Citation Nr: 21020691 Decision Date: 04/07/21 Archive Date: 04/07/21 DOCKET NO. 16-53 308 DATE: April 7, 2021 ORDER 1. The application to reopen the claim for service connection for a left elbow disability is denied. 2. The application to reopen the claim for service connection for diabetes mellitus is denied. 3. The application to reopen the claim for service connection for hypertension is denied. 4. Entitlement to service connection for memory loss associated with major depressive disorder is denied. 5. Entitlement to a rating in excess of 10 percent prior to October 18, 2018 for peripheral vestibular disability is denied. 6. Entitlement to a compensable rating for a left knee scar is denied. 7. Entitlement to a compensable rating for bilateral hearing loss disability is denied. REMANDED 8. Entitlement to service connection for lumbar disc herniation status post-laminectomy (lumbar spine disability), to include as secondary to status post left total knee replacement residuals (left knee disability), is remanded. 9. Entitlement to service connection for right knee tendonitis and patellofemoral pain syndrome (right knee disability), to include as secondary to the left knee disability, is remanded. 10. Entitlement to a compensable rating for right elbow sprain, impairment of supination and/or pronation, is remanded. 11. Entitlement to a rating in excess of 10 percent for a right elbow sprain is remanded. FINDINGS OF FACT 1. In the July 2014 rating decision, the claim for service connection for a left elbow disability was denied based on a finding that the Veteran did not have a diagnosis of a left elbow disability. 2. Evidence submitted since the July 2014 rating decision does not relate to an unestablished fact necessary to substantiate the claim for service connection for a left elbow disability. 3. In the October 2014 rating decision, the claim for service connection for diabetes mellitus was denied based on a finding that the diabetes mellitus did not have an onset in service or within one year of service discharge. 4. Evidence submitted since the October 2014 rating decision does not relate to an unestablished fact necessary to substantiate the claim for service connection for diabetes mellitus. 5. In the October 2014 rating decision, the claim for service connection for hypertension was denied based on a finding that hypertension did not have an onset in service or within one year of service discharge. 6. Evidence submitted since the October 2014 rating decision does not relate to an unestablished fact necessary to substantiate the claim for service connection for a hypertension. 7. Memory loss is a symptom that is currently rated as part of the service-connected major depressive disorder and is not a separately-diagnosed disability. 8. The preponderance of the evidence is against finding that peripheral vestibular disability manifested with dizziness and occasional staggering prior to October 18, 2018. 9. The service-connected scars, including the left knee scar, do not cover an area of at least 144 square inches. 10. The preponderance of the evidence is against a finding that the Veteran’s bilateral hearing loss disability rises to a compensable degree based on the rating criteria. CONCLUSIONS OF LAW 1. The July 2014 rating decision denying service connection for a left elbow disability is final. New and material evidence has not been received to reopen the claim. 38 U.S.C. §§ 5108, 7105 (2012); 38 C.F.R. §§ 3.156(a), 20.1103 (2020). 2. The October 2014 rating decision denying service connection for diabetes mellitus is final. New and material evidence has not been received to reopen the claim. 38 U.S.C. §§ 5108, 7105 (2012); 38 C.F.R. §§ 3.156(a), 20.1103 (2020). 3. The October 2014 rating decision denying service connection for hypertension is final. New and material evidence has not been received to reopen the claim. 38 U.S.C. §§ 5108, 7105 (2012); 38 C.F.R. §§ 3.156(a), 20.1103 (2020). 4. The criteria for entitlement to service connection for memory loss associated with major depressive disorder have not been met. 38 U.S.C. §§ 1110, 1131, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303 (2020). 5. The criteria for entitlement to a rating in excess of 10 percent prior to October 18, 2018 for peripheral vestibular disability have not been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 4.1, 4.3, 4.87, Diagnostic Code 6204 (2020). 6. The criteria for entitlement to a compensable rating for a left knee scar have not been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 4.1, 4.3, 4.118, Diagnostic Code 7802 (2020). 7. The criteria for entitlement to a compensable rating for bilateral hearing loss disability have not been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.85, 4.86, Diagnostic Code 6100 (2020). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from January 1984 to June 1984 and from November 2004 to January 2006 with various periods of ACDUTRA and INACDUTRA between the periods of active duty and until 2015. Additional VA treatment record have been associated with the claims file since the most recent statement of the case (SOC) was issued and the claims being transferred to the Board. In a June 2020 statement, the Veteran, through his representative, waived AOJ review of these records, and thus, the Board will proceed with review. As to the claims for service connection for a lumbar spine disability and a right knee disability, these issues were previously denied in a July 2014 rating decision. Applicable regulations provide that, at any time after VA issues a decision on a claim, if VA receives or associates with the claims file relevant service department records that existed and had not been associated with the claims file when VA first decided the claim, VA will reconsider the claim. 38 C.F.R. § 3.156(c). Therefore, new and material evidence is not needed to reopen a previously denied claim when relevant service department records are received after a prior final denial. Rather, the claim is simply reviewed on a de novo basis. In this case, relevant service department records have been received subsequent to the July 2014 rating decision. These records include service treatment records (STRs) pertinent to the claims for service connection for a lumbar spine disability and right knee disability. Therefore, 38 C.F.R. § 3.156(c) applies, and these particular claims will be reconsidered on the merits, without addressing any threshold issue of whether new and material evidence has been received to reopen the claim. However, as to the issues for service connection for a left elbow disability, diabetes mellitus, and hypertension the newly-associated service department records do not show that the Veteran incurred an injury, or aggravated an injury related to these claims in the line of duty during his periods of INACDUTRA or ACDUTRA, nor do the new records relate to these issues. Therefore, these newly-associated service department records are not relevant to the issues before the Board, and the Board may not reconsider the appellant’s claims pursuant to 38 C.F.R. § 3.156(c). New and Material Evidence Prior unappealed decisions of the RO are final. 38 U.S.C. § 7105(c); 38 C.F.R. § 20.1103. The Board does not have jurisdiction to consider a claim that has become final before it determines that new and material evidence has been presented, irrespective of what the regional office may have determined with respect to new and material evidence. Barnett v. Brown, 83 F.3d 1380, 1383 (Fed. Cir. 1996). If, however, new and material evidence is presented or secured with respect to a claim which has been disallowed, VA shall reopen the claim and review the former disposition of the claim. Manio v. Derwinski, 1 Vet. App. 145 (1991). New evidence means existing evidence not previously submitted to agency decision makers. 38 C.F.R. § 3.156(a). Material evidence means existing evidence that, by itself or considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. 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. New and material evidence need not be received as to each previously unproven element of a claim in order to justify reopening thereof; the threshold for determining whether new and material evidence raises a reasonable possibility of substantiating a claim is “low.” Shade v. Shinseki, 24 Vet. App. 110, 117–20 (2010). 1. Whether new and material evidence has been received to reopen the claim for service connection for a left elbow disability The claim for service connection for a left elbow disability was previously considered and denied by the RO in a July 2014 rating decision because VA found the Veteran did not have a diagnosis of a left elbow disability. At the time of the July 2014 rating decision, the relevant evidence consisted of service treatment records (STRs), VA treatment records, and the Veteran’s application for VA compensation benefits. The Veteran was notified of that decision and of his appellate rights. The Veteran did not appeal the decision and did not submit new and material evidence within one year of the July 2014 rating decision, and it became final. 38 U.S.C. § 7105; 38 C.F.R. § 20.1103. In January 2015, the Veteran filed an application to reopen the claim for a left elbow disability. Relevant evidence added to the file consists of VA treatment records, VA examinations, private medical records, and the application to reopen the claim. A January 2017 rating decision continued to deny the claim. Since the July 2014 rating decision, the evidence continues to document that the Veteran does not have a left elbow disability. At VA examinations conducted in November 2015 and October 2018, the Veteran was not documented to have a diagnosis related to the left elbow and range of motion testing in the left elbow was normal. Additionally, these examinations noted that muscle strength testing was normal, and there was no documented muscle atrophy. The November 2015 VA examiner documented that the Veteran did not have pain in the left elbow. Accordingly, the Board finds that new and material evidence has not been received to reopen the claim for service connection for a left elbow disability as the evidence continues to show that the Veteran does not have a diagnosis of a left elbow disability nor does the evidence suggest that the left elbow has functional impairment resulting in a loss of earning capacity. Therefore, the application to reopen the previously-denied claim is denied. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. 2. Whether new and material evidence has been received to reopen the claim for service connection for diabetes mellitus The claim for service connection for diabetes mellitus was previously considered and denied by the RO in an October 2014 rating decision because VA found there was no onset of diabetes mellitus in service or within one year of service discharge. At the time of the October 2014 rating decision, the relevant evidence consisted of STRs, VA treatment records, a VA examination, and the Veteran’s application for VA compensation benefits. The Veteran was notified of that decision and of his appellate rights. The Veteran did not appeal the decision and did not submit new and material evidence within one year of the October 2014 rating decision, and it became final. 38 U.S.C. § 7105; 38 C.F.R. § 20.1103. In July 2015, the Veteran filed an application to reopen the claim for diabetes mellitus. Relevant evidence added to the file consists of VA treatment records and the application to reopen the claim. A January 2016 rating decision denied the claim to reopen, finding that there was no new and material evidence. Since the March 2012 rating decision, the record continues to document a diagnosis of diabetes mellitus. However, this evidence is not new, as the claims file documented an onset of diabetes mellitus in approximately 2011 at the time of the previous denial. Accordingly, the Board finds that new and material evidence has not been received to reopen the claim for service connection for diabetes mellitus. Therefore, the application to reopen the previously-denied claim is denied. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. 3. Whether new and material evidence has been received to reopen the claim for service connection for hypertension The claim for service connection for hypertension was previously considered and denied by the RO in an October 2014 rating decision because VA found hypertension did not have an onset in service or within one year of discharge. At the time of the October 2014 rating decision, the relevant evidence consisted of STRs, VA treatment records, a VA examination, and the Veteran’s application for VA compensation benefits. The Veteran was notified of that decision and of his appellate rights. The Veteran did not appeal the decision and did not submit new and material evidence within one year of the October 2014 rating decision, and it became final. 38 U.S.C. § 7105; 38 C.F.R. § 20.1103. In July 2015, the Veteran filed an application to reopen the claim for hypertension. Relevant evidence added to the file consists of VA treatment records and the application to reopen the claim. A January 2016 rating decision denied the claim to reopen, finding that there was no new and material evidence. Since the October 2014 rating decision, VA treatment records continue to document a diagnosis of hypertension. However, this evidence is not new, as the Veteran had diagnosed hypertension at the time of the previous denial. Accordingly, the Board finds that new and material evidence has not been received to reopen the claim for service connection for hypertension. Therefore, the application to reopen the previously-denied claim is denied. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. Service Connection Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by service. See 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). To establish a right to compensation for a present disability, a veteran must show: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service. 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). 4. Entitlement to service connection for memory loss associated with service-connected major depressive disorder The Veteran believes that he has a separate disability of memory loss that is secondary to the service-connected major depressive disorder. The Board has carefully reviewed the evidence of record and finds that the preponderance of the evidence is against the claim for service connection for memory loss. The reasons follow. The claims file documents that the Veteran has symptoms of memory loss. However, the Veteran is currently service connected for major depressive disorder. In the September 2015 VA examination, mild memory loss is documented as a symptom of major depressive disorder and was considered in assigning the ratings for major depressive disorder. Furthermore, memory loss is not a diagnosis. The September 2015 VA examiner noted that memory loss is not a distinct mental disorder or condition, but rather noted that memory loss is a symptom that may occur in the clinical picture of depression or other mental disorders. Pyramiding, that is, the evaluation of the same disability, or the same manifestation of a disability, under different diagnostic codes, is to be avoided. 38 C.F.R. § 4.14 (2017). To grant service connection for memory loss would constitute pyramiding. In reaching the above conclusion, the Board has considered the applicability of the benefit-of-the-doubt doctrine. However, that doctrine is not applicable where, as here, there is not an approximate balance of positive and negative evidence. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. Thus, the claim for service connection for a memory loss is denied. Increased Ratings Disability evaluations are determined by the application of the facts presented to VA’s Schedule for Rating Disabilities (Rating Schedule) at 38 C.F.R. Part 4. The percentage ratings contained in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and the residual conditions in civilian occupations. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Where there is a question as to which of two evaluations shall be applied, the higher rating will be assigned if the disability picture more nearly approximates the criteria required for that evaluation. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. Reasonable doubt as to the degree of the disability will be resolved in the veteran’s favor. 38 C.F.R. § 4.3. The U.S. Court of Appeals for Veterans Claims has held that, in determining the present level of a disability for an increased evaluation claim, the Board must consider the application of staged ratings. See Hart v. Mansfield, 21 Vet. App. 505 (2007). In other words, where the evidence contains factual findings that demonstrate distinct time periods in which the service-connected disability exhibited diverse symptoms meeting the criteria for different ratings during the course of the appeal, the assignment of staged ratings would be necessary. 5. Entitlement to a rating in excess of 10 percent prior to October 18, 2018 for a peripheral vestibular disability The Veteran is currently in receipt of a 10 percent rating for a peripheral vestibular disability prior to October 18, 2018 and 30 percent thereafter under Diagnostic Code 6204. An October 2018 rating decision granted a 30 percent rating from October 18, 2018, and as this is the highest available rating for this disability, this was noted to be a full grant of the benefit sought. Thus, the Board will address whether a rating in excess of 10 percent is warranted prior to October 18, 2018. After a thorough review of the record, the Board finds a rating in excess of 10 percent is denied. The reasons follow. Diagnostic Code 6204 contemplates the rating criteria for peripheral vestibular disorder. A 10 percent rating is warranted for manifestation of occasional dizziness, and a maximum 30 percent rating is warranted when there is dizziness and occasional staggering. 38 C.F.R. § 4.87, Diagnostic Code 6204. A note provides that objective findings supporting the diagnosis of vestibular disequilibrium are required before a compensable evaluation can be assigned under this code. Hearing impairment or suppuration shall be separately rated and combined. Id. The Veteran was provided a VA examination to assess the nature of his peripheral vestibular disorder in September 2015. The examiner documented that the Veteran had vertigo more than once per week for less than one hour at a time. There were no signs of chronic ear infections, inflammation, or cholesteatoma, and there were no impairments of the function of the ear. It was documented that the Veteran had unsteadiness, and the Hallpike Test for vertigo was abnormal, as the Veteran had nystagmus during the test. The examiner noted that the vertiginous episodes are not incapacitating. The Romberg test was also abnormal and positive for unsteadiness. However, on the portion of the examination noting vestibular conditions, the examiner noted that the Veteran had tinnitus and vertigo without documenting that the Veteran had staggering associated with his disability, and the Veteran did not report staggering. At the October 2018 VA examination, the Veteran reported staggering, which is what resulted in the increase to a 30 percent rating. While the Veteran has some documented unsteadiness at the time of the 2015 examination, the symptoms do not rise to the level required for a 30 percent rating, as neither the Veteran nor the examiner documented staggering, which is required for a 30 percent rating. Thus, a rating in excess of 10 percent for a peripheral vestibular disorder is denied prior to October 18, 2018. 6. Entitlement to a compensable rating for a left knee scar The Veteran is currently in receipt of a noncompensable rating for his scars under Diagnostic Code 7802, which includes the left knee scar. VA rating criteria rates scars as the number of scars with various symptoms or the surface area covered by the entirety of the scars. Thus, in assessing whether the left knee scar warrants a compensable rating, the Board will assess all of the service-connected scars, which includes the service-connected mid-back scar as well as the left knee scar. After a thorough review of the record, the Board finds a compensable rating is not warranted. The reasons follow. A VA examination in May 2015 documented that the Veteran had a scar on his left knee that was 16.5 cm x 0.5 cm. The scar was documented to be not painful or unstable. Another VA examination of the left knee scar in September 2015 documented the same measurements for the left knee scar and noted that the scar had no impact on the ability of the Veteran to work. A VA examination in August 2017 documented a left knee scar that was not deep or nonlinear. It was documented to be not painful or unstable, nor was there a frequent loss of covering of the skin. The scar was measured as 17 cm x 0.5 cm and did not impact the Veteran’s ability to function. At an October 2018 VA examination, the Veteran reported that the scar now itched, though it was still measured as 17 cm x 0.5 cm. The trunk scar, which is also service-connected and noted to be from a cyst on the mid-back, was measured to be 2.5 cm x 0.5 cm. A final VA examination was conducted in April 2020. This examination of the scars is the most complete, noting a scar on the mid back, measuring 2.5 cm x .3 cm with an approximately total area of .76 cm2, and a left knee scar, measuring 15.2 cm x .6 cm with an approximate total area of 9.12 cm2. The examiner noted that the scars have generally stayed the same over time, and though they will itch for a few minutes once or twice a month and the Veteran uses a topical cream to help with the symptoms of itching, neither scars were painful, unstable, or caused underlying tissue damage. Additionally, it was documented that neither scar resulted in frequent loss of covering of the skin over the scar. Initially, the Board notes that preponderance of the evidence is against finding that the scars are unstable or painful, nor are they associated with underlying soft tissue damage. Thus, Diagnostic Codes 7801 and 7804 do not apply. Under Diagnostic Code 7802, a 10 percent rating is warranted for scars that are not associated with underlying soft tissue damage in an area or areas of 144 square inches (929 square centimeters) or greater. 38 C.F.R. § 4.118, Diagnostic Code 7802. As noted above, the two scars, even when considering the largest noted measurement, do not cover an area of at least 144 square inches, combined. Thus, a compensable rating is denied. 7. Entitlement to a compensable rating for bilateral hearing loss disability The Veteran is currently in receipt of a noncompensable rating for the bilateral hearing loss disability. After a thorough review of the record, the Board finds a compensable rating is denied. The reasons follow. Ratings of hearing loss range from noncompensable to 100 percent based on organic impairment of hearing acuity as measured by the results of speech discrimination tests combined with the average hearing threshold levels as measured by pure tone audiometry tests in the frequencies 1000, 2000, 3000, and 4000 cycles per second. To rate the degree of disability for service-connected hearing loss, the Rating Schedule has established eleven auditory acuity levels, designated from level I, for essentially normal acuity, through level XI, for profound deafness. 38 C.F.R. § 4.85(h), Table VI. In order to establish entitlement to a compensable rating for hearing loss, it must be shown that certain minimum levels of the combination of the percentage of speech discrimination loss and average pure tone decibel loss are met. The assignment of disability ratings for hearing impairment is derived by a mechanical application of the Rating Schedule to the numeric designations assigned after audiometric evaluations are rendered. Lendenmann v. Principi, 3 Vet. App. 345, 349 (1992). The criteria for rating hearing impairment use controlled speech discrimination tests (Maryland CNC) together with the results of pure tone audiometry tests. These results are then charted on Table VI, Table VIA, in exceptional cases as described in 38 C.F.R. § 4.86, and Table VII, as set out in the Rating Schedule. 38 C.F.R. § 4.85. An exceptional pattern of hearing loss occurs when the pure tone threshold at 1000, 2000, 3000, and 4000 Hertz is 55 decibels or more, or when the pure tone threshold is 30 decibels or less at 1000 Hertz and 70 decibels or more at 2000 Hertz. 38 C.F.R. § 4.86 Audiological testing was completed in May 2015; the pure tone thresholds for the ears were as follows: HERTZ 1000 Hz 2000 Hz 3000 Hz 4000 Hz RIGHT 15 15 25 40 LEFT 20 15 15 20 The average over the four relevant frequencies (1000 Hz to 4000 Hz) for the right ear was 24 decibels. The average of the four relevant frequencies in the left ear was 18 decibels. Speech recognition scores were documented as 100 percent in both years. Based on these results, the Veteran does not have exceptional hearing loss in his left ear per the guidelines of 38 C.F.R. § 4.86. Application of 38 C.F.R. § 4.85, Table VI to the May 2015 measurements results in assignment of Roman Numeral I to both the left and right ears. This results in a noncompensable rating by intersecting row I with column I of Table VII. 38 C.F.R. § 4.85, Table VII. Additional testing was completed in regard to hearing loss at an October 2018 VA examination. The pure tone thresholds for the ears were as follows: HERTZ 1000 Hz 2000 Hz 3000 Hz 4000 Hz RIGHT 20 15 30 45 LEFT 20 20 20 15 The average of the four relevant frequencies in the left ear was 19 decibels. The average of the four relevant frequencies in the right ear was 28 decibels. Speech recognition scores were documented as 94 percent in both ears. Based on these results, the Veteran, again, does not have exceptional hearing in either ear per the guidelines of 38 C.F.R. § 4.86. Application of 38 C.F.R. § 4.85, Table VI to the October 2018 measurements results in assignment of Roman Numeral I to both the left and right ears. This results in a noncompensable rating by intersecting row I with column I of Table VII. 38 C.F.R. § 4.85, Table VII. Audiological testing was again conducted in a final VA examination in March 2020. The pure tone thresholds for the ears were as follows: HERTZ 1000 Hz 2000 Hz 3000 Hz 4000 Hz RIGHT 20 15 40 45 LEFT 25 25 30 20 The average of the four relevant frequencies in the left ear was 25 decibels. The average of the four relevant frequencies in the right ear was 30 decibels. Speech recognition scores were 94 percent in both ears. Based on these results, the Veteran, again, does not have exceptional hearing in either ear per the guidelines of 38 C.F.R. § 4.86. Application of 38 C.F.R. § 4.85, Table VI to the March 2020 measurements results in assignment of Roman Numeral I to both the left and right ears. This results in a noncompensable rating by intersecting row I with column I of Table VII. 38 C.F.R. § 4.85, Table VII. The Veteran has alleged a worsening of his hearing loss disability. However, disability ratings for hearing impairment are derived by a mechanical application of the rating schedule to the numeric designations assigned after audiometric ratings are rendered. Lendenmann, 3 Vet. App. 345. Thus, based on the audiometric findings throughout the appeal period, a compensable rating for a bilateral hearing loss disability is not warranted. The Veteran had no other VA examinations and there are no other reports of audiological testing in the claims file. As a result, the requirements for a compensable rating for a bilateral hearing loss disability have not been met, and a compensable rating for bilateral hearing loss disability is denied. REASONS FOR REMAND 8. Entitlement to service connection for a lumbar spine disability, to include as secondary to the left knee disability The evidence shows the Veteran has a diagnosis of a lumbar spine disability, specifically IVDS, degenerative arthritis, and lumbar disc disease. It is unclear from the record whether the lumbar spine disability was caused or aggravated during a period of active service. A July 2009 Periodic Health Assessment noted that the Veteran had surgery for the lumbar spine in 1993, which is between the January 1984 to June 1984 and November 2004 to January 2006 periods of active service. VA records from June 2002, between periods of active service, document that the Veteran was reporting pain in the lower back, but no diagnosis was provided. An entrance examination was not conducted prior to the November 2004 active duty deployment, but a November 2004 Pre-Deployment Health Assessment did not document reports of recurrent back pain. In October 2005, during the active duty deployment, the Veteran reported experiencing pain in his spine. In December 2008 and June 2009 Reports of Medical History, conducted during Army Reserve service, the Veteran continued to report recurrent back pain. A May 2012 Periodic Health Assessment documented the 1993 surgery, and the Veteran reported that he had continued tot experience pain in the lumbar spine from the time of that surgery. In May 2012, the Veteran was placed on a profile for lumbar spine pain that was noted to be a result of pain following the 1993 surgery to repair the herniated disc. In August 2012, during a period of active duty for training, the Veteran slipped on a drain cover injuring his left knee and right elbow. The Veteran was later granted service connection for the left knee and right elbow based on this injury, and STRs related to that injury document that the Veteran reported that he also injured his lumbar spine in the slip and fall. January 2013 VA treatment records document the Veteran reported having lower back pain prior to his deployment and prior to the 2004 to 2006 active duty period. However, he reported that his symptoms were aggravated during that deployment due to prolonged sitting and standing, as well as heavy lifting. The Veteran also reported that his lumbar spine disability was aggravated again during the August 2012 fall during a period of active duty for training. The record does not contain an examination prior to the November 2004 to January 2006 period of active duty to establish the health of the Veteran’s spine prior to that period of active duty. However, it is unclear from the record whether the Veteran was not examined or whether the examination was conducted but is missing or is lost. Thus, the Board will presume the Veteran was sound as to his lumbar spine at the time of the period of active duty beginning in November 2004. As to the August 2012 period of active duty for training, generally, the presumption of soundness does not apply because examinations are often not performed prior to a period of active duty for training. However, as the Veteran was service connected for a left knee disability and a right elbow disability based on an injury that took place during that period of active duty for training, the presumption of aggravation for other preexisting disabilities is available for other disabilities aggravated during that period of active duty. In April 2016, a private examiner opined that the August 2012 injury likely aggravated the pre-existing chronic low back disability. However, the examiner did not provide a rationale to support this opinion. Thus, that opinion is not adequate to establish service connection. The November 2015 VA examiner competently opined that the current lumbar spine disability dates back to 1993, prior to the second period of active duty, as well as the August 2012 injury. The examiner opined that the pre-existing lumbar spine disability followed the natural progression of the condition and was not aggravated by active military service. However, given that the Veteran is presumed sound as to the 2004 to 2006 period of active service, the standard is whether the condition was clearly and unmistakably not aggravated during service. As the examiner did not apply the correct standard in the opinion, it is unclear whether or not it was clear and unmistakable that the reported pain during the November 2004 to January 2006 deployment was within the natural progression of the disability or whether the examiner opined that it was just as least as likely as not that the pain during the deployment was a natural progression of the disability. Furthermore, the November 2015 examiner did not assess whether the presumption of aggravation applied given that the Veteran was not presumed sound at the time of the August 2012 injury, but the Veteran, in reporting that he had increased pain related to his lumbar spine at the time of his August 2012 fall, has met the initial burden to establish an in-service increase in the severity of the disability. Thus, the presumption of aggravation attaches. Again, the examiner did not address whether or not the evidence is clear and unmistakable that the worsening related to the August 2012 injury was due to the natural progress of the lumbar spine disability. Finally, the Veteran has asserted that his lumbar spine disability is caused or aggravated by the service-connected left knee disability. The examiner did not provide an opinion as to whether it is at least as likely as not that the service-connected left knee disability caused or aggravated the lumbar spine disability. 9. Entitlement to service connection for a right knee disability, to include as secondary to the left knee disability The Veteran asserts that his right knee disability is caused or aggravated by the service-connected left knee disability. The Veteran was provided a VA examination in September 2015 to assess the nature and etiology of the right knee disability. The examiner opined that the right knee disability is less likely than not secondary to the left knee disability, as the right knee disability had an onset prior to the left knee surgery in June 2014. However, a review of the record shows the left knee injury had an onset prior to the right knee surgery and was found to be service connected in March 2013 based on an August 2012 injury. The Board finds this opinion is inadequate, and an addendum opinion based on the actual factual record necessary. 10. – 11. Entitlement to a compensable rating for right elbow sprain and right elbow sprain, impairment of supination and/or pronation The Veteran was last provided a VA examination to address the current nature of his right elbow disability in October 2018, approximately three years ago. VA treatment records from July 2019 document that the Veteran reported that his right elbow pain had gotten worse in approximately March 2019, after his most recent VA examination. Additionally, VA occupational therapy records document that he reported his symptoms had also worsened in approximately December 2019. As the Veteran has asserted that his symptoms have gotten worse since his most recent VA examination, the Board finds that a new VA examination is necessary to assess the current nature of the right elbow disability. The matters are REMANDED for the following action: 1. Obtain an addendum opinion from an appropriate clinician for the lumbar spine disability. If the clinician finds that an in-person examination is warranted, an examination should be scheduled. To assist in a review of the claims file, the examiner is informed of the following facts with citations in the record, when applicable: • The Veteran served on active duty from January 1984 to June 1984 and from November 2004 to January 2006. He also had periods of active duty for training, including a period in August 2012. • The Veteran underwent a laminectomy on his lumbar spine in 1993 for a herniated nucleus pulposus involving L3-L4 and L4-L5, which surgery is between the two periods of active duty. There are no medical records pertaining to this surgery. See VBMS entry with document type, “Disability Benefits Questionnaire (DBQ) – Veteran Provided,” receipt date 08/17/2016, pp. 16-26. • A September 2005 treatment record from the Veteran’s second period of active duty shows that the Veteran complained of a two-day history of low back pain with radiation into the right leg. The examiner noted the Veteran’s prior back surgery and recurrent episodes of recurrent back pain. The examiner wrote the previous episodes of back pain had the same characteristics as this episode. The Veteran denied bowel or bladder incontinence. See VBMS entry with document type, “Medical Treatment Records – Furnished by SSA,” receipt date 07/28/2017, with “SSA files 2” in the subject field, p. 91. • On August 10, 2012, the Veteran was on a period of active duty for training, when he slipped on a loose water drain cover and injured his left knee, right elbow, and lower back. See VBMS entry with document type, “STR – Medical” with “#4” in the subject field, receipt date on 01/06/2015, pp. 4–5 • An August 10, 2012, x-ray of the lumbar spine shows mild degenerative disease at L2-L3, anterior osteophytosis at L5-S1 and minimal degree of lumbar dextroscoliosis. See VBMS entry with document type, “Medical Treatment Record – Non-Government Facility,” receipt date 10/11/2013, p. 2. • In the April 2016 Disability Benefits Questionnaire, the examiner wrote that it was his clinical opinion that the August 2012 fall may have “probably aggravated his pre-existing chronic low back condition.” See VBMS entry with document type, “Disability Benefits Questionnaire (DBQ) – Veteran Provided,” receipt date 08/17/2016, p. 25. • The Veteran is service connected for a left knee disability, which includes a total left knee replacement. • The examiner's review of the record is NOT restricted to the evidence listed above. This list is provided in an effort to assist the examiner in locating potentially relevant evidence. The examiner is asked to provide the following opinions: (a) As the Veteran is presumed sound upon entrance to his November 2004 to January 2006 period of active service, the examiner asked to opine as to whether a diagnosed lumbar spine disability clearly and unmistakably (undebatable) preexisted the November 2004 to January 2006 period of active service? (b) If the examiner finds a lumbar spine disability clearly and unmistakably preexisted the November 2004 to January 2006 period of active service, was the lumbar spine disability clearly and unmistakably not aggravated by the November 2004 to January 2006 period of active service? In providing this opinion, the examiner should specifically comment on the September 2005 record described above that documents in-service low back pain (which was documented during the Veteran’s period of service from November 2004 to January 2006). (c) If the answer to (b) is negative, did the lumbar spine disability, which existed prior to the August 2012 period of active duty for training, at least as likely as not increase in severity during service? The examiner must specifically comment on the August 2012 STR, which documents that the Veteran slipped on a drain cover and injured his lumbar spine during this period of active duty for training in providing this opinion described above. (d) If the answer to (c) is positive, is the increase in severity from the August 2012 fall clearly and unmistakably (undebatable) due to the natural progress of the disease? (e) If the answers to (a) through (d) are negative, is the lumbar spine disability at least as likely as not (50 percent probability or greater) caused by the service-connected left knee disability? (f) If the answer to (e) is negative, is it at least as likely as not (50 percent probability or greater) that the lumbar spine disability is aggravated by the left knee disability? Aggravation is different from causation in that it did not cause the disability but that it aggravated the disability. (g) If the examiner finds that the left knee disability aggravates the lumbar spine disability, the examiner is asked to state whether there is medical evidence created prior to the aggravation or at any time between the time of aggravation and the current level of disability that shows a baseline for the lumbar spine disability prior to aggravation. If the examiner is unable to establish a baseline for the lumbar spine disability prior to the aggravation, he or she should state such and explain why a baseline cannot be determined. The examiner is asked to provide a rationale for each opinion given, including providing the medical principles and evidence relied upon for each opinion. If the examiner is unable to provide an opinion without resorting to speculation, he or she should explain why this is so and what, if any, additional evidence would be necessary before an opinion could be rendered. 2. Obtain an addendum opinion from an appropriate clinician regarding the claim for service connection for a right knee disability. If the clinician finds that an in-person examination is warranted, an examination should be scheduled. The examiner is asked to opine: (a) Is the right knee disability at least as likely as not (50 percent probability or greater) caused by the service-connected left knee disability? (b) If the answer to (a) is negative, is it at least as likely as not (50 percent probability or greater) that the right knee disability is aggravated by the service-connected left knee disability? Aggravation is different from causation in that it did not cause the disability but that it aggravated the disability. (d) If the examiner finds that the left knee disability aggravates the right knee disability, the examiner is asked to state whether there is medical evidence created prior to the aggravation or at any time between the time of aggravation and the current level of disability that shows a baseline for the right knee disability prior to aggravation. If the examiner is unable to establish a baseline for the right knee disability prior to the aggravation, he or she should state such and explain why a baseline cannot be determined. The examiner is asked to provide a rationale for each opinion given, including providing the medical principles and evidence relied upon for each opinion. If the examiner is unable to provide an opinion without resorting to speculation, he or she should explain why this is so and what, if any, additional evidence would be necessary before an opinion could be rendered. 3. Schedule the Veteran for an examination to determine the current severity of the service-connected right elbow disability. A. P. SIMPSON Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board A. Keninger, 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.