Citation Nr: 21013659
Decision Date: 03/10/21	Archive Date: 03/10/21

DOCKET NO. 14-21 025A
DATE: March 10, 2021

ORDER

Entitlement to an effective date prior to April 5, 2017, for the grant of service connection for endometriosis is denied. 

Entitlement to an effective date prior to April 5, 2017, for the grant of service connection for left ankle tendonitis is denied.

Entitlement to an effective date prior to April 5, 2017, for the grant of service connection for right ankle tendonitis is denied.

Entitlement to an effective date prior to April 5, 2017, for the grant of service connection for left knee patellofemoral syndrome is denied.

Entitlement to an effective date prior to April 5, 2017, for the grant of service connection for right knee patellofemoral syndrome is denied.

Entitlement to service connection for gastroesophageal reflux disease (GERD) is denied.

Entitlement to service connection for hiatal hernia is denied.

Entitlement to service connection for intestinal disability, to include irritable bowel syndrome (IBS) is denied.

Entitlement to service connection for cold injury residuals, to include of the upper extremities, lower extremities, and head, is denied.  

Entitlement to service connection for bilateral foot pes equinus deformity is denied.

Service connection for a disability manifested by chronic fatigue, to include as due to an undiagnosed illness or medically unexplained chronic multisymptom illness, is granted. 

Service connection for a disability manifested by clumsiness and dizziness, to include as due to an undiagnosed illness or medically unexplained chronic multisymptom illness, is granted.

Service connection for a disability manifested by memory loss, to include as due to an undiagnosed illness or medically unexplained chronic multisymptom illness, is granted.

Entitlement to service connection for low blood platelet disorder is denied.

Entitlement to service connection for right lower extremity radiculopathy is denied. 

Entitlement to service connection for left lower extremity radiculopathy is denied. 

Service connection for tinnitus is granted.

Entitlement to service connection for residuals of anthrax vaccine is denied.

Entitlement to service connection for Vitamin D deficiency is denied.

Entitlement to an initial compensable rating for endometriosis prior to April 3, 2019, is denied.

A 30 percent evaluation, but not higher, for endometriosis beginning April 3, 2019, subject to the law and regulations governing payment of monetary benefits.

Entitlement to an initial rating in excess of 10 percent for left ankle tendonitis is denied.  

Entitlement to an initial rating in excess of 10 percent for right ankle tendonitis is denied.

Entitlement to a rating in excess of 10 percent for left knee patellofemoral syndrome is denied.  

Entitlement to a rating in excess of 10 percent for right knee patellofemoral syndrome is denied.

REMANDED

Entitlement to service connection for polycystic ovary syndrome (PCOS) is remanded.

Entitlement to service connection for left upper extremity carpel tunnel syndrome is remanded.

Entitlement to service connection for gestational diabetes is remanded.

Entitlement to service connection for right upper extremity thoracic outlet syndrome is remanded.

Entitlement to service connection for left upper extremity thoracic outlet syndrome is remanded.

Entitlement to a rating in excess of 30 percent for cervical stenosis prior to April 8, 2019, is remanded.

Entitlement to a rating in excess of 20 percent for lumbar degenerative disease and strain prior to April 8, 2019, is remanded.

FINDINGS OF FACT

1. VA received the Veteran’s original claim for service connection for endometriosis on April 5, 2017.

2. VA received the Veteran’s original claim for an increased rating for bilateral pes planus on April 5, 2017.  

3. A July 2017 VA examination diagnosed bilateral ankle tendonitis and found that the condition was at least as likely as not proximately due to the bilateral pes planus.

4. The RO granted service connection for left and right ankle tendonitis and assigned a 10 percent evaluation for each, effective April 5, 2017, the date of claim for the increased rating for bilateral pes planus.

5. VA received the Veteran’s original claim for service connection for bilateral knee patellofemoral syndrome on April 5, 2017.

6. The Veteran does not have a current GERD disability.

7. The Veteran’s hiatal hernia is not related to any injury, disease, or event incurred in service

8. The Veteran does not have a current intestinal disability.

9. The Veteran does not have any current cold injury residuals.

10. The Veteran does not have a current bilateral foot pes equinus deformity.

11. A disability manifested by chronic fatigue has been shown to be caused or related to the Veteran’s active military service.

12. A disability manifested by clumsiness and dizziness has been shown to be caused or related to the Veteran’s active military service.

13. A disability manifested by memory loss has been shown to be caused or related to the Veteran’s active military service.

14. The Veteran does not have a current low blood platelet disorder.

15. The Veteran does not have a current right lower extremity radiculopathy disability.

16. The Veteran does not have a current left lower extremity radiculopathy disability.

17. Tinnitus had its onset in service.

18. The Veteran is not shown to have a diagnosis of any residuals from an anthrax vaccine.

19. Although current competent medical evidence establishes that the Veteran was found to have a vitamin D deficiency, this finding was not shown in service; she does not contend, and the evidence does not show that there is any symptom or disability associated with this laboratory finding.

20. Prior to April 3, 2019, the Veteran’s endometriosis did not result in pelvic pain or heavy or irregular bleeding requiring continuous treatment for control.  

21. Beginning April 3, 2019, the Veteran’s endometriosis resulted in pelvic pain not controlled by treatment.  

22. For the entire period on appeal, the Veteran’s left ankle tendonitis is characterized by moderate symptomatology. 

23. For the entire period on appeal, the Veteran’s right ankle tendonitis is characterized by moderate symptomatology.

24. For the entire period on appeal, the Veteran’s left knee patellofemoral syndrome is characterized by painful motion.

25. For the entire period on appeal, the Veteran’s right knee patellofemoral syndrome is characterized by painful motion.

CONCLUSIONS OF LAW

1. The criteria for an effective date prior to April 5, 2017, for the award of service connection for endometriosis have not been met.  38 U.S.C. §§ 5107, 5110 (2012); 38 C.F.R. §§ 3.102, 3.400 (2019).

2. The criteria for an effective date prior to April 5, 2017, for the award of service connection for left ankle tendonitis have not been met.  38 U.S.C. §§ 5107, 5110 (2012); 38 C.F.R. §§ 3.102, 3.400 (2019).

3. The criteria for an effective date prior to April 5, 2017, for the award of service connection for right ankle tendonitis have not been met.  38 U.S.C. §§ 5107, 5110 (2012); 38 C.F.R. §§ 3.102, 3.400 (2019).

4. The criteria for an effective date prior to April 5, 2017, for the award of service connection for left knee patellofemoral syndrome have not been met.  38 U.S.C. §§ 5107, 5110 (2012); 38 C.F.R. §§ 3.102, 3.400 (2019).

5. The criteria for an effective date prior to April 5, 2017, for the award of service connection for right knee patellofemoral syndrome have not been met.  38 U.S.C. §§ 5107, 5110 (2012); 38 C.F.R. §§ 3.102, 3.400 (2019).

6. The criteria for service connection for GERD are not met.  38 U.S.C. §§ 1131, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303 (2019).

7. The criteria for service connection for hiatal hernia are not met.  38 U.S.C. §§ 1131, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303 (2019).

8. The criteria for service connection for intestinal disability, to include IBS, are not met.  38 U.S.C. §§ 1131, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303 (2019).

9. The criteria for service connection for cold injury residuals, to include of the upper extremities, lower extremities, and head, are not met.  38 U.S.C. §§ 1131, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303 (2019).

10. The criteria for service connection for bilateral foot pes equinus deformity are not met.  38 U.S.C. §§ 1131, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303 (2019)

11. The criteria for service connection for a disability manifested by chronic fatigue to include as due to an undiagnosed illness or medically unexplained chronic multisymptom illness, are met.  38 U.S.C. §§ 1101, 1110, 1112, 1117, 1131, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.309, 3.317 (2019).

12. The criteria for service connection for a disability manifested by clumsiness and dizziness, to include as due to an undiagnosed illness or medically unexplained chronic multisymptom illness, are met.  38 U.S.C. §§ 1101, 1110, 1112, 1117, 1131, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.309, 3.317 (2019).

13. The criteria for service connection for a disability manifested by memory loss, to include as due to an undiagnosed illness or medically unexplained chronic multisymptom illness, are met.  38 U.S.C. §§ 1101, 1110, 1112, 1117, 1131, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.309, 3.317 (2019).

14. The criteria for service connection for low blood platelet disorder are not met.  38 U.S.C. §§ 1131, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303 (2019).

15. The criteria for service connection for right lower extremity radiculopathy are not met.  38 U.S.C. §§ 1131, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303 (2019).

16. The criteria for service connection for left lower extremity radiculopathy are not met.  38 U.S.C. §§ 1131, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303 (2019).

17. Tinnitus was incurred in active duty.  38 U.S.C. §§ 1110, 1131, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303 (2019).

18. The criteria for service connection for residuals of anthrax vaccine are not met.  38 U.S.C. §§ 1131, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303 (2019).

19. The criteria for entitlement to service connection for vitamin D deficiency have not been met.  38 U.S.C. §§ 1110, 1131, 5107(b) (2012); 38 C.F.R. § 3.303 (a) (2019).

20. The criteria for the assignment of an initial compensable rating for endometriosis prior to April 3, 2019, have not been met.  38 U.S.C. §§ 1155, 5107; 38 C.F.R. § 4.116, Diagnostic Code 7629 (2019).

21. The criteria for the assignment of a 30 percent rating, but not higher, for endometriosis beginning April 3, 2019, have been met.  38 U.S.C. §§ 1155, 5107; 38 C.F.R. § 4.116, Diagnostic Code 7629 (2019).

22. The criteria for the assignment of an initial rating in excess of 10 percent for left ankle tendonitis have not been met.  38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.14, 4.71a, Diagnostic Codes 5024-5271 (2019).

23. The criteria for the assignment of an initial rating in excess of 10 percent for right ankle tendonitis have not been met.  38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.14, 4.71a, Diagnostic Codes 5024-5271 (2019).

24. The criteria for the assignment of a rating in excess of 10 percent for left knee patellofemoral syndrome have not been met.  38 U.S.C. § 1155 (2012); 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.40, 4.45, 4.59, 4.71, 4.71a, Diagnostic Code 5260 (2019).

25. The criteria for the assignment of a rating in excess of 10 percent for right knee patellofemoral syndrome have not been met.  38 U.S.C. § 1155 (2012); 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.40, 4.45, 4.59, 4.71, 4.71a, Diagnostic Code 5260 (2019).

REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

The Veteran served in the United States Army from June 1999 to December 2007.

This matter comes to the Board of Veterans’ Appeals (Board) on appeal from August 2017, March 2018, October 2018 and December 2018 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida.  

This claim was previously before the Board in October 2019, at which time it was remanded for further development.  

The Board denied the Veteran’s claim in an October 8, 2019, decision, and the Veteran appealed the decision to the United States Court of Appeals for Veterans Claims (Court).  The parties filed a Joint Motion for Remand (Joint Motion), and a September 2020 Order of the Court vacated the Board’s decision that denied the Veteran’s claims for entitlement to service connection for right upper extremity thoracic outlet syndrome, entitlement to service connection for left upper extremity thoracic outlet syndrome, entitlement to a rating in excess of 30 percent for cervical stenosis prior to April 8, 2019, and entitlement to a rating in excess of 20 percent for lumbar degenerative disease and strain prior to April 8, 2019, because of outstanding treatment records and inadequate VA examinations.

Earlier Effective Date

Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service.  38 C.F.R. §§ 1110, 1131; 38 C.F.R. § 3.303. 

Generally, the effective date of an award of a claim is the date of receipt of the claim or the date entitlement arose, whichever is later.  38 U.S.C. § 5110 (a); 38 C.F.R. § 3.400.  If a claim for disability compensation is received within one year after separation from service, the effective date of entitlement is the day following separation or the date entitlement arose.  38 C.F.R. § 3.400 (b)(2).

Entitlement to an effective date prior to April 5, 2017, for the grant of service connection for endometriosis 

Entitlement to an effective date prior to April 5, 2017, for the grant of service connection for left ankle tendonitis

Entitlement to an effective date prior to April 5, 2017, for the grant of service connection for right ankle tendonitis 

Entitlement to an effective date prior to April 5, 2017, for the grant of service connection for left knee patellofemoral syndrome 

Entitlement to an effective date prior to April 5, 2017, for the grant of service connection for right knee patellofemoral syndrome 

The Veteran was granted service connection for endometriosis, left ankle tendonitis, right ankle tendonitis, left knee patellofemoral syndrome, and right knee patellofemoral syndrome in separate August 2017 rating decisions.  These decisions reported that an effective date of April 5, 2017, was being assigned because it was the date VA received the Veteran’s claim.  

As noted, in general, the effective date of an evaluation and award of compensation based on an original claim, or a claim reopened after disallowance, will be the date of receipt of the claim or the date entitlement arose, whichever is the later.  38 C.F.R. § 3.400.

The Board has reviewed the Veterans claims folder and can find no indication that there was a pending, unadjudicated claim for service connection prior to April 5, 2017.  See Servello v. Derwinski, 3 Vet. App. 196, 198-200 (1992).  The Veteran has also not pointed to any communication or document that could serve as an earlier, unadjudicated claim for benefits.

Having determined that the Veteran’s claim was filed April 5, 2017, the Board must now determine when entitlement to service connection arose.  As noted, an effective date is assigned based on the date of the receipt of a claim or the date entitlement arose, whichever is later.  38 C.F.R. § 3.400.  Thus, even if the Veteran had been experiencing symptoms following her separation from service, her April 5, 2017, claim is clearly the later of the two dates specified by law.  Hence, on this record, earlier effective dates are not assignable as a matter of law. 

Service Connection

Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active service.  38 U.S.C. § 1110 (2012); 38 C.F.R. § 3.303(a) (2017).  To establish service connection for a 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.  Shedden v. Principi, 38 F3d 1163 (Fed. Cir. 2004).

Service connection for certain chronic diseases may be established on a presumptive basis by showing that the disease manifested itself to a degree of 10 percent or more within one year (three years for active tuberculous disease and Hansen’s disease; seven years for multiple sclerosis) from the date of separation from service.  38 U.S.C. §§ 1101, 1112; 38 C.F.R. §§ 3.307(a)(3), 3.309(a).  In such cases, the disease is presumed under the law to have had its onset in service even though there is no evidence of that disease during the period of service.  38 C.F.R. § 3.307(a).  The term “chronic disease” refers to those diseases listed under section 1101(3) of the statute and section 3.309(a) of VA regulations.  38 U.S.C. § 1101(3); 38 C.F.R. § 3.309(a); Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013).

Where a chronic disease under 3.309(a) is “shown as such in service” (“meaning clearly diagnosed beyond legitimate question,” Walker, 708 F.3d at 1339) or in the presumptive period so as to permit a finding of service connection, subsequent manifestations of the same chronic disease at any later date, however remote, are service connected, unless clearly attributable to intercurrent causes.  38 C.F.R. § 3.303(b).  In cases where a chronic disease is “shown as such in service,” the Veteran is “relieved of the requirement to show a causal relationship between the condition in service and the condition for which service connected disability compensation is sought.”  Walker, 708 F.3d at 1336.  

Instead, service connection may be granted for subsequent manifestations of the same chronic disease without any evidence of link or connection between the chronic disease shown in service and manifestations of the same disease at a later time.  In other words, “there is no ‘nexus’ requirement for compensation for a chronic disease which was shown in service, so long as there is an absence of intercurrent causes to explain post-service manifestations of the chronic disease.”  Id.

If evidence of a chronic condition is noted during service or during the presumptive period, but the chronic condition is not “shown to be chronic, or where the diagnosis of chronicity may be legitimately questioned,” i.e., “when the fact of chronicity in service is not adequately supported,” then a showing of continuity of symptomatology after discharge is required to support a claim for disability compensation for the chronic disease.  Proven continuity of symptomatology establishes the link, or nexus, between the current disease and service, and serves as the evidentiary tool to confirm the existence of the chronic disease while in service or a presumptive period during which existence in service is presumed.”  Walker, 703 F.3d at 1336; 38 C.F.R. § 3.303(b).

Service connection may also be granted on a presumptive basis for a Persian Gulf Veteran who exhibits objective indications of a qualifying chronic disability, including resulting from undiagnosed illness, that became manifest either during active service in the Southwest Asia theater of operations during the Persian Gulf War, or to a degree of 10 percent or more not later than December 31, 2021, and which by history, physical examination, and laboratory tests cannot be attributed to any known clinical diagnosis.  38 U.S.C. § 1117; 38 C.F.R. § 3.317 (a)(1).  In claims based on qualifying chronic disability, unlike those for direct service connection, there is no requirement that there be competent evidence of a nexus between the claimed illness and service.  Gutierrez v. Principi, 19 Vet. App. 1, 8-9 (2004).

A “qualifying chronic disability” is defined as chronic disability resulting from (1) an undiagnosed illness, (2) a medically unexplained chronic multi-symptom illness (such as chronic fatigue syndrome, fibromyalgia, or irritable bowel syndrome) that is defined by a cluster of signs or symptoms, or (3) any diagnosed illness that the Secretary determines in regulation prescribed under 38 U.S.C. § 1117 (d) warrants a presumption of service connection.  38 U.S.C. § 1117 (a)(2); 38 C.F.R. § 3.317 (a), (c).

Objective indications of chronic disability include both “signs,” in the medical sense of objective evidence perceptible to a physician, and other, non-medical indicators that are capable of independent verification.  To fulfill the requirement of chronicity, the illness must have persisted for a period of six months. 38 C.F.R. § 3.317 (a)(2)-(3).  Signs or symptoms that may be manifestations of undiagnosed illness include, but are not limited to, the following: (1) fatigue; (2) signs or symptoms involving skin; (3) headache; (4) muscle pain; (5) joint pain; (6) neurologic signs or symptoms; (7) neuropsychological signs or symptoms; (8) signs or symptoms involving the respiratory system (upper or lower); (9) sleep disturbances; (10) gastrointestinal signs or symptoms; (11) cardiovascular signs or symptoms; (12) abnormal weight loss; and (13) menstrual disorders.  38 C.F.R. § 3.317 (b).

Compensation under 38 U.S.C. § 1117 shall not be paid if: (1) there is affirmative evidence that an undiagnosed illness was not incurred during active military, naval, or air service in the Southwest Asia theater of operations during the Persian Gulf War; (2) there is affirmative evidence that an undiagnosed illness was caused by a supervening condition or event that occurred between the Veteran’s most recent departure from active duty in the Southwest Asia theater of operations during the Persian Gulf War and the onset of the illness; or (3) there is affirmative evidence that the illness is the result of the Veteran’s own willful misconduct or the abuse of alcohol or drugs.  38 C.F.R. § 3.317 (c).

If an examiner has determined the Veteran’s disability pattern to be either a diagnosable chronic multisymptom illness with a partially explained etiology, or a disease with a clear and specific etiology and diagnosis, then service connection cannot be granted under 38 C.F.R. § 3.317 and may only be granted if the medical evidence is sufficient to establish service connection on a direct basis.  See generally Combee v. Principi, 34 F.3d 1039, 1043 (1994).

When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall resolve reasonable doubt in favor of the claimant.  38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990).  To deny a claim on its merits, the evidence must preponderate against the claim.  Alemany v. Brown, 9 Vet. App. 518 (1996).

Entitlement to service connection for GERD

Entitlement to service connection for hiatal hernia

A June 2018 private treatment record noted a small hiatal hernia with fluid in the distal esophagus suggestive of gastroesophageal reflux.  

The Veteran received a VA examination in September 2018 and the examiner noted diagnoses of GERD and hiatal hernia from June 2018.  The Veteran stated that she was diagnosed with GERD while overseas and was recently given a prescription.  During testing, she was also diagnosed with the hiatal hernia.  The examiner reviewed the record and noted the diagnoses but there was no endoscopy report found in the record.  There was also no mention of the conditions in VA primary care physician notes and no prescription for GERD on her current VA medication list.  The Veteran’s separation examination did not mention “heartburn” or any diagnosis of GERD, and she denied gastrointestinal complaints during a September 2015 clinical examination.  The examiner concluded that the Veteran did not display a chronic disability pattern associated with Southwest Asia environmental hazards defined as “undiagnosed illnesses” or “diagnosed medically unexplained chronic multi-symptom illnesses.”  

Pursuant to the October 2019 Board remand, the Veteran received a VA examination in February 2020 and the physician again noted the previous diagnoses of GERD and hiatal hernia.  He recounted that the Veteran was diagnosed by CT scan with constipation, hiatal hernia, and GERD in June 2018, but a February 2019 CT scan was negative, and she was diagnosed with endometriosis.  Based on a review of the record, the physician concluded that the Veteran did not carry an official diagnosis of GERD or hiatal hernia.  She was prescribed magnesium oxide, which could be used for GERD, but was used to treat her insomnia according to her VA records.  Furthermore, endometriosis caused a wide range of problems, including abdominal pain with no relation to menstruation, constipation or diarrhea, irregular bleeding, nausea, and fatigue.  The Veteran was not currently on traditional treatment for GERD and neither GERD nor hiatal hernia were listed on her active problems at VA.  Therefore, it was less likely than not that the Veteran had a diagnosis of GERD.  

With regards to the hiatal hernia, the physician concluded that the condition was less likely than not incurred in service.  He noted objective evidence of a sliding hiatal hernia in 2018 which was not present in 2019.  The Veteran had a significant weight increase, which was a risk factor for hiatal hernia development, but she also had endometriosis which could mimic the symptoms of the condition; in fact, her emergency room visit in 2019 was attributed to the endometriosis.  The examiner also found that exposure to burn pit toxins were not etiologically associated with this condition.  The Veteran was not at the Sulfur Mine fire in Iraq nor at Qarmat Ali where the chromium exposure occurred. 

The Board finds the February 2020 VA examination highly probative and concludes that there is no current GERD disability; thus, the first element of the service connection claim has not been satisfied.  The physician thoroughly reviewed the available medical records and noted the overlapping symptoms of endometriosis and GERD.  The available evidence reflects that, while the Veteran received a diagnosis of GERD in June 2018, it was not confirmed by another CT scan less than one year later.  Using available medical literature, the February 2020 physician competently explained the misdiagnosis, linking the symptoms to the Veteran’s service-connected endometriosis.  Congress specifically limits entitlement for service-connected disease or injury to cases where incidents have resulted in a disability.  In the absence of proof of a present disability, there can be no valid claim for service connection.  Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992).  Thus, in this case, without evidence of a current disability, direct service connection for GERD must be denied.

With regards to the hiatal hernia, the Board finds the February 202 VA examination results to be the most probative evidence of record.  The physician’s findings are found to be credible and competent, as they were provided with thorough rationales with regard to the Veteran’s hiatal hernia condition and its lack of connection to service.  The physician relied on his medical expertise to offer his opinion with regards to the etiology of the Veteran’s condition, finding that the symptoms were best attributable to her service-connected endometriosis.  As a result of the competent medical opinions regarding causation based on an accurate interpretation of the record, the Board finds that the claim is not in equipoise and that service connection for a hiatal hernia is therefore not warranted.

Entitlement to service connection for intestinal disability, to include IBS

The Veteran received a VA examination in September 2018 and the examiner found that she did not have an intestinal condition.  The Veteran stated that she began having abdominal pain while overseas and was diagnosed with constipation but did not take any medications for the condition.  She reported current constipation for which she was taking medication but was unsure if she had been diagnosed with IBS.  

Pursuant to the October 2019 Board remand, the Veteran received a VA examination in February 2020 and the physician again concluded that she did not have a diagnosis of an intestinal condition.  The Veteran was seen in 2018 for abdominal pain and was diagnosed with constipation by CT scan.  She was seen again in 2019 for similar complaints and her CT scan was normal, but she was diagnosed with endometriosis.  Based on the results of the examination, the physician noted that the Veteran had possible constipation in June 2018 but was diagnosed with endometriosis.  Endometriosis causes a wide range of problems, including abdominal pain with no relation to menstruation, constipation or diarrhea, irregular bleeding, nausea, and fatigue.  Therefore, he concluded that the Veteran’s intestinal symptoms were ascribed to her service-connected endometriosis.  

The Board finds the February 2020 VA examination highly probative and concludes that there is no current intestinal disability, to include IBS; thus, the first element of the service connection claim has not been satisfied.  The physician thoroughly reviewed the available medical records and noted the overlapping symptoms of endometriosis and her abdominal complaints.  The available evidence reflects that, while the Veteran received a diagnosis of constipation in June 2018, it was not confirmed by another CT scan less than one year later.  Using available medical literature, the February 2020 physician competently explained the misdiagnosis and linked the symptoms to the Veteran’s service-connected endometriosis.  Congress specifically limits entitlement for service-connected disease or injury to cases where incidents have resulted in a disability.  In the absence of proof of a present disability, there can be no valid claim for service connection.  Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992).  Thus, in this case, without evidence of a current disability, direct service connection for an intestinal disability, to include IBS, must be denied.

Entitlement to service connection for cold injury residuals, to include of the upper extremities, lower extremities, and head

The Veteran submitted a cold injury protocol questionnaire in May 2018 and indicated that she received cold injuries including trenchfoot, frostnip, immersion foot, and frozen feet while stationed in Alaska, Germany, and Kosovo.  The injuries affected her hands, feet, ears, cheeks, temples, nose, fingers, toes, arms, and legs.  She experienced tingling, numbness, weaknesses, stiffness, pain, swelling, freezing, burning, and itchiness of the skin, but did not seek any treatment at the time of her injury. 

Pursuant to the October 2019 Board remand, the Veteran received a VA examination in February 2020 and the physician indicated that the Veteran did not have any diagnosed cold injuries.  The Veteran stated that she had to run in the cold and would stay cold all the time, but there was no specific injury and she was never seen for the condition.  Based on the results of the examination, and after reviewing the May 2018 questionnaire, the physician concluded that there were no diagnoses of cold injury residuals.  There was no evidence for such residuals in her military treatment records and there was no current evidence of any cold injury residuals.  Rather, her current symptoms were more accurately explained by her current conditions including cervical radiculopathy, lumbar radiculopathy, pes planus, and carpal tunnel syndrome.  

The Board finds the February 2020 VA examination highly probative and concludes that there is no current cold injury residuals disability, to include of the upper extremities, lower extremities, and head; thus, the first element of the service connection claim has not been satisfied.  The physician thoroughly reviewed the available medical records and noted the self-reported symptoms from May 2018 were explained by her current cervical radiculopathy, lumbar radiculopathy, pes planus, and carpal tunnel syndrome.  Congress specifically limits entitlement for service-connected disease or injury to cases where incidents have resulted in a disability.  In the absence of proof of a present disability, there can be no valid claim for service connection.  Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992).  Thus, in this case, without evidence of a current disability, direct service connection for cold injury residuals disability, to include of the upper extremities, lower extremities, and head, must be denied.

Entitlement to service connection for bilateral foot pes equinus deformity

The Veteran received a VA Foot Conditions examination in July 2017 and the examiner noted a diagnosis of bilateral pes planus; bilateral equinus deformity was not found.  

The Veteran received a VA Ankle Conditions examination in July 2017 and bilateral talipes equinus was not found. 

The Board finds the July 2017 VA examinations highly probative and concludes that there is no current disability; thus, the first element of the service connection claim has not been satisfied.  Congress specifically limits entitlement for service-connected disease or injury to cases where incidents have resulted in a disability.  In the absence of proof of a present disability, there can be no valid claim for service connection.  Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992).  Thus, in this case, without evidence of a current disability, direct service connection for bilateral foot pes equinus deformity must be denied.

Entitlement to service connection for disability manifested by chronic fatigue, to include as due to undiagnosed illness or medically unexplained chronic multisymptom illness

On her April 2004 Post-Deployment Health Assessment, the Veteran indicated she still felt tired after sleeping.  

The Veteran received a VA examination in January 2018 and the examiner concluded that she did not have a diagnosis of chronic fatigue syndrome.  She reported feeling sleepy “all the time,” trouble getting to sleep and not feeling rested in the morning.  The Veteran also reported early awakenings with difficulty falling back asleep despite taking medication, and also nodding off at red lights.  She had not, however, fallen asleep at work.  The examiner concluded that the Veteran did not have a diagnosis of chronic fatigue syndrome, but rather was describing poor sleep that left her tired and irritable the following day.

However, the Board concludes that this evidence is not fatal to the Veteran’s claim.  Specifically, although the January 2018 opinion addresses certain medical matters pertinent to the Veteran’s claim, what is not addressed is whether the demonstrated and reported symptoms involving fatigue qualify as signs or symptoms of a medically unexplained chronic multisymptom illness within the meaning of 38 U.S.C. § 1117(g) and 38 C.F.R. § 3.317 (a)(2)(ii).

In light of the above, the Board concludes that the medical evidence of record reflects that, after her separation from service and for a period of at least six months, the Veteran, who meets the VA’s definition of a Persian Gulf Veteran, experienced chronic fatigue, daytime sleepiness, and lack of stamina, of an unknown etiology rather than separate, diagnosable disabilities.  Further, finding that the Veteran is competent and credible to report the frequency and severity of these symptoms, the criteria for 10 percent evaluations for these symptoms have been closely approximated prior to December 31, 2021.  As such, entitlement to service connection for chronic fatigue, daytime sleepiness, generalized weakness, and lack of stamina as fatigue related signs and/or symptoms of a medically unexplained chronic multisymptom illness is warranted.  38 C.F.R. § 3.317.

Entitlement to service connection for a disability manifested by clumsiness and dizziness, to include as due to an undiagnosed illness or medically unexplained chronic multisymptom illness

The Veteran received a VA Ear Conditions examination in March 2018 and the examiner found that she did not have a diagnosis of a peripheral vestibular condition.  The Veteran reported dizziness and clumsiness but denied any diagnostic work-up or treatment for the claimed symptoms.  The examiner concluded that, based on the evidence of record, there was a lack of objective medical evidence of office visits for the claimed symptoms, diagnostic work-up, diagnosis, or treatment.  Therefore, the claimed condition had failed to be clinically diagnosed.  The Veteran had a normal examination with no evidence of clumsiness and exhibited a steady gait when walking from the waiting room to the examination room.

However, the Board concludes that this evidence is not fatal to the Veteran’s claim. Specifically, although the March 2018 opinion addresses certain medical matters pertinent to the Veteran’s claim, what is not addressed is whether the demonstrated and reported symptoms involving balance problems qualify as signs or symptoms of a medically unexplained chronic multisymptom illness within the meaning of 38 U.S.C. § 1117(g) and 38 C.F.R. § 3.317 (a)(2)(ii).

In light of the above, the Board concludes that the medical evidence of record reflects that, after her separation from service and for a period of at least six months, the Veteran, who meets the VA’s definition of a Persian Gulf Veteran, experienced dizziness and clumsiness of an unknown etiology rather than separate, diagnosable disabilities.  Further, finding that the Veteran is competent and credible to report the frequency and severity of these symptoms, the criteria for 10 percent evaluations for these symptoms have been closely approximated prior to December 31, 2021.  As such, service connection for dizziness and clumsiness related signs and/or symptoms of a medically unexplained chronic multisymptom illness is warranted.  38 C.F.R. § 3.317.

Entitlement to service connection for a disability manifested by memory loss, to include as due to an undiagnosed illness or medically unexplained chronic multisymptom illness

The Veteran received a VA PTSD examination in January 2018 and reported that her memory had worsened over the past two years.  Based on the results of the examination, the examiner concluded that she did not meet the criteria for memory loss or any other neurocognitive disorder at the present time.

The Veteran was referred for an assessment of her current neuropsychological functioning due to reported memory loss at the same time.  She reported that she fell out of the back of a truck in 2000 and hit the back of her head.  Although she wore a helmet, she was dazed for a few minutes and started having problems with her memory afterwards.  The Veteran felt that her memory and concentration had been getting worse since the fall and did not report any additional history of head injury, stroke, or seizure.  She reported symptoms including being slow at thinking, forgetting whether she had completed tasks, forgetting things she was told, and being easily distracted.  The examiner found that her performance on a measure of general cognitive functioning was in the severely impacted range overall, as was her performance on memory tasks.  Attentional abilities were also severely impaired; the examiner noted that the Veteran did not score above the 1st percentile on any subtest administered.  Based on the results of the examination, the examiner concluded that the suboptimal performance, with scores suggestive of exaggeration or feigning of cognitive problems, did not support a DSM-5 diagnosis of any cognitive or memory disorder secondary to a traumatic brain injury.  Additionally, evidence of invalid responding made any self-reported symptoms suspect.  

However, the Board concludes that this evidence is not fatal to the Veteran’s claim. Specifically, although the January 2018 opinion addresses certain medical matters pertinent to the Veteran’s claim, what is not addressed is whether the demonstrated and reported symptoms involving memory loss qualify as signs or symptoms of a medically unexplained chronic multisymptom illness within the meaning of 38 U.S.C. § 1117(g) and 38 C.F.R. § 3.317 (a)(2)(ii).

In light of the above, the Board concludes that the medical evidence of record reflects that, after her separation from service and for a period of at least six months, the Veteran, who meets the VA’s definition of a Persian Gulf Veteran, experienced memory loss of an unknown etiology rather than separate, diagnosable disabilities.  Further, finding that the Veteran is competent and credible to report the frequency and severity of these symptoms, the criteria for 10 percent evaluations for these symptoms have been closely approximated prior to December 31, 2021.  As such, service connection for memory loss related signs and/or symptoms of a medically unexplained chronic multisymptom illness is also warranted. 38 C.F.R. § 3.317.

Entitlement to service connection for low blood platelet disorder

The Veteran received a VA examination in February 2018 and the examiner found that she did not have a diagnosis of a hematologic or lymphatic condition.  The Veteran reported a low platelet count when she was pregnant and could not have an epidural.  She did not report any treatment for the claimed condition and also reported her platelet count returned to normal.  Furthermore, her platelet count in October 2017 was 177, which the examiner found was normal.  

The Board finds the February 2018 VA examination highly probative and concludes that there is no current low blood platelet disorder; thus, the first element of the service connection claim has not been satisfied.  Congress specifically limits entitlement for service-connected disease or injury to cases where incidents have resulted in a disability.  In the absence of proof of a present disability, there can be no valid claim for service connection.  Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992).  Thus, in this case, without evidence of a current disability, direct service connection for low blood platelet disorder must be denied.

Entitlement to service connection for right lower extremity radiculopathy is denied. 

Entitlement to service connection for left lower extremity radiculopathy is denied.

The Veteran received a VA examination in January 2018 and the examiner indicated that the Veteran had a normal bilateral lower extremity peripheral nerve examination.  She stated she injured her back prior to her deployment overseas and was treated with a muscle relaxant.  She had complaints of hip and back pain and had constant tingling in her thighs and feet.  There was, however, no diagnosis of lower extremity radiculopathy and no objective findings supporting this claim.  Specifically, the examiner noted that the sensory, reflexive, and strength examinations for the bilateral lower extremities were normal and equal.  

The Board finds the January 2018 VA examination highly probative and concludes that there is no current bilateral lower extremity radiculopathy disorder; thus, the first element of the service connection claim has not been satisfied.  Congress specifically limits entitlement for service-connected disease or injury to cases where incidents have resulted in a disability.  In the absence of proof of a present disability, there can be no valid claim for service connection.  Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992).  Thus, in this case, without evidence of a current disability, direct service connection for right lower extremity radiculopathy and service connection for left lower extremity radiculopathy must be denied.

Entitlement to service connection for tinnitus is granted.

The Veteran received a VA examination in January 2018 and reported noise exposure during service from the “flight line,” from aircraft, and from combat noise.  Following service, she worked as a correctional officer and in an office environment.  The Veteran reported that her tinnitus started when she received a malaria pill during service in Iraq.  Based on the results of the examination, the examiner concluded that the condition was less likely than not caused by service.  The enlistment and separation audiograms showed normal hearing for VA purposes with no threshold shifts to suggest noise injury or acoustic trauma.  The Veteran’s service in Iraq was consistent with at least a moderate probability of noise exposure, but that did not mean that acoustic injury occurred.  There was no record of complaint or treatment of tinnitus in the Veteran’s service treatment records and the audiograms would serve as objective evidence to confirm or rebut the existence of a noise injury.  

As a preliminary matter, the Board notes that the Veteran is competent to diagnose tinnitus, i.e., ringing of the ears, on the basis of his own lay assertions.  See Layno v. Brown, 6 Vet. App. 465, 469-70 (1994) (noting that lay evidence is competent with regard to facts perceived through the use of the five senses).  See also Charles v. Principi, 16 Vet. App. 370, 374 (2002) (finding veteran competent to testify as to ringing in the ears (tinnitus); see also Jandreau v. Nicholson, 492 F.3d 1372, 1377, Note 4 (fed. Cir. 2007) (holding that sometimes a layperson will be competent to identify a medical condition where the condition is simple, such as a broken leg, and sometimes not, such as a form of cancer, and remanding to the Board to decide whether lay evidence was competent and sufficient to establish a shoulder dislocation); see also Barr v. Nicholson, 21 Vet. App. 303, 308-09 (2007) (holding that a Veteran’s lay testimony is competent to establish the presence of varicose veins); cf. Woehlaert v. Nicholson, 21 Vet. App. 456, 462 (2007) (noting that, unlike varicose veins or a dislocated shoulder, rheumatic fever is not a condition capable of lay diagnosis).

The Veteran stated that she suffers from tinnitus and that she developed a chronic ringing in her ears during service.  Given the statements from the Veteran, the Board finds that the Veteran’s assertions of tinnitus dating back to active service are credible.  Thus, the Veteran’s statements, combined with her in-service noise exposure from the “flight line,” from aircraft, and from combat noise, establish continuous and chronic symptoms such as to enable a grant of service connection for tinnitus.

The Board acknowledges that the January 2018 VA examiner opined that the Veteran’s tinnitus is not related to military service because service treatment records do not show auditory shits to suggest a noise injury or acoustic trauma.  However, the examiner concedes that the circumstances of the Veteran’s service is indicative of a moderate probability of noise exposure.  Reading this evidence in a light most favorable to the Veteran, the examiner concludes that it was at least as likely as not that the Veteran experienced noise exposure during service.  The VA examiner’s conclusion is a medical conclusion that the Board cannot ignore or disregard, see Willis v. Derwinski, 1 Vet. App. 66 (1991); however, the Board is free to assess medical evidence and is not compelled to accept a medical opinion.  See Wilson v. Derwinski, 2 Vet. App. 614 (1992).  The Veteran is credible to testify as to the onset of her tinnitus.  In this regard, the Board emphasizes that tinnitus is a completely subjective condition.

Accordingly, resolving the benefit of the doubt in the Veteran’s favor, the Board finds that the criteria for service connection for tinnitus are met.  38 U.S.C. §§ 1110, 1131, 5107(b); 38 C.F.R. §§ 3.102, 3.303.

Entitlement to service connection for residuals of anthrax vaccine

At the outset, the Board notes that residuals from anthrax vaccines is a known, diagnosed, medical condition.  As such, this condition is not considered to be an undiagnosed illness or an indicator of an unexplained multi-symptom illness, and the condition may not be presumed to be related to the Veteran’s service under provisions applicable to undiagnosed illness or unexplained chronic multi-symptom illness.  38 C.F.R. § 3.317.

In cases in which a veteran applies for service connection under 38 C.F.R. § 3.317 but is found to have a disability attributable to a known diagnosis, further consideration under the direct service connection provisions of 38 U.S.C. §§ 1110 and 1131 is warranted.  Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994).

The Veteran filed a service connection claim for residuals from anthrax vaccines and asserted that she received an anthrax vaccine during her active service that resulted in some of her current health issues.  She did not, however, indicate which issues were related to her vaccination.  

The Veteran’s service treatment records show that she received a vaccination for anthrax in February 2003.  However, her service treatment records do not show any complaints, treatment, or diagnosis for chronic residuals from the vaccination.

The Veteran’s medical records do not show any complaints, treatment, or diagnosis of residuals from anthrax vaccines.  Her medical records do not show that she raised her concerns during her medical treatment visits. 

The Veteran has not submitted any medical evidence supporting his assertion that he has chronic residuals from anthrax vaccines. As such, the record does not show any current diagnosis of chronic residuals from anthrax vaccines.

In the absence of proof of a current disability, there can be no valid claim for service connection.  Boyer v. West, 210 F.3d 1351, 1353 (Fed. Cir. 2000); Giplin v. West, 155 F.3d 1353 (Fed. Cir. 1998); Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992) (indicating service connection presupposes a current diagnosis of the condition claimed).  The requirement that a current disability be present is satisfied “when a claimant has a disability at the time a claim for VA disability compensation is filed or during the pendency of that claim...even though the disability resolves prior to the Secretary’s adjudication of the claim.”  McClain v. Nicholson, 21 Vet. App. 319 (2007); see also Romanowsky v. Shinseki, 26 Vet. App. 289 (2013).

Here the Veteran has not shown by medical evidence the presence of chronic residuals from anthrax vaccines.  Accordingly, the Board finds that the evidence is against the claim and entitlement to service connection for chronic residuals from anthrax vaccines is denied.

Entitlement to service connection for vitamin D deficiency

The Veteran contends that her vitamin D deficiency was caused by her active duty service, to include due to Persian Gulf chronic illness.  See October 2017 VA 21-526b, Veteran’s Supplemental Claim for Compensation.

Although regulations provide compensation for certain undiagnosed illnesses and medically unexplained chronic multi-symptom illnesses in Southwest Asia veterans, a Vitamin D deficiency is a medically known and understood illness.  Accordingly, it does not qualify for the Southwest Asia veteran presumption of service connection.  38 C.F.R. § 3.317 

A February 2018 VA examination showed findings of a vitamin D deficiency.  However, this condition is not a disability, per se, for which VA compensation may be awarded.  Hickson v. West, 12 Vet. App. 247, 253 (1999); Degmetich v. Brown, 104 F.3d 1328 (Fed. Cir. 1997); Brammer v. Derwinski, 3 Vet. App. 223 (1992).  Rather, the Veteran’s vitamin D deficiency is a laboratory-confirmed clinical finding of an abnormal blood chemistry characterized by a lack of sufficient vitamin D.  See DORLAND’S ILLUSTRATED MEDICAL DICTIONARY 2068 (32nd ed. 2012)

Although a vitamin D deficiency may be considered risk factors in the development of certain diseases, it is not a disease, injury, or disability, in and of itself, for which VA compensation benefits are payable.  See 61 Fed. Reg. 20,440, 20,445 (May 7, 1996) (stating that diagnoses of hyperlipidemia, elevated triglycerides, and elevated cholesterol are actually laboratory results and are not, in and of themselves, disabilities; therefore, they are not appropriate entities for the rating schedule).  Furthermore, the term “disability” refers to impairment of earning capacity.  Allen v. Brown, 7 Vet. App. 439 (1995).  The evidence does not suggest that the Veteran’s vitamin D deficiency caused her any impairment of earning capacity.  Specifically, the February 2018 VA examiner found that the nutritional deficiency condition did not impact her ability to work.  

Because a vitamin D deficiency is not current a disability for which service connection may be granted and has not by medical opinion been linked to a specific disability for which service connection may be granted, the preponderance of the evidence is against the claims, the benefit of the doubt rule does not apply, and the Veteran’s claim must be denied.  38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102; Gilbert, 1 Vet. App. at 54-56.

Increased Rating

Disability evaluations are determined by evaluating the extent to which a veteran’s service-connected disability adversely affects his or her ability to function under the ordinary conditions of daily life, including employment, by comparing his or her symptomatology with the criteria set forth in the Schedule for Rating Disabilities.  The percentage ratings represent as far as can practicably be determined the average impairment in earning capacity resulting from such diseases and injuries and the residual conditions in civilian occupations.  

Generally, the degrees of disability specified by the schedule are considered adequate to compensate veterans for considerable loss of working time from exacerbation or the illness proportionate to the severity of the several grades of disability.  See 38 U.S.C. § 1155; 38 C.F.R. § 4.1.  Separate diagnostic codes identify the various disabilities and the criteria for specific ratings.  If two disability evaluations are potentially applicable, the higher evaluation will be assigned to the disability picture that more nearly approximates the criteria required for that rating.  Otherwise, the lower rating will be assigned.  See 38 C.F.R. § 4.7.  Any reasonable doubt regarding the degree of disability will be resolved in favor of the veteran.  38 C.F.R. § 4.3.

In general, when 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).  However, staged ratings are also appropriate in any increased rating claim in which distinct time periods with different ratable symptoms can be identified.  Hart v. Mansfield, 21 Vet. App. 505 (2007).  The analysis in this decision is, therefore, undertaken with consideration of the possibility that different ratings may be warranted for different time periods.

The Veteran is presumed to be seeking the maximum possible evaluation.  AB v. Brown, 6 Vet. App. 35 (1993).  When a question arises as to which of two ratings applies under a particular code, the higher rating is assigned if the disability more closely approximates the criteria for the higher rating. 38 C.F.R. § 4.7.  At the time of an initial rating, separate ratings can be assigned for separate periods of time based on the facts found-a practice known as “staged” ratings. Fenderson v. West, 12 Vet. App. 119 (1999).

When evaluating joint disabilities rated on the basis of limitation of motion, VA must consider granting a higher rating in cases in which functional loss due to pain, weakness, excess fatigability, or incoordination is demonstrated, and those factors are not contemplated in the relevant rating criteria.  See DeLuca v. Brown, 8 Vet. App. 202 (1995).  The Court has clarified that although pain may be a cause or manifestation of functional loss, limitation of motion due to pain is not necessarily rated at the same level as functional loss where motion is impeded.  See Mitchell v. Shinseki, 25 Vet. App. 32 (2011).

Instead, in Mitchell, the Court explained that, pursuant to 38 C.F.R. §§ 4.40 and 4.45, the possible manifestations of functional loss include decreased or abnormal excursion, strength, speed, coordination, or endurance, as well as less or more movement than is normal, weakened movement, excess fatigability, and pain on movement (with swelling, deformity, and atrophy) that affects stability, standing, and weight-bearing.  Thus, functional loss caused by pain must be rated at the same level as if the functional loss were caused by any of the other factors cited above. In evaluating the severity of a joint disability, VA must determine the overall functional impairment due to these factors. 

Where there is a question as to which of two ratings shall be applied, the higher rating will be assigned if the disability more closely approximates the criteria for that rating.  Otherwise, the lower rating will be assigned.  38 C.F.R. § 4.7.  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, 4.3. 

A VA examination of the joints must, wherever possible, include range of motion testing for pain on active motion, passive motion, weight-bearing, nonweight-bearing, and, if possible, with the range of the opposite undamaged joint. Correia v. McDonald, 28 Vet. App. 158, 16970 (2016); 38 C.F.R. § 4.59.

Where entitlement to compensation has already been established and increase in disability is at issue, the present level of disability is of primary concern.  See Francisco v. Brown, 7 Vet. App. 55 (1994).  However, “staged” ratings are appropriate where the factual findings show distinct time periods when the service-connected disability exhibits symptoms that would warrant different ratings.  See Hart v. Mansfield, 21 Vet. App. 505 (2007).

The Board observes that the words “slight,” “moderate,” and “severe” are not defined in the Rating Schedule.  Rather than applying a mechanical formula, the Board must evaluate all of the evidence to the end that its decisions are “equitable and just.” 38 C.F.R. § 4.6 (2016).  It should also be noted that use of descriptive terminology such as “mild” by medical examiners, although an element of evidence to be considered by the Board, is not dispositive of an issue.  All evidence must be evaluated in arriving at a decision regarding an increased rating. 38 U.S.C. § 7104 (a); 38 C.F.R. §§ 4.2, 4.6.

When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant.  38 U.S.C. § 5107; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990).

Endometriosis

The Veteran’s endometriosis is evaluated under Diagnostic Code 7629.  To warrant a compensable rating (10 percent) for endometriosis, the evidence would have to show endometriosis with pelvic pain or heavy or irregular bleeding requiring continuous treatment for control.  A 30 percent rating is assigned for endometriosis with pelvic pain or heavy or irregular bleeding not controlled by treatment.  A maximum 50 percent rating is assigned for endometriosis with lesions involving bowel or bladder confirmed by laparoscopy, pelvic pain or heavy or irregular bleeding not controlled by treatment and bowl or bladder symptoms.  38 C.F.R. § 4.117.

Entitlement to a compensable rating for endometriosis prior to April 3, 2019

The Veteran received a VA examination in July 2017 and reported heavy menses and dysmenorrhea for many years.  She did not have any symptoms related to a gynecological condition including diseases, injuries, or adhesions of the female reproductive organs, nor did she require treatment or medications.  The examiner noted a diagnosis of endometriosis but found that the Veteran did not have any findings, signs or symptoms due to the condition.  Bowel sounds were normal, but the examiner did not indicate whether there was any pelvic pain.  

The Veteran received a VA examination in January 2018 and the examiner noted mild, intermittent pain caused by dysmenorrhea, related to endometriosis.  Her endometriosis symptoms included pelvic pain but did not require continuous treatment.  There were no lesions involving the bowel or bladder.

The Board finds that a compensable evaluation is not warranted prior to April 3, 2019.  During this time, the Veteran’s endometriosis manifested with pelvic pain that did not require continuous treatment for control.  A 30 percent evaluation is not warranted because there is no evidence of pelvic pain or heavy or irregular bleeding not controlled by medication.  A 50 percent evaluation is not warranted because there is no evidence of lesions involving bowel or bladder confirmed by laparoscopy.  

In every instance where the schedule does not provide a compensable evaluation for a diagnostic code, a noncompensable evaluation will be assigned when the requirements for a compensable evaluation are not met.  38 C.F.R. § 4.31. Consequently, the Board finds that a compensable rating is not warranted for the Veteran’s endometriosis prior to April 3, 2019, and the claim for this period is denied.

Entitlement to a compensable rating for endometriosis beginning April 3, 2019

The Veteran received a VA examination on April 3, 2019, and reported worsening abdominal pain.  She had symptoms including abdominal/pelvic pain, irregular bleeding, heavy bleeding, and dyspareunia.  The Veteran was managing her menstrual symptoms with oral contraceptive pills but noted that she had not experienced any significant alleviation of her pain.  The examiner noted that the pain was severe and constant and required continuous treatment.  

The Board will resolve reasonable doubt in the Veteran’s favor and find that a 30 percent rating is warranted beginning April 3, 2019, as the Veteran experienced pain, irregular bleeding and heavy bleeding.  While the examiner found that the Veteran’s symptoms required continuous medication for control, the Veteran competently reported that the medication did not control her pelvic pain.  The Veteran is considered competent to report her pain symptoms, as they are within the realm of her personal experience and are capable of lay observation.  See Layno v. Brown, 6 Vet. App. 465, 469-70 (a layperson is competent to report on that of which he or she has personal knowledge).  The Board therefore finds the reports of pain and the lack of control by treatment credible and highly probative.  Therefore, a 30 percent evaluation is warranted beginning April 3, 2019.  

A 50 percent evaluation is not warranted, as there is no evidence of lesions involving bowel or bladder.  

Ankle Tendonitis

The Veteran’s left ankle and right ankle disabilities are currently rated 10 percent disabling each pursuant to 38 C.F.R. § 4.71a, Diagnostic Code 5024-5271. Hyphenated diagnostic codes are used when a rating under one diagnostic code requires use of an additional diagnostic code to identify the basis for the evaluation assigned. 38 C.F.R. § 4.27 (2016). Here, the primary Diagnostic Code 5024 (tenosynovitis) represents the underlying source of the disability, while the additional Diagnostic Code 5271 (limited motion of ankle) after the hyphen represents the basis for the rating. 

Pursuant to VA regulations, normal range of motion for ankle dorsiflexion is 0 to 20 degrees and for plantar flexion is 0 to 45 degrees.  See 38 C.F.R. § 4.71a, Plate II. 

The Board must also consider whether the Veteran is entitled to separate or higher disability ratings under other Diagnostic Code s that relate to the ankle.  See 38 C.F.R. § 4.71a, Diagnostic Code s 5270 through 5274.

Under Diagnostic Code 5003, degenerative arthritis, established by X-ray 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 5270 provides the following disability ratings for ankylosis of the ankle: 20 percent for in plantar flexion of less than 30 degrees; 30 percent for in plantar flexion between 30 and 40 degrees or in dorsiflexion between 0 (zero) and 10 degrees; and 40 percent for in plantar flexion at more than 40 degrees, in dorsiflexion at more than 10 degrees, or with abduction, adduction, inversion or eversion deformity.  38 C.F.R. § 4.71a.

Diagnostic Code 5272 provides a 10 percent disability rating for subastragalar or tarsal joint ankylosis in good weight-bearing position and a 20 percent disability rating for ankylosis in poor weight-bearing position.  See 38 C.F.R. § 4.71a.

Diagnostic Code 5273 provides a 10 percent disability rating for moderate deformity resulting from the malunion of the os calcis or astragalus and a 20 percent disability rating for a marked deformity resulting from the malunion of the os calcis or astragalus. 

Diagnostic Code 5274 provides a 20 percent disability rating for astragalectomy.

Entitlement to an initial rating in excess of 10 percent for left ankle tendonitis

Entitlement to an initial rating in excess of 10 percent for right ankle tendonitis

A July 2017 VA examination showed bilateral plantar flexion was 45 degrees and bilateral dorsiflexion was 20 degrees.  The Veteran reported flare-ups with overuse, but there was no functional loss or functional impairment of the joint.  There was pain noted bilaterally on examination, but it did not result in functional loss.  The Veteran was able to perform repetitive use testing with at least three repetitions, but it did not result in additional loss of function or range of motion.  Muscle strength testing was considered normal, and there was no muscle atrophy or ankylosis.  There were also no stress fractures, achilles tendonitis, malunion of the calcaneus or talus, or a talectomy.  Finally, the Veteran wore orthotics/foot splints for her pes planus, but there was no indication that she wore an assistive device for her ankles.

An April 2019 VA examination showed bilateral plantar flexion was 40 degrees and bilateral dorsiflexion was 15 degrees.  The Veteran reported flare-ups and described them as “very painful and it’s a throbbing pain.”  She indicated that prolonged walking increased her ankle pain.  There was pain noted bilaterally on examination, but it did not result in functional loss.  The Veteran was able to perform repetitive use testing with at least three repetitions, but it did not result in additional loss of function or range of motion.  Muscle strength testing was normal, and there was no muscle atrophy nor ankylosis.  There were also no stress fractures, achilles tendonitis, malunion of the calcaneus or talus, or a talectomy.  Finally, the Veteran did not wear any assistive device.  

In summary, the Veteran displays slight limitation of range of motion with occasional flare-ups.  She can perform repetitive-use testing without additional loss in range of motion.  The Veteran does not wear assistive devices for her ankles and her condition did not impact her ability to work.  

Evidence of slight limitation of motion with occasional pain during certain activities, including as a result of flare-ups, with no apparent functional loss, supports the Veteran’s current ratings of 10 percent.  Because there is no serious functional loss and minimal limitation of motion, the preponderance of the evidence is against the existence of marked limitation of motion so as to support a rating of 20 percent or greater.  Rather, the evidence more nearly approximates a rating of 10 percent. 

Since this rating already contemplates painful motion and functional loss during flare-ups, any additional increased rating under DeLuca or Correia would constitute the prohibited practice of pyramiding, i.e., there is no additional non-compensated limitation of motion that can serve as a basis for a higher rating based on pain on functional use.

The Board has also considered recent February 7, 2021, revisions to the rating criteria applicable to the ankles and finds that they are also not helpful to the claims.  More specifically, effective from that date, moderate ankle impairment limited to less than 30 degrees, and marked impairment is defined as less than 5 degrees dorsiflexion and or less than 10 degrees plantar flexion, which have clearly not been demonstrated.  

Knee Patellofemoral Syndrome

The Veteran and his representative assert that her bilateral knee patellofemoral syndrome warrants a higher rating, which is rated under 38 C.F.R. § 4.71a, Diagnostic Code 5260.  

For purposes of this decision, the Board notes that the average normal range of motion of the knee is flexion from 0 to 140 degrees and extension from 140 to 0 degrees. 38 C.F.R. § 4.71.

Disabilities of the knee are rated under DC 5256 through DC 5263 of 38 C.F.R. § 4.71a (2017).

Diagnostic Code 5256 provides ratings for ankylosis of the knee.  Favorable angle in full extension, or in slight flexion between 0 degrees and 10 degrees is rated 30 percent disabling; in flexion between 10 degrees and 20 degrees is rated 40 percent disabling; in flexion between 20 degrees and 45 degrees is rated 50 percent disabling; and extremely unfavorable, in flexion at an angle of 45 degrees or more is rated 60 percent disabling.  38 C.F.R. § 4.71a.

Diagnostic Code 5258 provides a 20 percent disability rating for cartilage, semilunar, dislocated, with frequent episodes of “locking,” pain, and effusion into the joint.  38 C.F.R. § 4.71a.

Diagnostic Code 5259 provides a 10 percent rating for symptomatic residuals of removal of a semilunar cartilage. Ratings under DC 5259 require consideration of 38 C.F.R. §§ 4.40 and 4.45 because removal of a semilunar cartilage may result in complications producing loss of motion.  VAOGCPREC 9-98.

Diagnostic Code 5260 provides ratings based on limitation of flexion of the leg. Flexion of the leg limited to 60 degrees is rated at 0 percent disabling, flexion of the leg limited to 45 degrees is rated 10 percent disabling; flexion of the leg limited to 30 degrees is rated 20 percent disabling; and flexion of the leg limited to 15 degrees is rated 30 percent disabling.  38 C.F.R. § 4.71a.  See VAOPGCPREC 09-04 (separate ratings may be granted based on limitation of flexion (Diagnostic Code 5260) and limitation of extension (Diagnostic Code 5261) of the same knee joint).

Diagnostic Code 5261 provides ratings based on limitation of extension of the leg.  Extension of the leg limited to 5 degrees is rated 0 percent disabling, extension of the leg limited to 10 degrees is rated 10 percent disabling; extension of the leg limited to 15 degrees is rated 20 percent disabling; extension of the leg limited to 20 degrees is rated 30 percent disabling; extension of the leg limited to 30 degrees is rated 40 percent disabling; and extension of the leg limited to 45 degrees is rated 50 percent disabling.  38 C.F.R. § 4.71a.

Diagnostic Code 5262 provides ratings for impairment of the tibia and fibula.  A 10 percent rating is warranted for malunion with slight knee or ankle disability.  A 20 percent rating is warranted for malunion with moderate knee or ankle disability.  A 30 percent rating is warranted for malunion with marked knee or ankle disability.  A 40 percent rating is warranted for nonunion with loose motion and requiring a brace.  38 C.F.R. § 4.71a.

Entitlement to a rating in excess of 10 percent for left knee patellofemoral syndrome

Entitlement to a rating in excess of 10 percent for right knee patellofemoral syndrome

The Veteran received a VA examination in July 2017 and reported flare-ups of the knee; when she experienced flare-ups, “it is hard to move and moving is real painful.”  Upon examination, the left and right knee flexion were zero to 130 degrees each, and extension was 130 to zero degrees each.  There was pain on flexion and extension bilaterally, but it did not result in functional loss.  The Veteran was able to perform repetitive use testing with at least three repetitions bilaterally, but it did not result in additional functional loss or range of motion.  Muscle strength testing was normal, and there was no muscle atrophy or ankylosis.  Joint stability testing found no history recurrent subluxation or lateral instability, and there was no history of recurrent effusion or joint instability bilaterally.  There were no shin splints, stress fractures, chronic exertional compartment syndrome.  The Veteran also never had a semilunar cartilage condition.

The Veteran was assigned a disability rating of 10 percent under Diagnostic Code 5260 based on functional loss due to painful motion.  The Board finds that the Veteran is not entitled to an increased rating under DeLuca.  There is no additional non-compensated motion that can form the basis of an increased rating and no limitation of motion that the Veteran is not already being compensated for.  To compensate the Veteran for the same painful motion under 38 C.F.R. § 4.59 and DeLuca would constitute the prohibited practice of pyramiding.  See 38 C.F.R. § 4.14.  

Likewise, prohibitions regarding pyramiding preclude compensation for painful motion under Correia v. McDonald, 28 Vet. App. 158, 169-70 (2016).  A VA examination of the joints must, wherever possible, include range of motion testing for pain on active motion, passive motion, weight-bearing, nonweight-bearing, and, if possible, with the range of the opposite undamaged joint.  Correia, 28 Vet. App. at 169-70; 38 C.F.R. § 4.59.  But because the Veteran is already being compensated for her painful noncompensable motion, there is no additional uncompensated limitation of motion that can provide a basis for an increased rating under Correia or on any other basis.

In regard to Diagnostic Code 5260 and 5261, there is no compensable limitation of motion that can form the basis for the assignment of a separate disability rating.  Therefore, the Board finds that a separate rating under these Diagnostic Codes is not warranted.

The Veteran is not entitled to a separate compensable evaluation for ankylosis because the record does not show any ankylosis of the left knee.  Therefore, Diagnostic Code 5256 is not applicable.

Diagnostic Code 5257 does not apply because the Veteran has not demonstrated any recurrent subluxation or lateral instability in either knee.

When semilunar cartilage (that is, the meniscus) is dislocated with frequent episodes of locking, pain and effusion into the joint a 20 percent rating is assigned.  38 C.F.R. § 4.71a, Diagnostic Code 5258.  There is no evidence of dislocated semilunar cartilage, and therefore Diagnostic Code 5258 is not applicable.  

When semilunar cartilage has been removed, but remains symptomatic, a 10 percent rating is assigned.  38 C.F.R. § 4.71a, Diagnostic Code 5259.  Here, the evidence does not show that the Veteran’s meniscus was removed, so Diagnostic Code 5259 does not apply.  The record is silent for symptomatic residuals of removed semilunar cartilage.  

As to Diagnostic Codes 5262 and 5263, there is no probative evidence of any impairments of the Veteran’s tibia or fibula nor has the Veteran been shown to have genu recurvatum.  Thus, an increased or separate rating under these Diagnostic Codes is not warranted.

Therefore, the Board finds that the Veteran is not entitled to a rating in excess of 10 percent for his bilateral knee patellofemoral syndrome.  

The Board has also considered recent February 7, 2021, revisions to the rating criteria applicable to the knees and finds that they are also not helpful to the claims.  More specifically, the revisions to the knee relate to ratings for knee instability under Diagnostic Code 5257, and there is currently no medical evidence of record that demonstrates that the Veteran currently suffers from such symptoms, the revisions would not provide any basis for a higher or separate rating.  

Extraschedular Consideration

The Board has also considered whether an extraschedular rating is appropriate.  If an exceptional case arises where a rating based on the disability rating schedule is found to be inadequate, consideration of an extraschedular evaluation commensurate with the average earning capacity impairment due exclusively to the service-connected disability or disabilities will be made.  38 C.F.R. § 3.321(b)(1).

However, an extraschedular analysis is not required in every case.  When extraschedular consideration is not “specifically sought by the claimant nor reasonably raised by the facts found by the Board, the Board is not required to discuss whether referral is warranted.”  Yancy v. McDonald, 27 Vet. App. 484, 494 (2016), citing Dingess v. Nicholson, 19 Vet. App. 473, 499 (2006), aff’d, 226 Fed. Appx. 1004 (Fed. Cir. 2007).  The Veteran has not raised the issue of an extraschedular rating, and for the reasons discussed above, there is no indication that any of her service-connected disabilities on appeal result in any symptoms not contemplated by the rating schedule.  The pain associated with her bilateral ankle tendonitis and bilateral knee patellofemoral syndrome are contemplated under the schedule of ratings for the musculoskeletal system.  The pain and bleeding symptoms of her endometriosis are also expressly contemplated under Diagnostic Code 7629.  There is no indication that any disability on appeal is manifested by symptoms that fall so far outside the rating schedule as to render its application inadequate.  Therefore, no further discussion of an extraschedular rating is required.

REASONS FOR REMAND

1. Entitlement to service connection for polycystic ovary syndrome (PCOS) is remanded

The Veteran received a VA examination in January 2018 and the examiner noted a diagnosis of PCOS but found that it was less likely than not due to an anthrax vaccination, as PCOS was not a condition related to the vaccination.  Rather, it was a clear, diagnosable condition.

A second VA examination was conducted in April 2019 and the physician found that endometriosis and PCOS shared no direct cause-and-effect relationship, so the service-connected condition had less likely than not resulted in PCOS.  

The Board finds the two VA examinations inadequate, as the January 2018 examiner did not offer a rationale for her conclusion.  Furthermore, although the April 2019 physician used the “less likely than not” standard, he appears to require a more definitive relationship between endometriosis.  Once VA undertakes the effort to provide an examination, it must obtain a fully adequate one.  Barr v. Nicholson, 21 Vet. App. 303, 311 (2007); see also Bowling v. Principi, 15 Vet. App. 1, 12 (2001) (emphasizing the Board’s duty to return an inadequate examination report “if further evidence or clarification of the evidence... is essential for a proper appellate decision.”).  Therefore, this claim must be remanded for a new examination.

2. Entitlement to service connection for left upper extremity carpel tunnel syndrome

The Veteran received a VA examination in January 2018 and the examiner noted a diagnosis of bilateral carpal tunnel syndrome, for which service connection was already in effect for the right side.  She did not, however, offer a nexus opinion for the Veteran’s left upper extremity carpal tunnel syndrome.  Once VA undertakes the effort to provide an examination, it must obtain a fully adequate one.  Barr v. Nicholson, 21 Vet. App. 303, 311 (2007); see also Bowling v. Principi, 15 Vet. App. 1, 12 (2001) (emphasizing the Board’s duty to return an inadequate examination report “if further evidence or clarification of the evidence... is essential for a proper appellate decision.”).  Therefore, this claim must be remanded for a new examination.

3. Entitlement to service connection for gestational diabetes

The Veteran received a VA examination in January 2018 and the examiner found that she did not meet the criteria for a diagnosis of diabetes.  She was, however, prescribed medicine for a diagnosis of “prediabetes.”  The examiner noted that the Veteran’s HGB A1c was not 6.5 or higher and her fasting blood sugar was not over 126.  However, recent VA treatment records reflect a current diagnosis of diabetes mellitus, type 2.  See October 2019 Optometry Note.  In light of this evidence, the Board finds that a new examination is warranted.  

4. Entitlement to service connection for right upper extremity thoracic outlet syndrome is remanded.

5. Entitlement to service connection for left upper extremity thoracic outlet syndrome is remanded.

The parties to the Joint Motion determined that electromyography testing results were scanned into VistA but not made part of the record.  As the Board does not have access to VistA Imaging, any outstanding VA records of pertinent medical treatment, to include those scanned into VistA Imaging, must be obtained and added to the record.

6. Entitlement to a rating in excess of 30 percent for cervical stenosis prior to April 8, 2019, is remanded.

7. Entitlement to a rating in excess of 20 percent for lumbar degenerative disease and strain prior to April 8, 2019, is remanded

The parties to the Joint Motion determined that the Board erred by failing to provide an adequate statement of reasons and bases for denying a rating in excess of 10 percent for cervical stenosis and a rating of 20 percent for lumbar degenerative disease, both prior to April 8, 2019.  The Veteran received a VA examination for her cervical spine in June 2010 and a VA examination for her lumbar spine in December 2010.  The Board, however, found that the 2010 examiners did not adequately address the factors set forth in DeLuca v. Brown, 8 Vet. App. 2002 (1995).  

When rating musculoskeletal disabilities, VA may, in addition to applying schedular criteria, consider granting a higher rating based on functional loss due to limited or excess movement, pain, weakness, excess fatigability, or incoordination, to include during flare-ups and with repeated use, when those factors are not contemplated in the relevant rating criteria.  DeLuca, 8 Vet. App. 202 (1995); 38 C.F.R. §§ 4.40, 4.45, 4.59.  The provisions of 38 C.F.R. § 4.40 and 38 C.F.R. § 4.45 are to be considered in conjunction with the diagnostic codes that are predicated on limitation of motion.  Johnson v. Brown, 9 Vet. App. 7 (1996).  Such inquiry is not to be limited to muscles or nerves.  Limitation of motion determinations are, if feasible, to be expressed in terms of the degree of any additional range of motion loss that is shown to be due to any weakened movement, excess fatigability, incoordination, flare-ups, or pain.  DeLuca, 8 Vet. App. at 207. 

As such, the Board finds that an addendum opinion is warranted to provide a retrospective opinion to address whether the DeLuca factors caused additional functional loss with repeated use of time prior to April 8, 2019. 

The matters are REMANDED for the following action:

1. Obtain complete VA treatment records, to include those scanned into VistA Imaging, including all EMG reports. 

2. If such records are unavailable, the file must be clearly documented to that effect and the appellant notified in accordance with 38 C.F.R. § 3.159(e).

3. Schedule the Veteran for a VA examination to determine the nature and etiology of her polycystic ovary syndrome (PCOS).  The claims file must be made available to the examiner, and the examiner must specify in the examination report that these records have been reviewed.

The examiner is asked to opine as to whether it is as least as likely as not (50 percent probability or more) that the Veteran’s PCOS had its onset in service or is otherwise the result of an incident in service, to include an anthrax vaccination.

The examiner is also asked to opine as to whether it is at least as likely as not (50 percent probability or greater) that the Veteran’s PCOS was caused or aggravated by her endometriosis.  Aggravation is defined for these purposes as a worsening of the underlying condition versus a temporary flare-up of symptoms.

If the examiner finds that the Veteran’s PCOS has been aggravated/worsened by her service-connected condition, the degree of worsening should be identified.  

The examiner should consider all evidence, including lay statements, medical records, and other medical opinions of record.  Any opinions offered should be accompanied by a clear rationale consistent with the evidence of record.

4. Schedule the Veteran for a VA examination to determine the nature and etiology of the Veteran’s left upper extremity carpal tunnel syndrome.  The claims file must be made available to the examiner, and the examiner must specify in the examination report that these records have been reviewed.

The VA examiner is asked to opine as to whether it is as least as likely as not (50 percent probability or more) that the Veteran’s left upper extremity carpal tunnel syndrome had its onset in service or is otherwise the result of an incident in service.

The examiner should consider all evidence, including lay statements, medical records, and other medical opinions of record.  Any opinions offered should be accompanied by a clear rationale consistent with the evidence of record.

5. Schedule the Veteran for a VA examination to determine the nature and etiology of any currently diagnosed diabetes.  The claims file must be made available to the examiner, and the examiner must specify in the examination report that these records have been reviewed.

The examiner is asked to opine as to whether it is as least as likely as not (50 percent probability or more) that the any currently diagnosed diabetes had its onset in service or is otherwise the result of an incident in service.

The examiner should consider all evidence, including lay statements, medical records, and other medical opinions of record.  Any opinions offered should be accompanied by a clear rationale consistent with the evidence of record.

6.  Obtain a retrospective addendum opinion to address the June 2010 cervical spine examination and December 2010 lumbar spine examination and whether they, together with contemporaneous treatment records, evidenced any functional loss due to painful motion, weakened movement, excess fatigability, or incoordination including after repeated use over time.  If so, the examiner should note whether there are any additional degrees of loss of motion as a result (if it is not feasible to quantify, please explain).  Please note that the opinion will be found inadequate if the examiner notes he or she is unable to opine as to whether these factors cause additional functional loss without resorting to mere speculation (because there is no conceptual or empirical basis for making such a determination without directly observing function under these conditions) unless it is shown that such an opinion is based upon all due diligence in seeking relevant medical information, and not a “first impression of an uninformed examiner.” See Jones v. Shinseki, 23 Vet. App. at 389.

 

 

Michael J. Skaltsounis

Veterans Law Judge

Board of Veterans’ Appeals

Attorney for the Board	A. Daniels, 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.