Citation Nr: 21040670 Decision Date: 07/06/21 Archive Date: 07/06/21 DOCKET NO. 18-31 737 DATE: July 6, 2021 ORDER As new and material evidence has been received to reopen the claim of service connection for a psychiatric condition, the appeal to this extent is allowed. As new and material evidence has been received to reopen the claim of service connection for a condition of both eyes (vision problems) (now claimed as eye condition), the appeal to this extent is allowed. As new and material evidence has been received to reopen the claim of service connection for a right knee condition, the appeal to this extent is allowed. As new and material evidence has been received to reopen the claim of service connection for a left knee condition, the appeal to this extent is allowed. As new and material evidence has been received to reopen the claim of service connection for a right ankle condition, the appeal to this extent is allowed. As new and material evidence has been received to reopen the claim of service connection for a left ankle condition, the appeal to this extent is allowed. Service connection for a psychiatric disorder, currently manifested by paranoid schizophrenia with secondary alcohol dependence, is granted. REMANDED Service connection for both eyes (vision problems) (now claimed as eye condition) is remanded. Service connection for a left elbow condition is remanded. Service connection for a right elbow condition is remanded. Service connection for a right knee condition is remanded. Service connection for a left knee condition is remanded. Service connection for a right ankle condition is remanded. Service connection for a left ankle condition is remanded. Service connection for a right foot condition is remanded. Service connection for a left foot condition is remanded. FINDINGS OF FACT 1. The Veteran was previously denied service connection for a psychiatric disorder in a December 2012 Board decision, which became final, but the Veteran has submitted new and material evidence sufficient to reopen the claim. 2. The Veteran was previously denied service connection for an eye (vision) condition, bilateral knee, and bilateral ankle conditions in a December 2012 Board decision, which became final, but the Veteran has submitted new and material evidence sufficient to reopen the claim. 3. A psychiatric condition, currently manifested by paranoid schizophrenia with secondary alcohol dependence, was incurred in service. CONCLUSIONS OF LAW 1. Because evidence received since a final, December 2012 Board decision is new and material, the claim of service connection for a psychiatric disorder is reopened. 38 U.S.C. §§ 5103, 5103A, 5107, 5108, 7104; 38 C.F.R. §§ 3.102, 3.159, 3.156. 2. Because evidence received since a final, September 2005 rating decision is new and material, the claim of service connection for an eye (vision) condition is reopened. 38 U.S.C. §§ 5103, 5103A, 5107, 5108, 7104; 38 C.F.R. §§ 3.102, 3.159, 3.156. 3. Because evidence received since a final, September 2005 rating decision is new and material, the claim of service connection for a right knee condition is reopened. 38 U.S.C. §§ 5103, 5103A, 5107, 5108, 7104; 38 C.F.R. §§ 3.102, 3.159, 3.156. 4. Because evidence received since a final, September 2005 rating decision is new and material, the claim of service connection for a left knee condition is reopened. 38 U.S.C. §§ 5103, 5103A, 5107, 5108, 7104; 38 C.F.R. §§ 3.102, 3.159, 3.156. 5. Because evidence received since a final, September 2005 rating decision is new and material, the claim of service connection for a right ankle condition is reopened. 38 U.S.C. §§ 5103, 5103A, 5107, 5108, 7104; 38 C.F.R. §§ 3.102, 3.159, 3.156. 6. Because evidence received since a final, September 2005 rating decision is new and material, the claim of service connection for a left ankle condition is reopened. 38 U.S.C. §§ 5103, 5103A, 5107, 5108, 7104; 38 C.F.R. §§ 3.102, 3.159, 3.156. 7. The criteria for service connection for a psychiatric disorder, currently manifested by paranoid schizophrenia with secondary alcohol dependence, have been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from September 1990 to July 1993. The case is on appeal from a December 2014 rating decision. Additional evidence was received subsequent to the April 2018 statement of the case. As the claims are either being granted or remanded, a remand for RO consideration of the evidence is not necessary. See 38 C.F.R. § 20.1304(c). The Veteran has a separate appeal pending under the Veterans Appeals Improvement and Modernization Act of 2017 (Appeals Modernization Act) regarding service connection for hearing loss and tinnitus. That appeal is not included within the scope of the instant matter. It will be the subject of a separate Board decision at a later date. New and Material To reopen and review a claim that has been previously denied, new and material evidence must be submitted by or on behalf of a claimant. 38 U.S.C. § 5108; 38 C.F.R. § 3.156(a); see also Hodge v. West, 155 F.3d 1356 (Fed. Cir. 1998). 1. Whether new and material evidence has been received to reopen a claim of service connection for a psychiatric disorder, to include posttraumatic stress disorder (PTSD), anxiety, OCD, and paranoid schizophrenia (now claimed as schizophrenia and psychosis) By a March 2002 rating decision, the RO denied a January 2001 claim of service connection for PTSD and alcoholism. The Veteran was notified of the decision by letter in July 2002, which was mailed to his then current mailing address of record. Thereafter, the Veteran initiated an appeal by filing a notice of disagreement (NOD) in August 2002. He gave testimony at an RO hearing in February 2003. The RO then issued a second rating decision in July 2003 denying service connection for "mental illness." The Veteran filed a second NOD in May 2004. The RO issued a statement of the case (SOC) in December 2004 consolidating the claim into a single claim of service connection "for an acquired psychiatric condition to including [PTSD], chronic paranoid schizophrenia and alcoholism." The Veteran perfected his appeal to the Board by filing a VA Form 9 in December 2004. The Board first remanded the claim in June 2007. The Board then issued a decision in June 2008 denying the claim. The Veteran appealed that denial to the Court of Appeals for Veterans Claims (Court), which issued an order in June 2009 granting a joint motion for remand (JMR) filed by the parties. Upon return, the Board remanded the appeal in November 2009. The Board then issued a decision in May 2011, again denying the appeal. The Veteran appealed that decision to the Court, which issued an order in August 2011 remanding the matter to the Board pursuant to a JMR filed by the parties. Upon return, the Board remanded the matter in February 2012, and then issued a decision in December 2012 denying the appeal. The Veteran did not appeal that decision to the Court. Because the Veteran did not appeal the December 2012 Board decision, it became final. 38 U.S.C. § 511(a), 7103, 7104(a); 38 C.F.R. §§ 1100. More recently, in March 2018, the Veteran filed a motion for reconsideration of the December 2012 Board decision. The Board denied the motion in August 2018. Hence, the December 2012 Board decision remains final at present. The Veteran filed the instant petition to reopen in June 2013. He identified the claim as involving PTSD, psychosis, OCD, and schizophrenia. Although he identified more specific diagnoses, this claim is not a new claim. In his original claim the Veteran described, and VA construed, the claim as encompassing any psychiatric disorder. See Velez v. Shinseki, 23 Vet. App. 199, 204-05 (2009). Therefore, his current claim was correctly considered a petition to reopen. The pertinent evidence associated with the claims file at the time of the December 2012 Board decision consisted of the Veteran's service treatment records (STRs), service personnel records (SPRs), post-service private and VA medical records, and records from the Social Security Administration (SSA). The evidence also included a negative December 2007 VA opinion and a March 2005 letter from a VA psychiatrist. The Board also considered the Veteran's statements indicating a link to his service. After weighing the relative probative value of this evidence, the Board ultimately concluded that (1) the Veteran did not have a diagnosis of PTSD related to fear of hostile military or terrorist activity or any other credible, verified stressor of service; (2) a psychiatric disability did not manifest during service, a psychosis did not manifest within one year of service, and no current psychiatric diagnosis was related to service; and (3) alcohol dependence was not related to a service-connected condition. The evidence associated with the claims file since the December 2012 Board decision includes a March 2021 psychological evaluation report by a private (non-VA) consultant. The Board now finds that this evidence is "new" because it was not before the Board in December 2012. The Board also finds that the new evidence is "material" because it relates to whether a current psychiatric diagnosis had its onset during service, which is an unestablished fact that may provide a reasonable possibility of substantiating the claim. The Board accordingly finds that new and material evidence has been received to reopen the claim of service connection. Hence, the appeal to this extent is allowed, and the claim is now subject to review based on the entire evidentiary record. The Board finally takes notice that the file now includes additional STRs and SPRs. It is not possible to tell exactly when these records were received, because they were not archived in the electronic claims folder based on when they were received. See 3/24/2016 Military Personnel Record entries. Moreover, there is not a corresponding VA 21-3101, Request for Information, confirming when they were received. The prior Board decision stated that the claims file included STRs and SPRs, but it does appear that at least some additional service records were received or associated with the claims file after the December 2012 Board decision became final. Any further information in the additional service records are either not relevant or duplicative. The December 2012 Board decision found, as it relates to the service records that "service evidence reveals that the Veteran was discharged in July 1993 due to physical performance deficiencies, with affirmatively normal psychiatric findings[.]" The Board cited a mental status examination conducted in June 1993 and the Veteran's separation evaluation, plus SPRs showing the Veteran was administratively discharged after two consecutive failures of physical training exercises. The Board now observes that these are the pertinent facts of the Veteran's service. The new service records do not add any further relevant information. Moreover, the Board herein is granting service connection for a psychiatric disability, but the additional service records play no role in that outcome. In short, reconsideration under 38 C.F.R. § 3.156(c) is not in order, as the Board's December 2012 decision affirmatively explained that the Veteran's SPRs and STRs were in the file, and the new records tend to constitute either duplicates of the relevant information in the claims file or information that was not reasonably in dispute at the time of the Board's December 2012 decision. See Flores-Vazquez v. McDonough, No. 2019-1780, 2021 U.S. App. LEXIS 12941, at *12-13 (Fed. Cir. Apr. 30, 2021). 2. Whether new and material evidence has been received to reopen the claim for service connection for both eyes (vision problems) (now claimed as eye condition) 3. Whether new and material evidence has been received to reopen the claim for service connection for a right knee condition 4. Whether new and material evidence has been received to reopen the claim for service connection for a left knee condition 5. Whether new and material evidence has been received to reopen the claim for service connection for a right ankle condition 6. Whether new and material evidence has been received to reopen the claim for service connection for a left ankle condition As the procedural history of issues 2-6 is interrelated, the Board will address them together. By a September 2005 rating decision, the RO denied a March 2005 claim of service connection for both knees, both ankles, and both eyes (vision problems). In his March 2005 claim, the Veteran wrote that he "wish[ed] to reopen his claim." This was not a petition to reopen, however, as there was no earlier claim for these conditions. The Veteran was notified of the September 2005 decision by letter later that month, which was mailed to the then current mailing address of record. Thereafter, nothing pertinent regarding the claims was received within one year. The Veteran filed a statement in October 2005 stating he "wish[ed] to resolve this case for service connection disability [sic]." This statement did not refer to any of the issues decided in the September 2005 rating decision. He had an appeal pending at that time for his psychiatric disability, and it is clear this October 2005 statement referred that issue. This is shown by the statement going on to describe "evidence for mental illness" with the claim having been pending for "over 5 years." This October 2005 statement corresponds to the psychiatric claim, and not the issues denied in September 2005. Hence, this statement did not initial an appeal of the September 2005 rating decision. The Veteran filed the instant petition to reopen the eye (vision) claim in June 2013. He filed the petition to reopen the other claims in August 2014. The Board finds that new and material evidence has been submitted to reopen the previously denied claims. The pertinent evidence before the RO in September 2005 included the STRs, VA medical records, private medical records, and a lay statement from the Veteran. Regarding the eye claim, the RO found that service connection could not be granted because refractive errors are not a disability for VA purposes, and the STRs did not show eye trauma or unusual developments. Regarding the knee and ankle claims, the RO determined that the STRs showed no pertinent information. Since that time, there is new evidence, including additional VA medical records and the Veteran's Board hearing testimony. The Board finds that this evidence is "new" because it was not before the adjudicator in September 2005. The Board also finds that the new evidence is "material" because it relates to whether he may have a current condition related to service. Moreover, this evidence is consistent with the criteria of 38 C.F.R. § 3.159(c)(4)(iii), and McLendon v. Nicholson, 20 Vet. App. 79, 83 (2006)., for determining whether a VA examination is necessary. See Shade v. Shinseki, 24 Vet. App. 110, 118-19, 123 (2010). The Board accordingly finds that new and material evidence has been received to reopen the claims. Hence, the appeal to this extent is allowed. The reopened claims are remanded herein for further evidentiary development. As explained above regarding the psychiatric claim, additional service records have been received. The instant claims may not be reconsidered under § 3.156(c) as the additional service records do not contain any relevant information pertaining to the eyes, knees, or ankles. Service Connection 7. Service connection for a psychiatric disorder, to include PTSD, anxiety, OCD, paranoid schizophrenia (now claimed as schizophrenia and psychosis) The Veteran contends that he has a current psychiatric condition that started during service. He has separately claimed service connection for multiple psychiatric conditions, including PTSD, OCD, anxiety, paranoid schizophrenia, and psychosis. The evidence developed in connection with the claim establishes that the Veteran's symptomatology is encompassed by a single diagnosis, paranoid schizophrenia with secondary alcohol dependence. As such, the Board has consolidated the multiple claims into a single claim for purposes of clarity and adjudicative efficiency. Brokowski v. Shinseki, 23 Vet. App. 79, 86-87 (2009); Clemons v. Shinseki, 23 Vet. App. 1 (2009). Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active service. See 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. A veteran seeking compensation under these provisions must establish three elements: "(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." Saunders v. Wilkie, 886 F.3d 1356, 1361 (Fed. Cir. 2018) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004)). Here, service connection is warranted. The Veteran has not been diagnosed with PTSD. A September 2004 VA Psychology report notes some symptoms consistent with PTSD. However, PTSD was not diagnosed. The private psychologic report from March 2021 confirms that the Veteran does not meet the diagnostic criteria for PTSD. The examiner found that the Veteran's symptoms were better accounted for by schizophrenia. Hence, a current diagnosis of PTSD is not established. Rather, the evidence confirms a current diagnosis of paranoid schizophrenia. According to the private psychological report in March 2021, the Veteran's accurate psychiatric diagnostic formulation is paranoid schizophrenia with secondary alcohol dependence. Earlier evidence is consistent with this provider's diagnosis. For example, the Veteran's treating VA provider wrote a supporting letter in March 2005 identifying the diagnoses as schizophrenia, OCD, and alcohol dependence. A March 2005 referral for treatment identifies a diagnosis of schizo-obsessive disorder. In March 1999, he was diagnosed with adjustment disorder. Overall, this evidence is consistent with a diagnosis, currently manifested by paranoid schizophrenia with secondary alcohol dependence. The Veteran's STRS do not disclose any express, unequivocal symptoms associated with a psychiatric condition. He was recommended for discharge in May 1993 after two consecutive failures on a physical fitness test. In connection with that discharge, he underwent a mental status examination in June 1993. It resulted in an assessment of no Axis I or Axis II diagnosis. It states that no significant psychiatric diagnosis was noted at the evaluation. Thus, the STRs do not document any psychiatric symptoms. The Veteran, however, does not contend that he sought treatment during service. He testified at his Board hearing that he experienced depression and hearing voices during service, plus paranoia and anxiety, mood swings, and "stuff like that." Board Hr'g Tr. 2. He stated that he did not seek treatment because his superiors denied his requests to seek medical attention. Board Hr'g Tr. 3. He did not first seek treatment until after service. Board Hr'g Tr. 3. He explained that he did not know why he had the mental status evaluation during service, but felt it was because he was having a lot of issues and was acting out on his illness, even though he did not know it at the time. Board Hr'g Tr. 11. The Board finds the Veteran's testimony credible and probative evidence that he was having symptoms during service, which went untreated. As such, documentation in the STRs is not expected, and the absence of symptoms in the STRs does not weigh against the claim. AZ v. Shinseki, 731 F.3d 1303, 1315-16, 1317-18, n.13 (Fed. Cir. 2013); Fed. R. Evid. 803(6), (7). There is some conflicting evidence as to whether his current condition is related to the symptoms during service. Unfavorable to the claim, the Veteran's medical records show an admission in August 2000. It was noted at that time that he had a three-year history of psychosis. The Board observes that three years prior to August 2000 would be approximately August 1997, which was nearly four years after his separation from service in July 1993. Similarly, an April 2010 VA Mental Health report noted that the Veteran described the onset of symptoms of chronic psychosis more than 15 years prior and following his separation from service. The Board observes that this medical record again documents an express statement by the Veteran that his symptoms started after service. Thus, there is some conflicting evidence as to when his symptoms started. Overall, however, the Board finds the Veteran's Board hearing testimony the most credible account of his symptom history. As such, these post-service statements are not considered a credible account of symptoms starting after service. There are also conflicting medical opinions on the nexus question. Unfavorable, a VA examiner in December 2007 gave a negative opinion. The examiner cited the August 2000 report of symptoms for three years, plus the absence of notations of psychiatric symptoms in the STRs. The examiner observed that it is possible the Veteran was developing some paranoid ideation during service, but there was no specific reference to it in the record. The examiner found a link between his poor performance and early signs of mental illness to be "purely speculative given the available evidence." The examiner found no specific evidence, other than lay history, of an acquired psychiatric disorder in service, and there was the mental status evaluation indicating no mental illness just before discharge. Favorable to the claim, the March 2021 private psychological evaluation concluded that the Veteran's paranoid schizophrenia as likely as not began in service. The examiner noted the Veteran's report of starting to feel paranoid during service. The examiner found that the mental status evaluation during service was a rather a brief competency examination to establish stability for discharge. Also favorable, the Veteran's treating VA provider wrote a supporting letter in March 2005. The examiner wrote that the Veteran reported symptoms starting during service, which is consistent with the age at which a psychotic break usually occurs, so his disability was considered by this provider to be service onset. Overall, in comparing the relative strengths and weakness of the favorable and unfavorable opinions, the Board finds that the evidence is in equipoise. The Board can identify no compelling reason to find the VA examiner's opinion more probative than the favorable opinions on the nexus element. They all considered the same facts, which led them to different conclusions. Therefore, based on the current evidence of record, this disagreement must be considered a professional difference of opinion between equally qualified medical experts. Thus, a nexus is established. The Board finally observes that service connection for secondary alcohol dependence is also warranted. Service connection may be granted for a disability that is proximately due to, or aggravated by, service-connected disease or injury. See 38 C.F.R. § 3.310. Where drug and alcohol use is at issue, service connection is precluded "in two situations: 1) for primary alcohol abuse disabilities; and 2) for secondary disabilities (such as cirrhosis of the liver) that result from primary alcohol abuse." Service connection is not precluded if alcohol abuse is secondary to a service-connected disability. Allen v. Principi, 237 F.3d 1368, 1376, 1378 (Fed. Cir. 2001). Here, the probative evidence, particularly the March 2021 private opinion, establishes that the Veteran's alcohol dependence is secondary to his paranoid schizophrenia. There is no indication that the alcohol abuse is due to willful action instead of the service-connected disability. Hence, service connection is warranted for that condition as well. In light of the foregoing, after resolving all reasonable doubt in the Veteran's favor, the Board finds that the evidence is in a state of relative equipoise on all material elements of the claim, including the nexus requirement. Accordingly, the claim is granted. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Fagan, 573 F.3d at 1287 (quoting 38 U.S.C. § 5107(b)). This award is intended to represent a complete grant of the benefit sought on appeal. Although the Veteran claimed service connection for other multiple psychiatric conditions, including PTSD, the March 2021 private psychological evaluation establishes that the complete scope of the Veteran's psychiatric condition is accounted for by the diagnosis of paranoid schizophrenia with secondary alcohol dependence. As such, there is no aspect of the psychiatric claim being denied. See Brokowski v. Shinseki, 23 Vet. App. 79, 86-87 (2009); Clemons v. Shinseki, 23 Vet. App. 1 (2009). REASONS FOR REMAND 1. Service connection for both eyes (vision problems) (now claimed as eye condition) is remanded. 2. Service connection for a left elbow condition is remanded. 3. Service connection for a right elbow condition is remanded. 4. Service connection for a right knee condition is remanded. 5. Service connection for a left knee condition is remanded. 6. Service connection for a right ankle condition is remanded. 7. Service connection for a left ankle condition is remanded. 8. Service connection for a right foot condition is remanded. 9. Service connection for a left foot condition is remanded. These issues are remanded to obtain private medical records and a VA examination. Regarding the eye (vision) claim, the Veteran's December 1989 service entrance examination shows he wore glasses for visual correction. Hence, the evidence shows a refractive error at service entrance. The Veteran now maintains that he had a preexisting vision problem that was worsened during service. See 5/7/2021 private attorney brief. He feels he was not given proper medication for his eyes or proper glasses. Board Hr'g Tr. 9; 5/7/2021 private attorney brief. The Board finds that a VA examination is needed to address these complex medical questions. Also regarding the eye claim, remand is needed to attempt to obtain outstanding private (non-VA) medical records. VA medical records show that the Veteran is diagnosed with glaucoma, and he reported during treatment at VA in February 2019 that he was initially diagnosed by an outside provider in 2013. A remand is required to allow VA to obtain authorization and request these private records. Regarding the remaining claims, the Veteran contends that the rigors of his military training, such as running with combat boots and pull ups, "just constantly pounded [his] body, wearing [him] out," which was worsened because he was not given proper time to recover. Board Hr'g Tr. 7. He indicated that he was seen by a medic for his complaints, but they gave him some pain medication and sent back to his barracks without being referred for a medical evaluation. Board Hr'g Tr. 8. He was not otherwise treated until after service. Board Hr'g Tr. 8. A VA examination is needed to determine if the Veteran has current conditions in these joints related to his activities during service. Regarding the right elbow, the Veteran's December 1989 service entrance examination shows that he reported a history of right arm fracture at age eight; he had full range of motion at the service entrance examination. This entry raises the question of whether a right elbow condition may have preexisted service. As such, the examination will need to address this question. The matters are REMANDED for the following action: 1. Notify the Veteran that he may submit lay statements from himself and from individuals who have first-hand knowledge and/or were contemporaneously informed of any in-service and post-service symptoms related to the remanded conditions. 2. Ask the Veteran to complete a VA Form 21-4142 for any private (non-VA) providers or facilities who may have additional medical records, particularly his eye doctor who diagnosed glaucoma in 2013. Make two requests for any authorized records, unless it is clear after the first request that a second request would be futile. 3. Schedule the Veteran for an examination (or telehealth interview, review of the record, etc., if an in-person examination is not feasible) by an appropriate clinician to determine the nature and etiology of the claimed eye (vision) condition. For each diagnosis, the examiner must address the following: (a.) For any eye (vision) condition preexisting service, was there additional disability superimposed during the Veteran's service or lifetime? If so, is it at least as likely as not (i.e., equally probable) that the superimposed disability was related to any event or injury during the Veteran's service? (b.) For any condition not preexisting service, whether the diagnosis is at least as likely as not related to an in-service injury, event, or disease. In answering these questions, the examiner is asked to consider the statements from the Veteran indicating that his symptoms grew worse during service because he was not properly treated and was given incorrect glasses during service. The examiner is asked to explain why his statements make it more or less likely that a current condition started during service. If indicated, it should be explained whether there is a **medical** reason to believe that the Veteran's recollection of his symptoms during and after service may be inaccurate or not medically supported as the onset or cause of his current diagnosis. The examiner should not rely on silence in the medical records unless it can be explained: (a) why the silence in the available records can be taken as proof that the symptom(s) did not occur, including why the fact would have normally been recorded if present, or (b) why the absence of medical records is medically significant. 4. Schedule the Veteran for an examination (or telehealth interview, review of the record, etc., if an in-person examination is not feasible) by an appropriate clinician to determine the nature and etiology of the claimed elbows, knees, ankles, and feet. Regarding the right elbow condition, the examiner is asked to address the following question: (a.) Did any right elbow condition preexist the Veteran's active service? The examiner is asked to consider the Veteran's service entrance examination, which shows a history of fractured right arm at age 8 with full range of motion. (b.) If preexisting his service, did the condition worsen (i.e., increase in severity) during service? If yes, was that worsening due to the natural progress of the disease? How certain are you in your answers to questions (a) and (b)? Would any doctor with the same information reasonably be able to reach a different conclusion? For all conditions, the examiner is asked to address the following: (c.) Does the Veteran have a current in either elbow, knee, ankle, or foot? The examiner must provide a diagnosis for any conditions found extant. In doing so, the examiner must conduct all necessary diagnostic testing, unless it can be explained why such testing is not medically necessary. If a current diagnosis is not present, does the Veteran nevertheless have symptoms, such as pain, causing a functional impairment in the joint? (d.) If any condition is diagnosed or if there has been a functional impairment present, opine whether such condition is at least as likely as not related to an in-service injury, event, or disease. i. If you determined in questions (a) and (b) that a right elbow condition preexisted service, this should include consideration of whether the current condition represents the present manifestation of that preexisting condition. In answering these questions, the examiner is asked to consider all statements from the Veteran regarding his history of symptoms, including during service. The examiner is asked to explain why his statements make it more or less likely that a current condition started during service. If indicated, it should be explained whether there is a **medical** reason to believe that the Veteran's recollection of his symptoms during and after service may be inaccurate or not medically supported as the onset or cause of his current diagnosis. The examiner should not rely on silence in the medical records unless it can be explained: (a) why the silence in the available records can be taken as proof that the symptom(s) did not occur, including why the fact would have normally been recorded if present, or (b) why the absence of medical records is medically significant. STEVEN D. REISS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board C. Bosely, 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.