Citation Nr: 21021699 Decision Date: 04/13/21 Archive Date: 04/13/21 DOCKET NO. 14-09 092 DATE: April 13, 2021 ORDER Entitlement to an initial rating of 70 percent for a service-connected acquired psychiatric disability, but not greater, is granted. Entitlement to an initial compensable rating prior to August 4, 2020, and in excess of 10 percent thereafter for bilateral hearing loss is denied. REMANDED Entitlement to service connection for a right knee disability is remanded. FINDINGS OF FACT 1. The appellant’s acquired psychiatric disability, to include posttraumatic stress disorder (PTSD), has at least as likely as not manifested with symptoms causing occupational and social impairment with deficiencies in most areas during the entire period on appeal. The appellant’s acquired psychiatric disability has not at least as likely as not manifested with symptoms causing total occupational and social impairment during the period on appeal. 2. The appellant’s bilateral hearing has been manifested by hearing acuity of no worse than Level II in the right ear and no worse than Level II in the left ear prior to August 8, 2020, and no worse than Level III in the right ear and no worse than Level IV in the left ear since August 8, 2020. CONCLUSIONS OF LAW 1. The criteria for entitlement to an initial rating of 70 percent for a service-connected acquired psychiatric disorder, but not greater, are met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.126, 4.130, Diagnostic Code 9411. 2. The criteria for entitlement to an initial compensable rating prior to August 4, 2020, and in excess of 10 percent thereafter for bilateral hearing loss are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.85, 4.86, Diagnostic Code 6100. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The appellant served on active duty in the United States Army from July 1966 to July 1968. The case comes before the Board of Veterans’ Appeals (Board) on appeal from a June 2011 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) which, in pertinent part, granted service connection for depression, assigning a 30 percent rating effective June 30, 2010, granted service connection for bilateral hearing loss, granting a noncompensable rating effective December 17, 2009, and denied service connection for a right knee disability. This decision was appealed in a notice of disagreement (NOD) received by VA in June 2011. A Statement of the Case (SOC) was issued by VA in January 2014. VA received the appellant’s Substantive Appeal (Form 9) in February 2014, perfecting the appeal and requesting a hearing before the Board. The appellant appeared before a Veterans Law Judge at a hearing in April 2017. A transcript of that hearing is of record. The appellant’s claims were subsequently remanded by the Board in a July 2018 decision for further development. In a September 2020 rating decision, higher ratings were granted for the appellant’s service-connected acquired psychiatric disability and for his service-connected bilateral hearing loss. However, the issues remain in appellate status as described above, as the RO did not assign the maximum schedular rating from the award of service connection. See AB v. Brown, 6 Vet. App. 35, 38 (1993). A Supplemental Statement of the Case (SSOC) was issued by VA in September 2020. In a February 2021 letter, the Board advised the appellant that the Veterans Law Judge before whom he had testified in April 2017 was no longer employed by the Board. He was therefore offered the opportunity to appear at a new hearing but did not respond. In accordance with the terms of the letter, the Board will proceed with consideration of the appeal. Increased Rating Disability evaluations are determined by the application of a schedule of ratings, which is based on the veteran’s average impairment of earning capacity. 38 U.S.C. § 1155; 38 C.F.R. § Part 4. Separate diagnostic codes identify the various disabilities. The basis of disability evaluations is the ability of the body to function under the ordinary conditions of daily life, including employment. Evaluations are based upon lack of usefulness of the part or system affected, especially in self-support. 38 C.F.R. § 4.10. Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. Any reasonable doubt regarding the degree of disability is resolved in favor of the Veteran. 38 C.F.R. § 4.3. In considering the severity of a disability, it is essential to trace the medical history of the Veteran. 38 C.F.R. §§ 4.1, 4.2, 4.41. Consideration of the whole-recorded history is necessary so that a rating may accurately reflect the elements of disability present. 38 C.F.R. § 4.2; Peyton v. Derwinski, 1 Vet. App. 282 (1991). Where a claimant appeals the initial rating assigned following an award of service connection, evidence contemporaneous with the claim for service connection and with the rating decision granting service connection would be most probative of the degree of disability existing at the time that the initial rating was assigned and should be the evidence used to decide whether an [initial] rating on appeal was erroneous. Fenderson v. West, 12 Vet. App. 119, 126 (1999). If later evidence obtained during the appeal period indicates that the degree of disability increased or decreased following the assignment of an initial rating, staged ratings may be assigned for separate periods of time based on facts found. Fenderson v. West, 12 Vet. App. 119, 126 (1999). 1. Entitlement to an initial rating of 70 percent for a service-connected acquired psychiatric disorder, but not greater, is granted. The appellant contends that his service-connected psychiatric disability, currently diagnosed as posttraumatic stress disorder (PTSD), is more disabling than currently rated. This disability was initially diagnosed and rated as depressive disorder with panic attacks and was assigned an initial 30 percent rating. In a September 2020 rating decision, the disability was recharacterized as PTSD and an increased rating of 70 percent was assigned from December 13, 2016, the date of a private medical evaluation which the RO determined showed an increase in the severity of the appellant’s symptoms. After a review of the evidence of record, the Board concludes that the appellant’s symptoms at least as likely as not caused a level of impairment more closely approximating the level of impairment associated with a 70 percent rating for the entire period on appeal. The Board also concludes that the appellant’s symptoms did not at least as likely as not cause the level of impairment required for a disability rating of 100 percent. The appellant’s PTSD is rated under the General Rating Formula for Mental Disorders. 38 C.F.R. § 4.130. A noncompensable rating is assigned when a mental condition has been formally diagnosed, but symptoms are not severe enough to either require continuous medication, or to interfere with occupational and social functioning. A 10 percent rating is assigned when mild or transient symptoms which decrease work efficiency and ability to perform occupational tasks only during periods of occasional stress, or symptoms controlled by medication cause occupational and social impairment. A 30 percent rating is assigned when symptoms such as depressed mood, anxiety, suspiciousness, panic attacks (weekly or less often), chronic sleep impairment, or mild memory loss (such as forgetting names, directions, or recent events), cause 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 normal conversation). A 50 percent rating is assigned when symptoms such 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; or difficulty in establishing and maintaining effective work and social relationships cause occupational and social impairment with reduced reliability and productivity. A 70 percent rating is assigned when symptoms such as suicidal ideation; obsessional rituals which interfere with routine activities; intermittently illogical, obscure, or irrelevant speech; 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 worklike setting); or inability to establish and maintain effective relationships cause occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood. A 100 percent rating is assigned for 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; or memory loss for names of close relatives, own occupation or own name. Under the General Formula for Mental Disorders (General Formula), the Board must conduct a “holistic analysis” that considers all associated symptoms, regardless of whether they are listed as criteria. Bankhead v. Shulkin, 29 Vet. App. 10, 22 (2017); 38 C.F.R. § 4.130. The Board must determine whether unlisted symptoms are similar in severity, frequency, and duration to the listed symptoms associated with specific disability percentages. Then, the Board must determine whether the associated symptoms, both listed and unlisted, caused the level of impairment required for a higher disability rating. Vazquez-Claudio v. Shinseki, 713 F.3d 112, 114-118 (Fed. Cir. 2013). Two private psychiatric evaluations, conducted by the same examiner in August 2011 and in December 2016, paint largely the same picture regarding the severity of the appellant’s symptoms and his occupational and social functioning. Both reports note the appellant having prior suicidal ideation, loss of interest in hobbies, bouts of irritability and anger, and difficulty completing tasks such as home projects. The appellant was noted to have also developed need of assistance in running his insurance business, which led to him becoming “semi-retired” and working only part time. The appellant was noted to have a healthy marriage, with improvements since he stopped abusing alcohol, and positive relationships with his children. The appellant’s symptoms, at both evaluations, also included difficulty concentrating and staying focused, generalized anxiety with three to four panic attacks a week, flashbacks and intrusive thoughts, insomnia, overwhelming feelings of anger and sorrow, bouts of being withdrawn and isolative, and bouts of moderately severe depression. The examiner opined that these symptoms were considered “serious symptoms” causing “serious impairment in social, occupational, or school functioning.” Along with the December 2016 private medical evaluation, the examiner also completed a VA disability benefits questionnaire, indicating the appellant’s symptoms due to his PTSD caused occupational and social impairment in most areas, such as work, school, family relations, judgment, thinking, and mood. The examiner noted symptoms of depressed mood, anxiety, panic attacks more than once a week, near continuous panic or depression, chronic sleep impairment, mild memory loss, flattened affect, disturbances of motivation or mood, difficulty in establishing and maintaining effective work and social relationships, difficulty adapting to stressful circumstances, inability to establish and maintain effective relationships, suicidal ideation, and impaired impulse control. In the full examination report, the examiner consistently reported that the symptoms observed in December 2016 were, for the most part, entirely consistent with the symptoms observed in August 2011. The appellant’s initial VA examination in March 2011 opined the appellant’s symptoms were “moderate” with panic attacks two or more times per week, sleep problems, and anger issues at work. The appellant reported that he had good relationships with family and was capable of continuing his occupation. The examiner also noted symptoms of depression and a remote depressive episode from 1984 or 1985 during which the appellant was not able to work for several weeks. In May 2013, the appellant underwent a second VA examination. The examiner noted only symptoms of depressed mood, anxiety, suspiciousness, panic attacks that were weekly or less often, and chronic sleep impairment. The examiner opined the appellant’s symptoms most closely approximated occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks, although generally functioning satisfactorily with normal routine behavior, self-care, and conversation. The examiner did note a previous depressive episode in September or October 2012 during which the appellant lost weight and found it difficult to even get out of bed and accomplish simple tasks. VA treatment notes from July and October 2015 record the appellant reporting an increase and worsening of his mental health symptoms, with more frequent suicidal ideations, loss of interest in hobbies, more trouble sleeping, low energy, poor feelings. He was noted at the time to be a moderate suicide risk as he had thoughts one or two times a month but denied a concrete plan. A VA examination in August 2020 recorded the appellant with symptoms of depressed mood, anxiety, suspiciousness, chronic sleep impairment, mild memory loss, circumstantial, circumlocutory or stereotyped speech, impaired judgment, disturbances of motivation and mood, difficulty in establishing and maintaining effective work and social relationships, difficulty in adapting to stressful circumstances including work or a work like setting, suicidal ideation, impaired impulse control such as unprovoked irritability with periods of violence. The examiner referred to the December 2016 private examination, indicating that current occupational and social functioning were consistent with that examination. The examiner opined that together, these symptoms approximated occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking, and mood. The Board notes that all these VA and private examinations were conducted by clinicians who had the required knowledge, training, and experience to evaluate and opine on the severity of mental health disorders. They all included a review of the entire record, as well as a clinical interview of the appellant. None of them appear to have been offered by the appellant’s regular treating physician, but were all done in an evaluation setting in the pursuit of monetary benefits. As such, the Board affords all the VA and private examinations significant probative weight. See Nieves - Rodriguez v. Peake, 22 Vet. App. 295 (U.S. 2008). The private examiner’s reports in August 2011 and December 2016 found the appellant’s symptoms to be more disabling than the VA examiners in March 2011 and May 2013. The more recent VA examination from August 2020 appears to agree with the assessment of the private examiner with regards to the severity of the appellant’s symptoms. It appears the appellant did not endorse suicidal ideation as a symptom at his March 2011 and May 2013 examinations which, considering the severity of such a symptom on its own, could account for the discrepancy between the overall assessment regarding the severity of the appellant’s disability. The March 2011 VA examination also does not seem to account for the reduced role the appellant was playing in the running of his business at that time when considering his occupational capacity. At that time, he was only working part-time, and had already given up the brunt of running his insurance business to his wife and daughter. Additionally, the March 2011 VA examination does not appear to include symptoms related to PTSD in the opinion on occupational and social impairment, as the appellant was not diagnosed with PTSD by that examiner and an examination for PTSD was not completed. Considering this, the Board finds that the evidence regarding the severity of the appellant’s mental health disability is in relative equipoise, with some of the probative evidence of record suggesting the 30 percent criteria under the General Formula more closely approximates his symptoms, and with some of the other probative evidence of record suggesting the 70 percent criteria more closely approximates his symptoms. As such, the Board must apply the benefit of the doubt rule and award a 70 percent initial rating for the appellant’s service-connected acquired psychiatric disability. 38 C.F.R. §§ 4.3, 4.7, 4.130. Additionally, the Board finds the severity, frequency, and duration of the appellant’s symptoms do not more closely approximate the symptoms contemplated by a 100 percent rating. See 38 C.F.R. § 4.126. At no point has the appellant endorsed any of the specific symptoms listed in the 100 percent rating criteria, which are much more severe than those in even the 70 percent rating criteria. Additionally, he has not presented with any symptoms or combination of symptoms that cause “total occupational and social impairment” as required by the 100 percent rating. While the appellant does have few friends and does not participate in the same kind of leisure activities he once did, he does still maintain good relationships with his wife, children, and grandchildren, indicating some social functioning capacity. Further, while he has taken a step back from running his insurance business, he does still participate to an extent in the operations of the business, indicating at least some occupational capacity. As such, the Board finds the preponderance of the evidence is against the appellant’s symptoms causing total occupational and social impairment. The Board notes that the appellant expressed suicidal ideation, which is similar to persistent danger of self-harm, which is contemplated by the 100 percent criteria. Bankhead v. Shulkin, 29 Vet. App. 10, 19 (2017). However, the severity, frequency, and duration of the appellant’s suicidal ideation has not risen to the level contemplated by the 100 percent disability rating. The appellant regularly denied intent, or a plan involving self-harm in existing treatment records, and during the VA and private examinations. He indicated that suicidal ideations happen a few times a month. He was considered to be of moderate suicide risk, but has no history of any concrete steps or plans towards ending his own life. In short, the preponderance of the evidence weighs against finding that the severity, frequency, and duration of the Veteran’s symptoms resulted in the level of impairment required for a 100 percent rating. The criteria for a 100 percent or higher rating are not met. 38 C.F.R. §§ 4.3, 4.130. 2. Entitlement to an initial compensable rating, and a rating greater than 10 percent from August 4, 2020, is denied. The appellant contends that his bilateral hearing loss is more disabling than currently rated. He asserts that his hearing loss causes difficulty in listening to conversations, watching television, and communicating with clients. For VA purposes, impairment of auditory acuity (hearing loss) is evaluated pursuant to the provisions set forth in 38 C.F.R. § 4.85. Under that regulation, an examination for hearing impairment must be conducted by a state-licensed audiologist and must include a controlled speech discrimination test (Maryland CNC) and a pure tone audiometry test. Examinations are to be conducted without the use of hearing aids. 38 C.F.R. § 4.85(a). Disability ratings for hearing impairment are derived by a mechanical application of the rating schedule to the numeric designations assigned after audiometric evaluations are rendered. See Lendenmann v. Principi, 3 Vet. App. 345 (1992). To evaluate the degree of disability from defective hearing, the Rating Schedule establishes 11 auditory acuity levels, represented by Roman numerals, from Level I, for lower levels of hearing loss, through Level XI, for profound deafness. These are assigned based on a combination of the percent of speech discrimination and the pure tone threshold average, as contained in a series of tables within the regulations. 38 C.F.R. § 4.85(b). The pure tone threshold average is the sum of the pure tone thresholds at 1000, 2000, 3000, and 4000 Hertz (Hz), divided by 4. This average is used in all cases to determine the Roman numeral designation for hearing impairment from Table VI or VI A. 38 C.F.R. § 4.85(d). Speech discrimination scores are also used in assigning individual hearing levels from Table VI. Table VII, Percentage Evaluations for Hearing Impairment, is used to determine the percentage evaluation when combining the Roman numeral designations for hearing impairment of each ear. The horizontal rows represent the ear having the better hearing and the vertical columns the ear having the poorer hearing. The percentage evaluation is located at the point where the row and column intersect. 38 C.F.R. § 4.85(e). In cases where the impaired hearing is service-connected in only one ear, to determine the percentage evaluation from Table VII, the non-service-connected ear will be assigned a Roman numeral designation for hearing impairment of I, subject to the provisions of 38 C.F.R. § 3.383. 38 C.F.R. § 4.85(f). The regulatory provisions also provide two additional circumstances under which alternative tables can be employed. One is where the pure tone thresholds of the frequencies of 1000, 2000, 3000, and 4000 Hz are 55 decibels or greater. The second is where the pure tone thresholds are 30 decibels or less at frequencies of 1000 Hz and below and are 70 decibels or more at 2000 Hz. 38 C.F.R. § 4.86. In this case, pure tone audiological testing did not reveal measurements which would trigger these alternate methods for calculating the appropriate rating for bilateral hearing loss. On the authorized audiological evaluation in June 2010 pure tone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 25 25 30 30 40 LEFT 25 40 40 40 40 The average of the pure tone thresholds was 30 dB in the right ear and 34 dB in the left ear, when rounded up. Speech audiometry revealed speech recognition ability of 88 percent in the right ear and of 80 percent in the left ear. When these results are input into Table VI in 38 C.F.R. § 4.85, they correspond with Level II hearing loss in the right ear and Level III hearing loss in the left ear. When Level II hearing loss in one ear and Level III hearing loss in the other ear are input into Table VII in 38 C.F.R. § 4.85, they establish entitlement to a noncompensable disability rating for the appellant’s bilateral hearing loss. On the authorized audiological evaluation in August 2020, pure tone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 45 40 45 55 55 LEFT 40 40 50 60 65 The average of the pure tone thresholds was 49 dB in the right ear and 54 dB in the left ear. Speech audiometry revealed speech recognition ability of 80 percent in the right ear and of 80 percent in the left ear. When these results are input into Table VI in 38 C.F.R. § 4.85, they correspond with Level III hearing loss in the right ear and Level IV hearing loss in the left ear. When Level III hearing loss in one ear and Level IV hearing loss in the other ear are input into Table VII in 38 C.F.R. § 4.85, they establish entitlement to a 10 percent disability rating, and not greater, for the appellant’s bilateral hearing loss. Considering this evidence, the Board finds that the preponderance of the evidence is against the assignment of an initial compensable rating for service-connected hearing loss, or the assignment of a rating greater than 10 percent from August 4, 2020. The Board has considered the findings of the October 2011 private audiological examination in reaching this conclusion. On the private audiological evaluation, pure tone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 30 25 30 30 40 LEFT 35 35 30 35 40 The average of the pure tone thresholds was 31 dB in the right ear and 35 dB in the left ear. Speech audiometry revealed speech recognition ability of 90 percent in the right ear and of 90 percent in the left ear. The Board notes though that speech recognition was conducted using Monitored Live Voice testing. As explained in the August 2020 VA examination, this means that speech recognition word list was presented with live voice by the audiologist, not using a recorded word list. The word list used was not recorded, so it was not possible to determine whether the Maryland CNC list was used or not. As such, the results are invalid for rating purposes, and as such, not probative to the final determination of this claim. 38 C.F.R. § 4.85(a) (requiring that examinations for VA purposes must be conducted by a state-licensed audiologist and must include a controlled speech discrimination test (Maryland CNC, and a pure tone audiometry test). Even if the results were presumed valid, and it was presumed that the Maryland CNC word list was used, these results would not result in the Board awarding an increased initial rating for the appellant’s hearing loss. When input into Table VI in 38 C.F.R. § 4.85, they correspond with Level II hearing loss in the right ear and Level II hearing loss in the left ear. When Level II hearing loss in one ear and Level II hearing loss in the other ear are input into Table VII in 38 C.F.R. § 4.85, they establish entitlement to a noncompensable disability rating, and not greater, for the appellant’s bilateral hearing loss. The Board has also considered the results of the private audiological examination conducted in April 2017. On the private audiological evaluation, pure tone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 50 50 50 X 60 LEFT 45 50 50 X 60 Measurements do not appear to have been taken at the 3000 Hz level and there is no indication as to which word recognition list or method of speech recognition testing was used. The test results are also unclear as to what the speech recognition results were, although it appears the appellant may have been found with 100 percent speech discrimination in each ear. There is no indication that the examination and testing was conducted by a state-licensed audiologist. As such, the Board finds this examination is invalid for rating purposes, and as such, not probative to the final determination of this claim. 38 C.F.R. § 4.85(a). Regardless, even if the results were presumed valid and considered under the rating criteria, the pure tone average in each ear would be 53 dB (by adding the values at 1000, 2000, and 4000 Hz and dividing by 3). The speech recognition appears to have been 100 percent in each ear. When these results are input into Table VI in 38 C.F.R. § 4.85, they correspond with Level I hearing loss in the right ear and Level I hearing loss in the left ear. When Level I hearing loss in one ear and Level I hearing loss in the other ear are input into Table VII in 38 C.F.R. § 4.85, they establish entitlement to a noncompensable disability rating, and not greater, for the appellant’s bilateral hearing loss. Though both private examinations are inadequate, even if they are viewed sympathetically and considered in the light most favorable to the appellant, they do not yield results which would warrant a higher rating for bilateral hearing loss. The Board has also considered the appellant’s description of his hearing loss disability as discussed above. However, disability ratings for hearing impairment are derived by a mechanical application of the rating schedule to the numeric designations assigned after audiometric evaluations are rendered. See Lendenmann v. Principi, 3 Vet. App. 345, 349 (1992). In this case, as explained above, the numeric designations correlate to the current disability ratings. In other words, the Board is bound by law to apply VA’s rating schedule based on the appellant’s audiometry results. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Under these circumstances, the Board finds that the record presents no basis for assignment of a higher compensable schedular rating. Therefore, after a consideration of all the relevant and probative evidence of record, the Board finds that the preponderance of the evidence is against the assignment of an initial compensable rating, and against a rating greater than 10 percent from August 4, 2020. 38 C.F.R. § 4.85. As the preponderance of the evidence is against the claim, the benefit of the doubt rule is inapplicable. 38 C.F.R. § 4.3. REASONS FOR REMAND 1. Entitlement to service connection for a right knee disability is remanded. The appellant contends that his right knee pain, diagnosed most recently as a knee strain, is at least as likely as not related to his having twisted his knee when he fell in a punji stick trap while on patrol during the Vietnam War. This is the same incident in which his right calf was impaled, the residuals of which are already service connected. The appellant contends that, following the injury, he was on crutches for multiple weeks before being returned to field duty due to pain in his right knee. He further asserts that he has had symptoms of knee pain since the injury, and that he began seeking care for the knee immediately upon his discharge from active service. As an initial matter, the Board notes that the appellant’s service treatment records appear to be incomplete, as they do not include his induction report of medical examination. As such, further efforts should be made to obtain the appellant’s complete service medical records. The Board notes that the appellant’s knee was examined at an April 1986 VA examination, at which point the examiner, based on the reported symptoms, x-ray testing, and observed functionality, indicated that the appellant might have a tear in his lateral meniscus. The examiner indicated that arthroscopic surgery could be performed to confirm the diagnosis; however, the appellant declined surgery at that time. More recent VA testing in June 2010 obtained x-rays of the appellant’s right knee which appear to be consistent with the x-ray testing done in April 1986. However, a diagnosis of “knee strain” was given without further diagnostic testing to determine whether there was in fact a meniscal tear as suggested by the April 1986 VA examination. In an April 2020 supplemental medical opinion, the examiner opined that the appellant’s condition was shown as being acute only while on active service, with no evidence of chronicity of care based on a lack of in-service documentation of treatment and based on the issue not being noted on the appellant’s separation examination. The examiner reasoned that there was a 20-year gap between the injury and the earliest record of when the appellant first sought treatment for the knee from VA in 1986. However, the Board notes the examiner did not address the appellant’s lay testimony, offered at his April 2017 Board hearing, that he did continue to have problems with his knee in service after his injury, and that he sought treatment immediately following separation with a private physician. The examiner offered no reasons why this testimony was not plausible or otherwise inconsistent with the rest of the evidence of record. Additionally, the Board notes that the examiner did not address the impression of the 1986 VA examiner, which was that the appellant possibly had a tear in the right lateral meniscus, and whether that was consistent with the reports of the in-service twisting injury to the knee. The examiner only mentioned this finding in passing while discussing whether the appellant’s service-connected residuals of a puncture wound to the right calf aggravated the current knee disability beyond its natural progression. Considering this, the Board finds that this opinion is inadequate for purposes of deciding this claim and that additional development is warranted. Ultimately there has been a failure to provide diagnostic testing to confirm whether the appellant has signs of prior soft tissue damage which would be consistent with his reports of twisting his knee when he fell on a punji stick while serving in Vietnam, with pain and difficulty with squatting since the injury. The Board finds that the appellant should be afforded a new VA examination, with all necessary diagnostic testing, to determine the nature and etiology of the claimed right knee disability. The examiner must provide a rationale for accepting or rejecting any of the appellant’s lay reports of symptoms. The matters are REMANDED for the following action: 1. Obtain the appellant’s complete service treatment records. 2. Schedule the appellant for a VA examination for his claimed right knee disability. The examiner must review the claims file and conduct all diagnostic testing deemed appropriate to determine the extent of the appellant’s knee disability, to include confirming or ruling out a lateral tear of the meniscus, if possible. If a diagnosis cannot be provided but the appellant’s condition manifests in symptoms, such as pain, that cause functional impairment, then the examiner should consider them a “disability” for the purpose of providing the requested opinion(s) below. The examiner is asked to provide a response to the following: Is the current right knee disability at least as likely as not related to service, including the appellant’s fall into a punji stick trap while on patrol in Vietnam. The appellant is already service connected for the residuals of a puncture wound related to the incident. The appellant has consistently contended that he twisted his right knee at the same time, and that he had pain in the knee immediately after, and continuing after until the present day. The examiner must address the findings of the 1986 VA examination which posited the appellant likely had a lateral tear of the right meniscus. If arthritis is diagnosed, the examiner should opine whether it at least as likely as not that it (1) began during active service, (2) manifested within a year after discharge from service, or (3) was noted during service with continuity of the same symptomatology since service? Provide a rationale to support these opinions. The absence of contemporary medical records showing treatment during or right after service cannot be the sole rationale for finding there is not at least as likely as not a connection between the current disability and the reported in-service injury. In providing the requested opinion, consider the appellant’s description of his in-service injury and symptoms as well as his post-service symptoms. If there is any medical reason to accept or reject the proposition that the appellant’s reported injury and symptoms in service and thereafter represented the onset of his current disability, this should be noted. Stated another way, do the appellant’s reports about his symptoms, developing knee pain after twisting his knee after stepping on a punji stick trap, align with how the currently diagnosed disability is known to develop or are the appellant’s reports generally inconsistent with medical knowledge or otherwise implausible? K. Conner Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board K. Kleponis, Associate Counsel The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.