Citation Nr: 22018628 Decision Date: 03/29/22 Archive Date: 03/29/22 DOCKET NO. 20-01 027 DATE: March 29, 2022 ORDER Entitlement to a rating of 70 percent, but no higher, for unspecified depressive disorder and pain disorder with related psychological factors is granted from July 14, 2015. Entitlement to a rating of 10 percent, but no higher, for hypertension is granted from July 14, 2015. Entitlement to a total disability rating due to individual unemployability (TDIU) is granted from July 14, 2015. Entitlement to service connection for a right knee condition is denied. Entitlement to service connection for shortness of breath is denied. REMANDED Entitlement to service connection for a condition claimed as fatigue is remanded. Entitlement to a rating higher than 30 percent for status post-left kidney removal is remanded. FINDINGS OF FACT 1. Resolving any reasonable doubt in the Veteran's favor, the evidence shows that from July 14, 2015, the Veteran's unspecified depressive disorder and pain disorder with related psychological factors has manifested in symptoms of irritability, fears of being with people, continuous anxiety or panic-like symptoms, and continuous reports of memory impairment, which combined establish a disability picture more nearly approximating occupational and social impairment in most areas. 2. The evidence across the appeal period fails to establish that the Veteran's unspecified depressive disorder and pain disorder with related psychological factors has manifested in symptoms creating total occupational and social impairment. 3. Resolving any reasonable doubt in the Veteran's favor, the evidence is sufficient to establish from July 14, 2015, a disability picture of hypertension more nearly approximating diastolic pressure predominantly 100 requiring continuous medication for control. 4. From July 14, 2015, the Veteran has had two or more service-connected disabilities, one of which is rated at 40 percent or more, and which combine to 70 percent or more. 5. The evidence establishes that from July 14, 2015, the Veteran has been unable to secure or maintain substantially gainful employment due to his service-connected disabilities. 6. The evidence is insufficient to establish that the Veteran has a current right knee condition that is related to service. 7. The evidence is insufficient to establish that the Veteran's symptom of shortness of breath either is associated with a diagnosed underlying disability or rises to the level of impairing his earning capacity. CONCLUSIONS OF LAW 1. The criteria for a rating of 70 percent, but no higher, for unspecified depressive disorder and pain disorder with related psychological factors have been met from July 14, 2015. 38 U.S.C. §§ 1155, 5107(b), 5110(b)(3); 38 C.F.R. §§ 3.400(o)(2), 4.3, 4.7, 4.130, Diagnostic Code 9434. 2. The criteria for a rating of 10 percent, but no higher, for hypertension have been met from July 14, 2015. 38 U.S.C. §§ 1155, 5107(b); 38 C.F.R. §§ 4.3, 4.7, 4.104, Diagnostic Code 7101. 3. The criteria for a total disability rating for individual unemployability due to service-connected disabilities have been met from July 14, 2015. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.340, 4.15, 4.16. 4. The criteria for service connection for a right knee condition have not been met. 38 U.S.C. § 1110; 38 C.F.R. § 3.303. 5. The criteria for service connection for shortness of breath have not been met. 38 U.S.C. § 1110; 38 C.F.R. § 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from February 2003 to April 2006. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a November 2016 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). In July 2021, the Board remanded the matter for medical examinations and to assist the Veteran in obtaining any records from his private medical providers. While the matter was on remand, an October 2021 rating decision granted service connection for sleep apnea and for headaches. Because the grant of service connection represented full relief for those claims, the issues are no longer before the Board. See Grantham v. Brown, 114 F.3d 1156, 1158-59 (1997). The Veteran seeks increased ratings for his service-connected psychiatric disorder, hypertension, status post-left kidney removal, and a total disability rating due to individual unemployability, and he seeks service connection for a right knee condition, for fatigue, and for shortness of breath. A. Claims for Increased Ratings Disability evaluations (ratings) are determined by evaluating the extent to which a veteran's service-connected disability adversely affects the veteran's ability to function under the ordinary conditions of daily life, including employment, by comparing the symptomatology with the criteria set forth in the Schedule for Rating Disabilities (rating schedule). 38 U.S.C. § 1155; 38 C.F.R. §§ 4.1, 4.2, 4.10. Where entitlement to compensation has already been established and an increase in the disability rating is at issue, it is the present level of disability that is of primary concern. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994). In evaluating a disability, the Board considers the current examination reports in light of the entire record to ensure that the current rating accurately reflects the severity of the condition. Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating; otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. Reasonable doubt regarding the degree of disability will be resolved in favor of the Veteran. 38 C.F.R. § 4.3. 1. Increased Rating for Unspecified Depressive Disorder and Pain Disorder with Related Psychological Factors The Veteran originally filed for a rating higher than 30 percent for his service-connected unspecified depressive disorder and pain disorder with related psychological factors. When the matter was on remand, the October 2021 rating decision granted an increased rating of 70 percent from September 9, 2021. As this was a grant of only partial relief, the Board will consider entitlement to a higher rating. See AB v. Brown, 6 Vet. App. 35, 38 (1993). The Veteran's psychiatric disorder is rated under Diagnostic Code (DC) 9434, which in turn is rated under the General Rating Formula for Mental Disorders, 38 C.F.R. § 4.130. Under the General Rating Formula, a 30-percent rating is warranted for occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks (although generally functioning satisfactorily, with routine behavior, self-care, and conversation normal), due to such symptoms as depressed mood, anxiety, suspiciousness, panic attacks (weekly or less often), chronic sleep impairment, mild memory loss (such as forgetting names, directions, recent events). Id. A 50-percent rating is warranted for occupational and social impairment with reduced reliability and productivity due to such symptoms as: flattened affect; circumstantial, circumlocutory, or stereotyped speech; panic attacks more than once a week; difficulty in understanding complex commands; impairment of short- and long-term memory (e.g., retention of only highly learned material, forgetting to complete tasks); impaired judgment; impaired abstract thinking; disturbances of motivation and mood; difficulty in establishing and maintaining effective work and social relationships. Id. A 70-percent rating is warranted for occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood, due to such symptoms as suicidal ideation; obsessional rituals which interfere with routine activities; speech intermittently illogical, obscure, or irrelevant; near-continuous panic or depression affecting the ability to function independently, appropriately and effectively; impaired impulse control (such an unprovoked irritability with periods of violence); spatial disorientation; neglect of personal appearance and hygiene; difficulty in adapting to stressful circumstances (including work or a work-like setting); inability to establish and maintain effective relationships. Id. A 100-percent rating, the highest schedular rating, is warranted for total occupational and social impairment, due to such symptoms as gross impairment in thought processes or communication; persistent delusions or hallucinations; grossly inappropriate behavior; persistent danger of hurting self or others; intermittent inability to perform activities of daily living (including maintenance of minimal personal hygiene); disorientation to time or place; and, memory loss for names of close relatives, own occupation, or own name. Id. In determining the appropriate disability evaluation to assign, the Board's primary consideration is the Veteran's symptoms, but it must also make findings as to how those symptoms impact the Veteran's occupational and social impairment. Vazquez-Claudio v. Shinseki, 713 F.3d 112, 118 (Fed. Cir. 2013); Mauerhan v. Principi, 16 Vet. App. 436, 442 (2002). Because the use of the term "such as" in the rating criteria demonstrates that the symptoms after that phrase are not intended to constitute an exhaustive list, the Board need not find the presence of all, most, or even some, of the enumerated symptoms to award a specific rating. Mauerhan, 16 Vet. App. at 442. A Veteran may only qualify for a given disability by demonstrating the particular symptoms associated with that percentage, or others of similar severity, frequency, and duration. Vazquez-Claudio, 713 F.3d at 118. Turning to the evidence, along with his July 14, 2015 claim the Veteran submitted a statement that he was suffering from memory loss, fear of large groups of people, trouble sleeping, continuous nervousness, and difficulty trusting people. Regarding his memory loss, he described that he could not remember names of people and places, forgets to take his medication, and sometimes forgets where he is going. Following receipt of the Veteran's claim, a C&P examination was provided on November 7, 2016. The Veteran reported he stayed in bed all day and watched TV. The examiner's report indicated that only two symptoms were present during that time, a depressed mood and disturbances of motivation and mood, without any remark about the symptoms formerly reported by the Veteran. At the examination the Veteran was noted to be alert and oriented, with organized thought processes and short- and long-term memory intact. His behavior was appropriate, and his hygiene and grooming were good. He denied suicidal ideations, and there was no evidence of delusions. The Veteran stated he was not receiving any treatment for his condition. At a June 12, 2018 hearing before a decision review officer (DRO), the Veteran reported still having problems remembering names and dates, although he was able to remember some long-term memories. He additionally related easily losing his temper and "yelling and swearing" at others, which led him to avoid socializing, even with his family. He also described having panic attacks two to three times a week, "always feel[ing] like somebody's out to get me," and "freak[ing] out and . . . running around looking for things and locking doors, lock[ing] windows." He said he had tried getting treatment but it was too far away. He also was not taking any medication for his psychiatric condition. After the DRO hearing, another C&P examination was provided on July 9, 2018. The only symptom recorded in the report was chronic sleep impairment, without any mention of the symptoms reported by the Veteran less than a month earlier at the DRO hearing. The examiner remarked, however, that the Veteran "evidences a delusional perception." Mental status examination on that day found the Veteran alert and oriented, with appropriate behavior, memory intact, logical speech, and not showing any delusions of thought. There was no gross impairment of thoughts, and the Veteran was found not a danger to himself or others. He had normal hygiene. The Veteran submitted an August 17, 2020 record from Dr. A.S., who wrote that the Veteran had begun having insomnia around four months prior, and that the symptoms were made worse by emotional stress and medication. At a December 15, 2020 Board hearing, the Veteran reported still having trouble remembering things such as medicine and grocery lists, which had led his fiancée to take care of those tasks for him. The Veteran stated he was still "very short with people," did not trust anyone, and preferred to "stay inside and not deal with anybody." He said he did not have any personal friends. He related that he had begun taking medications for his psychiatric disorder "because I thought about killing myself for a while there." He stated that before he had begun taking medicine, he would go to bed and "[f]reak out that something is . . . outside," prompting him to get up and check all the locks in the house. Regarding the November 2016 C&P examination, he said that the examiner "didn't ask [him] any questions." He reported that since the time of that examination his trouble sleeping had worsened, in addition to the episode of suicidal thoughts. Following the Board's July 2021 remand, a new telehealth examination was provided on September 9, 2021. The Veteran told the examiner "numerous times that if he did not have his son he would have killed himself." In day-to-day life, he always felt tired, found "no reason to get out of bed," and had trouble sleeping "because [his] thoughts are racing" and "the pain is always there." In particular, the examiner remarked that the Veteran's chronic pain from his service-connected kidney removal leads to "increased vulnerabilities of emotional regulation" that "adversely impact multiple facets of his life, including social, occupational, and family environments." The Veteran described that due to his pain, every day he either is in bed or in his chair. He said that some days he did not eat. The Veteran described his relationship with his wife as "decent" but reported continuing problems socially in other relationships, including "a lot" of irritability and anger when dealing with others. The examiner noted that the Veteran engages in security checking ritual every night prior to bed, and woke easily to any noise which would cause him to re-engage in the ritual again. Moreover, the Veteran reported his mind constantly races regarding various worries. Other symptoms found by the examiner included continuing mild memory loss (such as forgetting names, directions, or recent events), difficulty in establishing and maintaining effective work and social relationships, difficulty adapting to stressful circumstances including work or worklike setting, near-continuous panic or depression affecting the ability to function independently and effectively, suspiciousness, chronic sleep impairment, flattened affect, disturbance of motivation and mood, and depressed mood and anxiety. Based on all the evidence, the Board finds that the Veteran's disability picture since the date of his July 14, 2015 claim has more nearly approximated occupational and social impairment in most areas, thereby warranting a 70-percent rating. Since the date of his claim, the Veteran has reported difficulty in his social functioning, to include fear of large groups of people, continuous nervousness, and difficulty trusting people. Moreover, he has reported cognitive problems remembering not only names and places but also sometimes forgetting where he is going. At the June 2018 DRO hearing, the Veteran reaffirmed his trouble in social situations, explaining that he often would lose his temper, and he related that he had experienced suspiciousness and hypervigilant behavior. Though such symptoms were not recorded in the examination report of the intervening November 2016 C&P examination, the Veteran explained at the December 2020 Board hearing that the November 2016 examiner did not ask the Veteran any questions. The Board notes that the November 2016 report did record the Veteran's statement that at that time he spent most days in bed. Following the Board's remand, the September 2021 C&P examiner found the Veteran continuing to experience difficulty with relationships and irritability, continuous nervousness, memory problems, suspiciousness, and hypervigilant behavior, all of which were reported to be at a similar severity, frequency, and duration as recorded earlier in the appeal period. Given the findings at the September 2021 examination, the examiner opined that the Veteran would experience occupational and social impairment in most areas. Based on all the evidence, and resolving any reasonable doubt in the Veteran's favor, the Board finds that the Veteran's disability picture throughout the appeal period has approximated occupational and social impairment in most areas, including the Veteran's social and family relations, thinking, mood, and judgment. 38 C.F.R. §§ 4.3, 4.7. Throughout the appeal period the Veteran has reported symptoms of social impairments, including irritability, fears of being with people, and continuous anxiety or panic-like symptoms, which have approximated near-continuous panic affecting the ability to function independently, impaired impulse control, difficulty in establishing and maintaining relationships, and difficulty adapting to stressful circumstances. Adding to the Veteran's impairment are his continuous reports of memory impairment, to include with names, places, medication, and his intended destinations and goals, which create an impairment of a severity falling between an impairment such as forgetting to complete tasks (50 percent) and an impairment such as forgetting names of close relatives (100 percent). In light of these impairments, the Board finds that the Veteran's disability warrants a 70-percent rating throughout the appeal period. 38 C.F.R. § 4.130, DC 9434. Though the Board notes that the September 2021 examination report found additional symptoms unreported at prior examinations, or found continuing symptoms from earlier in the appeal period but at an increased severity, frequency, and duration, when comparing the severity, frequency, and duration of the symptoms competently reported by the Veteran throughout the appeal period, the Board finds that the evidence reflects disability pictures, both in the earlier part of the appeal period and in the later part of the appeal period, that both approximate occupational and social impairment in most areas. The Board further finds, however, that a rating higher than 70 percent is not warranted at any time. Throughout the appeal period, the Veteran's emotional and social impairments have never been shown to manifest at a severity, frequency, or duration akin to grossly inappropriate behavior, persistent danger of hurting himself or others, and his cognitive impairments have never been shown to manifest at a severity, frequency, or duration akin to gross impairment in thought processes, persistent delusions or hallucinations, disorientation to time or place, or memory loss for own name or names of close relatives. Socially, the Veteran noted at the September 2021 examination that he maintained a "decent" relationship with his wife. Cognitively, the finding at the July 2018 examination that the Veteran "evidences a delusional perception" is noted; however, at the same examination, the Veteran was found not to have delusional thoughts, and the evidence across the rest of the record does not support that the Veteran has had delusions or hallucinations. Finally, though the Veteran's report at the September 2021 examination that he sometimes does not eat is evidence that the Veteran may have an inability to perform this activity of daily living at some degree of frequency, the remainder of the evidence does not establish a disability picture that the Veteran is totally occupationally and socially impaired. 38 C.F.R. § 4.130, DC 9434. Accordingly, a 70 percent, but no higher, for unspecified depressive disorder and pain disorder with related psychological factors is granted from July 14, 2015. 38 U.S.C. §§ 1155, 5107(b), 5110(b)(3); 38 C.F.R. §§ 3.400(o)(2), 4.3, 4.7, 4.130, DC 9434. 2. Increased Rating for Hypertension The Veteran originally filed for a compensable rating for hypertension. While this appeal was pending, a November 2019 rating decision granted an increased rating of 10 percent from July 9, 2018; however, as higher ratings are still potentially available, the Board will consider entitlement to a higher rating. See AB, 6 Vet. App. at 38. The Veteran's hypertension is rated under DC 7101. 38 C.F.R. § 4.101. Under DC 7101, a 10 percent rating is warranted where diastolic pressure is predominantly 100 or more; or, systolic pressure is predominantly 160 or more; or, for an individual with a history of diastolic pressure predominantly 100 or more who requires continuous medication for control. A 20 percent rating is warranted where diastolic pressure is predominantly 110 or more; or, systolic pressure is predominantly 200 or more. Id. A 40 percent rating is warranted where diastolic pressure is predominantly 120 or more. Id. A 60 percent rating, which is the highest rating available under this schedule, is warranted where diastolic pressure is predominantly 130 or more. Id. Turning to the evidence, the treatment records and examinations of record found the following blood pressure readings throughout the appeal period: 153/94 and 137/87 on November 18, 2015; 124/76 on July 6, 2016; 160/99 and 119/78 on July 8, 2016; 145/89 on July 15, 2016; 141/85 on August 22, 2016; 141/85 on August 22, 2016; 149/95 on September 19, 2016; 123/76 on January 27, 2017; 161/101 and 163/108 on February 25, 2017; 138/84, 128/80, and 128/78 on November 7, 2016; 146/104, 143/100, and 138/96 on July 9, 2018; 139/96 on November 8, 2018; 163/103 on October 25, 2019; 124/86 on August 17, 2020; 138/88 on March 16, 2021; 119/70 on April 5, 2021; 125/82 on May 13, 2021; 109/67 on July 1, 2021; and, 160/110 on September 28, 2021. At the November 7, 2016 C&P examination it was noted the Veteran had taken Lisinopril daily, and that his prescribed dosage had recently been increased. At the June 12, 2018 DRO hearing, the Veteran stated his blood pressure was "uncontrollable" and "goes up and down throughout the day." At the December 15, 2020 Board hearing, the Veteran said he continued to take his medication daily but it "doesn't control it all the time" and even on medication "sometimes it's still hovering in the 150, 160 over 110." Based on this evidence, the Board finds that a 10-percent rating is warranted from July 14, 2015, the date of the Veteran's claim for an increased rating. Leading up to July 9, 2018, the date on which the current 10-percent rating was awarded, the evidence reflects that the Veteran required continuous medication, with a notation at the November 2016 examination that his dose had recently been increased. Blood pressure readings taken in November 2015, July 2016, September 2016, and February 2017 show diastolic pressures at or approximating 100 even with the Veteran's increased dosage of medication. Thus, the Board finds, resolving any reasonable doubt in the Veteran's favor, that the evidence supports a disability picture approximating a diastolic pressure predominantly 100 or more requiring continuous medication for control, thereby warranting a 10-percent evaluation. 38 C.F.R. §§ 4.3, 4.104, DC 7101. The Board further finds, however, that a rating higher than 10 percent is not warranted at any point during the appeal period. For a higher rating, the evidence must show a systolic pressure predominantly 200 or more or a diastolic pressure predominantly 110 or more. Here, the evidence does not show any systolic readings approximating 200, and while there were diastolic readings above 100, the weight of the evidence does not support a finding that the diastolic pressure has predominantly been at 110 or more. 38 C.F.R. § 4.104, DC 7101. Accordingly, a rating of 10 percent, but no higher, for hypertension is granted from July 14, 2015. 38 U.S.C. §§ 1155, 5107(b); 38 C.F.R. §§ 4.3, 4.7, 4.104, DC 7101. 3. Total Disability Rating Due to Individual Unemployability The Veteran appeals the denial of his July 14, 2015 claim for a total disability rating due to individual unemployability (TDIU). A TDIU may be assigned if the schedular rating is less than total, when the disabled person is, in the judgment of the rating agency, unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities. 38 C.F.R. § 4.16(a). To be considered for assignment of a schedular TDIU the Veteran's service-connected disabilities must meet the following criteria: (1) if there is only one such disability, this disability shall be ratable at 60 percent or more; or (2) if there are two or more such disabilities, there shall be at least one disability ratable at 40 percent or more, and sufficient additional disability to bring the combined rating to 70 percent or more. Id. Here, the Veteran's service-connected disabilities combine to 70 percent or more from July 14, 2015, with at least one disability ratable at 40 percent or more. Therefore, the Veteran meets the percentage requirements set forth in section 4.16(a), and the next question for consideration is whether his service-connected disabilities render him unemployable. A veteran is unemployable if he is unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities. 38 C.F.R. § 4.16(a). A substantially gainful occupation is one earning more than marginal income (outside of a protected environment), as determined by the U.S. Department of Commerce as the poverty threshold for one person. Ray v. Wilkie, 31 Vet. App. 58, 7273 (2019). In evaluating a veteran's ability to secure and follow a substantially gainful occupation, consideration may be given to his level of education, skills and training, and previous work experience, but not to age or impairment caused by non-service-connected disabilities. Id.; 38 C.F.R. §§ 3.341, 4.16, 4.19. The sole fact that a claimant is unemployed or has difficulty obtaining employment is not enough. The question is whether the veteran is capable of performing the physical and mental acts required by employment, not whether the veteran can find employment. Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993) (citing 38 C.F.R. §§ 4.1, 4.15, 4.16(a)). Turning to the evidence, the Veteran reported last working in 2014 as a forklift operator. He has earned a high school degree. On his application for a TDIU, the Veteran wrote, "I am currently and for the past some odd years [have] been taking pain killers that has been preventing me from gaining employment without risk of losing job to failing drug test[.] I can't safely do anything d[ue] to how I react on painkillers." Multiple examination reports reflect that the Veteran has stated he is not able to work due to residual pain in the surgical area of his kidney removal, and that he takes prescription synthetic opioids for the pain. An examination report from 2011 observed that the Veteran "is not able to sit . . . comfortably in one position" and concluded that "a sedentary occupation would require him to be able to remain relatively stationary at a work location for a period of time," which he had been unable to do at that time. Treatment records continuing through the period currently on appeal show the Veteran still experiencing pain in his flank and needing to take Tramadol for partial relief. At the June 2018 DRO hearing the Veteran stated that the medication affects his ability to function and makes him extremely drowsy, and that "nobody wants to hire somebody who's on painkillers." He related at the December 2020 Board hearing that when he was working, he had "to take breaks all the time because [he] can't . . . move around without being in pain." Additionally, as discussed above, the evidence shows that the Veteran's service-connected psychiatric disorder impairs his cognitive functioning, to include his ability to remember names and his tasks, and impairs his ability to interact in social situations. For example, at the December 2020 Board hearing the Veteran stated, when discussing his employability, that he is "very short with people," "can't really get along with people," and "it's hard for [him] to hold a job . . . because [he] do[esn't] really trust anybody." The Board also notes that the examination reports since the beginning of the appeal period have found that the Veteran's psychiatric disorder impairs his motivation and mood. A September 2021 examination for the Veteran's now-service-connected sleep apnea noted that the condition causes persistent daytime sleepiness. The Veteran has reported consistently throughout the appeal period, to include beginning at November 2016 examinations and continuing through September 2021, that due to the effects of his service-connected disabilities he spends most of his days lying in bed or sitting in a chair. Given this evidence that the Veteran's service-connected disabilities, as well as the medication taken for them, create physical and mental limitations that significantly impair his ability to do physical activity, to sit for extended for periods of time, to interact with others, to remember names and tasks, and to rest well and not feel drowsy, the Board finds that the evidence establishes that the Veteran's service-connected disabilities have rendered him unable to secure and maintain substantially gainful employment from the date of his July 14, 2015 claim. Accordingly, a TDIU is granted from July 14, 2015. 38 U.S.C. §§ 1155, 5110(b)(3); 38 C.F.R. §§ 3.400(o)(2), 4.16(a). B. Claims for Service Connection The Veteran seeks service connection for fatigue, for a right knee condition, and for shortness of breath. Service connection may be established for disability resulting from personal injury suffered or disease contracted in the line of duty in the active military, naval, or air service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). Establishing service connection generally requires evidence of (1) a current disability, (2) an in-service incurrence or aggravation of a disease or injury, and (3) a nexus between the claimed in-service event, injury, or disease and the present injury or disease. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Additionally, service connection may be granted for a current disability that is proximately due to or aggravated in severity beyond its natural progression by a service-connected injury or disease. 38 U.S.C. § 1110; 38 C.F.R. § 3.310(a); Allen v. Brown, 7 Vet. App. 439 (1995). 1. Service Connection for a Right Knee Condition The Veteran seeks service connection for a right knee condition. After review of all the evidence, the Board finds that service connection is not warranted. Following the Board's July 2021 decision, a new VA examination was provided in September 2021. The Veteran described having right knee pain after his deployment and continuing after separation, which he "just dealt with." The examiner noted that since the time of separation there was no evidence of treatment sought until around December 2013, when the Veteran reported a three-month history of knee pain, diagnosed as an MCL sprain, with a notation that the Veteran related that he had slipped on ice in 2008. Additionally, the September 2021 examiner noted that the Veteran had sustained tears of his meniscus and ACL in August 2016 when playing softball, undergoing surgery for both. Finally, there was a new diagnosis of degenerative arthritis in the knee, which the examiner found was age-related based on the x-ray findings showing the condition was very mild. The examiner acknowledged the Veteran's report during service, as documented in a December 2005 report of medical history that his "knees hurt while [he] cross[es] and bend[s] for long periods of time," finding such complaints consistent with the Veteran's in-service duties, including frequent movement, jumping, and hopping in and out of vehicles. The examiner concluded, however, that such complaints during service were likely acute strains unrelated to the MCL sprain in 2013, in light of a clinician's December 2005 in-service finding that the knees were normal, as well as a documented August 2012 x-ray finding no abnormality and "no significant change when compared to [June] 2006," and a documented November 2013 MRI finding the right knee unremarkable. The Board finds that the September 2021 opinion is the most probative evidence of record regarding the claimed connection between any current right knee disability and service. At the time of the Veteran's July 2015 claim for service connection, the evidence showed the Veteran experienced knee pain, with a formal diagnosis in December 2013 of an MCL sprain, but the September 2021 examiner noted that the normal x-ray in 2012 and normal MRI in 2013 evidenced that the Veteran's service was not the cause of his knee pain or diagnosed MCL sprain in December 2013. Though the Veteran reported in December 2005 that he had pain in the right knee after sitting cross-legged, a symptom for which he filed for service connection shortly after his separation, the September 2021 examiner found that such a symptom was acute and unrelated to the Veteran's right knee condition in 2013. As to the Veteran's meniscus and ACL tears, the September 2021 examiner confirmed that these were due to the Veteran's post-service softball injury in 2016. Moreover, the newly diagnosed degenerative arthritis was attributed to age-related changes based on the x-ray findings. The Board acknowledges the Veteran's assertion at the December 2020 Board hearing that he was on a walking profile from approximately 2004 until his separation "due to the knee and the kidney and stuff like that, . . . a combination of both." Though physical profiles during the Veteran's service are of record, to include profiles dated November 2004, December 2004, February 2005, October 2005, every one of the profiles listed the medical condition justifying the profile as "left nephrectomy" or "chronic post-op flank pain," without any mention of the right knee. The Board acknowledges the Veteran's belief, as offered at the Board hearing, that he has a knee condition due to "constant jumping, moving around" and jumping out of vehicles while carrying a lot of weight during his service as a military police and gunner. Unfortunately, the evidence does not reflect that the Veteran has the education, training, or experience to diagnose and opine on the etiology of a right knee condition, which is a medically complex issue beyond observation by the senses. Layno, 6 Vet. App. at 470. Moreover, the September 2021 examiner considered these descriptions of the Veteran's service duties in reviewing the Veteran's medical history and formulating his etiology opinion. Accordingly, because the competent evidence of record does not support that the Veteran has a current right knee condition that is related to his service, entitlement to service connection for a right knee condition must be denied. 38 U.S.C. § 1110; 38 C.F.R. § 3.303. 2. Shortness of Breath The Veteran seeks service connection for shortness of breath. At the December 2020 Board hearing he clarified that he "always get[s] really, really fatigued, and it's making [him] short of breath." He stated that the symptom began around 2010 or 2011, after he had gained approximately 120 pounds since his separation from service in 2006. He asserted that his weight gain was due to being "unable to do things" because his service-connected psychiatric disorder "keeps [him] pretty much locked up in the house." After review of all the evidence, the Board finds that entitlement to service connection is not warranted, as there is no current disability for which service connection may be granted. The Board first notes that the Veteran's claimed shortness of breath is a symptom that has not been shown to be associated with a diagnosed underlying medical condition. Moreover, the evidence of record has not established that the Veteran's symptom of shortness of breath impairs his earning capacity such that it rises to the level of a disability in itself. See Martinez-Bodon v. Wilkie, 32 Vet. App. 393, 404 (2020) (holding that the Federal Circuit's decision in Saunders "applies broadly to include more than just pain"); Wait v. Wilkie, 33 Vet. App. 8, 15-16 (2020) (holding that a symptom must be shown to impair earning capacity to constitute a disability); see also Saunders v. Wilkie, 886 F.3d 1356 (Fed. Cir. 2018). Next, obesity, while a medical condition, is not considered a disease eligible for service connection. VAOPGCPREC 1-2017 (Jan. 6, 2017). Thus, to the extent the Veteran's claim seeks service connection for obesity manifesting in a symptom of shortness of breath, service connection would not be available. Id. The Board acknowledges the Veteran's additional statement at the Board hearing that Dr. A.S. "diagnosed [him] with shortness of breath." The only record in the claims file from Dr. A.S., however, is an August 2020 note that the Veteran presented with "edema due to medication" in his lower leg and listing "associated symptoms" that included "dyspnea." See DORLAND'S ILLUSTRATED MEDICAL DICTIONARY 589 (31st ed. 2007) (defining dyspnea as "breathlessness or shortness of breath; difficult or labored respiration"). Even assuming that Dr. A.S.'s notation of an "associated" symptom was intended to indicate a causal relationship between edema and dyspnea, Dr. A.S.'s treatment note did not identify whether it was medication for a service-connected disability that was responsible for the edema. Accordingly, this evidence is not sufficient to establish a chain of causation that would permit granting service connection for a condition that would compensate the Veteran for the claimed symptom of shortness of breath. The Board notes that in its previous July 2021 decision it directed the RO to send the Veteran a Form 21-4142 (Authorization to Disclose Information to the Department of Veterans Affairs) requesting that he complete and return the form to allow VA to assist him in obtaining any outstanding records from Dr. A.S. which may be relevant to substantiating his claims. The claims file reflects that in July 2021 the RO sent the Veteran a Form 21-4142 and asked him to list his private providers including Dr. A.S. and to return the form. To date, however, VA has not received a response from the Veteran. Wood v. Derwinski, 1 Vet. App. 190, 193 (1990) ("The duty to assist is not always a one-way street.") Accordingly, without evidence either of a diagnosed disease or of symptoms shown to impair earning capacity, the evidence is insufficient to establish that the Veteran has a current disability. In turn, without evidence of a current disability, the claim for service connection for shortness of breath must be denied. 38 U.S.C. § 1110; 38 C.F.R. § 3.303; Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992) ("In the absence of proof of a present disability there can be no valid claim."). REASONS FOR REMAND 3. Service Connection for Fatigue The Veteran originally filed service connection for fatigue, and at the December 2020 Board hearing he explained that he was chronically fatigued and tired due to problems sleeping. He stated that a private physician, Dr. A.S., had diagnosed him with being chronically fatigued, and an August 2020 record from Dr. A.S. noted that the Veteran presented with a complaint of gradual onset of insomnia starting approximately four months prior, made worse by emotional stress and medication. The Veteran also testified at the Board hearing that he remembered a psychologist telling him his chronic fatigue was due to insomnia caused by his service-connected psychiatric disorder. Given this indication of a potential link between the Veteran's claimed fatigue condition, potentially attributable to a diagnosed insomnia condition, and his service-connected disabilities, the Board finds that an opinion should be obtained to address whether the Veteran has insomnia or fatigue associated with his service-connected disabilities. McLendon v. Nicholson, 20 Vet. App. 79, 83, 86 (2006) (applying 38 U.S.C. § 5103A(d)); see also 38 C.F.R. § 3.159(c)(4). 4. Increased Rating for Status Post-Left Kidney Removal Remand is also required for the claim for a rating higher than 30 percent for status post-left kidney removal. The Board's prior July 2021 decision, noting the Veteran's reports at the December 2020 Board hearing that since his most recent C&P examination he had been admitted to the emergency department three times "because [his] kidney has all but shut down," directed for a new examination to assess the current severity of the Veteran's remaining kidney functioning. Though a new examination was provided on September 28, 2021, the report simply noted the glomerular filtration rate (GFR) from July 2016, which had already been noted in the Veteran's prior C&P examinations. The Board therefore finds that there has not been substantial compliance with the July 2021 directive to provide an examination that assesses the current severity of the Veteran's condition, and remand is in turn required to provide a new examination. Dyment v. West, 13 Vet. App. 141, 14647 (1999). Accordingly, the matter is REMANDED for the following action: 1. Obtain an opinion regarding the etiology of the Veteran's claimed fatigue. The clinician is asked to opine on the following: (a) Is it at least as likely as not that the Veteran has chronic fatigue syndrome? (b) Is it at least as likely as not that the Veteran's fatigue is a symptom or residual of his service-connected disabilities, to include his psychiatric disorder and/or sleep apnea? (c) Is it at least as likely as not that the Veteran has a diagnosis of insomnia of which fatigue is symptom? If so, is it at least as likely as not that the insomnia is (i) proximately due to OR (ii) aggravated (worsened beyond the natural course of the disease) by the Veteran's service-connected conditions, to include his psychiatric disorder and/or sleep apnea? Consider and discuss an August 2020 record from Dr. A.S. noting that the Veteran presented with a complaint of gradual onset of insomnia starting approximately four months prior, which Dr. A.S. said was made worse by emotional stress and medication; as well as the Veteran's testimony that a psychologist told him his chronic fatigue was due to insomnia caused by his service-connected psychiatric disorder. 2. Schedule the Veteran for an examination regarding the current severity of his service-connected status post-kidney removal. The examiner must conduct appropriate testing to assess the present severity of the Veteran's condition, in terms of the measurements and symptoms in the applicable rating criteria (including the rating criteria for renal dysfunction, which consider GFR measurements). The examiner must also consider and discuss the Veteran's statements in December 2020 that due to his condition he has experienced fluid retention/edema in his legs as well as kidney stones. K. Parakkal Veterans Law Judge Board of Veterans' Appeals Attorney for the Board M. Davis, 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.