Citation Nr: 21041805 Decision Date: 07/10/21 Archive Date: 07/10/21 DOCKET NO. 16-56 153 DATE: July 10, 2021 ORDER Service connection for tinnitus is granted. Service connection for left ankle tendonitis is granted. Service connection for sleep apnea is granted. Service connection for a left wrist disability is denied. A rating in excess of 30 percent for bilateral pes planus with plantar fasciitis is denied. REMANDED The claim for service connection for residuals of a traumatic brain injury (TBI), including chronic organic brain syndrome, is remanded. The claim for a rating in excess of 20 percent for lumbar degenerative spondylosis is remanded. The claim for an initial rating in excess of 10 percent for left lumbar radiculopathy is remanded. The claim for an initial rating in excess of 10 percent for right lumbar radiculopathy is remanded. FINDINGS OF FACT 1. The probative evidence of record demonstrates that it is at least as likely as not that the Veteran's tinnitus was incurred during service. 2. The probative evidence of record demonstrates that it is at least as likely as not that the Veteran's left ankle tendonitis was incurred during service. 3. The probative evidence of record demonstrates that it is at least as likely as not that the Veteran's sleep apnea was caused by weight gain attributable to an inability to exercise due to his service-connected bilateral pes planus with plantar fasciitis, bilateral ankle tendonitis, and degenerative lumbar spondylosis. 4. The preponderance of the evidence is against a finding that a current left wrist disability was incurred in or caused by service. 5. The Veteran's service-connected bilateral pes planus with plantar fasciitis has not been manifested by marked pronation, extreme tenderness of the plantar surfaces of the feet, marked inward displacement and severe spasm of the tendo Achilles on manipulation, which is not improved by orthopedic shoes or appliances. CONCLUSIONS OF LAW 1. The criteria for establishing entitlement to service connection for tinnitus have been met. 38 U.S.C. §§ 1110, 1112, 1113, 1137, 5107 (2012); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2020). 2. The criteria for establishing entitlement to service connection for left ankle tendonitis have been met. 38 U.S.C. §§ 1110, 5107 (2012); 38 C.F.R. § 3.303 (2020). 3. The criteria for establishing entitlement to service connection for sleep apnea have been met. 38 U.S.C. §§ 1110, 5107 (2012); 38 C.F.R. §§ 3.303, 3.310 (2020). 4. The criteria for establishing entitlement to service connection for a left wrist disability have not been met. 38 U.S.C. §§ 1110, 5107 (2012); 38 C.F.R. § 3.303 (2020). 5. The criteria for a rating in excess of 30 percent for bilateral pes planus with plantar fasciitis have not been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. § 4.71a, Diagnostic Code 5276 (2020). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from April 2003 to October 2005. This matter comes before the Board of Veterans' Appeals (Board) on appeal from May 2014 and August 2015 rating decisions of a Department of Veterans Affairs (VA) Regional Office (RO). The Veteran initially testified at a hearing before a Veterans Law Judge in November 2019. However, due to a malfunction with the audio recording system, a transcript of that hearing could not be obtained. In April 2021, the Veteran testified before the undersigned Veterans Law Judge, and a transcript of that hearing is of record. Service Connection Service connection may be established for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. § 1110, 1131; 38 C.F.R. § 3.303. Generally, in order to prove service connection, there must be competent, credible evidence of (1) a current disability, (2) in-service incurrence or aggravation of an injury or disease, and (3) a nexus, or link, between the current disability and the in-service disease or injury. See, e.g., Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Pond v. West, 12 Vet. App. 341 (1999). Where a veteran served continuously for 90 days or more during a period of war, or during peacetime service after December 31, 1946, and certain chronic diseases, including tinnitus, become manifest to a degree of 10 percent within one year from date of termination of such service, such disease shall be presumed to have been incurred in service, even though there is no evidence of such disease during the period of service. This presumption is rebuttable by affirmative evidence to the contrary. 38 U.S.C. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309. Service connection may also be established for a disability which is proximately due to or the result of a service-connected disability. 38 C.F.R. § 3.310(a). A disability which is aggravated by a service-connected disability may be service-connected to the degree that the aggravation is shown. 38 C.F.R. § 3.310(b); Allen v. Brown, 7 Vet. App. 439, 448-49 (1995). Additionally, service connection may not be granted for obesity, as it does not constitute a disease or injury for purposes of 38 U.S.C. §§ 1110 and 1131 or a disability for purposes of 38 C.F.R. § 3.310. See Marcelino v. Shulkin, 29 Vet. App. 155 (2018). However, obesity can be an intermediate step between a service-connected disability and a current disability that may be service-connected on a secondary basis under 38 C.F.R. § 3.310. Walsh v. Wilkie, 32 Vet. App. 300, 306-07 (2020). In other words, service connection may be established on a secondary basis for a disability which would not have occurred but for obesity that was caused or aggravated by a service-connected disability. Id. 1. Entitlement to service connection for tinnitus During the April 2021 Board hearing, the Veteran testified that his tinnitus began in August 2005, when he received a message that his father passed away while he was out in the field shooting. The Veteran stated that he removed his hearing protection to speak to his first sergeant, and the servicemember next to him continued to shoot his weapon. He stated that he has experienced ringing in his ears ever since. Upon review of the record, the Board finds that it is at least as likely as not that the Veteran's tinnitus began during service. A March 2015 private audiology treatment record shows that the Veteran reported constant tinnitus that he believed was caused by in-service noise exposure from the firing range. Specifically, he reported having tinnitus ever since an incident at the firing range during which information was being relayed to him and had had to remove his hearing protection while others continued target practice. He denied any post-service occupational or recreational noise exposure. The audiologist indicated that it could not be ruled out that the Veteran's tinnitus was caused his prior history of acoustic trauma during service. In May 2015, the Veteran submitted an opinion from a private physician who reviewed the evidence of record and opined that the Veteran's tinnitus was incurred during service. In support of this, he explained that the Veteran reported ringing in his ears ever since he removed his hearing protection at the shooting range to receive a message during service. When a condition may be diagnosed by readily identifiable features, as is the case with tinnitus, the presence of the disorder is not a determination that is "medical in nature," as it is capable of lay observation. See Barr v. Nicholson, 21 Vet. App. 303, 305 (2007). When a claim involves a diagnosis based on purely subjective complaints, the Board is within its province to weigh the Veteran's testimony and determine whether it supports a finding of service incurrence and continued symptoms since service. Id. If it does, such testimony is enough to establish service connection. Id. After resolving reasonable doubt in the Veteran's favor, the Board finds that it is at least as likely as not that his tinnitus began during service and continued since. Accordingly, service connection for tinnitus is granted. 2. Entitlement to service connection for a left ankle disability During the April 2021 Board hearing, the Veteran testified that he began having tightness in his left ankle while running during service, and he recalled receiving an MRI of both feet and ankles at the time. Upon review of the record, the Board finds that it is at least as likely as not that the Veteran's left ankle tendonitis was incurred during service. Service treatment records show that the Veteran sought treatment for right ankle pain on several occasions, and he was placed on physical profile for chronic right Achilles tendonitis. Although service treatment records do not show complaints of a left ankle pain, a January 2005 radiologic examination report shows that a December 2004 MRI of the left ankle revealed mild increased signal in the Achilles fat pad suggesting peritendinitis in the left ankle. The earliest post-service treatment record showing a complaint of left ankle pain is dated November 2012. That record shows that the Veteran reported pain and swelling in both ankles ever since service, for which he received an MRI about eight years earlier. A physical examination revealed tight heel cords and tenderness into the plantar surfaces of both feet. Later that month, when the Veteran sought to establish care at a VA medical center, he reported worsening bilateral calf pain and tightness over the years. He also reported being told he had tendonitis in both feet after undergoing an MRI. The treatment provider indicated that the Veteran appeared to have Achilles tendinopathy or other dysfunction, and he was referred for physical therapy. A February 2013 private MRI report likewise shows that the Veteran reported bilateral ankle pain for the past nine years. The Veteran underwent a VA ankle examination in July 2013, during which both ankles exhibited pain on movement and localized tenderness or pain on palpation. The examiner indicated that the Veteran had Achilles tendonitis of both ankles. However, the examiner only provided an opinion addressing the etiology of the Veteran's right ankle tendonitis. In May 2015, the Veteran was evaluated by a private physician pursuant to his service connection claims, at which time he reported bilateral ankle pain and tightness ever since service. It was noted that although the Veteran was only treated for right Achilles tendonitis during service, he reportedly only requested treatment for his right ankle pain because it was more severe than his left ankle. The physician opined that the Veteran's left ankle condition was related to service. In support of this, he explained that the Veteran suffered trauma from running on hard surfaces in combat boots, which caused significant strain the Achilles tendon and ligament and tendon structures of the ankle and foot. Based on the foregoing, the Board finds that it is at least as likely as not that the Veteran's tendonitis of the left ankle was incurred during service. Accordingly, service connection for left ankle tendonitis is granted. 3. Entitlement to service connection for sleep apnea The Veteran asserts that his sleep apnea had its onset during service or alternatively, was caused or aggravated by weight gain attributable to an inability to exercise due to his service-connected physical disabilities. Upon review of the record, the Board finds that it is at least as likely as not that the Veteran's sleep apnea was caused by weight gain attributable to an inability to exercise due to his service-connected bilateral pes planus with plantar fasciitis, bilateral ankle tendonitis, and degenerative lumbar spondylosis. Service treatment records show that the Veteran was treated for right ankle pain and was placed on physical profile for chronic Achilles tendonitis during service. Between 2004 and 2005, the Veteran was placed in a weight control program, and he indicated that the was not doing physical training or watching his food intake. The assessment was obesity. Post-service treatment records show that that the Veteran's body mass index (BMI) was 37.9 by November 2012, and he was advised to gradually increase his exercise. With respect to the Veteran's service-connected bilateral foot and ankle disabilities, a November 2012 private physical therapy treatment record shows that the Veteran was unable to walk more than three to four minutes due to bilateral ankle pain. Thereafter, a July 2013 VA examiner indicated that the Veteran's service-connected right ankle tendonitis prevented prolonged walking and standing. With respect to the Veteran's service-connected low back disability, and April 2014 VA examiner indicated that the Veteran's lower back pain limited his ability to lift, twist, or engage in prolonged walking. In February 2015, the Veteran was diagnosed with obstructive sleep apnea. It was noted that the Veteran's weight at the time was 275 pounds, and his BMI was 37.3 In May 2015, the Veteran submitted an opinion from a private physician who reviewed the evidence of record and opined that the Veteran's weight gain due to his service-connected foot, ankle, and low back disabilities was a contributing factor in the development of his obstructive sleep apnea. In support of this, the physician indicated that the Veteran began gaining weight in service following his foot and ankle injuries, and no cause for his weight gain was found despite extensive testing. Therefore, the examiner concluded that the Veteran's weight gain was caused by his inability to be active due to his back, foot, and ankle pain, and his weight gain contributed to the development of sleep apnea. Based on the foregoing, the Board finds that it is at least as likely as not that the Veteran's sleep apnea was caused by weight gain attributable to an inability to exercise due to his service-connected physical disabilities. See 38 C.F.R. § 3.310; see also Walsh, 32 Vet. App. at 306-07. Accordingly, service connection for sleep apnea is granted. 4. Entitlement to service connection for a left wrist disability During the April 2021 Board hearing, the Veteran testified that he did not remember exactly how he injured his left wrist, but he recalled having wrist pain while doing some sort of physical training, such as push-ups or pull-ups. He stated that he subsequently underwent tendon repair surgery on his left wrist in 2009. The Veteran also submitted a written statement from a fellow servicemember, T.C., who indicated that around the fall of 2004, while stationed in Wiesbaden, Germany, he recalled the Veteran having sharp pain in his left wrist while doing push-ups. T.C. further indicated that the Veteran was placed on physical profile for a couple of months, during which he could not perform push-ups or heavy lifting. Upon review of the record, the Board finds that the preponderance of the evidence is against a finding that a current left wrist disability was incurred in or caused by service. Although the Veteran claims to have injured his left wrist during service, and T.C. recalled the Veteran being on physical profile for a few months for a left wrist injury, the Board finds that such assertions are not consistent with the evidence of record. See Caluza v. Brown, 7 Vet. App. 498, 511 (1995). Despite seeking treatment for various conditions, service treatment records show no complaints of or treatment for left wrist symptoms during service. See AZ v. Shinseki, 731 F.3d 1303, 1311 (Fed. Cir. 2013). Moreover, the record shows that the Veteran was placed on physical profile, which included no push-ups, while stationed in Wiesbaden, Germany around the time T.C. recalled. However, the physical profile was for chronic right Achilles tendonitis, not a left wrist injury. The record shows no complaints of or treatment for a left wrist condition until the Veteran reportedly underwent left wrist surgery in 2009. The Board finds the contemporaneous medical evidence to be significantly more credible and probative than statements made to VA many years later for purposes of seeking compensation. See Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991); Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006). In May 2015, the Veteran submitted an opinion from a private physician who indicated that the Veteran sustained a left wrist injury while doing push-ups during service, for which he was placed on physical profile. The physician opined that the push-ups the Veteran was performing during service put significant strain through the ligaments and tendons in his wrist, causing abnormal biomechanical forces, significant inflammation, and osteophyte formation, which resulted in traumatic arthritis. However, the Board assigns little probative value to this opinion, as the rationale is based on the assertion that the Veteran sustained a left wrist injury while doing push-ups during service and was placed on physical profile, which the Board has already found lacks credibility. See Reonal v. Brown, 5 Vet. App. 458, 461 (1993) (holding that "[a]n opinion based on an inaccurate factual premise has no probative value"). The Board acknowledges that the Veteran has not received a VA examination with respect to his claim for service connection for a left wrist disability. However, as there is no credible evidence of an in-service event, injury, or disease related to the left wrist, a VA examination or medical opinion is not required. See 38 C.F.R. § 3.159(c); see also McLendon v. Nicholson, 20 Vet. App. 79, 84 (2006); Waters v. Shinseki, 601 F.3d 1274, 1278 (Fed. Cir. 2010) (noting that a conclusory lay statement that a current condition is related to service is insufficient to warrant a medical examination because it would "eliminate the carefully drafted statutory standards governing the provision of medical examinations and require the Secretary to provide such examinations in virtually every veteran's disability case"). In reaching this decision, the Board has considered the doctrine of reasonable doubt; however, as the preponderance of the evidence is against the claim, the doctrine is not for application. See Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). Disability Ratings 5. Entitlement to a rating in excess of 30 percent for bilateral pes plans with plantar fasciitis The Veteran's bilateral pes planus with plantar fasciitis has been assigned a 30 percent rating based on the criteria set forth in 38 C.F.R. § 4.71a, Diagnostic Code 5276, relating to pes planus, or flatfoot. Under Diagnostic Code 5276, a 30 percent rating is assigned for severe bilateral flatfoot characterized by objective evidence of marked deformity (pronation, abduction, etc.), pain on manipulation and use accentuated, indication of swelling on use, characteristic callosities. 38 C.F.R. § 4.71a, Diagnostic Code 5276. A maximum 50 percent rating is assigned for pronounced bilateral flatfoot characterized by marked pronation, extreme tenderness of the plantar surfaces of the feet, marked inward displacement and severe spasm of the tendo Achilles on manipulation, not improved by orthopedic shoes or appliances. Id. Effective February 7, 2021, VA revised the criteria for evaluating musculoskeletal disorders. See Schedule for Rating Disabilities: Musculoskeletal System and Muscle Injuries, 85 Fed. Reg. 76453, 76464 (Nov. 30, 2020); Correction, 86 Fed. Reg. 8142, 8143 (Feb. 4, 2021) (changing new diagnostic code applicable to plantar fasciitis from 5285 to 5269). These new regulations apply to all applications for benefits received by VA or that are pending before the agency of original jurisdiction on or after February 7, 2021. The Board may not apply a current regulation prior to its effective date, unless the regulation explicitly provides otherwise. Kuzma v. Principi, 341 F.3d 1327 (Fed. Cir. 2003). However, the Board is not precluded from applying prior versions of the applicable regulation to the period on or after the effective dates of the new regulation if the prior version was in effect during the pendency of the appeal. Under Diagnostic Code 5269, which went into effect on February 7, 2021, a minimum 10 percent rating is assigned for unilateral or bilateral plantar fasciitis. 38 C.F.R. § 4.71a, Diagnostic Code 5269. A 20 percent rating is assigned for unilateral plantar fasciitis with no relief from both non-surgical and surgical treatment. Id. A maximum 30 percent rating is assigned for bilateral plantar fasciitis with no relief from both non-surgical and surgical treatment. Id. If a veteran has been recommended for surgical intervention, but is not a surgical candidate, plantar fasciitis should be evaluated under the 20 percent or 30 percent criteria, whichever is applicable. Id. at Note (2). Upon review of the record, the Board finds that a rating in excess of 30 percent is not warranted at any time during the period under review. In May 2015, the Veteran was evaluated by a private physician pursuant to his claim for an increased rating, and the physician indicated that the Veteran had pain in the arches and heels of his feet. It was noted that although the Veteran's arch supports have helped significantly to maintain his arches and reduce some heel pain, the Veteran still has severe heel pain in the mornings, requiring him to stretch when he gets out of bed. The Veteran underwent a VA foot examination in August 2015, during which he reported pain in the heels and bottoms of both feet, which was not relieved by wearing arch supports. The examiner indicated that the Veteran exhibited pain on use and manipulation of both feet, swelling on use of both feet, and characteristic calluses on both feet. A physical examination revealed decreased longitudinal arch height of both feet on weight-bearing. There was no evidence of extreme tenderness of the plantar surfaces, marked deformity, marked pronation, weight-bearing line falling over or medial to the great toe, lower extremity deformity causing alteration of the weight-bearing line, inward bowing of the Achilles tendon, or marked inward displacement and severe spasm of the Achilles tendon on manipulation. Treatment records throughout the period under review do not show symptoms more severe than those noted during the VA examination. Although the Veteran has reported that his foot pain was not relieved by arch supports, the evidence of record does not show marked pronation, extreme tenderness of the plantar surfaces of the feet, marked inward displacement, and severe spasm of the tendo Achilles on manipulation. Accordingly, a higher rating is not warranted at any time during the period under review. See 38 C.F.R. § 4.71a, Diagnostic Code 5276. The Board has considered whether a higher rating is warranted under Diagnostic Code 5269 on or after February 7, 2021. However, as 30 percent is the highest rating available under Diagnostic Code 5269, a higher rating is not warranted under that diagnostic code. See 38 C.F.R. § 4.71a, Diagnostic Code 5269. Moreover, as the Veteran's pes planus and plantar fasciitis are both manifested by symptoms of foot pain, the Board finds that assigning separate ratings for pes planus and plantar fasciitis would constitute impermissible pyramiding. See 38 C.F.R. § 4.14 (the evaluation of the same manifestation or disability under different diagnoses is to be avoided); Esteban v. Brown, 6 Vet. App. 259, 26 (1994) (separate ratings under different diagnostic codes are only permissible where none of the symptomatology for one condition is duplicative of or overlapping with the symptomatology of another condition). In reaching this decision, the Board has considered the doctrine of reasonable doubt; however, as the preponderance of the evidence is against assigning a rating in excess of that already assigned, the doctrine is not for application. See Gilbert, 1 Vet. App. at 53. REASONS FOR REMAND 1. The claim for service connection for residuals of a TBI, including chronic organic brain syndrome, is remanded. When the Veteran initially filed his claim for service connection in May 2015, he indicated that he was seeking service connection for chronic organic brain syndrome. In support of his claim, he submitted a May 2015 opinion from a private physician who evaluated him pursuant to his claim and diagnosed him with chronic organic brain syndrome. The physician indicated that the Veteran began having difficulty with memory and cognitive ability during service and opined that while he did not know the cause of the Veteran's brain deterioration, it was related to service because the Veteran reportedly developed symptoms of brain dysfunction during service. The Veteran's treatment records do not show a diagnosis of chronic organic brain syndrome, and two VA mental health examiners who evaluated the Veteran pursuant to a service connection claim for posttraumatic stress disorder (PTSD) indicated that the Veteran's only mental diagnosis was PTSD, and he did not have a diagnosis of traumatic brain injury. During the April 2021 Board hearing, the Veteran testified that he suffered a head injury during service. He stated that he hit his head on concrete while playing basketball and started vomiting and bleeding form his years, for which he was treated at a German hospital. The Veteran also testified that when he was treated for an unrelated neck injury in 2016, the treatment provider told him that an x-ray showed a skull fracture that appeared to be over ten years old; however, the Veteran indicated that he found no evidence of that conversation in his treatment records. In support of his assertion that he suffered a head injury during service, the Veteran submitted portions of private treatment records from August and September 2019, which show that he reported a history of headaches with confusion and vomiting ever since he smashed his head on concrete in 2004 while serving in the Army. A review of the Veteran's service treatment records reveals no evidence of a head injury, vomiting, bleeding from the years, headaches, or memory or cognitive problems during service. Therefore, the claim is remanded in order to attempt to obtain clinical and/or hospital records regarding the Veteran's reported treatment at a German hospital for a head injury. Additionally, as the Veteran has asserted that a private treatment provider told him that an x-ray revealed evidence of an old skull fracture, the Veteran should be provided with a VA TBI examination, which includes an x-ray. 2. The claim for a rating in excess of 20 percent for lumbar degenerative spondylosis is remanded. The Veteran underwent a VA back examination in August 2015, during which he reported flare-ups of increased back pain and stiffness. The VA examiner indicated that he could not estimate additional limitation of motion during flare-ups or with repeated use over time because the Veteran was not being evaluated during such an occurrence. In Sharp v. Shulkin, 29 Vet. App. 26 (2017), the U.S. Court of Appeals for Veterans Claims subsequently held that it was insufficient for an examiner to state that he or she is unable to estimate additional limitation of motion during flare-ups without resorting to speculation based solely on the fact that the examination was not performed during a flare-up. Accordingly, the claim is remanded in order to provide the Veteran with a new VA examination. Updated treatment records should also be obtained. 3. The claim for an initial rating in excess of 10 percent for left lumbar radiculopathy is remanded. 4. The claim for an initial rating in excess of 10 percent for right lumbar radiculopathy is remanded The Veteran most recently underwent a VA examination to assess the severity of his service-connected lower extremity radiculopathy in August 2015. During the April 2021 Board hearing, the Veteran testified that his radiculopathy symptoms have gotten worse during the course of his claim. As the Veteran's most recent VA examination was nearly six years ago, the Board finds that a remand is necessary to provide the Veteran with a new VA examination. See Green v. Derwinski, 1, Vet. App. 212, 124 (1991); see also Snuffer v. Gober, 10 Vet. App. 400 (1997). The matters are REMANDED for the following action: 1. Request through official sources a search for clinical and/or hospital records regarding the Veteran's reported hospitalization/treatment for a head injury while serving in Germany during his period of active duty from April 2003 to October 2005. All attempts to secure this evidence must be documented in the claims file. If the requested records do not exist or are not available, the Veteran should be notified of such. 2. Ask the Veteran to provide the names and addresses of all medical care providers who have recently treated him for his claimed disabilities. After securing any necessary releases, request any relevant records identified. In addition, obtain updated VA treatment records. If any requested records are unavailable, the Veteran should be notified of such. 3. Schedule the Veteran for a VA traumatic brain injury examination conducted by one of the four designated specialists (physiatrist, psychiatrist, neurologist, or neurosurgeon), which includes an x-ray to determine whether there is evidence of an old skull fracture. Based on the examination and review of the claims file, the examiner should provide an opinion as to whether it is at least as likely as not (50 percent or higher probability) that the Veteran suffered a traumatic brain injury during service and has current residuals thereof. A complete rationale for all opinions must be provided. 4. Ask the Veteran to provide the names and addresses of any medical care providers who have recently treated his low back disability and lumbar radiculopathy. After securing any necessary releases, VA should request any relevant records identified. In addition, obtain updated VA treatment records. If any requested records are unavailable, the Veteran should be notified of such. 5. Schedule the Veteran for a VA examination to assess the current severity of his service-connected low back disability and lower extremity radiculopathy. The claims file must be reviewed by the examiner. All indicated testing must be conducted, and all pertinent symptomatology must be reported. The examiner must provide an estimate, in terms of degrees, of the range of motion exhibited by the thoracolumbar spine during flare-ups and after repeated use over time based upon relevant information elicited from the Veteran, review of the claims file, and the current examination results. If it is not possible to provide a specific measurement without resorting to speculation, the examiner must 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), a deficiency in the record (additional facts are required), or the examiner (does not have the knowledge or training). K. A. BANFIELD Veterans Law Judge Board of Veterans' Appeals Attorney for the Board C. Banister, 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.