judge_norm: L STEPANICK

disposition: granted

condition: radiculopathy

condition: shoulder

condition: psychiatric

text:
Citation Nr: 23013000
Decision Date: 03/03/23	Archive Date: 03/02/23

DOCKET NO. 18-45 268
DATE: March 3, 2023

ORDER

Entitlement to service connection for left lower extremity radiculopathy is granted.

Entitlement to service connection for right upper extremity peripheral neuropathy is denied.

Entitlement to service connection for left upper extremity peripheral neuropathy is denied.

Entitlement to service connection for right shoulder pain is denied.

REMANDED

Entitlement to a compensable rating for bilateral hearing loss is remanded.

Entitlement to service connection for an acquired psychiatric disability is remanded.

Entitlement to service connection for dizzy spells and imbalance issues is remanded.

Entitlement to service connection for right lower extremity peripheral neuropathy is remanded.

Entitlement to service connection for prostatitis is remanded.

Entitlement to service connection for left foot plantar fasciitis is remanded.

Entitlement to service connection for sleep apnea is remanded.

Entitlement to service connection for right knee pain is remanded.

FINDINGS OF FACT

1. The Veteran's left lower extremity symptoms, diagnosed as radiculopathy, are proximately due to his service-connected degenerative disc disease of the lumbar spine.

2. The Veteran's current upper extremity neurological symptoms did not start during service or manifest to a compensable degree within one year of separation from active service; he did not suffer any in-service incident, illness or injury to which the current upper extremity neurological symptoms may be etiologically linked.

3. The Veteran's current right shoulder disability did not begin during service or manifest to a compensable degree within one year of separation from active service; he did not suffer any in-service incident, illness or injury to which a right shoulder disability may be etiologically linked.

CONCLUSIONS OF LAW

1. Resolving reasonable doubt in the Veteran's favor, the criteria for service connection for left lower extremity radiculopathy as secondary to service-connected degenerative disc disease of the lumbar spine are met.  38 U.S.C. �� 1110, 1131, 5107; 38 C.F.R. �� 3.102, 3.310.

2. The criteria for service connection for right upper extremity radiculopathy are not met.  38 U.S.C. �� 1110, 1112, 1113, 1131, 1137, 5107; 38 C.F.R. �� 3.102, 3.303, 3.307, 3.309.

3. The criteria for service connection for left upper extremity radiculopathy are not met.  38 U.S.C. �� 1110, 1112, 1113, 1131, 1137, 5107; 38 C.F.R. �� 3.102, 3.303, 3.307, 3.309.

4. The criteria for service connection for a right shoulder disability are not met.  38 U.S.C. �� 1110, 1112, 1113, 1131, 1137, 5107; 38 C.F.R. �� 3.102, 3.303, 3.307, 3.309.

REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

The Veteran served on active duty from May 1972 to March 1996.

This matter comes before the Board of Veterans' Appeals (Board) on appeal from September and October 2017 rating decisions issued by a Department of Veterans Affairs (VA) Regional Office (RO).

In December 2021, the Veteran testified before the undersigned Veterans Law Judge.  A transcript of that hearing is of record.

Evidence developed by VA, for which there is not an automatic waiver of initial RO review, was added to the claims file after the RO issued the August 2018 Statement of the Case (SOC) and transferred the appeal to the Board. See 38 U.S.C. � 7105(e) (2017) (providing that automatic waiver of new evidence applies only to evidence submitted by the claimant or claimant's representative). However, with respect to the issues decided herein, that evidence is either not pertinent to or is duplicative of evidence already of record. Therefore, there is no need to solicit a waiver of RO consideration or return the case to the RO for issuance of a Supplemental SOC.

Service Connection

The law provides that service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active military service.  38 U.S.C. �� 1110, 1131; 38 C.F.R. �� 3.303, 3.304.  Service connection may be granted for any disease diagnosed after discharge when all the evidence, including that pertinent to service, establishes that the disease was incurred in service.  38 C.F.R. � 3.303(d).

Generally, establishing service connection requires medical or, in certain circumstances, lay evidence of (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the present disability.  See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); Hickson v. West, 12 Vet. App. 247, 253 (1999).

In addition, certain chronic diseases, including disabilities of the neurological system and arthritis, may be presumed to have been incurred during service if the disorder becomes manifest to a compensable degree within one year of separation from active duty.  38 U.S.C. �� 1101, 1112, 1113; 38 C.F.R. �� 3.307, 3.309.

For those listed chronic conditions, a showing of continuity of symptoms affords an alternative route to service connection. 38 C.F.R. � 3.303(b); Walker v. Shinseki, 708 F. 3d 1331 (Fed. Cir. 2013).  Regardless of whether a condition is listed as chronic for presumptive purposes, a continuity of symptoms from the time of service is a factor to consider in assessing any claim.

A disability may also be found service-connected on a secondary basis by demonstrating that the disability is either (1) proximately due to or the result of an already service-connected disease or injury or (2) aggravated by an already service-connected disease or injury.  See Allen v. Brown, 7 Vet. App. 439, 448 (1995); 38 C.F.R. � 3.310.

1. Entitlement to service connection for left lower extremity radiculopathy

The Veteran asserts that he has bilateral lower extremity symptoms that are related to his service-connected degenerative disc disease of the lumbar spine. Private treatment records dated in 2021 document complaints of lower back pain that radiates into both lower extremities with a burning sensation. See Medical Treatment Record  Non-Government Facility (received February 22, 2023). Notably, the treatment record diagnoses "other spondylosis with radiculopathy" but does not designate which lower extremity carries the diagnosis, or whether both lower extremities carry the diagnosis. However, an accompanying request for lumbar spine imaging characterizes the Veteran's clinical indication as "lower back pain, left lower extremity radiculopathy."

Resolving reasonable doubt in the Veteran's favor, the Board finds that these records establish left lower extremity radiculopathy proximately due to the Veteran's service-connected degenerative disc disease of the lumbar spine. 38 C.F.R. � 3.310. Thus, service connection for left lower extremity radiculopathy is granted. Entitlement to service connection for the Veteran's right lower extremity symptoms is addressed in the Remand portion of this decision, below.

2. Entitlement to service connection for right upper extremity peripheral neuropathy

3. Entitlement to service connection for left upper extremity peripheral neuropathy

The Veteran seeks service connection of bilateral upper extremity peripheral neuropathy.  Unfortunately, the Board finds that the claims must be denied.

There is no specific evidence of a current diagnosis of peripheral neuropathy affecting the upper extremities confirmed in the record.  However, the Veteran has testified to various sensory symptoms in his upper extremities.

Although the Veteran has described the upper extremity symptoms he currently experiences, such symptoms are not noted in the record during service or within one year of separation from service, and a continuity of symptoms from the time of service is not established by the record, to include the Veteran's own lay testimony.  In that regard, a review of the Veteran's service treatment records does not document any in-service complaints of neurological symptoms affecting the upper extremities, or any diagnosis of an upper extremity neurological disability.  There is no evidence of any injury, illness or incident affecting the upper extremities.  For his part, the Veteran has testified to two severe car accidents during service in which the automobile he was traveling in was totaled, resulting in a neck injury which now caused his current upper extremity neurological conditions.  The Veteran asserts he did not seek treatment for either injury during service because seeking medical treatment would have been viewed in a negative manner.  The Veteran also asserts he injured his neck when he fell during a running accident, falling on his right wrist and injuring both the wrist and shoulder.  For the reasons discussed below, the Board does not find this testimony credible to establish an in-service incident, illness or injury.

As a lay person, the Veteran is competent to report evidence of which he has firsthand knowledge, including a neck injury sustained in a motor vehicle accident.  Layno v. Brown, 6 Vet. App. 465, 471 (1994).  However, once basic competency is met, the Board must consider the credibility of this evidence.  When assessing credibility of lay evidence, the Board may weigh the absence of contemporaneous medical evidence as a factor in determining credibility of lay evidence, but the Board cannot determine that lay evidence lacks credibility merely because it is unaccompanied by contemporaneous medical evidence. Buchanan v. Nicholson, 451 F.3d 1331, 1337 (2006).  Other factors to consider in assessing such evidence includes facial plausibility, internal consistency, consistency with other evidence, self-interest or bias, bad character, malingering, lay statements made during treatment, direct personal knowledge or experience, erroneous recollection, time of creation of the evidence, validity of statistical data, and combat vs. non-combat situations.  See Caluza v. Brown, 7 Vet. App. 498 (1995).

Regarding the two motor vehicle accidents, to the extent that the Veteran says he declined to seek treatment for severe neck injuries following both accidents because seeking medical care was viewed negatively, the Board notes that the Veteran's service treatment records are voluminous (over 250 pages of medical care documents) and include treatment for significantly less serious injuries or illnesses than a car accident where the car was totaled, and the Veteran sustained a neck injury.  He has not provided any lay testimony from others who may have knowledge of such an incident.  He has not reported this incident until the time of his hearing before the undersigned, approximately 20 to 30 years after those incidents took place.  He did not report any such incident at separation from service, despite reporting several other in-service injuries.  Further, the Board notes that, despite claiming his radiculopathy is due to a neck injury in service, the Veteran has never sought service connection of a neck injury or disability.  Given these factors, the Board does not find the Veteran's testimony credible to establish that a neck injury was sustained during motor vehicle accidents in service.

Likewise, the Veteran reports that he tripped and fell while running during active service, falling on his arm and shoulder, and injuring his neck.  While there is evidence that the Veteran injured his wrist in a running accident during active service, he did not seek treatment for a shoulder injury during that incident, let alone a neck injury.  Again, the Board notes that the Veteran never sought treatment for any neck or neck-related symptoms throughout service, despite seeking treatment for numerous other physical concerns.  The first mention of this incident affecting his neck occurred over 30 years after that injury reportedly took place, and he did not report that injury as affecting his neck when he separated from active service.  Further, the Board again observes that, despite claiming his radiculopathy is due to a neck injury in service, the Veteran has never sought service connection of a neck injury or disability.  Given these factors, the Board does not find the Veteran's testimony credible to establish that he injured his neck when he sustained a sprained right wrist during active service.

Based on the above, the Board finds that the Veteran did not suffer any in-service incident, illness or injury to which a current diagnosis of upper extremity radiculopathy, if it exists, could be etiologically linked.  As such, the claim fails the secondary criterion of service connection and must be denied.

The Board notes that the Veteran has not been afforded a VA examination in connection with his claim.  VA's duty to assist only requires it to provide an examination when there is evidence of a current disability, an in-service incident, illness or injury, and some evidence that the two may be related.  McLendon v. Nicholson, 20 Vet. App. 79 (2006).  In this case, because the evidence does not support any in-service incident, illness or injury, the duty to assist does not require VA to provide an examination at this time.

The Board acknowledges the Veteran's firmly held belief that he has upper extremity radiculopathy that is related to active service but finds this unpersuasive, on its own, to grant the appeal.  While lay evidence may be competent on a variety of matters concerning the nature and cause of disability, etiology of dysfunctions and disorders is a medical determination and generally must be established by medical findings and opinion.  See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007); see also Colantonio v. Shinseki, 606 F.3d 1378, 1382 (Fed.Cir.2010) (recognizing that in some cases lay testimony "falls short" in proving an issue that requires expert medical knowledge).  In the present case, the Veteran is a lay person without appropriate medical training and expertise, and thus, he is not competent to make an etiological conclusion regarding the cause of his upper extremity neurological symptoms, especially in light of the fact that the evidence fails to demonstrate the onset of such symptoms or any injury to which they may be etiologically linked in service.  See id.

Finally, to the extent that the Veteran asserts that his upper extremity radiculopathy is due to a current neck disability, the Veteran has never claimed, nor is he service-connected for, a neck or cervical spine disability.  As such, service connection on a secondary basis is not supported.

In sum, the Board finds that the Veteran's neurological symptoms, claimed as radiculopathy, which he reports affect his upper extremities, did not have onset in service or within one year of separation from service, nor is there any continuity of symptoms from the time of service.  He did not suffer any in-service incident, illness or injury to which such symptoms could be etiologically linked, and there is no evidence to link his current symptoms to any incident of active service.  As such, the Board must deny these claims.  In reaching this conclusion, the Board has considered the applicability of the benefit-of-the-doubt doctrine; however, because the evidence is persuasively against the claim, that doctrine does not apply.  See 38 U.S.C. � 5107; Gilbert v. Derwinski, 1 Vet. App. 49 (1990); 38 C.F.R. � 3.102.

4. Entitlement to service connection for right shoulder pain

The Veteran also seeks service connection of a right shoulder disability.  The Board finds that this claim must also be denied.

Initially, the Board notes that there is no specific current diagnosis of a right shoulder disability in the record, although the available medical record does record some complaints of right shoulder pain following a shoulder surgery in 2015.  There is no diagnosis or surgical records available pertaining to that surgery.  However, 2015 is the earliest evidence of any shoulder pathology in the record and the Veteran was not diagnosed with any shoulder issues during service or within one year of separation from service, and he has not asserted any specific continuity of symptoms from the time of service.  Thus, the Board does not find a continuity of a right shoulder disability from service or the year following separation.

The record does not reflect that the Veteran injured his right shoulder during active service, nor that he sought treatment for right shoulder symptoms during active service.  However, the Veteran asserts that he injured his shoulder during active service when he fell during a run.

As noted above, the Veteran is competent to report a physical injury or incident as he has first-hand knowledge of that incident.  However, once basic competency is met, the Board must consider the credibility of that statement.  In this case, there is nothing in the service treatment records pertaining to the right shoulder.  There is a single complaint in the Veteran's service treatment records where he complained of right wrist pain due to a fall while running in March 1993, but he was found to have some bruising without fracture, edema, or loss of range of motion and was diagnosed with a right wrist strain.  There are no complaints of any shoulder pathology at that time.  He did not complain of any shoulder issues after that time, and he did not report any shoulder injury or symptoms upon separation from service.  The first evidence of any shoulder issues is contemporaneous to the current claim.  Given the lack of documentation in the record in the context of other reported injuries during service, the Board does not find the Veteran's statements credible on their own to establish an in-service incident, illness or injury to his right shoulder.

The Board recognizes that the Veteran has not been afforded a VA examination in connection with his appeal, however, absent an in-service incident, illness or injury, VA's duty to assist does not require it to provide such an examination at this time.  McLendon v. Nicholson, 20 Vet. App. 79 (2006).

The Board recognizes the Veteran's firmly held belief that he has a right shoulder disability that is related to active service, but it finds this unpersuasive to grant the appeal.  While lay evidence may be competent on a variety of matters concerning the nature and cause of disability, etiology of dysfunctions and disorders is a medical determination and generally must be established by medical findings and opinion.  See Jandreau, 492 F.3d at 1376-77; see also Colantonio, 606 F.3d at 1382.  In the present case, the Veteran is a lay person without appropriate medical training and expertise, and thus, he is not competent to make an etiological conclusion regarding the cause of his right shoulder symptoms, especially in light of the fact that the evidence fails to demonstrate the onset of such symptoms or any injury to which they may be etiologically linked in service.  See id.

In sum, the Board finds that any present shoulder disability did not manifest during active service or within one year of separation from service.  The Veteran did not suffer any in-service incident, illness or injury to which a right shoulder disability may be etiologically linked.  As such, the claim must be denied.  In reaching this conclusion, the Board has considered the applicability of the benefit-of-the-doubt doctrine; however, because the evidence is against the claim, that doctrine does not apply.  See 38 U.S.C. � 5107; Gilbert, 1 Vet. App. 49; 38 C.F.R. � 3.102.

REASONS FOR REMAND

Inasmuch as the Board regrets further delay in the adjudication of the remaining issues, a remand is necessary to ensure proper development of those claims.

1. Entitlement to a compensable rating for bilateral hearing loss is remanded.

The Veteran seeks a compensable rating for bilateral hearing loss.  The Veteran's hearing loss was last evaluated in August 2017.  In support of his appeal, he has provided audiogram results from a private examiner.  However, that medical record does not include Maryland CNC word recognition scoring, which is required to rate the Veteran's hearing loss.  Further, at his hearing before the undersigned, the Veteran testified to increased hearing loss symptoms since the time of his prior VA examination.  As such, on remand, a new examination should be conducted which fully evaluates the severity of the Veteran's hearing loss.  See Snuffer v. Gober, 10 Vet. App. 400, 402-403 (1997); Caffrey v. Brown, 6 Vet. App. 377, 381 (1994); cf. VAOPGCPREC 11-95 (April 7, 1995).

2. Entitlement to service connection for an acquired psychiatric disability is remanded.

The Veteran claims a psychiatric disability.  To date he has not been afforded a VA examination due to the RO finding no evidence of any psychiatric issues in service, or any complaints of an in-service stressor to which such a diagnosis may be etiologically linked.

In his hearing before the undersigned, the Veteran testified to present psychiatric symptoms, which he asserts have been either caused or aggravated by his various service-connected disabilities.  In light of this, the Veteran should be afforded a VA examination to assess whether he has a presently diagnosed psychiatric disability, and if so, if it is related to any service-connected disability on a secondary basis.  McLendon, 20 Vet. App. 79.

3. Entitlement to service connection for dizzy spells and imbalance issues is remanded.

The Veteran seeks service connection of dizzy spells or an imbalance issue.

The Veteran's claim has been denied by the RO based on the conclusion that his currently described dizziness pre-existed active service and was not aggravated thereby.  Although the Veteran reported a pre-service concussion with loss of consciousness on his entrance medical history report and an August 1979 medical history report described dizziness at the time of that incident, nothing related to residuals of that incident was noted on the Veteran's entrance examination. The Veteran asserts that his current symptoms are attributable to in-service complaints of earaches, or in the alternative, caused or aggravated by his current bilateral hearing loss.

To date, the Veteran has not been afforded a VA examination in connection with his appeal.  In light of the evidence of record, and the Veteran's own statements during his hearing before the undersigned, the Board would request an examination which assesses the nature of any current dizziness or imbalance symptoms and considers the etiology of such symptoms on either a direct or secondary basis. McLendon, 20 Vet. App. 79.

4. Entitlement to service connection for right lower extremity peripheral neuropathy is remanded.

To date, this claim has been denied based on a 2017 VA low back examination which concluded that the Veteran does not have a diagnosis of radiculopathy associated with that service-connected disability.  However, the Veteran has testified to a later diagnosis of radiculopathy and also testified that he has been prescribed gabapentin to treat lower extremity nerve pain.  A prescription of gabapentin is confirmed in the medical record. Recently submitted private treatment records note radiculopathy associated with the Veteran's low back disability but do not explicitly diagnosis right (as opposed to left) lower extremity radiculopathy.

In light of this evidence, the Board would request a peripheral nerve examination which assesses the nature and etiology of the Veteran's reported right lower extremity symptoms. McLendon, 20 Vet. App. 79.

5. Entitlement to service connection for prostatitis is remanded.

The Veteran seeks service connection of prostatitis.

To date, the Veteran has not been afforded a VA examination in connection with this appeal based on an RO finding that the Veteran did not suffer any in-service incident, illness or injury to which such a disability could be etiologically linked.  However, the Veteran argues that his claimed prostatitis is the result of chemical exposure during service at Camp Lejeune.  The Veteran's military personnel records confirm service at Camp Lejeune where he served as part of a decontamination effort.

Effective March 14, 2017, VA amended its adjudication regulations relating to presumptive service connection, adding eight diseases that are associated with contaminants present in the water supply at Camp Lejeune. Specifically, a veteran who had no less than 30 days (consecutive or nonconsecutive) of service at Camp Lejeune during the period beginning on August 1, 1953, and ending on December 31, 1987, shall be presumed to have been exposed during such service to water contaminated with volatile organic compounds (VOCs) during such service, unless there is affirmative evidence to establish that the individual was not exposed to contaminants in the water supply during that service. 38 C.F.R.� 3.307(a)(7). For those veterans who have been exposed to VOCs during service at Camp Lejeune, as of the writing of this decision, the diseases for which presumptive service connection may be granted based on VOC exposure are limited to kidney cancer, liver cancer, non-Hodgkin's lymphoma, adult leukemia, multiple myeloma, Parkinson's disease, aplastic anemia and other myelodysplastic syndromes, and bladder cancer. 38 C.F.R. �� 3.307, 3.309(f).

Notably, prostatitis is not a disability which is considered presumptive based on exposure to VOCs at Camp Lejeune.  However, the lack of a presumptive entitlement does not preclude service connection on a direct basis, if a nexus can be established between a current disability and an in-service exposure incident.  Thus, the Board will remand the appeal for a VA examination to assess the nature and etiology of any prostate-related diagnosis. McLendon, 20 Vet. App. 79.

6. Entitlement to service connection for left foot plantar fasciitis is remanded.

The Veteran seeks service connection of left foot plantar fasciitis.

To date the Veteran has not been afforded a VA examination in connection with his claim on the basis that there is no evidence of such a diagnosis during active service.  While the Board does acknowledge a diagnosis of right foot plantar fasciitis during service (indeed, that disability has been granted service connection), there is no specific diagnosis of plantar fasciitis affecting the left foot during active service.  However, there is at least one complaint of left foot pain with swelling of the dorsal foot in April 1981.  For his part, the Veteran has testified that he first experienced pain in his left foot while stationed in Hawaii, but that he did not seek treatment for it as it did not cause significant issue at that time.  The Veteran is competent to report observable symptoms of a disability such as pain.

In light of this evidence, the Board would request a VA foot examination to determine the nature and etiology of any current left foot symptoms.  McLendon, 20 Vet. App. 79.

7. Entitlement to service connection for sleep apnea is remanded.

The Veteran seeks service connection of sleep apnea.

To date the Veteran has not been afforded a VA examination on the premise that his service treatment and military personnel records do not document any history of sleep apnea or other sleep-related pathology during active service.  However, at his hearing before the undersigned, the Veteran testified that his current sleep apnea, which was diagnosed in 2017, has been caused or aggravated by his various other service-connected disabilities, to include tinnitus and various musculoskeletal injuries.

In light of this testimony, the Board would request an examination which considers the nature and etiology of the Veteran's current sleep apnea disorder. McLendon, 20 Vet. App. 79.

8. Entitlement to service connection for right knee pain is remanded.

The Veteran seeks service connection of a right knee disability, manifested by pain, and diagnosed as osteoarthritis.

To date, the Veteran has not been afforded a VA examination in connection with his appeal, based on a lack of in-service treatment for any knee issues.  However, a privately completed examination report dated in May 2019 gives a diagnosis of right knee osteoarthritis with a potential date of onset in 1990, although that report does not provide a rationale for how that date was reached, nor does it include an etiology opinion.  For his part, the Veteran has testified that he injured both knees in service, but only sought treatment for the left because it was more severe (it is noted that he is service connected for a left knee disability).  He also asserts that overcompensation for the service-connected left knee has caused him to develop worsening symptoms in his right knee.

In light of this evidence, the Board would request a VA examination of the Veteran's right knee to assess the nature and etiology of any right knee disability.  McLendon, 20 Vet. App. 79.

The matters are REMANDED for the following action:

1. Invite the Veteran to submit any additional evidence in support of his appeal.

2. Schedule the Veteran for an examination by an appropriate clinician to determine the current severity of his service-connected bilateral hearing loss. 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.

3. Schedule the Veteran for a VA psychiatric examination.  The complete claims file should be made available to the examiner selected to conduct the examination and should be reviewed.  Following a thorough examination of the Veteran, the examiner is requested to provide a diagnosis to account for the Veteran's psychiatric symptoms.  If no diagnosis can be rendered, an explanation should be provided.

For each diagnosed condition, the examiner is requested to state whether it is at least as likely as not (likelihood is at least approximately balanced or nearly equal, if not higher) that the condition was (a) caused by or (b) aggravated by a service-connected disability.  The examiner should take care to include discussion of both causation and aggravation.  A thorough rationale should accompany any opinion given.

4. Schedule the Veteran for a VA examination to assess his complaints of dizziness and imbalance.  The complete record should be made available to the examiner selected to conduct the examination.  The examiner is requested to respond to the following:

(a)	Please provide a diagnosis to account for the Veteran's symptoms.  If a diagnosis cannot be given, the examiner is requested to state why this is the case.

(b)	If a diagnosis is given, please state whether that diagnosis clearly and unmistakably pre-existed the Veteran's period of active service, to specifically include whether it is related to his pre-service concussion.

(c)	If the condition is found to have clearly and unmistakably pre-existed active service, please state whether that condition was clearly and unmistakably not aggravated by active service.

(d)	If the condition is found to be different from the Veteran's pre-service concussion, please state whether it is at least as likely as not (likelihood is at least approximately balanced or nearly equal, if not higher) related to any incident of active service, to include the Veteran's in-service complaints of earaches.

(e)	Regardless of date of onset of the current condition, please state whether the Veteran's dizziness condition has been (a) caused by or (b) aggravated by the Veteran's service-connected hearing loss and/or tinnitus.

A complete rationale should accompany all opinions offered.

5. Schedule the Veteran for a VA examination in connection with his right lower extremity peripheral neuropathy claim.  The complete claims file should be made available to the examiner selected to conduct the examination.  The examiner is requested to state whether the Veteran has a diagnosis of a neurological condition affecting his right lower extremity, to include radiculopathy and/or neuropathy.

For each diagnosed condition, the examiner is requested to state whether it is at least as likely as not (likelihood is at least approximately balanced or nearly equal, if not higher) that the disability is related to any incident of active service, to include the Veteran's complaints of low back pain during service.

In the alternative, the examiner is also requested to state whether the condition is at least as likely as not (likelihood is at least approximately balanced or nearly equal, if not higher) (a) caused by or (b) aggravated by the Veteran's current service-connected low back disability.

A thorough rationale should accompany all opinions offered.

6. Schedule the Veteran for a VA examination in connection with his prostatitis claim.  The complete claims file should be made available to the examiner selected to conduct the examination.  The examiner is requested to conduct a thorough examination of the Veteran and state whether the Veteran has a present diagnosis of prostatitis or other prostate-related pathology.

For each identified prostate-related diagnosis, the examiner is requested to state whether it is at least as likely as not (likelihood is at least approximately balanced or nearly equal, if not higher) related to any incident of active service, to specifically include any VOC exposure during the Veteran's period at Camp Lejeune.

The fact that a condition has not been added to the list of diseases presumed service-connected in veterans exposed to contaminants at Camp Lejeune should not be the sole basis for a negative opinion.

7. Schedule the Veteran for a VA foot examination in connection with his left foot claim.  The complete claims file should be made available to the examiner selected to conduct the examination.  The examiner is requested to conduct a physical examination of the Veteran and provide a diagnosis for any current foot pathology affecting the left foot which may account for the Veteran's current reported symptoms.

For each diagnosed condition, the examiner is requested to state whether that condition had onset during active service with continuity to the present, or in the alternative, whether the Veteran's currently diagnosed condition is at least as likely as not (likelihood is at least approximately balanced or nearly equal, if not higher) related to any incident of active service, to include his 1981 complaint of foot swelling and pain, as well as his lay reports of symptoms during active service.  A thorough rationale should accompany any opinion given.

8. Schedule the Veteran for a VA examination in connection with his sleep apnea claim.  The complete claims file should be made available to the examiner selected to conduct the examination.  The examiner should conduct a thorough examination of the Veteran and state whether it is at least as likely as not (likelihood is at least approximately balanced or nearly equal, if not higher) that the Veteran's current sleep apnea has been (a) caused by or (b) aggravated by a service-connected disability, to include tinnitus or his various musculoskeletal conditions.  A thorough rationale should accompany any opinion offered.

9. Schedule the Veteran for a VA examination of his right knee disability.  The complete claims file should be made available to the examiner selected to conduct the examination.  The examiner is requested to confirm a diagnosis for any right knee symptoms.

For each diagnosed right knee disability, the examiner is requested to state whether it is at least as likely as not (likelihood is at least approximately balanced or nearly equal, if not higher) related to any incident of active service, to include wear-and-tear, or any falls which may have resulted in more significant injuries to the left knee than the right.

(Continued on the next page)

The examiner is also requested to state whether it is at least as likely as not (likelihood is at least approximately balanced or nearly equal, if not higher) that the current right knee disability has been (a) caused by or (b) aggravated by the Veteran's left knee disability, to include overcompensation due to that left knee disability.  A thorough rationale should accompany any opinion offered.

L. STEPANICK

Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board	M. Pryce, 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.


series: legacy

judge_norm: S C KREMBS

judge_role: Veterans Law Judge

disposition: denied

condition: cancer

text:
Citation Nr: 23014000
Decision Date: 03/08/23	Archive Date: 03/08/23

DOCKET NO. 18-23 840
DATE: March 8, 2023

ORDER

Service connection for prostate cancer is denied.

FINDING OF FACT

The evidence of record is against a finding that the Veteran's prostate cancer is related to his active service, including exposure to herbicide agents (herbicides).

CONCLUSION OF LAW

The criteria for service connection for prostate cancer are not met.  38 U.S.C. �� 1110, 1131, 5107; 38 C.F.R. �� 3.102, 3.303, 3.307, 3.309.

REASONS AND BASES FOR FINDING AND CONCLUSION

The Veteran served on active duty from January 1961 to September 1984.  He died in April 2017.  The appellant is his surviving spouse.

This matter comes before the Board of Veterans' Appeals (Board) on appeal from a September 2016 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Los Angeles, California.  This matter was previously before the Board in March 2022.  At that time, the Board remanded the claim for service connection for prostate cancer for the RO to seek additional information as to whether the Veteran was exposed to herbicides while on active duty.  As the record reflects that the requested development was completed, the Board finds that there has been substantial compliance with the remand directives.  See Stegall v. West, 11 Vet. App. 268, 271 (1998).

Service connection for prostate cancer

Generally, service connection will be granted if the evidence demonstrates that a current disability resulted from a disease or injury incurred in active military service. 38 U.S.C. �� 1110, 1131; 38 C.F.R. � 3.303(a). Establishing service connection requires evidence of a current disability, an in-service incurrence, disease or injury and a causal relationship between the current disability and the in-service incurrence, disease or injury. Saunders v. Wilkie, 886 F.3d 1356, 1361 (Fed. Cir. 2018).

Service connection may also be established presumptively for certain diseases listed in 38 C.F.R. � 3.309(e) for any Veteran who was exposed to an herbicide agent as defined in 38 C.F.R. � 3.307(a)(6) during active-duty service.

When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall resolve reasonable doubt in favor of the claimant. 38 U.S.C. � 5107; 38 C.F.R. � 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). To deny a claim on its merits, the evidence must preponderate against the claim.  Alemany v. Brown, 9 Vet. App. 518 (1996).

Here, the record reflects that the Veteran was diagnosed with prostate cancer in October 2014.  The appellant contends that the Veteran was exposed to herbicides in service while stationed at Kadena Air Force Base (AFB) in Okinawa, Japan.  Military personnel records confirm that the Veteran was stationed at Kadena AFB from March 1974 to February 1976.

The evidence of record at the time of the Board's March 2022 decision included the appellant's testimony that the Veteran did not have a history of prostate cancer in his family and that he told her he observed pesticides sprayed on vegetation while stationed at Kadena AFB.  In a January 2016 statement, the Veteran indicated that while stationed at Kadena he worked inside buildings "which pertained to Agent Orange."  In a September 2017 statement, the appellant claimed that barrels of Agent Orange were stored close to the Veteran's training facility at Kadena AFB.  The Veteran's son submitted a statement in May 2017 describing his experiences living with the Veteran on Kadena FB.  The appellant also submitted a February 2022 letter from the Veteran's treating VA physician indicating that the Veteran's medical records "showed exposure to Agent Orange during his military service."    The appellant also submitted a report by the "Subcommittee on Defoliation/Anticrop Systems for JTGC/CB (presently known as Vegetation Control Subcommittee)" that referenced stockpiles of herbicides at Kadena AFB in Okinawa, and articles describing evidence of the use and storage of herbicides at Kadena AFB, including one published in November 2017.

The Board found the foregoing evidence insufficient to corroborate the Veteran's alleged exposure to herbicides in service at Kadena AFB.  As part of the Board's March 2022 remand, the RO was directed to develop the evidence as to the Veteran's alleged exposure to herbicides by contacting the Joint Service Records Research center (JSRRC) or other appropriate source to verify whether the Veteran had herbicide exposure while at Kadena AFB from March 1974 to February 1976.  The record reflects that research requests were submitted covering the period from March 1974 to February 1976.  A professional researcher from the Veteran Benefits Administration, Office of Field Operations Service, Military Records Research Center performed "comprehensive research" on the Veteran's claimed exposure event and partnered with the Air Force Historical Research Agency (AFHRA).  The research did not confirm an exposure event as claimed by the Veteran, and a review of the unredacted 2019 Department of Defense (DoD) Tactical Herbicide Location list "failed to verify herbicide exposure at Kadena" as claimed by the Veteran.  Thus, the Veteran's exposure to herbicides was not verified.

Although the Veteran claims exposure to herbicides, the evidence does not reflect that he had the medical or scientific training or expertise to identify herbicides to which he was reportedly exposed during service.  See Jandreau v. Nicholson, 492 F. 3d 1372, 1376-77 (Fed. Cir. 2007); see also Barr v. Nicholson, 21 Vet. App. 303, 309 (2011); Layno v. Brown, 6 Vet. App. 465, 469 (1994).  A layperson's assertions indicating exposure to gases or chemicals during service are not sufficient evidence alone to establish that such an event actually occurred during service. Bardwell v. Shinseki, 24 Vet. App. 36 (2010).  The articles submitted by the appellant reflect the work of the author attempting to prove the use of herbicides at Okinawa, and do not reflect official documentation of herbicide use at Kadena AFB.  Nor do the articles address the specific circumstances of the Veteran's service.  Also, the VA physician's statement that the Veteran's medical record shows exposure to Agent Orange during service relies on the Veteran's report of exposure, and does not establish herbicide exposure.  The Board finds the research responses more probative and persuasive than the Veteran's lay assertions and the information submitted by the appellant.  Accordingly, the Board is unable to find that the Veteran had herbicide agent exposure while in service, and the claim for service connection for prostate cancer is denied.

The Board concludes that the evidence in this case is neither evenly nor approximately balanced.  Rather, it persuasively weighs against service connection.  The benefit of the doubt doctrine (38 C.F.R. � U.S.C. � 5107(b)) is therefore not for application.  Lynch v. McDonough, 21 F.4th 776 (Fed. Cir. 2021) (en banc) (only when the evidence persuasively favors one side or another is the benefit of the doubt doctrine not for application).

S.C. KREMBS

Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board	M. Snyder, 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: MELANIE J MANN

disposition: remanded

condition: liver

text:
Citation Nr: 23015000
Decision Date: 03/13/23	Archive Date: 03/13/23

DOCKET NO. 18-03 941
DATE: March 13, 2023

REMANDED

Entitlement to service connection for a liver disability, to include Hepatitis C, is remanded.

REASONS FOR REMAND

The Veteran served on active duty from August 1978 to February 1982.

This matter comes before the Board of Veterans' Appeals (Board) on appeal from a January 2017 rating decision from a Department of Veterans Affairs (VA) Regional Office (RO).

In his January 2018 VA Form 9, the Veteran requested a hearing by live videoconference. The Board scheduled a hearing in October 2022. The October 2022 hearing was postponed until December 2022. The Veteran was notified at his address of record, but he did not appear at the December 2022 hearing and did not request a postponement of the December 2022 hearing. Thus, the Board will review this matter based upon the evidence in the claims file.

Entitlement to service connection for a liver disability, to include Hepatitis C, is remanded.

The Board finds that additional relevant evidence has been added to the claims file after the issuance of the December 2017 Statement of the Case, including new VA treatment records which have not yet been considered by the RO. This additional evidence was obtained by the RO and was not received directly from the Veteran or his representative.

Accordingly, the Board sent the Veteran and his representative a letter in January 2023 providing them the opportunity to waive RO review of this evidence. The letter informed them that if they did not reply within 45 days, the Board would assume that they did not wish to waive RO consideration of the additional evidence and would remand the case for RO review. To date, no response has been received.

The matters are REMANDED for the following action:

Readjudicate the Veteran's claims based on the entirety of the evidence, to specifically include all evidence associated with the claims file since the issuance of the December 2017 Statement of the Case. An appropriate period of time should be allowed for the Veteran to respond if any claims remain denied.

Melanie J. Mann

Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board	A. Boal, 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: MARJORIE A AUER

condition: hip

condition: knee

text:
Citation Nr: 23016000
Decision Date: 03/16/23	Archive Date: 03/16/23

DOCKET NO. 17-18 859
DATE: March 16, 2023

ORDER

Service connection for a right hip disability is denied.

An initial rating in excess of 10 percent for right knee limitation of flexion is denied.

An initial compensable rating for right knee limitation of extension is denied.

A separate 20 percent disability rating, but no higher, for right knee lateral instability from October 7, 2019, is granted.

FINDINGS OF FACT

1. The Veteran's right hip disability is not secondary to service-connected myopathy and is not otherwise related to an in-service injury or disease.

2. At no point during the appeal period is the Veteran's right knee disability manifested by painful motion with objective evidence of flexion limited to 30 degrees or less.

3. At no point during the appeal period is the Veteran's right knee disability manifested by painful motion with objective evidence of extension limited to 10 degrees or more.

4. Resolving doubt in the Veteran's favor, since October 7, 2019, the Veteran's right knee disability manifests with moderate lateral instability.

CONCLUSIONS OF LAW

1. The criteria for entitlement to service connection for right hip disability, to include as secondary to the Veteran's service-connected myopathy, have not been met. 38 U.S.C. �� 1110, 1131, 5107; 38 C.F.R. �� 3.102, 3.303, 3.310.

2. The criteria for a rating in excess of 10 percent for limitation of flexion of the right knee have not been met. 38 U.S.C. �� 1155, 5107; 38 C.F.R. �� 4.3, 4.40, 4.45, 4.59, 4.7, 4.71a, Diagnostic Code (DC) 5260.

3. The criteria for a compensable rating for limitation of extension of the right knee have not been met. 38 U.S.C. �� 1155, 5107; 38 C.F.R. �� 4.3, 4.40, 4.45, 4.59, 4.7, 4.71a, DC 5261.

4. The criteria for the assignment of a 20 percent disability rating, but no higher, for a right knee disability with instability have been met since October 7, 2019. 38 U.S.C. � 1155; 38 C.F.R. �� 4.1, 4.3, 4.7, 4.40, 4.45, 4.59, 4.71, 4.71a, DC 5257.

REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

The Veteran served on active duty from October 1985 to March 2010. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a June 2010 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO).

The Veteran testified before the undersigned Veterans Law Judge during an October 2019 hearing. A transcript of the hearing is associated with the Veteran's claim file.

The Board most recently remanded the matter in September 2022. In a December 2022 rating decision, the RO granted a separate disability rating for limitation of extension of the right knee, assigning a 0 percent disability rating with an effective date of November 21, 2022. As the Veteran seeks an increased rating for his right knee symptoms, generally, the Board has included the issue of an increased rating for limitation of extension in this remand. However, the claim remains on appeal as this does not represent a full grant of the benefit sought. AB v. Brown, 6 Vet. App. 35 (1993).

1. Service connection for a right hip disability

Generally, to establish a right to compensation for a present disability a veteran must show: (1) a present disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004).

Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. � 3.303(d).

For secondary service connection, it must be shown that the disability for which the claim is made is proximately due to or the result of service-connected disease or injury, or that service-connected disease or injury has aggravated (increased in severity) the nonservice-connected disability for which service connection is sought. 38 C.F.R. � 3.310.

The Veteran contends that he is entitled to service connection for a right hip disability because the disability began in service and has continued since that time. Alternatively, the Veteran alleges that his right hip disability is secondary to his service-connected myopathy.

In November 2009, the Veteran underwent a VA examination. The Veteran reported a muscle biopsy was done on the gluteus medius to assist with determining muscular myopathy. He reported symptoms of weakness, stiffness, tenderness, and pain. He experienced limited range of motion from time to time. He noted his activities were limited at times due to joint pain. He reported his muscular myopathy was responsible for muscular pain when he was hard at exertion. Otherwise, there was no detectable alteration in form or function of the right hip. On physical examination the Veteran had full range of motion. Other than a well-healed scar from the muscle biopsy there was no current pathology identified on examination and there was a negative X-ray. Therefore, no diagnosis was provided with regard to the right hip. A diagnosis of muscle myopathy was rendered, but there was no complications or alteration in form or function of the muscles identified.

In the Veteran's May 2011 Notice of Disagreement (NOD), he noted his right hip condition originated from a gluteal tissue biopsy from the gluteus medius muscle that was performed for the purpose of a differential diagnosis regarding suspected muscular myopathy. The muscular myopathy was determined to have incurred on active duty. He had residual pain in the area of the excised gluteal tissue as well as intermittent tetany.

In a February 2014 treatment record, the Veteran reported over the past couple of years his cramps had become somewhat more prominent and he had recently developed cramps and muscle pain in his hips. The Veteran underwent testing and had an essentially normal electrodiagnostic study.

An August 2016 treatment record noted the Veteran had weakness in the front muscles of his legs and tightness in his hips.

In a July 2017 statement, the Veteran reported his right hip had pain and range of motion issues that existed in service and continued to the present. He noted the pain may be related to the original problems identified or may have been exasperated by the surgery in service. The Veteran identified the June 2001 electromyography and the August 2001 muscle biopsy report as evidence that his right hip disability existed in service. He highlighted the existence of myopathy and the opinion that due to his myopathy he was unable to continue functioning in Special Forces as evidence of the limitations caused by the disability.

In a September 2019 statement, the Veteran reported he sustained an injury to his right hip in April 1994 while in flight. The Veteran had tethered himself to a brush guard on the front of a vehicle but when the aircraft experienced severe turbulence the Veteran floated above the vehicle and then crashed down onto the vehicle. The Veteran's right hip caused the top of the brush guard to be bent and bowed downward. A medic looked at the right hip but felt there was no bone or significant tissue damage. Although the Veteran had previously assumed his right hip problems were related to his muscular myopathy, he realized the incident may have had a causative relation to his right hip pain. An October 2019 buddy statement corroborated the April 1994 in-flight injury to the Veteran's right hip.

At the October 2019 Board hearing, the Veteran stated the current issue with his hip was that if he sat too long the hip muscles would contract and become stiff. He further stated that he had always assumed the right hip disability was related to his myositis but also noted the in-flight hip injury may have caused his right hip disability. He had not received any other diagnosis for his right hip disability other than the muscular myopathy.

The Veteran underwent another VA examination in February 2021. The examiner diagnosed right hip pain. The radiographs of the right hip were unremarkable. The examiner opined the claimed condition was less likely than not incurred in or caused by the claimed in-service injury, event, or illness. The examiner noted the Veteran's service medical records were silent for chronic or recurring complaints, injury, diagnosis, or treatment for a right hip condition to establish chronicity and a relationship. The post-service medical records were silent for chronic or recurring right hip complaints, diagnosis, or treatment for a right hip condition.

The examiner further opined the claimed condition was less likely than not proximately due to or the result of the Veteran's service-connected muscular myopathy. The examiner noted again that the Veteran's service medical records and post-service medical records were silent for chronic or recurring right hip complaints, diagnosis, or treatment for right hip, or complications due to muscular myopathy. Additionally, a recent EMG was essentially normal. Therefore, there was insufficient objective medical evidence to establish a relationship between the current right hip pain and the diagnosis of muscular dystrophy.

The Veteran was afforded another VA examination in October 2021. The examiner diagnosed right hip strain and muscular myopathy. The examiner opined the claimed condition was less likely than not incurred in or caused by the claimed in-service injury, event, or illness. The examiner explained that the Veteran had no issues related to the claimed right hip disability prior to service. During service there were no service treatment records indicating chronic right hip disability. The current diagnosis of muscular myopathy was related to the Veteran's 2001 complaints of weakness and cramping. The 2001 right hip muscle biopsy of the right gluteus medius indicated non-specific myopathic abnormalities. A 2014 EMG was normal. The February 2021 right hip X-ray was unremarkable. Therefore, the examiner determined there was no evidence of chronicity of care and symptoms were subjective only and a nexus could not be established.

The examiner further opined the Veteran's right hip disability was less likely than not proximately due to or the result of the Veteran's service-connected muscular myopathy. The examiner explained the right hip strain and muscular myopathy were nor medically related. The examiner noted that prior to 2001 the Veteran's service treatment records were silent for any complaints of muscle disability. In 2001 the Veteran was seen for muscle cramps and weakness and was eventually diagnosed with muscular myopathy. A 2014 EMG was normal and showed no myopathic units on early recruitment. Medical literature failed to demonstrate a causal relationship and a nexus was not established.

The examiner also noted the medical evidence was not sufficient to support a determination of a baseline level of severity. However, regardless of a baseline, the Veteran's right hip disability was not at least as likely as not aggravated beyond its natural progression by service-connected muscular myopathy. The examiner explained the Veteran was diagnosed with myopathy in 2001 and prior to that there was no service treatment record related to a right hip disability. Further, the 2014 EMG test was reported as normal. Based on the objective data the examiner noted there was insufficient evidence to confirm a right hip disability was at least as likely as not aggravated beyond its natural progression by muscular myopathy.

In April 2022, the Veteran's representative noted the October 2021 examiner's opinion was clearly erroneous and in contrast to the opinions of the Veteran's doctors. The Board is unable to locate an opinion of the Veteran's doctor in the record that is in contrast to the October 2021 examiner's opinion.

An addendum opinion was obtained in November 2022. While no physical examination took place, a VA examiner reviewed the Veteran's file and opined the Veteran's right hip disability was less likely than not incurred in or caused by the claimed in-service injury, event, or illness. The examiner explained there was no evidence of a right hip condition during service. There was no evidence of a hip condition at separation, though multiple references to musculoskeletal disorders were noted. There was no evidence of a hip condition until approximately 10 years post-service. There was no nexus established in service, at separation, within a year of service, or within approximately 10 years of service. The examiner opined it was less likely than not that any diagnosed right hip condition had its nexus in service due to events in service. The separation exam was negative for signs or symptoms of a hip condition as there was a very thorough description of the Veteran's musculoskeletal complaints and the hip was not noted. The examiner also opined it was less likely than not that the Veteran's right hip arthralgia/strain was due to or incurred in service. The separation exam was unequivocal. The examiner noted it was highly unlikely a significant hip condition would have gone unnoted or unreported, given the thoroughness of the exam and its documentation. Any claim of onset with continuity of symptoms since service was not supported by clearly documented evidence to the contrary. The examiner then noted if one were to concede its presence since service, then, by definition, it would have to be secondary to myopathy and would not represent a true separate hip condition. There was no evidence supporting such a concession and there was no evidence supporting its onset in service.

The examiner also opined the right hip disability was less likely than not proximately due to or the result of the Veteran's service-connected myopathy. The examiner explained myopathy would not cause a hip condition and that at the time of the February 2021 exam, the Veteran was diagnosed with arthralgia/ "right hip pain". At the time of the October 2021 exam, the Veteran was diagnosed with strain and the report indicated that strain implies a musculotendinous injury that may or may not become chronic. The examiner commented that the Veteran is service connected for myopathy, and conceding a separate diagnosis of strain or arthralgia, it could not be related to the Veteran's myopathy, as it would be "double dipping". Stated differently, if the symptoms were due to myopathy, it would not be a true hip condition. Nonetheless, myopathy would not cause or aggravate hip strain or joint pain. If anything, one would anticipate less activity and less likelihood of strain if the myopathy limited the Veteran's activity or caused hip pain. X-rays were normal, ruling out degenerative joint disease (DJD). However, the examiner further noted should the Veteran be diagnosed with DJD in the future, it would less likely than not (essentially unequivocal) be due to the Veteran's myopathy. The examiner stated that accepting the hip condition as a separate diagnosis of arthralgia/strain, it was less likely than not that the Veteran's claimed hip arthralgia/pain/strain was due to the Veteran's diagnosed myopathy. If it were deemed related to myopathy it would not represent a true hip condition but a symptom of the myopathy. There was no evidence supporting a connection.

The examiner could not establish a baseline of severity of the Veteran's right hip disability, but regardless of a baseline, the Veteran's right hip disability was not at least as likely as not aggravated beyond its natural progression by service-connected muscular myopathy. There was no evidence supporting an argument for aggravation of the Veteran's arthralgia/strain. His myopathy would not cause or aggravate his claimed hip condition. If the pain was due to myopathy, it would not be considered a separately diagnosable condition of the hip. That would be applying two separate diagnoses to the same symptom complex. There is no evidence of aggravation of the Veteran's condition beyond its natural course due to any cause. There was no evidence of natural progression, let alone aggravation. A myopathy would not aggravate a true hip condition and the Veteran's myopathy would be likely to limit activity that would lead to strain and arthralgia. Therefore, it was less likely than not that the Veteran's claimed right hip pain was aggravated beyond its natural course due to any cause, including the Veteran's myopathy as there appeared to be no significant natural progression and no aggravation could be implied.

The Board affords probative weight to this opinion as it is consistent with and supported by the evidence of record which shows no complaints of right hip pain other than complaints associated with the muscular myopathy.

The Board acknowledges the Veteran's contentions that he has experienced right hip problems since service. However, the Veteran has not been shown to have the experience, training, or education necessary to give a probative etiology opinion on the claimed disability. Although lay persons are competent to provide opinions on some medical issues, the Board finds that a lay person is not competent to provide a probative opinion as to the specific issues in this case in light of the education and training necessary to make a finding with regard to the complexities of the hip, to include as due to remote trauma and/or aging. See Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011); see Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007).

Ultimately, based on evidence as discussed above, to include complaints of right hip pain in service but none other than complaints associated with the Veteran's service-connected muscular myopathy, and no probative opinion or other evidence establishing an etiological relationship between the Veteran's military service and his right hip disability, the Board concludes that service connection for a right hip disability on a direct basis is not warranted.

The Veteran has also alleged entitlement to service connection for a right hip disability as secondary to his service-connected myopathy. However, the record does not show that the Veteran's myopathy caused or aggravated the right hip disability. In that regard, based on a review of the evidence of record, the November 2022 examiner opined that the Veteran's right hip disability was not caused or aggravated beyond its natural progression by the Veteran's service-connected myopathy. There is no competent and probative evidence to the contrary.

There is no competent and probative opinion of record to indicate that the two disabilities are etiologically related and no evidence that the Veteran's myopathy has caused an increase in the severity of his right hip disability. The Board thus concludes that, while the Veteran has a current right hip disability, the evidence of record persuasively weighs against finding that the disability is proximately due to or the result of, or aggravated beyond its natural progression by service-connected muscular myopathy. 38 U.S.C. �� 1110, 1131; Allen v. Brown, 7 Vet. App. 439 (1995) (en banc); 38 C.F.R. � 3.310(a).

Ultimately, based on the evidence of record, the Board concludes that service connection for a right hip disability on either a direct or secondary basis is not established. In rendering this opinion, the Board has considered all evidence of record as well as the Veteran's lay statements and symptoms and finds that on the record presented, entitlement to service connection for a right hip disability is not warranted on a direct or secondary basis. The claim must be denied.

Increased Rating

Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities and are intended to represent the average impairment of earning capacity resulting from disability. 38 U.S.C. � 1155; 38 C.F.R. � 4.1. Other applicable, general policy considerations are: interpreting reports of examination in light of the whole recorded history, reconciling the various reports into a consistent picture so that the current rating may accurately reflect the elements of disability, 38 C.F.R. � 4.2; resolving any reasonable doubt regarding the degree of disability in favor of the claimant, 38 C.F.R. � 4.3; where there is a question as to which of two evaluations apply, assigning the higher of the two where the disability picture more nearly approximates the criteria for the next higher rating, 38 C.F.R. � 4.7; and, evaluating functional impairment on the basis of lack of usefulness, and the effects of the disability upon the person's ordinary activity, 38 C.F.R. � 4.10. See Schafrath v. Derwinski, 1 Vet. App. 589 (1991).

Separate evaluations may be assigned for separate periods of time based on the facts found, a practice known as "staged ratings," which are appropriate for any rating claim when the factual findings show distinct time periods during the appeal where the disability exhibits symptoms that warrant different ratings. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007).

In making all determinations, the Board must fully consider the lay assertions of record. A layperson is competent to report on the onset and continuity of current symptomatology. See Layno v. Brown, 6 Vet. App. 465, 470 (1994) (finding that a Veteran is competent to report on that of which he has personal knowledge).

The Board is charged with the duty to assess the credibility and weight given to the evidence. Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997); Wensch v. Principi, 15 Vet. App. 362, 367 (2001). As a finder of fact, when considering whether lay evidence is satisfactory, the Board may also properly consider internal inconsistency of the statements, facial plausibility, and consistency with other evidence submitted on behalf of the Veteran. See Dalton v. Nicholson, 21 Vet. App. 23, 38 (2007); Caluza v. Brown, 7 Vet. App. 498, 511 (1995), aff'd per curiam, 78 F.3d 604 (Fed. Cir. 1996).

When evaluating musculoskeletal disabilities based on limitation of motion, 38 C.F.R. � 4.40 requires consideration of functional loss caused by pain or other factors listed in that section that could occur during flare-ups or after repeated use and, therefore, not be reflected on range-of-motion testing. 38 C.F.R. � 4.45 requires consideration also be given to less movement than normal, more movement than normal, weakened movement, excess fatigability, incoordination, and pain on movement. See DeLuca v. Brown, 8 Vet. App. 202 (1995); see also Mitchell v. Shinseki, 25 Vet. App. 32, 44 (2011). Nonetheless, even when the background factors listed in � 4.40 or 4.45 are relevant when evaluating a disability, the rating is assigned based on the extent to which motion is limited, pursuant to 38 C.F.R. � 4.71a (musculoskeletal system) or � 4.73 (muscle injury); a separate or higher rating under � 4.40 or 4.45 itself is not appropriate. See Thompson v. McDonald, 815 F.3d 781, 785 (Fed. Cir. 2016) ("[I]t is clear that the guidance of � 4.40 is intended to be used in understanding the nature of the veteran's disability, after which a rating is determined based on the � 4.71a [or 4.73] criteria.").

The intent of the rating schedule is to recognize painful motion with joint or periarticular pathology as productive of disability. Thus, it is the intention to recognize actually painful, unstable, or malaligned joints, due to healed injury, as entitled to at least the minimum compensable rating for the joint. 38 C.F.R. � 4.59; see Burton v. Shinseki, 25 Vet. App. 1, 5 (2011). In Petitti v. McDonald, 27 Vet. App. 415 (2015), the United States Court of Appeals for Veterans Claims (Court) rejected VA's argument that � 4.59 requires painful motion, such that the mere presence of joint pain is not sufficient. Id. at 428-29. The Court held that under � 4.59, "the trigger for a minimum disability rating is an actually painful, unstable, or malaligned joint," explaining that � 4.59 speaks to both painful motion of joints and actually painful joints. Id. at 425. Moreover, the Court held that � 4.59 does not require "objective" evidence but can be satisfied with lay and other non-medical evidence. Id. at 429.

VA recently amended the criteria for rating musculoskeletal disabilities effective from February 7, 2021. These new regulations apply to all applications for benefits received by VA or that are pending before the Agency of Original Jurisdiction (AOJ) on or after February 7, 2021. Claims pending prior to the effective date will be considered under both old and new rating criteria, and whatever criteria is more favorable to the veteran will be applied. The Board may not apply a current regulation prior to its effective date unless the regulation explicitly provides otherwise. Kuzma v. Principi, 341 F.3d 1327 (Fed. Cir. 2003). However, the Board is not precluded from applying prior versions of the applicable regulation to the period on or after the effective dates of the new regulation if the prior version was in effect during the pendency of the appeal.

The Veteran is currently receiving separate ratings for his right knee disability under the prior rating criteria, for limitation of flexion and extension under DCs 5260 and 5261, respectively.

Under DC 5260, a 10 percent rating is warranted where flexion is limited to 45 degrees, a 20 percent rating is available where flexion is limited to 30 degrees, and a 30 percent rating is warranted where flexion is limited to 15 degrees. 38 C.F.R. � 4.71a.

Under DC 5261, a noncompensable rating is warranted where extension is limited to 5 degrees, a 10 percent rating is warranted where extension is limited to 10 degrees, a 20 percent rating is warranted where extension is limited to 15 degrees, a 30 percent rating is warranted where extension is limited to 20 degrees, a 40 percent rating is warranted where extension is limited to 30 degrees, and a 50 percent rating is warranted where extension is limited to 45 degrees. 38 C.F.R. � 4.71a.

Normal ranges of motion of the knee are to 0 degrees in extension, and 140 degrees in flexion. 38 C.F.R. � 4.71, Plate II.

Separate ratings under DC 5260 and DC 5261 may be assigned for disability of the same joint. See VAOPGCPREC 9-2004 (Sept. 17, 2004). The Veteran may also be assigned separate ratings for limitation of motion under DC 5260 or 5261 and for instability under DC 5257. See VAOPGCPREC 23-97 (July 1, 1997). For a knee disability rated under DC 5257 to warrant a separate rating for arthritis based on X-ray findings and limitation of motion, limitation of motion under DC 5260 or 5261 need not be compensable but must at least meet the criteria for a non-compensable rating. A separate rating for arthritis could also be based on X-ray findings and painful motion under 38 C.F.R. � 4.59. See VAOPGCPREC 9-98 (August 14, 1998).

Additional separate disability ratings may be assigned, however, only if the symptomatology for a disability is not duplicative or overlapping with the symptomatology of any other disability. 38 C.F.R. � 4.14 (avoidance of pyramiding); see Esteban v. Brown, 6 Vet. App. 259, 261-62 (1994); Lyles v. Shulkin, 29 Vet. App. 107 (2017) (holding that 38 C.F.R. � 4.14 prohibits paying compensation twice for the same symptoms or functional impairment). When assigning ratings, the combined rating for disabilities of an extremity shall not exceed the rating for the amputation at the elective level, were amputation to be performed. 38 C.F.R. � 4.68. Amputation not improvable by prosthesis controlled by natural knee action warrants a 60 percent disability rating. 38 C.F.R. � 4.71a, DC 5164.

Conditions not specifically listed in the rating schedule may be rated by analogy under the diagnostic code for a closely related disease or injury in which the functions affected, anatomical location, and symptomatology are closely analogous. 38 C.F.R. � 4.20; Lendenmann v. Principi, 3 Vet. App. 345 (1992).

The Veteran was afforded a VA examination in November 2009. The Veteran reported stiffness, locking, and pain with physical activity. He noted when his knees flared up, they could limit his functional activities. On physical examination, the examiner noted moderate crepitus, but otherwise a normal knee examination without significant alteration of form or function. Range of motion was from zero to 140 degrees. The examiner diagnosed moderate chondromalacia with crepitus on examination.

The Veteran was afforded another VA examination in January 2016. The Veteran reported constant knee pain that flared with walking. No functional loss was described. Range of motion was from zero to 140 degrees with no pain or crepitus noted on examination. Pain, weakness, fatigability, or incoordination did not significantly limit functional ability with repeated use over time or flare-ups. There was no ankylosis or muscle atrophy, and muscle strength testing was normal. Stability testing was normal. The examiner indicated the Veteran had never had a meniscus condition. The knee condition did not impact the Veteran's ability to perform any type of occupational task.

A June 2016 VA treatment record noted the Veteran's complaints of right knee pain and locking. An MRI was ordered.

A July 2016 MRI impression noted early degenerative change at the patellofemoral compartment with patellofemoral chondromalacia. There were areas of moderate to high-grade cartilage loss at the femoral trochlea and probable high-grade to full-thickness/near full-thickness cartilage fissures/flaps at the patella areas or cartilage delamination and areas of subchondral osseus edema. There was probable medial meniscal degeneration and a small, possibly degenerative medial meniscal tear could not be excluded at the posterior horn. A focal area of nonspecific subchondral osseous edema/cystic change at the medial aspect of the medial tibial plateau that was likely reactive was noted. There was also possible patellar and distal quadriceps tendinosis with moderate edema in the quadriceps fat pad.

At the October 2019 Board hearing, the Veteran testified that his knee locks up, has buckled or gave way going downstairs for the past three to four years, and a 2016 MRI showed tears of the meniscus. He also stated he continued to have issues with range of motion, such as with kicking a ball.

The Veteran was examined for his right knee condition in February 2021. The Veteran reported constant pain, crepitus, popping, locking, and significant discomfort when sitting or driving as the leg became problematic when bent more than 90 degrees. He reported flare ups that occurred frequently throughout the day and caused discomfort, limitation, and pain. The flare ups lasted 10 to 15 minutes. The examiner indicated there was no history of instability or recurrent subluxation.

On physical examination, range of motion was from zero to 95 degrees with pain. There was no additional loss of function or range of motion with observed repetitive use. Pain, weakness, fatigability, lack of endurance, or incoordination did not significantly limit functional ability with repeated use over time. Pain significantly limited functional ability with flare ups with extension estimated to be limited to 0 degrees and flexion to 95 degrees. There was no muscle atrophy or ankylosis. The examiner indicated there was no joint instability, tibial or fibular impairment, or meniscal conditions.

The examiner noted the Veteran was employed fulltime at the state department. The Veteran described the impact of the condition as daily and throughout, from trying to sleep at night and when leg was bent more than 90 degrees, waking in the morning and trying to move about, driving his car, sitting at work, and movement and flexibility for moving about. He noted continued crepitus and popping, locking occasionally while walking or going down steps, significant discomfort when sitting or driving and as leg becomes problematic when bent more than 90 degrees, and pain during routine range of motion exercises such as bicycle riding and/or ellipse machine.

The Veteran was afforded another VA examination in October 2021. The Veteran reported stabbing pain, shredding paper like pain, locking, cracking with extension less than 45 degrees, and stepping down on weight-bearing and trying to maneuver quickly caused it to lock up. He also reported if it bends more than 45 degrees it would bring him out of sleep due to discomfort. The Veteran did not report flare-ups but did note functional impairment as a decrease in mobility, general discomfort, occasional painful spikes, and disturbance in sleep.

On physical examination, range of motion was from zero degrees extension to 120 degrees flexion with evidence of pain and crepitus. There was additional loss of range of motion after three repetitions with range of motion from zero degrees extension to 100 degrees flexion due to pain, weakness, and lack of endurance. The examiner estimated the same range of motion would occur with repeated use over time due to the same factors. Additional factors that contributed to his disability were interference with standing, interference with sitting, and disturbance of locomotion. There was no muscle atrophy or ankylosis. There was no recurrent subluxation or persistent instability, no ligament tear or sprain, and no recurrent patellar instability. However, the examiner also noted joint stability testing was indicated but not performed as the computer system was down and documentation was unavailable to perform testing because there were not instructions to do so. Shin splints diagnosed in 1992 had resolved. There was a meniscus condition with symptoms of frequent episodes of joint locking and pain. The examiner indicated there was no functional impact of the Veteran's right knee condition on his ability to perform any type of occupational task.

The Veteran was afforded another VA examination in November 2022. The Veteran reported chronic knee pain and flare up pain with instability. The Veteran described and demonstrated right knee popping and locking with prolonged walking and/or going up and down stairs or with bending the knee in a seated position. Flare ups occurred every day and could last for several days. Flare ups included dull to sharp pain, locking, and popping. The functional impairment experienced was pain and instability of the right knee. The examiner noted the Veteran had a history of instability or recurrent subluxation of the right knee. There were rare instances of the knee giving out, but knee locked and popped daily. The Veteran avoided and compensated activities to help with instability.

On physical examination, range of motion was from zero to 90 degrees with pain, crepitus, and tenderness to palpation noted on examination. There was no additional loss of function or range of motion after observed repetitive use. Pain, fatigability, and incoordination significantly limited functional ability with repeated use over time with extension estimated to be limited to 5 degrees and flexion to 70 degrees. Pain, fatigability, and lack of endurance significantly limited functional ability with flare ups with extension estimated to be limited to 5 degrees and flexion to 70 degrees. There was no ankylosis or muscle atrophy. There was recurrent subluxation or persistent instability but no ligament tear or sprain, no recurrent patellar instability, and the Veteran did not require a prescription for an assistive device for ambulation. The examiner noted there was a history of moderate lateral instability of the right knee. Joint stability testing was performed and anterior instability and medial instability were 2+. The examiner indicated the Veteran had a meniscus condition noting the symptoms of meniscal tear, frequent episodes of joint locking, and frequent episodes of joint pain. The knee condition impacted the Veteran's ability to perform occupational tasks as it limited his ability to squat and/or kneel and limited prolonged weight-bearing activities as they caused pain and risk of instability. The examiner noted the Veteran should not lift and/or carry weight greater than 30 pounds.

2. An initial rating in excess of 10 percent for right knee limitation of flexion

During the entire period on appeal, the Board observes that the Veteran has never displayed clinical findings of flexion limited to 30 degrees or less, which is required in order to warrant a higher disability rating under DC 5260. The Veteran's limitation of flexion, throughout the period on appeal has been at worst 45 degrees based on his own report, or 70 degrees based on examiner estimations. Therefore, the Board finds that the criteria for an increased rating based on limitation of flexion is not met or approximated, and the claim must be denied. As the persuasive weight of the evidence is against the claim, the benefit of the doubt rule is not for application.

3. An initial compensable rating for right knee limitation of extension

There is no adequate clinical evidence prior to November 21, 2022, that the Veteran experienced any limitation of extension of the right knee. Additionally, from November 21, 2022, the evidence simply does not show limitation of extension that would more closely approximate a higher disability rating. The November 2022 examination shows extension limited to 5 degrees at worst. Therefore, the Board finds that the criteria for a compensable rating based on limitation of extension is not met or approximated, and the claim must be denied. As the persuasive weight of the evidence is against the claim, the benefit of the doubt rule is not for application.

4. A separate 20 percent disability rating, but no higher, for right knee lateral instability from October 7, 2019

Diagnostic Code 5257 provided that a 10 percent rating was warranted for slight recurrent subluxation or lateral instability; a 20 percent rating was warranted for moderate recurrent subluxation or lateral instability; and a 30 percent rating was warranted for severe recurrent subluxation or lateral instability. 38 C.F.R. � 4.71a, Diagnostic Code 5257.

DC 5257 does not define "slight," "moderate," or "severe," or generally associate those terms with specific symptoms. According to MERRIAM WEBSTER'S COLLEGIATE DICTIONARY 999 (11th Ed. 2007), "slight" means small in amount. "Moderate" means limited in scope or effect. "Severe" means very painful or harmful or of a great degree.

As noted earlier in this decision, the Veteran's increased rating claims for his right knee disability, encompasses all symptoms of his claimed disability. He is currently in receipt of disability ratings based on limitation of extension and flexion, as detailed above.

The Board notes that while the examinations, with the exception of the November 2022, were found to be inadequate for purposes of adjudication because they were not compliant with certain requirements, the Board finds the examination reports contain some relevant findings specifically pertaining to instability that are included herein. No examination prior to November 2022 found objective evidence of lateral instability.

With respect to the claims of instability for the Veteran's right knee, the Board has considered whether there is subjective evidence of instability in the form of relevant lay evidence or descriptions offered by the Veteran or his representative.

The Board notes that the Court held in English v. Wilkie, No. 17-2083 (U.S. Vet. App. Nov. 1, 2018) that Diagnostic Code 5257 does not indicate medical evidence of instability is required and emphasized VA must adequately consider lay evidence of such.

The Board notes that the Veteran has reported numerous instances of alleged right knee instability. See, e.g., October 2019 Board hearing.

The Board resolves doubt in favor of the Veteran and finds that recurrent moderate right knee instability, has been shown since the October 7, 2019, Board hearing. According to MERRIAM WEBSTER'S COLLEGIATE DICTIONARY 999 (11th Ed. 2007), "moderate" means limited in scope or effect.

This rating is assigned due to the Veteran's subjective reports of instability and giving way. The Board resolves doubt for the Veteran, even though the objective instability tests have been normal prior to November 2022. The January 2016 VA examination noted all joint stability testing was normal and the Veteran did not report giving way of the right knee. At the October 2019 Board hearing the Veteran testified that his knee would slightly give way while going down the stairs for past three to four years. However, as noted above, the Veteran had no instability issues at the January 2016 VA examination and treatment records also do not indicate an instability issue prior to the October 2019 Board hearing. The Board further notes the February 2021 VA examiner noted to instability but did not conduct instability testing, nor did it address the Veteran's reports of instability. Additionally, the October 2021 VA examination noted that joint stability testing was indicated but not performed. Therefore, the November 2022 VA examination was the first examination after an indication from the Veteran that there was an instability issue that adequately addressed the Veteran's instability. The examiner indicated the Veteran had a history of moderate lateral instability of the right knee. Therefore, the Board will consider the Veteran's lateral instability was moderate in nature since the time the record first noted instability of the right knee, during the October 7, 2019, Board hearing.

In sum, resolving doubt in the Veteran's favor, the Board finds that since October 7, 2019, the Veteran's right knee disability, manifested with moderate lateral instability. See English, supra.

The Board has considered a higher 30 percent rating under DC 5257, but the Board finds more probative the object findings of the VA examination report where the examiner indicated moderate instability test results.

Hence, for the entire period on appeal, the Board finds the Veteran's right knee symptoms more nearly approximate a 20 percent rating for moderate lateral instability based on subjective reports of instability and giving way.

The Board has also considered the other diagnostic codes pertaining to the right knee. Other disability ratings may be assigned only if the symptomatology for a disability is not duplicative or overlapping with the symptomatology of any other disability. See Esteban v. Brown, 6 Vet. App. 259, 261-62 (1994); Lyles v. Shulkin, 29 Vet. App. 107 (2017) (holding that 38 C.F.R. � 4.14 prohibits paying compensation twice for the same symptoms or functional impairment).

However, after review, a higher or separate rating is not available under Diagnostic Codes 5256, 5258, 5259, 5262, 5263 as the evidence of record indicates the Veteran does not have ankylosis of the right knee, dislocated semilunar cartilage with frequent episodes of locking pain and effusion, symptomatic removal of the semilunar cartilage, impairment of the tibia and fibula, or genu recurvatum.

In conclusion, resolving doubt in the Veteran's favor, the Board finds a 20 percent rating, and no higher, is warranted for moderate instability of the right knee disability for the entire period on appeal.

MARJORIE A. AUER

Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board	Gastoukian, Kelly

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.