series: ama

judge_norm: MICHAEL J SKALTSOUNIS

benefit: reduction

text:
Citation Nr: A25001000
Decision Date: 01/06/25	Archive Date: 01/06/25

DOCKET NO. 220523-244600
DATE: January 6, 2025

ORDER

The reduction of the disability rating for right knee instability, from 10 percent to 0 percent, effective from December 23, 2021, was not proper and a restoration is granted.

Entitlement to a disability rating in excess of 10 percent for a right knee strain is denied.

Entitlement to a disability rating in excess of 10 percent for a left knee strain is denied.

Entitlement to a disability rating in excess of 10 percent for right knee instability is denied.

REMANDED

Entitlement to service connection for a lumbar spine disability is remanded.

FINDINGS OF FACT

1. The agency of original jurisdiction (AOJ) reduced the rating of the Veteran's service-connected right knee instability from 10 percent to 0 percent; however, a reduction of the rating was not warranted by a preponderance of the evidence.

2. The Veteran's right knee strain did not exhibit flexion of the leg limited to 30 degrees, and his pain on motion is already taken into account with his current rating; i.e., there no additional uncompensated limitation of motion that can provide the basis for a higher rating.

3. The Veteran's left knee strain did not exhibit flexion of the leg limited to 30 degrees, and his pain on motion is already taken into account with his current rating; i.e., there no additional uncompensated limitation of motion that can provide the basis for a higher rating.

4. The Veteran's service-connected right knee disorder exhibits lateral instability that is productive of slight knee impairment; persistent instability and the prescribed use of an assistance device or brace is also not shown.

CONCLUSIONS OF LAW

1. The reduction of the disability rating for right knee instability from 10 percent to 0 percent, effective December 23, 2021, was not proper, and the criteria for a restoration have been met.  38 U.S.C. �� 1155, 5107; 38 C.F.R. �� 3.105(e), 3.44, 4.71(a), Diagnostic Code 5257.

2. The criteria for entitlement to a disability rating in excess of 10 percent for a right knee strain have not been met.  38 U.S.C. �� 1155, 5103, 5107; 38 C.F.R. �� 3.102, 3.159, 4.71a, Diagnostic Code 5260.

3. The criteria for entitlement to a disability rating in excess of 10 percent for a left knee strain have not been met.  38 U.S.C. �� 1155, 5103, 5107; 38 C.F.R. �� 3.102, 3.159, 4.71a, Diagnostic Code 5260.

4. The criteria for entitlement to a disability rating in excess of 10 percent for right knee instability have not been met.  38 U.S.C. �� 1155, 5103, 5107; 38 C.F.R. �� 3.102, 3.159, 4.71a, Diagnostic Code 5257.

REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

The Veteran served on active duty from October 2009 to March 2013.

The rating decision on appeal was issued in February 2022.  In May 2022, the Veteran elected the modernized review system.  84 Fed. Reg. 138, 177 (Jan. 18, 2019) (codified at 38 C.F.R. � 19.2(d)).

The Veteran elected the Direct Review lane.  Accordingly, the Board will consider evidence of record as of the February 2022 rating decision.

Evidence was added to the claims file during a period of time when new evidence was not allowed.  Therefore, the Board may not consider this evidence.  84 Fed. Reg. 138, 182 (Jan. 18, 2019) (codified at 38 C.F.R. � 20.300).  The Veteran may file a Supplemental Claim and submit or identify this evidence.  84 Fed. Reg. 138, 182 (Jan. 18, 2019) (codified at 38 C.F.R. � 3.2501).  If the evidence is new and relevant, VA will issue another decision on the claim, considering the new evidence in addition to the evidence previously considered.  Id.  Specific instructions for filing a Supplemental Claim are included with this decision.

Rating Reduction

A veteran's disability rating shall not be reduced unless an improvement in the disability is shown to have occurred. 38 U.S.C. � 1155. When a veteran's disability rating is reduced by a RO without following the applicable regulations, the reduction is void ab initio.  Greyzck v. West, 12 Vet. App. 288, 292 (1999).

Where a disability has been service connected for less than five years there must be an adequate re-examination that discloses improvement in the Veteran's condition.  38 C.F.R. � 3.344(c).

VA is also required to comply with several general VA regulations applicable to all rating-reduction cases, regardless of the rating level or the length of time that the rating has been in effect.  38 C.F.R. �� 4.1, 4.2, 4.10.  These provisions impose a clear requirement that VA rating reductions be based upon review of the entire history of the veteran's disability.  Schafrath v. Derwinski, 1 Vet. App. 589, 594 (1991).  Such review requires VA to ascertain, based upon review of the entire recorded history of the condition, whether the evidence reflects an actual change in the disability and whether the examination reports reflecting such change are based upon thorough examinations.  Thus, in any rating-reduction case, not only must it be determined that an improvement in a disability has actually occurred but also that that improvement actually reflects an improvement in the veteran's ability to function under the ordinary conditions of life and work.  Faust v. West, 13 Vet. App. 342, 350 (2000).

In certain rating reduction cases, VA benefits recipients are to be afforded greater protections, as set forth in 38 C.F.R. � 3.344.  The provisions of 38 C.F.R. � 3.344(c), however, specify that the provisions of 38 C.F.R. � 3.344(a) and (b) are only applicable for ratings which have continued for long periods at the same level (five years or more).

There is no question that a disability rating may be reduced; however, the circumstances under which rating reductions can occur are specifically limited and carefully circumscribed by VA regulations.  Dofflemyer v. Derwinski, 2 Vet. App. 277, 280 (1992).  The burden is on VA to justify a reduction in a rating.  Brown v. Brown, 5 Vet. App. 413 (1993) (Board is required to establish, by a preponderance of the evidence and in compliance with 38 C.F.R. � 3.344, that a rating reduction is warranted).

Significantly, in a rating reduction case, VA has the burden of establishing that the disability has improved.  This is in stark contrast to a case involving a claim for an increased (i.e., higher) rating, in which it is the Veteran's responsibility to show the disability has worsened.  A rating reduction case focuses on the propriety of the reduction and is not the same as an increased rating issue.  See Peyton v. Derwinski, 1 Vet. App. 282, 286 (1991).

In any rating-reduction case, VA must determine (1) whether the evidence reflects an actual change in the disability based upon review of the entire recorded history of the condition; (2) whether the examination reports reflecting such change are based upon thorough examinations; and (3) whether any improvement actually reflects an improvement in the veteran's ability to function under the ordinary conditions of his life and work.  Murphy v. Shinseki, 26 Vet. App. 510, 516-17 (2014) (citing Brown, 5 Vet. App. at 420-21; 38 C.F.R. �� 4.1, 4.2, 4.10, 4.13).

The determination in a reduction rating case must include the proper application as to the standard of proof.  In rating reduction cases, VA must establish, by a preponderance of evidence, that the reduction was warranted.  Brown, 5 Vet. App. at 421; Kitchens v. Brown, 7 Vet. App. 320, 324 (1995).

The law provides that where a rating reduction was made without observance of law, although a remand for compliance with that law would normally be an adequate remedy, in a rating reduction case the erroneous reduction must be vacated, and the prior rating restored.  Schafrath, 1 Vet. App. at 595.

1. Whether reduction of a 10 percent rating for right knee instability was proper

The Veteran contends that his rating reduction for right knee instability was improper.

Here, the Veteran's right knee instability was initially service connected with a 10 percent rating, effective July 10, 2014.  In a February 2022 rating decision, the AOJ reduced the Veteran's rating for right knee instability to 0 percent, effective December 23, 2021.

Here, the Board finds that no reduction notification procedures were required as the rating action that implemented the rating reduction did not change the Veteran's overall disability rating.  The special procedural requirements outlined in 38 C.F.R. � 3.105(e) are therefore not applicable in this case.  See VAOPGCPREC 71-91 (Nov. 7, 1991); Stelzel v. Mansfield, 508 F.3d 1345, 1347-49 (Fed. Cir. 2007) (holding that provisions of � 3.105(e) do not apply when there is no change in the overall disability rating).

At the time the rating reduction became effective, December 23, 2021, the Veteran's 10 percent rating for his right knee instability had been continuously in effect for a period of over five years.  As such, the Board finds that the provisions of 38 C.F.R. � 3.344 (a) and (b) are applicable here.

The provisions of 38 C.F.R. � 3.344 (a) and (b) provide that, where a Veteran's schedular rating has been both continuous and stable for five years or more, the rating may be reduced only if the examination upon which the reduction is based is at least as full and complete as the examination used to establish the higher evaluation.  A rating that has been in effect for more than five years will not be reduced on any one examination, except in those instances where all of the evidence of record clearly warrants the conclusion that sustained improvement has been demonstrated.  The rating agency must also take into consideration whether the evidence makes it reasonably certain that the improvement will be maintained under the ordinary conditions of life and work.  38 C.F.R. � 3.344(a)-(b); see also Brown, 5 Vet. App. at 420-21; Faust v. West, 13 Vet. App. 342, 350 (2000).

In determining whether a reduction was proper, the Board must focus upon evidence available to the RO at the time the reduction was effectuated, although post-reduction medical evidence may be considered in the context of evaluating whether the condition actually improved.  See Dofflemyer v. Derwinski, 2 Vet. App. 277, 281-282 (1992).  However, post-reduction evidence may not be used to justify an improper reduction.  The burden of proof is on VA to establish that a reduction is warranted by the weight of the evidence.  Kitchens v. Brown, 7 Vet. App. 320 (1995).

Diagnostic Code 5257 provides ratings for symptoms of recurrent subluxation or instability and patellar instability.  Recurrent subluxation manifested by a sprain, incomplete ligament tear, or complete ligament tear (repaired, unrepaired, or failed repair) causing persistent instability, without a prescription from a medical provider for an assistive device (e.g., cane(s), crutch(es), walker) or bracing for ambulation, is rated 10 percent.  A sprain, incomplete ligament tear, or repaired complete ligament tear causing persistent instability, and a medical provider prescribes a brace and/or assistive device (e.g., cane(s), crutch(es), walker) for ambulation; or (b) unrepaired or failed repair of complete ligament tear causing persistent instability, and a medical provider prescribes either an assistive device (e.g., cane(s), crutch(es), walker) or bracing for ambulation, is rated 20 percent. An unrepaired or failed repair of complete ligament tear causing persistent instability, and a medical provider prescribes both an assistive device (e.g., cane(s), crutch(es), walker) and bracing for ambulation, is rated 30 percent.  85 Fed. Reg. at 76463.

The Board notes that according to the evidence section in the January 2020 rating decision the RO based its decision to reduce the Veteran's disability rating on the results of one VA examination, which took place in December 2021.  At that examination, the examiner failed to address the Veteran's documented history of instability of the right knee.  The prior September 2021 examination even noted that the Veteran constantly used a knee brace.

As the December 2021 VA examination formed the sole basis of the RO's determination that the Veteran's right knee disability had shown sustained improvement, and thus, warranted a rating reduction, the Board finds that the reduction was improper.  See 38 C.F.R. � 3.344(a).  The Board also finds that the record at the time of the reduction, including the Veteran's VA and private treatment records and lay statements, did not contain any other competent evidence supporting a finding of objective improvement in the Veteran's disability.  Indeed, the Veteran credibly asserted in his Notice of Disagreement that his right knee condition had actually deteriorated.  Accordingly, the Board finds that the rating reduction for the Veteran's right knee disability from 10 percent to 0 percent was improper, and the prior rating must be restored effective December 23, 2021.

Increased Rating

A disability rating is determined by the application of VA's Schedule for Rating Disabilities (Rating Schedule), 38 C.F.R. Part 4.  The percentage ratings contained in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and their residual conditions in civil occupations.  Separate diagnostic codes identify the various disabilities.  38 U.S.C. � 1155; 38 C.F.R. � 4.1.

VA has a duty to acknowledge and consider all regulations that are potentially applicable through the assertions and issues raised in the record and to explain the reasons and bases for its conclusions.  Schafrath v. Derwinski, 1 Vet. App. 589 (1991).  Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for that rating.  Otherwise, the lower rating will be assigned.  38 C.F.R. � 4.7.

The evaluation of the same disability under various diagnoses, known as pyramiding, is generally to be avoided.  38 C.F.R. � 4.14.  The critical element in permitting the assignment of several ratings under various diagnostic codes is that none of the symptomatology for any one of the disabilities is duplicative or overlapping with the symptomatology of the other disability.  See Esteban v. Brown, 6 Vet. App. 259, 261-62 (1994).

The Board will consider whether separate ratings may be assigned for separate periods of time based on facts found, a practice known as "staged ratings."  Fenderson v. West, 12 Vet. App. 119, 126-27 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007).

When evaluating joint disabilities rated on the basis of limitation of motion, VA must consider granting a higher rating in such cases in which functional loss due to pain, weakness, excess fatigability, or incoordination is demonstrated, and those factors are not contemplated in the relevant rating criteria.  See DeLuca v. Brown, 8 Vet. App. 202 (1995).  The Court has clarified that although pain may be a cause or manifestation of functional loss, limitation of motion due to pain is not necessarily rated at the same level as functional loss where motion is impeded.  See Mitchell v. Shinseki, 25 Vet. App. 32 (2011).

Instead, in Mitchell, the Court explained that, pursuant to 38 C.F.R. �� 4.40 and 4.45, the possible manifestations of functional loss include decreased or abnormal excursion, strength, speed, coordination, or endurance, and less or more movement than is considered normal, weakened movement, excess fatigability, and pain on movement (with swelling, deformity, and atrophy) that affects stability, standing, and weight-bearing.  Thus, functional loss caused by pain must be rated at the same level as if the functional loss were caused by any of the other factors cited above. In evaluating the severity of a joint disability, VA must determine the overall functional impairment due to these factors.

In considering the evidence in any given appeal, it is the responsibility of the Board to weigh the evidence and decide where to give credit and where to withhold the same and, in so doing, accept certain medical opinions over others.  Schoolman v. West, 12 Vet. App. 307, 310-11 (1999).  In this regard, the Board has been charged with the duty to assess the credibility and weight given to evidence.  Davidson v. Shinseki, 581 F. 3d 1313 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007); Buchanan v. Nicholson, 451 F. 3d 1331 (Fed. Cir. 2006); Charles v. Principi, 16 Vet. App. 370 (2002); Klekar v. West, 12 Vet. App. 503, 507 (1999); Wood v. Derwinski, 1 Vet. App. 190, 193 (1991).  Indeed, the Court has declared that in adjudicating a claim, the Board has the responsibility to do so.  Bryan v. West, 13 Vet. App. 482, 488-89 (2000); Wilson v. Derwinski, 2 Vet. App. 614, 618 (1992).  In doing so, the Board is free to favor one medical opinion over another, provided it offers an adequate basis for doing so.  Evans v. West, 12 Vet. App. 22, 30 (1998); Owens v. Brown, 7 Vet. App. 429, 433 (1995).

When there is an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant.  38 U.S.C. � 5107(b); 38 C.F.R. � 3.102.  When all of the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether the most persuasive and probative evidence is against the claim, in which case the claim is denied.  Gilbert v. Derwinski, 1 Vet. App. 49 (1990).

2. Entitlement to a disability rating in excess of 10 percent for a right knee strain

3. Entitlement to a disability rating in excess of 10 percent for a left knee strain

4. Entitlement to a disability rating in excess of 10 percent for right knee instability

The Veteran contends that his disabilities warrant increase ratings throughout the course of the appeal.  In May 2021, the Veteran filed the claim for an increased rating, which are rated at 10 percent, bilaterally, under Diagnostic Code 5260.

Full range of motion of the knee is from 0 degree of extension to 140 degrees of flexion.  38 C.F.R. � 4.71, Plate II.

Under Diagnostic Code 5256, ankylosis at a favorable angle in full extension or in slight flexion between 0 degrees and 10 degrees warrants a 30 percent rating; ankylosis with flexion between 10 degrees and 20 degrees warrants a 40 rating; ankylosis with flexion between 20 degrees and 45 degrees warrants a 50 rating; and extremely unfavorable ankylosis (flexion at an angle of 45 degrees or more) warrants a 60 percent rating.

Diagnostic Code 5257 provides ratings for symptoms of recurrent subluxation or instability and patellar instability.  Recurrent subluxation manifested by a sprain, incomplete ligament tear, or complete ligament tear (repaired, unrepaired, or failed repair) causing persistent instability, without a prescription from a medical provider for an assistive device (e.g., cane(s), crutch(es), walker) or bracing for ambulation, is rated 10 percent.  A sprain, incomplete ligament tear, or repaired complete ligament tear causing persistent instability, and a medical provider prescribes a brace and/or assistive device (e.g., cane(s), crutch(es), walker) for ambulation; or (b) unrepaired or failed repair of complete ligament tear causing persistent instability, and a medical provider prescribes either an assistive device (e.g., cane(s), crutch(es), walker) or bracing for ambulation, is rated 20 percent.  An unrepaired or failed repair of complete ligament tear causing persistent instability, and a medical provider prescribes both an assistive device (e.g., cane(s), crutch(es), walker) and bracing for ambulation, is rated 30 percent.  85 Fed. Reg. at 76463.

The version of DC 5257 in effect prior to February 7, 2021, provided a 30 percent rating for recurrent subluxation or lateral instability was severe, a 20 percent rating for moderate symptoms, and a 10 percent rating for symptoms that were light.  Based on the lookback provisions of 38 C.F.R. � 3.400(o)(2), the Board finds that it may additionally consider the earlier criteria.

The terms "slight," "moderate," and "severe" are not defined in the Rating Schedule.  Rather than applying a mechanical formula, the Board must evaluate all of the evidence to the end that its decisions are "equitable and just."  38 C.F.R. � 4.6.  The use of terminology such as "slight" or "moderate" by VA examiners and others, although an element of evidence to be considered by the Board, is not dispositive of an issue.  All evidence must be evaluated in arriving at a decision regarding an increased rating.  38 C.F.R. �� 4.2, 4.6.

Under Diagnostic Code 5258, dislocated semilunar cartilage with frequent episodes of locking, pain, and effusion into the joint warrants a 20 percent rating.

Under Diagnostic Code 5259, removal of the semilunar cartilage when symptomatic warrants a 10 percent rating.

Under Diagnostic Code 5260, if flexion of the leg is limited to 60 degrees, a 0 percent rating is warranted.  If flexion of the leg is limited to 45 degrees, a 10 percent rating is in order.  If flexion of the leg is limited to 30 degrees, a 20 percent rating is in order.  If flexion of the leg is limited to 15 degrees, a 30 percent rating is warranted.

Under Diagnostic Code 5261, if extension of the leg is limited t0 5 degrees, a 0 percent rating is warranted.  If extension of the leg is limited to 10 degrees, a 10 percent rating is warranted.  If extension of the leg is limited to 15 degrees, a 20 percent rating is warranted.  If extension of the leg is limited to 20 degrees, a 30 percent rating is warranted.  If extension of the leg is limited to 30 degrees, a 40 percent rating is warranted.  If extension of the leg is limited to 45 degrees, a 50 percent rating is warranted.

Prior to February 7, 2021, Diagnostic Code 5262 provided ratings based on impairment of the tibia and fibula.  Malunion of the tibia and fibula with slight knee or ankle disability is rated 10 percent disabling; malunion of the tibia and fibula with moderate knee or ankle disability is rated 20 percent disabling; and malunion of the tibia and fibula with marked knee or ankle disability is rated 30 percent disabling.  Nonunion of the tibia and fibula with loose motion, requiring a brace, is rated 40 percent disabling.  38 C.F.R. � 4.71a.

Diagnostic Code 5262 now provides that medial tibial stress syndrome (MTSS), or shin splints, is rated: With treatment for less than 12 consecutive months, for one or both lower extremities, 0 percent; requiring treatment for no less than 12 consecutive months, and unresponsive to either shoe orthotics or other conservative treatment, one or both lower extremities, 10 percent; requiring treatment for no less than 12 consecutive months, and unresponsive to surgery and either shoe orthotics or other conservative treatment, one lower extremity, 20 percent; requiring treatment for no less than 12 consecutive months, and unresponsive to surgery and either shoe orthotics or other conservative treatment, both lower extremities, 30 percent.  Malunion of the tibia and fibula is evaluated under Diagnostic Codes 5256, 5257, 5260, or 5261 for the knee, or 5270 or 5271 for the ankle, whichever results in the highest evaluation.  Nonunion of the tibia and fibula, with loose motion, requiring a brace, is rated 40 percent. 85 Fed. Reg. at 76463.

Under Diagnostic Code 5263, genu recurvatum (acquired, traumatic, with weakness and insecurity in weight-bearing objectively demonstrated) warrants a 10 percent rating.

VA's General Counsel has held that a Veteran who has arthritis and instability of the knee could receive separate ratings under Diagnostic Codes 5003 and 5257.  VAOPGCPREC 23-97 (1997); 62 Fed. Reg. 63,604 (1997).  When a knee disorder is already rated under Diagnostic Code 5257, the Veteran must also have limitation of motion under Diagnostic Code 5260 or Diagnostic Code 5261 in order to obtain a separate rating for arthritis.  If the Veteran does not at least meet the criteria for a zero-percent rating under either of those codes, there is no additional disability for which a rating may be assigned.

In VAOPGCPREC 9-98 (1998); 64 Fed. Reg. 52,376 (1999), the VA General Counsel further explained that, when a Veteran has a knee disability rated under Diagnostic Code 5257, to warrant a separate rating for arthritis based on X-ray findings, the limitation of motion need not be compensable under Diagnostic Code 5260 or Diagnostic Code 5261; rather, such limited motion must at least meet the criteria for a zero-percent rating.  In the alternative, a compensable rating may be granted by virtue of 38 C.F.R. � 4.59.

In VAOPGCPREC 9-2004 (2004), 69 Fed. Reg. 59,990 (2004), the VA General Counsel held that when considering Diagnostic Codes 5260 and 5261 together with 38 C.F.R. � 4.71, a Veteran may receive a rating for limitation in flexion only, limitation of extension only, or separate ratings for limitations in both flexion and extension under Diagnostic Code 5260 (leg, limitation of flexion), and Diagnostic Code 5261 (leg, limitation of extension).  Where a Veteran has both a limitation of flexion and limitation of extension of the same leg, the limitations must be rated separately to adequately compensate for functional loss associated with injury to the leg.

During the relevant period on appeal, the Veteran was afforded three VA examinations in May 2021, September 2021, and December 2021.

The Veteran's VA examination in May 2021 resulted in a diagnosis of bilateral shin splints.  During the examination, the Veteran stated that she had pain in both knees with flare-ups every other day, noting that he walks a lot as a correctional officer.  The Veteran reported experiencing moderate bilateral flare-ups that occur every other day, last all day, are precipitated by prolonged walking and standing, and are alleviated by time.  The Veteran also reported experiencing functional loss due to difficulty with prolonged walking and standing.  On initial examination of the right knee, the range of motion (ROM) was limited with flexion limited to 120 degrees and there was normal extension.  On initial examination of the left knee, ROM was limited with flexion limited to 110 degrees and there was normal extension.  There was evidence of pain in the right knee with active and passive motion.  There was no additional limitation to ROM after observed repetitive use testing or after repeated use over time.  While increased pain was noted, there was no additional limitation to ROM during flare-ups.  No muscle atrophy, ankylosis, or instability was noted.  Bilateral shin splints were noted with treatment for less than 12 months.  No meniscal conditions were noted.  No surgical procedures noted.  No use of assistive devices was noted.

The Veteran's VA examination in September 2021 resulted in a diagnosis of right knee pain.  During the examination, the Veteran stated that he experienced pain with walking about fifty yards.  The Veteran reported experiencing moderate right knee flare-ups that occur two to three times a week, lasts hours, are precipitated by overuse, and is alleviated by rest, ice, and over the counter medications.  The Veteran also reported experiencing functional loss due to inability to run or do stairs, including increased difficulty with uneven terrain.  On initial examination, the Veteran's bilateral knees revealed full ROM.  Pain on right knee flexion noted, specifically on active motion and passive motion, which causes functional loss.  There was no additional limitation to ROM after observed repetitive use.  After repeated use over time for the right knee, due to pain, ROM was reduced with flexion limited to 120 degrees.  There was no additional limitation to ROM after repeated use over time for the left knee.  During flare-ups for the right knee, due to pain, ROM was reduced with flexion limited to 90 degrees.  There was no additional limitation to ROM during flare-ups for the left knee.  Additional factors contributing to the right knee disability included disturbance of locomotion.  Additionally, the Veteran was unable to run or do stairs, as it was very hard to walk on uneven terrain.  No muscle atrophy, ankylosis, or instability was noted.  Bilateral shin splints noted.  No meniscal conditions were noted.  No surgical procedures noted.  The Veteran constantly uses a knee brace for right knee pain as assistive devices.

The Veteran's VA examination in December 2021 resulted in a diagnosis of bilateral shin splints and bilateral tendonitis.  During the examination, the Veteran stated that, over time, his condition had gotten worse, noting that he experienced constant pain on shins and around the kneecap especially the sides of the knees.  The Veteran did not report experiencing flare-ups.  The Veteran also reported experiencing functional loss, due to difficulty with prolonged walking and standing, doing activities with resistance or high impact.  On initial examination, ROM of the bilateral knees was found to be limited with flexion limited to 120 degrees and there was normal extension.  There was evidence of pain with active motion and passive motion, which causes functional loss.  There was no additional limitation to ROM after observed repetitive use testing.  After repeated use over time, due to pain, ROM of the bilateral knees was reduced with flexion limited to 100 degrees.   No muscle atrophy, ankylosis, or instability was noted.  Bilateral shin splints were noted with treatment for less than 12 months.  No meniscal conditions were noted.  No surgical procedures noted.  No use of assistive devices was noted.

The record does not show ankylosis, dislocation of the semilunar cartilage, removal of the semilunar cartilage, limitation of extension, or genu recurvatum.  Therefore, Diagnostic Codes 5256, 5258, 5259, 5261, and 5263 do not provide any basis for a separate or higher rating in this claim.  38 C.F.R. � 4.71a.

The Board finds that the Veteran does not qualify for compensable evaluations for limitation of flexion because flexion has not been limited to 30 degrees on either knee.  See 38 C.F.R. � 4.71a, Diagnostic Codes 5260.  Range of motion was tested in both active and passive motion and in weight-bearing and nonweight-bearing.  See Correia v. McDonald, 28 Vet. App. 158 (2016).  Flexion at examinations has been limited to, at most, 90 degrees for the right knee and 100 degrees for the left knee.  In fact, the Veteran's current ratings for limitation of flexion is based on 38 C.F.R. � 4.59, as his range of flexion in the right knee is not considered compensable under the applicable Diagnostic Code, although the pain he experiences causes sufficient impairment to support his current bilateral 10 percent disability ratings.  Thus, the Board finds that there is no additional uncompensated compensable limitation of motion that can serve as a basis for a higher rating for limited motion with pain.  An evaluation in excess of 10 percent is therefore not available under Diagnostic Codes 5010 or 5260 for either knee.  See 38 C.F.R. � 4.71a.

With regard to shin splints under Diagnostic Code 5262.  The May 2021, September 2021, and December 2021 VA examination reports diagnose the Veteran with bilateral shin splints.  The May 2021 and December 2021 VA reports found that the bilateral shin splints required treatment for less than 12 months.  However, the criteria for a compensable rating under Diagnostic Code 5262, which requires treatment for no less than 12 months, have not been met for shin splints.  Therefore, disability ratings under Diagnostic Code 5262 are not currently warranted.

Regarding the Veteran's right knee instability, the Board notes the earlier decision restoring the 10 percent disability rating for right knee instability.  However, the Board finds that there was in sufficient medical evidence supporting a claim for a disability rating in excess of 10 percent for right knee instability.  More specifically, while September 2021 examination did reveal constant use of a brace due to right knee pain, such was not shown in his subsequent examination in December 2021 and was otherwise not demonstrated, as opposed to more frequent findings of no instability or use of assistance devices.  Consequently, the Board must conclude that this is evidence of not more than slight disability under the previous version and a lack of the evidence of persistent instability and prescribed assistive device or brace required for a 20 percent rating under the new version of DC 5257.

Accordingly, the Board concludes that the most persuasive and probative evidence is against a finding that the Veteran is entitled to higher disability ratings for his bilateral knee disabilities based on limitation of ROM for flexion, under Diagnostic Code 5260; for shin splints, and for a right knee instability, under Diagnostic Code 5257.

REASON FOR REMAND

5. Entitlement to service connection for a lumbar spine disability is remanded.

The initial question for the Board is whether the Veteran has a current disability.  The presence of a current disability is fundamental to any successful claim of service connection, and in the absence of a current disability, a claim must be denied.  See Brammer v. Derwinski, 3 Vet. App. 223 (1992).

The Veteran was not afforded a VA examination during the relevant period on appeal.  Additionally, the medical evidence available at the time of the February 2022 rating decision did not reveal an impairment of the lumbar spine.

However, the Board notes that the Veteran provided a January 2022 lay statement asserting experiencing pain in his lumbar spine.  The Board finds that remand is necessary to obtain a new VA examination.  Pain that causes functional impairment can be considered a disability.  Saunders v. Wilkie, 886 F.3d 1356 (Fed. Cir. 2018).  As such, remand is necessary to examine the Veteran for pain that causes functional impairment and consider the lay statements from the Veteran.

The matter is REMANDED for the following action:

The Veteran must be afforded a VA examination by a new examiner with appropriate expertise to determine the nature and etiology of the Veteran's claimed lumbar spine disability.  Any and all studies, tests, and evaluations that are deemed necessary should be performed.  The claims folder, including a copy of this remand, should be reviewed by the examiner.  The examination report should note review of these records, and the VA and private treatment records.  The examiner should then:

(a) Identify any and all disabilities relating to the Veteran's lumbar spine.

(b) For the Veteran's lumbar spine, provide an opinion considering whether it is approximately as likely as not (likelihood is at least approximately balanced or nearly equal, if not higher) proximately due to or the result of any incident of the Veteran's service or due to a service-connected disability.

(c) If the Veteran's reported lumbar spine pain is not found to be a manifestation of any disability, please describe the functional impairment resulting from the Veteran's lumbar spine pain.  In doing so, the examiner is requested, to the extent possible, to describe any and all effects of the Veteran's lumbar spine pain on his ability to stand, walk, run, and maintain balance.

Michael J. Skaltsounis

Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board	A.R. Montalvo, 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.


judge_norm: B D WATSON

judge_role: Veterans Law Judge

disposition: granted

condition: back

disposition: remanded

text:
Citation Nr: A25002000
Decision Date: 01/08/25	Archive Date: 01/08/25

DOCKET NO. 230628-357885
DATE: January 8, 2025

ORDER

Restoration of the 10 percent rating for a lumbar spine disability (previously claimed as lumbosacral strain) is granted.

REMANDED

Entitlement to a rating in excess of 10 percent for a lumbar spine disability (previously claimed as lumbosacral strain) is remanded.

FINDING OF FACT

1. The VA failed to show that the Veteran's lumbar spine disability had improved sufficiently for an actual improvement in the Veteran's ability to function under the ordinary conditions of life and work.

CONCLUSION OF LAW

1. The reduction in the disability rating for a lumbar spine disability from 10 percent to a noncompensable rating was not proper. 38 U.S.C. �� 1155; 38 C.F.R. �� 3.105 (e), 3.343 (a), 3.344.

REASONS AND BASES FOR FINDING AND CONCLUSION

The Veteran served on active duty in the United States Air Force from August 2015 to December 2017. This matter comes to the Board of Veterans' Appeals (Board) from a July 2022 rating decision issued by a Regional Office (RO) of the Department of Veterans Affairs (VA).

In the June 2023 VA Form 10182, Decision Review Request: Board Appeal (Notice of Disagreement), the Veteran elected the Direct Review docket. Therefore, the Board may only consider the evidence of record at the time of the July 2022 agency of original jurisdiction (AOJ) decision on appeal. 38 C.F.R. � 20.301. Any evidence submitted after the AOJ decision on appeal cannot be considered by the Board. 38 C.F.R. �� 20.300, 20.301, 20.801.

If the Veteran would like VA to consider any evidence that was submitted that the Board could not consider, the Veteran may file a Supplemental Claim (VA Form 20-0995) and submit or identify this evidence. 38 C.F.R. � 3.2501. If the evidence is new and relevant, VA will issue another decision on the claim, considering the new evidence in addition to the evidence previously considered. Id. Specific instructions for filing a Supplemental Claim are included with this decision.

Restoration of the 10 percent rating for a low back condition is granted.

As discussed below, there is conflicting evidence regarding the best diagnosis for the Veteran's disability. Therefore, the Board has recharacterized the issue on appeal as a lumbar spine disability, rather than its previous characterization of lumbosacral strain. Clemens v. Shinseki, 23 Vet. App. 1 (2009).

The Veteran attempted to file a service connection claim for a low back condition under the Benefits Delivery at Discharge program in October 2017, while he was still in active-duty service. That claim was rejected for procedural reasons. See October 2017 claim; November 6, 2017 VA correspondence to Veteran.

The Veteran left active-duty service in December 2017. That same month, the Veteran filed a claim for service connection for a low back condition. The VA arranged a February 2018 back examination, and then granted the claim in a February 2018 rating decision, assigning a 10 percent rating for lumbosacral strain.

The Veteran filed a March 2022 claim seeking an increased rating for lumbosacral strain. The VA arranged a March 2022 back examination, which stated that the Veteran's back conditions were best diagnosed as degenerative arthritis and degenerative disc disease, instead of lumbosacral strain. The VA then obtained a June 2022 medical opinion which stated that the Veteran's lumbosacral strain had resolved by 2019, and that the degenerative arthritis and degenerative disc disease were not a progression of lumbosacral strain.

The VA issued the July 2022 rating decision on appeal, which reduced the Veteran's lumbosacral strain to a noncompensable rating. The July 2022 rating decision discussed both the range of motion testing reported in the March 2022 examination, and the June 2022 opinion that the Veteran's degenerative arthritis and degenerative disc disease were not a progression of lumbosacral strain.

The Veteran appealed the July 2022 rating decision, seeking reinstatement of the 10 percent rating for lumbosacral strain, and continuing to seek an increased rating.

The VA must fulfill certain procedural requirements before implementing a rating reduction. The Board will not discuss those requirements in this decision, because the Board ultimately concludes that the VA did not meet its burden of proof to show that the Veteran's disability had improved.

The burden is on VA to justify a reduction in a rating. See Brown v. Brown, 5 Vet. App. 413 (1993). To do so, the VA must show that an improvement in a disability has actually occurred, and that such improvement actually reflects an improvement in the Veteran's ability to function under the ordinary conditions of life and work. Brown v. Brown, 5 Vet. App. 413 (1993); 38 C.F.R. �� 4.1, 4.2, 4.10, 4.13; 38 C.F.R. � 3.344 (c) (authorizing reduction of a rating in effect for less than five years on the basis of examination disclosing improvement).

Examinations less full and complete than those on which the original rating was authorized may not be used as the basis of reduction. Ratings for diseases subject to temporary or episodic improvement, such as psychiatric impairments, will not be reduced on any one examination, except in those instances where all the evidence of record clearly warrants the conclusion that sustained improvement has been demonstrated. 38 C.F.R. � 3.344 (a). Further, if the VA examination report justifying the rating reduction is inadequate, the reduction cannot be upheld. See Tucker v. Derwinski, 2 Vet. App. 201 (1992) (holding that the failure of the examiner in that case to review the claims file rendered the reduction decision void ab initio).

As stated above, the March 2022 examination noted diagnoses of degenerative arthritis and degenerative disc disease, instead of lumbosacral strain. The examiner also reported normal range of motion testing results, although the examiner also reported pain on all directions of range of motion. The VA generally considers painful range of motion to be a reduction of the range of motion. An examination report stating that the Veteran has full range of motion and also painful range of motion requires explanation, because those findings are ordinarily contradictory. The March 2022 examiner did not explain these contradictory findings. The Board therefore finds the March 2022 examination inadequate for adjudication.

The June 2022 opinion concluded that the Veteran's degenerative arthritis and degenerative disc disease were not progressions of his prior lumbosacral strain. The examiner explained that there were signs of arthritis and lumbosacral strain in a June 2019 MRI and a March 2022 X-ray. The examiner stated that the Veteran's lumbosacral strain had resolved, and that degenerative arthritis and degenerative disc disease were separate conditions from lumbosacral strain, and "due to aging" rather than due to military service.

The Veteran was 26 years old when the June 2019 MRI was conducted, and 28 years old when the June 2022 examiner offered his opinion. The examiner did not state what evidence of degenerative arthritis or degenerative disc disease a person in their twenties would typically show during such imaging, or how he concluded that such evidence had no connection to the Veteran's continuous symptoms and treatment for back pain since leaving active-duty service in December 2017.

The VA's regulations note that "different examiners, at different times, will not describe the same disability in the same language." 38 C.F.R. � 4.2. The February 2018 examiner noted that there were no imaging results available for his review, and offered a diagnosis based on the records available. The March 2022 and June 2022 examiners had the benefit of reviewing imaging that was conducted after the February 2018 examination. The evidence clearly shows that the Veteran has had symptoms of a lower back disability, however diagnosed, continually since he left active-duty service in December 2017. The June 2022 examiner's explanation states that the previous diagnosis of lumbosacral strain had resolved by the time imaging was performed in 2019; and further that the Veteran had developed degenerative disc disease and/or degenerative arthritis by 2019 that was not present when the Veteran left active-duty service less than two years before in December 2017. The examiner did not explain how he reached this conclusion. A conclusory and unexplained medical opinion is not adequate for adjudication purposes. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008) (most of the probative value of a medical opinion comes from its reasoning).

The VA's reliance on an inadequate examination and an inadequate opinion means that it did not meet its burden to show that the reduction was justified. See Brown v. Brown, 5 Vet. App. 413 (1993). Therefore, the reduction is void ab initio and the previous 10 percent rating for lumbosacral strain is restored.

REASONS FOR REMAND

Entitlement to a rating in excess of 10 percent for a lumbar spine disability (previously claimed as lumbosacral strain) is remanded.

The VA issued the rating reduction on appeal as part of its adjudication of the Veteran's claim for an increased rating for lumbosacral strain. As discussed above, the Board finds the March 2022 rating decision to be inadequate, and it was a pre-decisional duty to assist error to rely on its results in adjudicating the Veteran's claim for an increased rating. Further, the Board's restoration of the Veteran's 10 percent rating renders the RO's adjudication of the Veteran's claim void ab initio.

The VA has a statutory duty to adjudicate Veteran's claims. Therefore, the claim must be remanded to correct the pre-decisional duty to assist error and to fulfill the statutory duty to adjudicate the Veteran's claim.

This matter is REMANDED for the following action:

1. Schedule the Veteran for an examination by an appropriate clinician to determine the current severity of the service-connected lumbar spine disability.  The examiner should provide a full description of the disability and report all signs and symptoms necessary for evaluating the Veteran's disability under the rating criteria.

In so doing, the examiner must test the Veteran's active motion, passive motion, and pain with weight-bearing and without weight-bearing.  If it is not possible to provide a specific measurement without speculation, the examiner must state whether the need to speculate is due to a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts), a deficiency in the record (additional facts are required), or the examiner (does not have the knowledge or training).

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?

In so doing, the examiner must attempt to elicit information regarding the severity, frequency, and duration of any flare-ups, and the degree of functional loss during flare-ups.  If it is not possible to provide a specific measurement based on direct observation, the examiner should provide an estimate, if at all possible, of the additional impairment due to flare-ups based on the other evidence of record and the Veteran's statements.  If it is not possible to provide a specific measurement without speculation, the examiner must state whether the need to speculate is due to a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts), a deficiency in the record (additional facts are required), or the examiner (does not have the knowledge or training).

B. D. WATSON

Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board	Sparks, Robert S.

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.


judge_norm: ARDIE A BLAND

text:
Citation Nr: A25003000
Decision Date: 01/14/25	Archive Date: 01/14/25

DOCKET NO. 230613-354286
DATE: January 14, 2025

REMANDED

Entitlement to service connection for obstructive sleep apnea is remanded.

REASONS FOR REMAND

The Veteran served on active duty from June 1986 to June 1989, from September 1995 to March 1996, from March 2004 to May 2005, and from June 2010 to July 2011.

The rating decision on appeal was issued in April 2023 and constitutes an initial decision; therefore, the modernized review system, also known as the Appeals Modernization Act (AMA), applies.

In the VA Form 10182, Decision Review Request: Board Appeal (Notice of Disagreement) (NOD), the Veteran elected the Direct Review option; therefore, the Board may only consider the evidence of record at the time of the agency of original jurisdiction (AOJ) decision on appeal. 38 C.F.R. � 20.301.

1. Entitlement to service connection for obstructive sleep apnea is remanded.

The Veteran seeks service connection for obstructive sleep apnea (OSA).

The Veteran was afforded a VA examination in March 2023 where the VA examiner opined that the Veteran's sleep apnea was less likely than not caused by the indicated toxic exposure risk activity(ies), after considering the total potential exposure through all applicable military deployments of the Veteran and the synergistic, combined effect of all toxic exposure risk activities of the Veteran.

The examiner stated that the Veteran was obese, and his age was 54 at the time of his sleep apnea diagnosis, which are the main risk factors for the development of OSA and is as least as likely the cause of the Veteran's sleep apnea. The examiner noted that there are no definitive studies linking prior exposure to smoke, toxins, fine particulate matter with subsequent development of OSA.

After review, the Board finds that although the VA examiner stated that there are no studies linking prior exposure to smoke, toxins, fine particulate matter with subsequent development of OSA, the opinion is inadequate. The opinion is conclusory, and the Board finds that the VA examiner did not consider the total potential toxic exposure through all applicable military deployments; and the synergistic, combined effect of all toxic exposure risk activities.

In addition, the Board finds the VA examiner's opinion is inadequate because while it indicated that there is a relationship between obesity and sleep apnea, it failed to address whether obesity is an "intermediate step" between one or more of the Veteran's service-connected disabilities and his diagnosed sleep apnea. Marcelino v. Shulkin, 29 Vet. App. 155 (2018); Walsh v. Wilkie, 32 Vet. App. 300 (2020); see also VAOPGCPREC 1-2017 (while obesity is not a disability subject to service connection, obesity may be an "intermediate step" between a service-connected disability and a current disability that may be service connected on a secondary basis under 38 C.F.R. � 3.310 (a)).

This inadequacy constitutes a pre-decisional duty to assist error that must be corrected on remand. 38 C.F.R. � 20.802(a); see Barr v. Nicholson, 21 Vet. App. 303, 311-12 (2007) (holding that once VA undertakes an examination, it must provide an adequate one).

The matters are REMANDED for the following action:

1. Schedule the Veteran for a VA examination with an appropriate clinician to determine the nature and etiology of the Veteran's obstructive sleep apnea.

The examiner must address whether it is at least as likely as not that the Veteran's obstructive sleep apnea is related to his TERA? In answering this question, the clinician must consider the following: 1) the total potential exposure through all applicable deployments; and 2) the synergistic, combined effect of all toxic exposure risk activities of the Veteran.

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?

The examiner must address whether obesity is an "intermediate step" between a service-connected disability (asthma and/or back disability) and the Veteran's obstructive sleep apnea. In doing so, the examiner should address whether it is at least as likely as not that (i) a service-connected disability or disabilities caused or aggravated the Veteran's obesity; (ii) if so, whether the obesity or the aggravation of obesity as a result of a service-connected disability or disabilities was a substantial factor in causing sleep apnea; and (iii) whether the sleep apnea would not have occurred but for the obesity that was caused or aggravated by the service-connected disability or disabilities.

The examiner is asked to explain the reasons behind any opinions expressed and conclusions reached. The examiner is reminded that the term "as likely as not" does not mean "within the realm of medical possibility," but rather that the likelihood is at least approximately balanced or nearly equal, if not higher. Note that the lack of documented treatment in service, or a long period after, while probative, cannot serve as the sole basis for a negative finding. The Veteran's lay contentions must be considered and weighed in making the determination.

Ardie A. Bland

Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board	M.D.

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.


judge_norm: T RAYMOND

disposition: dismissed

text:
Citation Nr: A25004000
Decision Date: 01/16/25	Archive Date: 01/16/25

DOCKET NO. 210917-277162
DATE: January 16, 2025

ORDER

The appeal concerning entitlement to payment of the cost of non-Department of Veterans Affairs (VA) medical services provided by Golden Years Companion Care on June 9, 2019, through June 30, 2019, is dismissed.

FINDING OF FACT

While this appeal was pending, the Agency of Original Jurisdiction (AOJ) administratively approved the Appellant's claim for payment of the cost of medical care provided to the Veteran on June 9, 2019, through June 30, 2019.

CONCLUSION OF LAW

The issue of entitlement to payment of the cost of non-VA medical services provided on June 9, 2019, through June 30, 2019, has been resolved in full by administrative action; the appeal is moot. 38?U.S.C. �?7105; 38?C.F.R. � 20.801.

REASONS AND BASES FOR FINDING AND CONCLUSION

The Appellant is a non-VA healthcare provider that furnished medical care services to the Veteran.

In September 2021, the Board of Veterans' Appeals (Board) received a VA Form 10182, Decision Review Request: Board Appeal electing the Direct review docket to review a decision issued by a VA Medical Center.???

The Appellant's claim for payment of the cost of non-VA medical care provided to the Veteran from June 9, 2019, through June 30, 2019, was administratively approved while this appeal was pending. In an October 2022 letter, the AOJ advised the Appellant that June 9, 2019, through June 30, 2019, episode of care was approved after secondary review. The letter explained that the claim related to this episode of care would be processed accordingly and the Appellant would receive an explanation of benefits upon completion.???

The administrative action for the June 9, 2019, through June 30, 2019, episode of care at issue in this appeal constitutes a reversal of the prior denial and a full grant of the benefit sought in this appeal.? No determination remains with which the Appellant disagrees, and the appeal is therefore dismissed. 38?U.S.C. �?7105(d).

(Continued on the next page)

?

If for some reason the Appellant has not received payment or reimbursement for the claim, they should contact the Office of Community Care (OCC). If a later decision / EOP concerning this episode of care results in payment in an amount disagreeable to the Appellant, they may file a separate / additional appeal of that subsequent decision.

T. RAYMOND

Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board	Robert J. Burriesci, 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.


judge_norm: L M BARNARD

condition: hypertension

text:
Citation Nr: A25005000
Decision Date: 01/21/25	Archive Date: 01/21/25

DOCKET NO. 230505-379464
DATE: January 21, 2025

REMANDED

Entitlement to service connection for hypertension is remanded.

REASONS FOR REMAND

The appellant was an active member of the Army Reserve from May 1975 to February 2002 and a reserve retiree from March 2002 to January 2011. She served an initial period of active duty for training (ACDUTRA) from December 1975 to April 1976.

This matter comes before the Board of Veterans' Appeals (Board) on appeal from a June 2022 rating decision by the Department of Veterans Affairs (VA). In the May 2023 VA Form 10182, Decision Review Request: Board Appeal (Notice of Disagreement), the Veteran elected the Direct Review docket. The Board notes that a June 2021 Board decision remanded this matter for additional development. For the reasons more fully set out below, the Board finds there was not substantial compliance with its previous directives and a remand is needed to correct this error. See Stegall v. West, 11 Vet. App. 268, 271 (1998).

Therefore, the Board may only consider the evidence of record at the time of the June 2022 agency of original jurisdiction (AOJ) decision on appeal. 38 C.F.R. � 20.301. Any evidence submitted after the AOJ decision on appeal cannot be considered by the Board. 38 C.F.R. �� 20.300, 20.301, 20.801.

However, because the Board is remanding the claim of entitlement to service connection for hypertension, any evidence the Board could not consider will be considered by the AOJ in the adjudication of those claims. 38 C.F.R. � 3.103(c)(2)(ii).

Entitlement to service connection for hypertension is remanded.

The Veteran contends that her current hypertension had its onset during service or in the alternative was aggravated beyond its natural progression by service.

By way of brief background, the Veteran initially applied for entitlement to service connection in October 2016. In October 2018, the appellant opted into the modernized review system, also known as the Appeals Modernization Act (AMA), by submitting a Rapid Appeals Modernization Program (RAMP) election form and selecting the supplemental claim lane.  The agency of original jurisdiction (AOJ) issued a RAMP supplemental claim decision in January 2019, which is the decision on appeal. In February 2019, the appellant used an outdated RAMP Selection form to seek additional review under RAMP and did not select the type of review desired.  Ina March 2021 VA Form 10182, Decision Review Request: Board Appeal, the appellant elected the Direct Review docket. The appellant noted that the document was late due to illness and COVID-19. In a June 2021 Board decision, the Board found there was good cause to grant an extension of time to the Veteran to file her appeal and considered the same on the merits.

The June 2021 Board decision found that the Veteran's record showed a current diagnosis of hypertension.   The Veteran's private health records are replete with diagnoses of essential hypertension.  In addition, the appellant's Reserve treatment records indicate that she had elevated blood pressure readings in 1987, 1991, 1992, and 1998.

The June 2021 Board decision noted, the appellant was an active member of the Army Reserve from May 1975 to February 2002.  As such, service connection may only be granted for hypertension resulting from disease incurred or aggravated while performing ACDUTRA.  The crux of this claim involves a determination of when hypertension had its clinical onset and then a determination of whether that onset date occurred before, during or after any period of ACDUTRA. Accordingly, the June 2021 Board decision remanded the Veteran's claim to determine what dates the Veteran had active service in the reserves and had its onset during such a period or whether hypertension that existed prior to a period of ACDUTRA was aggravated during any subsequent period.

The June 2021 Board decision asked the AOJ to seek additional information from the Veteran regarding her periods of reserve service, and confirm the same with an appropriate state agency, and then provide those dates to a VA examiner for an opinion.

The Board specifically noted that actual dates of ACDUTRA were needed. While the AOJ secured some pay information related to the Veteran's reserve service, this did not include the Veteran's entire reserve period. Additionally, this pay information was not confirmed with any appropriate state authority. Finally, while another VA examination was conducted, the examiner did not address the Veteran's reserve service and therefore the examination is inadequate for adjudicatory purposes. Given these issues, the Board finds there has not been substantial compliance with its previous directives and remands the issue back to the AOJ for substantial compliance. See Stegall v. West, 11 Vet. App. 268, 271 (1998).

The matters are REMANDED for the following action:

1. Ask the appellant to specifically identify the period (month/year) and her status (ACDUTRA or INACDUTRA) during which she was first diagnosed as having hypertension.

2. After the above development is complete, undertake appropriate action to ensure that all the Veteran's Army National Guard STRs and SPRs have been obtained and verify all periods of ACDUTRA and INACDUTRA during her National Guard service, to include contacting the Veteran's Army National Guard Unit, the State Adjutant General of Tennessee, or any other appropriate sources. Follow the procedures of 38 C.F.R. � 3.159 regarding requesting records from Federal facilities. All records and/or responses should be associated with the claims file.

Actual dates of ACDUTRA are required.

3. Provide the verified information received from the service department and/or other appropriate entity to an appropriate clinician for an opinion.  The examiner must review the claims file.

The clinician is asked to provide an opinion as to:

(a.) whether the appellant's hypertension at least as likely as not had its onset during a period of ACDUTRA or is at least as likely as not related to a period of ACDUTRA, to include any elevated blood pressure readings noted during that period;

(b.) whether the appellant's hypertension at least as likely as not pre-existed a period of ACDUTRA and increased in severity during a period of ACDUTRA; and if so, whether such increase was due to the natural progress of the disease.

L. M. BARNARD

Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board	A. M. Gallino, 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.


judge_norm: MICHELLE L KANE

disposition: vacated

condition: eye

condition: tinnitus

disposition: denied

text:
Citation Nr: A25006000
Decision Date: 01/23/25	Archive Date: 01/23/25

DOCKET NO. 220915-278378
DATE: January 23, 2025

ORDER

The December 31, 2024 Board decision is vacated as to dismissal of the issue of entitlement to an initial compensable rating for the service-connected bilateral dry eye syndrome.

The December 31, 2024 Board decision is vacated as to dismissal of the issue of entitlement to an initial rating higher than 10 percent for the service-connected tinnitus.

Entitlement to an initial 20 percent rating for the service-connected bilateral dry eye syndrome under Diagnostic Code 6025 is granted.

Entitlement to an initial rating higher than 10 percent for the service-connected tinnitus is denied.

FINDINGS OF FACT

1. On December 21, 2024, the Board erroneously dismissed the appeal for an initial compensable rating for the service-connected bilateral dry eye syndrome as an impermissible concurrent election; however, upon further review, the Agency of Original Jurisdiction (AOJ) addressed the issue of rating in the January 2022 higher level review rating decision, and the Veteran properly appealed the decision in the September 2022 VA Form 10182

2. On December 21, 2024, the Board erroneously dismissed the appeal for an initial higher rating for the service-connected tinnitus as a failure to comply with claims processing rules; however, further review shows that the AOJ addressed the issue of rating in the January 2022 higher level review rating decision, and the Veteran properly appealed the decision in the September 2022 VA Form 10182.

3. The Veteran's dry eye syndrome is due to a lacrimal apparatus disorder and affects both eyes.

4. The Veteran's tinnitus is assigned the maximum available schedular rating for the entire appeal period.

CONCLUSIONS OF LAW

1. The criteria for partial vacatur of the Board's December 31, 2024 decision dismissing the appeal for an initial compensable rating for the service-connected bilateral dry eye syndrome have been met. 38 U.S.C. � 7104; 38 C.F.R. � 20.1000.

2. The criteria for partial vacatur of the Board's December 31, 2024 decision dismissing the appeal for an initial higher rating for the service-connected tinnitus have been met. 38 U.S.C. � 7104; 38 C.F.R. � 20.1000.

3. The criteria for an initial 20 rating for the service-connected bilateral dry eye syndrome have been met. 38 U.S.C. �� 1155, 5107; 38 C.F.R. �� 4.1, 4.3, 4.7, 4.85, 4.79, Diagnostic Code 6025.

4. The criteria for an initial rating higher than 10 percent for the service-connected tinnitus have not been met. 38 U.S.C. �� 1155, 5107; 38 C.F.R. �� 4.1, 4.3, 4.7, 4.85, 4.87, Diagnostic Code 6260.

REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

The Veteran served on active duty from March 1996 to March 2000 and from January 2009 to January 2010.

In the September 2022 VA Form 10182, Decision Review Request: Board Appeal (Notice of Disagreement), the Veteran elected the Direct Review docket.

Regarding the appeal for a higher rating for bilateral dry eye syndrome, the Board may only consider the evidence of record at the time of the December 2020 AOJ decision on appeal that was subject to higher level review in January 2022. 38 C.F.R. � 20.301. Any evidence submitted after the AOJ decision on appeal cannot be considered by the Board. 38 C.F.R. �� 20.300, 20.301, 20.801.

Regarding the appeal for a higher rating for tinnitus, the Board may only consider the evidence of record at the time of the March 2021 AOJ decision on appeal that was subject to higher level review in January 2022. 38 C.F.R. � 20.301. Any evidence submitted after the AOJ decision on appeal cannot be considered by the Board. 38 C.F.R. �� 20.300, 20.301, 20.801.

Here, VA medical records were created and added to the claims file after the rating decisions on appeal, and private treatment records and VA examinations were added to the claims file after the rating decisions on appeal. Again, the Board is bound by the AMA evidentiary rules and can only consider evidence of record at the time of the relevant decisions, as described above.

If the Veteran would like VA to consider any evidence that was submitted that the Board could not consider, the Veteran may file a Supplemental Claim (VA Form 20-0995) and submit or identify this evidence. 38 C.F.R. � 3.2501. If the evidence is new and relevant, VA will issue another decision on the claim, considering the new evidence in addition to the evidence previously considered. Id. Specific instructions for filing a Supplemental Claim are included with this decision.

1. The December 31, 2024 Board decision is vacated as to the dismissal of the issue of entitlement to an initial compensable rating for the service-connected bilateral dry eye syndrome.

2. The December 31, 2024 Board decision is vacated as to the dismissal of the issue of entitlement to an initial rating higher than 10 percent for the service-connected tinnitus.

The Board may vacate an appellate decision at any time upon request of the appellant or his or her representative, or on the Board's own motion, when an appellant has been denied due process of law or when benefits were allowed based on false or fraudulent evidence. See 38 C.F.R. � 20.1000.

On December 31, 2024, the Board issued a decision that, in part, dismissed the appeal for an initial compensable rating for the service-connected bilateral dry eye syndrome as an impermissible concurrent election. Upon further review, the Board finds that the AOJ addressed the issue of rating in the January 2022 higher level review rating decision, even though it was not listed as an issue, and the Veteran properly appealed the decision in the September 2022 VA Form 10182.

In the same decision, the Board dismissed the appeal for an initial higher rating for the service-connected tinnitus as a failure to comply with claims processing rules.  Further review shows that the AOJ addressed the issue of rating in the January 2022 higher level review rating decision, even though it was not listed as an issue, and the Veteran properly appealed the decision in the September 2022 VA Form 10182.

Accordingly, the Board's December 31, 2024 dismissals as to the appeals for higher ratings for the service-connected bilateral dry eye syndrome and the service-connected tinnitus are vacated on the Board's own motion. Although the Veteran is within the 120 day appeal period, a search of pending dockets on the website for the U.S. Court of Appeals for Veterans Claims does not show that a Notice of Appearance has been filed with respect to that Board decision, so vacatur is appropriate at this time.

 The Board will make de novo determinations herein on the claims.

3. Entitlement to an initial 20 percent rating for the service-connected bilateral dry eye syndrome under Diagnostic Code 6025 is granted.

The Veteran seeks a higher rating for her bilateral dry eye syndrome. Her condition is currently rated at 0 percent by analogy under Diagnostic Code 6034, which governs pterygium. There is no diagnostic code that explicitly governs dry eye syndrome. See generally 38 C.F.R. � 4.79, Diagnostic Codes 6000-91.

While the appeal was pending, VA revised the rating criteria that evaluates eye disorders, effective May 3, 2018. See 89 Fed. Reg. 15,316 (Apr. 10, 2018). When regulations are revised during an appeal, the Board is required to consider the claim under both the former and revised schedular criteria and to apply the more favorable regulation. The new rating criteria, however, may be applied only prospectively from the effective date of the revision unless it specifically permits retroactive application (which it does not here). See Kuzma v. Principi, 341 F.3d 1327 (Fed. Cir. 2003).

Prior to the revision, Diagnostic Code 6034 provided that pterygium is to be evaluated based on visual impairment, disfigurement, conjunctivitis, etc., depending on the particular findings. See 38 C.F.R. � 4.79, Diagnostic Code 6034 (2018).

Under the revised Diagnostic Code 6034, pterygium is to be evaluated under the General Rating Formula for Diseases of the Eye, disfigurement, conjunctivitis, etc., depending on the findings, and combined in accordance with � 4.25. See 38 C.F.R. � 4.79, Diagnostic Code 6034 (2024). The General Rating Formula rates based on either visual impairment due to a particular condition or on incapacitating episodes, whichever results in a higher evaluation.

Relevantly, Diagnostic Code 6025 governs lacrimal apparatus disorders and was unchanged by the criteria revision. A 10 percent rating is warranted for unilateral lacrimal apparatus disorder and a 20 percent rating is warranted for a bilateral lacrimal apparatus disorder. 38 C.F.R. � 4.79, DC 6025. Bilateral lacrimal apparatus disorders are assigned a 20 percent rating. See id. Diagnostic Code 6025 was unchanged by the schedular criteria revision.

Based on the Veteran's current impairment and symptoms, the Board finds that it is unnecessary to discuss other diagnostic codes in detail.

Turning to the evidence, the Veteran complained of blurry vision and vision problems in May 2014. She denied blurred vision and double vision in a December 2018 private treatment visit for POTS. Her VA treatment records are negative for vision impairment, conjunctivitis, or other relevant diagnoses. In a March 2020 rheumatology visit, it was noted that her vision is "correctable" but intermittently blurred and she experiences dry eyes.

She was afforded a VA examination in December 2020 and was diagnosed with bilateral dry eye syndrome. Her uncorrected distance vision was 20/200 bilaterally and her corrected distance vision was 20/20 or better bilaterally. Her uncorrected near vision was 20/40 bilaterally and her corrected near vision was 20/20 or better bilaterally. There was no afferent pupillary defect present, and the examiner determined she did not have anatomical loss, light perception only, extremely poor vision, blindness of either eye, astigmatism, diplopia, cornea/conjunctiva conditions, glaucoma, uveal tract conditions, lens condition, or retina, macula, vitreous condition, neuro-ophthalmic, ocular neoplasm, trauma/hemorrhage, or other eye condition. A slit lamp examination was abnormal and revealed decreased TBUT for the right and left cornea. The Veteran did not have a documented visual field defect. After examination, the examiner determined the Veteran had dry eye syndrome, that is treated by prescription eye drops, without decrease in visual acuity or other visual impairment. The examiner also concluded the Veteran's eye condition did not cause incapacitating episodes. The examiner indicated that the Veteran's bilateral dry eye syndrome was a disorder of the lacrimal apparatus.

After reviewing the evidence, the Board finds that a 20 percent rating is warranted under Diagnostic Code 6025. The assignment of a particular diagnostic code is "completely dependent on the facts of a particular case" and the Board can choose the diagnostic code to apply so long as it is supported by reasons and bases as well as the evidence. See 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, diagnosis, and demonstrated symptomatology. Any change in diagnostic code by a VA adjudicator must be specifically explained. See Pernorio v. Derwinski, 2 Vet. App. 625, 629 (1992). Here, VA's rating schedule does not explicitly contemplate dry eye syndrome; however, lacrimal system conditions are governed by Diagnostic Code 6025. Per the VA disability benefits questionnaire report from 2020, dry eye syndrome is a condition of the lacrimal system. Because the VA examiner diagnosed the Veteran with a lacrimal apparatus disorder, the Board finds that the Veteran's condition is more appropriately contemplated by Diagnostic Code 6025. This conclusion is further supported by VA's comments when proposing to revise the rating criteria for eye conditions, where it was noted that Diagnostic Code 6025 pertains to conditions of the lacrimal system, which consists of the lacrimal glands and the nasolacrimal duct, and which is responsible for the secretion and drainage of tears and, when properly functioning, serves to moisten, lubricate, and protect the surface of the eye. See 80 Fed.Reg. 32513 (June 9, 2015).

The Board finds that a 20 percent rating is warranted for the Veteran's bilateral dry eye syndrome under Diagnostic Code 6025 as a bilateral lacrimal apparatus disorder. This is the maximum available rating for a disorder of the lacrimal apparatus. See 38 C.F.R. � 4.79, DC 6025.

A higher rating is not warranted under another diagnostic code or the General Rating Formula because the competent evidence does not show visual impairment due to the Veteran's dry eye syndrome, incapacitating episodes, conjunctivitis, or other impairment that would warrant a higher rating. Accordingly, a higher initial 20 percent rating is warranted.

As the Veteran has consistently claimed symptoms of dry eye syndrome since May 2014 and she was not afforded a VA eye examination until December 2020, the Board finds that the 20 percent rating is warranted for the entire appeal period, resolving any doubt in her favor.

4. Entitlement to an initial rating higher than 10 percent for the service-connected tinnitus is denied.

The Veteran seeks a rating higher than 10 percent for her tinnitus. Tinnitus is rated 38 C.F.R. � 4.87, Diagnostic Code 6260, which allows only a single 10 percent rating, whether the sound is perceived as being in one ear, both ears, or in the head. Id. Note (2). The Veteran is therefore in receipt of the maximum rating available for tinnitus under the schedular rating criteria.

The symptomatology and impairment caused by her tinnitus are specifically contemplated by the schedular rating criteria. Schafrath v. Derwinski,?1?Vet. App.?589, 593?(1991). The Veteran has not contended, and the evidence does not show, that the schedular rating criteria is inadequate to rate her condition. See Doucette v. Shulkin,?28?Vet. App.?366, 369-70?(2017). The Board is not obligated to analyze whether referral for extraschedular consideration is warranted if neither specifically sought by the Veteran nor reasonably raised by the facts. See id. Accordingly, the Board finds that a higher rating is not available for the service-connected tinnitus, and the claim is denied.

MICHELLE L. KANE

Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board	M. Lavan

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.


judge_norm: THOMAS H O'SHAY

text:
Citation Nr: A25007000
Decision Date: 01/27/25	Archive Date: 01/27/25

DOCKET NO. 221123-298832
DATE: January 27, 2025

ORDER

Service connection for bilateral tinnitus is denied.

FINDING OF FACT

The Veteran's tinnitus is not related to his in-service exposure to noise, did not onset during service or his first post-service year, and did not manifest continuity of symptomatology ever since.

CONCLUSION OF LAW

The criteria for service connection for bilateral tinnitus have not been met.  38 U.S.C. �� 101, 1101, 1110, 1112, 1113, 1137, 1154, 5107; 38 C.F.R. �� 3.2, 3.102, 3.104, 3.303, 3.307, 3.309, 4.87 Diagnostic Code 6260, 20.801.

REASONS AND BASES FOR FINDING AND CONCLUSION

The Veteran served on active duty from December 1996 to December 2000 and from January 2007 to March 2013.  This matter stems from a September 2022 rating decision which denied service connection for bilateral tinnitus.  A higher-level review of that determination was requested by the Veteran.  Another rating decision thus was issued in November 2022.  It also denied service connection for bilateral tinnitus.

In appealing to the Board of Veterans' Appeals (Board), the Veteran requested the direct review docket.  Only the evidence of record at the time of the September 2022 rating decision is for consideration by the Board herein given the procedural history of this matter.  38 U.S.C. � 7113(a); 38 C.F.R. � 20.301.  Any evidence added to the claims file thereafter cannot be considered by the Board.  38 C.F.R. �� 20.300, 20.301, 20.801.  If the Veteran would like such evidence to be considered by VA, he may file a supplemental claim (following the instructions included herein) and resubmit or identify it.  38 C.F.R. � 3.2501.

Service Connection

Direct service connection is established when there is a current disability, an injury or disease incurred or aggravated during service, and a nexus between them.  38 U.S.C. � 1110; 38 C.F.R. � 3.303(a); Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009).  It also is established for a disease diagnosed after separation if incurred during service.  38 C.F.R. � 3.303(d).

For veterans with qualifying service, service connection is presumed for chronic diseases absent an intercurrent cause.  38 U.S.C. �� 1101, 1112, 1113, 1137; 38 C.F.R. �� 3.303(b), 3.307, 3.309; Walker v. Shinseki, 708 F.3d 1331, 1338 (Fed. Cir. 2013).  The disease must have been chronic during service, manifested to a compensable degree within a specified period after service, or been noted during service or this specified period after service with continuity of symptomatology ever since.  Id.

The claimant is afforded the benefit of the doubt when there is an approximate balance of positive and negative evidence on any given point.  38 U.S.C. � 5107(b); 38 C.F.R. � 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990).  Although all the evidence must be reviewed, only the most relevant evidence must be discussed.  Gonzales v. West, 218 F.3d 1378, 1380-1381 (Fed. Cir. 2000).

Bilateral Tinnitus

The Veteran contends he has bilateral tinnitus as a result of loud noise exposure during his service.  Primarily, he recounts exposure to flight line noise, auxiliary power units (APUs), and jet engines during his first period of service.  He also recounts, however, routinely exposure to gunfire and mortar explosions during his second period of service.  The Veteran additionally contends his bilateral tinnitus is directly connected to his decline in hearing as a result of the aforementioned.  He denies pre- or post-service loud noise exposure.

In both the September 2022 rating decision and the November 2022 rating decision, the agency of original jurisdiction (AOJ) found that the Veteran has tinnitus.  This finding applies to both ears, making the tinnitus bilateral.  The Board is bound by this favorable finding of a current disability unless it is rebutted by clear and unmistakable evidence.  38 C.F.R. �� 3.104(c), 20.801(a).  No such evidence exists here.  Indeed, tinnitus is subjective noise in the ears.  Dorland's Illustrated Medical Dictionary 1956 (31st ed. 2007).  The affected individual, even if a lay person lacking a medical background, thus is competent to diagnose it.  Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372, 1376-1377 (Fed. Cir. 2007); Charles v. Principi, 16 Vet. App. 370, 374 (2002).  It follows that the Veteran is competent to diagnose himself with tinnitus.  His reports further formed the basis for diagnosing tinnitus in VA treatment records beginning in September 2021 and at a November 2021 VA medical examination.

Next, the AOJ found that the Veteran had a qualifying in-service injury during service.  His military occupational specialty (MOS) of aircraft armament systems apprentice during his first period of service was noted as positively associated with loud noise exposure in the September 2022 and November 2022 rating decisions.  The former added that his MOS of service of human resources specialist during his second period of service had a low probability of loud noise exposure.  Other MOSs have stronger likelihoods of exposure, but some exposure is acknowledged even with this MOS, in other words.  Once again, the Board is bound by this favorable finding because there is no clear and unmistakable rebuttal evidence.  38 C.F.R. �� 3.104(c), 20.801(a).  The Veteran's reports concerning in-service loud noise exposure as set forth above indeed are consistent with the circumstances of his service.  38 U.S.C. � 1154(a).  A December 1997 service treatment record further documents his routine exposure to noise greater than 85 dBA.

The only criterion remaining for direct service connection is nexus.  The Veteran clearly believes there is one between his current bilateral tinnitus disability and his in-service noise exposure.  Yet he is not competent to render an opinion in this regard.  Doing so is medically complex, requiring knowledge of the auditory system and how it is impacted by various factors.  Nothing conveys or even suggests the Veteran has received any training to impart him with this knowledge.  Jandreau v. Nicholson, 492 F.3d 1372, 1376-1377 (Fed. Cir. 2007); Kahana v. Shinseki, 24. Vet. App. 428, 435 (2011).  His September 2022 statement that a particular website indicates tinnitus is most often caused by repeated exposure to loud noises also is not sufficient to establish nexus.  Nothing from that website is under consideration as part of the record.  See Bowey v. West, 11 Vet. App. 106, 108-109 (1998) (mere reference to non-VA documents does not incorporate them into the record); Lang v. Wilkie, 971 F.3d 1348, 1353 (2020) (non-VA documents "must normally actually be presented to the VA adjudicator.").

Even if information from the website was for consideration as part of the record, it is not accompanied by a competent medical opinion for service connection.  There indeed are no such opinions.  All indications further are that the information would be general in nature, rather than accounting for the Veteran's specific history.  Establishing a nexus, simply put, requires the latter.  Mattern v. West, 12 Vet. App. 222 (1999); Sacks v. West, 11 Vet. App. 314 (1998); Wallin v. West, 11 Vet. App. 509 (1998).  Turning to competent medical opinions against service connection, only one exists.  It is from the November 2021 VA medical examination; no opinion regarding nexus was rendered at the June 2016 VA medical examination, the only other examination for consideration, because tinnitus was not diagnosed then.  As explanation, the Veteran's tinnitus was deemed unlikely to be a symptom of hearing loss because hearing loss in his left ear has been present since 1997 but he first noticed tinnitus in 2018.  This onset also made it unlikely that his tinnitus was due to in-service loud noise exposure.

The opinion was based on an interview and examination of the Veteran.  It also was based on a review of the claims file, and the supporting explanation is consistent with the other evidence for consideration therein.  This includes service treatment records which are silent for any reports of tinnitus.  To the contrary, these records reflect that the Veteran explicitly denied ringing in his ears in June 1999 and June 2000 during his first period of service as well as in March 2010 during his second period of service.  The other evidence additionally includes an August 2010 VA medical examination explicitly noting no current complaint of tinnitus as well as the June 2016 VA medical examination where he denied tinnitus even after it was defined for him.  Finally, it includes VA treatment records, which contain a review of systems that was negative for tinnitus in February 2018 and as already discussed above a diagnosis of tinnitus to go along with reports of it only as of September 2021.

Next, the opinion was clearly expressed.  It further considered different avenues through which the Veteran's tinnitus may be related to his service (via hearing loss and directly).  While a more thorough supporting explanation would have been helpful, what was provided was reasoned.  All that is necessary for an opinion against service connection like this one lastly is eliminating a nexus to service.  This was done here.  A precise non-service etiology was not identified, but one is not required.  For each of the aforementioned reasons, the opinion is probative.  Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008); Reonal v. Brown, 5 Vet. App. 458, 461 (1993).  A service nexus, in sum, has not been established via the sole medical opinion available or via the Veteran's belief in it.  Direct service connection thus is denied, as the nexus criterion has not been met.  With respect to presumptive service connection, a threshold requirement is qualifying service.  The Veteran here undisputedly meets it.  His service indeed was for over 90 days, all after December 31, 1946, and during the Persian Gulf War.  38 U.S.C. �� 101(33), 1112(a); 38 C.F.R. �� 3.2(i), 3.307(a)(1).

Tinnitus is considered an organic disease of the nervous system and therefore constitutes a chronic disease.  38 U.S.C. � 1101(3); 38 C.F.R. � 3.309(a); Fountain v. McDonald, 27 Vet. App. 258, 272 (2015).  As discussed above, however, service treatment records are silent for reports of tinnitus.  The Veteran also has not recounted having tinnitus despite not reporting it during service.  As such, it was not chronic then.  Tinnitus next did not manifest to a compensable degree within a specified period after service.  That period for organic diseases of the nervous system like tinnitus is one year after service.  38 U.S.C. � 1112(a)(1); 38 C.F.R. � 3.307(a)(3).  Further, simply having tinnitus merits compensation at the lowest rate of 10 percent.  38 C.F.R. � 4.87 Diagnostic Code 6260.  Having tinnitus in the first post-service year, in sum, is sufficient.  Yet this did not occur here.  Tinnitus was not diagnosed between March 2013 when the Veteran separated from his second period of service and March 2014 a year later.

Manifestation without medical diagnosis is possible, especially given the subjective nature of tinnitus and the fact that a lay person is competent diagnose it.  Yet here, the Veteran has not reported tinnitus during his first post-service year.  The aforementioned collectively also means there was no notation of tinnitus during service or his first post-service year.  Continuity of symptomatology ever since finally is not established, given his consistent denials of tinnitus until around September 2021.  This equates with over 8 years after his separation from service.  With none of the three ways for establishing presumptive service connection satisfied, it must be denied.  No theory of entitlement other than direct service connection or presumptive service connection has been raised by the Veteran or his representative.  None is reasonably raised by the evidence either.  This evidence, in conclusion, is persuasively against direct and presumptive service connection.  The benefit of the doubt accordingly does not apply.  Service connection for tinnitus is denied.  The Veteran once again is reminded that he may file a supplemental claim to receive consideration of evidence not considered herein.

Thomas H. O'Shay

Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board	S. Becker

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.


judge_norm: JOHN Z JONES

condition: knee

text:
Citation Nr: A25008000
Decision Date: 01/29/25	Archive Date: 01/29/25

DOCKET NO. 230726-364476
DATE: January 29, 2025

ORDER

Service connection for right knee condition is denied.

FINDING OF FACT

The Veteran's right knee fracture preexisted his service, was noted on entrance, and did not worsen during service.

CONCLUSION OF LAW

The criteria for service connection for right knee condition are not met.  38 U.S.C. �� 1110, 1153, 5107; 38 C.F.R. �� 3.102, 3.303, 3.306.

REASONS AND BASES FOR FINDING AND CONCLUSION

The Veteran served on active duty in the United States Navy from October 1994 to November 1994.

The rating decision on appeal was issued in September 2022; therefore, the modernized review system, also known as the Appeals Modernization Act (AMA), applies.

In August 2022, the Veteran submitted a VA Form 20-0996, Decision Review Request: Higher-Level Review (HLR), and requested review of a December 2021 decision.  In September 2022, the agency of original jurisdiction (AOJ) issued the HLR decision on appeal, which considered the evidence of record at the time of the prior December 2021 decision.  Therefore, the Board may only consider the evidence of record at the time of the December 2021 decision.

In the July 2023 VA Form 10182, Decision Review Request: Board Appeal (Notice of Disagreement), the Veteran elected the Direct Review docket.

Therefore, the Board may only consider the evidence of record at the time of the December 2021 AOJ decision, which was subsequently subject to higher-level review. 38 C.F.R. � 20.301. If evidence was submitted during the period after the AOJ issued the decision, which was subsequently subject to higher-level review the Board did not consider it in its decision. 38 C.F.R. �� 20.300, 20.301, 20.801.

If the Veteran would like VA to consider any evidence that was submitted that the Board could not consider, the Veteran may file a Supplemental Claim (VA Form 20-0995) and submit or identify this evidence. 38 C.F.R. � 3.2501. If the evidence is new and relevant, VA will issue another decision on the claim, considering the new evidence in addition to the evidence previously considered. Id. Specific instructions for filing a Supplemental Claim are included with this decision.

Right Knee

The Veteran is seeking service connection for a right knee disability.  For the following reasons, the Board finds that service connection is not warranted.

The presumption of soundness applies only when a disease or injury not noted upon entry to service manifests in service, and a question arises as to whether it preexisted service.  Gilbert v. Shinseki, 26 Vet. App. 48, 55 (2012), aff'd 749 F.3d 1370 (Fed. Cir. 2014).  In this case, there is a question as to whether the claimed right knee disability preexisted the Veteran's military service from October 1994 to November 1994.  The Veteran's service treatment records include medical records that pre-date his active-duty service.  These treatment records document the Veteran incurring a right knee injury and undergoing surgery of the right knee.  Accordingly, the Board finds that the question of whether the Veteran's right knee disability preexisted his service has been raised by the record.

The appellant established "veteran" status based on a period of active-duty service.

The Veteran's appeal is based on the period of active-duty service from October 1994 to November 1994.

The Veteran's March 1994 entrance examination reveals a notation of a fractured right knee with pin insertion and removal in 1993.

In Wagner v. Principi, 370 F.3d 1089, 1096 (2004), the United States Court of Appeals for the Federal Circuit held if a preexisting disorder is noted upon entry into service, the veteran cannot bring a claim for service connection for that disorder, but the veteran may bring a claim for service-connected aggravation of that disorder.  In that case, 38 U.S.C. � 1153 applies and the burden falls on the veteran to establish an increase in disability during service.  If the presumption of aggravation attaches, the burden shifts to the government to show by clear and unmistakable evidence that there has been no increase in the severity of the preexisting condition or that any increase was the result of natural progression.  Id; see also 38 C.F.R. � 3.306(b).

Service records show the Veteran reporting right knee pain in October 1994 after using stairs.  These reports of pain continued into November 1994.  It was noted that there was no trauma to the right knee during service.  The Board notes that there was no reference to right knee pain on entrance.  This indicates that the Veteran's history of a right knee fracture was asymptomatic on entrance.  Evidence of a preexisting disability being asymptomatic on entrance with an exacerbation of symptoms during service does not constitute evidence of aggravation.  Green v. Derwinski, 1 Vet. App. 320, 323 (1991).  This evidence is against finding that the Veteran's preexisting right knee fracture was aggravated by service and the Board affords it great probative weight.

In March 2021, the Veteran submitted an undated private opinion in support of his claim.  The physician opined that a repeat injury may have aggravated the Veteran's knee injury during service.  The Board notes that the private opinion contains incorrect information on the Veteran's original right knee injury.  The clinician based their opinion on a knee fracture in 1990, but treatment records show the Veteran fractured his knee in 1992.  The Board also notes that the opinion is speculative in nature based on the language "I feel that it is quite possible."  The physician makes no reference to any specific injury that could have occurred during service that would have aggravated the Veteran's preexisting right knee condition.  Accordingly, the Board finds this private opinion to be inadequate and affords it no probative weight.

As the most competent and credible evidence of record does not show an increase in the severity of a right knee condition during service during service the presumption of aggravation does not attach.  The Board notes that the September 2022 HLR decision includes a favorable finding of the Veteran's right knee being treated during service.  The Board is bound by this favorable finding.  38 C.F.R. � 3.104(c).  However, a finding of treatment during service is not evidence that there was aggravation during service.  As explained above, an asymptomatic disability becoming symptomatic during service is not evidence of aggravation.  Green, 1 Vet. App. At 323.  This favorable finding does not constitute a finding that the there was evidence of in-service worsening.  As such, the Board is not violating the favorable finding in its decision that there is no evidence of in-service worsening.

The Board acknowledges the Veteran's contention that he reinjured his knee during service.  However, there is no evidence in his service treatment records that he sustained a right knee injury.  Service treatment records document that there was no trauma to the right knee, which suggests that a direct injury was not incurred.  There is evidence of the Veteran experiencing right knee pain, but without evidence of an injury causing this pain outside of his preexisting right knee fracture becoming symptomatic, the Board cannot find that there is evidence of in-service worsening of the Veteran's preexisting right knee fracture.

(Continued on the next page)?

As the Board has found there is no evidence of in-service worsening of the Veteran's right knee disability, a discussion of clear and unmistakable evidence to rebut the presumption of aggravation is not required.  Wagner, 370 F.3d at 1096.  Because the Veteran's pre-existing right knee fracture was not aggravated by military service entitlement to service connection must be denied.

JOHN Z. JONES

Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board	Chandeck, Michael A. (he/him/his)

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.