Citation Nr: 21019308 Decision Date: 04/01/21 Archive Date: 04/01/21 DOCKET NO. 17-21 496 DATE: April 1, 2021 ORDER New and material evidence having been received, the appeal to reopen service connection for right ear hearing loss is granted. New and material evidence having been received, the appeal to reopen service connection for left ear hearing loss is granted. Service connection for right hip arthritis (right hip disability), including as secondary to the service-connected burn scar on the lateral aspect of the right upper thigh (burn scar on the right thigh), is granted. Service connection for erectile dysfunction, as secondary to the service-connected diabetes mellitus type II, is granted. Special monthly compensation (SMC) based on loss of use of a creative organ is granted. A separate compensable rating for erectile dysfunction, as a matter of law, is denied. An increased disability rating in excess of 20 percent for diabetes mellitus type II is denied. A higher initial disability rating in excess of 30 percent for posttraumatic stress disorder (PTSD) from August 7, 2012 to March 29, 2017 is denied. An increased disability rating in excess of 20 percent for the burn scar on the right upper thigh (burn scar on the right thigh) is denied. A higher initial disability rating in excess of 10 percent for the painful scar on the right upper thigh (painful scar on the right thigh) is denied. An increased (compensable) disability rating for the burn scar on the ventral aspect of the right arm (burn scar on the right arm) is denied. An increased (compensable) disability rating for the burn scar on the ventral aspect of the left arm (burn scar on the left arm) is denied. REMANDED Service connection for right ear sensorineural hearing loss is remanded. Service connection for left ear sensorineural hearing loss is remanded. A higher initial disability rating in excess of 50 percent for PTSD from March 29, 2017 forward is remanded. Service connection for obstructive sleep apnea, including as secondary to the service-connected PTSD, is remanded. Service connection for headaches, including as secondary to the service-connected PTSD, is remanded. Service connection for residuals of a right subcortical infarction (stroke residuals), including as due to herbicide exposure, is remanded. A total disability rating based on individual unemployability (TDIU) is remanded. FINDINGS OF FACT 1. In an unappealed July 2010 rating decision, the RO declined to reopen service connection for right ear hearing loss on the basis that new and material evidence had not been submitted to show a nexus to service; evidence received since the July 2010 rating decision relates to the unestablished fact of a nexus of right ear hearing loss to service, which is necessary to substantiate a claim for service connection. 2. In an unappealed July 2010 rating decision, the RO declined to reopen service connection for left ear hearing loss on the basis that new and material evidence had not been submitted to show a nexus to service; evidence received since the July 2010 rating decision relates to the unestablished fact of a nexus of left ear hearing loss to service, which is necessary to substantiate a claim for service connection. 3. The Veteran is currently diagnosed with degenerative arthritis in the right hip (right hip disability); symptoms of the right hip disability were chronic in service and have been continuous since service separation. 4. The Veteran is currently diagnosed with erectile dysfunction; the current erectile dysfunction is etiologically related to the service-connected diabetes mellitus, type II. 5. The Veteran’s erectile dysfunction is manifested by loss of use of a creative organ. 6. For the entire rating period on appeal from August 7, 2012, the service-connected diabetes mellitus type II has been managed by an oral hypoglycemic agent and a restricted diet only, and did not require a regulation of activities. 7. For the entire initial rating period on appeal from August 7, 2012 to March 29, 2017, the PTSD has more nearly approximated occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks, without occupational and social impairment with reduced reliability and productivity. 8. For the entire rating period on appeal from August 7, 2012, the burn scar on the right thigh has not manifested in a burn scar in an area or areas of at least 72 square inches (465 sq. cm.) but less than 144 square inches (929 sq. cm.). 9. For the entire initial rating period on appeal from August 7, 2012, the painful scar on the right thigh has not manifested as three or four scars that are unstable or painful, and has not resulted in any disabling effects. 10. For the entire rating period on appeal from August 7, 2012, the burn scar on the right arm has not manifested in a superficial and nonlinear scar in an area or areas of 144 square inches (929 sq. cm.) or greater. 11. For the entire rating period on appeal from August 7, 2012, the burn scar on the left arm has not manifested in a superficial and nonlinear scar in an area or areas of 144 square inches (929 sq. cm.) or greater. CONCLUSIONS OF LAW 1. The July 2010 rating decision declining to reopen service connection for right ear hearing loss became final. 38 U.S.C. § 7105(c); 38 C.F.R. §§ 3.104, 20.302, 20.1103. 2. Evidence received since the July 2010 rating decision is new and material to reopen service connection for right ear hearing loss. 38 U.S.C. §§ 5108, 7105(c); 38 C.F.R. § 3.156. 3. The July 2010 rating decision declining to reopen service connection for left ear hearing loss became final. 38 U.S.C. § 7105(c); 38 C.F.R. §§ 3.104, 20.302, 20.1103. 4. Evidence received since the July 2010 rating decision is new and material to reopen service connection for left ear hearing loss. 38 U.S.C. §§ 5108, 7105(c); 38 C.F.R. § 3.156. 5. Resolving reasonable doubt in favor of the Veteran, the criteria for service connection for right hip arthritis have been met. 38 U.S.C. §§ 1110, 1112, 1137, 1154(b), 5107(b); 38 C.F.R. §§ 3.102, 3.303(a)-(b), (d), 3.307, 3.309(a). 6. Resolving reasonable doubt in the Veteran’s favor, the criteria for service connection for erectile dysfunction, as secondary to the service-connected diabetes mellitus type II, have been met. 38 U.S.C. §§ 1110, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.310. 7. Resolving reasonable doubt in the Veteran’s favor, the criteria for SMC based on loss of use of a creative organ have been met. 38 U.S.C. §§ 1114 (k), 1155, 5103A, 5110, 7105; 38 C.F.R. §§ 3.159, 3.350(a). 8. For the entire initial rating period from August 7, 2012, a separate (compensable) rating for the service-connected erectile dysfunction is denied as a matter of law. 38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.321, 3.326(a), 4.3, 4.7, 4.115b, Diagnostic Code 7599-7522. 9. For the entire rating period on appeal from August 7, 2012, the criteria for a disability rating in excess of 20 percent for diabetes mellitus type II have not been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 4.3, 4.7, 4.119, Diagnostic Code 7913. 10. For the entire initial rating period from August 7, 2012 to March 29, 2017, the criteria for a higher initial disability rating in excess of 30 percent for PTSD have not been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 4.3, 4.7, 4.130, Diagnostic Code 9411. 11. For the entire rating period on appeal from August 7, 2012, the criteria for an increased disability rating in excess of 20 percent for the burn scar on the right thigh has not been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 4.3, 4.7, 4.14, 4.20, 4.21, 4.40, 4.45, 4.59, 4.118, Diagnostic Code 7801. 12. For the entire initial rating period on appeal from August 7, 2012, the criteria for a higher initial disability rating in excess of 10 percent for the painful scar on the right thigh has not been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 4.3, 4.7, 4.14, 4.20, 4.21, 4.40, 4.45, 4.59, 4.118, Diagnostic Code 7804. 13. For the entire rating period on appeal from August 7, 2012, the criteria for an increased (compensable) disability rating for the burn scar on the right arm has not been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 4.3, 4.7, 4.14, 4.20, 4.21, 4.40, 4.45, 4.59, 4.118, Diagnostic Code 7802. 14. For the entire rating period on appeal from August 7, 2012, the criteria for an increased (compensable) disability rating for the burn scar on the left arm has not been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 4.3, 4.7, 4.14, 4.20, 4.21, 4.40, 4.45, 4.59, 4.118, Diagnostic Code 7802. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran, who is the appellant, served on active duty from June 1965 to June 1968. 1. Reopening service connection for right ear hearing loss 2. Reopening service connection for left ear hearing loss Finally decided claims cannot be reopened in the absence of new and material evidence. 38 U.S.C. § 5108; 38 C.F.R. § 3.156; Barnett v. Brown, 8 Vet. App. 1 (1995) (citing 38 U.S.C. §§ 5108, 7104(b)). Unappealed rating decisions by the RO are final with the exception that a claim may be reopened by submission of new and material evidence. 38 U.S.C. §§ 5108, 7105(c); 38 C.F.R. § 3.156. When a veteran seeks to reopen a claim based on new evidence, VA must first determine whether the additional evidence is “new” and “material.” See Smith v. West, 12 Vet. App. 312 (1999). New evidence means existing evidence not previously submitted to agency decision makers. 38 C.F.R. § 3.156(a). Material evidence means evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. Id. New and material evidence can be neither cumulative nor redundant of the evidence of record at the time of the last prior final denial of the claim sought to be reopened, and must raise a reasonable possibility of substantiating the claim. Id. The threshold for determining whether new and material evidence raises a reasonable possibility of substantiating a claim is “low.” See Shade v. Shinseki, 24 Vet. App. 110, 117 (2010). Moreover, in determining whether this low threshold is met, consideration need not be limited to consideration of whether the newly submitted evidence relates specifically to the reason why the claim was last denied, but instead should ask whether the evidence could reasonably substantiate the claim were the claim to be reopened, either by triggering VA’s duty to assist or through consideration of an alternative theory of entitlement. Id. at 118. In a July 2010 rating decision, the RO declined to reopen service connection for right and left ear hearing loss on the basis that the evidence was not new and material to show a nexus to service. Because the Veteran did not submit a Notice of Disagreement, and no additional evidence was received within one year of the notice of the rating decision, the July 2010 rating decision became final. 38 U.S.C. § 7105(c); 38 C.F.R. §§ 3.104, 3.156(b), 20.302, 20.1103. Since the July 2010 rating decision (final disallowance), additional evidence has been received in the form of VA treatment records, VA examination reports, private treatment records, lay statements, and the Veteran’s February 2021 Board hearing testimony, which evidence is new because it has not been previously submitted. Evidence received since the July 2010 rating decision includes the Veteran’s testimony during the February 2021 Board hearing that he noticed a decrease in hearing acuity during combat in the Republic of Vietnam (Vietnam) where he was exposed to various ammunition fire and explosions. The Board finds that such evidence relates to an unestablished fact of a nexus to service, so could reasonably substantiate a claim for service connection for right and left ear hearing loss. As such, the Board finds that the additional evidence is new and material to reopen service connection for right and left ear hearing loss. 38 U.S.C. § 5108; 38 C.F.R. § 3.156(a). Service Connection Legal Criteria Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Service connection generally requires (1) medical evidence of a current disability; (2) medical or, in certain circumstances, lay evidence of in service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in service disease or injury and the current disability. Service connection may also be granted for a disability that is proximately due to or the result of a service-connected disability. See 38 C.F.R. § 3.310(a). When service connection is thus established for a secondary condition, the secondary condition shall be considered a part of the original condition. See id.; Harder v. Brown, 5 Vet. App. 183, 187 (1993). The controlling regulation has been interpreted to permit a grant of service connection not only for disability caused by a service connected disability, but for the degree of disability resulting from aggravation of a non-service-connected disability by a service-connected disability. See Allen v. Brown, 7 Vet. App. 439, 448 (1995). In other words, service connection may be granted for a disability found to be proximately due to, or the result of, a service-connected disease or injury. To prevail on the issue of secondary service causation, the record must show (1) evidence of a current disability, (2) evidence of a service-connected disability, and (3) medical nexus evidence establishing a connection between the current disability and the service connected disability. Wallin v. West, 11 Vet. App. 509, 512 (1998); Reiber v. Brown, 7 Vet. App. 513, 516-17 (1995). In the case of a veteran who engaged in combat with the enemy in a period of war, lay evidence of in-service incurrence or aggravation of a disease or injury shall be accepted if consistent with the circumstances, conditions, or hardships of such service, notwithstanding the lack of official record of such incurrence or aggravation. See 38 U.S.C. § 1154(b); 38 C.F.R. § 3.304(d); Libertine v. Brown, 9 Vet. App. 521, 524 (1996); Collette v. Brown, 82 F.3d 389, 392-94 (Fed. Cir. 1996). The provisions of 38 U.S.C. § 1154 (b), however, can be used only to provide a factual basis upon which a determination could be made that a particular disease or injury was incurred or aggravated in service, not to link the claimed disorder etiologically to a current disorder. See Libertine, 9 Vet. App. at 522-23. The provisions of 38 U.S.C. § 1154(b) do not establish service connection for a combat veteran; it aids him by relaxing the adjudicative evidentiary requirements for determining what happened in service. Clyburn v. West, 12 Vet. App. 296, 303 (1999). The Veteran is currently diagnosed with degenerative arthritis in the right hip, which is a “chronic” disease under 38 C.F.R. § 3.309(a). Therefore, the presumptive provisions of 38 C.F.R. § 3.303(b) for “chronic” in-service symptoms and “continuous” post service symptoms apply. Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Where the evidence shows a “chronic disease” in service or “continuity of symptoms” after service, the disease shall be presumed to have been incurred in service. For the showing of “chronic” disease in service, there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time. With chronic disease as such in service, subsequent manifestations of the same chronic disease at any later date, however remote, are service connected, unless clearly attributable to intercurrent causes. If a condition noted during service is not shown to be chronic, then generally, a showing of “continuity of symptoms” after service is required for service connection. 38 C.F.R. § 3.303(b). Additionally, where a veteran served 90 days or more of active service, and certain chronic diseases, such as arthritis, become manifest to a degree of 10 percent or more within one year after the date of separation from such service, such disease shall be presumed to have been incurred in service, even though there is no evidence of such disease during the period of service. 38 C.F.R. §§ 3.307, 3.309(a). While the disease need not be diagnosed within the presumption period, it must be shown, by acceptable lay or medical evidence, that there were characteristic manifestations of the disease to the required degree during that time. Id. 3. Service connection for right hip arthritis The Veteran asserts that right hip arthritis (right hip disability) had its onset during service after sustaining a right hip injury while engaged in combat in Vietnam. See February 2021 Board hearing transcript. Initially, the Board finds the Veteran is currently diagnosed with degenerative arthritis in the right hip. See October 2009 VA treatment record. After a review of all the evidence of record, lay and medical, the Board finds that the evidence is at least in equipoise on the questions of whether symptoms of right hip arthritis were chronic in service and have been continuous since service separation, to meet the criteria for “chronic” disease presumptive service connection for arthritis. See 38 U.S.C. § 1112 and 38 C.F.R. § 3.303(b). Service personnel records show the Veteran was involved in combat. During the February 2021 Board hearing, the Veteran credibly testified that he was shot at and knocked down on his right side during combat and had experienced right hip pain ever since; the right hip injury was sustained during the same incident during which the Veteran suffered the service-connected burn injuries to the right thigh and right and left arms, which injuries are also not reflected in service treatment records. This type of informal medical care during combat is consistent with the circumstances, conditions, or hardships of the Veteran’s service, notwithstanding the lack of official record of such incurrence. See 38 U.S.C. § 1154(b); 38 C.F.R. § 3.304(d). For this reason, the in-service injury presumption afforded to combat veterans under 38 U.S.C. § 1154(b) and 38 C.F.R. § 3.304(d) is applicable in this case to demonstrate the Veteran sustained a right hip injury during service. Additionally, during the February 2021 Board hearing, the Veteran testified that he experienced the onset of right hip pain during service following the right hip injury, and that right hip pain had continued since service separation. Post-service VA treatment records show the Veteran repeatedly reported right hip pain and decreased range of motion for many years since sustaining a combat injury during service. See e.g. October 2008 private treatment record; October 2009 VA treatment record; December 2009 VA treatment record. X-rays of the right hip in October 2009 revealed degenerative arthritis. The foregoing evidence pertains to chronic symptoms in service and continuous symptoms of right hip arthritis since service separation. The Veteran’s statements are competent, credible, and probative. Resolving reasonable doubt in the Veteran’s favor, the Board finds that, based on evidence of chronic symptoms in service and continuous post-service symptoms of right hip arthritis, presumptive service connection for right hip arthritis is warranted under 38 C.F.R. § 3.303(b). 38 U.S.C. § 5107; 38 C.F.R. § 3.102. As the criteria for presumptive service connection for a right hip disability based on continuous post service symptoms (38 U.S.C. § 1112 and 38 C.F.R. § 3.303(b)) are met, all other theories of service connection are rendered moot, with no remaining questions of law or fact to be decided. 38 U.S.C. § 7104. 4. Service connection for erectile dysfunction The Veteran generally seeks service connection for erectile dysfunction as secondary to the service-connected diabetes mellitus. See August 2012 claim. At the outset, the Board finds the Veteran is currently diagnosed with erectile dysfunction. See October 2013 VA examination report. After a review of all the lay and medical evidence, the Board finds that the evidence demonstrates that the current erectile dysfunction is the result of the service-connected diabetes mellitus. The Veteran underwent VA examinations for diabetes mellitus in October 2013 and March 2017, the examination reports for which show the VA examiners opined that the Veteran’s erectile dysfunction is at least as likely as not due to (service-connected) diabetes mellitus type II. Other suggested causes of the erectile dysfunction do not outweigh the evidence relating it to the service-connected diabetes mellitus. Resolving reasonable doubt in the Veteran’s favor, the Board finds that the current erectile dysfunction is caused by the service-connected diabetes mellitus type II, and that service connection for erectile dysfunction as secondary to the service-connected diabetes mellitus type II is warranted. 38 U.S.C. § 5107; 38 C.F.R. §§ 3.102, 3.310. Because the Board is granting service connection on a secondary basis, all other theories of entitlement to service connection are rendered moot. The initial rating for erectile dysfunction will be determined at the time the RO implements this Board decision. 5. SMC for loss of use of a creative organ The Veteran generally seeks Special Monthly Compensation (SMC) for loss of use of a creative organ resulting from his now service-connected erectile dysfunction. SMC is provided under 38 U.S.C. § 1114(k) if a veteran, as a result of service-connected disability, has suffered the anatomical loss or loss of use of one or more creative organs. After review of all the lay and medical evidence of record, the Board finds that an award of SMC for loss of use of a creative organ is warranted. For reasons explained above, service connection is now established for erectile dysfunction as secondary to the service-connected diabetes mellitus. Because the October 2013 VA examination report shows an inability to achieve erection with only marginal improvement from medication due to the now service-connected erectile dysfunction, the criteria for SMC for loss of use of a creative organ are met. See U.S.C. § 1114(k); 38 C.F.R. § 3.350(a). Disability Rating Legal Criteria Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (Rating Schedule) found in 38 C.F.R. Part 4. 38 U.S.C. § 1155. It is not expected that all cases will show all the findings specified; however, findings sufficiently characteristic to identify the disease and the disability therefrom and coordination of rating with impairment of function will be expected in all instances. 38 C.F.R. § 4.21. Where there is a question as to which of two disability ratings shall be applied, 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. It is the defined and consistently applied policy of VA to administer the law under a broad interpretation, consistent, however, with the facts shown in every case. When after careful consideration of all procurable and assembled data, a reasonable doubt arises regarding the degree of disability such doubt will be resolved in favor of the claimant. 38 C.F.R. § 4.3. 6. Whether a separate compensable rating for the erectile dysfunction The issue before the Board in this appeal was service connection for erectile dysfunction. The Board’s instant decision grants service connection for erectile dysfunction as secondary to the service-connected diabetes mellitus, so fully grants the actual benefit sought on this appeal, and grants SMC based on loss of use of a creative organ pursuant to 38 U.S.C. § 1114(k), which is the maximum SMC for this disability. Any contentions that there should be a higher or separate rating, at this point, are premature and are not actual issues on appeal, notwithstanding that a question of “separate” rating for erectile dysfunction was listed as an issue. A separate compensable rating for erectile dysfunction, as a matter of law, must be denied. The question of applying the schedular rating criteria to rate the now service-connected erectile dysfunction is a downstream element of the granted service connection claim that will initially be decided by the RO when implementing the grant of service connection in this Board decision. See Grantham v. Brown, 114 F.3d 1156, 1158 (Fed.Cir. 1997) (clarifying that an appeal regarding downstream elements, i.e. the disability rating, is separate from any prior appeal regarding entitlement to service connection); Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). The RO will assign the initial disability rating for erectile dysfunction and the effective date for the grant of service connection. The RO will apply the rating schedule criteria at Diagnostic Code 7522, which provides a 20 percent rating for deformity of the penis with the loss of erectile power. There is no schedular rating for loss of erectile power alone. In addition, to the extent the contention may be construed as a request for alteration of the criteria of Diagnostic Code 7522 to rate deformity of the penis separately from loss of erectile power, contrary to the clear language and rating schedule criteria, this suggestion is without merit as it is a request to alter the VA rating schedule criteria – a power that only the VA Secretary has. Neither the Board nor the Court is authorized to alter the VA rating schedule. This request for separate rating does not even raise a legal question or valid legal contention to be addressed. 38 U.S.C. § 7104 (providing that the Board only decides actual case questions of law or fact). This request for a separate rating also does not raise an extraschedular claim under 38 C.F.R. § 3.321, as it does not suggest there is any symptom or functional impairment that is not ratable by the current schedular rating criteria or suggest that the current schedular rating criteria, including SMC(k), is inadequate to fully compensate for the erectile dysfunction and procreative impairment. For these reasons, this purported appeal for any type of “separate” rating for erectile dysfunction must be denied as a matter of law. Sabonis v. Brown, 6 Vet. App. 426 (1994). 7. Rating diabetes mellitus For the entire rating period on appeal from August 7, 2012, the service connected diabetes mellitus has been rated as 20 percent disabling under Diagnostic Code 7913. See 38 C.F.R. § 4.118. Under Diagnostic Code 7913, diabetes mellitus manageable by restricted diet only is rated at 10 percent. Diabetes mellitus requiring insulin and restricted diet, or oral hypoglycemic agent and restricted diet, is rated at 20 percent. Diabetes mellitus requiring insulin, restricted diet, and regulation of activities (avoidance of strenuous occupational and recreational activities) is rated at 40 percent. Diabetes mellitus requiring insulin, restricted diet, and regulation of activities with episodes of ketoacidosis or hypoglycemic reactions requiring one or two hospitalizations per year, or twice a month visits to a diabetic care provider, plus complications that would not be compensable if separately rated, is rated at 60 percent. Diabetes mellitus requiring more than one daily injection of insulin, restricted diet, and regulation of activities with episodes of ketoacidosis or hypoglycemic reactions requiring at least three hospitalizations per year or weekly visits to a diabetic care provider, plus either progressive loss of weight and strength or complications that would be compensable if separately rated, is rated at 100 percent. Note (1) to DC 7913 provides that compensable complications of diabetes mellitus are to be rated separately unless they are part of the criteria used to support a 100 percent rating (under DC 7913). Noncompensable complications are considered part of the diabetic process under DC 7913. Note (2) provides that, when diabetes mellitus has been conclusively diagnosed, the adjudicator is not to request a glucose tolerance test solely for rating purposes. 38 C.F.R. § 4.119. “Successive” rating criteria are where the rating for each higher disability rating includes the criteria of each lower disability rating, such that if a component is not met at any one level, the Veteran can only be rated at the level that does not require the missing component. Tatum v. Shinseki, 23 Vet. App. 152, 156 (2009). The diagnostic code for diabetes mellitus (Diagnostic Code 7913) is successive because each higher rating requires the elements of the lower rating: the 10 percent rating requires a restricted diet; the 20 percent rating requires a restricted diet and insulin or oral hypoglycemic agent, the 40 percent rating requires insulin, restricted diet, and regulation of activities; and so forth. See Camacho v. Nicholson, 21 Vet. App. 360 (2007) (holding that the criteria for rating diabetes mellitus are conjunctive, and that each element of the criteria is needed to meet the requirements for the specified evaluation). After review of the lay and medical evidence of record, the Board finds that the weight of the evidence is against finding that management of diabetes mellitus type II requires regulation of activities as required for a 40 percent rating under Diagnostic Code 7913. For the entire rating period on appeal, management of diabetes mellitus has required the use of an oral hypoglycemic agent and a restricted diet only, which is consistent with the 20 percent rating criteria under Diagnostic Code 7913. The evidence does not indicate that management of diabetes mellitus also requires a required regulation of activities, which is a successive criterion necessary for the next higher 40 percent schedular rating. See e.g., October 2013 VA examination report; March 2017 VA examination report; February 2021 Board hearing transcript. VA treatment records throughout the rating period on appeal show the Veteran has continuously been encouraged to exercise several times a week. See e.g. June 2013 VA treatment record; February 2021 VA treatment record. As the evidence throughout the entire rating period on appeal shows that a regulation of activities is not required to manage the diabetes mellitus, an increased disability rating of 40 percent is not warranted. For the above reasons, the Board finds that the weight of the evidence is against finding that an increased disability rating in excess of 20 percent under Diagnostic Code 7913 for diabetes mellitus is warranted for any period. 38 C.F.R. §§ 4.3, 4.7. 8. Rating PTSD from August 7, 2012 to March 29, 2017 For the rating period on appeal from August 7, 2012 to March 29, 2017, the Veteran is in receipt of a 30 percent rating for the service-connected PTSD under Diagnostic Code 9411. 38 C.F.R. § 4.130. The Veteran contends that an increased 50 percent disability rating is warranted. See February 2021 Board hearing transcript. Pertinent to this case, the General Rating Formula for Mental Disorders provides that a 10 percent rating is assigned for occupational and social impairment due to mild or transient symptoms which decrease work efficiency and ability to perform occupational tasks only during periods of significant stress, or symptoms controlled by continuous medication. 38 C.F.R. § 4.130. A 30 percent rating is assigned for occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks (although generally functioning satisfactorily, with routine behavior, self care, and conversation normal), due to such symptoms as: depressed mood, anxiety, suspiciousness, panic attacks (weekly or less often), chronic sleep impairment, and mild memory loss (such as forgetting names, directions, recent events). Id. A 50 percent rating is provided when there is occupational and social impairment with reduced reliability and productivity due to such symptoms as: flattened affect; circumstantial, circumlocutory, or stereotyped speech; panic attacks more than once a week; difficulty in understanding complex commands; impairment of short and long-term memory (e.g., retention of only highly learned material, forgetting to complete tasks); impaired judgment; impaired abstract thinking; disturbances of motivation and mood; and difficulty in establishing and maintaining effective work and social relationships. Id. A 70 percent rating is provided when there is evidence that the psychiatric disability more closely approximates occupational and social impairment, with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood, due to such symptoms as: suicidal ideation; obsessional rituals which interfere with routine activities; speech intermittently illogical, obscure, or irrelevant; near-continuous panic or depression affecting the ability to function independently, appropriately, and effectively; impaired impulse control (such as unprovoked irritability with periods of violence); spatial disorientation; neglect of personal appearance and hygiene; difficulty in adapting to stressful circumstances (including work or a work like setting); and inability to establish and maintain effective relationships. Id. A 100 percent rating requires evidence of total occupational and social impairment, due to such symptoms as: gross impairment in thought processes or communication; persistent delusions or hallucinations; grossly inappropriate behavior; persistent danger of hurting self or others; intermittent inability to perform activities of daily living (including maintenance of minimal personal hygiene); disorientation to time or place; and memory loss for names of close relatives, own occupation, or own name. Id. The use of the term “such as” in the General Rating Formula for Mental Disorders in 38 C.F.R. § 4.130 demonstrates that the symptoms after that phrase are not intended to constitute an exhaustive list, but rather are to serve as examples of the type and degree of symptoms, or their effects, that would justify a particular rating. See Mauerhan v. Principi, 16 Vet. App. 436, 442 (2002). It is not required to find the presence of all, most, or even some, of the enumerated symptoms recited for particular ratings. Id. The use of the phrase “such symptoms as,” followed by a list of examples, provides guidance as to the severity of the symptoms contemplated for each rating, in addition to permitting consideration of other symptoms particular to each veteran and disorder, and the effect of those symptoms on his/her social and work situation. Id. In Vazquez-Claudio v. Shinseki, 713 F.3d 112, 117 (2013), the United States Court of Appeals for the Federal Circuit (Federal Circuit) held that VA “intended the General Rating Formula to provide a regulatory framework for placing veterans on a disability spectrum based upon their objectively observable symptoms.” The Federal Circuit stated that “a veteran may only qualify for a given disability rating under § 4.130 by demonstrating the particular symptoms associated with that percentage, or others of similar severity, frequency, and duration.” It was further noted that “§ 4.130 requires not only the presence of certain symptoms but also that those symptoms have caused occupational and social impairment in most of the referenced areas.” After a review of all the evidence, lay and medical, the Board finds that, for the rating period from August 7, 2012 to March 29, 2017, the service-connected PTSD has more nearly approximated occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks, due to symptoms such as depressed mood, anxiety, suspiciousness, chronic sleep impairment, and disturbances in motivation and mood. The PTSD did not cause occupational and social impairment with reduced reliability and productivity. An October 2013 VA examination report reflects the Veteran reported finding enjoyment taking his grandchildren out for a meal each week and going out with friends on a weekly basis. The Veteran reported he would not go to ballgames because of the crowds, but would watch the game at someone’s house. The Veteran reported traveling to visit his daughter in Atlanta, Georgia, several times a year. The Veteran also reported that he can no longer make reasonable decisions since suffering a (non-service-connected) stroke in 2012. The VA examiner assessed that symptoms of PTSD manifested in anxiety and chronic sleep impairment and would result in occupational and social impairment due to mild or transient symptoms which decrease work efficiency and ability to perform occupational tasks only during periods of significant stress. An October 2012 VA treatment record shows the Veteran reported experiencing a lot of flashbacks and general PTSD-related symptoms but declined medication to treat the psychiatric symptoms. Subsequent VA treatment records show that following mental health treatment, the Veteran reported mild or improved psychiatric symptoms. See e.g. January 2013 VA treatment record (Veteran reported minimal PTSD symptoms since a recent vacation); July 2014 VA treatment record (Veteran reported being active and successfully managing any residual mood disturbance). The Veteran was observed to be making excellent progress on improving his mood and reducing preoccupation with trauma, and denied any suicidal or homicidal ideation. See e.g. April 2014 VA treatment record; August 2014 VA treatment record. VA treatment records from the period from August 7, 2012 to March 29, 2017 do not otherwise show more severe psychiatric symptoms such as panic attacks more than once a week (criteria for a 50 percent rating), impaired judgment (criteria for a 50 percent rating), and impaired abstract thinking (criteria for a 50 percent rating). The Board has carefully reviewed the lay and medical evidence of record and finds that the preponderance of the evidence is against the assignment of an increased disability rating in excess of 30 percent for PTSD for the rating period from August 7, 2012 to March 29, 2017. The evidence of record shows the Veteran’s PTSD more nearly approximates occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks, due to symptoms such as anxiety and chronic sleep impairment. Further, for the rating period on appeal from August 7, 2012 to March 29, 2017, the overall disability picture of the PTSD did not manifest in occupational and social impairment with reduced reliability and productivity. The Board has considered all the symptoms discussed above, including their severity, frequency, and duration, as they bear on social and occupational functioning. In evaluating these symptoms, the Board finds that the severity, frequency, and duration of the PTSD are more appropriately consistent with the symptoms and degrees of social and occupational impairment contemplated by the 30 percent disability rating and do not more nearly approximate the symptoms contemplated for a 50 percent disability rating. See 38 C.F.R. § 4.130, Diagnostic Code 9411. For these reasons, the Board finds that the preponderance of the evidence is against the appeal for an increased disability rating for PTSD in excess of 30 percent for the rating period from August 7, 2012 to March 29, 2017. 38 U.S.C. § 1155; 38 C.F.R. §§ 4.3, 4.7, 4.130, Diagnostic Code 9411. 9. Rating the burn scar on the right thigh 10. Rating the painful scar on the right thigh Throughout the entire rating period on appeal from August 7, 2012, the Veteran is in receipt of a 20 percent rating for the service connected burn scar on the right thigh under Diagnostic Code 7801 and a separate initial 10 percent rating for the same right thigh scar due to pain (painful scar on the right thigh) under Diagnostic Code 7804. 38 C.F.R. § 4.118. The Veteran generally contends that increased and higher initial ratings for the burn scar and painful scar on the right thigh are warranted. See April 2014 Notice of Disagreement. Under Diagnostic Code 7800, for disfigurement of the head, face, or neck, a 10 percent disability rating is warranted for scarring with one characteristic of disfigurement. A 30 percent disability rating is warranted with visible or palpable tissue loss and either gross distortion or asymmetry of one feature or paired set of features (nose, chin, forehead, eyes (including eyelids), ears (auricles), cheeks, lips); or two or three of the characteristics of disfigurement. A 50 percent disability rating is warranted with visible or palpable tissue loss and either gross distortion or asymmetry of two features or paired sets of features (nose, chin, forehead, eyes (including eyelids), ears (auricles), cheeks, lips); or four or five characteristics of disfigurement. An 80 percent disability rating is warranted with visible or palpable tissue loss and either gross distortion or asymmetry of three or more features or paired sets of features (nose, chin, forehead, eyes (including eyelids), ears (auricles), cheeks, lips); or six or more characteristics of disfigurement. 38 C.F.R. § 4.118. The eight characteristics of disfigurement for the purposes of rating under 38 C.F.R. § 4.118 are: scar of 5 in. or more (13 or more centimeters (cm.)) in length; scar at least 1/4 in. (0.6 cm.) wide at its widest part; surface contour of scar elevated or depressed on palpation; scar adherent to underlying tissue; skin hypo- or hyper-pigmented in an area exceeding 6 sq. in. (39 sq. cm.); skin texture abnormal (irregular, atrophic, shiny, scaly, etc.) in an area exceeding 6 sq. in. (39 sq. cm.); underlying soft tissue missing in an area exceeding 6 sq. in. (39 sq. cm.); and skin indurated and inflexible in an area exceeding 6 sq. in. (39 sq. cm.). Id., Note (1). Burn scar(s) or scar(s) due to other causes, not of the head, face, or neck, that are deep and nonlinear in an area or areas of at least 6 square inches (39 sq. centimeters (cm.)) but less than 12 square inches (77 sq. cm.) will be assigned a 10 percent rating. A scar in an area or areas of at least 12 square inches (77 sq. cm.) but less than 72 square inches (465 sq. cm.) will be assigned a 20 percent rating. A scar in an area or areas of at least 72 square inches (465 sq. cm.) but less than 144 square inches (929 sq. cm.) will be assigned a 30 percent rating. A scar in an area or areas of at least 144 square inches (929 sq. cm.) or greater will be assigned a 40 percent rating. Note (1) indicates that a deep scar is one associated with underlying soft tissue damage. 38 C.F.R. § 4.118, Diagnostic Code 7801. Burn scar(s) or scar(s) due to other causes, not of the head, face, or neck, that are superficial and nonlinear in an area or areas of 144 square inches (929 sq. cm.) or greater will be assigned a 10 percent rating. Note (1) indicates that a superficial scar is one not associated with underlying soft tissue damage. 38 C.F.R. § 4.118, Diagnostic Code 7802. One or two scars that are unstable or painful will be assigned a 10 percent rating. Three or four scars that are unstable or painful will be assigned a 20 percent rating. Five or more scars that are unstable or painful will be assigned a 30 percent rating. Note (1) indicates that an unstable scar is one where, for any reason, there is frequent loss of covering of skin over the scar. Note (2) provides that if one or more scars are both unstable and painful, add 10 percent to the rating that is based on the total number of unstable or painful scars. 38 C.F.R. § 4.118, Diagnostic Code 7804. Under Diagnostic Code 7805, any disabling effects of other scars (including linear scars), and other effects of scars rated under Diagnostic Codes 7800, 7801, 7802, and 7804 not considered in a rating provided under Diagnostic Codes 7800 through 7804 are to be rated under an appropriate diagnostic code. 38 C.F.R. § 4.118. After a review of all the lay and medical evidence of record, the Board finds that, for the entire rating period on appeal from August 7, 2012, the burn scar on the right thigh has not manifested in a burn scar in an area or areas of at least 72 square inches (465 sq. cm.) but less than 144 square inches (929 sq. cm.). Therefore, the criteria for an increased disability rating in excess of 20 percent under Diagnostic Code 7801 for the burn scar on the right thigh have not been met. The Veteran underwent VA examinations in October 2013 and March 2017, the examination reports for which show the burn scar on the right thigh was observed to be a deep, non-linear scar that measured 19 cm. by 14 cm, covering a total area of 266 sq. cm. Because the burn scar on the right thigh has not manifested in a burn scar covering at least 72 square inches, or 465 sq. cm., an increased disability rating in excess of 20 percent under Diagnostic Code 7801 must be denied. 38 C.F.R. § 4.118. As noted above, for the entire initial rating period on appeal from April 7, 2012, the Veteran is in receipt of a separate initial 10 percent rating for the same right thigh scar due to pain under Diagnostic Code 7804. 38 C.F.R. § 4.118. After a review of all the evidence, lay and medical, the Board finds that the weight of the evidence demonstrates that the criteria for a higher initial disability rating in excess of 10 percent under Diagnostic Code 7804 for the painful scar on the right thigh have not been met. The painful facial scar involves only one scar that has been found to be painful, but not unstable; no other scars associated with the service-connected right thigh scar has been found to be painful or unstable. Thus, a higher initial 20 percent rating is not warranted. See October 2013 VA examination report; March 2017 VA examination report. Furthermore, VA and private treatment records throughout the relevant rating period on appeal do not reflect any complaints or treatment for any other painful scars associated with the burn scar on the right thigh. For these reasons, the Board finds that a higher initial disability rating in excess of 10 percent for the painful scar on the right thigh is not warranted. 38 C.F.R. § 4.118, Diagnostic Code 7804. The Board has considered whether an increased (or separate compensable) disability rating may be awarded under any other diagnostic code. As the evidence reflects that the service-connected burn scar on the right thigh and painful scar on the right thigh have not manifested in a burn scar of the head, face, or neck, a higher initial rating cannot be assigned under Diagnostic Codes 7800. Additionally, as the burn scar on the right thigh did not cover an area of 144 sq. in. or more, a separate compensable rating may not be assigned under Diagnostic Code 7802. Although the Veteran testified during the February 2021 Board hearing that the right thigh scar limits his mobility and causes the Veteran to walk with a limp, both the October 2013 and March 2017 VA examiners assessed that the burn scar on the right thigh does not limit function or result in any other additional disabling effects. Furthermore, as discussed above, the Veteran had reported right hip pain and limitation of motion was associated with the now-service-connected right hip disability. Accordingly, neither a higher nor a separate compensable disability rating for the burn scar on the right thigh may be awarded under Diagnostic Code 7805. 38 C.F.R. § 4.118. 11. Rating the burn scar on the right arm 12. Rating the burn scar on the left arm For the entire rating period on appeal from August 7, 2012, the Veteran is in receipt of noncompensable (0 percent) disability ratings for the burn scars on the right and left arms under Diagnostic Code 7802. 38 C.F.R. § 4.118. The Veteran generally contends that increased compensable disability ratings are warranted for the burn scars on the right and left arms. After a review of all the lay and medical evidence of record, the Board finds that, for the entire rating period on appeal from August 7, 2012, the burn scars on the right and left arms have not manifested in superficial and nonlinear scars in an area or areas of 144 square inches (929 sq. cm.) or greater. The Veteran underwent a VA examination in October 2013, the examination report for which reflects the burn scar on the right arm was found to be a superficial non-linear scar measuring 12 cm. by 3.25 cm., covering a total area of approximately 39 sq. cm. The burn scar on the left arm was also found to be a superficial non-linear scar measuring 3 cm. by 3 cm., covering a total area of approximately 7.07 sq. cm. The Veteran underwent another VA examination in March 2017, the examination report for which reflects the burn scar on the right arm was found to have manifested in two scars affecting both the upper and lower right forearm. The scars were found to be superficial and non-linear, measuring 6 cm. by 4 cm. and 3.8 cm. by 2.5 cm., covering a total area of approximately 33.5 sq. cm. The burn scar on the left arm was also found to be a superficial non-linear scar measuring 2 cm. by 1.5 cm., covering a total area of approximately 3 sq. cm. At worst, the burn scar on the right arm was measured to cover approximately 39 sq. cm. and the burn scar on the left arm was measured to cover approximately 7.07 sq. cm., which does not more nearly approximate a scar covering an area or areas of 929 sq. cm. or greater (criteria for 10 percent rating). Based on the foregoing, the Board finds that increased compensable disability ratings for the burn scars on the right and left arm are not warranted. 38 C.F.R. § 4.118, Diagnostic Code 7802. The Board has considered whether increased (or separate compensable) disability ratings may be awarded under any other diagnostic code. As the evidence reflects that the burn scars on the right and left arm have not manifested in a burn scar of the head, face, or neck, an increased rating cannot be assigned under Diagnostic Code 7800. The evidence also demonstrates that the burn scars on the right and left arms have manifested in superficial scars not associated with underlying soft tissue damage, an increased rating cannot be assigned under Diagnostic Code 7801. Additionally, as neither the burn scars on the right or the left arm have been found to be painful or unstable, an increased compensable rating cannot be assigned under Diagnostic Code 7804. Finally, as the burn scars on the right and left arms do not result in any additional disabling effects, neither a higher nor a separate compensable disability rating may be awarded under Diagnostic Code 7805. REASONS FOR REMAND 13. Service connection for right ear hearing loss is remanded. 14. Service connection for left ear hearing loss is remanded. The Board’s instant decision has reopened service connection for right and left hearing loss based on the Veteran’s credible testimony during the February 2021 Board hearing that he first started noticing a decrease in hearing acuity following exposure to various ammunition fire and explosions while participating in combat in Vietnam. The Veteran also credibly testified to experiencing symptoms of right and left ear hearing loss during service and continuously since service separation. This type of acoustic trauma exposure during combat is consistent with the circumstances, conditions, or hardships of the Veteran’s service, notwithstanding the lack of official record of such incurrence. See 38 U.S.C. § 1154(b); 38 C.F.R. § 3.304(d). For this reason, the in-service injury presumption afforded to combat veterans under 38 U.S.C. § 1154(b) and 38 C.F.R. § 3.304(d) is applicable in this case to demonstrate the Veteran sustained acoustic trauma from various ammunition fire and explosions. Although VA treatment records throughout the relevant claims period on appeal reflect the Veteran has been diagnosed with bilateral sensorineural hearing loss, the evidence of record does not confirm whether the Veteran has right and/or left ear hearing loss to the extent recognized as a disability for VA purposes under 38 C.F.R. § 3.385. As such, remand for a new VA examination is needed. 15. Rating the PTSD from March 29, 2017 forward is remanded. For the rating period on appeal from March 29, 2017 forward, the Veteran is in receipt of a 50 percent disability rating for the service-connected PTSD under Diagnostic Code 9411. 38 C.F.R. § 4.130. During the February 2021 Board hearing, the Veteran testified to worsening psychiatric symptoms since undergoing a VA examination in March 2017. Specifically, the Veteran testified to symptoms of worsening depression and memory retention. As such, the Board find that a more current examination is warranted. 16. Service connection for obstructive sleep apnea is remanded. The Veteran generally contends that obstructive sleep apnea (OSA) either had its onset during service, or was caused or worsened by, the service-connected PTSD. The Veteran underwent a VA examination in March 2017, the examination report for which contains the VA examiner’s opinion that it is less likely than not that the Veteran’s current OSA was caused by or worsened beyond its normal progression by the service-connected PTSD. The March 2017 VA examiner only explained that OSA is caused by pharyngeal tissue collapse in the upper airway. The VA examiner did not address whether the service-connected PTSD, or any associated psychiatric symptoms, have either caused or worsened the Veteran’s OSA. Additionally, the VA medical examiner did not address medical literature suggesting a connection between OSA and PTSD, particularly in combat veterans. The Veteran has submitted a sample of such articles for the evidentiary record in February 2021. See Obstructive Sleep Apnea and Posttraumatic Stress Disorder among OEF/OIF/OND Veterans; The Connection Between Sleep Apnea and PTSD. Accordingly, remand for a new VA addendum opinion is needed. 17. Service connection for headaches is remanded. The Veteran asserts that a headache disorder had its onset approximately one month after service separation and has continued since service. During the February 2021 Board hearing, the Veteran also testified to experiencing worsening headache symptoms in conjunction with worsening PTSD symptoms and that his mental health provider had indicated the Veteran’s headache may be connected to the service-connected PTSD. However, the Veteran has not been provided with a VA examination, thus, remand for the Veteran to be afforded a VA examination is necessary. 18. Service connection for stroke residuals is remanded. The Veteran asserts service connection for residuals of a right subcortical infarction (stroke residuals) is warranted as the result of exposure to herbicide agents while serving in the Republic of Vietnam. A review of the record reveals that the Veteran has not been provided with a VA examination, nor has an adequate VA medical opinion been obtained, even though exposure to herbicides during service has been recognized. Accordingly, remand for VA examinations and opinions is needed. 19. TDIU is remanded. In a July 2013 correspondence, the Veteran asserts that he is unable to obtain and maintain employment due to the service-connected PTSD and the claimed stroke residuals. Thus, the issue of entitlement to a TDIU is inextricably intertwined with the adjudication of service connection for the claimed stroke residuals. The matters are REMANDED for the following actions: 1. Schedule the appropriate VA examination in order to assess the Veteran’s right and left ear hearing loss. The VA examiner should provide the following opinions: a) Does the Veteran have current right and left ear hearing loss to the extent recognized (by Hertz testing and Maryland CNC speech recognition testing) as a disability for VA purposes under 38 C.F.R. § 3.385? b) Is it at least as likely as not (i.e. probability of 50 percent or more) that the right and/or left ear hearing loss is etiologically related to exposure to acoustic trauma from ammunition fire and explosions during combat in Vietnam? 2. Schedule the appropriate VA PTSD or mental disorders examination in order to assist in determining the current level of severity and levels of social and occupational impairment caused by the service-connected PTSD. 3. Request that a VA medical professional review the electronic file and provide the VA addendum opinions requested below for the claimed obstructive sleep apnea. If the VA examiner determines that additional examination(s) of the Veteran is necessary to provide reliable opinions as to causation, such examination(s) should be scheduled; however, the Veteran should not be required to report for another examination as a matter of course, if it is not found to be necessary. The VA examiner should provide the following opinions: a) Is it at least as likely as not (i.e. probability of 50 percent or more) that the current OSA is etiologically related to service? b) Is it at least as likely as not (i.e., 50 percent probability or greater) that the current OSA was caused by the service-connected PTSD? c) Is it at least as likely as not (i.e., 50 percent probability or greater) that the current OSA was worsened beyond its natural progression by the service-connected PTSD? In providing the reasons for the above opinion, the VA examiner should address the medical literature submitted by the Veteran in February 2021 indicating a possible connection between OSA and PTSD. 4. Schedule the appropriate VA examination in order to assess the Veteran’s claimed headache disorder. The VA examiner should provide the following opinions: a) Does the Veteran have a currently diagnosed headache disorder? b) Is the current headache disorder, or headache symptoms, etiologically related to service? c) Is it at least as likely as not (i.e., 50 percent probability or greater) that the current headache disorder or headache symptoms was/were caused by the service-connected PTSD? d) Is it at least as likely as not (i.e., 50 percent probability or greater) that the current headache disorder or headache symptoms was/were worsened beyond its natural progression by the service-connected PTSD? 5. Schedule the appropriate VA examination in order to assess the Veteran’s current residuals of a right subcortical infarction (stroke residuals). The VA examiner should provide the following opinions: Is it at least as likely as not (i.e. probability of 50 percent or more) that the current stroke residuals are etiologically related to service, including to the in-service exposure to herbicides (Agent Orange)? In providing the reasons for the above opinion, the VA examiner should presume the Veteran was exposed to herbicide agents during service. The VA examiner should not use as a reason for the opinion that a right subcortical infarction and/or stroke are not on VA’s herbicide presumptive service connection list (38 C.F.R. § 3.309(e)). J. PARKER Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board E. Choi, 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.