Citation Nr: 21011296 Decision Date: 03/01/21 Archive Date: 03/01/21 DOCKET NO. 11-25 716 DATE: March 1, 2021 ORDER Entitlement to an initial rating higher than 10 percent for a right knee disability (strain) is denied. REMANDED Entitlement to service connection for a neck disability (cervical degenerative disc disease) is remanded. Entitlement to service connection for a left upper extremity disability (ulnar damage), to include as secondary to a neck disability, is remanded. Entitlement to service connection for headaches, also claimed as secondary to a neck disability, is remanded. FINDING OF FACT The most probative evidence of record demonstrates that the Veteran’s right knee disability is manifested by painful limitation of motion; however, flexion limited to 45 degrees, extension limited to 10 degrees, ankylosis, instability, or cartilage damage were not objectively demonstrated. CONCLUSION OF LAW The criteria for an initial rating higher than 10 percent for right knee strain, have not been met. 38 U.S.C. § 1155 (2012); 38 C.F.R. § 4.71a, DC 5260. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Army from April 1975 to April 1979. These matters are on appeal from an April 2009 rating decision. An August 2011 rating decision increased the rating for the Veteran’s right knee disability to 10 percent, effective August 7, 2008, the date of receipt of claim for service connection for a right knee disability. As this increase does not represent a total grant of the benefits sought on appeal, the claim remains before the Board. AB v. Brown, 6 Vet. App. 35 (1993). A hearing was held before the Board in February 2015. A transcript of the hearing is associated with the claims file. In a January 2021 letter, the Veteran was advised that the Veterans Law Judge (VLJ) who conducted the February 2015 hearing was no longer employed by the Board and he had the right to an additional hearing before a different VLJ. 38 U.S.C. § 7107(c), 38 C.F.R. § 20.707. The letter instructed if the Veteran did not respond within 30 days, the Board would assume the Veteran does not want another hearing and proceed with a decision on the appellate record. As no response was received, the Board will proceed with adjudication. In May 2015 and December 2019, these matters were remanded by the Board for additional development. The claim for an increased rating for the Veteran’s right knee disability is ready for adjudication. Increased Rating Claim Disability evaluations (ratings) are determined by evaluating the extent to which a veteran's service-connected disability adversely affects his ability to function under the ordinary conditions of daily life, including employment, by comparing the symptomatology with the criteria set forth in the Schedule for Rating Disabilities (Rating Schedule). 38 U.S.C. §§ 1155; 38 C.F.R. §§ 4.1, 4.2, 4.10. In evaluating a disability, the Board considers the current examination reports in light of the whole recorded history to ensure that the current rating accurately reflects the severity of the condition. The Board has a duty to acknowledge and consider all regulations that are potentially applicable. Schafrath v. Derwinski, 1 Vet. App. 589 (1991). The medical and industrial history is to be considered, and a full description of the effects of the disability upon ordinary activity is also required. 38 C.F.R. §§ 4.1, 4.2, 4.10. Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. See 38 C.F.R. § 4.7. Reasonable doubt regarding the degree of disability will be resolved in the veteran’s favor. 38 C.F.R. § 4.3. In view of the number of atypical instances it is not expected, especially with the more fully described grades of disabilities, that all cases will show all the findings specified. Findings sufficiently characteristic to identify the disease and the disability therefrom, and above all, coordination of rating with impairment of function will, however, be expected in all instances. 38 C.F.R. § 4.21 (2019). At the time of an initial rating, separate ratings can be assigned for separate periods of time based on facts found, a practice known as “staged” ratings. Fenderson v. West, 12 Vet. App. 119, 126 (1999). The evaluation of the same disability under various diagnoses, known as pyramiding, is generally to be avoided. 38 C.F.R. § 4.14 (2019). The critical element in permitting the assignment of several ratings under various diagnostic codes is that none of the symptomatology for any one of the disabilities is duplicative or overlapping with the symptomatology of the other disability. See Esteban v. Brown, 6 Vet. App. 259, 261-62 (1994). 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.”). 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. 38 C.F.R. § 4.59. As such, painful motion should be considered to determine whether a higher rating is warranted on such basis, whether or not arthritis is present. See Burton v. Shinseki, 25 Vet. App. 1 (2011). In this regard, 38 C.F.R. § 4.59 requires that “[t]he joints involved should be tested for pain on both active and passive motion, in weight-bearing and nonweight-bearing and, if possible, with the range of the opposite undamaged joint.” Correia v. McDonald, 28 Vet. App. 158 (2016). Further, 38 C.F.R. § 4.59 is applicable to the evaluation of musculoskeletal disabilities involving actually painful, unstable or malaligned joints or periarticular regions, regardless of whether the Diagnostic Code under which the disability is evaluated is predicated on range of motion measurements. Southall-Norman v. McDonald, 28 Vet. App. 346 (2016). When determining the severity of musculoskeletal disabilities, which are at least partly rated on the basis of range of motion, VA must consider the extent of additional functional impairment a veteran may have above and beyond the limitation of motion objectively demonstrated due to pain, limited or excess movement, weakness, incoordination, and premature or excess fatigability, etc., particularly when symptoms “flare up,” to include periods of prolonged use, and assuming these factors are not already contemplated in the governing rating criteria. See 38 C.F.R. §§ 4.40, 4.45, 4.59; Sharp v. Shulkin, 29 Vet. App. 26 (2017). The Veteran contends that his service-connected right knee disability is more severe than his initial 10 percent evaluation would indicate. His right knee strain is rated pursuant to DC 5260. Effective February 7, 2021, VA revised the portion of the Rating Schedule that addresses the Musculoskeletal System and Muscle Injuries. See 85 Fed. Reg. 76453, 76463 (Nov. 30, 2020)(to be codified at 38 C.F.R. § 4.71a). These new regulations apply to all applications for benefits received by VA or that are pending before the agency of original jurisdiction on or after February 7, 2021. Claims pending prior to the effective date will be considered under both old and new rating criteria, and whatever criteria is more favorable to the veteran will be applied. The Board may not apply a current regulation prior to its effective date, unless the regulation explicitly provides otherwise. Kuzma v. Principi, 341 F.3d 1327 (Fed. Cir. 2003). However, the Board is not precluded from applying prior versions of the applicable regulation to the period on or after the effective dates of the new regulation if the prior version was in effect during the pendency of the appeal. Therefore, the Board will consider the Veteran's claim under the old criteria prior to February 7, 2021 and both the old and new rating criteria from February 7, 2021, and the criteria that is more favorable to the Veteran will be applied. Diagnostic Codes 5260 and 5261 have not been revised during the pendency of this claim. Under Diagnostic Code 5260, a noncompensable rating is assigned when flexion of the knee is limited to 60 degrees; a 10 percent rating is assigned when flexion is limited to 45 degrees; a 20 percent rating is assigned when flexion is limited to 30 degrees; and a 30 percent rating is assigned when flexion is limited to 15 degrees. Separate ratings under Diagnostic Code 5260 for limitation of flexion of the leg and Diagnostic Code 5261 for limitation of extension of the leg may be assigned for disability of the same joint. VAOPGCPREC 09-04. Under Diagnostic Code 5261, a noncompensable rating is assigned when extension of the knee is limited to 5 degrees; a 10 percent rating is assigned when extension is limited to 10 degrees; a 20 percent rating is assigned when extension is limited to 15 degrees; a 30 percent rating is assigned when extension is limited to 20 degrees; a 40 percent rating is assigned when extension is limited to 30 degrees; and a 50 percent rating is assigned when extension is limited to 50 degrees. Diagnostic Code 5010 provides that arthritis due to trauma, as substantiated by x-ray findings, is to be rated as degenerative arthritis under Diagnostic Code 5003. 38 C.F.R. § 4.71a, Diagnostic Code 5010. Degenerative arthritis established by radiologic findings will be rated on the basis of limitation of motion under the appropriate diagnostic codes for the specific joint or joints involved. Diagnostic Code 5003 further states that, where limitation of motion of the specific joint or joints involved is noncompensable under the appropriate diagnostic codes, a rating of 10 percent is for application for each such major joint affected by limitation of motion, to be combined, not added. 38 C.F.R. § 4.71a, Diagnostic Code 5003; see also Mitchell v. Shinseki, 25 Vet. App. 32 (2011); Lichtenfels v. Derwinski, 1 Vet. App. 484 (1991). Under the new rating criteria effective April 7, 2021, Diagnostic Code 5003 remained largely unchanged as the main revision was only the title of the code to “Degenerative arthritis, other than post-traumatic.” Diagnostic Code 5010 was revised for “post-traumatic arthritis,” by removing the instruction to rate as degenerative arthritis under 5003 and directing that traumatic arthritis be rated as “limitation of motion, dislocation, or other specified instability under the affected joint.” Separate ratings may be assigned for meniscal injury under DC 5258 or 5259, instability under DC 5257, and/or limitation of motion under DC 5260 and/or 5261, if there are non-overlapping symptoms to warrant each rating. Lyles v. Shulkin, 29 Vet. App. 107 (2017). To the extent Diagnostic Code 5257 may be applicable in this case, the rating criteria were revised February 7, 2021. Under the former rating criteria prior to February 7, 2021, DC 5257 rates impairment based on recurrent subluxation or lateral instability of the knee, and provides a 10 percent evaluation where there is evidence of slight recurrent subluxation or lateral instability of a knee; a 20 percent rating with evidence of moderate recurrent subluxation or lateral instability; and a 30 percent rating with evidence of severe recurrent subluxation or lateral instability. 38 C.F.R. § 4.71a, Diagnostic Code 5257. Under the revised rating criteria effective February 7, 2021, Diagnostic Code 5257, removes the “severe,” “moderate,” and “slight” language for recurrent subluxation or lateral instability and adds rating for patellar instability. For recurrent subluxation or instability, a 10 percent rating is warranted for sprain, incomplete ligament tear, or complete ligament tear (repaired, unrepaired, or failed repair) causing persistent instability, without a prescription from a medical provider for an assistive device (e.g., cane(s), crutch(es), walker) or bracing for ambulation. A 20 percent rating is warranted for one of the following: (a) sprain, incomplete ligament tear, or repaired complete ligament tear causing persistent instability, and a medical provider prescribes a brace and/or assistive device (e.g., cane(s), crutch(es), walker) for ambulation or (b) unrepaired or failed repair of complete ligament tear causing persistent instability, and a medical provider prescribes either an assistive device (e.g., cane(s), crutch(es), walker) or bracing for ambulation. A 30 percent rating is warranted for unrepaired or failed repair of complete ligament tear causing persistent instability, and a medical provider prescribes both an assistive device (e.g., cane(s), crutch(es), walker) and bracing for ambulation. For patellar instability, a 10 percent rating is warranted for a diagnosed condition involving the patellofemoral complex with recurrent instability (with or without history of surgical repair) that does not require a prescription from a medical provider for a brace, cane, or walker. A 20 percent rating is warranted for a diagnosed condition involving the patellofemoral complex with recurrent instability after surgical repair that requires a prescription by a medical provider for one of the following: A brace, cane, or walker. A 30 percent rating is warranted for a diagnosed condition involving the patellofemoral complex with recurrent instability after surgical repair that requires a prescription by a medical provider for a brace and either a cane or a walker. Full range of motion of the knee is from 0 degrees to 140 degrees in extension and flexion. See 38 C.F.R. § 4.71, Plate II. Turning to the evidence, on August 2009 VA contract examination the Veteran presented with symptoms of weakness, stiffness, giving way, lack of endurance, and pain. He denied swelling, heat, redness, locking, fatigability, deformity, tenderness, drainage, effusion, subluxation, and dislocation. He reported experiencing flare-up 4 times per week lasting one hour rated 1 out of 10 on the pain scale. During flare-ups he experienced limitation of motion of the joint described as walking, climbing, and squatting. He also had difficulty with standing/walking. Range of motion measurements of the right knee indicated normal extension and 110 degrees flexion with pain at 90 degrees. There was no additional limitation of range of motion following repetitive use. Joint function was limited by pain, fatigue, weakness, and lack of endurance following repetitive use. X-ray findings were within normal limits. The examiner diagnosed right knee strain with decreased range of motion and tenderness with movement. The effect of the right knee disability on the Veteran’s usual occupation was pain and weakness with active movement. The effect of the disability on his daily activities was pain and difficulty with climbing stairs or prolonged standing. In February 2015, the Veteran testified that his right knee disability had worsened since the last examination, including difficulty ambulating stairs and climbing a ladder. He complained of pain and problems extending and flexing his knee. Pursuant to the Board’s May 2015 remand, on November 2015 VA knee and lower leg conditions Disability Benefits Questionnaire examination, the Veteran stated that he had right knee problems with prolonged walking, but denied any flare-ups of the right knee. Range of motion measurements of the right knee were normal and no pain was noted on examination. There was no evidence of pain with weight bearing. There was objective evidence of localized tenderness or pain on palpation of the joint or associated soft tissue that was mild in severity. There was no evidence of crepitus. On repetitive use testing there was no additional functional loss or range of motion after three repetitions. Muscle strength testing was normal. Joint stability testing was normal and there was no history of recurrent effusion or meniscus (semilunar cartilage) disability. He used no assistive device. The examiner opined that the right knee disability had no impact on his ability to perform any type of occupational task. He also opined that the current severity of right knee flexion was none to minimal. The rationale was that range of motion was normal with minor tenderness to palpation. The Veteran subjectively stated he had difficulty with long distances or stairs. Pursuant to the Board’s December 2019 remand, on February 2020 VA knee and lower leg conditions DBQ examination the Veteran presented with complaints of sharp pain and right knee buckling with difficulty ambulating stairs. He took no medication for his knee. The impact of his right knee disability was described as an inability to stand or walk for prolonged periods. Flare-ups occurred with changes in the weather and were moderate to severe. The right knee flare-ups lasted a week or more. He reported functional loss or functional impairment manifested by inability to stand or walk more than 10 minutes due to pain. Range of motion measurements of the right knee indicated normal extension and 90 degrees flexion. Pain was noted on examination on flexion and caused functional loss. There was no evidence of pain with weight bearing or evidence of crepitus or localized tenderness or pain on palpation. There was no additional loss of function or range of motion during repetitive use testing. Pain significantly limited functional ability. In terms of range of motion measurements, it was described as normal extension and 85 degrees flexion. Muscle strength and joint stability testing was normal. The right knee disability impacted his ability to perform any type of occupational tasks, because he was unable to stand or walk more than 10 minutes due to pain. However, there was no evidence of pain on passive range of motion testing or non-weight bearing testing of the right knee. After review of the evidence, the Board finds that an initial rating higher than 10 percent for the right knee is not warranted under the criteria prior to or since February 7, 2021. The medical evidence shows that the Veteran’s right knee disability is manifested by pain on motion. Right knee flexion was not limited to 45 degrees and extension was not limited to 10 degrees. Rather, range of motion testing of the right knee indicated normal extension with flexion limited to no less than 90 degrees. Under Diagnostic Code 5260 and 5261, the limitation of motion does not reach the level of a compensable evaluation. Instead, the Veteran has been afforded a 10 percent evaluation for painful or limited motion. Higher evaluations are not warranted. Regarding the DeLuca factors, the Board observes that VA examiners have noted the Veteran’s complaints such as pain and difficulty walking and standing. The Board has taken those complaints into consideration in its above discussion. However, the objective medical evidence of record is of greater probative value as to the Veteran's level of impairment than his assertions. Even considering his subjective complaints of pain and other symptoms described in DeLuca, limitation of motion of the right knee has not been shown such that a higher rating would be warranted. See Thompson v. McDonald, 815 F.3d 781, 786 (Fed. Cir. 2016) (holding that provision describing functional loss due to disability of the musculoskeletal system does not supersede requirements for a higher rating specified in the Rating Schedule). The Board finds that the evidence does not support a finding that the Veteran’s right knee disability more closely approximates a 20 percent rating. In sum, the Board finds that the preponderance of the evidence is against the assignment of an initial rating greater than 10 percent for the right knee due to limitation of motion of the knee. While the Board accepts the contentions of the Veteran that his right knee limitation of motion causes him to experience pain, providing the basis for the 10 percent evaluation, the Board has taken that into account in its consideration of the range of motion of the Veteran’s right knee. The rating schedule does not require a separate rating for pain itself. Spurgeon v. Brown, 10 Vet. App. 194 (1997). Accordingly, a greater rating is not warranted based on functional loss due to pain and weakness causing additional disability beyond that reflected on range of motion measurements. The Board finds that a separate or higher rating is not warranted for right knee instability under Diagnostic Code 5257 prior to or since February 7, 2021. The Board acknowledges that on August 2009 VA contract examination the Veteran complained of giving way or instability. However, joint stability tests on August 2009, November 2015, and February 2020 VA examinations were all normal and there is no evidence that the Veteran uses an assistive device, i.e., cane or knee brace, to assist with walking. Accordingly, the Board finds that a separate rating for instability of the right knee under Diagnostic Code 5257 is not warranted. The Board has also considered whether any other applicable rating criteria may enable a higher evaluation. However, after review, the Board finds that no other diagnostic code provides for a higher rating for the time period in question. There is no evidence of ankylosis of the right knee, dislocation of semilunar cartilage, symptomatic removal of semilunar cartilage, impairment of the tibia and fibula, genu recurvatum. Accordingly, Diagnostic Codes 5256, 5258, 5259, 5262, and 5263 are not for consideration. Accordingly, the Board finds that for the preponderance of the evidence is against the assignment of a rating greater than 10 percent for right knee strain under the rating criteria prior to and since February 7, 2021. In this case, the Veteran is competent to report complaints such as difficulty with prolonged standing and sitting and difficulty walking, as these observations come to him through his senses. Layno v. Brown, 6 Vet. App. 465, 469 (1994). The Board also acknowledges the Veteran's belief that his symptoms are of such severity as to warrant a higher rating and has taken these contentions seriously (this was the basis of the Board’s remands to address this medical question). He is not, however, competent to identify a specific level of disability of his right knee disability according to the appropriate diagnostic codes. On the other hand, such competent evidence concerning the nature and extent of the Veteran’s right knee disability has been provided by the medical personnel who have examined him during the current appeal and who have rendered pertinent opinions in conjunction with the evaluations. The medical findings (as provided in the examination reports) directly address the criteria under which this disability is evaluated. Finally, neither the Veteran nor his representative has raised any other issues, nor have any other issues been reasonably raised by the record. See Doucette v. Shulkin, 28 Vet. App. 366, 369-370 (2017) (confirming that the Board is not required to address issues unless they are specifically raised by the claimant or reasonably raised by the evidence of record. REASONS FOR REMAND Unfortunately, another remand is required in this case. Although the Board sincerely regrets the additional delay, it is necessary to ensure that there is a complete record upon which to decide the Veteran’s service connection claims so that he is afforded every possible consideration. 1. Neck disability The Veteran contends that he has a neck disability related to motor vehicle accidents during service. In December 2019 remand, the Board requested an etiological opinion regarding the Veteran’s claimed neck disability and requested the examiner specifically consider and discuss all pertinent medical and other objective evidence (to include service treatment records (STRs) documenting the motor vehicle accidents), and all lay assertions, to include any assertions as to onset and continuity of symptoms. Pursuant to the Board’s remand, in a February 2020 VA medical opinion an examiner opined that the Veteran’s neck disability was not related to his service, including motor vehicle accidents. The rationale, in part, was that the Veteran stated that his cervical degenerative arthritis was diagnosed in 2005, about 25 years after service. However, he failed to discuss the significance of the motor vehicle accidents or consider the Veteran’s lay statements regarding the onset of his neck disability, in-service symptoms, and continuity of symptoms since service, as directed by the Board. Accordingly, due to the deficiencies in the February 2020 VA medical opinion, an additional addendum opinion is necessary. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007); Stegall v. West, 11 Vet. App. 268 (1998). 2. Left arm disability The Veteran also contends that he has a left arm disability related to motor vehicle accidents during service. Alternatively, he contends that his left arm disability is related to his neck disability. In the December 2019 remand, the Board also requested an etiological opinion regarding the Veteran’s claimed left arm disability. Pursuant to the Board’s remand, in a February 2020 VA medical opinion an examiner opined that the Veteran’s left arm disability was not related to his service, including motor vehicle accidents. The rationale, in part, was that the Veteran stated that his left arm disability was diagnosed in 2005, about 25 years after service. However, he failed to discuss the significance of the motor vehicle accidents as directed by the Board. Accordingly, due to the deficiencies in the February 2020 VA medical opinion, an additional addendum opinion is necessary. Barr, supra; Stegall, supra. Moreover, to the extent that the Veteran claims that his left arm disability is related to his neck disability, the Board finds that the Veteran’s claim of entitlement to service connection for a left arm disability is inextricably intertwined with the claim for service connection for a neck disability that is being remanded, and thus the Board will defer consideration of the appeal with regard to entitlement to service connection for a left arm disability. See Harris v. Derwinski, 2 Vet. App. 180, 183 (1991). 3. Headaches The Veteran also contends that he has headaches that are related to motor vehicle accidents during service. Alternatively, he contends that his headaches are related to his neck disability. In the December 2019 remand, the Board requested an etiological opinion regarding the Veteran’s claimed headaches, including an opinion as to whether his headache disability clearly and unmistakably pre-existed service and, if so, whether it was clearly and unmistakably aggravated (permanently worsened beyond the natural progression) prior to service. Pursuant to the Board’s remand, in a February 2020 VA medical opinion an examiner opined that the Veteran’s headaches were not related to his service, including motor vehicle accidents. The rationale was that the STRs are silent for headache complaints, diagnosis, evaluations, and treatments. However, he failed to discuss the significance of the motor vehicle accidents as directed by the Board and failed to opine as to whether any pre-existing headaches were aggravated during service. Accordingly, due to the deficiencies in the February 2020 VA medical opinion, an additional addendum opinion is necessary. Barr, supra; Stegall, supra. Moreover, to the extent that the Veteran claims that his headaches are related to his neck disability, the Board finds that the Veteran’s claim of entitlement to service connection for headaches is inextricably intertwined with the claim for service connection for a neck disability that is being remanded, and thus the Board will defer consideration of the appeal with regard to entitlement to service connection for headaches. See Harris, supra. The matters are REMANDED for the following actions: Obtain an appropriate addendum by an examiner, other than the February 2020 VA examiner, regarding the nature and etiology of the Veteran’s claimed neck and left arm disabilities and headaches. Unless the examiner finds that a new examination is required, the Veteran need not be examined again. The claims file, including a copy of the May 2015 and December 2019 remands, must be made available to the examiner for review who should indicate that the claims file was reviewed. The examiner should provide the following opinions: Neck disability: Is it at least as likely as not (50 percent or more probability) that any neck disability, diagnosed at any time during the course of the appeal, had its onset in or is etiologically-related to the Veteran’s active duty service, to include motor vehicle accidents during service? The examiner is asked to consider and discuss as necessary the pertinent evidence of record to include the Veteran’s lay statements, testimony, and complaints concerning the onset of his neck disability, including those made to medical providers. Left arm disability: a) Is it at least as likely as not (50 percent or more probability) that any left arm disability, diagnosed at any time during the course of the appeal, had its onset in or is etiologically-related to the Veteran’s active duty service, to include motor vehicle accidents during service? b) If the answer to part (a) above is “no” and the Veteran’s neck disability has been found to be related to his service, is it at least as likely as not (50 percent probability or more ) that the Veteran's left arm disability is (a) proximately due to or the result of the Veteran’s service-connected neck disability, or (b) aggravated (any incremental increase in the left arm disability beyond its normal progression) by his service-connected neck disability? If it is determined that the left arm disability is related to a service-connected disability, to the extent possible, the examiner should indicate the approximate degree of disability or baseline before the onset of aggravation. The examiner is asked to consider and discuss as necessary the pertinent evidence of record to include the Veteran’s lay statements, testimony, and complaints concerning the onset of his left arm disability, including those made to medical providers. Headaches: a) Is there clear and unmistakable evidence (i.e., obvious, manifest, undebatable evidence) demonstrating that any currently diagnosed headaches existed prior to the Veteran’s entry into active service in April 1975? b) If the examiner determines that there is clear and unmistakable evidence that headaches pre-existed service, is there clear and unmistakable evidence that the pre-existing headache disability was NOT aggravated (the underlying disability was NOT increased in severity) beyond its normal progression in connection with the Veteran's active duty service? c) If there is not clear and unmistakable evidence that a headache disability pre-existed service, or if there is not clear and unmistakable evidence that a pre-existing headache disability was not worsened beyond its natural progression by service, is it at least as likely as not (50 percent or more probability) that any headaches, diagnosed at any time during the course of the appeal, had its onset in or is etiologically-related to the Veteran’s active duty service, to include motor vehicle accidents during service? d) If the answer to part (c) above is “no” and the Veteran’s neck disability has been found to be related to his service, is it at least as likely as not (50 percent probability or more ) that the Veteran’s headaches are (a) proximately due to or the result of the Veteran’s service-connected neck disability, or (b) aggravated (any incremental increase in the headache disability beyond its normal progression) by his service-connected neck disability? If it is determined that the headache disability is related to a service-connected disability, to the extent possible, the examiner should indicate the approximate degree of disability or baseline before the onset of aggravation. The examiner is asked to consider and discuss as necessary the pertinent evidence of record to include service treatment records documenting motor vehicle accidents and a May 2004 VA treatment record indicating a history of headaches, the Veteran’s lay statements, testimony, and complaints concerning the onset of his headaches, including those made to medical providers. The examiner is advised that the absence of evidence in the service treatment records is an insufficient basis, by itself, for a negative opinion. The Board, by this remand, makes no determination, expressed or implied, concerning the credibility of any statements on file. The report(s) of examination should include the complete rationale for all opinions expressed. The phrase “at least as likely as not” does not mean within the realm of medical possibility, but rather the weight of medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of that conclusion as it is to find against it. If an opinion cannot be rendered without resorting to speculation, the medical officer should explain why it would be speculative to respond. KELLI A. KORDICH Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board T. Adams, 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.