Citation Nr: 21040532 Decision Date: 07/05/21 Archive Date: 07/05/21 DOCKET NO. 20-01 375 DATE: July 5, 2021 ISSUES 1. Whether new and material evidence has been received to reopen the claim for service connection for a disability manifested by right eye blindness. 2. Whether new and material evidence has been received to reopen the claim for service connection for leukemia. 3. Entitlement to service connection for leukemia. 4. Entitlement to service connection for hypertension. 5. Entitlement to service connection for an acquired psychiatric disorder, variously claimed as depression, and as secondary to insomnia and service-connected bilateral hearing loss disability. 6. Entitlement to service connection for a disability manifested by insomnia, to include as secondary to service-connected bilateral hearing loss disability. 7. Entitlement to service connection for left knee arthritis. 8. Entitlement to service connection for left shoulder arthritis. 9. Entitlement to service connection for right knee arthritis. 10. Entitlement to service connection for right shoulder arthritis. 11. Entitlement to service connection for a disability manifested by right eye blindness. 12. Entitlement to a compensable disability rating for service-connected bilateral hearing loss disability. ORDER New and material evidence sufficient to reopen the claim of service connection for a disability manifested by right eye blindness has been received, and to that extent only, the claim is granted. New and material evidence sufficient to reopen the claim of service connection for leukemia has been received, and to that extent only, the claim is granted. The appeal on the issue of entitlement to service connection for leukemia is dismissed. Entitlement to service connection for hypertension is denied. REMANDED Entitlement to service connection for an acquired psychiatric disorder, variously claimed as depression, and as secondary to insomnia and service-connected bilateral hearing loss disability, is remanded. Entitlement to service connection for a disability manifested by insomnia, to include as secondary to service-connected bilateral hearing loss disability, is remanded. Entitlement to service connection for left knee arthritis is remanded. Entitlement to service connection for left shoulder arthritis is remanded. Entitlement to service connection for right knee arthritis is remanded. Entitlement to service connection for right shoulder arthritis is remanded. Entitlement to service connection for a disability manifested by right eye blindness is remanded. Entitlement to a compensable disability rating for service-connected bilateral hearing loss disability is remanded. FINDINGS OF FACT 1. A December 2016 rating decision denied service connection for right eye blindness and for leukemia. The Veteran filed a timely May 2017 Notice of Disagreement (NOD). 2. A February 2018 Statement of the Case (SOC) ultimately denied service connection for right eye blindness and leukemia. The Veteran was notified of his rights, but did not perfect an appeal. That decision became final. 3. The evidence associated with the record since the February 2018 SOC relates to an unestablished fact necessary to substantiate the claims, and raises a reasonable possibility of substantiating the claims of service connection for a disability manifested by right eye blindness and for leukemia. 4. At the February 2021 hearing, the Veteran through his attorney informed the Board that he wished to withdraw his appeal related to entitlement to service connection for leukemia. 5. Hypertension was not manifest in service or within one year of separation, and is not otherwise attributable to service. CONCLUSIONS OF LAW 1. New and material evidence sufficient to reopen the claim of service connection for a disability manifested by right eye blindness has been received. 38 U.S.C. § 5108 (2012); 38 C.F.R. § 3.156 (a). 2. New and material evidence sufficient to reopen the claim of service connection for leukemia has been received. 38 U.S.C. § 5108 (2012); 38 C.F.R. § 3.156 (a). 3. The criteria for withdrawal of a substantive appeal by the Veteran on the issue of entitlement to service connection for leukemia have been met. 38 U.S.C. § 7105; 38 C.F.R. § 19.55. 4. Hypertension was not incurred in or aggravated by service, and cardiovascular-renal disease may not be presumed to have been incurred therein. 38 U.S.C. §§ 1101, 1110, 1112, 1113, 1131, 1137, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309 (2018). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from October 1957 to October 1959. His military occupational specialty (MOS) was as a heavy weapons infantryman. His decorations include a parachutist badge. This matter is before the Board of Veterans Appeals (Board) on appeal from November 2017 and August 2018 rating decisions by the Department of Veterans Affairs (VA) Regional Office (RO). The Veteran testified before the undersigned Veterans Law Judge (VLJ) in February 2021. A copy of the hearing transcript has been associated with the claims file. As a threshold issue, the Board observes that there is procedural history relevant to the cluster of three issues on appeal of an increased disability rating for bilateral hearing loss disability, service connection for a right eye disability, and service connection for leukemia. These issues were first adjudicated by way of a December 2016 rating decision. The Veteran filed a timely Notice of Disagreement (NOD) in May 2017. Two copies were received. A February 2018 Statement of the Case (SOC) was issued listing three of the four issues from the December 2016 rating decision. It incorrectly lists a tinnitus issue in the index but later discusses the issue of "3. Service connection for right eye blind." Importantly, the Veteran did not perfect a timely appeal of this or other issues by way of a VA Form 9. Instead, the Veteran through his attorney filed a new June 2018 VA 21-526b Veteran Supplemental Claim for these three issues, including reopening the service connection claims. The RO continued with this approach in the August 2018 rating decision. The January 2020 SOC repeats this procedural history. The Veteran later perfected his appeals stemming from the January 2020 SOC by way of a January 2020 VA Form 9. Aside from the applications to reopen the service connection claims, the June 2018 VA 21-526b Veteran Supplemental Claim also represented a claim for an increased rating for bilateral hearing loss disability. After considering the threshold issue regarding new and material evidence, we address the service connection issues below. Lastly, in Clemons v. Shinseki, 23 Vet. App. 1, 5 (2009), the Court held that the scope of a mental health disability claim includes any mental health disability that could reasonably be encompassed by the claimant's description of the claim, reported symptoms, and the other information of record. The Board has recharacterized the depression appeal as encompassing the issue on the title page. Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations impose obligations on VA to provide claimants with notice and assistance. 38 U.S.C. §§ 5102, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2018). There are two related threshold issues, missing Service Treatment Records (STRs) and the Veteran's attorney's related allegations of duty to assist errors. We address each in turn here and in the Remand section below. As an initial consideration, there is no separation examination of record and nearly all Service Treatment Records (STRs) are missing. A VA MPR Search Request from the National Archives and Records Administration was received on August 23, 2016. The National Personnel Records Center (NPRC) in St. Louis Missouri reported the records may have been destroyed in a fire at the Records Center in 1973. NPRC could not confirm the existence of such records; only the fact that if they had been stored at the Records Center, they would have been stored in an area damaged by the fire. VA sent notification of this with NA Form 13055 and requested that the Veteran complete and return the form so further attempts to obtain his records could be made. A 13055 reply was received but no specific information needed for a search was provided. The Veteran, in an accompanying letter wrote that he could not remember where his STRs are. A December 2016 VA Pies Response 6440 shows the same. Nevertheless, with regard to the potentially missing STRs, the Board observes that the Court of Appeals for Veterans Claims (Court) has held that in cases where records once in the hands of the Government are lost, the Board has a heightened obligation to explain its findings and conclusions and to consider carefully the benefit-of-the-doubt rule. See O'Hare v. Derwinski, 1 Vet. App. 365, 367 (1991). Fortunately, there is already evidence of disability in the Veteran's lay statements and hearing testimony. The Board again notes that when service records are unavailable through no fault of the Veteran, VA has a heightened duty to assist. See Washington v. Nicholson, 19 Vet. App. 362, 369-70 (2005); Cuevas v. Principi, 3 Vet. App. 542, 548 (1992); O'Hare, 1 Vet. App. 365, 367. On remand, the VA examiners will be instructed to consider the lay evidence, including the February 2021 hearing testimony. By way of additional legal history, the Board observes that the Veteran and his attorney have continued to raise several duty to assist errors. For example, the Veteran and his attorney submitted an August 31, 2018 NOD that shows that VA has a heightened duty to assist given that the records are lost as a result of the 1973 fire at the National Personnel Records Center. Counsel contends that VA should identify any records from separate hospitals where the Veteran might have been treated years ago. In one of the two January 2021 VA Form 9s, counsel writes that VA cannot reject the Veteran's competent statements regarding in service events based upon the lack of STRs corroborating those events. Counsel asserts that a past VA examiner provided a rationale based upon rejecting the Veteran's statements regarding the etiology of his knee and shoulder conditions. He asserts that this improper as the Veteran's statements have not been found to be less than credible, and there is a lack of evidence in the service records. On remand, VA will fulfill its duty to assist and work with counsel to obtain any additional treatment records to the extent they exist, in addition to new VA examinations. With respect to one of the service connection claims, the Board has sufficient information based upon the Veteran's clear hearing testimony, to the extent it is competent, in order to render a decision at this time. The Veteran in this case has not referred to any other deficiencies in either the duties to notify or assist; therefore, the Board may proceed to the merits of the claim. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015, cert denied, U.S.C. Oct. 3, 2016) (holding that "the Board's obligation to read filings in a liberal manner does not require the Board....to search the record and address procedural arguments when the [appellant] fails to raise them before the Board"); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to an appellant's failure to raise a duty to assist argument before the Board). The Board has reviewed all of the evidence in the Veteran's claims file. Although the Board has an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that the evidence submitted by the Veteran or obtained on his behalf be discussed in detail. Rather, the Board's analysis below will focus specifically on what evidence is needed to substantiate the claim and what the evidence in the claims file shows, or fails to show, with respect to the claim. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) and Timberlake v. Gober, 14 Vet. App. 122, 128-130 (2000). Finality of Service Connection Claims 1. Whether new and material evidence has been received to reopen the claim for service connection for a disability manifested by right eye blindness 2. Whether new and material evidence has been received to reopen the claim for service connection for leukemia The Board incorporates its discussion from the sections above by reference. By way of procedural history, service connection for a right eye blindness disability and for leukemia was denied in a December 2016 rating decision. The denials were confirmed by way of a February 2018 Statement of the Case (SOC). The Veteran was informed of the decisions and of the right to appeal. He did not perfect a timely appeal. Those decisions are final. At the time of the decisions, the record included the claims and the Veteran's lay contentions. There was no accepted evidence of disability in service. There were missing Service Treatment Records (STRs). However, if new and material evidence is presented or secured with respect to a claim which has been disallowed, the Secretary shall reopen the claim and review the former disposition of the claim. 38 U.S.C. § 5108. New evidence means existing evidence not previously submitted to agency decision makers. Material evidence means existing 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 substantiating the claim. 38 C.F.R. § 3.156 (a). The United States Court of Appeals for Veterans Claims (Court) interpreted the language of 38 C.F.R. § 3.156(a) as creating a low threshold. See Shade v. Shinseki, 24 Vet. App. 110 (2010). The Court emphasized that the regulation is designed to be consistent with 38 C.F.R. § 3.159(c)(4), which "does not require new and material evidence as to each previously unproven element of a claim." See id. In June 2018, VA received the application to reopen the claim of service connection for a disability manifested by blindness in the right eye and for leukemia by way of a VA 21-526b Veteran Supplemental Claim. The issues were revisited in an August 2018 rating decision. This RO reopened both issues but confirmed and continued the denials on the merits. The additional evidence presented includes the Veteran's lay history regarding events in service and subsequent right eye impairment and discussion of symptoms post-service. The Veteran's spouse competently testified that she was told by a doctor that the Veteran's right eye disability was due to trauma. See February 2021 hearing transcript p. 8. The evidence establishes that the Veteran has disability, possibly related to events in service. As a lack of evidence supporting the presence of disability related to service was one of the bases for the previous denial of the claims, this evidence is new and material under 38 C.F.R. § 3.156. In light of this new and material evidence, the Veteran's claims of service connection for disability manifested by right eye blindness and for leukemia are reopened. Withdrawn Appeal Entitlement to service connection for leukemia The Board incorporates its discussion from the sections above by reference. Only an appellant, or an appellant's authorized representative, may withdraw an appeal. An appeal may be withdrawn as to any or all issues involved in the appeal. 38 C.F.R. § 19.55 (a). Appeal withdrawals must include the name of the veteran, the name of the claimant or appellant if other than the veteran (e.g., a veteran's survivor, a guardian, or a fiduciary appointed to receive VA benefits on an individual's behalf), the applicable Department of Veterans Affairs file number, and a statement that the appeal is withdrawn. If the appeal involves multiple issues, the withdrawal must specify that the appeal is withdrawn in its entirety, or list the issue(s) withdrawn from the appeal. 38 C.F.R. § 19.55 (b)(1). Withdrawal of an appeal will be deemed a withdrawal of the Notice of Disagreement and, if filed, the Substantive Appeal, as to all issues to which the withdrawal applies. Withdrawal does not preclude filing a new Notice of Disagreement and, after a Statement of the Case is issued, a new Substantive Appeal, as to any issue withdrawn, provided such filings would be timely under these rules if the appeal withdrawn had never been filed. 38 C.F.R. § 19.55 (c). The Board may dismiss any appeal which fails to identify the specific determination with which the claimant disagrees. 38 U.S.C. § 7105 (d). Recently, at the February 2021 hearing, the Veteran through his attorney informed the Board that he wished to withdraw his appeal related to the claim for entitlement to service connection for leukemia. See February 2021 hearing transcript, pp. 3-4. The Veteran's attorney confirmed the issues, "Yes, Your Honor. But we were also withdrawing the leukemia issue." Id. The VLJ accepted withdrawal of this issue. Accordingly, the Board does not have jurisdiction to review this issue on appeal. Therefore, this issue on appeal is dismissed. 38 U.S.C. § 7105; 38 C.F.R. § 19.55. Service Connection Entitlement to service connection for hypertension The Board incorporates its discussion from the sections above by reference. To establish service connection a Veteran must generally show: "(1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service." Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Service connection may also be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303 (d). For the showing of chronic disease in service there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time, as distinguished from merely isolated findings or a diagnosis including the word "Chronic." When the disease identity is established (leprosy, tuberculosis, multiple sclerosis, etc.), there is no requirement of evidentiary showing of continuity. Continuity of symptomatology is required only where the condition noted during service (or in the presumptive period) is not, in fact, shown to be chronic or where the diagnosis of chronicity may be legitimately questioned. When the fact of chronicity in service is not adequately supported, then a showing of continuity after discharge is required to support the claim. 38 C.F.R. § 3.303 (b). We note that hypertension as cardiovascular-renal disease is a chronic disease, and as such, additional presumptive theories of entitlement are relevant in addition to direct service connection. See 38 C.F.R. §§ 3.303, 3.307, 3.309. Under 38 C.F.R. § 3.303 (b), service connection may be established by demonstrating continuity of symptomatology. Continuity may be established if a claimant can demonstrate (1) that a condition was "noted" during service; (2) evidence of post-service continuity of the same symptomatology; and (3) medical or, in certain circumstances, lay evidence of a nexus between the present disability and the post-service symptomatology. The provisions of 38 C.F.R. § 3.303 (b) only apply to diseases recognized by VA as "chronic." See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013); 38 C.F.R. §§ 3.303 (b), 3.309(a). Chronic diseases that become manifest to a degree of 10 percent or more within one year of termination of active duty may be presumed to have been incurred in service. 38 U.S.C. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309. VA is required to give due consideration to all pertinent medical and lay evidence in evaluating a claim for disability benefits. 38 U.S.C. § 1154 (a). Lay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). Lay evidence cannot be determined not credible merely because it is unaccompanied by contemporaneous medical evidence. Buchanan v. Nicholson, 451 F.3d 1331, 1336-37 (Fed. Cir. 2006). However, the lack of contemporaneous medical evidence can be considered and weighed against a Veteran's lay statements. Id. The Board, as fact finder, is obligated to, and fully justified in, determining whether lay evidence is credible in and of itself, i.e., because of possible bias, conflicting statements, etc. Id. Further, a negative inference may be drawn from the absence of complaints for an extended period. See Maxson v. West, 12 Vet. App. 453, 459 (1999), aff'd sub nom. Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000). By way of background, there is no separation examination of record in light of the missing Service Treatment Records (STRs). Therefore, the Board is unable to submit for review any in-service or separation blood pressure readings. Likewise, there is limited medical history. Nevertheless, pursuant to O'Hare, supra, the Veteran's own lay hearing testimony adequately supplements the record with respect to the etiology of this disability. Next, ongoing VA treatment records show remote impressions of hypertension. An April 26, 2016 VA eye consultation response is of record. It shows in part an indication of hypertension. Next to this box, it reads, "PT STATES SINCE JAN 2016." A VA problem list from September 26, 2016 from the Texas Valley Coastal Bend Health Care System (HCS) shows a problem list that includes benign hypertension. Additional VA and private treatment records are substantially the same. Recently, the Veteran testified regarding the onset and etiology of hypertension. The hearing transcript reads in part: MR. KAZMIERCZAK: When were you -- when were you first diagnosed? VETERAN: Excuse me? Oh, I don't know. I don't know when it started or what, but I've got the high blood pressure for -- for a while -- for a few years. MR. KAZMIERCZAK: Do you ever recall having high blood pressure in service? VETERAN: No. See February 2021 hearing transcript, pp. 17-18. No additional testimony was elicited by counsel regarding an onset in service or other relationship to service. No additional development was specifically requested at the hearing for this issue. The issue remains a nexus. The Veteran contends that he is entitled to service connection for hypertension. The Veteran is competent to provide evidence of that which he experiences, including his symptomatology and medical history. Layno v. Brown, 6 Vet. App. 465, 469 (1994). The Veteran is also competent to relate what he has been told by a professional. He is competent to report that he was diagnosed with benign hypertension around January 2016 and that he takes related medication for his blood pressure. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). He is competent to report that he did not recall being told he had high blood pressure readings in service. The Veteran testified that he currently seems to be "doing pretty good with it," referring to treatment with medication. See February 2021 hearing transcript, pp. 17-18. Here, the most probative evidence is the Veteran's own lay hearing testimony, to the extent it is competent, and the contemporaneous medical records. First, the Veteran testified that he did not know when hypertension started but he has had "high blood pressure for for a while for a few years." See February 2021 hearing transcript, pp. 17-18. The Board assigns substantial probative weight to the Veteran's hearing testimony. Second, the Board also assigns substantial probative weight to the contemporaneous treatment records. The VA treatment records show remote impressions of benign hypertension several decades removed from separation. In addition, the Veteran's own lay reporting documented in the contemporaneous treatment records shows that he was told that he had hypertension in January 2016. There is no probative evidence to the contrary. No other date of onset has been suggested that contradicts the Veteran and the treatment records in the claims file. Therefore, we assign substantial probative weight to the contemporaneous treatment records. Regarding direct and presumptive service connection, we find that the Veteran did not have the characteristic manifestations necessary to identify the disease entity in service. Hypertension was not manifest in service or within one year from separation, and are not otherwise attributable to service. There is no probative evidence to the contrary. In addition, the Board finds that while competent to report what he has been told by his physician and to report being told by his physician that he has a diagnosis of hypertension many decades after separation, the Veteran's own lay opinion regarding identifying a potential chronic disease entity pales in probative weight when compared to the objective medical evidence of record. Additional causal evidence against the claim, and while not dispositive, is the lapse of so many years between discharge and the first documented reports of a chronic condition many years after discharge. This multi-year gap after service provides highly probative evidence against the claim. See Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000). An alternative method of establishing the second and third Shedden element, under 38 C.F.R. § 3.303 (b), is through a demonstration of continuity of symptomatology if the disability claimed qualifies as a chronic disease listed in 38 C.F.R. § 3.309 (a). Consideration of entitlement to service connection via the demonstration of continuity of symptomatology is applicable in the present case. However, the most probative evidence in the contemporaneous treatment records and the Veteran's own lay hearing testimony does not demonstrate such continuity. Consequently, we find that service connection on a direct and presumptive basis for hypertension is not warranted. We have also considered the Veteran's lay statements to the extent that he is competent to relate impairment. In reaching this decision, we have specifically considered that Saunders clarified that evidence of pain alone which results in functional impairment, even if there is no identified underlying diagnosis, can constitute a disability. See Saunders v. Wilkie, 886 F.3d 1356 (2018). The United States Court of Appeals for the Federal Circuit (Federal Circuit) found that the term "disability" as used in 38 U.S.C. § 1110 "refers to the functional impairment of earning capacity, not the underlying cause of said disability," and held that "pain alone can serve as a functional impairment and therefore qualify as a disability." The Board observes that Saunders does not eliminate the need for underlying pathology, disease, or injury (also sometimes called a diagnosis). Here, there is no additional impairment alone related to service as is addressed by Saunders. Neither the Veteran nor his attorney have suggested such throughout the appeals period. Next, the Board observes that the Veteran's attorney generally referenced other potential historical treatment records. They could show cumulative, remote impressions of hypertension. For this issue, Veteran competently testified that he was diagnosed with hypertension a few years ago, and did not have it in service. Based upon his competent testimony and pursuant to Jandreau, supra, we are able to decide this issue at this time. Neither the Veteran nor his attorney has provided a compelling reason why any additional treatment records would establish a nexus with respect to this issue. The most probative evidence establishes the remote onset of the disease entity. A conclusory generalized lay statement that service event or illness caused the claimant's purported disability is insufficient to require the Secretary to provide an examination. See Waters v. Shinseki, 601 F.3d 1274, 1278 (2010). An examination would not by itself cure this defect where the contemporaneous records are against a positive nexus. In sum, the Board has assigned the most probative weight to the contemporaneous medical records, and the Veteran's own lay history. We have considered direct service connection and theories of both a chronic disease manifesting within one year from separation and continuity of symptomatology where applicable. 38 C.F.R. §§ 3.303, 3.307, 3.309. The most probative evidence establishes the remote onset of any hypertension many decades after separation. Unfortunately, the Veteran's Service Treatment Records (STRs) and Service Personnel Records (SPRs) were largely unavailable for review due to a fire-related cause. Nevertheless, VA sympathetically considered the Veteran's lay history presented at the hearing in reaching a decision. Dixon v. Derwinski, 3 Vet. App. 261, 263-264 (1992); O'Hare v. Derwinski, 1 Vet. App. 365, 367 (1991). There is no probative evidence to the contrary. Therefore, service connection for hypertension is not warranted. Neither the Veteran nor his attorney has raised any other issues, nor have any other issues been reasonably raised by the record. See Doucette v. Shulkin, 28 Vet. App. 366 (2017) (confirming that the Board is not required to address issues unless they are specifically raised by the claimant or reasonably raised by the evidence of record). In reaching this conclusion, the Board finds that the preponderance of the evidence is against the claim. As such, the benefit of the doubt rule is not for application, and the claim must be denied. 38 U.S.C. § 5107 (b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). REASONS FOR REMAND In light of the Veteran and his attorney's repeated contentions, a remand is necessary to ensure that the Veteran is afforded due process, and that there is a complete record upon which to decide the Veteran's claims so that he is afforded every possible consideration. See 38 U.S.C. § 5103A; 38 C.F.R. § 3.159. For all issues below, the Veteran through his attorney has requested assistance in obtaining historical treatment records that may partially supplement the record where STRs are missing. On remand, the Veteran and his attorney should be sent a development letter to identify and obtain any additional medical records, to the extent they exist. In addition, any outstanding VA treatment records since November 2019 should be included in the claims file. See Bell v. Derwinski, 2 Vet. App. 611 (1992). With respect to counsel's request to consider the Veteran's lay statements, competency is a legal concept determining whether testimony may be heard and considered by the trier of fact, whereas credibility is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted. Rucker v. Brown, 10 Vet. App. 67, 74 (1997); Layno v. Brown, 6 Vet. App. 465, 469 (1994). In determining whether statements submitted by a Veteran are credible, the Board may consider internal consistency, facial plausibility, consistency with other evidence, and statements made during treatment. Caluza v. Brown, 7 Vet. App. 498 (1995). 1. Entitlement to service connection for an acquired psychiatric disorder, variously claimed as depression, and as secondary to insomnia and service-connected bilateral hearing loss disability is remanded. 2. Entitlement to service connection for a disability manifested by insomnia, to include as secondary to service-connected bilateral hearing loss disability is remanded. The Board incorporates its discussion from the sections above by reference. Except as provided in § 3.300(c), disability which is proximately due to or the result of a service-connected disease or injury shall be service connected. 38 C.F.R. § 3.310 (a). Any increase in severity of a nonservice-connected disease or injury that is proximately due to or the result of a service-connected disease or injury, and not due to the natural progress of the nonservice-connected disease, will be service connected. 38 C.F.R. § 3.310 (b). By way of background, on October 10, 2017, VA received a VA 21-4138 Statement in Support of Claim from the Veteran's spouse. It shows that her husband only sleeps four to five hours per night and is getting depressed. He does not want to go anywhere anymore. Next, the Veteran through his attorney submitted a November 5, 2018 Brief. It contains a heading in bold that depression is claimed as secondary to the Veteran's service-connected disabilities. Counsel asserts that a VA examination is warranted to determine if the Veteran's depression is secondary to service-connected hearing loss, or another disability on appeal. Counsel concludes that at the very least a VA examination is warranted to determine the etiology of depression. Counsel cites VA's duty to assist. In December 2019, the Veteran was afforded a VA mental health disorders examination. The VA examiner only diagnosed an insomnia disorder. The VA examiner rendered a negative nexus opinion for depression citing a lack of a current diagnosis. Later, at the February 2021 hearing, the Veteran testified regarding insomnia and depression. He has been prescribed Trazadone which helps him sleep, and has taken it for the past 20 to 30 years. The impairment began at that time. Doctors did not speak to him about his problem in service. When he told doctors that he could not sleep, they gave him medication saying it was for depression. See February 2021 hearing transcript, p. 15. Counsel suggested the real issue could be depression or insomnia. The Veteran's spouse added that the Veteran sleeps for about four hours per night. Id. at p. 16. Counsel later clarified that the main concern is insomnia. Id. at p. 17. Here, the Veteran is competent to report that he was told by his physician that his medication was for depression. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). The current VA examination is limited and does not fully explore all of the Veteran's theories of entitlement, as advanced by counsel throughout the appeals period. The Veteran's reported sleep impairment may be insomnia, depression, both, or a secondary manifestation of a service-connected disability such as bilateral hearing loss disability. VA may only consider independent medical evidence to support its findings and is not permitted to base decisions on its own unsubstantiated medical conclusions. See Colvin v. Derwinski, 1 Vet. App. 171, 175 (1991). Therefore, to fully address the Veteran's contentions, and to assist in fully developing the Veteran's claims, a set of VA examinations with medical opinions for any disability manifested by depression and insomnia is warranted. (Continued on the next page.) 3. Entitlement to service connection for left knee arthritis is remanded. 4. Entitlement to service connection for left shoulder arthritis is remanded. 5. Entitlement to service connection for right knee arthritis is remanded. 6. Entitlement to service connection for right shoulder arthritis is remanded. The Board incorporates its discussion from the sections above by reference. We note that arthritis is a recognized chronic disease, and as such, additional presumptive theories of entitlement are relevant in addition to direct service connection. See 38 C.F.R. §§ 3.303, 3.307, 3.309; Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). By way of background, on October 10, 2017, VA received a VA 21-4138 Statement in Support of Claim from the Veteran's spouse. It shows that her husband had been hurting due to shoulder and knee pain for years. Next, in the November 2018 Brief, counsel asserts, "The veteran is reporting that his bilateral shoulder and knee arthritis are etiologically related to his time in service as a paratrooper. The records indicate that he was in fact a paratrooper and it is a well-known fact (studied in various persuasive medical treatise) that this military occupation has an inherit [sic] risk of injury." Counsel contends that the Veteran is a reliable historian regarding the onset of his injuries, and highlights the destroyed STRs. Later, the Veteran was afforded a set of December 2019 VA shoulder and knee examinations with medical opinions. The VA examiner rendered negative nexus opinions. They similarly read, for example: C-file reviewed. C-file silent for any diagnosis or treatment of left knee condition during service (on day of this exam). After service record shows veteran complained of right knee pain around 2017; x-ray showed diagnosis of osteoarthritis left knee. Veteran was also diagnosed with chondrocalcinosis left knee in 2019. Therefore, the veteran's right knee arthritis is less likely than not incurred or caused by the military duties as a paratrooper and heavy weapons infantryman during service. A nexus has not been established. Next, the Veteran testified at the February 2021 hearing. He advised that he made 19 jumps as a paratrooper. See February 2021 hearing transcript, p. 6. The Veteran recounted: Some of them were landing like a feather, and some were real bad. Like, when you landed backwards, you know. You're land -- it's supposed to be a five-point landing, but on your back, you're on your heels, butt and your head. And when you hit your head it -- you know, because on windy days you hit real hard. Sometimes you get up with a terrible headache, you know, from -- you know, it's just like in football when they tackle you and you slam your head on the -- on the ground. Id. The Veteran recalled getting hurt on jumps but not seeking treatment. The Veteran specifically described hurting his knees after jumps. He explained, "Yeah. But not -- not that bad like to go to the hospital or anything like that, you know, just. Just a lot of banging." Id. at p. 11. He first sought treatment with VA in 2015. He gets cortisone shots for both knees and both shoulders. Id. at p. 12. His shoulders have gradually hurt since service, though he did not know if they were hurt in the jumps in service. Id. at p. 13. Recently, in April 2021, VA received a private medical opinion from Dr. M. B. S., M.D. It shows that he had the opportunity to review the medical records and claims file. It does not show that a contemporaneous physical examination was performed. The nexus opinion is not definitive. Dr. S. writes in part, "While it is clear that [the Veteran's] knee osteoarthritis did not manifest until years subsequent to service, it is a well-established medical fact that arthritis develops years to decades subsequent to the traumatic event that causes same." Dr. S. later concludes, "Given the above, it is as least as likely as not that [the Veteran's] bilateral knee osteoarthritis is service-connected." There is a limited rationale. Here, there is some evidence of a positive nexus by way of the Veteran's hearing testimony and private medical opinion, but it is inconclusive. The Veteran recounted rigorous duties as part of being a paratrooper, however, he did not recall being told he had a disability in service pursuant to Jandreau. He did not seek treatment until after separation, though that does not preclude identifying the disease entity in service or attributing it to events in service. While Dr. S. provides a positive nexus for the bilateral knees, he also did not base this upon a contemporaneous physical examination, including any imaging. Moreover, the opinion itself reads that it is clear that the osteoarthritis did not manifest until years subsequent to service, only to end with a positive nexus. For these issues, counsel has continued to cite VA's heightened duty to assist, and that the VA examiner should not have discredited the Veteran's lay statements. See January 2020 VA Form 9. The duty to assist requires that a medical examination be provided when it is "necessary to make a decision on the claim." 38 U.S.C. § 5103A(d)(1). Once VA undertakes the effort to provide an examination, it must obtain a fully adequate one. Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). And, in Miller v. Wilkie, 32 Vet. App. 249 (2020), the United States Court of Appeals for Veterans Claims (Court) recently held that this duty required that an examiner "address the veteran's lay statements to provide the Board with an adequate medical opinion," in part because "medical opinions can inform credibility findings." In this case, a new series of VA examinations is necessary that addresses whether the Veteran's claimed shoulder and knee conditions are related to his experiences in service as a paratrooper. Therefore, a remand is warranted. 7. Entitlement to service connection for a disability manifested by right eye blindness is remanded. The Board incorporates its discussion from the sections above by reference. By way of background, the Veteran testified regarding when he first noticed right eye impairment. He first recounted his experiences as a paratrooper. "But you have all this noise and all this wind and all the stink in those -- in -- in those airplanes. So, you now, it's -- we used to just get in there, and sit down, and get our heads down, because it's -- it's something else, you know." See February 2021 hearing transcript, p. 7. He described exposure to "hurricane-style wind." He testified: Well, the first thing that I realized was it -- it had all of this, what they call, the floaters. All of the sudden there were floaters in -- in my right eye. To the point it got real bad -- to the point where I couldn't see anything. So, we went to the doctor. We got a -- he went and tried the laser treatment or whatever, and it became worse. So, he sent us to another doctor, and to make a long story short, I had three different surgeries on that eye, which they were no good, because I lost the vision on the -- on the -- my right eye completely. But leading up to that, you know, I -- I -- I started out with headaches, and then it became cluster migraine headaches. So, I had cluster migraine headaches treated by Dr. [L.] (ph) for many years there. And then -- and then after that -- that's when -- when I started seeing those floaters in my right eye. And then it got worse, and now I'm blind. And I have a -- a good right (sic) eye, but I also have a few floaters in that one. And -- what else was it I was going to say? Oh, I have some kind of a cataract or small cataract on it or something, so See February 2021 hearing transcript, pp. 7-8. The Veteran reported that he was never told the cause of his right eye blindness by doctors. His spouse added that while the Veteran was in right eye surgery, Dr. N. told her that "it had a lot of damage due to trauma, but that's all he said." Id. at p. 8. The Veteran now has no vision in that eye. The current problem began in 1999 all the way up to 2002, as reported by his spouse. Id. at p. 9. The Veteran testified that he did not have any accidents or traumas after separation. Id. at p. 10. The Veteran's spouse is competent to report that he was told by his physician that the right eye had damage due to trauma. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). The Veteran clarified that he had no head trauma after separation in his career as a firefighter. There is no separation examination, including an objective visual acuity examination, due to missing STRs. Therefore, to fully address the Veteran's contentions, and to assist in fully developing the Veteran's claim, a VA examination with medical opinion for any right eye disability manifested by blindness is warranted. 38 U.S.C. § 5103A (d) (2012); McLendon v. Nicholson, 20 Vet. App. 79 (2006). 8. Entitlement to a compensable disability rating for service-connected bilateral hearing loss disability is remanded. The Board incorporates its discussion from the sections above by reference. Disability evaluations are determined by the application of VA's Schedule for Rating Disabilities, which is based on average impairment of earning capacity. 38 U.S.C. § 1155; 38 C.F.R. Part 4. Where there is a question as to which of two evaluations shall be applied, the higher rating will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the Veteran. 38 C.F.R. § 4.3. Under the applicable criteria disability ratings are determined by a mechanical application of the rating schedule to the numeric designations assigned after audiometric evaluations are performed. See Lendenmann v. Principi, 3 Vet. App. 345, 349 (1992). Hearing loss disability evaluations range from 0 percent to 100 percent based on organic impairment of hearing acuity, as measured by controlled speech discrimination tests in conjunction with the average hearing threshold, as measured by puretone audiometric tests in the frequencies 1000, 2000, 3000 and 4000 Hertz. By way of history, in the November 2018 Brief, counsel argues that the previous July 2018 VA examination results were unreliable because they contradicted earlier findings showing more severe hearing loss. Counsel requested that VA schedule the Veteran for a new VA examination. The Veteran maintained that his hearing had significantly worsened over the past few years. Next, the Veteran was most recently afforded a December 2019 VA audiological examination. The examination results demonstrated that a noncompensable evaluation was still warranted because the left ear had an average decibel loss of 40 with a speech discrimination of 86 percent and the right ear had an average decibel loss of 51.3 with a speech discrimination of 94 percent. Later, at the February 2021 hearing, the Veteran testified regarding a worsening in the severity of impairment due to bilateral hearing loss disability since the last VA examination. The Veteran responded, "Oh, it's getting worse little by little, you know. I can tell, but my friends and my wife keep telling me that, but you know." See February 2021 hearing transcript, p. 18. He added that he is hard of hearing. While a new examination is not required simply because of the time which has passed since the last examination, VA's General Counsel has indicated that a new examination is appropriate when there is evidence of an increase in severity since the last examination. VAOPGCPREC 11-95 (1995). Accordingly, the Board finds that a new VA audiological examination is necessary to determine the current severity of the Veteran's service-connected bilateral hearing loss disability. See Caffrey v. Brown, 6 Vet. App. 377, 381 (1994), see also Snuffer v. Gober, 10 Vet. App. 400, 403 (1997) (holding that a Veteran is entitled to a new examination after a two year period between the last VA examination and the Veteran's contention that the pertinent disability had increased in severity); VAOPGCPREC 11-95 (1995); see also 38 C.F.R. § 3.327 (a reexamination will be requested whenever there is a need to verify the current severity of a disability). Therefore, a remand is warranted. The matters are REMANDED for the following action: 1. Obtain updated copies of the Veteran's VA treatment records since November 2019, and associate them with the Veteran's claims folder. 2. Send the Veteran and his attorney a VA Form 21-4142, Authorization and Consent to Release Information to VA, and with his consent, obtain any additional historical treatment records as identified by the Veteran or his attorney. These could be from hospitals or medical centers the Veteran visited during service or shortly after separation, as identified by counsel. See August 2018 Notice of Disagreement (NOD). If this is not returned, the claims will be adjudicated based upon the evidence of record. 3. Please schedule the Veteran for a VA examination to determine the nature and etiology of any acquired psychiatric disorder, variously claimed as depression. The claims file should be made available to the VA examiner. For each diagnosed disability, the VA examiner is requested to answer whether it is at least as likely as not (a 50 percent or greater probability) that the disability was incurred in or is otherwise related to the Veteran's active military service. The VA examiner should also opine whether any diagnosed disability is proximately due to, the result of, or aggravated by the Veteran's service-connected disabilities, including bilateral hearing loss disability; in addition to the currently claimed insomnia disability. The examiner should provide a rationale for all opinions expressed. 4. Please schedule the Veteran for a VA examination to determine the nature and etiology of any disability manifested by insomnia. The claims file should be made available to the VA examiner. For each diagnosed disability, the VA examiner is requested to answer whether it is at least as likely as not (a 50 percent or greater probability) that the disability was incurred in or is otherwise related to the Veteran's active military service. The VA examiner should also opine whether any diagnosed disability is proximately due to, the result of, or aggravated by the Veteran's service-connected disabilities, including bilateral hearing loss disability. The examiner should provide a rationale for all opinions. 5. Please schedule the Veteran for a VA examination to determine the nature and etiology of any left and right shoulder disability. The claims file should be made available to the VA examiner. For each diagnosed disability, the VA examiner is requested to answer whether it is at least as likely as not (a 50 percent or greater probability) that the disability was incurred in or is otherwise related to the Veteran's active military service. The VA examiner must comment on the Veteran's February 2021 hearing testimony regarding his experiences in service. In light of missing STRs, the absence of any in-service records is not sufficient as the basis for a negative nexus opinion. The examiner should provide a rationale for all opinions expressed. 6. Please schedule the Veteran for a VA examination to determine the nature and etiology of any left and right knee disability. The claims file should be made available to the VA examiner. For each diagnosed disability, the VA examiner is requested to answer whether it is at least as likely as not (a 50 percent or greater probability) that the disability was incurred in or is otherwise related to the Veteran's active military service. The VA examiner must comment on the Veteran's February 2021 hearing testimony regarding his experiences in service. In light of missing STRs, the absence of any in-service records is not sufficient as the basis for a negative nexus opinion. The examiner should provide a rationale for all opinions expressed. 7. Please schedule the Veteran for a VA examination to determine the nature and etiology of any disability manifested by right eye blindness. The claims file should be made available to the VA examiner. For each diagnosed disability, the VA examiner is requested to answer whether it is at least as likely as not (a 50 percent or greater probability) that the disability was incurred in or is otherwise related to the Veteran's active military service. The VA examiner must comment on the Veteran's February 2021 hearing testimony regarding his experiences as a paratrooper. In light of missing STRs, the absence of any in-service records is not sufficient as the basis for a negative nexus opinion. The examiner should provide a rationale for all opinions expressed. 8. Please schedule the Veteran for an audiometric examination by an appropriate clinician to determine the nature and current degree of severity of the Veteran's service-connected bilateral hearing loss disability. The audiometric testing results from the examination should be associated with the claims file. To the extent possible, the examiner should identify any symptoms and functional impairments due to bilateral hearing loss disability alone and discuss the effect of the Veteran's disability on any occupational functioning and activities of daily living. A complete rationale should be provided for all opinions expressed. 9. After completing the above, and any other necessary development, the claims remaining on appeal must be readjudicated in light of all pertinent evidence and legal authority. If any benefits sought are not granted, issue the Veteran and his attorney an appropriate Supplemental Statement of the Case (SSOC). Michael A. Pappas Veterans Law Judge Board of Veterans' Appeals Attorney for the Board B. Bodi, 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.