Citation Nr: 21009627 Decision Date: 02/23/21 Archive Date: 02/23/21 DOCKET NO. 18-38 718 DATE: February 23, 2021 ORDER Entitlement to service connection for right ear hearing loss is denied. Entitlement to service connection for an acquired psychiatric disorder, to include posttraumatic stress disorder (PTSD) and depression is granted. As the disability rating for the Veteran’s left foot disability was not properly reduced from 20 percent to 10 percent, effective November 1, 2018, restoration of a 20 percent disability rating as of that date is granted. Entitlement to a disability rating in excess of 20 percent for the Veteran’s left foot flat foot disability is denied. Entitlement to a separate 10 percent rating for the Veteran’s plantar fasciitis is granted, effective February 7, 2021. REMANDED Entitlement to service connection for a right knee disability is remanded. Entitlement to service connection for a left arm disability is remanded. Entitlement to service connection for left ear hearing loss is remanded. Entitlement to service connection for tinnitus is remanded. FINDINGS OF FACT 1. The Veteran does not have right ear hearing loss for VA purposes. 2. The preponderance of the evidence is in favor of the finding that Veteran’s acquired psychiatric disorder is related to an in service event. 3. The reduction of the disability rating for the Veteran’s left foot disability from 20 percent to 10 percent, effective November 1, 2018, failed to comply with applicable law and regulations. 4. The Veteran’s left flat foot disability manifested as pain on manipulation, pain use accentuated, and swelling on use. 5. The Veteran has unilateral plantar fasciitis. CONCLUSIONS OF LAW 1. The criteria for service connection for right ear hearing loss have not been met. 38 U.S.C. §§ 1110, 5107 (2018); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.385 (2020). 2. The requirements for establishing service connection for an acquired psychiatric disorder, to include PTSD and depression have been met. 38 U.S.C. §§ 1101, 5107 (2018); 38 C.F.R. §§ 3.102, 3.303 (2020). 3. Reduction of the rating for the Veteran’s left foot disability from 20 percent to 10 percent effective November 1, 2018, was not proper. 38 U.S.C. § § 5107 (2018); 38 C.F.R. §§ 3.105, 3.344, 4.1, 4.2, 4.7, 4.71a, Diagnostic Code 5276 (2020). 4. The criteria for a disability rating in excess of 20 percent for the Veteran’s left foot disability have not been met. 38 U.S.C. §§ 1155, 5107 (2018); 38 C.F.R. §§ 3.102, 4.1 4.14, 4.45, 4.59, 4.71a, Diagnostic Code 5276 (2020). 5. The criteria for a separate 10 percent rating for left foot plantar fasciitis are met. 38 U.S.C. §§ 1155, 5107 (2018); 38 C.F.R. §§ 3.102, 4.1 4.14, 4.45, 4.59, 4.71a, Diagnostic Code 5269. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Board served in the United States Marine Corps from August 1993 to May 1999, with additional service in the Reserves. The Veteran initially requested a hearing before a Veterans Law Judge (VLJ) but in April 2020 withdrew his request for a hearing. The Veteran made a general argument regarding the VA’s duty to assist and duty to notify, specifically referencing the inadequacies of VA examinations. The Board addresses the issues with each examination in the Reasons and Bases as well as the Remand section below. The Veteran has not raised any other issues with the duty to notify or duty to assist. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that “the Board’s obligation to read filings in a liberal manner does not require the Board . . . to search the record and address procedural arguments when the veteran fails to raise them before the Board.”); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to a duty to assist argument). Service Connection Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active military service. To establish service connection for the claimed disorder, there must be (1) medical evidence of a current disability; (2) medical, or in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical, or in certain circumstances, lay evidence of a nexus between the claimed in-service disease or injury and the current disability. See 38 C.F.R. § 3.303 (2020); see also Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004). The Board must determine the value of all evidence submitted, including lay and medical evidence. Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). The evaluation of evidence generally involves a three-step inquiry. First, the Board must determine whether the evidence comes from a “competent” source. Second, the Board must then determine if the evidence is credible, or worthy of belief. Barr v. Nicholson, 21 Vet. App. 303, 308 (2007). Third, the Board must weigh the probative value of the evidence in light of the entirety of the record. A claimant is entitled to the benefit of the doubt when there is an approximate balance of positive and negative evidence. See 38 C.F.R. § 3.102 (2020). When a claimant seeks benefits and the evidence is in relative equipoise, the claimant prevails. See Gilbert v. Derwinski, 1 Vet. App. 4 (1990). The preponderance of the evidence must be against the claim for benefits to be denied. See Alemany v. Brown, 9 Vet. App. 518 (1996). 1. Right Ear Hearing Loss For VA purposes, impaired hearing will be considered a disability when the auditory threshold for any of the frequencies of 500, 1000, 2000, 3000 and 4000 Hertz is 40 decibels or greater; the auditory thresholds for at least three of these frequencies are 26 decibels or greater; or speech recognition scores using the Maryland CNC Test are less than 94 percent. 38 C.F.R. § 3.385 (2020). The threshold for normal hearing is between 0 and 20 decibels and higher thresholds show some degree of hearing loss. Hensley v. Brown, 5 Vet. App. 155, 157 (1993). The Board considered the Veteran’s medical records. The Veteran was afforded a VA audiology evaluation in August 2016. At the examination, he described the impact of his hearing loss as having occasional hearing and communication difficulty such as listening to the television at a loud level. A review of that examination shows that the Veteran did not have a diagnosis of right ear hearing loss disability for VA purposes. See 38 C.F.R. § 3.385 (2020). HERTZ 1000 2000 3000 4000 Avg CNC RIGHT 10 5 5 10 8 100% His pure tone thresholds, in decibels, were as follows: The Veteran’s medical records do not show that his right ear hearing loss meets the criteria to be considered a disability for VA purposes. While the Veteran is competent to report symptoms of decreased hearing acuity in his ears, and his assertion is credible, he is not competent to provide a diagnosis of a right ear hearing loss disability for VA purposes, as that requires medical expertise and is outside the realm of common knowledge of a layperson. Kahana v. Shinseki, 24 Vet. App. 428 (2011); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). The Veteran in this case does not have the skills, training, or experience to measure his hearing loss using an audiogram or via self-administration of the Maryland CNC test. Therefore, the Veteran is not competent to provide a diagnosis in this case. For a disability to be service connected, it must be present at the time a claim for VA disability compensation is filed or during or contemporary to the pendency of the claim. McClain v. Nicholson, 21 Vet. App. 319 (2007); Romanowsky v. Shinseki, 26 Vet. App. 289 (2013). There is no evidence of record showing the Veteran has right ear hearing loss disability for VA purposes during the pendency of the claim, or proximate thereto. Congress has specifically limited entitlement to service-connected benefits to cases where there is a current disability. In the absence of proof of a present disability, there can be no valid claim. Brammer v. Derwinski, 3 Vet. App. 223 (1992). Accordingly, the Board finds that the preponderance of the evidence is against the claim and entitlement to service connection for right ear hearing loss disability is not warranted. 38 U.S.C. § 5107(b) (2018); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). 2. Psychiatric Disability The Board has rephrased the Veteran’s claim of entitlement to service connection for PTSD as a claim of entitlement to service connection for an acquired psychiatric disorder, to include PTSD and depression. See Clemons v. Shinseki, 23 Vet. App. 1 (2009) (stating that the scope of a mental health disability claim includes any mental disability that may reasonably be encompassed by the claimant’s description of the claim, reported symptoms, and the other information of record). Establishing service connection for PTSD requires (1) medical evidence diagnosing PTSD in accordance with 38 C.F.R. § 4.125(a); (2) a link, established by medical evidence, between a veteran’s present symptoms and an in-service stressor; and (3) credible supporting evidence that the claimed in-service stressor occurred. See 38 C.F.R. § 3.304(f) (2020); Cohen v. Brown, 10 Vet. App. 128, 139 (1997). The diagnostic criteria set forth in The American Psychiatric Association: Diagnostic and Statistical Manual of Mental Disorders, (5th ed. 2013) (DSM- 5) for mental disorders have been adopted by the VA. 38 C.F.R. § 4.125 (2020). There is conflicting evidence concerning the Veteran’s PTSD diagnosis, as discussed further below, and the Veteran has depression diagnosis. In a July 2016 statement, the Veteran recounted several in-service events that he believed were related to the development of his psychiatric disabilities. He stated that during a battle, his unit was informed that enemy combatants were headed towards them and there was no transport to evacuate them. Thus, he was subjected to artillery flairs and airstrikes. He also reported being involved in a ground assault that took him through minefields. The Veteran earned the Combat Action Ribbon and his reported combat stressors are consistent with the circumstances of his service. His lay description of his combat-related stressors is sufficient to establish that they occurred. See 38 C.F.R. § 3.304(f). The issue before the Board is nexus to service. In August 2016, the Veteran received a VA examination. The VA examiner acknowledged the Veteran experienced a qualified stressor while in service. However, the examiner concluded that the Veteran did not present a persistent pattern of behavior consistent with a PTSD diagnosis. Accordingly, he found the Veteran did not have a PSTD diagnosis in accordance with the DSM-5. Additionally, the examiner opined that the Veteran’s depression was not linked to his service, though no rationale was provided for this opinion. The evidence also contains a private nexus opinion. In an April 2017 opinion, a private examiner articulated the specific symptoms the Veteran experiences due to his PTSD. He noted that the Veteran experienced recurrent unwanted memories of the traumatic event, feelings of relieving the event, attempts to avoid memories or talk about the event, and inability to recall specific details of the event. The doctor related his PTSD symptoms and his secondary depression to the stressors the Veteran experienced in service. The Board considers the positive and negative opinions of record but does not afford equal probative weight to the opinions. The August 2016 VA examiner failed to fully evaluate the Veteran; for many of the PTSD specific questions no response was recorded. Furthermore, the VA examiner failed to provide an adequate rationale concerning possible nexus between the Veteran’s depression and reported stressors. The examiner simply opined there was no nexus. Therefore, the Board assigns the VA examiner’s opinion low probative value. Conversely, the private examiner’s opinion was based on his interview with the Veteran, his stressors, and psychiatric symptoms. The Board assigns higher probative value to the positive, private opinion. Therefore, the Board finds that the preponderance of the evidence is for the claim and entitlement to service connection for an acquired psychiatric disorder is granted. 38 U.S.C. § 5107(b) (2020); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Disability Rating Reduction In April 2018, the RO proposed to reduce the Veteran’s disability rating for his left foot disability from 20 percent to 10 percent. In August 2018, the RO effectuated the reduction in rating from 20 percent to 10 percent, effective November 1, 2018. The Veteran’s increased rating claim for the left foot disability was already on appeal from a February 2018 Notice of Disagreement (NOD). In an August 2018 SOC, the RO denied a rating in excess of 20 percent specifically for the period from June 30, 2017 to November 1, 2018. In September 2018, the Veteran filed an NOD specifying the August 2018 rating decision that reduced the rating for the left foot, as well as a VA Form 9 specifying the August 2018 SOC that denied an increased rating for his left foot disability. The RO improperly ended the appeal period in its September 2018 SOC. The Veteran appealed the August 2017 rating decision that increased his disability rating from noncompensable to 20 percent in a timely February 2018 NOD, which began the appeals process for that claim. Once an NOD has been filed, further RO decisions that do not grant the benefit sought cannot resolve the appeal that is pending before the Board. Juarez v. Peake, 21. Vet. App. 537, 543 (2008); see also Myers v. Principi, 16 Vet. App. 228, 235-36 (2002). The Board retains jurisdiction over the entire appeal period of the increased rating claim even though the SOC stated that it ended on November 1, 2018. The appeal period for the increased rating claim overlaps with the appeal period for the reduction issue. The Veteran’s September 2018 NOD to the August 2018 reduction decision was timely and the RO did not issue an SOC in response. The claim should be remanded to the RO for issuance of an SOC. Manlincon v. West, 12 Vet. App. 238 (1999). However, the Board finds that the reduction was improper and restores the rating below. This is a full grant of benefits with respect to the reduction claim. Although not remanding for an SOC is a due process violation, here it is not prejudicial to the Veteran because the Board is granting the benefit in full. The procedural framework and safeguards set forth in 38 C.F.R. § § 3.105(e) governing rating reductions were explained to the Veteran in adequate detail in an April 2018 rating decision and in an April 2018 proposed reduction letter, prior to the final rating reduction. He was given 30 days to request a hearing and 60 days to present additional evidence. The Veteran did not request a hearing or present additional evidence. The effective date of the reduction, November 1, 2018, is 60 days from the end of the month of the final rating decision on August 6, 2018, as set forth in the applicable VA regulation. See 38 C.F.R. § § 3.105(e) (2020). Thus, all procedural requirements were met. Other provisions regarding reductions include 38 C.F.R. § § 3.344 (a) and 38 C.F.R. § § 3.344 (b), which provide greater protection to recipients of disability ratings that have continued for five years or more. 38 C.F.R. § § 3.344(c) (2018). In this case, the Veteran’s 20 percent disability rating for his left foot disability was effective June 30, 2017 and had not been in effect for five years or more prior to the reduction. The Veteran’s left foot disability is rated under 38 C.F.R. § 4.71a, Diagnostic Code 5276, for acquired flatfoot. Under Diagnostic Code 5276, a noncompensable rating is warranted for mild acquired flatfoot; symptoms relieved by built-up shoe or arch support. A 10 percent rating is warranted for moderate acquired flat foot; weight-bearing line over or medial to great toe, inward bowing of the achilles tendon, pain on manipulation and use of the feet, bilateral or unilateral. A 20 percent rating is assigned for severe unilateral acquired flat foot; objective evidence of marked deformity (pronation, abduction, etc.), pain on manipulation and use accentuated, indication of swelling on use, characteristic callosities. A 30 percent rating is warranted for severe bilateral acquired flat foot; objective evidence of marked deformity (pronation, abduction, etc.), pain on manipulation and use accentuated, indication of swelling on use, characteristic callosities. A 30 percent rating is also warranted for pronounced unilateral acquired flatfoot; marked pronation, extreme tenderness of plantar surfaces of the feet, marked inward displacement and severe spasm of the achilles tendon on manipulation, not improved by orthopedic shoes or appliances. A maximum 50 percent rating is warranted for bilateral acquired flatfoot; marked pronation, extreme tenderness of plantar surfaces of the feet, marked inward displacement and severe spasm of the achilles tendon on manipulation, not improved by orthopedic shoes or appliances. 38 C.F.R. § 4.71a, Diagnostic Code 5276. The Veteran received a VA examination in July 2017. He reported being in constant pain that ranged from a dull ache to sharp pain, which was triggered by stepping at the wrong angle and prolonged standing. He also experienced flareups characterized by stiffness and swelling, after prolonged sitting. His flat feet caused pain on use, accentuated pain, pain on manipulation, and his symptoms were relieved by arch supports. He had decreased longitudinale arch height and weight bearing line falling over or medial to the great toe. The examiner rated his left foot fracture as moderate and noted it compromised weight bearing. He was unable to walk due to pain if he hit the center of his foot. Last, his disability caused functional loss in the form of less movement than normal, weakened movement, pain on weight bearing, swelling, and interference with sitting and standing. The 2017 VA examination that the Veteran’s reduction was based on was full and complete and provided a basis for a decreased rating. However, 38 C.F.R. § §§ 4.2 and 4.10 provide 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 in a disability has actually reflects an improvement in the veteran’s ability to function under the ordinary conditions of life and work. Brown, 5 Vet. App. at 421. 38 C.F.R. § § 3.344(c). This determination was not done. Because the RO failed to consider and apply all the provisions of 38 C.F.R. § § 3.344 in its reduction of the Veteran’s disability rating for his left foot disability the 20 percent rating must be restored, effective November 1, 2018. Moreover, the Board finds that the July 2017 VA examination provides evidence for the 20 percent rating. In the April 2018 proposed rating decision, the RO stated there was clear and unmistakable error in the August 2017 rating decision that increased the Veteran’s disability rating to 20 percent. The RO stated that a 20 percent was not warranted because the Veteran’s disability was relieved by use of arch supports. While the Board acknowledges this symptom is contemplated by a 10 percent rating, the Veteran’s disability manifested in many symptoms contemplated by the 20 percent rating. The Veteran experienced pain on manipulation and use accentuated as well as swelling. The Board notes that the plain text of the rating criteria does not require all symptoms to be present for a 20 percent rating. Increased Rating Disability ratings are determined by applying the criteria established in VA’s Schedule for Rating Disabilities, which is based upon the average impairment of earning capacity. Individual disabilities are assigned separate Diagnostic Codes. 38 U.S.C. § 1155 (2018); 38 C.F.R. §§ 4.1, 4.20 (2020). When a question arises as to which of two ratings applies under a particular Diagnostic Code, the higher evaluation is assigned if the disability more nearly approximates the criteria for the higher rating; otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7 (2020). Consideration must be given to increased evaluations under other potentially applicable Diagnostic Codes. Schafrath v. Derwinski, 1 Vet. App. 589, 595 (1991). After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the claimant. 38 C.F.R. § 4.3 (2020). Where entitlement to compensation already has been established and an increase in the disability rating is at issue, it is the present level of disability that is of primary concern. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994). Separate ratings may be assigned for separate periods of time based on the facts found; this practice is known as staged ratings. Hart v. Mansfield, 21 Vet. App. 505 (2007). As noted above the Board finds that restoration of the 20 percent disability rating is warranted for the Veteran’s left foot disability. In June 2017 the Veteran filed an increased rating claim; his disability rating was increased to 20 percent in an August 2017 rating decision and then reduced. However, as the August 2017 rating decision did not award the maximum rating to the Veteran, his increased rating claim is still before the Board. The intent of the Rating Schedule is to recognize actually painful, unstable or malaligned joints, due to healed injury, as entitled to at least the minimum compensable rating for the joint, even in the absence of arthritis, to include in situations where the disability at issue is not evaluated based on range of motion measurements. 38 C.F.R. § 4.59; Burton v. Shinseki, 25 Vet. App. 1, 5 (2011); Southall-Norman v. McDonald, 28 Vet. App. 346 (2016). The preponderance of the evidence is against a rating in excess of 20 percent for his left foot disability The Board acknowledges the Veteran’s lay reports of symptoms and that there was functional loss due to pain, weakened movement, less movement than normal, and swelling. The Board also considers his symptoms of pain and swelling during flare-ups. However, even considering the Veteran’s lay reports of symptoms and functional loss, the degree of additional limitation reflected by the statements, such as issues with prolonged standing, sitting, and the inability to run, would not result in symptoms more nearly approximating pronounced acquired flatfoot. The Veteran did not show symptoms contemplated by a 30 percent rating such as marked pronation or extreme tenderness of plantar surfaces of the feet. Further, as noted above, his symptoms were improved with arch supports. The Board has also considered the other Diagnostic Codes pertaining to the foot. Other disability ratings may be assigned only if the symptomatology for a disability is not duplicative or overlapping with the symptomatology of any other disability. See Esteban v. Brown, 6 Vet. App. 259, 261-62 (1994); see also Lyles v. Shulkin, 29 Vet. App. 107 (2017). In Scott v. Wilkie, the Federal Circuit expressly adopted the Court’s holding that disabilities specifically listed in the rating schedule may only be rated under Diagnostic Codes which specifically pertain to them. Scott v. Wilkie, 920 F.3d 1375 (Fed. Cir. 2019) (citing Copeland v. McDonald, 27 Vet. App. 333, 336 (2015)). The Federal Circuit also expressly adopted the Court’s holding that unlisted conditions may be rated by analogy to Diagnostic Codes that may not describe the unlisted disability but addresses disabilities that may be productive of similar symptoms. Scott, 920 F.3d 1375 (citing Yancy v. McDonald, 27 Vet. App. 484, 493 (2016). Finally, the Federal Circuit concluded that the Board must also consider assigning separate ratings under analogous Diagnostic Codes, when rating an unlisted service-connected foot disability exhibiting distinct manifestations, even when service connection has also been granted for one of the eight conditions listed in the rating schedule. Id. Here, the Veteran’s flat foot disability is specifically listed under the rating schedule and therefore cannot be rated under a different Diagnostic Code. However, his service connected left foot disability is flat foot with plantar fasciitis. Prior to February 7, 2021, there was no listed Diagnostic Code for plantar fasciitis. Under Diagnostic Code 5284, a 10 percent rating is warranted for a moderate injury. A 20 percent rating is warranted for a moderately severe injury. A 30 percent rating is warranted for a severe injury. A 40 percent rating is warranted with actual loss of use of the foot. 38 C.F.R. § 4.71a (2017). Although Diagnostic Code 5284 limits its application to disabilities resulting from actual injuries to the foot, the Board still can consider rating closely related conditions by analogy. Yancy v. McDonald, 27 Vet. App. 484, 493 (2016). Here, the Veteran’s symptoms were pain, stiffness, swelling, pain on use, accentuated pain, pain on manipulation, and use of arch supports that relieved his symptoms. He had decreased longitudinale arch height and weight bearing line falling over or medial to the great toe. These symptoms are contemplated by Diagnostic Code 5276 and to provide a separate rating for plantar fasciitis under Diagnostic Code 5284 would constitute pyramiding and is not permitted. Effective February 7, 2021, there is a Diagnostic Code for plantar fasciitis. Under Diagnostic Code 5269, a 30 percent rating is warranted when there is bilateral plantar fasciitis with is no relief from both non-surgical and surgical treatment. A 20 percent rating is warranted for unilateral plantar fasciitis when there is no relief from both surgical and non-surgical treatment. Otherwise, a 10 percent rating is warranted for unilateral or bilateral plantar fasciitis. Note (2) states that if a veteran has been recommended for surgery, but is not a surgical candidate, plantar fasciitis is to be evaluated under the 20 percent or 30 percent criteria, whichever is applicable. See Schedule for Rating Disabilities: Musculoskeletal System and Muscle Injuries, 85 Fed. Reg. 76453, 76464 (Nov. 30, 2020); Correction, 86 Fed. Reg. 8142, 8143 (Feb. 4, 2021) (changing new diagnostic code applicable to plantar fasciitis from 5285 to 5269). Because the new regulation has specified February 7, 2021 as the effective date without provision for retroactive application, it may not be applied prior to the effective date. As of that effective date, the Board must apply whichever version of the rating criteria is more favorable to the Veteran. 38 U.S.C. § 5110(g); Kuzma v. Principi, 341 F.3d 1327 (Fed. Cir. 2003). The Veteran has service-connected unilateral plantar fasciitis. The 10 percent criteria are therefore met. However, to warrant a 20 percent rating, there must be no relief from both non-surgical and surgical treatment. The Veteran has not had surgical treatment, and surgical intervention has not been recommended. Beginning February 7, 2021, a separate 10 percent rating for plantar fasciitis is granted. The evidence of record does not reflect that the Veteran has any other service-connected foot disabilities that would warrant a separate rating under a different Diagnostic Code. In conclusion, the Board finds that the preponderance of the evidence is against a rating in excess of 20 percent for his left foot disability. In denying such a rating, the Board finds the benefit of the doubt doctrine is not applicable. 38 U.S.C. § 5107; 38 C.F.R. §§ 4.3, 4.7. REASONS FOR REMAND 1. Right Knee The Veteran received a VA examination in July 2016 but it is inadequate. It was noted that an MRI was needed for further assessment, and the Veteran’s attorney argued that the VA examination was not complete as an MRI was not provided. The Board finds that to fulfill its duty to assist VA needs to provide the Veteran with an MRI of his right knee. See Green v. Derwinski, 1 Vet. App. 121, 123 (1991) (duty to assist not satisfied where examiner stated that further review of records and additional diagnostic studies would be necessary or helpful). On remand, the RO must attempt to have the Veteran undergo an MRI. Private medical records from November 1984 note a dislocated patella injury and treatment by immobilization for two weeks. Records from December 1984 show that he was later diagnosed with an internal derangement of the right knee with probable subluxation of the patella. He underwent arthroscopic surgery on his right knee in December 1984. His periods of service from July 1986 to December 1986 and from November 1990 to May 1991 were ACDUTRA. His only period of active duty was from August 1993 to May 1999. For his periods of ACDUTRA, he does not have “veteran” status because there is no service-connected disability from these periods. His service connected disabilities are from his period of active duty. Therefore, the presumption of soundness is not applicable for his two periods of ACDUTRA. See Paulson v. Brown, 7 Vet. App. 466, 470 (1995); see also Smith v. Shinseki, 24 Vet. App. 40 (2010). The Veteran’s right knee condition existed prior to his periods of ACDUTRA. Accordingly, in order to establish aggravation, the Veteran has the burden by benefit of the doubt standard of showing a permanent increase in disability during the relevant period of ACDUTRA, and that such permanent increase was beyond the natural progress of that disability. See Donnellan v. Shinseki, 24 Vet. App. 167, 173-75 (2010). For his periods of ACDUTRA, the examiner needs to discuss whether the Veteran’s right knee was permanently aggravated and if so, whether the aggravation was beyond the natural progression of the disease. For his period of active service from August 1993 to May 1999, his entrance examination noted right knee arthroscopy. The presumption of soundness therefore does not attach. Service connection is warranted if a preexisting disorder was aggravated by a veteran’s active service. A preexisting injury or disease will be presumed to have been aggravated by active service where there is an increase in disability during such service, unless there is a specific finding that the increase in disability was due to the natural progress of the disease. 38 U.S.C. § 1153 (2018); 38 C.F.R. § 3.306(a) (2020). The examiner must opine as to whether the right knee disability became worse in service and then an opinion as to whether any aggravation was due to the natural progression of the disease. 2. Left Arm The Veteran received a VA examination in October 1999 for his left arm disability, and his disability was noted in an August 2016 VA examination. However, as noted by the Veteran’s attorney, these examinations were inadequate. Neither examiner provided a nexus opinion despite the evidence in the Veteran’s service records of an in-service injury. Therefore, the Board finds a new VA examination is necessary to provide a nexus opinion. 3. Left Ear Hearing Loss and Tinnitus The Veteran received a VA examination for his disabilities in August 2016. Like the left arm examinations, the Board also finds this examination was inadequate. The examiner based his negative opinion on the lack of permeant positive threshold shift in the Veteran’s hearing. However, the examiner noted the separation examination was not in the file. The examiner did not consider the Veteran’s lay statements concerning in service noise exposure. The Veteran experienced acoustic trauma as demonstrated by his exposure to combat. Consequently, the Board finds a nexus opinion on the Veteran’s left ear hearing loss is necessary, as well as an opinion on the possible relationship between his hearing loss and tinnitus. The matters are REMANDED for the following action: 1. Schedule the Veteran to receive an MRI for his right knee. If this cannot be done, it must be documented in the claims file. 2. Then, return the Veteran’s claims file to the examiner who conducted the July 2016 VA examination so a supplemental opinion may be provided. If that examiner is no longer available, provide the Veteran’s claims file to a similarly qualified clinician. The entire claims file and a copy of the remand must be made available to the examiner for review. A new physical or telehealth examination is only required if deemed necessary by the examiner. The Veteran had ACDUTRA and active duty service. For his periods of ACDUTRA from July 29, 1986 to December 22, 1986 and from November 25, 1990 to May 8, 1991, the examiner must opine as to the following: a. Whether it was at least as likely as not (50 percent or greater probability) that the Veteran’s right knee disability, which existed prior to service, was permanently aggravated during service. b. If the answer to (a) is yes, was it also at least as likely as not that the aggravation was beyond the natural progression of the disease. Although an independent review of the claims file is required, the Board calls the examiner’s attention to the following: a. In August 1986, the Veteran reported having knee pain for four days after running and stepping into a ditch. He reported having right knee surgery two years prior, and it was noted that he had been diagnosed with Osgood-Schlatter disease. Upon examination, he had slight pain around his patella, point tenderness, a slight limp, and his joint was stable. For the Veteran’s period of active duty service from August 1993 to May 1999, the examiner must opine as to the following: a. Whether the Veteran’s right knee disability, which existed prior to service, increased in severity during service. b. Whether the pre-existing disability was permanently aggravated beyond its natural progression by his period of service. The examiner must provide all findings, along with a complete rationale for his or her opinion(s) in the examination report. If any of the above requested opinions cannot be made without resort to speculation, the examiner must state this and provide a rationale for such conclusion. 3. Schedule the Veteran for an examination with an appropriate clinician for his left arm disability. The entire claims file and a copy of this remand must be made available to the examiner for review, and the examiner must specifically acknowledge receipt and review of these materials in any reports generated. The examiner must provide an opinion as to whether it is at least as likely as not (50 percent or greater probability) that the Veteran’s left arm disability began during active service, is related to an incident of service, or began within one year after discharge from active service. Although an independent review of the claims file is required, the Board calls the examiner’s attention to the following: a. October 1986 treatment note documenting complaint of left arm numbness b. May 1993 report of left shoulder pain The examiner must provide all findings, along with a complete rationale for his or her opinion(s) in the examination report. If any of the above requested opinions cannot be made without resort to speculation, the examiner must state this and provide a rationale for such conclusion. 4. Return the Veteran’s claims file to the examiner who conducted the August 2016 audiological examination so a supplemental opinion may be provided. If that examiner is no longer available, provide the Veteran’s claims file to a similarly qualified clinician. The entire claims file and a copy of the remand must be made available to the examiner for review. A new physical or telehealth examination is only required if deemed necessary by the examiner. The examiner must provide opinions as to: a. Whether it is at least as likely as not that the Veteran’s left ear hearing loss began during active service, is related to an incident of service, or began within one year after discharge from active service. b. Whether it is at least as likely as not that the Veteran’s tinnitus began during active service, is related to an incident of service, or began within one year after discharge from active service. If and only if the examiner determines that the Veteran’s left ear hearing loss is due to service, he or she must provide opinions as to the following: a. Whether it is at least as likely as not that the Veteran’s tinnitus was proximately due to or the result of his left ear hearing loss b. Whether it is at least as likely as not that the Veteran’s tinnitus was aggravated beyond its natural progression by his left ear hearing loss. (Continued on the next page)   The examiner must provide all findings, along with the complete rationale for his or her opinion(s) in the examination report. If any of the above requested opinions cannot be made without resort to speculation, the examiner must state this and provide a rationale for such conclusion. 5. Then, readjudicate the claims. If any decision is adverse to the Veteran, issue a Supplemental Statement of the Case and allow the applicable time for response. Then return the case to the Board. D. Martz Ames Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board R. Brunot, Associate Counsel The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.