Citation Nr: 21030306 Decision Date: 05/18/21 Archive Date: 05/18/21 DOCKET NO. 17-29 744 DATE: May 18, 2021 ORDER Entitlement to an increase rating in excess of 10 percent for degenerative joint and disc disease of L5-S1 (claimed as a lower back condition) is dismissed. Entitlement to an increase rating in excess of 10 percent for left knee osteochondroma is dismissed. An increased rating to 70 percent, but no higher, from August 17, 2016 for adjustment disorder is granted. New and material evidence having been received, the petition to reopen the claim for service connection for right knee degenerative joint disease (claimed as right knee condition) is granted. REMANDED Entitlement to service connection for right knee degenerative joint disease (claimed as right knee condition) is remanded. Entitlement to service connection for sleep apnea is remanded. Entitlement to a compensable rating for hypertension is remanded. FINDINGS OF FACT 1. On March 14, 2018, the Board received a letter from the Veteran's attorney representative withdrawing the Veteran's appeal for an increased rating and earlier effective date for degenerative joint and disc disease of the L5-S1. 2. In March 14, 2018, the Board received a letter from the Veteran's representative withdrawing the Veteran's appeal for an increased rating and earlier effective for a left knee osteochondroma. 3. The Veteran's adjustment disorder manifested with social and occupational impairment with deficiencies in most areas, such as work, family relations, and mood, but total social and occupational impairment has not been demonstrated. 4. The Veteran submitted new and material evidence to reopen his claim for a right knee condition in the form of a November 2016 VA examination that diagnosed right knee degenerative arthritis, the diagnosis was new because it had previously not been associated with the file and material since it tended to support a basis for the prior denial, that the Veteran had a current disability. CONCLUSIONS OF LAW 1. The criteria for withdrawal of the appeal for an increased rating for degenerative joint and disc disease of L5-S1 (claimed as a lower back condition) by his authorized representative are met. 38 U.S.C. § 7105; 38 C.F.R. § 19.55. 2. The criteria for withdrawal of the appeal for an increased rating for left knee osteochondroma by his authorized representative are met. 38 U.S.C. § 7105; 38 C.F.R. § 19.55. 3. The criteria for a disability rating of 70 percent, but no higher, from August 17, 2016, for adjustment disorder are met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.126, 4.130, Diagnostic Code 9440. 4. The criteria for a disability rating in excess of 70 percent for adjustment disorder, unspecified are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.126, 4.130, Diagnostic Code 9440.The criteria for reopening the claim for service connection for a right knee degenerative joint disease (claimed as right knee condition) are met. 38 U.S.C. § 5108; 38 C.F.R. § 3.156(a). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from January 1987 to November 1994, July 2003 to June 2005, and from April 2009 and July 2010. These matters come before the Board of Veterans' Appeals (Board) on appeal from March 2015 and 2017 rating decisions from a Department of Veterans Affairs (VA) Regional Office (RO). In February 2021, the Veteran testified at a hearing before the undersigned Veterans Law Judge. A transcript of the hearing has been associated with the file. Withdrawal 1. Entitlement to an increase rating in excess of 10 percent for degenerative joint and disc disease of L5-S1 (claimed as a lower back condition) is dismissed. 2. Entitlement to an increase rating in excess of 10 percent for left knee osteochondroma is dismissed. The Board may dismiss any appeal which fails to allege specific error of fact or law in the determination being appealed. 38 U.S.C. § 7105. An appeal may be withdrawn in writing as to any or all issues involved in the appeal at any time before the Board promulgates a decision. 38 C.F.R. § 19.55(b). Withdrawal may be made by the appellant or by his or her authorized representative. Id. In a March 2018 written statement, the Veteran, through his attorney representative, stated that he desired to formally withdraw his appeal for an increased rating and earlier effective date for degenerative joint and disc disease of L5-S1 (claimed as a lower back condition) and left knee osteochondroma (claimed as a left knee condition). The Veteran's representative filed a written request to withdraw his claims for an increased rating and earlier effective dates for degenerative joint disc disease and left knee osteochondroma. Therefore, in order for the withdrawal to be effective the request needed to have the veteran's name, VA file number, and a statement that the appeal is withdrawn. See Hembree v. Wilkie, 33 Vet. App. 1 (2020) (holding that, unlike an oral withdraw at a hearing, a written withdrawal request does not require full understanding of the consequences of such action on the part of the claimant, but needs to comply with the applicable regulation). The March 2018 statement complied with the aforementioned, and therefore the Board finds that it was an effective withdrawal of the claims for an increased rating and earlier effective date for degenerative joint and disc disease of L5-S1 (claimed as a lower back condition) and left knee osteochondroma (claimed as a left knee condition). Since the Veteran's withdrawal of the aforementioned claims was effective; there remains no allegations of errors of fact or law for appellate consideration as to that matter. Accordingly, the Board does not have jurisdiction to review the above issues, and they are dismissed. Increased Rating VA Schedule for Rating Disabilities, found in 38 C.F.R., Part 4. The percentages are based on the average impairment of earning capacity as a result of service-connected disability, and separate diagnostic codes identify the various disabilities and the criteria for specific ratings. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. If two disability evaluations are potentially applicable, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for that rating; otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. All reasonable doubt as to the degree of disability will be resolved in favor of the claimant. 38 C.F.R. § 4.3. Where entitlement to compensation has already been established and an increase in the disability rating is at issue, the primary concern is the present level of disability. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). However, the Board must also consider staged ratings, which are appropriate in this case. Hart v. Mansfield, 21 Vet. App. 505, 50910 (2007). Hyphenated diagnostic codes are used when a rating under one diagnostic code requires the use of an additional diagnostic code to identify the basis for the evaluation assigned; the additional code is shown after the hyphen. The evaluation of the same disability under several diagnostic codes, known as pyramiding, must be avoided; however, separate ratings may be assigned for distinct disabilities resulting from the same injury so long as the symptomatology for one condition is not duplicative of or overlapping with the symptomatology of the other. Esteban v. Brown, 6 Vet. App. 259, 262 (1994); 38 C.F.R. § 4.14. The Veteran is competent to report symptoms and experiences observable by his senses. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); 38 C.F.R. § 3.159(a). 3. An increased rating to 70 percent but no higher from August 17, 2016 for adjustment disorder is granted. The Veteran contends that his adjustment disorder should have been rated at 70 percent for the entire period on appeal. See Hearing Transcript received 2/09/2021 at page 22. At the February 2021 hearing, the Veteran testified that he takes medication for anxiety and depression related to treat his adjustment disorder and that his medication has increased during the period on appeal. See Hearing Transcript received 2/09/2021 at pages 9-10. Further, he testified that he had symptoms such as nightmares, difficulty interacting with others, panic attacks, a temper, and visual and auditory hallucinations. Id. at pages 10-15. The Veteran also stated that he receives his care for his adjustment disorder at VA. Psychiatric disabilities are rated based on the General Rating Formula codified in 38 C.F.R. § 4.130, which provides disability ratings are based on a spectrum of symptoms. "A veteran may qualify for a given disability rating by demonstrating the particular symptoms associated with that percentage, or others of a similar severity, frequency, and duration." Vazquez-Claudio v. Shinseki, 713 F.3d 112, 117 (Fed. Cir. 2013). VA must consider all symptoms of a claimant's condition that affect the level of occupational and social impairment, including, if applicable, those identified in the American Psychiatric Association: Diagnostic and Statistical Manual of Mental Disorders (4th ed. 1994) (DSM-IV) and (5th ed. 2013) (DSM-5). See Mauerhan v. Principi, 16 Vet. App. 436, 442-43 (2002). VA is to engage in a holistic analysis in which it assesses the severity, frequency, and duration of the signs and symptoms of the veteran's service-connected mental disorder; quantifies the level of occupational and social impairment caused by those signs and symptoms; and assigns an evaluation that most nearly approximates that level of occupational and social impairment. Bankhead v. Shulkin, 29 Vet. App. 10, 22 (2017). Under the General Rating Formula for Mental Disorders per 38 C.F.R. § 4.130, in pertinent part, a 30 percent disability rating is warranted when there is occupational and social impairment with occasional decreases in work efficiency and intermittent periods of inability to perform occupational tasks (although generally functioning satisfactorily, with routine behavior, self-care, and conversation normal), due to such symptoms as: depressed mood, anxiety, suspiciousness, panic attacks (weekly or less often), chronic sleep impairment, and mild memory loss (such as forgetting names, directions, recent events). A 50 percent rating is warranted if the disability is productive of occupational and social impairment with reduced reliability and productivity due to such symptoms as: flattened affect; circumstantial, circumlocutory, or stereotyped speech; panic attacks more than once a week; difficulty in understanding complex commands; impairment of short and long-term memory (e.g., retention of only highly learned material; forgetting to complete tasks); impaired judgment; impaired abstract thinking; disturbances of motivation and mood; difficulty in establishing and maintaining effective work and social relationships. A 70 percent rating is warranted for occupational and social impairment, with deficiencies in most areas, such as work, school, family relations, judgment, thinking or mood, due to such symptoms as: suicidal ideation; obsessional rituals which interfere with routine activities; speech intermittently illogical, obscure, or irrelevant; near-continuous panic or depression affecting the ability to function independently, appropriately and effectively; impaired impulse control (such as unprovoked irritability with periods of violence); spatial disorientation; neglect of personal appearance and hygiene; difficulty in adapting to stressful circumstances (including work or a work like setting); inability to establish and maintain effective relationships. The criteria for a 100 percent rating are: 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 hygiene); disorientation to time or place; memory loss for names of close relatives, own occupation, or own name. Considerations in evaluating a mental disorder include the frequency, severity, and duration of psychiatric symptoms, the length of remissions, and the Veteran's capacity for adjustment during periods of remission. The evaluation must be based on all evidence of record that bears on occupational and social impairment rather than solely on an examiner's assessment of the level of disability at the moment of the examination. 38 C.F.R. § 4.126(a). Although the extent of social impairment is a consideration in determining the level of disability, the rating may not be assigned solely on the basis of social impairment. 38 C.F.R. § 4.126(b). The Veteran is currently rated at 70 percent from September 8, 2020, and 30 percent from August 17, 2016. The Veteran's claim for an increased rating for his service-connected adjustment disorder was received on August 17, 2016. See VA 21-526EZ, Fully Developed Claim received 8/17/2016. Therefore, the Board must consider whether the Veteran is entitled to a rating in excess of 30 percent from August 17, 2016 (or in the year prior), and in excess of 70 percent after September 8, 2020. The Veteran was provided a VA examination in November 2016. The November 2016 VA examiner diagnosed the Veteran with adjustment disorder, unspecified and alcohol use disorder, moderate and in early remission. See C&P Exam received 11/14/2016. Only one symptom was considered active, chronic sleep impairment. The Veteran had no legal or behavioral problems noted since his prior examination. Id. at page 12. The Veteran denied suicidal or homicidal ideation and anxiety. Id. at page 11. Overall, the November 2016 VA examiner found the Veteran reports were inconsistent, vague, and contradictory, and found him to be a questionable informant. Id. at page 14. The Veteran provided a Disability and Benefits Questionnaire form a private psychologist, Dr. C.C. in June 2018. See DBQ received 6/25/2018. Dr. C.C. diagnosed the Veteran with posttraumatic stress disorder (PTSD) and Depressive Disorder. Id. at page 1. Dr. C.C. found that Veteran had occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking, and mood. In addition to meeting the DSM-V criteria for PTSD, Dr. C.C. also found that the Veteran had symptoms of isolation, hypervigilance, sleep impairment and periods of emotional explosiveness. Id. at page 5. The Veteran received another VA examination in April 2019. Like the private DBQ findings of Dr. C.C., the April 2019 VA examiner found that the Veteran had occupational and social impairments with deficiencies in most areas. See C&P Exam received 4/09/2019 at page 3. In addition to the diagnoses of PTSD and Depressive Disorder, the April 2019 VA examiner found that the Veteran had additional diagnoses of generalized anxiety disorder and panic disorder. Id. at page 2. In her remarks, the April 2019 VA examiner opined that the Veteran's symptoms are more complex and more severe than an Adjustment disorder, unspecified diagnosis would suggest. Id. at page 9. The Veteran received another VA examination in November 2020. Again, the November 2020 VA examiner found that the Veteran had social and occupational impairment in most areas. See C&P Exam received 11/02/2020 at page 3. That said, the November 2020 VA examiner found that the Veteran only met the criteria for Major Depressive Disorder, no other mental disorders were diagnosed. Id. at page 2. Given that three separate examiners found that the Veteran had social and occupational impairment in most areas, which corresponds to a 70 percent rating, and is consistent with his hearing testimony; the Board finds that the Veteran met the criteria for an increased rating to 70 percent for the entire period on appeal. In finding that the evidence of record is at least in equipoise that the Veteran met the criteria for a 70 percent rating for the entire appeal period, the Board finds that the November 2016 VA examiner's medical opinion is entitled to less probative weight since it was largely the product of the examiner making a negative credibility finding which discounted the Veteran's symptoms of auditory and visual hallucinations, anxiety, and memory issues, for example. Accordingly, an increased rating to 70 percent, but no higher, from August 17, 2016 is granted. That said, the Board finds that the preponderance of the evidence is against a finding that the Veteran has total social and occupational impairment due to his adjustment disorder. First, the Board gives great weight to the private DBQ from Dr. C.C., and the April 2019 and November 2020 VA examinations, which all consistently found that the Veteran had social and occupational deficiencies in most areas and not total occupational and social impairment. Additionally, although in the November 2020 VA examination the Veteran reported being reprimanded for road rage behaviors, he has employed in his current position (driving a roll off truck) for at least two years with no legal problems nor substance abuse issues. Id. at pages 4-5. The Board finds such competent evidence tends to weight against a finding of total occupation impairment. Relatedly, the Veteran has expressed that although he may get into verbal altercations it does not become physical because he walks away. See C&P Exam received 4/09/2019 at page 5. This tends to show that the Veteran has some impulse control and is not a persistent danger to others. Socially, the 2019 VA examination report reflect that the Veteran had some contact with his sister and that while he does not have best friends, he does have associates. Meanwhile, the 2018 DBQ indicates that the Veteran has an inability to establish and maintain effective relationships and the 2020 VA examination report reflect that the Veteran has a relationship with his mother, but no close friends. The Board finds such competent evidence tends to weight against a finding of total social impairment. See Total, Merriam-Webster, https://www.merriam-webster.com/dictionary/total (defining the adjective "total" as, among other entries, absolute). Additionally, throughout the VA examinations, the Veteran was found to be alert and oriented, well-groomed with speech within normal limits and goal oriented, and his thinking was described as clear. See C&P Exam received 11/02/2020 at page 6; see also C&P Exam received 4/09/2019 at page 8. Although, the Veteran indicated memory issues, the examiners found that his memory issues were with short- and long-term memory, and not so severe as to forget the name of close relatives, occupation, or his own name. The Board further finds that the Veteran has consistently denied suicidal ideation and homicidal intent throughout appeal period. See C&P Exam received 11/14/2016 at page 11; see also C&P Exam received 4/09/2019 at page 8; and C&P Exam received 11/02/2020 at page 6. Although the Board acknowledges that the Veteran has reported some symptoms such as hallucinations and memory issues, the Board finds that a holistic analysis of the Veteran's reveals that the Veteran's more nearly approximate a 70 percent rating when severity, frequency, and duration of signs and symptoms are considered. See Bankhead v. Shulkin, 29 Vet. App. 10, 22 (2017). Accordingly, a rating in excess of 70 percent is denied. New and Material Evidence New and material evidence having been received, the petition to reopen the claim for service connection for right knee degenerative joint disease (claimed as right knee condition) is granted. Where a claim has been finally adjudicated, a claimant must present new and material evidence to reopen the previously denied claim. See 38 U.S.C. § 5108; 38 C.F.R. § 3.156(a); see also Wakeford v. Brown, 8 Vet. App. 239-40 (1995). New evidence is that which was not previously submitted to agency decision makers. Material evidence is that which by itself, or when considered with previous evidence of record, relates to an unestablished fact that is 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 final denial, and it must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a). For the purpose of reopening, evidence received is generally presumed credible. Justus v. Principi, 3 Vet. App. 510, 513 (1992). There is a low threshold for finding new evidence that raises a reasonable possibility of substantiating a claim. Shade v. Shinseki, 24 Vet. App. 110, 117 (2010). VA should consider whether the newly received evidence could reasonably substantiate the claim were the claim to be reopened, including whether VA's duty to provide a VA examination is triggered. There must be new and material evidence as to at least one of the bases of the prior disallowance to warrant reopening. Shade, 24 Vet. App. at 117-20. The Veteran's claim for service connection for a right knee condition was last denied in an April 2015 Board decision. 38 U.S.C. § 7104. The record does not reflect that this Board decision was appeal. In its April 2015, the Board found that the Veteran did not have a current disability since the examiner concluded that the Veteran had a normal right knee. See BVA Decision received 4/22/2015 at page 7. In September 2016, the Veteran filed to reopen the claim for service connection for right knee condition. See VA 21-0820 Report of General Information received 9/09/2016. In November 2016, the Veteran was provided a VA examination that diagnosed him with arthritis of the right knee. See C&P Exam received 11/15/2016 at page 1. The diagnosis of degenerative arthritis of the right knee was new because it was previously not associated with the file, and material since related to a previously unestablished fact that was the basis for the prior denial, a current disability. Accordingly, the petition to reopen the claim of service connection for right knee condition is reopened. REASONS FOR REMAND 1. Entitlement to a compensable rating for hypertension is remanded. The Veteran disagrees with his noncompensable rating for hypertension. See NOD received 5/01/2017. The Veteran was last provided a VA examination for hypertension in November 2016. At the November 2016 VA Examination, the Veteran stated that he did not check his blood pressure at home and his primary care physician frequently check it when he goes in for treatment. See C&P Exam received 11/15/2016 at page 1. At the hearing, it appears that the Veteran testified that he receives treatment for his hypertension outside of VA at a private facility in Raleigh once or twice per year. See Hearing Transcript received 2/09/2021 at page 21. A review shows that the Veteran's file does not contain the treatment records from his private provider, Dr. D. Accordingly, the Board will remand for the missing treatment records and a new VA examination once those records have been associated with the file. 2. Entitlement to service connection for right knee degenerative joint disease (claimed as right knee condition) is remanded. The Veteran contends that his right knee degenerative joint disease (right knee condition) is secondary to his service-connected left knee osteochondroma. See NOD received 5/01/2017 at page 4; see also Third Party Correspondence received 3/01/2018 at page 4. Alternatively, the Veteran contends that his right knee condition is due to his service-connected lumbar spine disability. See Hearing Transcript received 2/09/2021 at page 3. Since no examiner has opined on the relationship between the Veteran's lumbar spine disability and his right knee condition, the Board finds that a remand for a new VA examination and medical opinion is warranted to supplement the record with medical evidence on these theories of entitlement. 3. Entitlement to service connection for sleep apnea is remanded. The Veteran contends that his sleep apnea is secondary to his service-connected disabilities of adjustment disorder, left knee osteochondroma, and degenerative joint and disc disease of L5-S1, which he argues led to his obesity, which in turn was an 'intermediate step' to his sleep apnea. See Third Party Correspondence received 2/19/2021 at pages 3-4. At the hearing, the Veteran testified that his adjustment disorder affects his mood and motivation. See Hearing Transcript received 2/09/2021 at page 18. Additionally, the Veteran testified that his service connected back, and left knee disabilities leave him unable to exercise. Id. at page 19 and 20. VA's General Counsel (GC) issued a precedential opinion concerning service connection based on obesity. See VAOPGCPREC 1-2017 (Jan. 6, 2017). Precedent opinions issued by VA's chief legal officer are binding on the Board. 38 U.S.C. § 7104(c). VAOPGCPREC 1-2017 concludes that obesity per se is not a disease or injury for purposes of 38 U.S.C. § 1110 and therefore service connection may not be established on a direct basis. Obesity is also not a disability for the purposes of secondary service connection per 38 C.F.R. § 3.310. While service connection cannot be established for obesity as a matter of law, obesity may act as an "intermediate step" between a service-connected disability and a current disability that may be service-connected on a secondary basis per § 3.310. Indeed, VA may service connect the current disability on a secondary basis under 38 C.F.R. § 3.310(a) to include aggravation of a non-service-connected disability. See Walsh v. Wilkie, 32 Vet. App. 300, 304, 306 (2020) (explaining service connection may be granted on a secondary basis where the claimed disability would not have occurred but for obesity caused or aggravated by a service-connected disability). To determine whether obesity is an intermediate step between a service-connected disability and the development of a current disability that may be service connected on a secondary basis, the following criteria must all be satisfied: 1) the service-connected disability must have caused the Veteran to become obese; 2) the obesity, as a result of the service-connected disability must have been a substantial factor in causing the potential secondary disability; and 3) the potential secondary disability would not have occurred but for the obesity caused by the service-connected disability. The Veteran was afforded a VA examination for sleep apnea in March 2017. The examiner only provided an opinion for secondary service connection and aggravation due to PTSD, and not an opinion on the Veteran alternate theory of entitlement, secondary service connection due to obesity as an intermediate step between the above-mentioned service connected disabilities and sleep apnea. Accordingly, the Board finds that a remand is warranted for a new VA examination and medical opinion that considers the alternate theory of entitlement to service connection. These matters are REMANDED for the following actions: 1. Request the Veteran submit to VA or authorize VA to obtain treatment records from his private physician in Raleigh, NC, Dr. D., regarding treatment for hypertension. Allow the appropriate time for a response. 2. After associating records from directive #1, schedule the Veteran for an examination by an appropriate clinician to determine the current severity of his service-connected hypertension. The examiner is to provide a full description of the disability and report all signs and symptoms necessary for evaluating the Veteran's disability under the rating criteria. 3. Schedule the Veteran for a VA examination for his right knee condition. The examiner must review the claims file. If a diagnosis cannot be provided but the Veteran's condition manifests in symptoms that cause functional impairment, then the examiner should consider them a "disability" for the purpose of providing the requested opinion below. The examiner is asked to provide a response to the following: Is the Veteran's right knee condition at least as likely as not (50 percent or greater probability) proximately due to his service-connected left knee osteochondroma and/or his service-connected lumbar spine disability? Is the Veteran's right knee condition at least as likely as not (50 percent or greater probability) aggravated, i.e., worsened beyond its natural progression, by his service-connected left knee osteochondroma and/or his service-connected lumbar spine disability? 4. Schedule the Veteran for a VA examination for his diagnosed sleep apnea. The examiner must review the claims file. If needed, conducted another sleep study. The examiner is asked to provide a response to the following: (a.) Is it at least as likely as not (50 percent or greater) that the Veteran's disabilities were caused by a disease or injury in service? (b.) Is it at least as likely as not (50 percent or greater) that the Veteran's sleep apnea was either 1) proximately due to OR 2) aggravated by any service-connected disability, to include his service-connected depressive/adjustment disorder and/or left knee and/or back? (c.) If the answer is no to question (a) and (b), whether the obesity/weight gain as a result of the service-connected disabilities was a substantial factor in causing his OSA; (d.) Whether his OSA would not have occurred but for the obesity/weight gain caused by the service-connected disabilities. Inform the examiner further that, for VA purposes, obesity is not a disease or disability for which service connection may be granted, but it may act as an "intermediate step" between a service-connected disability and a current disability that may be service-connected on a secondary basis. To determine whether any weight gain or obesity is an "intermediate step" between either any or all of the Veteran's service-connected disabilities and his OSA, the examiner is to fully answer the above questions to assist the Board with adjudication of these matters. A comprehensive rationale for all opinions is to be provided. All pertinent evidence, including both lay and medical, should be considered. See 4/27/2015 Correspondence (Association of Psychiatric Disorders and Sleep Apnea in a Large Cohort); 4/27/2015 Buddy/Lay Statement. (Continued on the next page) If an opinion cannot be given without resorting to speculation, the examiner should explain why and state whether the need to speculate is due to a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts), the record (additional facts are required), or the examiner (does not have the knowledge or training). Paul Sorisio Veterans Law Judge Board of Veterans' Appeals Attorney for the Board S. Dixon, 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.