Citation Nr: 22014254 Decision Date: 03/11/22 Archive Date: 03/11/22 DOCKET NO. 17-08 725 DATE: March 11, 2022 ORDER Entitlement to a rating in excess of 10 percent, prior to February 12, 2016, for a fracture of the left fibula and lateral malleolus has been withdrawn. Entitlement to a rating in excess of 20 percent, as of February 12, 2016, for a fracture of the left fibula and lateral malleolus has been withdrawn. Entitlement to an initial compensable rating for pseudofolliculitis barbae (PFB) has been withdrawn. Entitlement to a rating in excess of 20 percent for degenerative arthritis of the lumbar spine is denied. Entitlement to service connection for major depressive disorder, as secondary to service-connection lumbar spine disability is granted, subject to the law and regulations governing the payment of monetary benefits. REMANDED Entitlement to a rating in excess of 10 percent for chondromalacia of the left knee, manifested by instability, is remanded. Entitlement to a rating in excess of 10 percent for lateral epicondylitis of left elbow is remanded. Entitlement to service connection for a right knee strain is remanded. Entitlement to service connection for post-concussion syndrome is remanded. Entitlement to service connection for tension headaches is remanded. Entitlement to service connection for a left-hand disability is remanded. Entitlement to service connection for obstructive sleep apnea (OSA) is remanded. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) is remanded. FINDINGS OF FACT 1. In a February 2022 statement, the Veteran and his attorney properly withdrew his claim for entitlement to a rating in excess of 10 percent, prior to February 12, 2016, for a fracture of the left fibula and lateral malleolus. 2. In a February 2022 statement, the Veteran and his attorney properly withdrew his claim for entitlement to a rating in excess of 20 percent, as of February 12, 2016, for a fracture of the left fibula and lateral malleolus. 3. In a February 2022 statement, the Veteran and his attorney properly withdrew his claim for entitlement to an initial compensable rating for PFB. 4. The Veterans lumbar spine disability is manifested by, at worst, flexion to 70 degrees. 5. The Veteran's service-connected lumbar spine disability more likely than not caused or contributed to the Veteran's major depressive disorder. CONCLUSIONS OF LAW 1. The criteria for withdrawal of the issue of entitlement to a rating in excess of 10 percent, prior to February 12, 2016, for fracture of the left fibula and lateral malleolus have been met. 38 U.S.C. § 7105(b)(2), (d)(5); 38 C.F.R. § 20.204. 2. The criteria for withdrawal of the issue of entitlement to a rating in excess of 10 percent, as of February 12, 2016, for fracture of the left fibula and lateral malleolus have been met. 38 U.S.C. § 7105(b)(2), (d)(5); 38 C.F.R. § 20.204. 3. The criteria for withdrawal of the issue of entitlement to an initial compensable rating for PFB. 38 U.S.C. § 7105(b)(2), (d)(5); 38 C.F.R. § 20.204. 4. The criteria for entitlement to a rating in excess of 20 percent for degenerative arthritis of the lumbar spine have not been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.1-4.7, 4.40, 4.45, 4.71a, Diagnostic Codes 5242. 5. The criteria for entitlement to service connection on a secondary basis for major depressive disorder have been met. 38 U.S.C. §§ 1110, 1131, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from January 1977 to August 1992. This matter comes to the Board of Veterans' Appeals (Board) on appeal from May 2012, February 2013, January 2014, July 2014, January 2017, and October 2018 rating decisions issued by the Department of Veterans Affairs (VA) Regional Office. Entitlement to a rating in excess of 10 percent, prior to February 12, 2016, for a fracture of the left fibula and lateral malleolus Entitlement to a rating in excess of 20 percent, as of February 12, 2016, for a fracture of the left fibula and lateral malleolus Entitlement to an initial compensable rating for pseudofolliculitis barbae (PFB) The Board may dismiss any appeal which fails to allege specific error of fact or law in the determination being appealed. 38 U.S.C. § 7105. An appeal may be withdrawn as to any or all issues involved in the appeal at any time before the Board promulgates a decision. 38 C.F.R. § 20.204. Withdrawal may be made by the Veteran or by his or her authorized representative. 38 C.F.R. § 20.204. In February 2022, the Veteran and his attorney signed statements indicating that he wished to withdraw his increased rating claim for a fracture of the left fibula and lateral malleolus and his service connection claim for PFB. See February 2022 Correspondence. According to 38 C.F.R. § 20.204(b)(3), the Veteran's withdrawal is effective upon the date of its receipt in February 2022. The Board finds that the language used in the February 2022 statement is clear and unambiguous, and is indicative of an informed and purposeful decision. DeLisio v. Shinseki, 25 Vet. App. 45 (2011). There remains no allegation of errors of fact or law for appellate consideration. Accordingly, based on the Veteran's February 2022 statement, the Board does not have jurisdiction to review the appeal of these issues and they are dismissed. Increased Rating Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities, found in 38 C.F.R. Part 4. The percentage ratings are based on the average impairment of earning capacity as a result of a service-connected disability, and separate diagnostic codes identify the various disabilities and the criteria for specific ratings. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. VA has a duty to consider all regulations that are potentially applicable through the assertions and issues raised in the record, and to explain the reasons and bases for its conclusions. Schafrath v. Derwinski, 1 Vet. App. 589 (1991). Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. The Board will consider whether separate ratings may be assigned for separate periods of time based on facts found, a practice known as "staged ratings." Hart v. Mansfield, 21 Vet. App. 505 (2007). The evaluation of the same disability under various diagnoses, known as pyramiding, is generally to be avoided. 38 C.F.R. § 4.14. The critical element in permitting the assignment of several ratings under various diagnostic codes is that none of the symptomatology for any one of the disabilities is duplicative or overlapping with the symptomatology of the other disability. Esteban v. Brown, 6 Vet. App. 259, 261-62 (1994). The Board will consider whether separate ratings may be assigned for separate periods of time based on facts found, a practice known as "staged ratings." Fenderson v. West, 12 Vet. App. 119, 126-27 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). In considering the evidence in any given appeal, it is the responsibility of the Board to weigh the evidence and decide where to give credit and where to withhold the same and, in so doing, accept certain medical opinions over others. Schoolman v. West, 12 Vet. App. 307, 310-11 (1999). In this regard, the Board has been charged with the duty to assess the credibility and weight given to evidence. Davidson v. Shinseki, 581 F. 3d 1313 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007); Buchanan v. Nicholson, 451 F. 3d 1331 (Fed. Cir. 2006); Charles v. Principi, 16 Vet. App. 370 (2002); Klekar v. West, 12 Vet. App. 503, 507 (1999); Wood v. Derwinski, 1 Vet. App. 190, 193 (1991). Indeed, the Court has declared that in adjudicating a claim, the Board has the responsibility to do so. Bryan v. West, 13 Vet. App. 482, 488-89 (2000); Wilson v. Derwinski, 2 Vet. App. 614, 618 (1992). In doing so, the Board is free to favor one medical opinion over another, provided it offers an adequate basis for doing so. Evans v. West, 12 Vet. App. 22, 30 (1998); Owens v. Brown, 7 Vet. App. 429, 433 (1995). When there is an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. When all of the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether the most persuasive evidence is against the claim, in which case the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). 1. Entitlement to a rating in excess of 20 percent for degenerative arthritis of the lumbar spine The Veteran and his attorney claim that he is entitled to a higher rating for his service-connected degenerative arthritis of the lumbar spine. In May 2011, the Veteran filed a claim for an increased rating. For the entire period on appeal, the Veteran's lumbar spine disability rating has been rated as 20 percent disabling under the General Rating Formula for Diseases and Injuries of the Spine. The General Rating Formula for Diseases and Injuries of the Spine holds that for Diagnostic Codes 5235 to 5243, a rating of 100 percent is warranted when there is unfavorable ankylosis of the entire spine. A 50 percent rating is warranted when there is unfavorable ankylosis of the entire thoracolumbar spine. A 40 percent rating is warranted when there is unfavorable ankylosis of the entire cervical spine; or, forward flexion of the thoracolumbar spine is 30 degrees or less or there is favorable ankylosis of the entire thoracolumbar spine. A 20 percent rating is warranted for forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees; or the combined range of motion of the thoracolumbar spine not greater than 120 degrees; or, muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis. The criteria also include the following provisions: Note (1): Evaluate any associated objective neurologic abnormalities, including, but not limited to, bowel or bladder impairment, separately, under an appropriate diagnostic code. Note (2): For VA compensation purposes, normal forward flexion of the cervical spine is zero to 45 degrees, extension is zero to 45 degrees, left and right lateral flexion are zero to 45 degrees, and left and right lateral rotation are zero to 80 degrees. Normal forward flexion of the thoracolumbar spine is zero to 90 degrees, extension is zero to 30 degrees, left and right lateral flexion are zero to 30 degrees, and left and right lateral rotation are zero to 30 degrees. The combined range of motion refers to the sum of the range of forward flexion, extension, left and right lateral flexion, and left and right rotation. The normal combined range of motion of the cervical spine is 340 degrees and of the thoracolumbar spine is 240 degrees. The normal ranges of motion for each component of spinal motion provided in this note are the maximum that can be used for calculation of the combined range of motion. Note (3): In exceptional cases, an examiner may state that because of age, body habitus, neurologic disease, or other factors not the result of disease or injury of the spine, the range of motion of the spine in a particular individual should be considered normal for that individual, even though it does not conform to the normal range of motion stated in Note (2). Provided that the examiner supplies an explanation, the examiner's assessment that the range of motion is normal for that individual will be accepted. Note (4): Round each range of motion measurement to the nearest five degrees. Note (5): For VA compensation purposes, unfavorable ankylosis is a condition in which the entire cervical spine, the entire thoracolumbar spine, or the entire spine is fixed in flexion or extension, and the ankylosis results in one or more of the following: difficulty walking because of a limited line of vision; restricted opening of the veteran's mouth and chewing; breathing limited to diaphragmatic respiration; gastrointestinal symptoms due to pressure of the costal margin on the abdomen; dyspnea or dysphagia; atlantoaxial or cervical subluxation or dislocation; or neurologic symptoms due to nerve root stretching. Fixation of a spinal segment in neutral position (zero degrees) always represents favorable ankylosis. Note (6): Separately evaluate disability of the thoracolumbar and cervical spine segments, except when there is unfavorable ankylosis of both segments, which will be rated as a single disability. Intervertebral disc syndrome (IVDS) (preoperatively or postoperatively) may be evaluated either under the General Rating Formula for Diseases and Injuries of the Spine or under the Formula for Rating IVDS Based on Incapacitating Episodes, whichever method results in the higher evaluation when all disabilities are combined. 38 C.F.R. § 4.25 (combined ratings table). The Formula for Rating IVDS Based on Incapacitating Episodes provides for a 60 percent rating when there are incapacitating episodes of IVDS having a total duration of at least six weeks during the past 12 months. A 40 percent rating is warranted when there are incapacitating episodes of IVDS having a total duration of at least four weeks, but less than six weeks during the past 12 months. A 20 percent rating is warranted when there are incapacitating episodes of IVDS having a total duration of at least two weeks, but less than four weeks during the past 12 months. A 10 percent rating is warranted when there are incapacitating episodes of IVDS having a total duration of at least one week, but less than two weeks during the past 12 months. An incapacitating episode is defined as a period of acute signs and symptoms due to IVDS that required bed rest prescribed by a physician and treatment by a physician. An evaluation can be had either on the total duration of incapacitating episodes over the past 12 months or by combining separate evaluations of the chronic orthopedic and neurologic manifestations along with evaluations for all other disabilities under 38 C.F.R. § 4.25, whichever method resulted in the higher evaluation. Under the regulations in effect prior to February 7, 2021, which are set forth above, Diagnostic Code 5242 is applicable to degenerative arthritis. Effective February 7, 2021, Diagnostic Code 5242 provides compensation for degenerative arthritis and degenerative disc disease other than intervertebral disc syndrome. Under the prior regulations, Diagnostic Code 5243 provides compensation for intervertebral disc syndrome. Under the new regulations, Diagnostic Code 5243 still provides compensation for intervertebral disc syndrome. Under the new regulations, this code is to be assigned only when there is disc herniation for compression and/or irritation of the adjacent nerve root. Diagnostic Code 5242 is to be assigned for all other disc diagnoses. 85 Fed Reg, 76,453. During the course of the appeal, the Veteran has been afforded two VA examinations in May 2011 and February 2016. The May 2011 VA examiner diagnosed the Veteran with degenerative joint disease of the lumbar spine, which was asymptomatic on examination. The Veteran's range of motion (ROM) was normal on examination, and no pain was noted on examination. The February 2016 VA examiner diagnosed the Veteran with degenerative arthritis of the spine. Flare-ups were reported during the VA examination, which cause increased pain. The Veteran's ROM was limited, and he experiences pain on motion--specifically the Veteran's flexion is limited to 70 degrees (normal is 90), the extension was limited to 20 degrees (normal is 30), the right lateral flexion was normal, the left lateral flexion was normal, right rotation was normal, and left rotation was considered normal. The Veteran had moderate tenderness to palpation and experienced pain with weight-bearing. There was no additional loss to ROM during observed repetitive use, repetitive use over time, or flare-ups. There was some noted tightness and guarding and tenderness to palpation. Additional factors noted on examination were less movement than normal (due to ankylosis, limitation or blocking, adhesions, tendon-tie-ups, contracted scars, etc.) and disturbance of locomotion. The Veteran was noted as having normal muscle strength, reflex, and sensory testing results. No radiculopathy was noted. The examination did not reveal ankylosis or IVDS. The Veteran did not report using assistive devices. The examiner opined that the Veteran's lumbar disability had a moderate impairment due to decreased ability when lifting and during prolonged standing or walking, with flare ups due to pain. The Board finds that the medical evidence of record reflects findings that are consistent with the current 20 percent rating based on the General Rating Formula for Diseases and Injuries of the Spine. The Veteran's most significant loss of motion for this period was his flexion, which was, at worst, 70 degrees with pain on motion. The board notes that this limitation to ROM, does not warrant a disability rating in excess of 20 percent. Accordingly, the Board concludes that the preponderance of the evidence is against a finding that the Veteran is entitled to a rating in excess of 20 percent. Service Connection Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. If a condition noted during service is not shown to be chronic, then generally a showing of continuity of symptomatology after service is required for service connection. 38 C.F.R. § 3.303(b), Walker v. Shinseki, 708 F.3d 1331. (Fed. Cir. 2013). Service connection may also be granted for any disease diagnosed after discharge from service when all of the evidence, including lay evidence, establishes that the disability is due to disease or injury which was incurred in or aggravated by service. 38 C.F.R. § 3.303(d). In order to establish service connection for a claimed disability, the following three elements must be satisfied: (1) the existence of a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship (nexus) between the present disability and the disease or injury incurred or aggravated during service. Hickson v. West, 12 Vet. App. 246 (1999). Service connection may also be granted on a secondary basis for a disability if it is proximately due to or the result of a service-connected disease or injury. 38 C.F.R. § 3.310(a). Establishing service connection on a secondary basis requires evidence sufficient to show (1) that a current disability exists and (2) that the current disability was either (a) proximately caused by or (b) proximately aggravated by a service-connected disability. Allen v. Brown, 7 Vet. App. 439, 448 (1995) (en banc). An increase in severity of a nonservice-connected disease or injury shall not be service-connected if it is due to the natural progression of the nonservice-connected condition. Id. at 447-48. Service connection on a secondary basis may not be granted without medical evidence of a current disability and evidence of a nexus between the current disability and a service-connected disability. Wallin v. West, 11 Vet. App. 509, 512-14 (1998). The requirement of a current disability is satisfied when a claimant has a disability at the time a claim for VA disability compensation is filed or during the pendency of that claim. McClain v. Nicholson, 21 Vet. App. 319 (2007). In evaluating the evidence in an appeal, it is the responsibility of the Board to weigh the evidence and decide where to give credit and where to withhold same and, in doing so, accept certain medical opinions over others. Schoolman v. West, 12 Vet. App. 307 (1999). In this regard, the Board has been charged with the duty to assess the credibility and weight given to the evidence. Jandreau v. Nicholson, 492 F.3d 1372 (2007). Competent lay evidence is any kind of evidence not requiring that the proponent have specialized education, training, or experience. Lay evidence is competent if it is provided by a person who has knowledge of facts or circumstances and conveys matters that can be observed and described by a lay person. 38 C.F.R. § 3.159(a)(2). This may include some medical matters, such as describing symptoms or relating a contemporaneous medical diagnosis. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall resolve reasonable doubt in favor of the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518 (1996). 2. Entitlement to service connection for major depressive disorder The Veteran and his attorney assert that his psychiatric disorder may be due to his in-service concussion and/or his service-connected lumbar spine disability. The Board notes that this claim arises from the Veteran's claim for service connection for a post-concussion syndrome, which included a claim for an acquired psychiatric disorder. According to a June 2011 and November 2011 lay statements, the Veteran contended that an in-service football injury resulted in a concussion that resulted in headache, dizziness, and vision problems, and subsequently additionally resulted in his depression and anxiety. The Veteran was not afforded a VA examination for psychiatric disorders. However, the Veteran submitted a private evaluation dated November 2021. Based on this private evaluation, the first element for secondary service connection is satisfied in that the Veteran was diagnosed with major depressive disorder. The Board notes that the private evaluation did not link the Veteran's psychiatric disorder with his in-service injury, however, the physician did opine that the Veteran's major depressive disorder is at least as likely as not partly related to his service-connected lumbar spine disability which results in chronic pain and limitations in his activities. Therefore, the Board shall consider this a claim for secondary service connection. The evidence relating to the final nexus element for secondary service connection is positive, as previously noted. This private medical opinion is probative because it is based on a review of the record and contain a clear conclusion with supporting data connected by a reasoned medical explanation. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 30102 (2008). The evidence contained in this opinion further supports the existence of a nexus between the Veteran's major depressive disorder and the Veteran's service-connected lumbar spine disability. Therefore, the Board finds that the final element for secondary service connection has been met and that service connection for major depressive disorder is warranted. REASONS FOR REMAND 1. Entitlement to a rating in excess of 10 percent for chondromalacia of the left knee, manifested by instability, is remanded. 2. Entitlement to a rating in excess of 10 percent for lateral epicondylitis of left elbow is remanded. The Veteran and his attorney assert that he is entitled to ratings in excess of 10 percent for chondromalacia of the left knee and lateral epicondylitis of the left elbow. The November 2013 VA elbow examination did not address whether the Veteran's noted flare-ups resulted in additional limitation to ROM. The February 2013 VA knee examination did not address whether the Veteran's noted flare-ups resulted in additional limitation to ROM. The August 2018 VA knee examiner was unable to state whether there was additional limitation to ROM due to repeated use over time or flare-ups. The U.S. Court of Appeals for Veteran's Claims (Court) has issued the decisions in Correia v. McDonald, 28 Vet. App. 158, 166 (2016) and Sharp v. Shulkin, 29 Vet. App. 26, 33 (2017) concerning the adequacy of VA orthopedic examinations. The Court in Correia held that the final sentence of 38 C.F.R. § 4.59 requires that VA examinations include joint testing for pain on both active and passive motion, in weight-bearing and nonweight-bearing and, if possible, with range of motion measurements of the opposite undamaged joint. In Sharp, the Court held that before a VA examiner opines that he or she cannot offer an opinion as to additional functional loss during flare-ups without resorting to speculation based on the fact that the examination was not performed during a flare, the examiner must "elicit relevant information as to the veteran's flares or ask him to describe the additional functional loss, if any, he suffered during flares and then estimate the veteran's functional loss due to flares based on all the evidence of record, including the veteran's lay information, or explain why she could not do so." Sharp at 35. In light of these decisions, the Board finds that new VA examinations should be provided addressing the Veteran's left knee and left elbow disabilities, along with retrospective opinions regarding the impact of these disabilities after repeated use over time and flare-ups. See Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). 3. Entitlement to service connection for a right knee strain is remanded. The Veteran and his attorney affirm that his right knee disability is due to his service-connected left knee disability. Regrettably, a remand is necessary for further evidentiary development of the Veteran's appeal. The Veteran was afforded a VA examination in August 2018. The VA examiner confirmed the Veteran's diagnosis of right knee strain. The Veteran stated that his right knee disability began in 2012, with symptoms of swelling and right knee locking. The examiner generally concluded that the right knee disability was not caused by the service-connected left knee disability, "since the mechanism of one joint or the spine developing arthritis or other chronic conditions by overcompensation for another joint injury through limping has never been proven." The Boards finds these opinions to be inadequate, as the rationales are conclusory and do not provide an adequate basis for the opinion the examiner provided. Thus, the Board finds that a remand is necessary in order to provide the Veteran with a new VA examination and nexus opinion with respect to the Veteran's right knee strain. 4. Entitlement to service connection for post-concussion syndrome is remanded. The Veteran and his attorney claim that he has post-concussion syndrome that originates from in-service concussions, and that it should be service connected. Although further delay is regrettable, the Board finds that additional development is necessary prior to appellate review. According to a November 2011 lay statement, the Veteran contended that an in-service football injury resulted in a concussion that resulted in headache, dizziness, and vision problems, and subsequently resulted in his depression and anxiety. Turning to the medical evidence at hand, the Veteran was provided a VA examination in January 2012. The examiner determined that the Veteran did not have a current disability. However, the Board notes that the examiner did not adequately address the Veteran's lay assertions. The Board notes that a medical examination is inadequate where the examiner impermissibly ignored the Veteran's lay assertions regarding onset of symptoms during service. Dalton v. Nicholson, 21 Vet. App. 23, 39-40 (2007). Furthermore, lay evidence concerning continuity of symptoms after service, if credible, can ultimately be considered competent, regardless of a lack of contemporaneous medical evidence. Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). The Board notes that the Veteran's claim has essentially asserted an in-service origin for his claimed post-concussion syndrome. Therefore, a remand is needed to obtain an adequate examination and opinion that completely addresses the Veteran's lay assertions. 5. Entitlement to service connection for tension headaches is remanded. The Veteran and his attorney assert that his tension headaches may be due to his in-service concussion. Although further delay is regrettable, the Board finds that additional development is necessary prior to appellate review. According to a June 2011 and November 2011 lay statements, the Veteran contended that an in-service football injury resulted in a concussion that resulted in headache, dizziness, and vision problems, and subsequently resulted in his depression and anxiety. The Veteran was afforded two VA examinations for his claimed headache disability in January 2012 and August 2018. In January 2012, the VA examiner opined that the Veteran's did not have a headache disability, however, there were noted symptoms of headache pain on both sides of his head. In August 2018, the VA examiner diagnosed the Veteran with tension headaches. The Veteran stated that he had a couple of concussions during his service. The veteran stated that his current symptoms are headache with pain in the top of the head and blurry vision in both eyes with headaches. The Veteran noted that he treats his headaches with over-the-counter ibuprofen. The examiner opined that the Veteran's in-service headaches resolved during service and that there is no evidence to support chronicity of complaints, symptoms, or care for his headache disability until 2012. The Board notes that a medical examination is inadequate where the examiner impermissibly ignored the Veteran's lay assertions regarding onset of symptoms during service. Dalton v. Nicholson, 21 Vet. App. 23, 39-40 (2007). Furthermore, lay evidence concerning continuity of symptoms after service, if credible, can ultimately be considered competent, regardless of a lack of contemporaneous medical evidence. Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). The Board notes that the Veteran's claim has essentially asserted an in-service origin for his current headache disability. Therefore, a remand is needed to obtain an adequate examination and opinion that completely addresses the Veteran's lay assertions. 6. Entitlement to service connection for a left-hand disability is remanded. The Veteran and his attorney claim that his claimed left-hand disability originated during his active-duty service, specifically due to in-service left small finger tendonitis. Regrettably, a remand is necessary for further evidentiary development of the Veteran's appeal. The Veteran was afforded a VA examination in August 2018. The VA examiner diagnosed the Veteran with a left-hand ganglion cyst. The examiner concluded that there was no evidence of a left-hand ganglion cyst during service, and there was no medical nexus for left small finger tendinitis in 1981 to cause the Veteran's current left hand ganglion cyst. The Board finds this opinion to be inadequate, as the rationale is somewhat conclusory and does not provide a complete and adequate basis for the opinion the examiner provided. Thus, the Board finds that a remand is necessary in order to provide the Veteran with a new VA examination and nexus opinion with respect to the Veteran's left-hand disability. 7. Entitlement to service connection for obstructive sleep apnea (OSA) is remanded. The Veteran and his attorney assert that his OSA originated during his active-duty service, mainly due to his in-service concussions and also his in-service weight gain. Although further delay is regrettable, the Board finds that additional development is necessary prior to appellate review. The Veteran was not afforded a VA examination. However, according to treatment records, the Veteran was diagnosed with obstructive sleep apnea. Additionally, a sleep study appears to have been conducted in 2013 or 2014, according to a December 2019 treatment note. As the Veteran's lay statements, and treatment records indicate that the Veteran has a disability that could be related to active-duty service, the Board finds that a medical examination with an opinion is necessary to decide the claim. 38 C.F.R. § 3.159(c)(4); McLendon v. Nicholson, 20 Vet. App. 70 (2006). Specifically, a remand is required to afford the Veteran a VA examination so as to determine the nature, etiology, and severity for OSA. 8. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) is remanded. As development of the Veteran's service connection and increased rating claims remanded herein could provide additional information concerning the effect of the Veteran's service-connected disabilities on his employability, the Board finds adjudication of entitlement to a TDIU would be premature and the appeal must be remanded for adjudication following such development. Parker v. Brown, 7 Vet. App. 116 (1994); Harris v. Derwinski, 1 Vet. App. 180, 183 (1991) (issues are "inextricably intertwined" when a decision on one issue would have a "significant impact" on a veteran's claim for the second issue). The matters are REMANDED for the following action: 1. Attempt to obtain a copy of relevant treatment records that are not in VA's possession, to include the Veteran's prior sleep study from 2013 or 2014. 2. Schedule the Veteran for an examination by an appropriate clinician to determine the current severity of his service-connected left knee and left elbow disabilities. The examiner should provide a full description of the disability and report all signs and symptoms necessary for evaluating the Veteran's disability under the rating criteria. For the Veteran's orthopedic disabilities, the examiner should conduct all indicated tests and studies, to include range of motion studies. The joints involved should be tested in both active and passive motion, in weight-bearing and nonweight-bearing and, if possible, with range of motion measurements of the right elbow. If the examiner is unable to conduct the required testing or concludes that the required testing is not necessary in this case, he or she should clearly explain why that is so. The examiner should describe any pain, weakened movement, excess fatigability, instability of station and incoordination present. The examiner should also state whether the examination is taking place during a period of flare-up or after repeated use over time. If not, the examiner should ask the Veteran to describe the flare-ups he experiences, including: frequency, duration, characteristics, precipitating and alleviating factors, severity and/or extent of functional impairment he experiences during a flare-up of symptoms and/or after repeated use over time. Based on the Veteran's lay statements and the other evidence of record, the examiner should provide an opinion estimating any additional degrees of limited motion caused by functional loss during a flare-up or after repeated use over time. A rationale should be provided. The examiner is asked to specifically address the February 2013 and August 2018 VA knee examinations, and the November 2013 VA elbow examination. If the examiner cannot estimate the degrees of additional range of motion loss during flare-ups or after repetitive use without resorting to speculation, the examiner should state whether the need to speculate is caused by a deficiency in the state of general medical knowledge (i.e. no one could respond given medical science and the known facts) or by a deficiency in the record or the examiner (i.e. additional facts are required, or the examiner does not have the needed knowledge or training). 3. Afford the Veteran a VA examination by a new examiner with appropriate expertise to determine the nature and etiology of the Veteran's diagnosed right knee strain. Any and all studies, tests, and evaluations that are deemed necessary should be performed. The claims folder, including a copy of this remand and the lay statement provided by the Veteran, should be reviewed by the examiner. The examination report should note review of these records, and the VA and private treatment records. The examiner should then provide an opinion as to whether it is at least as likely as not (i.e. a probability of 50 percent or greater) that the Veteran's right knee strain originated due to, or is etiologically related to, the Veteran's service-connected left knee disability. The examiner is advised that the Veteran is considered competent to be able to report injuries and symptoms, and that his reports must be considered in formulating the requested opinions. If the Veteran's reports are discounted, the examiner should provide a reason for doing so. A complete rationale must be provided for all opinions rendered. If the examiner cannot provide the requested opinions without resorting to speculation, he or she should expressly indicate this and provide a supporting rationale as to why an opinion cannot be made without resorting to speculation. 4. Afford the Veteran a VA examination by a new examiner with appropriate expertise to determine the nature and etiology of the Veteran's claimed post-concussion syndrome. Any and all studies, tests, and evaluations that are deemed necessary should be performed. The claims folder, including a copy of this remand and the lay statement provided by the Veteran, should be reviewed by the examiner. The examination report should note review of these records, and the VA and private treatment records. The examiner should then: a) Identify any diagnosis related to the Veteran's claimed post-concussion syndrome. b) Provide an opinion as to whether it is at least as likely as not (i.e. a probability of 50 percent or greater) that the Veteran's claimed post-concussion syndrome originated during, or is etiologically related to, active duty service. The examiner is advised that the Veteran is considered competent to be able to report injuries and symptoms, and that his reports must be considered in formulating the requested opinions. If the Veteran's reports are discounted, the examiner should provide a reason for doing so. A complete rationale must be provided for all opinions rendered. If the examiner cannot provide the requested opinions without resorting to speculation, he or she should expressly indicate this and provide a supporting rationale as to why an opinion cannot be made without resorting to speculation. 5. Afford the Veteran a VA examination by a new examiner with appropriate expertise to determine the nature and etiology of the Veteran's diagnosed tension headaches. Any and all studies, tests, and evaluations that are deemed necessary should be performed. The claims folder, including a copy of this remand and the lay statement provided by the Veteran, should be reviewed by the examiner. The examination report should note review of these records, and the VA and private treatment records. The examiner should then provide an opinion as to whether it is at least as likely as not (i.e. a probability of 50 percent or greater) that the Veteran's tension headaches originated during, or is etiologically related to, active-duty service. The examiner is advised that the Veteran is considered competent to be able to report injuries and symptoms, and that his reports must be considered in formulating the requested opinions. If the Veteran's reports are discounted, the examiner should provide a reason for doing so. A complete rationale must be provided for all opinions rendered. If the examiner cannot provide the requested opinions without resorting to speculation, he or she should expressly indicate this and provide a supporting rationale as to why an opinion cannot be made without resorting to speculation. 6. Afford the Veteran a VA examination by a new examiner with appropriate expertise to determine the nature and etiology of the Veteran's a left-hand disability. Any and all studies, tests, and evaluations that are deemed necessary should be performed. The claims folder, including a copy of this remand and the lay statement provided by the Veteran, should be reviewed by the examiner. The examination report should note review of these records, and the VA and private treatment records. The examiner should then: a) Identify any diagnosis related to the Veteran's claimed a left-hand disability. b) Provide an opinion as to whether it is at least as likely as not (i.e. a probability of 50 percent or greater) that the Veteran's claimed a left-hand disability originated during, or is etiologically related to, active duty service. c) Provide an opinion as to whether it is at least as likely as not (i.e. a probability of 50 percent or greater) that the Veteran's claimed a left-hand disability originated due to, or is etiologically related to, a service-connected disability. The examiner is advised that the Veteran is considered competent to be able to report injuries and symptoms, and that his reports must be considered in formulating the requested opinions. If the Veteran's reports are discounted, the examiner should provide a reason for doing so. A complete rationale must be provided for all opinions rendered. If the examiner cannot provide the requested opinions without resorting to speculation, he or she should expressly indicate this and provide a supporting rationale as to why an opinion cannot be made without resorting to speculation. 7. The Veteran must be afforded a VA examination by an examiner with appropriate expertise to determine the nature and etiology of the Veteran's claimed OSA. Any and all studies, tests, and evaluations that are deemed necessary by the VA examiner should be performed, to include a sleep study. The claims folder, including a copy of this remand, the Veteran's lay statements, and private medical records, should be made available and be reviewed by the examiner. Following a complete review of the record, the examiner is asked to: a) Confirm a current diagnosis as to the Veteran's claimed OSA. b) Provide an opinion as to whether it is at least as likely as not (50 percent probability or greater) that the Veteran's claimed OSA originated during, or is etiologically related to, active-duty service, to include the Veteran's reported in-service concussion and weight gain. A complete rationale must be provided for all opinions rendered. If the examiner cannot provide the requested opinions without resorting to speculation, he or she should expressly indicate this and provide a supporting rationale as to why an opinion cannot be made without resorting to speculation. Michael J. Skaltsounis Veterans Law Judge Board of Veterans' Appeals Attorney for the Board A. R. Montalvo, Associate Counsel The Board's decision in this case is binding only with respect to the instant matter decided. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.