Citation Nr: 21015729 Decision Date: 03/18/21 Archive Date: 03/18/21 DOCKET NO. 14-37 682 DATE: March 18, 2021 ORDER Entitlement to service connection for a lung disability is denied. For the period prior to November 26, 2019, entitlement to an increased rating in excess of 10 percent for sinusitis with headaches is granted. For the period from November 26, 2019, entitlement to an increased rating in excess of 50 percent for sinusitis with headaches is denied. Entitlement to an increased rating in excess of 10 percent for hypertension prior to April 17, 2017 and in excess of 60 percent thereafter for hypertension with diabetic nephropathy is denied. REMANDED Entitlement to service connection for a back disability is remanded. Entitlement to service connection for a hump on the back of the neck is remanded. Entitlement to service connection for a right ankle disability is remanded. Entitlement to an increased rating in excess of 10 percent for hypothyroidism with history of Grave’s disease with exophthalmus status post thyroidectomy is remanded. Entitlement to service connection for papilledema an eye disability (apart from dry eye syndrome) is remanded. FINDINGS OF FACT 1. The Veteran does not have a lung disability. 2. For the period prior to November 26, 2019, the Veteran’s chronic sinusitis is manifested by near constant non-incapacitating episodes that include headaches, sinus tenderness and pain, and purulent nasal discharge. 3. For the period from November 26, 2019, the Veteran is in receipt of a 50 percent rating, the highest schedular rating for sinusitis. 4. For the period prior to April 17, 2017, for the Veteran’s service-connected hypertension, the Veteran’s diastolic pressure is not predominantly 110 or more and the systolic pressure is not predominantly 200 or more. 5. For the period from April 17, 2017, the Veteran’s hypertension with diabetic nephropathy was not manifested by persistent edema and albuminuria with BUN 40 mg% or greater; or creatinine 4 mg% or greater; or generalized poor health characterized by lethargy, weakness, anorexia, weight loss, or limitation of exertion. CONCLUSIONS OF LAW 1. The criteria for service connection for entitlement to service connection for lung condition are not met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. 2. For the period prior to November 26, 2019, the criteria for a rating of 50 percent, but no higher, for sinusitis, have been met. 38 U.S.C. §§ 1114, 5103, 5107; 38 C.F.R. §§ 4.1, 4.97, Diagnostic Code 6512. 3. For the period from November 26, 2019, the criteria for a rating in excess of 50 percent for sinusitis, have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.321, 4.1-4.16, 4.97, Diagnostic Code 6512. 4. For the period prior to April 17, 2017, the criteria for a rating in excess of 10 percent for the Veteran’s service-connected hypertension has not been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 3.159, 3.321, 4.1, 4.2, 4.3, 4.6, 4.7, 4.115b, Diagnostic Code 7101. 5. For the period from April 17, 2017, the criteria for entitlement to a rating in excess of 60 percent for service-connected hypertension with diabetic nephropathy have not been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 3.159, 3.321, 4.1, 4.2, 4.3, 4.6, 4.7, 4.115b, Diagnostic Code 7541. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service from February 1980 to August 2000. The matters arise from rating decisions dated July 2008 and November 2009. The Veteran testified at an October 2018 Board of Veterans’ Appeals (Board) Hearing before the undersigned Veterans Law Judge. A transcript of the hearing has been associated with the record. The claims were remanded by the Board in July 2019. Service Connection Service connection may be established for disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. § 1131; 38 C.F.R. § 3.303. Service connection may also be granted for any disease diagnosed after discharge, when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303 (d). Establishing service connection generally requires medical or, in certain circumstances, lay evidence of (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a link between the claimed in-service disease or injury and the present disability. Romanowsky v. Shinseki, 26 Vet. App. 289, 293 (2013). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). 1. Entitlement to service connection for a lung disability is denied. The Veteran seeks entitlement to service connection for a lung disability. However, there is no indication in the treatment records that she was ever diagnosed with a lung disability, and the Veteran is not competent to provide a medical diagnosis of any lung condition. Furthermore, the medical records show that her lungs are clear and that her chest examination showed results that were “essentially normal.” See June 2009 VA medical record. Lacking a diagnosis of a lung disability, the Veteran does not meet the cornerstone element of service connection. Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). Since the preponderance of the evidence is against the claim, the benefit-of-the-doubt rule is not applicable. See 38 U.S.C. § 5107 (b); Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001); Gilbert, 1 Vet. App. 49, 5557 (1990); 38 C.F.R. § 3.102. Accordingly, the claim is denied. Increased Rating Disability ratings are determined by the application of a schedule of ratings that is based on average impairment of earning capacity. 38 U.S.C. § 1155. Percentage ratings are determined by comparing the manifestations of a particular disability with the requirements contained in VA's Schedule for Rating Disabilities. The percentage ratings contained in the Rating Schedule represent, as far as can practically be determined, the average impairment in earning capacity resulting from a disease or injury and the residual conditions in civilian occupations. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. If two ratings are potentially applicable, the higher rating will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. 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. 38 C.F.R. § 4.21. It is the defined and consistently applied policy of VA to administer the law under a broad interpretation, consistent with the facts shown in every case. Any reasonable doubt regarding the degree of disability is resolved in favor of the Veteran. 38 C.F.R. § 3.102, 4.3. 2. For the period prior to November 26, 2019, entitlement to an increased rating in excess of 10 percent for sinusitis with headaches is granted. The Veteran is seeking ratings in excess of 10 percent prior to November 26, 2019, and in excess of 50 percent thereafter for chronic sinusitis rated under Diagnostic Code 6512, 38 C.F.R. § 4.71a. Therefore, the relevant temporal focus is one year prior to the date of receipt of the increased rating claim, which would be from July 7, 2007. 38 C.F.R. § 3.400. The Veteran's sinusitis is rated pursuant to 38 C.F.R. § 4.97, Diagnostic Code (DC) 6512, for chronic frontal sinusitis. All of the DCs for sinusitis (DCs 6510-6514) are rated pursuant to the same criteria. Under the General Rating Formula for Sinusitis, a 0 percent rating is warranted when it is detected by X-ray only. A 10 percent rating is warranted for one or two incapacitating episodes per year of sinusitis requiring prolonged (lasting four to six weeks) antibiotic treatment, or; three to six non-incapacitating episodes per year of sinusitis characterized by headaches, pain, and purulent discharge or crusting. A 30 percent rating is warranted for three or more incapacitating episodes per year of sinusitis requiring prolonged (lasting four to six weeks) antibiotic treatment, or; more than six non-incapacitating episodes per year of sinusitis characterized by headaches, pain, and purulent discharge or crusting. A 50 percent rating is warranted following radical surgery with chronic osteomyelitis, or; near constant sinusitis characterized by headaches, pain and tenderness of affected sinus, and purulent discharge or crusting after repeated surgeries. Relevant Evidence A July 2009 VA Nose, Sinus, Larynx, and Pharynx Compensation and Pension Examination confirms a diagnosis of chronic sinusitis. The examiner noted that starting in 1988, the Veteran has had significant problems with sinus infections and chronic sinus symptoms. Current treatment is medication. There is a history of near constant non-incapacitating episodes that last for 7 to 14 days, and the symptoms during these episodes are headache, fever, purulent drainage, and sinus pain. The current daily sinus symptoms include purulent nasal discharge, headaches, sinus pain, sinus tenderness, and fever. The current rhinitis symptoms are excess nasal mucous, itchy nose, watery eyes, and sneezing. The time lost from work during the last 12- month period due to the sinusitis is 6 weeks. The chronic sinusitis had significant effects on the usual occupational activities by causing decreased concentration, hearing difficulty, vision difficulty, weakness or fatigue, and pain. It also caused increased tardiness and increased absenteeism. There are also effects on the problem on usual daily activities, including moderately on chores, moderately on shopping, severely on exercise, severely on sports, severely on recreation, and severely on travelling. Legal Analysis and Conclusion After carefully reviewing the clinical evidence of record, the Board finds that for the period prior to November 26, 2019, the maximum rating of 50 percent, allowable pursuant to DC 6512, for chronic sinusitis is warranted. Overall, the clinical evidence indicates that the Veteran has been diagnosed with chronic sinusitis. The July 2009 VA Nose, Sinus, Larynx, and Pharynx Compensation and Pension Examination report shows near constant non-incapacitating episodes that include headaches, sinus tenderness and pain, and purulent nasal discharge. These symptoms, and their frequency, severity, and reoccurring natures, squarely fit the 50 percent rating criteria. As such, an increased rating to 50 percent for the period prior to November 26, 2019 is granted. This constitutes the maximum assignable rating under such diagnostic code. See Grantham v. Brown, 114 F. 3d 1156, 1158 (Fed. Cir. 1997). There is otherwise no appropriate rating code which could provide a schedular disability rating in excess of 50 percent, especially when a condition is specifically listed in the rating schedule, VA must apply the DC that specifically pertains to the listed condition to determine the appropriate disability evaluation. See Copeland v. McDonald, 27 Vet. App. 333, 337 (2015). 3. Entitlement to an increased rating in excess of 50 percent for sinusitis with headaches for the period from November 26, 2019 is denied. As stated above, the Veteran is seeking ratings in excess of 10 percent prior to November 26, 2019 and in excess of 50 percent thereafter for chronic sinusitis rated under Diagnostic Code 6512, 38 C.F.R. § 4.71a. The following is a discussion for the period from November 26, 2019. Relevant Evidence A November 2019 VA Sinusitis/Rhinitis and Other Conditions of the Nose, Throat, Larynx and Pharynx DBQ confirmed a diagnosis of chronic sinusitis. The current symptoms are noted as frequent headaches and sinus pressure, with congestion and runny nose. Symptoms are worse with rain/barometric changes, and season changes (spring/fall). She has been put on antibiotics for sinusitis at least 3-5 times in the past 12 months. She takes medication for it. She has near constant sinusitis (has more frequent episodes over time as she has gotten older), headaches, pain of affected sinus, tenderness of affected sinus, purulent discharge, thick mucus discharge that may be bloody, and frontal headaches and tenderness over sinuses. She has had 5 non-incapacitating episodes of sinusitis characterized by headaches, pain, and purulent discharge or crusting in the past 12 months. She has had 3 or more incapacitating episodes of sinusitis requiring prolonged antibiotics treatment in the 12 months. Her condition impacts her ability to work because if she gets a really bad sinus infection she will have to stay home and miss time from work. Legal Analysis and Conclusion The Veteran’s sinusitis is currently rated at 50 percent for this period. However, this constitutes the maximum assignable rating under such diagnostic code. See Grantham, 114 F. 3d at 1158. There is otherwise no appropriate rating code which could provide a schedular disability rating in excess of 50 percent, especially when a condition is specifically listed in the rating schedule, VA must apply the DC that specifically pertains to the listed condition to determine the appropriate disability evaluation. See Copeland v. McDonald, 27 Vet. App. at 337. Therefore, a rating in excess of 50 percent for this period is denied. 4. Entitlement to an increased rating in excess of 10 percent for hypertension prior to April 17, 2017, and in excess of 60 percent thereafter for hypertension with diabetic nephropathy is denied. The Veteran seeks increased ratings for her hypertension with diabetic nephropathy. The Veteran’s hypertension has been rated at 10 percent disabling, effective September 1, 2000. In a July 2017 rating decision, the RO granted service connection for diabetic nephropathy with hypertension with an evaluation of 60 percent, effective April 17, 2017. Under VA regulations, when a veteran is found to be entitled to service connection for both hypertension and a kidney disorder, the conditions must be evaluated together unless the sole renal disability is the absence of a kidney or unless there is the requirement for regular dialysis. The evidence does not show an absence of a kidney or a requirement for regular dialysis. Therefore, the service-connected hypertension and service-connected diabetic nephropathy are being considered together under one percentage evaluation starting from April 17, 2017, the date service connection was granted for diabetic nephropathy. Under Diagnostic Code 7101 for hypertension, a 10 percent rating is warranted when diastolic pressure is predominantly 100 or more, or; systolic pressure is predominantly 160 or more, or; the minimum evaluation for an individual with a history of diastolic pressure is predominantly 100 or more and who requires continuous medication for control. A 20 percent rating is warranted when diastolic pressure is predominantly 110 or more, or; systolic pressure is predominantly 200 or more. A 40 percent rating is warranted when diastolic pressure is predominantly 120 or more. A 60 percent rating is warranted when diastolic pressure is predominantly 130 or more. The Veteran’s diabetic nephropathy is rated 60 percent disabling under 38 C.F.R. § 4.115b, Diagnostic Code 7541, as renal dysfunction due to diabetes. Diagnostic Code 7541 provides that such disability should be evaluated based on the criteria pertinent to renal dysfunction. 38 C.F.R. § 4.115a. Under Diagnostic Code 7541 for renal dysfunction, a 60 percent rating is warranted for constant albuminuria with some edema; or, definite decrease in kidney function; or, hypertension at least 40 percent disabling under diagnostic code 7101. An 80 percent rating is warranted for persistent edema and albuminuria with BUN 40 to 80mg%; or, creatinine 4 to 8mg%; or, generalized poor health characterized by lethargy, weakness, anorexia, weight loss, or limitation of exertion. A 100 percent rating is warranted for renal dysfunction requiring regular dialysis, or precluding more than sedentary activity from one of the following: persistent edema and albuminuria; or, BUN more than 80mg%; or, creatinine more than 8mg%; or, markedly decreased function of kidney or other organ systems, especially cardiovascular. Relevant Evidence An August 2009 VA Hypertension VA Examination report confirms that the Veteran’s hypertension has been progressively worse since its onset. She takes medication as treatment. She has a history of headaches related to hypertension. Symptoms of possible complications from continuous medication needed to control hypertension are fatigue, memory impairment, Dyspnea, Orthopnea, Paresthesias, ankle or foot edema, weight gain, and nocturia. Her blood pressure was 155/101 mmHg. The diagnosis of hypertension has been previously established. The blood pressure measurements for established diagnosis of hypertension are: 1) 168/108 mmHg, 2) 138/100 mmHg, and 3) 176/114 mmHg. Blood pressure measurements to establish a previously undiagnosed hypertension, day one blood pressure reasons is 2) 150/90 mmHg, 3) 153/99 mmHg. Hypertension severely affects chores, shopping, exercise, sports, and recreation. The examiner noted that there is possibly early renal stage one with albinuria. A December 2015 VA medical record shows blood pressure readings of 163/75 and 158/80. A March 2016 Washington VA medical center record shows a blood pressure reading of 148/73. An April 2016 Washington VA medical center record shows a blood pressure reading of 130/65. A May 2016 Washington VA medical center record shows a blood pressure reading of 130/65. A June 2016 Washington VA medical center record shows a blood pressure reading of 153/93. A May 2017 VA Hypertension Disability Benefits Questionnaire (DBQ) confirmed a hypertension diagnosis. The Veteran’s condition has progressed since its onset and she is now taking four medications. She does not have a history of diastolic BP elevation to predominantly 100 or more. Her current blood pressure readings taken on May 6, 2017 are 1) 160/99, 2) 168/101, and 3) 160/94 with an average BP reading of 162/98. The Veteran’s hypertension does not impact her ability to work. A May 2017 VA Kidney Conditions (Nephrology) DBQ shows a diagnosis of diabetic nephropathy and chronic renal disease. The Veteran’s treatment plan includes taking continuous medication for the condition. The Veteran has renal dysfunction and requires regular dialysis. Her symptoms due to renal dysfunction include persistent proteinuria (Albuminuria) and slight edema. The Veteran has hypertension due to the kidney condition. The Veteran had laboratory or diagnostic studies performed and the laboratory studies showed abnormal BUN results of 33 (date 5/6/17), abnormal creatinine result of 1.56 (Range .57-1) (date 5/6/17), abnormal EGFR result of 42 (date 5/6/17), and normal RBC’s/HPF result that is none seen (date 5/6/17), abnormal proteinuria (albumin) result of 3+ (date 5/6/17). Other significant diagnostic test findings are microalbumin, urine, 5/6/17-1022.6. The Veteran’s kidney conditions does not impact her ability to work. Legal Analysis and Conclusion The Board finds that for the period prior to April 17, 2017, a rating in excess of 10 percent for the Veteran’s service-connected hypertension under Diagnostic Code 7101 is not warranted. In so finding, the Board observes that the Veteran’s diastolic pressure is not predominantly 110 or more. Moreover, the systolic pressure is not predominantly 200 or more. Accordingly, the Veteran is most appropriately rated at 10 percent under Diagnostic Code 7101 for this period. For the period from April 17, 2017, a rating in excess of 60 percent for the Veteran’s diabetic nephropathy under Diagnostic Code 7541 is not warranted. There is no evidence of generalized poor health due to the kidney disease or creatinine at or above 4 mg percent. In this regard, the Board observes that the Veteran's highest creatinine measurement was 1.56. The Veteran’s BUN result did not reach 40, it only reached a result of 33. Moreover, while there was a showing of peristent albuminuria, there was a showing of only slight, and not persistent, edema. Therefore, the criteria for a higher rating of 80 or 100 percent have not been met. Accordingly, as the preponderance of the evidence is against the claim, an increased rating in excess of 10 percent for hypertension prior to April 17, 2017 and in excess of 60 percent thereafter for hypertension with diabetic nephropathy, the benefit-of-the-doubt rule does not apply, and the claim must be denied. 38 U.S.C. § 5107 (b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). REASONS FOR REMAND 5. Entitlement to service connection for a back disability is remanded. The Veteran asserts that she currently experiences back pain that stems from active duty service and/or as a result of her service-connected status post ventral hernia repair disability. See Appellate Brief (Veteran contends that her back condition is due to her twenty years of service that caused wear and tear on the body and has gradually gotten worse since service); Hearing Transcript, pp. 15-16 (Veteran asserted that carrying heavy ammunition all the time and wearing a rug sack and getting in and out of a five ton truck caused injury to her back that only worsened after service; she also asserted that her hernia surgery involved her back muscles being tightened, which in turn, caused increased pressure on her back). The Veteran’s service treatment records also note that she was treated for upper and lower back pain. See Service Treatment Record. However, there is no competent evidence of record addressing whether the Veteran’s back pain began is related to active duty service and/or her hernia disability. See 38 U.S.C. § 5103A (d)(2); McLendon, 20 Vet. App. at 81-86. Therefore, upon remand, an examination and the appropriate etiology opinions must be obtained. 6. Entitlement to service connection for a hump on the back of the neck is remanded. The Veteran contends that the hump she currently feels on the back of her neck began during her service and has gradually gotten worse since service and that therefore service connection is warranted. See Appellate Brief; Hearing Transcript, p. 18 (The Veteran asserted that the condition may have happened in the early 90’s while she was serving on active duty service). A July 1994 examination during service indicates a hump over the back of her neck. See Service Treatment Record. However, there is no competent evidence of record addressing whether the claimed neck condition is related to active duty service. See 38 U.S.C. § 5103A (d)(2); McLendon, 20 Vet. App. at 81-86. Therefore, upon remand, an examination and the appropriate etiology opinions must be obtained. 7. Entitlement to service connection for a right ankle disability is remanded. The Veteran contends that her right ankle disability began during her service and has gradually gotten worse since service and that therefore service connection is warranted. See Appellate Brief. At the October 2018 Board Hearing, the Veteran asserted that during service, she first hurt her right ankle in drill Sergeant school. They were running in the dark and she stepped on a rock and twisted her ankle. She stated that she twisted it again on other road march and was on crutches during her service. She further stated that her ankle still swells up to the present day. See Hearing Transcript, p. 13. An April 1988 service treatment record indicates an ankle injury. Moreover, current VA medical records document her complaints of chronic ankle pain and also show a diagnosis of mild osteoarthritic changes of the right ankle joint. See April 2016 VA Washington medical record. However, there is no competent evidence of record addressing whether any current right ankle disability is related to active duty service. See 38 U.S.C. § 5103A (d)(2); McLendon, 20 Vet. App. at 81-86. Therefore, upon remand, an examination and the appropriate etiology opinions must be obtained. 8. Entitlement to an increased rating in excess of 10 percent for hypothyroidism with history of Grave’s disease with exophthalmus status post thyroidectomy is remanded. The Veteran’s medical records show that her hypothyroidism manifested symptoms such as cold intolerance (December 2015 Washington VA medical center record), depression, irritability, paresthesias, lack of stamina, weakness or fatigue, and moderate effect on toileting (July 2009 VA Endocrine Diseases Compensation and Pension Examination). These symptoms are part of the rating criteria for different ratings for this disability. The Board also finds that the Veteran’s medical records weight gain and nocturia that are noted as symptoms of “possible” complications associated with hypertension (July 2009 Washington VA medical records). The Board needs clarification as to whether these symptoms have manifested for the Veteran, and if so, could they be attributed to the Veteran’s hypothyroidism, as these symptoms, along with other symptoms, could potentially satisfy the criteria for a higher rating. Accordingly, the Board finds remand is required to obtain an examination that assesses the severity of the Veteran’s hypothyroidism. 9. Entitlement to service connection for papillederma an eye disability (apart from dry eye syndrome) is remanded. In an August 2009 VA Eye Examination report, the VA examiner noted diagnoses of diplopia that is not currently resolved, anisometropia that is corrected to good vision in both eyes, prominent exophthalmos that is due to Grave’s Disease, bilateral mild inferior exposure keratitis that is related to Grave’s Disease, and spontaneous proptosis that is resolved without sequalae. In a recent May 2017 VA Eye Conditions Disability Benefits Questionnaire (DBQ), the VA examiner found current diagnoses of cataracts and dry eye syndrome, which the RO subsequently granted secondary service connection for in a July 2017 rating decision. At the October 2018 Board Hearing, the Veteran credibly asserted, in part, that the Veteran began experiencing double vision in service. Moreover, her medical records indicate a current diagnosis of diplopia, which means double vision. See August 2009 VA Eye Examination. However, direct and/or secondary etiology opinions have not been obtained for these eye disabilities (apart from dry eye syndrome). See McLendon, 20 Vet. App. at 83-86 (noting that the third element establishes a low threshold and requires only that the evidence "indicates" that there "may" be a nexus between the current disability or symptoms and active service, including credible lay evidence of continuity of symptomatology). Furthermore, as stated above, at the August 2009 VA Eye Examination, the VA examiner noted “prominent exophthalmos that is due to Grave’s Disease” and “bilateral mild inferior exposure keratitis that is related to Grave’s Disease.” With respect to these diagnoses, the Board requires a clarification opinion as to whether these conditions cause any functional disability such as loss of visual acuity or field of vision to consider them a separate disability from the Grave’s Disease. Therefore, upon remand, an examination and the appropriate etiology opinions must be obtained. The matters are REMANDED for the following action: 1. With the assistance of the Veteran, obtain any outstanding VA medical records. 2. Schedule examinations for the back, neck, ankle, Grave’s disease, and eyes. All examiners must be provided the claims file. All indicated tests and studies deemed necessary must be performed. The examiner should provide all information required for rating purposes. All examination findings, along with the complete rationale for all opinions expressed, should be set forth in the examination report. After step 1 is completed, schedule the Veteran for a VA examination with a different VA examiner to determine the nature and etiology of his back disability. After reviewing the claims folder and examining the Veteran, the examiner is specifically instructed to provide the following information: (a) Is it “at least as likely as not (50 percent probability or greater)” that the Veteran’s back disability BEGAN IN or is related to her time in the service, yes or no? (b) Is it “at least as likely as not (50 percent probability or greater)” that the Veteran’s back disability was CAUSED BY HER SERVICE-CONNECTED post-ventral hernia repair disability, yes or no? (c) Is it “at least as likely as not (50 percent probability or greater)” that the Veteran’s back disability underwent any incremental increase (aggravation) in disability, regardless of its permanence, due to the service-connected back disability, yes or no? (d) Are the Veteran’s medical lay assertions consistent with medical knowledge or implausible? Are the Veteran’s reports about symptoms or an in-service injury, align with how the disease or disability is known to develop. The examiner is instructed to explicitly consider: 1. the Veteran’s contention that her back disability stems from her twenty years of service, during which she was carrying heavy ammunition all the time and wearing a rug sack and getting in and out of a five ton truck that caused injury to her back that only worsened after service. The Veteran’s service treatment records also note that she was treated for upper and lower back pain. See Service Treatment Record. 2. The Veteran’s alternative contention that her hernia surgery involved her back muscles being tightened, which in turn, caused increased pressure on her back. See Hearing Transcript, pp. 15-16. 3. After step 1 is completed, schedule the Veteran for a VA examination with a new examiner to determine the nature and etiology of her hump on the back of the neck. The claims file must be made available to the examiner for review of the case. All examination findings, along with the complete rationale for all opinions expressed, should be set forth in the examination report. All tests and studies deemed necessary should be conducted. After reviewing the claims folder and examining the Veteran, the examiner is specifically instructed to provide the following information: (a) Is it “at least as likely as not (50 percent probability or greater)” that the Veteran’s hump on the back of the neck BEGAN IN or is related to her time in the service, yes or no? A July 1994 examination during service indicates a hump over the back of her neck. See Service Treatment Record. 4. After step 1 is completed, schedule the Veteran for a VA examination with a new examiner to determine the nature and etiology of her right ankle disability. After reviewing the claims folder and examining the Veteran, the examiner is specifically instructed to provide the following information: (a) Is it “at least as likely as not (50 percent probability or greater)” that the Veteran’s right ankle disability BEGAN IN or is related to her time in the service, yes or no? (b) The examiner should expressly consider the Veteran’s assertion and evidence: i. She asserts that she first hurt her right ankle in drill Sergeant school. They were running in the dark and she stepped on a rock and twisted her ankle. She stated that she twisted it again on other road marches and was on crutches during her service. She further stated that her ankle still swells up to the present day. See October 2018 Hearing Transcript, p. 13. ii. An April 1988 service treatment records indicates an ankle injury. iii. VA medical records document her complaints of chronic ankle pain. See April 2016 VA Washington medical record iv. a diagnosis of mild osteoarthritic changes of the right ankle joint. See April 2016 VA Washington medical record. (c) Are the Veteran’s assertions consistent with medical knowledge or implausible? Are the Veteran’s reports about symptoms and/or an in-service injury align with how the disease or disability is known to develop? 5. After step 1 is completed, schedule the Veteran for a VA examination by an examiner with sufficient expertise to determine the current level of severity of all impairment resulting from his service-connected hypothyroidism with history of Grave’s disease with exophthalmus status post thyroidectomy. The claims file must be made available to, and reviewed by the examiner. All indicated tests and studies must be performed. The examiner should provide all information required for rating purposes. (a) The examiner should address and assess the severity and frequency and duration of the Veteran’s manifested symptoms such as cold intolerance (December 2015 Washington VA medical center record), depression, irritability, paresthesias, lack of stamina, weakness or fatigue, and moderate effect on toileting (July 2009 VA Endocrine Diseases Compensation and Pension Examination). (b) The Veteran shows symptoms of weight gain and nocturia that are noted as symptoms of “possible” complications associated with hypertension. See July 2009 Washington VA medical records. i. The Board needs clarification as to whether these symptoms have manifested in the Veteran, and if so, could they be attributed to the Veteran’s hypothyroidism. 6. After step 1 is completed, schedule the Veteran for a VA examination with a new examiner to determine the nature and etiology of any current eye disability. (a) The examiner is instructed to explicitly consider and address all of the Veteran’s current eye diagnoses (except for dry eye syndrome, which is already service connected). See August 2009 VA Eye Examination (noting diagnoses of diplopia that is not currently resolved, anisometropia that is corrected to good vision in both eyes, prominent exophthalmos that is due to Grave’s Disease, bilateral mild inferior exposure keratitis that is related to Grave’s Disease, and spontaneous proptosis that is resolved without sequalae); May 2017 VA Eye Conditions Disability Benefits Questionnaire (DBQ) (noting a diagnosis of cataracts). (b) As to the diagnoses of “prominent exophthalmos that is due to Grave’s Disease” and “bilateral mild inferior exposure keratitis that is related to Grave’s Disease,” the examiner must provide a clarification opinion as to whether each of these conditions cause any functional disability such as loss of visual acuity or field of vision. After reviewing the claims folder and examining the Veteran, the examiner is specifically instructed to provide the following information for each and every current eye disability diagnosis: (a) Is it “at least as likely as not (50 percent probability or greater)” that the Veteran’s eye disability BEGAN IN or is related to her time in the service, yes or no? (b) Is it “at least as likely as not (50 percent probability or greater)” that the Veteran’s eye disability was CAUSED BY HER SERVICE-CONNECTED hypothyroidism or chronic sinusitis, yes or no? (c) Is it “at least as likely as not (50 percent probability or greater)” that the Veteran’s back disability underwent any incremental increase in disability, regardless of its permanence, due to the service-connected hypothyroidism or chronic sinusitis, yes or no? The examiner must specifically consider and address the Veteran’s statements, including those made at the Hearing. (a) The Veteran credibly asserted, in part, that the Veteran began experiencing double vision in service. October 2018 hearing testimony. (b) She asserted that she feels pressure pushing down on her nose that caused the onset of her double vision. October 2018 hearing testimony. (c) Are the Veteran’s assertions consistent with medical knowledge or implausible? Are the Veteran’s reports about symptoms or an in-service injury align with how the disease or disability is known to develop. 7. FOR ALL OPINIONS, the examiner is advised that the term “incremental increase in disability” means additional impairment of earning capacity. Objective measurement, or numerical quantification, is not required to ascertain an increase in disability. Additional disability due to flareups of musculoskeletal disabilities, even if it cannot be quantified, or an incremental increase in pain might constitute an increase in disability, or aggravation, for the purposes of secondary service connection. The term “at least as likely as not” does not mean “within the realm of medical possibility.” Rather, it means that 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 the conclusion (e.g., diagnosis, etiology) as it is to find against the conclusion. The examiner is advised that the Veteran is competent to report her symptoms and history, and such reports must be acknowledged and considered in formulating any opinion. THE EXAMINER SHOULD ALSO BE AWARE THAT IN RENDERING AN OPINION, IT MUST “CONTAIN NOT ONLY CLEAR CONCLUSIONS WITH SUPPORTING DATA, BUT ALSO A REASONED MEDICAL EXPLANATION CONNECTING THE TWO.” SEE NIEVES-RODRIGUEZ V. PEAKE, 22 Vet. App. 295, 301 (2008). Furthermore, if medical literature is relied upon in rendering this determination, the VA examiner should identify and specifically cite each reference material utilized. If the examiner determines that he/she cannot provide an opinion without resorting to speculation, the examiner should explain the inability to provide an opinion, identifying precisely what facts could not be determined. In particular, he/she should comment on whether an opinion could not be provided because the limits of medical knowledge have been exhausted or whether additional testing or information could be obtained that would lead to a conclusive opinion. Jones v. Shinseki, 23 Vet. App. 382, 389 (2010) (The Agency of Original Jurisdiction should ensure that any additional evidentiary development suggested by the examiner be undertaken so that a definite opinion can be obtained.) 8. The Veteran is hereby notified that it is the Veteran’s responsibility to report for any examination, and to cooperate in the development of the claim. The consequences for failure to report for a VA examination without good cause may include denial of the claim. 38 C.F.R. §§ 3.158, 3.655. 9. The AOJ must review the claims file and ensure that the foregoing development action has been completed in full. If any development is incomplete, appropriate corrective action must be implemented. If any report does not include adequate responses to the specific opinions requested, it must be returned to the providing examiner for corrective action. YVETTE R. WHITE Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board C. J. Cho, Associate Counsel The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.