent is not warranted for the Veteran's left elbow tendinitis.  The objective evidence does not show that left elbow flexion was limited to 90 degrees or that the left elbow extension was limited to 75 degrees, even considering any functional limitations due to such factors as pain.  Thus, even considering the objective evidence of limitation of left elbow range of motion and functional loss, the criteria for a 20 percent rating is not warranted under any of the pertinent DCs.  Mitchell v. Shinseki, 25 Vet. App. 32, 38, 43 (2011) (stating, "pain itself does not rise to the level of functional loss;" "pain must affect some aspect of the normal working movements of the body...in order to constitute functional loss;" and "painful motion alone is not [the equivalent of] limited motion" (internal quotation marks omitted)).  

Additionally, the Veteran did not demonstrated flexion to 100 degrees and extension to 45 degrees, therefore DC 5208 is not applicable.  

Based on the Veteran's symptoms, no more than a 10 percent rating based on pain is necessary.  The objective evidence does not indicate that a higher rating is warranted based on the Veteran's left bicipital tendinitis symptomatology.  

All potentially applicable Diagnostic Codes have been considered.  See Schafrath v. Derwinski, 1 Vet. App. 589, 593 (1991).  The preponderance of the evidence is against an increased rating in excess of 10 percent for the Veteran's service connected left bicipital tendinitis.  As such, the benefit-of-the-doubt doctrine is inapplicable.  38 C.F.R. § 4.3.  For these reasons, the claim is denied.  

REASONS FOR REMAND

After examining the record, the Board concludes that further development is required in order to comply with the duty to assist as mandated by 38 U.S.C. § 5103A.  The specific bases for remand are set forth below. 

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

The appellant maintains that the Veteran's right knee disability developed as a result of an in-service knee injury.  

As noted above, the STRs show that the Veteran was seen in April 1999 with complaints of pain in the right knee for the previous 3 weeks; he was diagnosed with patellofemoral pain syndrome, right knee.  The Veteran was again seen in March 2002 with complaints of right knee pain for the past two hours.  The assessment was STI to right patella.  

The record also contains a medical statement from Dr. J.I., dated in November 2012, who noted that the Veteran had been seen in his office since December 29, 2008 with complaints of back pain radiating to the lower leg.  Dr. J.I. also noted that the Veteran had a history of knee injury at the time he was in service, and he continued to have problems after service.  

An x-ray study of the right knee, dated in March 2017, reported a finding of increased cirrhosis of the medial tibial plateau of the right knee with no associated facture line noted; this is presumably from an old injury.  

The Board notes that the threshold required to trigger VA's duty to provide an examination and/or obtain an opinion is low, and there is some evidence that the Veteran's right knee disability may be associated with service.  As such, given that no opinion was obtained to determine the etiology of the Veteran's right knee disability, a remand is necessary to obtain a medical opinion as to the etiology of the right knee disability.  See 38 U.S.C. § 5103A (d)(2) (2012); 38 C.F.R. § 3.159 (c)(4)(i) (2019); McLendon v. Nicholson, 20 Vet. App. 79, 81 (2006).  

2.  Entitlement to service connection for right arm tendonitis, to include as secondary to the service-connected left bicipital tendinitis, is remanded.

The appellant asserts that the Veteran had a right arm disability secondary to the service-connected left elbow tendinitis.  In April 2013, the Veteran was afforded a VA examination with the VA examiner offering a negative opinion.  Specifically, the examiner opined that the claimed condition was less likely than not proximately due to or the result of the Veteran's service-connected condition.  The examiner explained that the examination of the elbows was unremarkable, and the current right-arm condition was diagnosed as tennis elbow and was unrelated to any favoring mechanism.  

The Board finds the April 2013 VA opinion inadequate as the examiner failed to address the aggravation element of secondary service connection or to provide a direct nexus opinion.  While the Veteran was afforded another VA examination in May 2016, which reported a diagnosis of right bicipital tendonitis, the examiner did not offer an opinion regarding the etiology of the Veteran's right arm condition.  Upon remand, an adequate VA medical opinion must be obtained.  

The aforementioned matters are REMANDED for the following actions:

1.   Forward the Veteran's claims folder to an examiner for addendum opinions regarding the Veteran's right knee and right arm/elbow disabilities.  The examiner is requested to review the claims folder, to include this remand.  Following review of the claims file the examiner should provide opinions on the following:  

Right knee

Whether it is at least as likely as not (a probability of 50 percent or greater) that any right knee disability was caused or aggravated by military service.  In providing this opinion, the examiner should consider and address the Veteran's prior contentions of knee pain since before separation from active duty, and the November 2012 medical statement from Dr. J.I.  A supporting rationale for all opinions expressed must be provided.  If the examiner is unable to provide any opinion as requested, the examiner should fully explain the reason why such opinion could not be rendered.  

Right Arm

(a)  Whether it is at least as likely as not (a probability of 50 percent or greater) that any right arm disability, to include right bicipital tendonitis, was caused or aggravated by military service.  

(b)  Whether it is at least as likely as not (a probability of 50 percent or greater) that any right arm disability, to include right bicipital tendonitis, was caused by the service-connected left bicipital tendinitis.

(c)  Whether it is at least as likely as not (a probability of 50 percent or greater) that any right arm disability, to include right bicipital tendonitis, was aggravated by the service-connected left bicipital tendinitis.

2.   Thereafter, re-adjudicate the remanded issues on the basis of all evidence of record and all applicable laws and regulations.  If any of the benefits remain denied, a supplemental statement of the case (SSOC) must be provided to the appellant.  After the appellant has had an adequate opportunity to respond, the appeal must be returned to the Board for appellate review.  

 

 

E. BLOWERS

Acting Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board	Suzie S. Gaston

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.