Citation Nr: 21023565 Decision Date: 04/21/21 Archive Date: 04/21/21 DOCKET NO. 17-29 179 DATE: April 21, 2021 ORDER 1. The appeal to reopen a claim of service connection for residuals of a left eye injury is denied. 2. Entitlement to service connection for a left shoulder disability is denied. 3. Entitlement to service connection for asthma is denied. 4. Entitlement to service connection for sleep apnea, to include as secondary to asthma, is denied. 5. Entitlement to a rating in excess of 30 percent for headaches is denied. 6. Entitlement to a rating in excess of 10 percent for a right knee disability is denied. 7. Entitlement to a compensable rating for a left forehead (left eye region) scar is denied. REMANDED 8. Entitlement to service connection for bilateral hearing loss is remanded. 9. Entitlement to service connection for a heart disability, claimed as coronary artery disease (CAD) is remanded. 10. Entitlement to service connection for a left leg disability is remanded. FINDINGS OF FACT 1. An unappealed August 1987 rating decision denied service connection for residuals of a left eye injury, based essentially on a finding that such disability was not shown to be related to the Veteran’s service. 2. Evidence received since the August 1987 rating is cumulative or does not tend to show a current left eye disability is related to an injury in service; does not relate to an unestablished fact necessary to substantiate the claim of service connection for residuals of a left eye injury; and does not raise a reasonable possibility of substantiating such claim. 3. A left shoulder disability was not manifested in service; arthritis of the left shoulder was not manifested within a year following the Veteran’s discharge from active duty, and his current left shoulder disability is not shown to be etiologically related to his service. 4. Asthma was not manifested in service, and is not shown to be etiologically related to the Veteran’s service. 5. Sleep apnea was not manifested in service, and the preponderance of the evidence is against a finding that the Veteran’s current sleep apnea is etiologically related to his service. 6. At no time under consideration are the Veteran’s headaches shown to have been manifested by very frequent, completely prostrating, and prolonged attacks productive of severe economic inadaptability. 7. The Veteran’s right knee disability is not shown to at any time have been manifested by subluxation or lateral instability of the knee, flexion limited to 30 degrees or extension limited at 15 degrees, flexion limited to 45 degrees and extension limited at 10 degrees, or by additional limitations due to pain, weakened movement, excessive fatigability with use, or incoordination. 8. At no time under consideration is the Veteran’s left forehead scar shown to have been tender or painful; no characteristics of disfigurement are shown. CONCLUSIONS OF LAW 1. New and material evidence has not been received, and the claim of service connection for residuals of a left eye injury may not be reopened. 38 U.S.C. §§ 5108, 7105; 38 C.F.R. § 3.156(a). 2. Service connection for a left shoulder disability is not warranted. 38 U.S.C. §§ 1112, 1131, 1137, 5107; 38 C.F.R. §§ 3.303, 3.304, 3.307, 3.309. 3. Service connection for asthma is not warranted. 38 U.S.C. §§ 1131, 5107; 38 C.F.R. §§ 3.303, 3.304. 4. Service connection for sleep apnea is not warranted. 38 U.S.C. §§ 1131, 5107; 38 C.F.R. §§ 3.303, 3.304, 3.310. 5. A rating in excess of 30 percent for headaches is not warranted. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.124a, Diagnostic Code (Code) 8100. 6. A rating in excess of 10 percent for a right knee disability is not warranted. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1-4.7, 4.10, 4.40, 4.45, 4.59, 4.71a, Codes 5260, 5261. 7. A compensable rating for a left forehead scar is not warranted. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. § 4.118, Code 7800. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The appellant is a Veteran who served on active duty from May 1980 to May 1983. These matters are before the Board of Veterans’ Appeals (Board) on appeal from August 2015 and March 2017 rating decisions. In January 2020, a videoconference hearing was held before the undersigned; a transcript is in the record. In March 2020, the case was remanded for further development. 1. The appeal to reopen a claim of service connection for residuals of a left eye injury is denied. Generally, when a claim is disallowed, it may not be reopened and allowed, and a claim based on the same factual basis may not be considered. 38 U.S.C. § 7105. However, a claim on which there is a final decision may be reopened if new and material evidence is submitted. 38 U.S.C. § 5108. New evidence means evidence not previously submitted to agency decision-makers. Material evidence is evidence that, by itself or when 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 establishing the claim. See 38 C.F.R. § 3.156(a). The Court has held that the phrase “raises a reasonable possibility of establishing the claim” must be viewed as enabling rather than precluding reopening. Shade v. Shinseki, 24 Vet. App. 110, 117 (2010). For the purpose of establishing whether new and material evidence has been received, the credibility of new evidence is to be presumed. Justus v. Principi, 3 Vet. App. 510, 513 (1992). An August 1987 rating decision denied the Veteran service connection for residuals of a left eye injury, finding that the injury that he sustained in service resolved and there was no current eye disability (related to such injury). He did not appeal that decision and new and material evidence was not received within the following year, and the August 1987 rating decision became final. 38 U.S.C. § 7105. The evidence of record at the time of the August 1987 rating decision included service treatment records (STRs) submitted by the Veteran, VA treatment records and lay statements by the Veteran. An April 1983 STR notes that the Veteran reported itching burning eyes and blurred vision and pain for 2-3 months. On examination, an abrasion to the left eye conjunctiva was noted. A September 1985 VA line of duty determination found that a left eye injury incurred in April 1982 was not in line of duty. Evidence received since the August 1987 rating decision includes VA and private treatment records and examinations and lay statements and testimony by the Veteran. An August 2009 VA treatment record notes that the Veteran reported right eye redness, denied let eye redness, and reported intermittent burning and stinging in the right eye. He denied any trauma, visual loss, or surgery to either eye. A November 2009 VA treatment record notes an impression of glaucoma suspect from the Veteran’s history, dry eyes, and blepharitis. At the January 2020 videoconference hearing, the Veteran testified that he had a current left eye disability (glaucoma) and that a private physician had related the disability to service. In March 2020, VA sent a letter to the Veteran asking that he provide authorizations so such private treatment records could be obtained. He did not respond. On August 2020 VA examination, the diagnoses were nuclear sclerosis and cataracts in both eyes. On examination, it was noted that the Veteran’s distance and near vision was correctable to 20/20 or better in each eye. His pupils were round and reactive to light. Astigmatism and diplopia were not noted. Slit lamp testing showed mild nuclear sclerosis bilaterally. No visual field defects were noted. The examiner opined that the Veteran’s eye disorders did not impact his ability to work. The examiner opined that the Veteran’s eye disability (cataracts) was less likely than not related to his service, explaining that the cataracts were age-related. Because service connection for a left eye disability was previously denied based on a finding that there were no current left eye residuals of the Veteran’s eye injury in service, for evidence to be new and material in this matter, it would have to pertain to that unestablished fact, i.e., tend to show that a current left eye disability is related to injury in service. The evidence received since August 1987 pertaining to the Veteran’s left eye disability is cumulative and duplicate; it is not new evidence that tends to show that such disability is etiologically related to his service. It does not include a medical opinion that relates his current cataracts etiologically to his service or an event, injury, or disease therein. The Board notes that the Veteran testified that a private provider had informed him that his glaucoma was related to his service. However, he did not submit treatment records showing a current diagnosis of glaucoma or a private opinion relating such eye disability to his service. Therefore, the Board must find that the additional evidence received since August 1987 is not material evidence that addresses the unestablished fact necessary to substantiate the claim of service connection for a left eye disability, i.e., nexus of the claimed disability to service; does not raise a reasonable possibility of substantiating such claim; and is not new and material. Accordingly, the claim of service connection for residuals of a left eye injury may not be reopened. SERVICE CONNECTION Service connection may be established for disability due to disease or injury that was incurred in or aggravated by active service. 38 U.S.C. § 1131; 38 C.F.R. § 3.303. To establish service connection for a claimed disability, there must be evidence of: (i) a present claimed disability; (ii) incurrence or aggravation of a disease or injury in service; (iii) and a causal relationship between the present disability and the disease or injury in service. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). The determination as to whether these requirements are met is based on an analysis of all the evidence of record and an evaluation of its credibility and probative value. Baldwin v. West, 13 Vet. App. 1 (1999); 38 C.F.R. § 3.303(a). Certain chronic diseases (to include arthritis) may be presumed to be service connected if manifested to a compensable degree within a specified period of time following separation from service (one year for arthritis). 38 U.S.C. § 1112; 38 C.F.R. §§ 3.307, 3.309(a). For chronic diseases listed in 38 C.F.R. § 3.309(a), nexus to service may be established by showing continuity of symptomatology. Walker v. Shinseki, 708 F.3d 1331, 1338-40 (Fed. Cir. 2013). Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that it was incurred in service. 38 C.F.R. § 3.303(d); See Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994). Secondary service connection is warranted for a disability that was caused or aggravated by a service-connected disability. 38 C.F.R. § 3.310. To substantiate a claim of secondary service connection there must be evidence of (i) a current chronic disability (for which secondary service connection is sought); (ii) an already service-connected disability; and (iii) that the already service-connected disability (a) caused or (b) aggravated the disability for which service connection is sought. See Allen v. Brown, 7 Vet. App. 439 (1995). Lay evidence is competent if it is provided by a person who has knowledge of facts or circumstances and conveys matters that can be observed and described by a layperson. 38 C.F.R. § 3.159(a)(2). Competent medical evidence is necessary where the determinative question requires medical knowledge. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Competent medical evidence means evidence provided by a person who is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions. Competent medical evidence may also mean statements conveying sound medical principles found in medical treatises. Competent medical evidence may also include statements contained in authoritative writings, such as medical and scientific articles and research reports or analyses. 38 C.F.R. § 3.159(a)(1). When there is an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. A claim will be denied only if the preponderance of the evidence is against the claim. See 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 56 (1990). 2. Entitlement to service connection for a left shoulder disability is denied. The Veteran contends that he sustained a left shoulder injury when he fell from a truck during service in 1981. August 1981 STRs note that he reported left shoulder pain following a fall from a vehicle. On examination, there was no decreased range of motion (ROM), discoloration, or edema. A left shoulder X-ray showed no significant abnormality. An April 1983 STR notes that the Veteran declined a service separation medical examination. An April 1987 shoulder X-ray showed that the Veteran’s shoulders were within normal limits. A March 2015 X-ray found mild degenerative changes in both of the Veteran’s shoulders. On June 2015 VA shoulder examination, the Veteran reported that he began having numbness and pain in both shoulders 2 years prior to the examination. He reported that he had shoulder pain on lifting his arms above his head, and when he slept, and that he was seen by a primary care physician and given Ibuprofen. The diagnoses were bilateral shoulder impingement syndrome and degenerative arthritis. The examiner opined that it was less likely than not that the Veteran’s left shoulder disability was related to his service. She explained that August 1981 STRs note that the Veteran reported left shoulder pain and a possible nerve injury and that she was unable to determine a diagnosis for the left shoulder. At the January 2020 videoconference hearing, the Veteran testified that he injured his left shoulder in 1981 in a fall from the back of a parked vehicle. On September 2020 VA shoulder examination, the Veteran reported that during service in 1981, he fell from the back of a truck. He related that he sought medical attention and was told to use some cream and to rest for a couple of days. He reported that he had no current symptoms and that as long as he eats cherries his pain is controlled. Left shoulder degenerative arthritis was diagnosed. The examiner opined that the Veteran’s left shoulder disability was less likely than not incurred in or caused by the claimed in-service injury, event, or illness. She explained that there was no objective evidence of chronicity of care for a left shoulder disability during or following service and that a left shoulder disability, degenerative arthritis, was not diagnosed until 2015, over 30 years post service. The examiner noted that the Veteran’s left shoulder disability was an age related “wear and tear” condition, that was separate and unrelated to his military service. It is not in dispute that the Veteran has a left shoulder disability. Degenerative arthritis is shown by the record. The Veteran’s STRs do not show a chronic left shoulder disability. They show that he was seen with left shoulder complaints, which were acute and resolved without residuals. He declined a service separation examination. There is no competent evidence that arthritis now shown was manifested in service or that arthritis was manifested in the first post service year. Notably a (post service) April 1987 left shoulder X-ray was within normal limits. Consequently, service connection for a left shoulder disability on the basis that it became manifest in service and persisted, or on a presumptive basis (for left shoulder arthritis as a chronic disease under 38 U.S.C.§§1112, 1137), is not warranted. The preponderance of the evidence is also against a finding that the Veteran’s current claimed left shoulder disability may otherwise (than based on onset in service or on a chronic disease presumptive basis) be related to his service. While left shoulder arthritis is a chronic disease listed in 38 C.F.R. § 3.309(a), continuity of symptoms is simply not shown. Except for a 1987 shoulder X-ray that was normal, post service treatment for left shoulder complaints is not shown until more than 25 years following the Veteran’s separation from service. When chronic pathology in service, chronic disease in the presumptive period, and continuity of symptomatology are not shown, as here, whether a current chronic shoulder disability may be related to remote service is a medical question. The only competent (medical opinion) evidence in the record regarding a nexus between the Veteran’s claimed left shoulder disability and his service is in the report of the September 2020 VA examiner. [The Board found that the June 2015 opinion inadequate for rating purposes (as it pertains to the left shoulder disability) because it was cursory, did not include adequate rationale, and was internally inconsistent because two diagnoses were indicated but then the examiner notes that she was unable to determine a left shoulder diagnosis.] It reflects a thorough review of the Veteran’s record, familiarity with his medical history, and included a complete physical examination (with all necessary findings); the opinion (against the claim, by a medical professional competent to provide it) includes rationale that accurately cites to supporting factual data. The Board finds that examiner’s opinion, that the Veteran’s left shoulder disability is an age-related “wear and tear” condition and is less likely than not related to his service, persuasive. The Veteran is a layperson, and is not competent to establish by his own opinion that his current left shoulder disability is related to an injury during remote service. Considering the foregoing, the Board concludes that the preponderance of the evidence is against the claim of service connection for a left shoulder disability. Accordingly, the appeal in the matter must be denied. 3. Entitlement to service connection for asthma is denied. A March 1983 STR notes that the Veteran reported that he passed out on the sidewalk and had experienced nasal congestion and cold symptoms for 3 days. The assessment was viral syndrome and syncope possibly secondary to alcohol ingestion. His STRs are silent any complaints or a diagnosis of, or treatment for, asthma. A February 2015 VA treatment record notes a diagnosis of asthma. A January 2020 VA treatment record notes that the Veteran reported that he had not experienced any recent asthma flare-ups and that he used oral inhalers. At the January 2020 videoconference hearing, the Veteran testified that a private physician advised him that a head injury and sinus problem in service caused his asthma to develop. That provider’s treatment records were not in the claims file, and in March 2020, VA sent the Veteran a letter asking him to provide authorizations for VA to obtain the private treatment records. He did not respond. On September 2020 VA respiratory conditions examination, the Veteran reported that in the 1980’s he experienced shortness of breath and that if he became too excited or tried to move too fast, he had a hard time trying to catch his breath. He could not remember if he sought treatment for asthma during service. Asthma was diagnosed. The examiner opined that the Veteran’s asthma was less likely than not related to his service. She explained that the etiology of his asthma was unknown and that it could be caused by a variety of factors to include genetics (if a parent or sibling has asthma, one is more likely to develop it, and the Veteran’s sister had severe asthma) and a history of viral infections. It is not in dispute that the Veteran has asthma. However, such disability was not manifested during the Veteran’s military service and was not clinically noted post service prior to 2015 (over 30 years after active duty service). Although the Veteran reported that his current respiratory problems began sometime in the 1980’s after service, he did not respond to a request for private treatment records to support that assertion. Accordingly, service connection for asthma on the basis that it became manifest in active service and persisted is not warranted. Furthermore, the record does not show or suggest that the Veteran’s current asthma was caused by an event in active military service. Whether current asthma may be etiologically related to activities in remote service is a medical question which requires medical expertise. While the Veteran seeks to substantiate this claim by reports of continuity of symptoms, the 38 C.F.R. § 3.303(b) (continuity) theory of entitlement is limited to chronic diseases listed in 38 C.F.R. § 3.309(a), and asthma is not listed therein. The Board has no reason to question the Veteran's sincerity in his belief that his current asthma is related to injury/activities in service. However, because he is a layperson, his own opinion has no probative value in the matter; he does not cite to supporting medical opinion or treatise. Jandreau, supra. In March 2020 the Board directed that if (and only if) the requested development (for authorizations to obtain private treatment records) produced evidence that suggested that the Veteran’s asthma may be related to his service, a respiratory diseases examination of the Veteran to determine the likely etiology of his asthma should be arranged. As noted above, the Veteran did not respond to the request for authorizations, but an examination and opinion were nevertheless obtained. Although the September 2020 VA examiner opined that the Veteran’s asthma was not related to his service, explained that the etiology of the asthma was unknown, and suggested that it could be caused by his genetic makeup, such opinion is considered to be less than adequate. However, since there is no evidence that the Veteran’s asthma occurred in or was otherwise caused by his service (thereby not meeting prong two of Shedden, supra), and he has not provided (requested) medical evidence suggesting that his asthma is related to his service, obtaining another medical advisory opinion is not necessary. Considering the foregoing, the Board finds that the preponderance of the evidence is against the claim, and the appeal seeking service connection for asthma must be denied. 4. Entitlement to service connection for sleep apnea, to include as secondary to asthma, is denied. The Veteran’s STRs are silent for complaints, findings, treatment, or diagnosis of sleep apnea. He declined a service separation examination. A February 2015 VA treatment record notes a diagnosis of sleep apnea and that the Veteran uses a CPAP nightly. At the January 2020 videoconference hearing, the Veteran testified that he thought his asthma caused his sleep apnea. A January 2020 VA treatment record notes that the Veteran reported nightly use of a CPAP and that he felt the benefits and effectiveness of such use. The Veteran has set forth an alternative theory of entitlement to service connection for sleep apnea (that it was caused or aggravated by his asthma). As service connection for asthma has been denied, a threshold legal requirement for substantiating a claim of secondary service connection (that the underlying disability to which the claimed disability is alleged to be secondary is service-connected) is not met the Veteran’s secondary service connection theory of entitlement lacks legal merit. See 38 C.F.R. § 3.310. Therefore, that theory of entitlement lacks legal merit. See Sabonis v. Brown, 6 Vet. App. 426 (1994). It is not in dispute that the Veteran now has sleep apnea (first noted in a February 2015 VA treatment record). His STRs are silent for complaints, findings, treatment or diagnosis regarding sleep apnea, and sleep apnea was not diagnosed until 2015. Accordingly, service connection for sleep apnea on the basis that it became manifest in service and persisted is not warranted. The analysis turns to whether (under 38 C.F.R. § 3.303(d)) service connection for sleep apnea may be granted on the basis that although sleep apnea was first diagnosed after service, considering all the evidence including that pertinent to service, it is shown to be related to service. Having considered the medical evidence of record pertaining to current treatment of sleep apnea and the statements of the Veteran, the Board finds that the record does not show that his sleep apnea is directly related to his active service. The diagnosis of an insidious disability such as sleep apnea is a medical question. While the Veteran may be able to establish by his own observation that he had symptoms that might be associated with sleep apnea, because he is a layperson he is not competent to establish that such symptoms establish that sleep apnea was then present; that requires medical expertise. He also has not submitted a private medical opinion in support of his claim. The Board notes that the lengthy post service interval before the Veteran’s sleep apnea was clinically documented and diagnosed is (of itself) probative evidence weighing against the theory that the sleep apnea is etiologically related to/was incurred in service. Accordingly, the Board finds that the preponderance on the evidence is against a finding that the Veteran’s sleep apnea was incurred in/is etiologically related to, his service. The preponderance of the evidence is against the claim for service connection for sleep apnea. Accordingly, the appeal in the matter must be denied. Gilbert v. Derwinski, 1 Vet. App. 49, 54-56 (1990). INCREASED RATING Disability evaluations are determined by the application of a schedule of ratings which is based on average impairment of earning capacity. 38 U.S.C. § 1155; 38 C.F.R. Part 4. Separate diagnostic codes identify the various disabilities. Disabilities must be reviewed in relation to their history. 38 C.F.R. § 4.1. Pertinent general policy considerations include: interpreting examination reports in light of the whole recorded history, reconciling the various reports into a consistent picture so that the current rating may accurately reflect the elements of disability, 38 C.F.R. § 4.2 ; resolving any reasonable doubt regarding the degree of disability in favor of the claimant, 38 C.F.R. § 4.3; and, evaluating functional impairment on the basis of lack of usefulness, and the effects of the disability upon the person’s ordinary activity, 38 C.F.R. § 4.10. See Schafrath v. Derwinski, 1 Vet. App. 589 (1991). When a question arises as to which of two ratings applies under a particular code, the higher rating is assigned if the disability more closely approximates the criteria for the higher rating. 38 C.F.R. § 4.7. After careful consideration of the evidence, any reasonable doubt remaining, including regarding degree of disability, is to be resolved in favor of the Veteran. 38 U.S.C. § 5107; 38 C.F.R. §§ 3.102, 4.3. An increased rating may be assigned for up to one year prior to receipt of a formal claim for increase, when it is factually ascertainable that an increase in disability had occurred during that period. 38 C.F.R. §§ 3.157, 3.400(o)(2). Consequently, the period for consideration (for a right knee disability and left forehead scar) is from November 12, 2013 (one year prior to the November 12, 2014 date of claim) to the present. When the appeal is from the initial rating assigned (as is the case with the headaches claim) with a grant of service connection, the severity of the disability during the entire period from the grant of service connection to the present is to be considered. “Staged” ratings may be assigned for distinct periods when different levels of impairment are shown. Fenderson v. West, 12 Vet. App. 119 (1999). 5. Entitlement to a rating in excess of 30 percent for headaches. Migraine headaches are rated under Code 8100, which provides for a 30 percent rating when there are characteristic prostrating attacks occurring on an average once a month over the last several months; a higher (50 percent, maximum schedular) rating is warranted for migraines with very frequent, completely prostrating, and prolonged attacks productive of severe economic inadaptability. 38 C.F.R. § 4.124a. The rating criteria do not define “prostrating” and the courts have not undertaken to define “prostrating” for purposes of Diagnostic Code 8100. See Fenderson, 12 Vet. App. at 119. According to Webster’s New World Dictionary of American English, Third College Edition (1986), p. 1080, “prostration” is defined as “utter physical exhaustion or helplessness.” A February 2015 VA treatment record notes that the Veteran denied headaches. A March 2015 VA treatment record notes that the Veteran denied pain other than mild headache. A January 2016 VA treatment record notes that the Veteran denied having headaches. A March 2016 VA treatment record notes that the Veteran reported a mild headache. On December 2016 VA headaches examination, the Veteran reported that his headaches were sharp and stabbing and located on the left side of his head. He related that he had daily headaches that lasted 2 hours to all day and were accompanied by nausea and some phono/photophobia. He took ibuprofen and BC powder for headache pain. He reported that in the past 6 months he had missed a total of 3-4 days of work due to headaches, had not been to the emergency room for headaches, and estimated that he has had 10 incapacitating headaches during that time. On examination, the Veteran reported experiencing characteristic prostrating attacks of migraine/non-migraine headache pain once a month. He did not report very prostrating and prolonged attacks of migraine/non-migraine pain productive of severe economic inadaptability. The examiner opined that the Veteran’s headaches did not impact his ability to work and referenced his report of daily headaches with 1-2 prostrating attacks per month. A June 2017 VA treatment record notes that the Veteran reported chronic headaches with no change in the intensity, frequency, or aggravating factors of his headaches. He took Aleve or Motrin for the pain. At the January 2020 videoconference hearing, the Veteran testified that he had headaches that had worsened and affected his sleep. On September 2020 headache examination, the Veteran reported that he sees a light over his left eye and an image of a ceiling fan prior to a headache manifesting. He related that he has 6 to 15 headaches a month and takes BC powder and lies down until the headaches pass. He reported pulsating headache pain that started on the left side of his head and moved to the center and nausea, vomiting, sensitivity to sound, and changes in vision. On examination, the Veteran reported that his headaches lasted less than 1 day and that he did not experience characteristic prostrating attacks of migraine/non-migraine headache pain. The examiner opined that the Veteran’s headaches did have some impact on his ability to work. She explained that he is unable to focus or concentrate and will be less productive when he is experiencing a headache. The estimated work time lost in the last 12 months was 0-1 week. On longitudinal review of the record, the Board finds that at no time under consideration is the Veteran’s headache disability shown to have been manifested by very frequent completely prostrating and prolonged attacks productive of severe economic inadaptability, so as to warrant the next higher (50 percent) rating under Code 8100. As noted, while the Veteran clearly has very frequent attacks of headaches, very frequent completely prostrating and prolonged attacks of headaches are not shown. In fact, on the last examination the Veteran denied prostrating attacks. When he had reported prostrating attacks (in December 2016), his descriptions of such attacks did not suggest they were very frequent or prolonged. Furthermore, the overall record does not suggest that the headaches have resulted in severe economic inadaptability, as contemplated in the criteria for a 50 percent rating. While the September 2020 examiner indicated that the headaches impact on employment (by causing impaired concentration), she also estimated that the effect of the impairment was loss of work of a week or less in a year, such level of impairment is encompassed by the criteria for the 30 percent rating assigned. Severe economic inadaptability due to migraine headaches is simply not shown (and the Veteran has not submitted, or identified and authorized VA to obtain, any records supporting that he has severe economic inadaptability due to migraine headaches). The preponderance of the evidence is against this claim; accordingly, a rating in excess of 30 percent is not warranted, and the appeal in this matter must be denied. 6. Entitlement to a rating in excess of 10 percent for a right knee disability. The March 2020 Board remand characterized the right knee rating issue as entitlement to a rating in excess of a combined 20 percent for a right knee disability. However, the issue is properly characterized as entitlement to a rating in excess of 10 percent for a right knee disability (the August 2015 rating decision noted that the right knee was previously rated at 10 percent as synovitis, right knee, with patellofemoral dysfunction, from October 1, 1994 to November 12, 2014, and from that date, the right knee is rated at 10 percent for limitation of flexion under Code 5260). Essentially, the current 10 percent rating was continued under another Code instead of being combined with the initial rating under the prior Code. When evaluating a service-connected disability based on limitation of motion, the Board must take into consideration functional loss due to pain under 38 C.F.R. § 4.40 and functional loss due to weakness, fatigability, incoordination or pain on movement of a joint under 38 C.F.R. § 4.45. See DeLuca v. Brown, 8 Vet. App. 202 (1995). In DeLuca, the Court held that a diagnostic code based on limitation of motion does not subsume 38 C.F.R. §§ 4.40 and 4.45 and that the rule against pyramiding set forth in 38 C.F.R. § 4.14 does not forbid consideration of a higher rating based on a greater limitation of motion due to pain on use, including use during flare-ups. Id. A finding of functional loss due to pain must be supported by adequate pathology and evidenced by the visible behavior of the veteran. 38 C.F.R. § 4.40; Johnston v. Brown, 10 Vet. App. 80, 85 (1997). Nonetheless, a rating higher than the minimum compensable rating is not assignable under any diagnostic code relating to range of motion where pain does not cause a compensable functional loss. Rather, the “pain must affect some aspect of ‘the normal working movements of the body’ such as ‘excursion, strength, speed, coordination, and endurance,’” as defined in 38 C.F.R. § 4.40, before a higher rating may be assigned. See Mitchell v. Shinseki, 25 Vet. App. 32, 37 (2011). The criteria for rating knee disabilities are found in Codes 5256 to 5263. Code 5256 provides for ratings from 30 to 60 percent for ankylosis of a knee. Under Code 5257, a 10 percent rating is warranted for slight recurrent subluxation or lateral instability, a 20 percent rating is warranted for moderate recurrent subluxation or lateral instability, and a 30 percent rating is warranted for severe recurrent subluxation or lateral instability. Code 5258 provides for a 20 percent rating for dislocated semilunar cartilage with frequent episodes of “locking,” pain, and effusion into the joint. Under Code 5259, a 10 percent rating is warranted for cartilage, semilunar, removal of, symptomatic. Under Code 5260, limitation of knee flexion to 60 degrees or more warrants a 0 percent rating, to 45 degrees warrants a 10 percent rating, to 30 degrees warrants a 20 percent rating, and to 15 degrees warrants a 30 percent rating. Under Code 5261, limitation of knee extension to 5 degrees warrants a 0 percent rating, to 10 degrees warrants a 10 percent rating, to 15 degrees warrants a 20 percent rating, to 20 degrees warrants a 30 percent rating, to 30 degrees warrants a 40 percent rating, and to 45 degrees warrants a 50 percent rating. Code 5262 provides for ratings for impairment due to malunion or nonunion of the tibia and fibula. Code 5263 provides for a 10 percent rating for acquired (traumatic) genu recurvatum. 38 C.F.R. § 4.71a. [Codes 5256, 5257, 5258, 5259, 5262, and 5263 have no applicability in this matter, as the pathology or manifestations in the rating criteria under those Codes (ankylosis, recurrent subluxation or lateral instability, dislocated semilunar cartilage, removal of semilunar cartilage, malunion or nonunion of tibia or fibula, or genu recurvatum) are not shown. 38 C.F.R. § 4.71a.] A February 2015 VA treatment record notes a past surgical history of right knee arthroplasty. On June 2015 VA knee examination, skeletal condition of the knee was diagnosed. The Veteran reported symptoms of right knee popping, pain, and numbness, and that he took Ibuprofen for the pain. He related that he was currently experiencing a right knee flare-up and that during a flare-up, his right knee swells and pops, and he experiences a sharp pain. The Veteran described functional impairment during a flare-up as occasional inability to complete tasks at work, and periodic inability to cut grass, walk a long distance, and pick up objects from the ground. He also reported bilateral leg pain with popping and pain when he walked. Right knee range of motion (ROM) testing showed flexion to 110 degrees and extension to 0 degrees. Pain that caused functional loss was noted on examination. There was no evidence of pain with weight-bearing or crepitus; but there was evidence of localized tenderness on palpation of the knee joint. The Veteran was able to perform repetitive use testing with at least three repetitions, and no additional functional loss or ROM was noted. He was examined immediately after repetitive use over time, pain limited his functional ability, and the functional loss was described in terms of ROM as flexion to 110 degrees and extension to 0 degrees. The examination was conducted during a flare-up, and pain and weakness limited functional ability during a flare-up. The functional loss was described in terms of ROM as flexion to 110 degrees and extension to 0 degrees. Right knee muscle strength testing was 4/5 in forward flexion and 4/5 in extension. Ankylosis was not shown. The examiner noted that there was not a history of right knee subluxation, lateral instability, or recurrent effusion. Joint stability testing showed no joint instability. A current or previous meniscus condition was not shown. The examiner indicated that the Veteran had undergone right knee arthroscopic surgery, and the reported residuals were popping, stiffness, pain, and swelling. The Veteran reported occasional use of a cane. Right knee X-rays did not show degenerative or traumatic arthritis. Regarding functional impact, the Veteran reported that his right knee made it difficult to do his job as a custodian, cut grass, walk long distances, and pick up objects from the ground. At the January 2020 videoconference hearing, the Veteran testified that his right knee disability has worsened in severity since his last VA examination in 2015. On September 2020 VA knee examination, right knee limitation of flexion and synovitis with patellofemoral dysfunction was diagnosed. The Veteran reported that he has right knee popping, swelling and intermittent pain, tries to keep his knee elevated, and takes BC powders as needed, which help with his intermittent throbbing pain. He reported no right knee flare-ups and described his functional loss as pain with standing and walking for an extended period of time, and pain with doing yard work. Right knee ROM testing showed flexion to 130 degrees and extension to 0 degrees. Pain that causes functional loss was noted on examination. There was no localized tenderness or pain on palpation of the knee joint, there was no evidence of pain with weight-bearing and non-weight-bearing, and there was no evidence of crepitus. There was objective evidence of pain on passive ROM testing. The Veteran was able to perform repetitive use testing, and there was additional loss of function after three repetitions. ROM after testing was flexion to 120 degrees and extension to 0 degrees. Pain, fatigue, weakness, and lack of endurance caused the functional loss. Right knee muscle testing showed flexion as 3/5 and extension as 3/5. Muscle atrophy was not shown. Ankylosis was not shown. There was no history of recurrent subluxation or lateral instability, but the Veteran reported a history of right knee effusion with multiple aspirations. Joint stability testing showed no joint instability. No previous or current meniscal conditions were noted. The examiner opined that the Veteran’s right knee would have some functional impact because he is unable to tolerate excessive or prolonged standing, walking, climbing, squatting, or heavy lifting due to his bilateral knee disabilities. The 10 percent rating assigned for the right knee throughout the period on appeal is based on painful motion of the knee under 38 C.F.R. § 4.59 and limitation of motion/flexion (under Code 5260 since November 12, 2014). To warrant an increase in the rating for the knee, the evidence would have to show limitation of knee flexion to 30 degrees, or compensable limitation of extension (to 10 degrees). The evidence of record does not show any such findings for the right knee. At no time is the Veteran’s right knee flexion shown to have been limited to 30 degrees; compensable limitation of extension was not found on any examination. The documented symptoms of pain on motion and limitation of flexion (on June 2015 and September 2020 examinations) are encompassed in the current rating. Further, although the Veteran reported flare-ups on June 2015 examination, the ROM that described such functional loss was well within the criteria for the 10 percent rating. The Board notes the Veteran’s complaints of pain upon walking, standing, and climbing, but observes that pain of itself without objective evidence of related function loss (to the extent that a higher rating would be warranted) does not provide a basis for an increase in the ratings. See Mitchell v. Shinseki, 25 Vet. App. 32, 37 (2011). Consequently, the Board finds that a rating in excess of 10 percent is not warranted for any period of time under consideration for the right knee. 7. Entitlement to a compensable rating for a left forehead scar is denied. Facial scars are rated under Code 7800, which provides for an 80 percent rating for scars of the head, face, or neck with visible or palpable tissue loss and either gross distortion or asymmetry of three or more features or paired sets of features, or; with six or more of the characteristics of disfigurement listed. A 50 percent rating is warranted with visible or palpable tissue loss and either gross distortion or asymmetry of two features or paired set of features (nose, chin, forehead, eyes (including eyelids), ears (auricles), cheeks, lips), or; with four or five characteristics of disfigurement. A 30 percent 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; with two or three characteristics of disfigurement. A 10 percent rating is warranted with one characteristic of disfigurement. 38 C.F.R. § 4.118, Code 7800. Note (1) to Code 7800 states that the 8 characteristics of disfigurement are: scar 5 or more inches (13 or more centimeters) in length, scar at least one-quarter inch (0.6 centimeters) 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 six square inches, skin texture abnormal (irregular, atrophic, shiny, scaly, etc.) in an area exceeding six square inches, underlying soft tissue missing in an area exceeding six square inches, or skin indurated and inflexible in an area exceeding six square inches. Note (4) to Code 7800 states that disabling effects other than disfigurement that are associated with individual scars of the head, face, or neck, such as pain, instability, and residuals of associated muscle or nerve injury, are to be separately evaluated under the appropriate Code, and 38 C.F.R. § 4.25 is to be applied to combine the evaluation with the rating assigned under Code 7800. Note (5) to Code 7800 states that the characteristics of disfigurement may be caused by one scar or by multiple scars; the characteristics required to assign a particular evaluation need not be caused by a single scar in order to assign that evaluation. A 30 percent rating is warranted for five or more scars that are unstable or painful. A 20 percent rating is warranted for three or four scars that are unstable or painful. A 10 percent rating is warranted for one or two scars that are unstable or painful. 38 C.F.R. § 4.118, Code 7804. Note (1) to Code 7804 states that an unstable scar is one where, for any reason, there is frequent loss of covering of skin over the scar. Note (2) to Code 7804 states that if one or more scars are both unstable and painful, add 10 percent to the evaluation that is based on the total number of unstable or painful scars. Note (3) to Code 7804 states that scars evaluated under Diagnostic Codes 7800, 7801, 7802, or 7805 may also receive an evaluation under this Diagnostic Code, when applicable. On June 2015 VA scar examination, the Veteran reported pain and tenderness to the scar over his left eye, with irritation wearing glasses, hats and any type of eyewear. On examination, he reported that the left forehead scar was not due to a burn and was not painful or unstable. The examiner indicated that the left forehead scar was superficial and non-linear and measured 3 cm x .3 cm. She opined that the left forehead scar did not result in limitation of function and did not impact on the Veteran’s ability to work. At the January 2020 videoconference hearing the Veteran testified that the rating assigned for his left forehead scar did not reflect the current severity of the scar. He stated that the scar hurt and was painful to touch. On September 2020 VA scars examination, the examiner noted that the Veteran did not have trunk or extremities scars but did have a left forehead scar. The Veteran reported that his left forehead scar was stable but periodically would become numb and itch. On examination, the left forehead scar measured 3.5 cm x 0.3 cm and there was no elevation, depression, adherence to underlying tissue, or missing underlying tissue and no abnormal pigmentation or texture of the head, face, or neck. The scar was not tender to palpation, was not unstable, and was not due to a burn. There was not gross distortion or asymmetry of facial features or visible palpable tissue loss. The examiner opined that the left forehead scar did not result in limitation of function and did not impact the Veteran’s ability to work. The Board finds that at no time under consideration is a compensable rating warranted for the left forehead scar. A 10 percent rating is warranted for one characteristic of disfigurement. The findings on the June 2015 and September 2020 VA examinations are consistent and there is no evidence of any of the eight characteristics of disfigurement. The scar is less than 13 centimeters in length or 0.6 centimeters wide; it is not elevated, depressed or adherent to underlying tissue; and it is not hypopigmented or hyperpigmented. There is no evidence of abnormal skin texture, that any underlying soft tissue is missing or that the skin is indurated or inflexible. Also, the scar is not stable or unpainful. The preponderance of the evidence is against this claim; accordingly, a compensable rating for a left forehead scar is not warranted, and the appeal in this matter must be denied. REASONS FOR REMAND While the Board regrets the further delay in resolution of the below matters, it finds a remand for further evidentiary development unavoidable. As discussed in greater detail below, the Board finds that the September 2020 medical opinions (regarding bilateral hearing loss, a cardiac disability, and a left leg disability) received in response to the March 2020 remand less than fully responsive to the remand directives, and inadequate for rating purposes, requiring corrective action. See Stegall v. West, 11 Vet. App. 268 (1998). 8. Entitlement to service connection for bilateral hearing loss. On July 2015 VA audiological examination, the examiner opined that the etiology of the Veteran’s bilateral hearing loss could not be determined without resort to mere speculation. He explained that there was no separation audiogram in the Veteran’s STRs, and that a hearing conservation audiogram on Mar 19, 1982, a year prior to separation, demonstrated no threshold shift since his enlistment in April1980. The Board found the opinion inadequate because a lack of audiometry for review is not fatal to the Veteran’s claim, and the provider did not properly consider the Veteran’s reported history of exposure to noise in service. On September 2020 VA hearing loss examination, the examiner noted that on April 1980 service entrance examination, the Veteran had normal hearing bilaterally, there was no separation examination in the claim’s file, and his job during service was working with cannons which has a high probability of hazardous noise exposure. The examiner opined that it was less likely than not that any hearing loss is related to service because on examination, the Veteran’s hearing loss was within normal limits. The opinion is inadequate because it did not consider the findings on July 2015 audiological evaluation when the Veteran had hearing loss in accordance with 38 C.F.R. § 3.385 (his puretone threshold average from 1000-4000 Hz in the right and left ear was 46 and 60, respectively). Therefore, another examination is necessary to reconcile the disparate findings between the two examinations and determine whether the Veteran has a hearing loss disability, and, if so, obtain an adequate medical advisory opinion regarding the etiology of his hearing loss disability. 9. Entitlement to service connection for a heart disability, claimed as CAD. Service connection for a heart disability has been denied essentially because the Veteran’s STRs do not show treatment for heart complaints in service. At the January 2020 videoconference hearing he testified that he first sought treatment for heart problems in 2010 when he suffered a heart attack. He related that during service he participated in exercises as a mortarman that caused stress and put a strain on his heart. Additionally, the Veteran initially filed the claim as heart disease secondary to use of Sudafed taken for service-connected disabilities. On September 2020 VA heart examination, myocardial infarction, atherosclerotic cardiovascular disease, CAD, atrial fibrillation, and percutaneous coronary intervention (PCI) were diagnosed. The Veteran reported that in approximately 2012 he experienced shortness of breath and was unable to sleep. He sought treatment, and a heart test showed blockage. He had a stent placed, and in 2013 he experienced chest pain and had another stent placed. The Veteran reported occasional shortness of breath and chest pain. The examiner opined that it was less likely than not that a heart disability was related to his service. She explained that he had a diagnosis of a myocardial infarction and required stents and that the etiology of such disability was coronary artery disease, which is usually caused by atherosclerosis. The examiner indicated that the Veteran also had atrial fibrillation (AFib) and that abnormalities or damage to the heart’s structure were the most common cause of AFib. She listed several possible causes of AFib and indicated that the Veteran had multiple risk factors for AFib, but did not note such factors. The examiner opined that there was no evidence that the Veteran’s AFib resulted from or was caused by his active military service/activities therein, and no evidence that his heart disabilities were caused and/or aggravated by medication he took for his service-connected disabilities. The opinion is inadequate for multiple reasons. Although the examiner identified the Veteran’s heart disabilities, the opinion essentially just provided the definitions for such disabilities, and the opinion was cursory and lacked adequate rationale because it was not supported with medical evidence or citation to the record. Another examination to obtain an adequate medical advisory opinion is necessary. 10. Entitlement to service connection for a left leg disability. Service connection for a left leg disability has been denied because such disability was not shown to be related to the Veteran’s service. However, at the January 2020 videoconference hearing, he raised an alternate theory of entitlement (that a left leg disability was caused or aggravated by his service-connected right knee disability). On September 2020 VA leg examination, left knee degenerative arthritis was diagnosed. The Veteran reported that his left knee and lower leg began hurting during service in 1986. He could not recall a specific knee and/or leg injury, and indicated that he had no current left leg or left knee “issues.” The examiner opined that it was less likely than not that a left leg disability was related to service. She noted that during service in 1982, the Veteran injured his left leg and received a diagnosis of a contusion secondary to a soft tissue injury. She explained that it was an acute injury because there was no evidence of chronicity of care for a left leg disability. Further, no current left leg disability was identified or diagnosed in the claims file or on current examination. Therefore, the examiner further opined that there was no evidence of a left leg disability that was caused by or aggravated by a service-connected right knee disability. The opinion is inadequate for rating purposes because although left knee arthritis was diagnosed on examination, the examiner did not identify the etiology for such disability or address whether it may have been caused or aggravated by a right knee disability. Therefore, development for an adequate medical advisory opinion is necessary. The record suggests that the Veteran receives ongoing treatment for hearing loss, heart, and left leg disabilities from VA. Records of such treatment may contain pertinent evidence, and all outstanding records of such treatment must be obtained and considered. Notably, VA records are constructively of record. The matters are REMANDED for the following: 1. Secure for association with the record complete clinical records of all updated VA evaluations and treatment the Veteran has received for hearing loss, heart, and left leg disabilities. 2. Then arrange for an audiological evaluation of the Veteran to ascertain the likely etiology of his hearing loss disability. The Veteran’s record must be reviewed by the examiner in conjunction with the examination. The examiner should: (a) Identify the likely etiology of the Veteran’s hearing loss disability. Specifically, is it at least as likely as not (i.e., a 50% or better probability) that it is related to the Veteran’s service (to include as due to his exposure to noise therein)? If hearing loss in accordance with 38 C.F.R. § 3.385 is not diagnosed, reconcile such finding with the findings on July 2015 examination. (b) If a hearing loss disability found is determined to not be related to service, identify the etiology for the hearing loss that is considered to be more likely (and explain why that is so). Include rationale with all opinions. 3. Also arrange for the Veteran to be examined by an appropriate physician (other than the September 2020 examiner) to determine the likely etiology for his heart disability, and specifically, whether it was caused or aggravated by medication (including aspirin/Sudafed) taken for his service-connected disabilities. The Veteran’s claims file must be reviewed by the examiner in conjunction with the examination, and any indicated studies or tests should be completed. On review of the record and examination of the Veteran, the examiner should provide opinions that respond to the following: (a) Identify (by diagnosis) each heart disability entity. (b) Identify the likely etiology for each heart disability entity diagnosed. Specifically, is it at least as likely as not (a 50% or better probability) that the disability is related to the Veteran’s active military service/activities therein? (The examiner must acknowledge the Veteran’s January 2020 testimony that during service he participated in exercises as a mortarman, asserting that such activity caused stress and put a strain on his heart.) (c) If a diagnosed heart disability entity is determined to not be directly related to the Veteran’s service, indicate whether it is at least as likely as not that the heart disability was caused or aggravated by medication he has taken for service-connected disabilities. [The opinion must address aggravation.] The examiner must explain the rationale for all opinions. 4. Also arrange for an orthopedic examination of the Veteran (by a provider other than the September 2020 examiner) to determine the likely etiology of his left leg disability, and specifically whether it is directly related to (was incurred during) his active service. His claims file must be reviewed by the examiner in conjunction with the examination. On examination of the Veteran and review of his record, the examiner should: (a) Identify (by diagnosis) each left leg disability entity found, to include left knee arthritis. (If left k arthritis is not diagnosed, reconcile such finding with the finding of left knee arthritis noted on September 2020 examination.) (b) Identify the likely etiology for each left leg disability entity diagnosed. Is it at least as likely as not (a 50% or better probability) that such disability was incurred during the Veteran’s active service? (c) If the opinion is that a diagnosed left leg disability was not incurred in service, identify the etiology that is considered to be more likely. (d) If a diagnosed left leg disability is not directly related to the Veteran’s service, opine further whether it is at least as likely as not that it was caused or aggravated by (increased in severity due to) the Veteran’s service-connected right knee disability. [The opinion must address aggravation.] (e) If a service-connected disability did not cause, but aggravated, a left leg disability, quantify, to the extent possible, the degree of disability (symptoms and/or /impairment) that resulted from the aggravation. Include rationale with all opinions. GEORGE R. SENYK Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board J. Bayles, 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.