Citation Nr: 22015741
Decision Date: 03/18/22	Archive Date: 03/18/22

DOCKET NO. 09-18 243
DATE: March 18, 2022

ORDER

Entitlement to service connection for gout on a presumptive basis is granted.

Entitlement to service connection for a low back disability (characterized as degenerative disc disease of the lumbar spine with lower extremity radiculopathy) is granted.

Entitlement to service connection for bilateral hearing loss is denied.

From July 17, 2006, entitlement to a 40 percent rating for hepatitis C, but no higher, is granted, subject to the laws and regulations governing the payment of monetary benefits.

REMANDED

Entitlement to service connection for a bilateral eye condition, to include as secondary to a service-connected disability, is remanded.

Entitlement to service connection for a neurological disorder, to include residuals of traumatic brain injury (TBI), is remanded.

Entitlement to service connection for a left upper extremity disability (identified as a left hand condition) is remanded.

Entitlement to a rating in excess of 50 percent for posttraumatic stress disorder (PTSD) prior to February 7, 2008, is remanded.

Entitlement to a rating in excess of 50 percent for PTSD from April 1, 2008, is remanded.

Entitlement to a total disability rating based upon individual unemployability due to service-connected disabilities (TDIU) is remanded.

FINDINGS OF FACT

1. It is at least as likely as not that the Veteran's gout manifested to a compensable degree within one year of separation from active-duty service.

2. It is at least as likely as not that the Veteran has experienced low back pain due to a low back disability since his separation from service.

3. The Veteran does not have a current hearing loss disability for VA purposes.

4. From July 17, 2006, the symptoms of the Veteran's service-connected hepatitis C have more nearly approximated daily fatigue, malaise, anorexia with minor weight loss, and hepatomegaly.  The symptoms of the Veteran's hepatitis C do not more nearly approximate substantial weight loss, incapacitating episodes having a total duration of at least six weeks during the past 12-month period, or near-constant debilitating symptoms.

CONCLUSIONS OF LAW

1. The criteria for entitlement to service connection for gout on a presumptive basis are met.  38 U.S.C. §§ 1110-1113, 1131, 1137, 5107; 38 C.F.R. §§ 3.102, 3.303(b), 3.307, 3.309(a), 4.71a, Diagnostic Code 5017.

2. The criteria for entitlement to service connection for a low back disability are met.  38 U.S.C. §§ 1110-1113, 1131, 1137, 5107; 38 C.F.R. §§ 3.102, 3.303(b), 3.307, 3.309(a).

3. The criteria for entitlement to service connection for hearing loss are not met.  38 U.S.C. §§ 1110-1113, 1131, 1137, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309(a).

4. From July 17, 2006, the criteria for a 40 percent disability rating for hepatitis C, but no higher, have been met.  38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.1, 4.3, 4.7, 4.114, Diagnostic Code 7354.

REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

The Veteran had active service from August 1969 to July 1971 and March 1977 to November 1996.

These matters come before the Board of Veterans' Appeals (Board) on appeal from rating decisions that were issued by a Department of Veterans Affairs (VA) Regional Office (RO).

These issues were previously before the Board in March 2019, at which time the issues were remanded to the AOJ for additional evidentiary development, including scheduling the Veteran for VA examinations to determine the nature and etiology of the claimed disabilities for service connection and the current severity of his service-connected disabilities, which are on appeal.  Additionally, the Board remanded the Veteran's claims to obtain relevant medical records pertinent to the Veteran's claims.  This case has now been returned to the Board for further appellate action.  For the reasons stated in the discussion below, the AOJ has substantially complied with the March 2019 remand directives with respect to the issues being decided.  See Stegall v. West, 11 Vet. App. 268, 271 (1998).

When a claimant makes a claim, he is seeking service connection for symptoms regardless of how those symptoms are diagnosed or labeled.  The Veteran seeks entitlement to service connection for residuals of a TBI.  The Veteran has reported symptoms of dizziness and migraine headaches which he asserts are related to service, to include a TBI in service.  See October 2006 Statement in Support of Claim (Supporting Statement); November 2020 Hearing Testimony.  A July 2011 audiology examination reflects that the Veteran underwent a posturography test which revealed abnormal findings, including abnormal equilibrium and abnormal visual and vestibular utilization.  Thus, the evidence of record indicates that the Veteran's dizziness may be attributable to his abnormal equilibrium and his abnormal visual and vestibular utilization.  As such, the issue of entitlement to service connection for residuals of a TBI has been characterized as entitlement to service connection for a neurological disorder, to include residuals of a TBI.  See Clemons v. Shinseki, 23 Vet. App. 1, 5 (2009).

Service Connection

The Veteran seeks entitlement to service connection for gout, a low back condition, and bilateral hearing loss.

Service connection will be granted if the evidence demonstrates that current disability resulted from an injury or disease incurred in active military service.  38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a).  Establishing service connection generally requires competent evidence of three things: (1) current disability; (2) in-service disease or injury; and (3) a causal relationship between the current disability and the in-service disease or injury.  Saunders v. Wilkie, 886 F.3d 1356, 1361 (Fed. Cir. 2018).  Consistent with this framework, service connection is warranted for a disease first diagnosed after discharge when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service.  38 C.F.R. § 3.303(d).

Service connection may be granted based on chronicity or continuity of symptomatology for a disability which is due to a disease enumerated on the list of chronic diseases in 38 U.S.C. § 1101(3) or 38 C.F.R. § 3.309(a), including arthritis and sensorineural hearing loss.  See 38 C.F.R. § 3.303(b).  Thus, service connection may also be granted on the basis of chronicity or continuity of symptomatology for gout, which is a form of arthritis.  See 38 C.F.R. § 4.71a, Diagnostic Code 5017.

Pursuant to 38 C.F.R. § 3.303(b), where a chronic disease is shown as such in service, subsequent manifestations of the same chronic disease are generally service connected.  If a chronic disease is noted in service but chronicity in service is not adequately supported, a showing of continuity of symptomatology after separation is required.  Entitlement to service connection based on chronicity or continuity of symptomatology pursuant to 38 C.F.R. § 3.303(b) applies only when the disability for which the Veteran is claiming compensation is due to a disease enumerated on the list of chronic diseases in 38 U.S.C. § 1101(3) or 38 C.F.R. § 3.309(a).  Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013).  Consideration of continuity of symptomatology is required only where a condition noted during service or in the presumptive period is not, in fact, shown to be chronic or where the diagnosis of chronicity may be legitimately questioned.  38 C.F.R. § 3.303(b).

Under 38 C.F.R. § 3.303(b), an alternative method of establishing the second and third elements is through a demonstration of continuity of symptomatology.  See Barr v. Nicholson, 21 Vet. App. 303, 307 (2007).  A claimant can establish continuity of symptomatology with competent lay or medical evidence showing: (1) that a condition was "noted" during service; (2) post-service continuity of the same symptomatology; and (3) a nexus between a current disability and the post-service symptomatology.  Savage v. Gober, 10 Vet. App. 488, 495-96 (1997); 38 C.F.R. § 3.303(b).

Determining for disability compensation purposes whether a disease or injury is related to service often raises the question of whether the disease or injury arose during service or preexisted the veteran's military service.  Every veteran is presumed to have been in sound condition at entry into service except as to defects, infirmities, or disorders noted at the time of such entry, or where clear and unmistakable evidence demonstrates that the injury or disease existed before entry and was not aggravated by such service.  38 U.S.C. § 1111.  The term "noted," in 38 U.S.C. § 1111, refers to "[o]nly such conditions as are recorded in examination reports."  38 C.F.R. § 3.304(b).

"PULHES is a rating system widely employed by armed services physicians in examination reports for induction and separation.  The 'P' stands for 'physical capacity or stamina'; the 'U' for 'upper extremities'; the 'L' for 'lower extremities'; the 'H' for 'hearing and ear'; the 'E' for 'eyes'; and the 'S' for 'psychiatric.'''  Horn v. Shinseki, 25 Vet. App. 231, 250 (U.S. 2012) (citing McIntosh v. Brown, 4 Vet. App. 553, 555 (1993)).  "A rating of '1' in any of the six categories, the highest rating, means that the inductee's condition in that category should not result in any limitations in military assignments."  Id.  "Ratings from '2' to '4' indicate the existence of physical conditions that will result in progressively more severe restrictions on the assignments that the inductee may be given."  Id.

A "[h]istory of preservice existence of conditions recorded at the time of examination does not constitute a notation of such conditions."  38 C.F.R. § 3.304(b)(1); see also Crowe v. Brown, 7 Vet. App. 238, 245 (1994).  Although the veteran is competent to report a history of an injury prior to service, a veteran's report of history, even when related by a medical professional, without an independent basis in the record, is insufficient to rebut the presumption of soundness.  Miller v. West, 11 Vet. App. 345 (1998).

1. Entitlement to service connection for gout

For reasons set forth below, it is at least as likely as not that the Veteran's gout manifested to a compensable degree within one year of separation from service.  Resolving reasonable doubt in favor of the Veteran, the criteria for service connection for gout on a presumptive basis are met.

The Veteran asserts that he has experienced joint pain and swelling throughout his body, including his feet, ankles, knees, elbows, and fingers, since his time in service.  See June 1997 VA treatment record; April 2007 VA examination; November 2020 hearing testimony.

Service treatment records reflect complaints of joint pain and a diagnosis of polyarthralgia from at least January 1993; and a possible diagnosis of arthritis from approximately 1994.  The Veteran complained of arthritis with a history of joint pain in his hands, knees, and feet for 2 1/2 years.  See January 1993 service treatment record.  See also July 1995 service treatment records.

An undated consultation request reflects a provisional diagnosis of arthritis.  The treatment provider noted that the Veteran complained of multiple joint pains with an unknown etiology.

An August 1996 history report reflects that the Veteran indicated he had swollen or painful joints and reported that he had joint cramps day and night and he was taking medication for relief.

As noted, the Veteran separated from service in November 1996.

Post-service treatment records reflect a diagnosis of clinical gout from at least June 1997.

The Veteran underwent diagnostic testing in May 1997, which revealed that the Veteran's uric acid level was 8.3 mg/dl out of a range of 3.5 mg/dl to 8.5 mg/dl.

The June 1997 VA treatment provider noted that the Veteran had swollen ankles and feet for the past 3 to 4 months, which had worsened in the past week.  Physical examination of the Veteran revealed bilateral leg tenderness; and a laboratory test in January 1997, revealed that his uric acid level was 9.8 mg/dl.  The treatment provider prescribed medication and a low purine diet.

Post-service treatment records also reflect a current diagnosis of gout.  See August 2006, June 2008, January 2014, June 2015 VA treatment records.  The August 2006 VA treatment record reflects a diagnosis of gout of the right olecranon with bursitis.  The Veteran reported right elbow pain and was diagnosed with bursitis in an emergency room.  The treatment provider noted that the Veteran had a history of gout in the past.  Physical examination revealed pain and redness of the right olecranon bursa with minimal swelling.

The Veteran was afforded a VA examination in November 2003.  The examiner noted that the Veteran had recurrent joint pains, especially in the right foot; and had been with gouty arthritis in the past.  The examiner noted that a musculoskeletal examination revealed a history of arthralgia of the right foot secondary to a history of gout in the past.  The examiner noted that the Veteran did not currently have any significant bones and joint problems and noted that the Veteran's bones and joints appeared satisfactory.

The Veteran was afforded a VA examination in October 2019, which reflects a diagnosis of gout.  Diagnostic testing revealed that the Veteran's uric acid level was 8.56 mg/dl, which was noted as high.  The examiner opined that it was less likely than not that the Veteran's gout was incurred or related to service.  The examiner noted that the condition was diagnosed 21 years after military service in 2017.

Based on the evidence as outlined above, service treatment records reflect a possible diagnosis of arthritis with complaints of multiple joint pains; post-service treatment records reflect a diagnosis of gout from June 1997 and that the Veteran has a current diagnosis of gout.  The dispositive issue is whether the Veteran's gout manifested to a compensable degree within one year of separation from service.

For the following reasons, the evidence of record supports a finding that the Veteran's gout manifested to a compensable degree within one year of service, and the Veteran meets the criteria for presumptive service connection for gout.

Based on the evidence as outlined above, the Veteran's gout manifested to a compensable degree in June 1997 within one year of separation from service under Diagnostic Code 5002, based upon the June 1997 VA treatment record which reflects that the Veteran reported his swollen ankles and feet had worsened in the past week.

The intent of the Rating Schedule is to recognize actually painful, unstable or malaligned joints, due to healed injury, as entitled to at least the minimum compensable rating for the joint.  38 C.F.R. § 4.59; Burton v. Shinseki, 25 Vet. App. 1, 4-5(2011); see also Sowers v. McDonald, 27 Vet. App. 472, 480 (2016); Petitti v. McDonald, 27 Vet. App. 415, 428-29 (2015) (a compensable rating is warranted for joint pain pursuant to 38 C.F.R. § 4.59 for orthopedic disabilities rated under diagnostic codes containing a 10 percent rating, and the criteria for such a rating can be satisfied with lay and other non-medical evidence).  Therefore, chronic gout has been demonstrated.  See 38 C.F.R. § 3.309(a).

The October 2019 VA examiner who opined that it was less likely than not that the Veteran's gout was related to service, inaccurately noted that the Veteran was not diagnosed with gout until 2017, 21 years after military service.  The VA examiner did not discuss the post-service treatment records, which reflect a diagnosis of gout from at least June 1997, which renders the examination inadequate.  However, a request for another opinion could be construed as obtaining additional evidence for the sole purpose of denying a claim, which is impermissible.  38 C.F.R. § 3.304(c) ("The development of evidence in connection with claims for service connection will be accomplished when deemed necessary but it should not be undertaken when evidence present is sufficient for this determination"); Andrews v. McDonough, 34 Vet. App. 216, 225 (2021) ("Remand is inappropriate where the predominant purpose is not to allow the Board to make a fully informed decision unencumbered by error but to allow VA to obtain more evidence so that it can properly deny the claim").

In this case, there is sufficient evidence to support a finding that entitlement to service connection for gout on a presumptive basis is warranted.  Specifically, the June 1997 VA treatment record, combined with the other evidence of record including the service treatment records, post-service treatment records, and lay evidence, establishes that the Veteran's gout had its onset within one year of separation from service.  See also November 2003 VA examination (examiner noted that a musculoskeletal examination revealed a history of arthralgia of the right foot secondary to a history of gout in the past).

Resolving any doubt in favor of the Veteran and based on the medical and lay evidence of record, the Board finds that the evidence of record supports a finding that service connection for gout is warranted on a presumptive basis.  See 38 U.S.C. § 5107.

2. Entitlement to service connection for a low back condition

The evidence of record reflects that the Veteran's symptoms of low back pain had its onset in service and has been continuous since discharge from service.  Thus, resolving reasonable doubt in favor of the Veteran, the criteria for service connection for a low back disability are met.

The Veteran essentially contends that his low back condition has been continuous since discharge from service; and asserts that he injured his back while on active duty in the mid-1980s during an evening training exercise, when he was in the turret of a vehicle, which went down into a deep sink hole.  See August 2006 Supporting Statement; November 2020 Hearing Testimony.  The statements of the Veteran are competent and credible and support a finding that the Veteran had low back pain in service, and that his symptoms continued when the Veteran returned home from service.  See Savage, supra.

Service treatment records reflect complaints of back pain from at least October 1980, and reports of injury in May 1981 and January 1991.

An April 1969 medical examination and history report for enlistment revealed a normal clinical evaluation of the Veteran's spine and the Veteran denied ever having had a bone, joint or other deformity or recurrent back pain.  The medical examiner noted that the Veteran had a rating of 1 for his physical capacity under the PULHES rating system, which was the highest rating and indicated that his physical capacity would not result in any limitation in military assignments.

An October 1980 history report reflects that the Veteran indicated that he had recurrent back pain.

A May 1981 service treatment record reflects that the Veteran complained of pain in his back.  He reported that he fell in the shower striking his back.

A January 1991 service treatment record reflects that the Veteran had broken 2 ribs on his right side, which the treatment provider noted were caused by blunt trauma with bricks, pipes, and fists.

A May 1991 service treatment record reflects an assessment of overuse syndrome.  The treatment provider noted that the Veteran had been complaining of low back pain for two weeks.  The treatment provider noted that the Veteran had a back injury more than 20 years ago while playing football.

A May 1991 service treatment record reflects that the Veteran complained of back pain for 1 week.  The Veteran reported that his back started hurting when he was running.

An October 1994 history report reflects that the Veteran indicated recurrent back pain and reported that sometimes his back would be painful for a couple of days, usually after heavy lifting.

An undated service treatment record, when the Veteran was 46 years old, in approximately 1995, reflects that the Veteran reported that he injured his lower back 3 weeks prior while lifting.  See July 1971 DD 214 (Veteran born in November 1949).  The Veteran complained of pain increasing at night, when lifting, standing, or walking for increasing duration.  The Veteran was placed on a profile with no running, jumping, marching, lifting, or crawling for 5 days.

An August 1996 medical history report reflects that the Veteran reported problems with back cramps and indicated recurrent back pain.  The Veteran reported that he had upper/lower back pain at intervals.

Post-service treatment records reflect that the Veteran complained of low back pain from at least April 1997.  The Veteran was afforded a VA examination in April 1997, which reflected a diagnosis of low back syndrome, which was intermittently symptomatic.  The examiner noted that the Veteran's back condition was asymptomatic at the time of examination.  During the examination, the Veteran reported that he sustained a low back injury prior to service, which resolved.  During service, he had intermittent episodes of low back pain over the years primarily with lifting while in service.  The examiner noted that the Veteran's last episode of pain was approximately 2 to 3 weeks prior and occurred while the Veteran was getting out of bed.  The examiner noted that the lumbar spine X-ray was unremarkable.  See also November 2001 VA treatment record (X-ray revealed a normal lumbar spine).

A June 2002 VA treatment record reflects a diagnosis of lumbago.  The treatment provider noted that the Veteran complained of some back pain and inquired about a back brace that had been mentioned to him during a prior visit.  See also September 2002 VA treatment record.

A March 2003 VA treatment record reflects an impression of back pain.  During the medical visit, the Veteran reported his back pain developed about 15 years prior spontaneously, and it had gotten progressively worse.  Physical examination revealed that extension of the back reproduced back pain.  The treatment provider noted that the pain sounded mostly axial, and fatigue associated, partly due to deconditioning.  The treatment provider noted that the most the Veteran had done in 10 years was walk.

A June 2003 VA treatment record reflects a diagnosis of back pain.  During the medical visit, the Veteran reported that he had had back pain since he had fallen while coming up the steps 3 days prior.

A February 2004 VA treatment record reflects a diagnosis of chronic lumbosacral back pain.  The treatment provider noted that there had been no change from the past.

During a September 2004 VA medical visit, the Veteran reported chronic non-positional non-exertional low back pain.  The Veteran reported that his back pain began in 1993.  He reported that he had been riding a truck over rough terrain for 22 years, and had problems then, but the problems had worsened.  The treatment provider referenced a November 2001 X-ray, which revealed a normal lumbar spine.  Physical examination revealed full flexion and extension of the lumbar spine.  During the physical examination, the Veteran reported that his pain increased with extension.  The treatment provider noted that, as described, the Veteran's low back pain was hard to believe, constant almost unvarying pain at a level of 9 or 10 for years.  However, the treatment provider noted that the pain seemed to be consistently described as coming from the L4-S1 area, and worse with segmental mobilization, or random loading, like stepping off of a curb, which the treatment provider opined could occur with spondylolisthesis or instability with constant annular aggravating, or even with congenital structural malformation.  The treatment provider recommended a bone scan and a lumbar MRI.

A March 2007 treatment record reflects a diagnosis of spondyloarthropathy.  The treatment provider noted that the Veteran sought treatment due to chronic disabling back pain, ostensibly with little change in more than 10 years, except for a current notable thoracic kyphosis.  The treatment provider noted that the pain sounded mostly axial and associated with fatigue partly due to deconditioning.  See also March 2007 VA treatment record (lumbar spine x-ray revealed minimal osteophytic spurring at L5 since November 2001).

During an April 2007 VA examination for the Veteran's hepatitis C, the Veteran reported low back pain which radiated down into his legs.

A February 2009 private treatment record reflects a diagnosis of degenerative changes of the lumbar spine with low back pain and lumbosacral spondylosis without myelopathy.  The treatment provider noted that the Veteran was retired from the Army.  During the medical visit, the Veteran reported that he had been hurting for years.  The provider opined that the Veteran simply had degenerative changes of the lumbar spine and opined that it was not necessarily true that the Veteran's condition came from driving tanks or another event.

A July 2011 VA examiner opined that the Veteran did not have a current diagnosis of a back disability and noted that the Veteran had a normal lumbar spine.  During the examination, the Veteran reported that his back caused problems with lifting, standing, sitting, bending, stooping, walking, and running.  The VA examiner opined that despite subjective complaints, no objective finings supported a diagnosis of a low back condition.

A September 2015 VA treatment record reflects a diagnosis of chronic low back pain.

Pursuant to the March 2019 Board remand, the Veteran was afforded a VA examination in October 2019, which reflected a diagnosis of resolved lumbosacral strain with no residuals from 1994, lumbar degenerative disc disease with lower extremity radiculopathy from February 2016, and intervertebral disc syndrome (IVDS).  The examiner referenced an October 1994 service medical history report and referenced post-service treatment records from June 2002 to February 2004 and September 2015 to October 2019.

The October 2019 VA examiner opined that the Veteran's degenerative disc disease of the lumbar spine was less likely than not related to the Veteran's lumbar strain during service and noted that a back strain was a transient inflammation involving the muscles and ligaments (soft tissue) of the spinal region, and lumbar degenerative disc disease was a degenerative process involving the disc and vertebral bodies.  The examiner noted that one was not the cause of or related to the other and noted that a study on degenerative disc diseases shows that age, genetics, and body weight were the predominate predictors of degenerative disc disease, and the examiner noted that there was a temporal gap of 22 years between the diagnosis of the two conditions.

Based on the evidence as outlined above, the Veteran has a current diagnosis of degenerative disc disease of the lumbar spine with IVDS and low back pain, and service treatment records reflect repeated injuries to the Veteran's back, as well as repeated complaints and treatment for a low back condition throughout service.  Thus, the dispositive issue is whether the Veteran's low back disability is related to his in-service complaints and treatment of a low back condition.  For reasons set forth below, it is at least as likely as not that the Veteran's low back pain had its onset in service, and the Veteran has continued to experience low back pain since service.

Although a May 1991 service treatment record reflects that the Veteran reported that he injured his back more than 20 years ago while playing football, his statements, without an independent basis in the record, is insufficient to rebut the presumption of soundness.  See also April 1997 VA examination (Veteran reported that he sustained a low back injury prior to service, which resolved); Miller, supra.

As noted, the Veteran's April 1969 enlistment examination revealed a normal clinical evaluation of the spine and a rating of 1 for his physical capacity under the PULHES rating system, which was the highest rating and indicated that his physical capacity would not result in any limitations in military assignment.  There is no other evidence of any pre-existing back condition prior to service and the Veteran's April 1969 entrance examinations revealed a normal clinical evaluation of the Veteran's spine.  Therefore, the evidence is not clear and unmistakable that any back condition pre-existed service and was not aggravated in service, and the Veteran is presumed sound at service entrance.  38 U.S.C. § 1111.

The February 2009 private treatment provider did not provide sufficient rationale to support the finding that it was not necessarily true that the Veteran's low back condition was a result of driving tanks or another event.  The treatment provider did not discuss the Veteran's service treatment records which reflect repeated injuries to his back, as well as repeated complaints and treatment of low back pain in service.

The July 2011 VA examiner, who opined that the Veteran did not have a current diagnosis of a low back condition, did not discuss the March 2007 VA treatment records and July 2008 private treatment records which reflect a diagnosis of arthritis.

The October 2019 VA examiner, who opined that the Veteran's degenerative disc disease of the lumbar spine was less likely than not related to the Veteran's lumbar strain during service, did not provide a convincing rationale as to why the Veteran's current low back disability was not related to service.  Although the examiner referenced an October 1994 service medical history report; the examiner did not discuss the service treatment records from October 1980 to May 1991 and from 1995 to August 1996, which reflect repeated injuries to the Veteran's low back, as well as repeated complaints and treatment of low back pain.  The VA examiner did not provide sufficient rationale to support the opinion that the Veteran's October 1994 lumbar strain had resolved.  The examiner's conclusion was not supported by the service treatment records which indicate otherwise.  The examiner's conclusion was contradicted by the October 1980, October 1994, and August 1996 medical history reports which indicated that the Veteran had recurrent back pain.

In addition, the October 2019 VA examiner inaccurately noted that there was a temporal gap of 22 years between the diagnosis of the Veterans lumbar strain in service, and his current low back disability.  Although the examiner referenced VA treatment records from June 2002 to February 2004 and from September 2015 to October 2019; the examiner did not discuss VA treatment records from March 2007 to July 2008, which indicated degenerative changes of the lumbar spine.

The October 2019 VA examiner did not provide an opinion regarding whether the Veteran's recurring low back pain in service was related to the Veteran's chronic low back pain following service; or an opinion regarding whether the Veteran's recurrent low back pain in service was related to the Veteran's diagnosis of lumbosacral spondylosis in July 2004; or an opinion regarding whether the Veteran's current disability was caused by the May 1981 and 1995 injuries in service.

Although, the October 2019 VA opinion is inadequate, a remand for an addendum opinion is not necessary in this case.  The evidence of record is sufficient to determine whether the Veteran's current low back disability is related to service.  As noted, the statements of the Veteran, coupled with the service treatment records and post service treatment records, support a finding that it is at least as likely as not that the Veteran's current low back disability had its onset during service, and the Veteran's low back pain has been continuous since service.  Savage, supra.  A request for another opinion could be construed as obtaining additional evidence for the sole purpose of denying a claim, which is impermissible.  38 C.F.R. § 3.304(c); Andrews, supra.

Resolving reasonable doubt in favor of the Veteran and based on the medical and lay evidence of record, the Board finds that the evidence of record supports a finding that service connection for a low back disability characterized as degenerative disc disease of the lumbar spine with IVDS is warranted.  See 38 U.S.C. § 5107.

3. Entitlement to service connection for bilateral hearing loss

For reasons set forth below, the Veteran does not have a current hearing loss disability which is related to service.  The criteria for service connection for hearing loss are not met.

For the purposes of applying the laws administered by VA, impaired hearing will be considered to be a disability when the auditory threshold in any of the frequencies of 500, 1,000, 2,000, 3,000 and 4,000 Hertz is 40 decibels or greater; or when the thresholds for at least three of these frequencies are 26 decibels or greater; or when speech recognition scores using the Maryland CNC Test are less than 94 percent.  38 C.F.R. § 3.385; see also McKinney v. McDonald, 28 Vet. App. 15 (2016) (holding that a minimum degree of hearing loss is a prerequisite for entitlement to service connection, and that a change in hearing as a result of service is a disability if it exceeds the levels specified in 38 C.F.R. § 3.385).

Service connection for hearing loss may be granted where there is credible evidence of acoustic trauma due to significant noise exposure in service, post-service audiometric findings meeting regulatory requirements for hearing loss disability for VA compensation purposes (i.e., under 38 C.F.R. § 3.385), and a medically sound basis upon which to attribute the post-service findings to the injury in service, as opposed to intercurrent causes.  Hensley v. Brown, 5 Vet. App. 155 (1993).  To establish entitlement to service connection, it is not required that a hearing loss disability by these standards of 38 C.F.R. § 3.385 be demonstrated during service, including at time of separation, although a hearing loss disability by these standards must be currently present, and service connection is possible if this current hearing loss disability can be adequately linked to service.  Ledford v. Derwinski, 3 Vet. App. 87, 89 (1992).

The threshold for normal hearing is from 0 to 20 decibels, and higher threshold levels indicate some degree of hearing loss.  Hensley, supra (citing Current Medical Diagnosis & Treatment, Stephen A. Schroeder, et. al. eds., at 110-11 (1988))

An April 1969 examination report for enlistment revealed right ear decibel thresholds (RE) of 0, 0, 0, 0, and 0 dB and left ear decibel thresholds (LE) of 0, 0, 0, 0, and 0 dB at frequencies of 500 (.5k), 1000 (1k), 2000 (2k), 3000 (3k), and 4000 (4k) Hertz (Hz).

Audiological examinations from June 1971 to October 1980 indicated normal bilateral hearing.  See June 1971 (RE 5, 0, 0, 0, and 10 dB and LE 5, 0, 5, 5, and 10 dB at .5k, 1k, 2k, 3k, and 4k Hz); October 1974 (RE 5, 0, 0, and 0 dB and LE 10, 5, 0, and 0 dB at .5k, 1k, 2k, and 4k Hz); October 1980 (RE 5, 5, 5, 0, and 0 dB and LE 5, 0, 0, 0, and 5 dB at .5k, 1k, 2k, 3k, and 4k Hz).

A September 1982 audiological examination revealed some degree of hearing loss with RE of 15, 15, 15, 15, and 15 dB and LE of 20, 20, 15, 25, and 25 dB at frequencies of .5k, 1k, 2k, 3k, and 4k Hz.

Audiological examinations from December 1983 to August 1996 also indicated normal bilateral hearing.  See December 1983 (RE 10, 15, 5, 5, and 15 dB and LE 5, 5, 10, 0, and 10 dB at .5k, 1k, 2k, 3k, and 4k Hz); May 1986 (RE 5, 0, 10, 5, and 5 dB and LE 0, 0, 0, 5, and 0 dB at .5k, 1k, 2k, 3k, and 4k Hz); April 1989 (RE 5, 5, 5, 10, and 10 dB and LE 5, 5, 5, 10, and 10 dB at .5k, 1k, 2k, 3k, and 4k Hz); November 1989 (RE 5, 0, 5, 0, and 0 dB and LE 0, 0, 0, 0, and 0 dB at .5k, 1k, 2k, 3k, and 4k Hz); March 1992 (RE 0, 0, 0, 5, and 0 dB and LE 0, 0, 0, 10, and 10 dB at .5k, 1k, 2k, 3k, and 4k Hz); April 1993 (RE 0, 0, 10, 5, and 20 dB and LE 0, 0, 0, 10, and 5 dB at .5k, 1k, 2k, 3k, and 4k Hz ); June 1994 (RE 10, 0, 0, 5, 15 dB and LE 5, 0, 5, 15, and 15 dB at .5k, 1k, 2k, 3k, and 4k Hz ); May 1995 (RE 0, 0, 5, 5, and 15 dB and LE 0, 0, 0, 10, and 10 dB at .5k, 1k, 2k, 3k, and 4k Hz); March 1996 (RE 0, 0, 0, 5, and 15 dB and LE 5, 0, 0, 15, and 10 dB at .5k, 1k, 2k, 3k, and 4k Hz); August1996 (RE 0, 0, 0, 5, and 15 dB and LE 5, 0, 0, 15, and 10 dB at .5k, 1k, 2k, 3k, and 4k Hz).

The Board concedes that the Veteran was exposed to hazardous noise during service.  Consideration shall be given to the places, types, and circumstances of a veteran's service as shown by the veteran's service record, the official history of each organization in which the veteran served, and all pertinent medical and lay evidence.  38 U.S.C. § 1154(a).  The Veteran's July 1971 DD Form 214 notes that the Veteran's military occupational specialty (MOS) was armorer unit support specialist; and his November 1996 DD Form 214 notes that his MOS was armor senior sergeant, which have been shown to have a "highly probable" probability of exposure to hazardous noise.  Therefore, the Board concedes that the Veteran was exposed to hazardous noise during service.

However, post-service medical records reflect that although the Veteran does have a current diagnosis of bilateral sensorineural hearing loss; he does not have a current hearing loss disability for the purposes of applying the laws administered by VA.

The Veteran was afforded a VA examination in March 1997, which revealed RE of 5, 5, 5, 15, 20 dB and LE of 5, 10, 5, 20, 15 dB at frequencies of .5k, 1k, 2k, 3k, and 4k Hz; and speech audiometry, using the Maryland CNC word list (CNC), revealed speech recognition of 100 percent bilaterally.

The Veteran was afforded a VA examination in January 2011, which reflects a diagnosis of bilateral sensorineural hearing loss.  The VA examination revealed RE of 15, 20, 20, 25, and 30 dB and LE of 15, 20, 25, 25, and 30 dB at frequencies of .5k, 1k, 2k, 3k, and 4k Hz, and CNC speech recognition of 94 percent bilaterally.

The Veteran was seen for an audiological evaluation in December 2018, which revealed bilateral mild to moderate sensorineural hearing loss from 3k to 8k Hz, and bilateral hearing within normal limits between 250 to 2k Hz with a word recognition score of 96 percent bilaterally.  The audiologist noted that the Veteran was not currently a hearing aid candidate as the majority of his hearing thresholds were within normal limits.

During a follow up visit in January 2019, the Veteran reported that he had been having more difficulty hearing his spouse's voice, as well as other women.  The audiologist noted that the Veteran was not considered a good candidate for amplification based solely on his hearing loss; however, he could be fitted with hearing aids on a trial basis to determine if they were beneficial for alleviating his tinnitus.  In July 2019, following the trial, the Veteran was issued his own pair of hearing aids.

The Veteran was afforded a VA examination in September 2019, which reflects a diagnosis of bilateral sensorineural hearing loss.  The Veteran reported that his impaired hearing impacted the ordinary conditions of daily life and as a result, the Veteran would sometimes miss what people said, and he would have to ask others to repeat themselves, and it impacted his ability to hear the television at volumes that his spouse deemed reasonable.  The VA examination revealed RE of 15, 15, 20, 30, and 35 dB and left ear decibel thresholds of 15, 15, 15, 30, and 30 dB at frequencies of .5k, 1k, 2k, 3k, and 4k Hz, and CNC speech recognition of 96 percent for the right ear and 98 percent for the left ear.

Based on the evidence as outlined above, service connection for bilateral hearing loss is not warranted, because there is no clear objective evidence that the Veteran has a current hearing loss disability for VA purposes.  Service connection cannot be granted if there is no present disability.  38 U.S.C. § 1110; 38 C.F.R. §§ 3.303, 3.304, 3.306.

The clinical evidence of record indicates that the Veteran does not have a current disability for VA purposes.  As noted, although the Veteran has a current diagnosis of sensorineural hearing loss, the Veteran's auditory thresholds do not meet the requirements to be considered a disability for VA purposes.  The audiometric testing results throughout the period on appeal do not show auditory threshold of 40 decibels or higher at any of the above-referenced frequencies or auditory thresholds of 26 decibels or greater for at least three of the above-referenced frequencies for the right ear.  Alternatively, the reported CNC speech recognition scores were not less than 94 percent for either ear, and thus, do not meet the VA definition of a hearing loss disability.

In November 2020, the Veteran testified that he had been issued hearing aids by VA for hearing loss.  The Veteran's statements that he had difficulty hearing and was given a hearing aid, is not competent evidence on the issue of whether he has a current hearing loss disability for VA purposes.  The pertinent regulation requires specific audiometric or speech recognition scores in order to meet the current disability requirement for hearing loss.  Thus, lay evidence is not competent to diagnose hearing loss given the specific measurements required under 38 C.F.R. § 3.385 and clinical expertise necessary to administer and interpret an audiogram.  To the extent the Veteran statements generally assert a current bilateral hearing loss disability, his statements do not include any assertion of audiology expertise and are therefore not competent.  Jandreau v. Nicholson, 492 F.3d 1372, 1376, n.4 (Fed. Cir. 2007) ("sometimes the layperson will be competent to identify the condition where the condition is simple, for example a broken leg, and sometimes not, for example, a form of cancer").  The Veteran has not identified or alluded to the existence of any competent audiometric or speech recognition scores that show impaired hearing pursuant to 38 C.F.R. § 3.385.  Although the current disability requirement can in some circumstances be met with evidence of symptoms showing impairment in earning capacity, Saunders v. Wilkie, 886 F.3d 1356, 1364-65 (Fed. Cir. 2018) (a diagnosis is not always required to meet the current disability requirement and pain alone can constitute disability if it causes impairment in earning capacity), given the specific requirements of 38 C.F.R. § 3.385, this principle is not for application here.

Although VA treatment records reflect that the Veteran was issued hearing aids from at least January 2019, the evidence of record does not support a finding that the Veteran required hearing aids due to the severity of his hearing loss; rather, the evidence indicates that the hearing aids were issued to the Veteran due to his tinnitus.  As noted, the January 2019 and July 2019 treatment records specifically indicated that the Veteran was not a candidate for hearing aids for amplification because the majority of his hearing thresholds were within normal limits.

Further, the Veteran was afforded a VA examination in September 2019, after he reported that he was having more difficulty hearing his spouse's voice and the voices of other women in January 2019.  The September 2019 audiological evaluation indicated that although the Veteran had some hearing loss, his hearing loss did not reach the auditory thresholds which are required for his hearing loss to be considered a disability for VA purposes.

The September 2019 VA examination coupled with the other evidence of record establishes that the Veteran does not have a current hearing loss disability for VA purposes which is related to service.  There is no contrary evidence of record.

For the above reasons, the evidence is neither evenly balanced nor approximately so with regard to whether entitlement to service connection for bilateral hearing loss is warranted; thus, appeal is denied.  38 U.S.C. § 5107(b); Lynch v. McDonough, 21 F.4th 776 (Fed. Cir. 2021) (en banc) (only when the evidence persuasively favors one side or another is the benefit of the doubt doctrine not for application).

Increased Rating

4. Entitlement to a compensable rating for hepatitis C

Disability evaluations are determined by evaluating the extent to which a Veteran's service-connected disability adversely affects his ability to function under the ordinary conditions of daily life, including employment, by comparing his symptomatology with the criteria set forth in VA's Rating Schedule.  38 U.S.C. § 1155; 38 C.F.R. §§ 4.1, 4.2, 4.10.  If two evaluations are potentially applicable, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that evaluation; otherwise, the lower evaluation will be assigned.  38 C.F.R. § 4.7.

In order to evaluate the level of disability and any changes in condition, it is necessary to consider the complete medical history of the Veteran's condition.  Schafrath v. Derwinski, 1 Vet. App. 589, 594 (1991).  Where, as here, entitlement to compensation has already been established and an increase in the disability rating is at issue, the present level of disability is of primary concern.  Francisco v. Brown, 7 Vet. App. 55 (1994).

The effective date of an award of increased compensation shall be the earliest date as of which it is ascertainable that an increase in disability had occurred if application is received within one year from such date.  38 U.S.C. § 5110(b)(3); 38 C.F.R. § 3.400(o)(2).  Further, an "effective date should not be assigned mechanically based on the date of a diagnosis.  Rather, all of the facts should be examined to determine the date that [the veteran's disability] first manifested."  Swain v. McDonald, 27 Vet. App. 219, 224 (2015).  Staged ratings are appropriate for any rating claim when the factual findings show distinct time periods during the appeal period where the service-connected disability exhibits symptoms that would warrant different ratings.  Hart v. Mansfield, 21 Vet. App. 505, 510 (2007).

The assignment of a particular diagnostic code is "completely dependent on the facts of a particular case." Butts v. Brown, 5 Vet. App. 532, 538 (1993).  One diagnostic code may be more appropriate than another based on such factors as an individual's relevant medical history, the diagnosis, and the demonstrated symptomatology.  See id.  Any change in a diagnostic code by a VA adjudicator must be specifically explained.  Pernorio v. Derwinski, 2 Vet. App. 625, 629 (1992).  Where a different diagnostic code more appropriately reflects the nature of the Veteran's disability picture, and the change does not reduce the Veteran's level of compensation, the Board has the authority to change the assigned diagnostic code.  See Butts, supra.

For reasons set forth below, throughout the period on appeal, the Veteran's symptoms of hepatitis C have been manifested by, at worst, daily fatigue, malaise, weakness, and anorexia with minor weight loss and hepatomegaly without incapacitating episodes or near-constant debilitating symptoms.  Resolving reasonable doubt in favor of the Veteran, under Diagnostic Code 7354, a uniform 40 percent disability rating, but no higher, is warranted for hepatitis C from July 17, 2006, the date the Veteran went to the emergency room for loss of appetite and lower mid-abdominal pain.

The Veteran has a noncompensable (0 percent) disability rating for hepatitis C under 38 C.F.R. § 4.114, Diagnostic Code 7345.  Diagnostic Code 7345 provides the schedular criteria for rating chronic liver disease without cirrhosis (including hepatitis B, chronic active hepatitis, autoimmune hepatitis, hemochromatosis, drug-induced hepatitis, etc., but excluding bile duct disorders and hepatitis C).  38 C.F.R. § 4.114.  Diagnostic Code 7354 provides the schedular criteria for rating hepatitis C (or non-A, non-B hepatitis).  Id.  Therefore, the Veteran's hepatitis C is more properly rated under Diagnostic Code 7354, which provides ratings for hepatitis C, as opposed to Diagnostic Code 7345, which provides ratings for chronic liver disease without cirrhosis and specifically excludes hepatitis C, throughout the period on appeal.  See Butts, supra.  Moreover, the change would not reduce the Veteran's level of compensation because the current rating criteria for hepatitis C under Diagnostic Code 7354 is identical to the current rating criteria for Diagnostic Code 7345.

In pertinent part, under both Diagnostic Code 7345 and 7354, a 10 percent evaluation is warranted where the condition is productive of intermittent fatigue, malaise, and anorexia; or incapacitating episodes (with symptoms such as fatigue, malaise, nausea, vomiting, anorexia, arthralgia, and right upper quadrant pain) having a total duration of at least one week, but less than two weeks, during the past 12-month period.  38 C.F.R. § 4.114.  A 20 percent evaluation is warranted where there is daily fatigue, malaise, and anorexia (without weight loss or hepatomegaly), requiring dietary restriction or continuous medication, or incapacitating episodes (with symptoms such as fatigue, malaise, nausea, vomiting, anorexia, arthralgia, and right upper quadrant pain) having a total duration of at least two weeks, but less than four weeks, during the past 12-month period.  Id.  A 40 percent evaluation is warranted where there is daily fatigue, malaise, and anorexia, with minor weight loss and hepatomegaly; or incapacitating episodes (with symptoms such as fatigue, malaise, nausea, vomiting, anorexia, arthralgia, and right upper quadrant pain) having a total duration of at least four weeks, but less than six weeks, during the past 12-month period.  Id.  A 60 percent evaluation is warranted with daily fatigue, malaise, and anorexia, with substantial weight loss (or other indication of malnutrition), and hepatomegaly, or incapacitating episodes (with symptoms such as fatigue, malaise, nausea, vomiting, anorexia, arthralgia, and right upper quadrant pain) having a total duration of at least six weeks during the past 12-month period, but not occurring constantly.  Id.  A 100 percent evaluation is warranted with near-constant debilitating symptoms (such as fatigue, malaise, nausea, vomiting, anorexia, arthralgia, and right upper quadrant pain).  Id.

Sequelae, such as cirrhosis or malignancy of the liver, are to be evaluated under an appropriate diagnostic code, but should not be based on the same signs and symptoms as the basis for evaluation under Diagnostic Code 7354.  38 C.F.R. § 4.114, Diagnostic Code 7354, Note 1.

An "incapacitating episode" means a period of acute signs and symptoms severe enough to require bed rest and treatment by a physician.  38 C.F.R. § 4.114, Diagnostic Code 7354, Note 2.

Anorexia is the lack or loss of an appetite for food.  Dorland's Illustrated Medical Dictionary (31st ed. 2007).

For purposes of evaluating conditions in 38 C.F.R. § 4.114, the term "substantial weight loss" means a loss of greater than 20 percent of the individual's baseline weight, sustained for three months or longer; and the term "minor weight loss" means a weight loss of 10 to 20 percent of the individual's baseline weight, sustained for three months or longer.  38 C.F.R. § 4.112.  The term "inability to gain weight" means that there has been substantial weight loss with inability to regain it despite appropriate therapy.  Id.  "Baseline weight" means the average weight for the two-year-period preceding onset of the disease.  Id.

The schedular rating for hepatitis C under Diagnostic Codes 7345 and 7354 involve successive rating criteria, i.e., the criteria for a higher rating include those of a lesser rating, such that the higher rating is not warranted if the criteria for the lower rating are not met.  See Camacho v. Nicholson, 21 Vet. App. 360, 366-67 (2007) (explaining that where a diagnostic code establishes a successive rating criteria, a claimant must meet all of the requirements of a lower rating criteria before he can be eligible for a higher rating criteria); see also Middleton v. Shinseki, 727 F.3d 1172, 1178 (Fed. Cir. 2013) (distinguishing between rating schedules that establish successive rating criteria from those where the criteria necessary for a higher rating are not dependent upon meeting the criteria of a lower rating and noting that it was not error by stating that § 4.7 does not apply).

In July 2006, the Veteran sought treatment at an emergency room requesting assignment of a primary care provider.  The Veteran reported a history of stomach problems, with a decreased appetite over the past few weeks, burning and throbbing pain in his lower mid abdomen, and severe lower back pain with difficulty sleeping.  The Veteran underwent laboratory testing prior to discharge.  In August 2006, a VA treatment provider noted that the laboratory tests indicated that the Veteran had decompensated liver damage and may not have been a candidate for hepatitis C treatment.

The Veteran filed a claim for an increased rating for his hepatitis C in October 2006.

The Veteran was afforded a VA examination in April 2007, which reflects a diagnosis of hepatitis C.  The Veteran reported that he had fatigue and tiredness.  He reported that he was not currently receiving treatment for his hepatitis C, except that he had been trying to avoid alcohol.  The Veteran reported that he had gained five pounds in the last year, and denied symptoms of nausea, vomiting, or anorexia.  Physical examination revealed that the Veteran weighed 183 pounds.  The examiner noted that the Veteran was a chronic carrier of hepatitis C with high viral loads and nearly normal liver function test.  The examiner noted that the Veteran was currently asymptomatic and stable without treatment.

In January 2009, a mental health treatment provider noted that the Veteran reported that his appetite was not good.  See also February 2010, July 2010 VA treatment records.

The Veteran was afforded a VA examination in February 2011, which reflected a diagnosis of hepatitis C.  The Veteran reported symptoms of fatigue or malaise, and weakness.  The examiner noted that his symptoms were multifactorial, were reported in a setting of depression, diabetes mellitus, degenerative disc disease, and other comorbid conditions.  The examiner noted that the Veteran did not have symptoms of nausea, vomiting, anorexia, right upper quadrant pain, weight loss, hepatomegaly, or incapacitating episodes.  Physical examination revealed that the Veteran weighed 220 pounds.  Diagnostic tests revealed normal liver function tests and no active hepatitis C disease.

The Veteran was afforded a VA examination in February 2012, which reflected a diagnosis of hepatitis C.  The Veteran reported in approximately 2006 he had declined to take the medications he was supposed to take to treat his hepatitis C, based upon the percentage of which medications would make him sick and the likelihood that he would be cured.  He stated that since then he had not been sick, and he had not gone to the next stage of his hepatitis C.  The examiner noted that the Veteran did not have any signs or symptoms attributable to chronic or infectious liver disease, including fatigue, malaise, anorexia, nausea, vomiting, arthralgia, weight loss, right upper quadrant pain, hepatomegaly, or any other condition requiring dietary restrictions or resulting in indications of malnutrition.

A May 2013 private treatment record reflects that the Veteran had had a massive weight loss; and a May 2013 VA treatment record reflects an assessment of change in bowel function along with weight loss.

During the May 2013 private medical visit, the Veteran reported a change in bowel function, with mushy loose stool, and difficulty evacuating.  The private treatment provider noted that he had gone from 205 pounds to 177 pounds over the past several months, and he was concerned about the source of the loss of weight.  The Veteran reported that his appetite was variable, and he did not have any dyspeptic features.

An August 2014 VA treatment record reflects that the Veteran admitted to having fatigue, shortness of breath, edema, and abdominal pain with flatulence, and anxiety.

An August 2015 VA treatment record reflects a diagnosis of chronic hepatitis.  A review of the Veteran's general system revealed fatigue and weight fluctuations.  A review of his endocrine system revealed appetite fluctuations, increased urination, and sexual dysfunction.  The treatment provider noted that an endocrine evaluation indicated the Veteran's appetite fluctuated.

A September 2015 liver ultrasound revealed mild hepatomegaly and increase in liver echogenicity.  The evaluator opined that the findings were most consistent with fatty infiltration of the liver and/or diffuse hepatic parenchymal disease.  The ultrasound also revealed status post cholecystectomy.

An April 2016 private treatment record reflects an assessment of unintentional weight loss, diarrhea, and metformin.

Pursuant to the March 2019 Board remand, the Veteran was afforded a VA examination in October 2019, which reflected a diagnosis of hepatitis C.  The examiner noted that continuous medication was not required to control the Veteran's liver conditions.  The examiner noted that the Veteran did not currently have signs and symptoms attributable to chronic or infectious liver disease.  The examiner noted that the Veteran did not have any incapacitating episodes due to his liver conditions during the past 12 months.  The examiner noted that the Veteran did not have signs or symptoms attributable to cirrhosis of the liver, biliary cirrhosis, or cirrhotic phase of sclerosing cholangitis.  The examiner noted that the Veteran was not a liver transplant, was not currently hospitalized awaiting transplant, had not undergone a liver transplant, and did not have an injury to the liver.  The examiner noted that diagnostic testing revealed normal AST, ALT, alkaline phosphatase, bilirubin, and creatinine, and no hepatitis C RNA viral load was detected.  The examiner noted that the Veteran reported that he had been treated with Harvoni in 2015.

Based on the evidence as outlined above, the symptoms of the Veteran's hepatitis C more closely approximated daily fatigue, malaise and anorexia with minor weight loss and hepatomegaly, the criteria for a 40 percent rating from July 17, 2006, the date the Veteran went to the emergency room to seek treatment for decreased appetite with lower mid-abdominal pain.  Resolving reasonable doubt in favor of the Veteran, the criteria for a 40 percent disability rating, but no higher, is warranted for the Veteran's service-connected hepatitis C from July 17, 2006.

July 17, 2006, is the earliest date that it is factually ascertainable that the increase in the Veteran's hepatitis C first manifested, less than one year before filing his claim for an increased rating in October 2006.  Notably, the Veteran reported symptoms of decreased appetite, difficulty sleeping, and lower mid-abdominal pain; and the laboratory testing that was drawn on that date later revealed that the Veteran had decompensated liver damage.  The Veteran did not suddenly get worse in May 2013 when the treatment provider noted that the Veteran had had massive weight loss, or in September 2015 when an ultrasound revealed hepatomegaly.  Rather, the evidence of record reflects that the increase in the Veteran's hepatitis C disability occurred from at least July 17, 2006, the date the Veteran went to the emergency room to seek treatment due to a decrease in appetite and lower mid-abdominal pain.  Based on the above, the evidence is approximately evenly balanced as to whether he more nearly approximated the criteria for a 40 percent rating throughout the period on appeal.

However, the symptoms of the Veteran's hepatitis C do not more nearly approximate the criteria for a rating in excess of 40 percent at any point during the period on appeal.  The evidence of record does not indicate that the Veteran has had substantial weight loss, incapacitating episodes having a total duration of at least six weeks during the past 12-month period, or near-constant debilitating symptoms, the requirement for a rating in excess of 40 percent.  The evidence is neither evenly balanced nor approximately so with regard to whether a rating in excess of 40 percent is warranted for the Veteran's hepatitis C.  Rather, the evidence persuasively weighs against a finding of entitlement to a rating in excess of 40 percent at any point during the period on appeal.

Resolving any doubt in favor the Veteran, and with consideration of the objective medical evidence as well as the subjective lay evidence, the Board finds that a 40 percent rating, but no higher, is warranted for hepatitis C from July 17, 2006.  See 38 U.S.C. § 5107(b).

REASONS FOR REMAND

1. Entitlement to service connection for a bilateral eye condition is remanded.

The Veteran seeks service connection for a bilateral eye condition, which he asserts is related to service or to his service-connected type II diabetes mellitus or hypertension.  In August 2006, the Veteran stated that he had possible ocular damage due to diabetes.  See July 2011 VA examination.  During a January 2012 VA examination the Veteran reported that he had gotten sand in his eyes during service.

April 1969 medical history and examination reports prior to enlistment reflects that the Veteran had a normal clinical evaluation of his eyes in general.  Physical examination revealed that the Veteran's distant vision was 20/20 bilaterally and his near vision was J-1 on the Jaeger eye chart bilaterally.  Additionally, the medical examiner noted that the Veteran failed the lantern test.  An April 1969 medical history report reflects that the Veteran denied ever wearing glasses or contact lenses.  The medical examiner noted that the Veteran had a rating of 1 for his eyes under the PULHES rating system, which was the highest rating and indicated that his eyes would not result in any limitations in military assignments.  Horn, supra.

August 1969 service treatment records reflect that the Veteran underwent an ophthalmologic consultation and was prescribed single vision glasses to correct his distance vision to 20/20 bilaterally.  See also June 1971, October 1974, May 1986, November 1989 service treatment records.  Although an October 1980 report of medical examination indicated that the Veteran's distant and near vision was 20/20 uncorrected; a report of medical history on the same date indicated that the Veteran reported that he wore glasses.

An October 1982 service treatment record reflects a diagnosis of hyperopic astigmatism.  During the medical visit the Veteran reported that he had difficulty with near work.

A June 1982 service treatment record reflects that the Veteran sustained a head injury while playing basketball.  The Veteran reported that he did not lose consciousness.  The treatment provider noted that the Veteran had a 1.5-centimeter laceration on his left eyebrow.

A January 1991 service treatment record reflects that due to blunt trauma from being hit with bricks, pipes, and fists, the Veteran sustained an injury to the left side of his mouth, which was closed with 4 sutures.

A March 1994 service treatment record reflects an assessment of old corneal scars, chronic blepharitis, presbyopia, and hyperopia.  See also October 1995 service treatment record (hyperopia, astigmatism, and presbyopia).

An October 1994 examination revealed a normal clinical evaluation of the eyes.  The examination revealed that the Veteran's right eye uncorrected distance vision was 20/30, uncorrected near vision was 20/100; and the Veteran's left eye uncorrected distance vision was 20/25; and uncorrected near vision was 20/100.  The medical examiner noted that the Veteran had hyperopia and noted that the Veteran had a rating of 2 for his eyes under the PULHES rating system, which indicated that the Veteran's eye condition would result in progressively more severe restrictions on the assignments that the Veteran may have been given.

An October 1994 history report reflects that the Veteran indicated eye trouble and reported that his vision would blur when he didn't wear his glasses.

An August 1996 examination revealed a normal clinical evaluation of the eyes.  The examination revealed that the Veteran had right eye uncorrected distance 20/30, uncorrected near 20/200; left eye uncorrected distance 20/25, uncorrected near 20/200.  An August 1996 history report reflects that the Veteran indicated eye trouble, and reported that he wore bifocals and his eyes stayed red.

In addition to a diagnosis of bilateral refractive error, post service treatment records reflect a diagnosis of bilateral inferior punctate keratopathy from April 1997; a diagnosis of glaucoma suspect from at least August 2003; diagnosis of hyperplastic optic nerve hypoplasia from January 2005; diagnoses of flat retinoschisis of left inferior temporal quadrant and sixth cranial nerve palsy from March 2008, and a diagnosis of dry eye syndrome from March 2010.  See also February 2007 VA treatment record (bilateral refractive error, glaucoma suspect), February 2007, March 2009, March 2016 VA treatment records (bilateral refractive error); March 2010 VA treatment record (refractive error of the eye, bilateral dry eye syndrome; Veteran reported watery itchy eyes, blurry vision especially while reading and watching tv); July 2011, January 2012 VA examinations (bilateral refractive error).

The Veteran was afforded a VA examination in October 2019, pursuant to the March 2019 Board remand.  The March 2019 remand requested that the examiner (1) opine whether any eye disability diagnosed during the pendency of the appeal, to include glaucoma suspect and retinoschisis, was at least as likely as not (50 percent or greater probability) related to any in-service injury, event, or disease; (2) if a refractive error was diagnosed, state whether there was any evidence of a superimposed disease or injury that occurred during service; (3) opine as to whether it was at least as likely as not that any diagnosed eye disability was proximately due to a service-connected disability (diabetes mellitus, PTSD, hypertension, focal dystonia, tinnitus, hepatitis C, and residuals of fractures of the seventh and eight ribs), or aggravated beyond its natural progression by a service-connected disability.  There has not been substantial compliance with the March 2019 remand directives, with respect to the issue of entitlement to service connection for a bilateral eye condition.  See Stegall, supra.

The October 2019 examiner opined that refractive error of the eyes were not aggravated or caused by military service.  The examiner noted that no current diagnosis of glaucoma suspect or retinoschisis was noted on current evaluation or over the past 10 years of eye examinations conducted at VA.  The VA examiner noted that the Veteran's ocular health was within normal limits bilaterally.  The VA examiner noted that no diabetic eye disease was noted; and an extensive review of the Veteran's service treatment records did not reveal any abnormality or condition that would affect the Veteran's current ocular health status.  The examiner opined that had these conditions been identified they were not aggravated or caused by military service, nor were they aggravated beyond their normal progression as a result of military service.  The October 2019 VA examiner opined that the Veteran's refractive error was not aggravated or caused by military service and noted that no current diagnosis of glaucoma suspect or retinoschisis was noted during the current examination or over the past 10 years of eye examinations conducted at a VA treatment center.

When a disability is not active at a VA examination, the current disability prong of a direct service connection claim is still met if the disability was active at or near the time a claim for VA disability compensation is filed or anytime during the pendency of the claim.  McClain v. Nicholson, 21 Vet. App. 319 (2007); Romanowsky v. Shinseki, 26 Vet. App. 289 (2013).  The October 2019 VA examiner erroneously restricted the relevant time frame for determining whether the Veteran had a current disability to the past 10 years, rather than during the period on appeal.

Further although the remand requested that the examiner discuss any eye disability diagnosed during the pendency of the appeal, the examiner did not discuss the diagnoses of flat retinoschisis of left inferior temporal quadrant and sixth cranial nerve palsy from March 2008, or the diagnosis of dry eye syndrome from March 2010, which were diagnosed after the filing of the Veteran's claim in August 2006.  Further, although the remand requested the examiner discuss if there was evidence of a superimposed disease or injury that occurred during service, the examiner did not discuss the March 1994 service treatment records which reflect that the Veteran had a corneal scar and chronic blepharitis, which renders the examination inadequate.

Thus, a VA examination is warranted to determine the nature and etiology of the Veteran's bilateral eye conditions.

2. Entitlement to service connection for a neurological disorder is remanded.

The Veteran seeks entitlement to service connection for a TBI, which he asserts is related to service, or to his service-connected PTSD.  In October 2006, the Veteran reported that he would get dizzy while laying down, standing, and sitting.  In November 2020, the Veteran testified that he had been told that his migraine headaches might have something to do with his PTSD.

Service treatment records reflect treatment for head injuries in service in May 1981, June 1982, and January 1991.  In May 1981 the Veteran complained of head pain and dizziness when laying down, after falling in the shower and striking his head against the floor.  In June 1982, the Veteran sustained a head injury while playing basketball.  The Veteran reported that he did not lose consciousness.  The treatment provider noted that the Veteran had a 1.5-centimeter laceration on his left eyebrow.  In January 1991 the Veteran sustained an injury to the left side of his mouth due to blunt trauma from being hit with bricks, pipes, and fists.

Service treatment records reflect complaints of dizziness from at least October 1980.  See also May 1981, October 1994, August 1996 service treatment records.

Although the record contains VA examinations and opinions regarding the Veteran's entitlement to service connection for a TBI, the Board is unable to decide the Veteran's claim based upon the findings of the VA examinations and opinions.

During a November 2003 VA examination, the Veteran reported that he had headaches approximately every two weeks and episodes of dizziness and near blackout since 1995.  The examiner noted that the Veteran recalled two out of three objects from a memory recall test; and he was able to do times five of serial 100-7.  the examiner noted that he was able to take a few steps on heels and toes, and was slightly unsteady with tandem, but was not ataxic.  The examiner noted that the Veteran had headaches off and on, but nonspecific, not suggesting any vascular headaches.  The examiner opined that the Veteran probably had tension type headaches.  In addition, the examiner opined that the Veteran's episodes of near passing out and feeling disoriented without blackouts were nonspecific.

The Veteran was afforded an audiology examination in July 2011.  The Veteran reported that his balance problems had worsened in the past 6 months with an increase in stumbling and falling.  The Veteran underwent posturography testing which revealed abnormal findings, including abnormal equilibrium and abnormal visual utilization and vestibular utilization.

The Veteran was also afforded a TBI examination in July 2011.  The VA examiner noted that the Veteran had been struck by fists, bricks and 2 by 4's in an altercation in January 1991.  The Veteran reported headaches, within 1 to 2 months of injury, less than every other month lasting approximately 2 to 3 hours; dizziness and vertigo when lying down, fatigue, and malaise within 2 to 3 months of his head injury.  The examiner noted that the Veteran had memory impairment within 2 weeks; and noted that longer term loss was not typical of TBI.  The examiner opined that the Veteran had a mild traumatic brain injury, which resolved without residuals.  The examiner noted that the Veteran's multiple subjective complaints were not consistent with solitary mild TBI.  The examiner noted that it could not be said, without resorting to mere speculation, the precise cause of the Veteran's subjective complaints, only that there were less likely than not caused by or related to a TBI.

In March 2019, the Board remanded the issue to the AOJ for further development.  The Board noted that the TBI evaluation in July 2011 had not been conducted by a physiatrist, psychiatrist, neurologist, or neurosurgeon and requested that the Veteran be afforded a TBI examination by one of the listed professionals.  There has not been substantial compliance with the March 2019 remand directives, with respect to the issue of entitlement to service connection for a TBI.  See Stegall, supra.

The Veteran was afforded a PTSD examination in October 2019 by a clinical psychologist.  The examiner opined that the Veteran had a diagnosis of PTSD.  The examiner did not provide a response in regard to whether the Veteran had a diagnosed TBI and noted that it was to be determined by a physician.  The examiner noted, however, that no cognitive disorder was diagnosed based on current neuropsychological testing.

The Veteran was afforded an initial evaluation of residuals of TBI examination in October 2019, from a staff physician.  The VA examiner indicated that the Veteran never had a TBI or residuals of a TBI.  The examiner noted that the service treatment records were silent for a TBI.

The AOJ obtained an opinion from a psychiatrist in October 2019.  The psychiatrist opined that the Veteran's condition was less likely than not (less than 50 percent probability) incurred in or caused by the claimed in-service injury, event or illness.  The examiner noted that the Veteran did not have a TBI as defined by VA or Department of Defense criteria.

The October 2019 VA examinations and opinions do not satisfy the requirements of the March 2019 Board remand which requested that the Veteran be afforded a TBI examination by a physiatrist, psychiatrist, neurologist, or a neurosurgeon.  Instead, the Veteran was afforded a TBI examination by a staff physician and a PTSD examination by a clinical psychologist in October 2019 and the AOJ obtained an opinion from a psychiatrist in October 2019, which is not in compliance with the March 2019 Board remand.

Further, the October 2019 psychiatrist did not provide sufficient rationale to support their opinion that the Veteran did not have a TBI as defined by VA or department of defense criteria.  The examiner merely noted that the Veteran did not have TBI, residuals, or functional limitations, without further explanation, which renders the opinion inadequate.  Specifically, the VA examiner did not discuss the service treatment records which reflect head injuries in service as well as complaints of dizziness during service.  The VA examiner also did not discuss the July 2011 VA examination which indicated that the Veteran had a mild diagnosis of a TBI.  Finally, the VA examiner did not discuss the July 2011 posturography test, which indicated that the Veteran had abnormal equilibrium and abnormal visual utilization and vestibular utilization, which renders the opinion in adequate.

Thus, a TBI examination is warranted to determine the nature and etiology of the Veteran's neurological disorder, to include residuals of a TBI.

3. Entitlement to service connection for a left upper extremity disability is remanded.

The Veteran seeks service connection for a left upper extremity disability (identified as left hand condition), which he asserts is related to service or to his service-connected type II diabetes mellitus.  In August 2006, the Veteran asserted that his loss of feeling of the left hand was related to his diabetic neuropathy due to his service-connected diabetes.  See also July 2011 VA examination.

The Veteran is currently service connected for focal dystonia with symptoms of muscle cramps and spasms in his hands.  See April 1997 VA examinations.

However, the Veteran's current claim for service connection is based on symptoms of numbness and tingling of his left hand.

Service treatment records reflect complaints of a nerve condition of the left hand from at least June 1991.  In June 1991, the Veteran complained of radial nerve palsy to the left hand.  The treatment provider noted that the Veteran had total wrist drops of the hand.

Post service treatment records reflect complaints of numbness of the left hand from at least September 2002.  See September 2002 VA treatment record (numbness in left 5th finger); November 2003 VA examination (sudden weakness of arms and hands on and off since early 1990s); March 2007 VA treatment record (occasional numbness and tingling in fingers); February 2008 VA treatment record (neurological assessment of the left limb revealed mild weakness); August 2013 private treatment record (active problems included left wrist drop and numbness of the arms).

Although the record contains VA examinations and opinions regarding the Veteran's entitlement to service connection for a left hand condition, the Board is unable to decide the Veteran's claim based upon the findings of the VA examinations and opinions.

The Veteran was afforded a peripheral nerves VA examination in July 2011.  The VA examiner opined that despite subjective complaints, there were no objective findings to support a diagnosis of left upper peripheral neuropathy.  The Veteran reported symptoms of weakness, and fatigue of his left shoulder, which impacted his ability to use his left hand.  He reported that he had weakness, and fatigue, and he couldn't carry as much.

The Veteran was afforded a VA examination in October 2019, pursuant to the March 2019 Board remand, which requested that (A) the AOJ schedule the Veteran for an examination by a neurologist to determine the nature and etiology of any neurological disability of the left upper extremity, claimed as a neurological disability of the left hand; (B) the examiner must opine whether it was at least as likely as not (50 percent or greater probability) that it was related to any in-service injury, event, or disease; (C) or whether it was at  least as likely as not that any diagnosed neurological disability of the left upper extremity (1) began during active service, (2) manifested within one year after the Veteran's November 1996 separation from service, or (3) was noted during service with continuity of the same symptomatology since service.  There has not been substantial compliance with the March 2019 remand directives, with respect to the issue of entitlement to service connection for a left hand condition.  See Stegall, supra.

The October 2019 VA examination for peripheral nerve conditions, was conducted by a staff physician, and indicated that the Veteran did not have a current diagnosis of a peripheral nerve condition or peripheral neuropathy.  The examiner noted that during an October 2010 VA examination, the Veteran denied left upper extremity numbness and tingling, and instead reported bilateral hand stiffness that would lock up.  During the present examination in October 2019, the Veteran reported a diagnosis of focal dystonia in service and reported that he continued to have the same symptoms where his hands would lock.  He reported that he was taking medication for his service-connected nervous tic.

VA obtained a medical opinion in October 2019.  The VA examiner opined that the Veteran's claimed condition was less likely than not (less than 50 percent probability) incurred in or caused by the claimed in service injury, event, or illness.  The examiner noted that there was insufficient evidence to warrant or confirm a diagnosis of left upper extremity radiculopathy.  The examiner opined that the Veteran's complaint of left upper extremities symptoms was likely due to his service-connected nervous tic disability.

The examiner did not provide sufficient rationale to support the opinion that the symptoms were likely due to his service-connected tic disability.  There is no indication that the VA examiner was a neurologist as requested by the March 2019 Board remand.

The Board finds that a VA examination is warranted to determine the nature and etiology of the Veteran's left hand condition with complaints of numbness.

4. Entitlement to a rating in excess of 50 percent for PTSD prior to February 7, 2008, is remanded.

5. Entitlement to a rating in excess of 50 percent for PTSD from April 1, 2008, is remanded.

6. Entitlement to a TDIU is remanded.

In November 2020, the Veteran testified that his PTSD had worsened since he had been granted service connection for PTSD effective April 1, 2008.  He testified that he had difficulties with his spouse, had chronic nightmares, and had become withdrawn and avoided crowds, noises, and people.

The Veteran was afforded a VA examination in October 2019 pursuant to the March 2019 Board remand, which requested that the examiner (1) provide a full description of the disability and report all signs and symptoms necessary for rating the Veteran's disability under the rating criteria; (2) attempt to elicit information regarding the severity, frequency, and duration of symptoms; (3) to the extent possible, identify any symptoms and social and occupational impairment due to his PTSD alone; (4) opine as to the levels of social and occupational impairment due to PTSD and describe the symptoms resulting in those levels of impairment; (5) opine whether it was at least as likely as not (50 percent or greater probability) that the Veteran was unable to secure or follow substantially gainful employment due to the combined effects of the service-connected disabilities; (6) if the Veteran was felt capable of work despite the service-connected disabilities, the examiner should state what type of work and what accommodations would be necessary due to the service-connected disabilities.

Although, an October 2019 VA examiner essentially addressed questions (1) to (4); the October 2019 VA examiner did not address questions (5) and (6).  No VA examiner has considered whether it was at least as likely as not (50 percent or greater probability) that the Veteran was unable to secure or follow substantially gainful employment due to the combined effects of the service-connected disabilities.

Thus, a VA examination is warranted to determine the current severity of the Veteran's PTSD and the combined effects of the Veteran's service-connected disabilities.

The Veteran's representative has identified relevant outstanding private treatment records.  In June 2020, the Veteran's representative indicated that a June 2019 private medical opinion from Dr. L had been submitted regarding the Veteran's service-connected PTSD and his TDIU.  See June 2020 Third Party Correspondence.  The Veteran's file does not contain a copy of the June 2019 private opinion.  Thus, a remand is necessary in order for the AOJ to obtain the June 2019 private medical opinion.

Additionally, the matter of the Veteran's entitlement to a TDIU is remanded as intertwined with the remainder of the issues on appeal.

The matters are REMANDED for the following action:

1. Attempt to obtain the June 2019 private medical opinion from Dr. L.  See June 2020 Third Party Correspondence.

2. Schedule the Veteran for a VA examination with an appropriate examiner to determine the nature and etiology of the Veteran's bilateral eye disability.  All indicated tests and studies should be accomplished and the finding reported in detail.  The record must be made available to the examiner for review, including a copy of this Remand, and the examiner should indicate that the record was reviewed in connection with the examination.

Based upon a review of the record, the examiner should address the following:

(a.) identify any non-refractive diagnoses of the Veteran's eyes since the Veteran filed his claim in August 2006;

(b.) whether any eye disability diagnosed during the pendency of the appeal, to include glaucoma suspect and retinoschisis, is at least as likely as not (50 percent or greater probability) related to any in-service injury, event, or disease.

(c.) If a refractive error is diagnosed, the examiner should state whether there is any evidence of a superimposed disease or injury that occurred during service.

(d.) The examiner should also opine as to whether it is at least as likely as not that any diagnosed eye disability is (1) proximately due to a service-connected disability (diabetes mellitus, PTSD, hypertension, focal dystonia, tinnitus, hepatitis C, and residuals of fractures of the seventh and eighth ribs), or (2) aggravated beyond its natural progression by a service-connected disability.

(e.) The examiner should identify the baseline level of severity, to the extent possible, of the Veteran's current eye disability, prior to aggravation.

In rendering the opinions, the examiner must consider and discuss the statements of the Veteran regarding the onset and continuity of the symptoms of his bilateral eye disability.

Specifically, the examiner should discuss the Veteran's statement during the January 2012 VA examination, that he had gotten sand in his eyes during service.

The examiner must consider and discuss the March 1994 service treatment records which reflect that the Veteran had a corneal scar and chronic blepharitis, as well as the August 1996 service treatment record which reflects that the Veteran reported that his eyes were red all the time.

The examiner must consider and discuss post service treatment records which reflect a diagnosis of bilateral inferior punctate keratopathy from April 1997, and a diagnosis of glaucoma suspect in August 2003; diagnosis of hyperplastic optic nerve hypoplasia from January 2005; diagnoses of flat retinoschisis of left inferior temporal quadrant and sixth cranial nerve palsy from March 2008, and a diagnosis of dry eye syndrome from March 2010.

The examiner should provide a complete rationale for all opinions expressed and conclusions reached, including a discussion of the facts and medical principles involved.

3. Schedule the Veteran for a VA examination with a physiatrist, psychiatrist, neurologist, or neurosurgeon to determine the nature and etiology of the Veteran's claimed neurological disorder, to include residuals of a TBI.  All indicated tests and studies should be accomplished and the finding reported in detail.  The record must be made available to the examiner for review, including a copy of this Remand, and the examiner should indicate that the record was reviewed in connection with the examination.

Based upon a review of the record, the examiner should address the following:

(a.) whether it is at least as likely as not (50 percent or greater likelihood) that any current neurological disorder, to include a TBI manifested during service, that an organic disease of the nervous system, including migraine headaches was manifest to a compensable degree within one year of service, or that it is otherwise causally or etiologically related to a period of active-duty service.

(b.) whether it is at least as likely as not (50 percent or greater likelihood) that any current neurological disorder was caused or aggravated by a service-connected disability to include but not limited to PTSD.

(c.) whether it is at least as likely as not (50 percent or greater likelihood) that any current neurological disorder was caused or aggravated by a medication taken to treat a service-connected disability.

(d.) The examiner should identify the baseline level of severity, to the extent possible, of the Veteran's current neurological disorder, prior to aggravation.

In rendering the opinions, the examiner must consider and discuss the statements of the Veteran regarding the onset and continuity of the symptoms of a neurological disorder, to include symptoms of dizziness and headaches.

The examiner must consider and discuss the following:

(a.) service treatment records which reflect treatment for head injuries in service in May 1981, June 1982, and January 1991.  See May 1981 service treatment record (complained of head pain and dizziness when laying down, after falling in the shower and striking his head against the floor); June 1982 service treatment record (sustained a head injury while playing basketball); January 1991 (sustained an injury to the left side of his mouth due to blunt trauma from being hit with bricks, pipes, and fists);

(b.) service treatment records which reflect complaints of dizziness from at least October 1980.  See also May 1981, October 1994, August 1996 service treatment records;

(c.) July 2011 audiology examination, which reflects that the Veteran underwent posturography testing which revealed abnormal findings, including abnormal equilibrium and abnormal visual utilization and vestibular utilization;

(d.) July 2011 TBI examination in July 2011, which reflects that the Veteran sustained a mild traumatic brain injury during service;

The examiner should provide a complete rationale for all opinions expressed and conclusions reached, including a discussion of the facts and medical principles involved.

4. Schedule the Veteran for a VA examination with a neurologist to determine the nature and etiology of the Veteran's neurological disability of the left upper extremity, claimed as a neurological disability of the left hand.  All indicated tests and studies should be accomplished and the finding reported in detail.  The record must be made available to the examiner for review, including a copy of this Remand, and the examiner should indicate that the record was reviewed in connection with the examination.

Based upon a review of the record, the examiner should address the following:

(a.) whether it was at least as likely as not (50 percent or greater probability) that it was related to any in-service injury, event, or disease;

(b.) whether it was at least as likely as not that any diagnosed neurological disability of the left upper extremity (1) began during active service, (2) manifested within one year after the Veteran's November 1996 separation from service, or (3) was noted during service with continuity of the same symptomatology since service;

(c.) whether it is at least as likely as not (50 percent or greater likelihood) that any current neurological disability of the left upper extremity is caused by or aggravated by a service-connected disability, to include but not limited to type II diabetes mellitus;

(d.) The examiner should identify the baseline level of severity, to the extent possible, of the Veteran's current neurological disability of the left upper extremity, prior to aggravation.

In rendering the opinions, the examiner must consider and discuss the statements of the Veteran regarding the onset and continuity of the symptoms of any neurological disability of the left upper extremity, to include symptoms of numbness and tingling.

The examiner must consider and discuss the following:

(a.) service treatment records, which reflect complaints of a nerve condition of the left hand from at least June 1991;

(b.) post service treatment records which reflect complaints of numbness of the left hand from at least September 2002.  See September 2002 VA treatment record (numbness in left 5th finger); November 2003 VA examination (sudden weakness of arms and hands on and off since early 1990s); March 2007 VA treatment record (occasional numbness and tingling in fingers); February 2008 VA treatment record (neurological assessment of the left limb revealed mild weakness); August 2013 private treatment record (active problems included left wrist drop and numbness of the arms).

The examiner should provide a complete rationale for all opinions expressed and conclusions reached, including a discussion of the facts and medical principles involved.

5. Following the receipt of outstanding records, schedule the Veteran for a VA examination with an appropriate examiner to determine the current severity of the Veteran's PTSD.  All indicated tests and studies should be accomplished and the finding reported in detail.  The record must be made available to the examiner for review, including a copy of this Remand, and the examiner should indicate that the record was reviewed in connection with the examination.

The examiner should provide a full description of the disability and report all signs and symptoms necessary for rating the Veteran's disability under the rating criteria.  The examiner must attempt to elicit information regarding the severity, frequency, and duration of symptoms.  To the extent possible, the examiner should identify any symptoms and social and occupational impairment due to his PTSD alone.  The examiner should opine as to the levels of social and occupational impairment due to PTSD and should describe the symptoms resulting in those levels of impairment.

The examiner should also opine whether it is at least as likely as not (50 percent or greater probability) that the Veteran is unable to secure or follow substantially gainful employment due to the combined effects of the service-connected disabilities.  

 

If the Veteran is felt capable of work despite the service-connected disabilities, the examiner should state what type of work and what accommodations would be necessary due to the service-connected disabilities.

 

 

M. C. WILSON

Acting Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board	G. Johnson, 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.