Citation Nr: A25035381
Decision Date: 04/16/25	Archive Date: 04/16/25

DOCKET NO. 240110-411941
DATE: April 16, 2025

ORDER

Entitlement to service connection for residuals of a traumatic brain injury (TBI) is denied.

Entitlement to service connection for bilateral shin splints is denied.

Entitlement to service connection for a right ankle disorder is denied.

Entitlement to service connection for a right knee disorder is denied.

Entitlement to service connection for a left knee disorder is denied.

Entitlement to an initial rating in excess of 20 percent for right hand neuropathy is denied.

REMANDED

Entitlement to service connection for an acquired psychiatric disorder, to include bipolar disorder, posttraumatic stress disorder (PTSD), depression, and anxiety is remanded.

Entitlement to service connection for scleroderma is remanded.

Entitlement to service connection for lumbosacral strain is remanded.

Entitlement to service connection for a stomach disorder, to include irritable bowel syndrome (IBS) is remanded.

FINDINGS OF FACT

1. The weight of the evidence is against finding that the Veteran had a TBI with current residuals. 

2. The weight of the evidence is against finding that the Veteran had a current bilateral shin splint disability at any time during the appeal or proximate thereto.

3. The weight of the evidence is against finding that the Veteran had a current right ankle disability at any time during the appeal or proximate thereto.

4. The weight of the evidence is against finding that the Veteran had a current right knee disability at any time during the appeal or proximate thereto.

5. The weight of the evidence is against finding that the Veteran had a current left knee disability at any time during the appeal or proximate thereto.

6. The Veteran did not have at least moderate incomplete paralysis of the major extremity due to neuropathy.

CONCLUSIONS OF LAW

1. The criteria for service connection residuals of a TBI are not met. 38 U.S.C. §§ 1110, 5107;?38 C.F.R. §§ 3.102, 3.303.

2. The criteria for service connection for bilateral shin splints are not met. 38 U.S.C. §§ 1110, 5107;?38 C.F.R. §§ 3.102, 3.303.

3. The criteria for service connection for a right ankle disorder are not met. 38 U.S.C. §§ 1110, 5107;?38 C.F.R. §§ 3.102, 3.303.

4. The criteria for service connection for a right knee disorder are not met. 38 U.S.C. §§ 1110, 5107;?38 C.F.R. §§ 3.102, 3.303.

5. The criteria for service connection for a left knee disorder are not met. 38 U.S.C. §§ 1110, 5107;?38 C.F.R. §§ 3.102, 3.303.

6. The criteria for an initial rating in excess of 20 percent for right hand neuropathy are not met. 38 U.S.C. § 1155; 38 C.F.R. § 4.124a, Diagnostic Code 8514.

REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

The Veteran had active service in the Army from July 1997 to May 2002.

The appeal originates from January 2023 (for right hand neuropathy, acquired psychiatric, right ankle, right knee, left knee, back, skin, and stomach/IBS disorders) and September 2023 (for a TBI and bilateral shin splints) decisions of a Department of Veterans Affairs (VA) Regional Office (RO/AOJ). The January 2023 decision was preceded by a June 2022 rating decision and January 2023 request for higher-level review. The September 2023 decision was preceded by an April 2023 rating decision and June 2023 request for higher-level review.

In January 2024, the Veteran submitted a Decision Review Request: Board Appeal (Notice of Disagreement) and elected direct review by a Veterans Law Judge. Therefore, consideration can only be given to the evidence of record at the time of the AOJ decisions on appeal. 38 C.F.R. § 20.303. The Board cannot consider (1) evidence submitted during the period after the AOJ issued the decisions on appeal and before the VA Form 10182 was received, or (2) evidence submitted after the VA Form 10182. Id.

Evidence was added to the claims file during periods when new evidence was not allowed, including with the January 2024 VA Form 10182. See, e.g., August 2023 PTSD Statement and Correspondence; January 2024 Medical Treatment Records. In a February 2024 docketing letter, the Board notified the Veteran and his representative that new evidence received for the issues on appeal (including with the VA Form 10182) cannot be considered under the Direct Review option, and that they could request to change dockets to have the Board consider this evidence. No response was received.

As the Board is deciding the claims for right hand neuropathy and the right ankle, right knee, left knee, bilateral shin splints, and TBI residuals, it may not consider this evidence in its decision. 38 C.F.R. § 20.300. The Veteran may file a Supplemental Claim and submit or identify this evidence. 38 C.F.R. § 3.2501. If the evidence is new and relevant, VA will issue another decision, considering the new evidence in addition to the evidence previously considered. Id. Specific instructions for filing a Supplemental Claim are included with this decision.

As to the issues being remanded (scleroderma, an acquired psychiatric disorder, and lumbosacral strain), any evidence the Board could not consider will be considered by the AOJ on readjudication. 38 C.F.R. § 3.103(c)(2)(ii).

1. Entitlement to service connection for residuals of a TBI.

2. Entitlement to service connection for bilateral shin splints.

3. Entitlement to service connection for a right ankle disorder.

4. Entitlement to service connection for a right knee disorder.

5. Entitlement to service connection for a left knee disorder.

Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303. The three-element test for service connection requires evidence of: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the current disability and the in-service disease or injury. Shedden v. Principi, 381 F.3d 1163, 1166-67?(Fed. Cir. 2004).

VA is responsible for determining whether the evidence persuasively favors one side or another.?38 C.F.R. § 4.3. When there is an approximate or nearly equal balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the veteran and the claim will be granted on the merits.?38 U.S.C. § 5107(b). When the evidence persuasively favors against the claim of the veteran, the benefit of the doubt doctrine is inapplicable, and the claim will be denied on its merits.?38 U.S.C. § 5107; Gilbert v. Derwinski,?1 Vet. App. 49?(1990); Lynch v. McDonough, 21 F.4th 776 (Fed. Cir. 2021).

The Veteran contends that he has residuals of a TBI and bilateral shin splints without more. See January 2023 Claim. He contends that he has right ankle and bilateral knee disorders due to cold weather exposure and moving heavy equipment. See January 2021 Claim. 

Initially, the Board notes that the claims for the shin splints, right ankle, and knees do not encompass neuropathy. The June 2022 rating decision denied service connection for peripheral neuropathy of the bilateral lower extremities separate from the right ankle, right knee, and left knee disorders. The Veteran did not request higher-level review of the peripheral neuropathy issue, and therefore the AOJ did not include the issue in the decisions on appeal to the Board.

With respect to a TBI, right ankle, and shin splints, service treatment records are silent for complaints, treatment, or diagnosis of any such disorders. In a January 2002 report of medical history for separation, the Veteran denied any head injury, leg impairment, or any illness or injury not noted (despite reporting other conditions). The head and lower extremities were normal on contemporaneous examination. 

Post-service treatment records are also negative for any diagnosis of a TBI with residuals or shin splints. Notably, an April 2009 VA treatment record shows that the Veteran denied experiencing a TBI event in service. In May 2022, the Veteran complained of right ankle pain for the prior decade (i.e., beginning around 10 years after separation), and chronic right ankle pain was added to his list of active medical problems.

As to the knees, the Veteran reported a history of knee trouble in the January 2002 report of medical history. He specified that this was bilateral knee pain, especially after a long run, that resolved spontaneously. However, the knees were normal on contemporaneous examination. The Veteran later complained of longstanding knee pain when seeing his primary care provider in May 2022, which was assessed as bilateral knee pain.

The Veteran was afforded a VA knee examination in October 2021. He reported bilateral knee symptoms beginning around 10 to 15 years prior with numbness and tingling in the extremities (notably, his numbness and tingling was attributed to peripheral neuropathy of the bilateral lower extremities on a separate VA examination in October 2021.) He complained of pain and intermittent locking up of the knees. The examiner was unable to diagnose any knee disorder and explained that there were no findings, signs, symptoms, or pathology to render any diagnosis. No functional impact was noted.

VA treatment records show that the Veteran underwent X-ray imaging of the knees in November 2021 after complaining of pain. The imaging showed normal alignment bilaterally, no significant degenerative changes in either knee, and trace joint effusion bilaterally that was likely physiologic (normal functioning).

Service connection may only be granted for a current disability; when a claimed condition is not shown, there may be no grant of service connection. See 38 U.S.C. § 1131; Rabideau v. Derwinski, 2 Vet. App. 141 (1992). In the absence of proof of a present disability, there can be no valid claim for service connection. See Degmetich v. Brown, 104 F.3d 1328 (1997); Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). Applicable law has held that the requirement of a current disability is satisfied when a claimant has a disability at the time a claim for VA disability compensation is filed or proximate thereto. Romanowsky v. Shinseki, 26 Vet. App. 289, 294 (2013). Even if a disorder resolves during the pendency of an appeal, a veteran may still receive service connection for the time it was present if applicable criteria are established. See McClain v. Nicholson, 21 Vet. App. 319 (2007).

The weight of the evidence is against finding that the Veteran had a TBI with current residuals, or current shin splint, right ankle, right knee, or left knee disabilities at any time during the appeal or proximate thereto. Service and post-service treatment records, as well as the Veteran's own lay reporting, are negative for a diagnosed TBI with current residuals or shin splints. His right ankle pain did not appear to cause functional impairment of earning capacity (see discussion below.) He was evaluated for bilateral knee pain proximate to separation and during the appeal (including X-ray imaging) and found not to have any current disability. Moreover, his complaints of numbness and tingling in the lower extremities were attributed to peripheral neuropathy, which is not on appeal per the preceding discussion. 

The Board has considered the applicability of Saunders v. Wilkie, 886 F.3d 1356 (2018) with respect to the Veteran's complaints of right ankle and bilateral knee pain. However, the weight of the evidence is against finding that pain resulted in functional impairment of earning capacity. Indeed, the October 2021 knee examiner did not indicate any such functional impairment from bilateral knee pain. Beyond complaining of knee symptomology (pain, clicking, and locking) and right ankle pain, the lay evidence does not explain how pain resulted in functional impairment of earning capacity.

The Board observes that the Veteran was not afforded a VA examination nor was an opinion obtained for a TBI, shin splints, or the right ankle. However, VA's duty to provide an examination is not limitless and is only triggered when there is some indication of a link between a veteran's claimed disability and his/her military service. See McLendon v. Nicholson, 20 Vet. App. 79 (2006); 38 C.F.R. § 3.159(c)(4). Although McLendon sets a low bar, that bar was not met here as the weight of the evidence did not suggest current disabilities that may be linked to active service.

With respect to a TBI and shin splints, there was no evidence of current signs or symptoms of disability attributable to such disorders, an in-service illness or injury, or a link to service (beyond the Veteran's assertions that he has TBI residuals and shin splints related to service). As to the right ankle, there was no evidence linking pain to the claimed weather exposure or physical duties (other than the Veteran's assertion that they are linked). Such is insufficient evidence to require an examination under McLendon. See e.g., Waters v. Shinseki, 601 F.3d 1274, 1278-79 (Fed. Cir. 2010) (rejecting appellant's argument that his "conclusory generalized statement that his service illness caused his present medical problems was enough to entitle him to a medical examination under the standard of [38 U.S.C. § 5103A(d)(2)(B)]").

Thus, for the reasons and bases discussed, the evidence for the claims versus the evidence against is not in approximate balance; instead, the most probative and, therefore, most persuasive evidence is against the claims. See Lynch, 999 F.3d 1391; Ortiz, 274 F.3d 1361. Service connection for residuals of a TBI, a right ankle disorder, bilateral shin splints, a right knee disorder, and a left knee disorder must be denied.

6. Entitlement to an initial rating in excess of 20 percent for right hand neuropathy.

Disability ratings are determined by comparing a veteran's present symptoms with criteria set forth in VA's Schedule for Rating Disabilities, which is based on average impairment in earning capacity. 38 U.S.C. § 1155; 38 C.F.R. Part 4. Regulations require that where there is a question as to which of two evaluations is to 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.

The Veteran's right hand neuropathy is rated under Diagnostic Code 8514 for paralysis of the musculospiral nerve (radial nerve). The March 2022 VA hand and fingers examination indicates that he is right-side dominant. 

For the major side, a 70 percent rating is assigned for complete paralysis; drop of hand and fingers, wrist and fingers perpetually flexed, the thumb adducted falling within the line of the outer border of the index finger; cannot extend hand at wrist, extend proximal phalanges of fingers, extend thumb, or make lateral movement of wrist; supination of hand, extension and flexion of elbow weakened, the loss of synergic motion of extensors impairs the hand grip seriously; total paralysis of the triceps occurs only as the greatest rarity.

A 50 percent rating is assigned for severe incomplete paralysis. 

A 30 percent rating is assigned for moderate incomplete paralysis.

A 20 percent rating is assigned for mild incomplete paralysis.

The term "incomplete paralysis," with this and other peripheral nerve injuries, indicates a degree of lost or impaired function substantially less than the type picture for complete paralysis given with each nerve, whether due to varied level of the nerve lesion or to partial regeneration. When the involvement is wholly sensory, the rating should be for the mild, or at most, the moderate degree.

These terms (mild, moderate, moderately severe, and severe) are not defined in the diagnostic code and, therefore, rather than applying a mechanical formula, the Board must evaluate all the evidence to the end that its decisions are equitable and just. 38 C.F.R. § 4.6. The use of the terminology within a VA examination report is not in and of itself dispositive. Id. 

According to Merriam-Webster's Dictionary, "mild" means not very severe. See Merriam-Webster.com Online Dictionary, https://www.merriam-webster.com/dictionary/mild. "Moderate" means limited in scope or effect. See Merriam-Webster.com Online Dictionary, https://www.merriam-webster.com/dictionary/moderate. "Severe" means very painful or harmful or of a great degree. See Merriam-Webster.com Online Dictionary, https://www.merriam-webster.com/dictionary/severe.

The Board acknowledges that the VA Adjudicative Procedures Manual M21-1 (hereinafter M21-1) contains provisions regarding rating peripheral nerve disabilities. The United States Court of Appeals for the Federal Circuit has held that the Board is not bound by the provisions of the M21-1 and the manual does not "carry the force of law." DAV v. Sec'y of Veterans Affairs, 859 F.3d 1072, 1077 (Fed. Cir. 2017). It is "an internal manual used to convey guidance to VA adjudicators. It is not intended to establish substantive rules beyond those contained in statute and regulation." DAV, 859 F.3d at 1077. The M21-1 provisions do not go through the regular rulemaking procedures and are little more than evidence as to how the Veterans Benefits Administration (VBA) applies law and regulation in practice. It is not binding on the Board because it is not a regulation, instruction of the Secretary, or Office of General Counsel (OGC) opinion. 38 U.S.C. 7104(c); see also DAV, 859 F.3d at 1077. The regulations further clarify that the Board "is not bound by Department manuals, circulars, or similar administrative issues." 38 C.F.R. § 20.105.

Nevertheless, the Court in Overton v. Wilkie held that the Board is required to discuss "any relevant provisions contained in the [M21-1] as part of its duty to provide adequate reasons or bases, but because it is not bound by those provisions, it must make its own determination before it chooses to rely on an [M21-1] provision as a factor to support its decision." 30 Vet. App. 257, 264 (2018). More recently, in Wilson v. McDonough, the Court elaborated that, in the context of relevant guidance documents, the Board can "neither merely invoke nor ignore a relevant guidance provision to support its decision but must provide an independent rationale relating its decision to the relevant guidance document." 35 Vet. App. 75, 80 (2021).

Pursuant to Wilson, the Board finds that VA's M21-1 does contain guidance relevant to the adjudication of the issues currently on appeal. Specifically, Part V, Subpart iii, Chapter 12, Section A(c) of the M21-1 provides "general guidelines" for the terms "mild," "moderate," and "severe" in the context of evaluating incomplete paralysis of the upper and lower peripheral nerves.

Under the M21-1, "mild" is described as the lowest level of evaluation based on the symptoms, however slight, as long as they were sufficient to support a diagnosis of the peripheral nerve impairment. Generally, "mild" is limited to a disability limited to sensory deficits that are lower graded, less persistent, and affecting a small area and/or a very minimal reflex or motor abnormality.

"Moderate" in the M21-1 is described as the maximum evaluation reserved for the most significant cases of sensory-only impairment. The M21-1 further elaborates that the following "sign/symptom combinations" may fall into the moderate category: combinations of significant sensory changes and reflex or motor changes of a lower degree, or motor and/or reflex impairment such as weakness or diminished or hyperactive reflexes (with or without sensory impairment) graded as medically moderate.

"Severe," in general, is expected to include motor and/or reflex impairment (for example, atrophy, weakness, or diminished or hyperactive reflexes) at a grade reflecting a very high level of limitation or disability. Trophic changes may be seen with severe longstanding neuropathy. Even though severe incomplete paralysis cases should show findings substantially less than representative findings for complete impairment of the nerve, the disability picture for severe incomplete paralysis may contain signs/symptoms resembling some of those expected in cases of complete paralysis of the nerve.

The Veteran contends that he is entitled to an increased rating for right hand neuropathy without more detail. 

VA treatment records show that he was seen in February 2022 at urgent care for a right thumb injury and right palm puncture wound from a human bite one week prior. He reported aggravating the injury when he lifted a crate and twisted his thumb. He was assessed with right thumb proximal phalanx avulsion fracture with possible collateral ligament injury. He was referred for physical therapy and surgical consultation.

The Veteran underwent a hand and finger examination in March 2022. He reported having an in-service finger injury in 1998 (though his 2022 human-bite and lifting injuries were not reported or noted in the examination report or nexus opinion). He complained of pain, weakness, and difficulty grasping objects. He reported an in-service history of numbness, loss of feeling, and tingling that resolved prior to the appeal. Muscle strength testing was normal (5/5) for the right hand. He had full grip in the right hand without muscle atrophy. No numbness, tingling, or other sensory complaints (other than pain) were indicated.

Based on the evidence, the Board finds that the Veteran did not have at least moderate incomplete paralysis due to neuropathy. His numbness and tingling were historical symptoms of the 1998 injury that resolved long before the appeal. Objective testing showed normal strength and full grip. A high level of disability was not shown, as there was no evidence of sensory or reflex impairment or decreased muscle strength due to neuropathy. There was also no evidence of atrophy or trophic changes, which tends to be indicative of severe neuropathy. 

To the contrary, VA treatment records suggest that most of the Veteran's symptomology and treatment (including his referral for physical therapy) were linked to the 2022 injury (human bite and lifting) rather than the remote 1998 in-service finger injury. The VA examiner apparently overlooked the 2022 injury, which raises a question regarding the validity of the neuropathy diagnosis and its link to service. While the Board does not seek to disturb the award of service connection for right hand neuropathy, the Veteran's disability picture is clearly not consistent with a moderate designation (the most significant cases of sensory-only impairment). 

The Board has considered whether the Veteran's neuropathy warrants an increased rating under any other applicable diagnostic code. The Veteran's disability is specifically listed under the rating schedule and therefore cannot be rated under a different diagnostic code. See Copeland v. McDonald, 27 Vet. App. 333, 338 (2015).

As a final matter, the Board finds that the March 2022 formal claim for a total disability rating based on individual unemployability (TDIU) did not reasonably arise from the increased rating claim for right hand neuropathy. Although the March 2022 examination suggested potential functional impact from neuropathy (such as difficulty gripping or typing), there is no indication the Veteran ceased working due to right hand neuropathy. To the contrary, the VA Form 21-8940 and April 2022 Social Security Administration (SSA) records make clear that his claim for a TDIU is linked to his nonservice-connected psychiatric disability. 

For example, in the VA Form 21-8940, he stated that he was "not service connected yet" for the depression and anxiety preventing him from securing or following any substantially gainful occupation. He later reiterated that he missed too much time from work due to depression and anxiety. In his application for SSA benefits, he listed a psychiatric disability but not neuropathy among the conditions impacting employment. As such, the TDIU claim did not reasonably arise from the increased rating claim for right hand neuropathy. See Rice v. Shinseki, 22 Vet. App. 447, 453-54 (2009).

REASONS FOR REMAND

1. Entitlement to service connection for an acquired psychiatric disorder, to include bipolar disorder, PTSD, depression, and anxiety is remanded.

The Veteran contends that he has PTSD, bipolar disorder, depression, anxiety, and sleep disturbances due to various in-service stressors, such as deployment on missions and exposure to loud noises. See December 2020 Claim. Service treatment records show that he denied a history of depression or excessive worry at enlistment in July 1997 and was evaluated as psychiatrically normal. However, he was later hospitalized for suicidal ideation in 2001. On the January 2002 separation examination, he was diagnosed with depression and noted to be undergoing treatment. 

Military personnel records show that he was reprimanded for missing movement and formation beginning in December 2001. He failed to report to work in January 2002 and was changed to AWOL status in February 2002. He was recommended for separation in April 2002.

The Veteran initially underwent a VA mental disorders examination in February 2021. The examiner diagnosed bipolar disorder and opined that the disorder was less likely as not related to service, partially due to indications in post-service records that a mental disorder preexisted service. The examiner provided an addendum in August 2021 stating that there was "CLEAR" documentation that a mental disorder preexisted service and reiterating the negative opinion.

The AOJ obtained a PTSD examination in January 2022 from another examiner. The examiner diagnosed both PTSD and bipolar disorder. The examiner found that PTSD preexisted service as a result of physical abuse by the Veteran's mother and the experience of his father's incarceration. The examiner noted that bipolar disorder was diagnosed about a decade after service but that there were harbingers for bipolar disorder in service (hospitalization and mental health treatment).

The preceding suggests that the Veteran's mental disorder preexisted service. His in-service history of mental health problems suggests that he had an increase in psychiatric disability, but it is unclear whether this represents aggravation by service or the natural progress of the disability. As such, there was a pre-decisional error in not obtaining an opinion regarding aggravation of a preexisting disability.

2. Entitlement to service connection for scleroderma is remanded.

The Veteran contends that his skin disorder is due to cold-weather exposure in service. See December 2020 Claim. He underwent a VA examination in January 2021 for systemic lupus erythematosus and other autoimmune diseases. The examiner diagnosed scleroderma and rendered a negative opinion for direct service connection. However, the opinion was solely based on the absence of evidence of skin complaints in service. Moreover, the examiner did not address whether the skin disorder may be related to cold-weather exposure.

The Board notes that a post-service initial diagnosis of a disorder does not necessarily preclude service connection. See 38 C.F.R. § 3.303(d). The absence of evidence in the service treatment records is but one factor for consideration, and a negative opinion relying solely on that factor is inadequate. Dalton?v. Nicholson,?21 Vet. App. 23?(2007). Consequently, the January 2021 opinion is inadequate, and remand is necessary for a new opinion.

3. Entitlement to service connection for lumbosacral strain is remanded.

The Veteran contends that his back disorder is due to moving heavy equipment in service. See December 2020 Claim. He underwent a VA back examination in August 2021 and was diagnosed with lumbosacral strain. The examiner rendered a negative opinion, partially based on a finding that the Veteran was last seen for back complaints in January 2001. However, on the January 2002 separation report of medical history, he indicated having recurrent back pain and specified "lower back pain from lifting heavy stuff." The evaluator noted "LBP" secondary to lifting with "occ[asional] exacerbations." The August 2021 examiner's failure to address this relevant evidence constitutes a pre-decisional error requiring remand.

4. Entitlement to service connection for a stomach disorder, to include IBS is remanded.

The Veteran contends that he has a stomach disorder (including IBS) generally related to service. He was afforded a VA stomach examination in December 2020 and reported a 20-year history of intermittent bilateral midabdominal pains, as well as multiple loose bowel movements per day. The examiner opined that the Veteran had transient stomach pains diagnosed as acute gastroenteritis and was unable to diagnose a current stomach disability, though the examiner stated that the Veteran may have an intestinal disorder.

VA treatment records show that the Veteran subsequently presented for emergency treatment in November 2021. He reported severe abdominal pain with nausea and chronic loose diarrhea. After two days, he was diagnosed with IBS and discharged. Despite this new evidence of a diagnosis during the appeal, the AOJ did not obtain an addendum. Such constitutes a pre-decisional error requiring remand.

The matters are REMANDED for the following actions:

1. Request an addendum from the January 2022 PTSD examiner. The examiner is asked to opine whether there a) there is clear and unmistakable evidence that a psychiatric disability preexisted service; and (b) if the examiner finds that psychiatric disability clearly and unmistakably preexisted service, whether there is clear and unmistakable evidence that the pre-existing disability was not aggravated (i.e., permanently worsened beyond the natural course of the disease) during service.

Rationale should be provided for any opinion, with citation to supporting clinical data/lay statements, as deemed appropriate. If the examiner cannot provide the requested opinion without resorting to?speculation, he or she should expressly indicate this and provide a supporting?rationale?as to why an opinion cannot be made without resorting to?speculation.

2. Request an addendum from the January 2021 skin examiner. The examiner is asked to opine whether it is at least as likely as not (the likelihood is at least approximately balanced or nearly equal, if not higher) that scleroderma had its onset in or is otherwise etiologically related to active service, including cold-weather exposure.

The examiner is advised that the absence of evidence in the service treatment records it but one factor for consideration and that other evidence should also be discussed.

Rationale should be provided for any opinion, with citation to supporting clinical data/lay statements, as deemed appropriate. If the examiner cannot provide the requested opinion without resorting to?speculation, he or she should expressly indicate this and provide a supporting?rationale?as to why an opinion cannot be made without resorting to?speculation.

3. Request an addendum from the August 2021 back examiner. The examiner is asked to opine whether it is at least as likely as not (the likelihood is at least approximately balanced or nearly equal, if not higher) that lumbosacral strain had its onset in or is otherwise etiologically related to active service, including moving heavy equipment. 

The examiner is advised that in January 2002, the Veteran indicated recurrent back pain and specified "lower back pain from lifting heavy stuff." The January 2002 evaluator noted "LBP" secondary to lifting with "occ[asional] exacerbations."

Rationale should be provided for any opinion, with citation to supporting clinical data/lay statements, as deemed appropriate. If the examiner cannot provide the requested opinion without resorting to?speculation, he or she should expressly indicate this and provide a supporting?rationale?as to why an opinion cannot be made without resorting to?speculation.

4. Request an addendum from the December 2020 stomach examiner. The examiner is asked to opine whether it is at least as likely as not (the likelihood is at least approximately balanced or nearly equal, if not higher) that irritable bowel syndrome (diagnosed during VA hospitalization in November 2021) had its onset in or is otherwise etiologically related to active service.

Rationale should be provided for any opinion, with citation to supporting clinical data/lay statements, as deemed appropriate. If the examiner cannot provide the requested opinion without resorting to?speculation, he or she should expressly indicate this and provide a supporting?rationale?as to why an opinion cannot be made without resorting to?speculation.

 

 

L. Chu

Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board	M. Alhinnawi

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.