judge_norm: M C GRAHAM

condition: knee

condition: back

disposition: denied

condition: tinnitus

condition: radiculopathy

condition: shoulder

condition: erectile

benefit: smc

text:
��Citation Nr: 20013000

Decision Date: 02/20/20	Archive Date: 02/19/20

DOCKET NO. 19-12 416A

DATE: February 20, 2020

ORDER

Entitlement to service connection for arthritis of the left knee (with partial surgical knee replacement) is granted.

Entitlement to service connection for arthritis of the right knee, to include as secondary to left knee arthritis, is granted.

Entitlement to service connection for degenerative changes and bulging disc disability of the lumbosacral spine, as secondary to bilateral knee arthritis, is granted.

Entitlement to service connection for tension headaches (as secondary to service-connected disabilities featuring tinnitus, hearing loss, and painful disabilities of the knees and right hand) is granted.

Entitlement to service connection for major depressive disorder including associated symptoms of anxiety (as secondary to service-connected disabilities featuring tinnitus, hearing loss, and painful disabilities of the right hand) is granted.

The appeal to establish entitlement to an effective date prior to March 23, 2017, for the award of service connection for bilateral hearing loss is denied.

The appeal to establish entitlement to an effective date prior to March 23, 2017, for the award of service connection for tinnitus is denied.

The appeal to establish entitlement to an effective date prior to March 23, 2017, for the award of service connection for right radial nerve neuropathy is denied.

The appeal to establish entitlement to an effective date prior to March 23, 2017, for the award of service connection for degenerative arthritis of the right hand is denied.

The appeal to establish entitlement to an initial rating in excess of 10 percent for service-connected tinnitus is denied.

REMANDED

The issue of entitlement to a disability rating in excess of 20 percent for bilateral hearing loss is remanded.

The issue of entitlement to a disability rating in excess of 30 percent for right radial nerve neuropathy is remanded.

The issue of entitlement to service connection for a left ankle disability is remanded.

The issue of entitlement to service connection for a right ankle disability is remanded.

The issue of entitlement to service connection for a left shoulder disability is remanded.

The issue of entitlement to service connection for a right shoulder disability is remanded.

The issue of entitlement to service connection for a disability manifested by sleep impairment is remanded.

The issue of entitlement to service connection for erectile dysfunction, to include as secondary to established service-connected disabilities, is remanded.

The issue of entitlement to a disability rating in excess of 10 percent for right hand degenerative arthritis is remanded.

The issue of entitlement to special monthly compensation (SMC) based on the need for regular aid and attendance of another person is remanded.

FINDINGS OF FACT

1. Resolving reasonable doubt in the Veteran s favor, his arthritis of the left knee (with partial surgical knee replacement) is at least as likely as not etiologically linked to his symptoms during active duty service.

2. Resolving reasonable doubt in the Veteran s favor, his arthritis of the right knee is at least as likely as not etiologically linked to his symptoms during active duty service and/or his arthritis of the left knee.

3. Resolving reasonable doubt in the Veteran s favor, his degenerative changes and bulging disc disability of the lumbosacral spine is at least as likely as not causally linked to his service-connected knee disabilities.

4. Resolving reasonable doubt in the Veteran s favor, his tension headaches disability is at least as likely as not causally linked to his service-connected disabilities featuring tinnitus, hearing loss, and painful disabilities of his knees and right hand.

5. Resolving reasonable doubt in the Veteran s favor, his major depressive disorder (including associated symptoms of anxiety) is at least as likely as not causally linked to his service-connected disabilities featuring tinnitus, hearing loss, and painful disabilities of his right hand.

6. The earliest claim seeking to establish entitlement to service connection for bilateral hearing loss was received by VA no earlier than March 23, 2017.

7. The earliest claim seeking to establish entitlement to service connection for tinnitus was received by VA no earlier than March 23, 2017.

8. The earliest claim seeking to establish entitlement to service connection for right radial nerve neuropathy was received by VA no earlier than March 23, 2017.

9. The earliest claim seeking to establish entitlement to service connection for degenerative arthritis of the right hand was received by VA no earlier than March 23, 2017.

10. The Veteran s tinnitus is assigned a single 10 percent rating, which is the maximum evaluation authorized under Diagnostic Code 6260.

CONCLUSIONS OF LAW

1. The criteria for entitlement to service connection for arthritis of the left knee have been met.  38 U.S.C. �� 1110, 1112, 1113, 1137, 5107; 38 C.F.R. �� 3.102, 3.303, 3.307, 3.309.

2. The criteria for entitlement to service connection for arthritis of the right knee have been met.  38 U.S.C. �� 1110, 1112, 1113, 1137, 5107; 38 C.F.R. �� 3.102, 3.303, 3.307, 3.309.

3. The criteria for entitlement to service connection for degenerative changes and bulging discs of the lumbosacral spine are met.  38 U.S.C. �� 1110, 1112, 1113, 1131, 1137, 5107(b); 38 C.F.R. �� 3.102, 3.303, 3.307, 3.309, 3.310.

4. The criteria for entitlement to service connection for tension headaches are met.  38 U.S.C. �� 1110, 1112, 1113, 1131, 1137, 5107(b); 38 C.F.R. �� 3.102, 3.303, 3.307, 3.309, 3.310.

5. The criteria for entitlement to service connection for major depressive disorder (including associated symptoms of anxiety) are met.  38 U.S.C. �� 1110, 1112, 1113, 1131, 1137, 5107(b); 38 C.F.R. �� 3.102, 3.303, 3.307, 3.309, 3.310.

6. The criteria for an effective date prior to March 23, 2017, for the award of service connection for bilateral hearing loss have not been met.  38 U.S.C. � 5110; 38 C.F.R. � 3.400.

7. The criteria for an effective date prior to March 23, 2017, for the award of service connection for tinnitus have not been met.  38 U.S.C. � 5110; 38 C.F.R. � 3.400.

8. The criteria for an effective date prior to March 23, 2017, for the award of service connection for right radial nerve neuropathy have not been met.  38 U.S.C. � 5110; 38 C.F.R. � 3.400.

9. The criteria for an effective date prior to March 23, 2017, for the award of service connection for degenerative arthritis of the right hand have not been met.  38 U.S.C. � 5110; 38 C.F.R. � 3.400.

10. The criteria for an increased rating for tinnitus have not been met.  38 U.S.C. � 1155; 38 C.F.R. � 4.87, Diagnostic Code 6260.

REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

The Veteran served on active duty from January 1967 to December 1968.

This case is before the Board of Veterans  Appeals (Board) on appeal from multiple rating decisions by a Regional Office (RO) of the Department of Veterans Affairs (VA).  A December 2017 RO rating decision granted service connection for right radial nerve neuropathy and degenerative arthritis of the right hand; the Veteran has appealed to the Board the initial rating assignments and effective dates associated with those grants.  The rest of the issues currently on appeal before the Board arise from a June 2017 RO rating decision.

The Board notes that the Veteran s representative submitted new evidence to the Board in December 2019.  In a letter accompanying this submission, the Veteran s representative waived initial RO consideration of new evidence added into the file.  38 C.F.R. � 20.1304.

As discussed in the remand section of this decision, below, both of the of Statements of the Case (SOCs) issued in May 2019 by the Agency of Original Jurisdiction (AOJ) specifically cite evidence that is not available in the claims-file for the Board to review:  VAMC (Veterans Affairs Medical Center) treatment records, Bronx VA Medical Center, from May 9, 2017 through February 20, 2019.   As explained in the remand section of this decision, additional development is necessary before final appellate review can proceed on some of the issues on appeal in this case, including the need to obtain the VA medical records as part of the claims-file for the Board to review.  However, the Board has determined that some of the issues on appeal at this time can be resolved by the Board with final decisions prior to obtaining the missing records.  These issues are (1) the set of service connection claims for which the Board finds the evidence of record is sufficient to fully grant to benefits sought, (2) the set of claims for earlier effective dates that must be denied as a matter of law regardless of the contents of medical evidence created after the existing assigned effective date, and (3) the tinnitus rating issue that must be denied as a matter of law regardless of the contents of medical evidence.

Service Connection

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

To establish service connection for a claimed disability, there must be evidence of: (1) a current disability; (2) incurrence or aggravation of a disease or injury in service; and (3) a causal connection between the disease or injury in service and the current disability.  See Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004).  The determination as to whether these requirements are met is based on an analysis of all the evidence of record and an evaluation of its credibility and probative value.  Baldwin v. West, 13 Vet. App. 1 (1999); 38 C.F.R. � 3.303(a).

Certain chronic diseases, including arthritis / degenerative joint disease, may be presumed to have been incurred during service if they become disabling 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.

Disabilities which are proximately due to or the result of a service-connected disease or injury shall be service connected.  38 C.F.R. � 3.310.  Establishing service connection on a secondary basis requires (1) competent evidence (a medical diagnosis) of current chronic disability; (2) evidence of a service-connected disability; and (3) competent evidence that the current disability was either (a) caused by or (b) aggravated by a service-connected disability.  Id.  The Board also notes that secondary service connection on the basis of aggravation is permitted under 38 C.F.R. � 3.310, and compensation is payable for that degree of aggravation of a non-service-connected disability caused by a service-connected disability.  Allen v. Brown, 7 Vet. App. 439 (1995).

It is the defined and consistently applied policy of VA to administer the law under a broad interpretation, consistent, however, with the facts shown in every case.  When, after careful consideration of all procurable and assembled data, a reasonable doubt arises regarding service origin, the degree of disability, or any other point, such doubt will be resolved in favor of the claimant.  By reasonable doubt is meant one which exists because of an approximate balance of positive and negative evidence which does not satisfactorily prove or disprove the claim.  It is a substantial doubt and one within the range of probability as distinguished from pure speculation or remote possibility.  See 38 C.F.R. � 3.102.

1. Entitlement to service connection for arthritis of the left knee (with partial surgical knee replacement) is granted.

2. Entitlement to service connection for arthritis of the right knee, to include as secondary to left knee arthritis, is granted.

In December 2019, the Veteran submitted a July 2019 private medical opinion from Dr. H.S.  The author cited review of the evidence in the claims-file and interview of the Veteran as informing his analysis and opinion.  The author cited the Veteran s service treatment records showing no knee disability at his entrance to active service and showing that  [o]n 1/19/1967, while in service, the veteran presented with bilateral knee pain which began in basic training.  He reported his knees were clicking and buckling after walking or running.   The author discusses that the service treatment records show that the Veteran  was referred to the orthopedic clinic when the exam revealed his right patella had more movement than normal with definite clicking noise audible and palpable and x-rays revealed left femur bony spur.   The author furthermore cites that  [t]he service treatment record from the orthopedic clinic on 4/4/1967 noted weakness of the left collateral ligament.   (The Board s own review of the cited April 1967 service treatment record has left in unclear as to whether the noted  weak lat[eral] collateral lig[ament]  was in the left knee rather than the right knee, but the Board finds that the uncertainty is not significantly consequential to the analysis of this appeal.)

The July 2019 private medical opinion goes on to discuss that the Veteran  underwent left partial knee replacement in 2006,  and had also since been diagnosed with  primary osteoarthritis  of the  right knee.   The author concludes:  it is as likely as not the veteran s current bilateral knee condition is related to and a progression of his bilateral knee problems which began while he was in service.   The author s discussion of rationale indicated both (1) an etiological link between the current disabilities of both knees and active duty service, and (2) an etiological link between the left knee disability / replacement surgery and the subsequently diagnosed right knee arthritis.

The Board s own review of the evidence of record reveals that the facts cited by the July 2019 private opinion are essentially consistent with the evidence of record.  The Board finds that July 2019 private medical opinion has been presented by a competent professional expert and addresses the pertinent medical matter with an opinion explaining the author s rationale and citing pertinent facts of record.  The Board finds that the July 2019 private opinion is probative and adequate to support the Veteran s claims of entitlement to service connection for disabilities of both knees.  The July 2019 private opinion supports the Veteran s claim.  The Board finds no contrary medical opinion of record, nor otherwise any significantly contrary indications in the evidence of record.  Thus, the Board finds that the July 2019 private medical opinion is persuasive in its support of the Veteran s claims of entitlement to service connection for disabilities of the knees.

The Board notes that the Veteran s private medical records, including records obtained by VA from the Social Security Administration (SSA), document medical treatment for diagnosed chronic arthritis in both of the Veteran s knees (including surgical treatment / partial replacement of the left knee).  The first Shedden requirement for a grant of entitlement to service connection is satisfied.

The Board finds that the service treatment records document that the Veteran had pertinent in-service symptomatology / clinical findings for both knees, consistent with the discussion of those records in the July 2019 private medical opinion.  The second Shedden requirement for a grant of entitlement to service connection is satisfied.

The Board finds that the July 2019 private medical opinion adequately supports finding that the Veteran s current knee disabilities are etiologically linked to his in-service knee problems.  The third Shedden requirement for a grant of entitlement to service connection is satisfied.

As such, the Board finds that entitlement to service connection for arthritis of the left knee and arthritis of the right knee is warranted.  38 U.S.C. � 5107; 38 C.F.R. � 3.102.  To this extent, the appeal is granted.

3. Entitlement to service connection for degenerative changes and bulging disc disability of the lumbosacral spine, as secondary to bilateral knee arthritis, is granted.

Continuing from the discussion of the knee disability claims, above, the Board notes that the July 2019 private medical opinion from Dr. H.S. asserts that the Veteran s back disability is etiologically linked to the disabilities of the knees for which service-connected has now been established.  Dr. H.S. concluded:  given the veteran s medi[c]al history of chronic bilateral knee pain, medical treatment noting his limping gait and his significant lumbar spine MRI findings, I believe it is as likely as not his bilateral knee pain contributed significantly and materially to his lumbar spine conditions.   Dr. H.S. explained the rationale for his opinion, discussing that  medical research has shown knee conditions, causing a limping gait, can certainly contribute to spinal conditions.   Dr. H.S. further explained:

Any condition which results in major displacement of the center of gravity of the body s mass away from the vertical axis of the spine will crea[te] increased forces in the stabilizing posterior erector spinal muscles in order to balance the spine.  With limping, there is a shift of the body s center of gravity & .  The increased muscle pull increases the force transferred across the lumbar discs &  due to mechanical leverage and repetitive pull of the trunk musculature could in time result in increased wear and tear of the disc segments which would in turn cause or aggravate degenerative change.

The Board s own review of the evidence of record reveals that the facts cited by the July 2019 private opinion are essentially consistent with the evidence of record.  The Board finds that July 2019 private medical opinion has been presented by a competent professional expert and addresses the pertinent medical matter with an opinion explaining the author s rationale and citing pertinent facts of record.  The Board finds that the July 2019 private opinion is probative and adequate to support the Veteran s claim of entitlement to service connection for disabilities of the lumbosacral spine.  The July 2019 private opinion supports the Veteran s claim.  The Board finds no contrary medical opinion of record, nor otherwise any significantly contrary indications in the evidence of record.  Thus, the Board finds that the July 2019 private medical opinion is persuasive in its support of the Veteran s claim of entitlement to service connection for disabilities of the knees.

The Board notes that the Veteran s private medical records, including records obtained by VA from the SSA, document medical treatment for diagnosed degenerative changes and bulging discs of the lumbosacral spine.  Confirming MRI findings were documented in a February 2009 private medical report (in the set obtained from SSA). The first requirement (a current disability) for a grant of entitlement to service connection on a secondary basis is satisfied.

The Board finds, as discussed above, that his disabilities of both knees are now service-connected disabilities.  The second requirement (a service-connected disability) for a grant of entitlement to service connection on a secondary basis is satisfied.

The Board finds that the July 2019 private medical opinion adequately supports finding that the Veteran s current lumbosacral spine disabilities are etiologically linked to his service-connected knee disabilities.  The third requirement (etiological link) for a grant of entitlement to service connection on a secondary basis is satisfied.

As such, the Board finds that entitlement to service connection for degenerative changes and bulging discs of the lumbosacral spine is warranted.  38 U.S.C. � 5107; 38 C.F.R. � 3.102.  To this extent, the appeal is granted.

4. Entitlement to service connection for tension headaches (as secondary to service-connected disabilities featuring tinnitus, hearing loss, and painful disabilities of the knees and right hand) is granted.

In December 2019, the Veteran s representative submitted another July 2019 private medical opinion from Dr. H.S., this one regarding the Veteran s claim of entitlement to service connection for headaches.  Dr. H.S. opines that the Veteran s diagnosis of  tension headaches  is etiologically linked to the Veteran s previously established service-connected disabilities.  Dr. H.S. concluded:  it is as likely as not the veteran s diagnosed service connected tinnitus, right radial nerve neuropathy and right hand degenerative arthritis as well as his bilateral knee and back pain aided in the development of and permanently aggravate his headaches& .   Dr. H.S cited review of pertinent evidence in the claims-file as well as interview of the Veteran.  The opinion discusses documented VA examination findings regarding the service-connected disabilities, and explains:  It is known [that] damage to the auditory system resulting in tinnitus can also cause headaches.  Research has shown in patients with tinnitus, frequency of headache is strongly correlated with the severity of tinnitus symptoms.   Dr. H.S. also discusses that  [d]uring stressful events, such as exacerbations of chronic pain, certain chemicals in the brain are released - engaging what is commonly referred to as the flight or fight response - which can cause vascular changes which can precipitate a headache.   The author states that each of the pertinent service-connected disabilities  are significant risk factors for a headache condition,  and explains that the conclusion regarding the likelihood of a nexus to the Veteran s headache diagnosis in this specific case was drawn from  consultation with the veteran today [and] a review of the medical records and supporting literature& .

The Board s own review of the evidence of record reveals that the facts cited by the July 2019 private opinion are essentially consistent with the evidence of record.  The Board finds that July 2019 private medical opinion has been presented by a competent professional expert and addresses the pertinent medical matter with an opinion explaining the author s rationale and citing pertinent facts of record.  The Board finds that the July 2019 private opinion is probative and adequate to support the Veteran s claim of entitlement to service connection for diagnosed tension headaches.  The July 2019 private opinion supports the Veteran s claim.  The Board finds no contrary medical opinion of record, nor otherwise any significantly contrary indications in the evidence of record.  Thus, the Board finds that the July 2019 private medical opinion is persuasive in its support of the Veteran s claim of entitlement to service connection for tension headaches.

The Board finds that Dr. H.M. s July 2019 diagnosis of tension headaches based upon interview of the Veteran, documented in the Disability Benefits Questionnaire submitted in December 2019, is a competent diagnosis of the claimed disability.  The first requirement (a current disability) for a grant of entitlement to service connection on a secondary basis is satisfied.

The Board finds, including as discussed above, that the disabilities cited by Dr. H.G. as causes of the Veteran s headaches are each now service-connected disabilities.  The second requirement (one or more service-connected disabilities) for a grant of entitlement to service connection on a secondary basis is satisfied.

The Board finds that the July 2019 private medical opinion adequately supports finding that the Veteran s current tension headache disability is etiologically linked to his service-connected disabilities.  The third requirement (etiological link) for a grant of entitlement to service connection on a secondary basis is satisfied.

As such, the Board finds that entitlement to service connection for tension headaches is warranted.  38 U.S.C. � 5107; 38 C.F.R. � 3.102.  To this extent, the appeal is granted.

5. Entitlement to service connection for major depressive disorder including associated symptoms of anxiety (as secondary to service-connected disabilities featuring tinnitus, hearing loss, and painful disabilities of the right hand) is granted.

In December 2019, the Veteran s representative submitted a November 2019 Mental Disorders Disability Benefits Questionnaire with a private medical opinion prepared by an expert psychologist.  The author confirms a DSM-5 diagnosis of  Major Depressive Disorder, Recurrent, Moderate.   The author presents a medical opinion stating that  [the Veteran s] right radial nerve neuropathy, bilateral hearing loss, tinnitus and degenerative arthritis right hand are more likely than not causing his major depressive disorder& .   The author cites that the opinion is  based on interview and [review of] the C-File& .   The author s report discusses, in pertinent part:

that the  Veteran describes chronic pain issues associated with his right arm and hand, significant hearing loss, tinnitus as well as his chronic knee and back contribute significantly to his mental health.  He feels ashamed of his conditions and limitations, has no confidence and doesn t want his family and friends to know what is happening to him.  He has extreme anxiety, mood swings, occasional memory loss and feels  jumpy  when he is around others& .  Chronic pain contributes to the depression as there is a never ending merry go round of physical and mental anguish debilitating the Veteran.

The authoring psychologist cites specific medical records in the claims file regarding the nature and extent of symptomatology from the Veteran s pertinent service-connected impairments.  The authoring psychologist also cites medical journal articles supporting the opinion, summarizing that  [t]here is a body of literature detailing the connection between medical issue[s], like the issues that [the Veteran] struggles [with] and psychiatric disorder, similar to his major depressive disorder complaints.   The authoring psychologist cites medical journal articles to support that  there is a causal relationship between medical and psychiatric difficulty,  also that there is an  association between tinnitus and comorbid psychology disorders including a high prevalence of anxiety and depression in tinnitus sufferers,  and that  [n]umerous research studies document that hearing loss has a significant biopsychosocial impact on quality of life& .  [P]eople with hearing loss are more inclined to experience depression, anxiety, anger, frustration[,] social isolation and loneliness.   On the basis of the information summarized above, the authoring private psychologist concluded that  [the Veteran s] right radial nerve neuropathy, bilateral hearing loss, tinnitus and degenerative arthritis right hand are more likely than not causing his major depressive disorder& .

The Board s own review of the evidence of record reveals that the facts cited by the November 2019 private psychology opinion are reasonably consistent with the evidence of record.  The Board finds that the November 2019 private psychology opinion has been presented by a competent professional expert and addresses the pertinent medical matter with an opinion explaining the author s rationale and citing pertinent facts of record.  The Board finds that the November 2019 private opinion is probative and adequate to support the Veteran s claim of entitlement to service connection for diagnosed major depressive disorder.  The November 2019 private opinion supports the Veteran s claim.  The Board finds no contrary medical opinion of record, nor otherwise any significantly contrary indications in the evidence of record.  Thus, the Board finds that the November 2019 private psychology opinion is persuasive in its support of the Veteran s claim of entitlement to service connection for major depressive disorder.

The Board finds that the November 2019 diagnosis of major depressive disorder based upon interview of the Veteran, documented in the Disability Benefits Questionnaire submitted in December 2019, is a competent diagnosis of the claimed disability.  The first requirement (a current disability) for a grant of entitlement to service connection on a secondary basis is satisfied.

The Board finds, including as discussed above, that the disabilities cited (by the author of the November 2019 private psychology opinion) as causes of the Veteran s major depressive disorder are each service-connected disabilities.  The second requirement (one or more service-connected disabilities) for a grant of entitlement to service connection on a secondary basis is satisfied.

The Board finds that the November 2019 private psychology opinion adequately supports finding that the Veteran s current major depressive disorder is etiologically linked to his service-connected disabilities.  The third requirement (etiological link) for a grant of entitlement to service connection on a secondary basis is satisfied.

As such, the Board finds that entitlement to service connection for major depressive disorder (including associated symptoms of anxiety) is warranted.  38 U.S.C. � 5107; 38 C.F.R. � 3.102.  To this extent, the appeal is granted.

Effective Dates

6. The appeal to establish entitlement to an effective date prior to March 23, 2017, for the award of service connection for bilateral hearing loss is denied.

7. The appeal to establish entitlement to an effective date prior to March 23, 2017, for the award of service connection for tinnitus is denied.

8. The appeal to establish entitlement to an effective date prior to March 23, 2017, for the award of service connection for right radial nerve neuropathy is denied.

9. The appeal to establish entitlement to an effective date prior to March 23, 2017, for the award of service connection for degenerative arthritis of the right hand is denied.

The Veteran s August 2017 notice of disagreement initiated an appeal of the effective date of award for the grants of service connection (with an initial rating assignment) for the Veteran s (1) bilateral hearing loss, (2) tinnitus, (3) right radial nerve neuropathy, and (4) degenerative arthritis of the right hand.  The effective date of March 23, 2017, was assigned for each of these awards.  The Veteran s May 2019 VA Form 9 Substantive Appeal (submitted over two separate VA Form 9s, filed nearly simultaneously) perfected these appeals to the Board for review.  The effective date for the hearing loss and tinnitus disability awards was assigned in a June 2017 RO rating decision that granted service connection for those disabilities.  The effective date for the right radial nerve and right hand degenerative arthritis disability awards was assigned in a July 2017 RO rating decision that granted service connection for those disabilities.

The assignment of effective dates of awards is generally governed by 38 U.S.C. � 5110 and 38 C.F.R. � 3.400.  Unless specifically provided otherwise, the effective date of an award based on an original claim for compensation benefits shall be the date of receipt of the claim or the date entitlement arose, whichever is later.  See 38 U.S.C. � 5110(a); 38 C.F.R. � 3.400(b)(2).  However, if a claim is received within one year from the date of discharge or release from service, the effective date of an award for disability compensation to a Veteran shall be the day following the date of discharge or release.  38 U.S.C. � 5110(b)(1); 38 C.F.R. � 3.400(b)(2); see also Wright v. Gober, 10 Vet. App. 343, 346-48 (1997).

The RO has determined that the Veteran initiated a claim of entitlement to service connection for (1) bilateral hearing loss, (2) tinnitus, (3) right radial nerve neuropathy, and (4) degenerative arthritis of the right hand on March 23, 2017.  When the RO later granted service connection for these disabilities, it determined that the pertinent impairment was shown to have been present since at least as early as the March 23, 2017, date of the claims.  On this basis, the RO assigned an effective date of March 23, 2017, for each of the pertinent awards.

To resolve the effective date issue regarding the awards of service connection for these disabilities, the Board must determine the earliest date upon which the Veteran filed a claim raising the issues of entitlement to service connection for the disabilities.  The Board finds no such claim was filed prior to March 23, 2017.

The Board finds no basis for assignment of any effective date earlier than March 23, 2017, for the grants of service connection at issue.  The Veteran has not identified any pertinent earlier claim, nor has he otherwise identified any provision or authority that would enable to Board to assign an effective date prior to the date of the service connection claims for the disabilities at issue.  Nor does the claims-file document any suggestion that the grants of service connection at issue here  arose from any earlier claim.  The claim filed on March 23, 2017, was clearly not filed within a year of the Veteran s discharge from service, nor does the Veteran contend otherwise.

The Board generally cannot assign an effective date for these awards earlier than the date of the Veteran s claim under the pertinent laws and regulations.  As explained above, the effective date shall be the date of receipt of the claim or the date entitlement arose, whichever is later.  The facts in this case provide that the later of those two dates is the date of the claim, which is March 23, 2017; there is no indication of any claim prior to March 23, 2017, that was already pending at that time.  The Veteran has not identified any alternative applicable facts, laws, regulations, or other manner of theory that may authorize any effective date earlier than March 23, 2017, for the awards in this case.

Accordingly, the appeal for an effective date prior to March 23, 2017, for the grants of service connection for (1) bilateral hearing loss, (2) tinnitus, (3) right radial nerve neuropathy, and (4) degenerative arthritis of the right hand, must be denied as a matter of law.  The law is dispositive in this matter.  See Sabonis v. Brown, 6 Vet. App. 426, 430 (1994).

Increased Rating

10. The appeal to establish entitlement to an initial rating in excess of 10 percent for service-connected tinnitus is denied.

Disability ratings are assigned in accordance with VA s Schedule for Rating Disabilities and are intended to represent the average impairment of earning capacity resulting from a disability.  See 38 U.S.C. � 1155; 38 C.F.R. �� 3.321(a), 4.1.  When a question arises as to which of two ratings shall be applied under a particular diagnostic code, the higher rating will be assigned if the disability picture more nearly approximates the criteria for the higher rating; otherwise, the lower rating will be assigned.  See 38 C.F.R. � 4.7.  An exception to this rule applies when the rating criteria are successive.  In such a case, all the requirements of the lower levels must be met before a higher level is awarded, and 38 C.F.R. �� 4.7 and 4.21 do not apply.  Johnson v. Wilkie, 30 Vet. App. 245 (2018).

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.  It is the policy of VA to administer the law under a broad interpretation, consistent with the facts in each case with all reasonable doubt to be resolved in favor of the claimant; however, the reasonable doubt rule is not a means for reconciling actual conflict or a contradiction in the evidence.  38 U.S.C. � 5107(b); 38 C.F.R. � 3.102.

With a claim for an increased initial rating (as in this case), separate staged ratings may be assigned based on facts found.  Fenderson v. West, 12 Vet. App. 119 (1999).

The Board notes that it has reviewed all of the evidence in the record, with an emphasis on the evidence relevant to this appeal.  Although the Board has an obligation to provide reasons and bases supporting its decision, there is no need to discuss, in detail, every piece of evidence of record.  Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000).  Hence, the Board will summarize the relevant evidence as appropriate, and the Board s analysis will focus specifically on what the evidence shows, or fails to show, as to each claim being decided.

In McGrath v. Gober, 14 Vet. App. 28 (2000), the Court held that when evidence is created is irrelevant compared to when the Veteran was actually experiencing the symptoms.  Thus, the Board will consider whether the evidence of record suggests that the severity of pertinent symptoms increased sometime prior to the date of the examination reports noting pertinent findings.  The Board has also considered the history of the Veteran s disabilities prior to the rating period on appeal to see if it supports a higher rating during the rating period on appeal.  The rating period for consideration in this claim begins with the effective date of the grant of service connection for the Veteran s hearing loss: March 23, 2017.

The Veteran s tinnitus is rated under Diagnostic Code 6260.  The highest possible schedular rating for tinnitus is 10 percent; it is not possible for the Veteran to receive a higher rating under Diagnostic Code 6260.  In addition, only a single rating is warranted for tinnitus regardless of whether the tinnitus is unilateral or bilateral.  38 C.F.R. � 4.87, Diagnostic Code 6260, Note (2).  As the Veteran is already receiving the maximum schedular disability rating for tinnitus, his claim is denied.

Aside from what is addressed in this decision, neither the Veteran nor his representative has raised any other issues associated with the tinnitus rating, nor have any other such issues been reasonably raised by the record.  See Doucette v. Shulkin, 28 Vet. App. 366 (2017) (confirming that the Board is not required to address issues unless they are specifically raised by the claimant or reasonably raised by the evidence of record).

REASONS FOR REMAND

1. The issue of entitlement to a disability rating in excess of 20 percent for bilateral hearing loss is remanded.

2. The issue of entitlement to a disability rating in excess of 30 percent for right radial nerve neuropathy is remanded.

3. The issue of entitlement to service connection for a left ankle disability is remanded.

4. The issue of entitlement to service connection for a right ankle disability is remanded.

5. The issue of entitlement to service connection for a left shoulder disability is remanded.

6. The issue of entitlement to service connection for a right shoulder disability is remanded.

7. The issue of entitlement to service connection for a disability manifested by sleep impairment is remanded.

Both of the of SOCs issued in May 2019 by the AOJ specifically cite evidence including:  VAMC (Veterans Affairs Medical Center) treatment records, Bronx VA Medical Center, from May 9, 2017 through February 20, 2019.   Additional references to the VA outpatient medical records are made in the reasons and bases presented for the determinations issued in these documents.

Significantly, the claims-file available for review by the Board does not include the referenced set of the Veteran s outpatient VA medical records.

Pursuant to 38 U.S.C. � 5103A(a), VA is required to make reasonable efforts to assist a claimant in obtaining evidence necessary to substantiate the claimant s claim.  VA is required to make as many requests as are necessary to obtain relevant records from a Federal department or agency, including VA medical records regardless of their relevance.  38 C.F.R. �� 3.159(c)(2), (3).  See also Sullivan v. McDonald, 815 F.3d 786, 792 (Fed. Cir. 2016).

Because the VA outpatient medical records identified in the SOCs in this case are not part of the claims-file available for review by the Board at this time, the Board is unable to complete proper informed appellate review in this case except for a limited set of issues, discussed above, for which the Veteran s appeal can be granted or which may be resolved as a matter of law without the missing evidence.

8. The issue of entitlement to service connection for erectile dysfunction, to include as secondary to established service-connected disabilities, is remanded.

First, as discussed above, the claims-file available to the Board for review in this case does not contain the set of VA outpatient medical records identified in the SOCs in this case.  Secondly, the Board finds that the medical evidence currently of record in the claims-file documents that the Veteran has been prescribed significant pain medications for management of painful symptoms of numerous service-connected disabilities, including the newly service-connected disabilities of the knees and spine established in this Board decision, above.  The Veteran s history of prescribed pain medication features opioid / narcotic medication, including as documented in the medical evidence obtained from the Social Security Administration (SSA).  In light of the Board s decision here awarding service-connected status to multiple disabilities pertinent to the Veteran s opioid / narcotic pain medication, the Board finds that the record raises the question of whether the Veterans  claimed erectile dysfunction has been caused or aggravated by the medical treatment of the Veteran s service-connected disabilities.  The Veteran may be entitled to service connection for erectile dysfunction if the disability has been caused or aggravated by the medical treatment of established service-connected disabilities.

The Veteran has not been afforded a VA examination with medical opinion addressing this matter.  In McLendon v. Nicholson, 20 Vet. App. 79 (2006), the United States Court of Appeals for Veterans Claims (Court) held that 38 C.F.R. � 3.159(c)(4) provides that an examination or opinion is necessary if the evidence of record: 1) contains competent evidence that the claimant has a current disability, or persistent or recurrent symptoms of a disability; and 2) establishes that the Veteran suffered an event, injury, or disease in service; and 3) indicates that the claimed disability or symptoms may be associated with the established event, injury, or disease in service, but 4) does not contain sufficient medical evidence for the Secretary to make a decision on the claim.  The Court noted that the third prong of 38 C.F.R. � 3.159(c)(4) is a low threshold standard.

The Board finds that the Veteran is competent to testify that he experiences the claimed disability of erectile dysfunction.  The Board finds that the Veteran s painful back and knee disabilities are service-connected disabilities.  The Board finds that the treatment of the Veteran s painful service-connected disabilities features opioid / narcotic pain medication with known significant side-effects potentially including erectile dysfunction.  Accordingly, a remand is necessary to inform appellate review of this claim by arranging a VA examination with medical opinion concerning the etiology of the Veteran s claimed erectile dysfunction.

9. The issue of entitlement to a disability rating in excess of 10 percent for right hand degenerative arthritis is remanded.

First, as discussed above, the claims-file available to the Board for review in this case does not contain the set of VA outpatient medical records identified in the SOCs.

Additionally, in Sharp v. Shulkin, 29 Vet. App. 26 (2017), the Court held that VA examiners must obtain information about the severity, frequency, duration, precipitating and alleviating factors, and extent of functional impairment of flares from the veterans themselves, when a flare-up is not observable at the time of examination.  In this case, the July 2017 VA examination report notes that the Veteran s right hand disability manifests in  flare-ups  that  cause increased pain and numbness.   Significantly, the VA examiner stated that  [t]he examination is medically consistent with the Veteran s statements describing functional loss during flare-ups,  and that  Yes,  the flare-up  pain, weakness, fatigability or incoordination significantly limit functional ability with flare-ups.   However, the VA examiner does not provide adequate information to inform a determination regarding the extent of such impairment, instead stating that the VA examiner could not  describe in terms of range of motion  because  did not examine during flare.

In Sharp, the Court addressed the adequacy of medical opinions that decline to present clear estimations by citing that such estimations would be  mere speculation.   The Court explained that case law and VA guidelines do not require direct observation of functional impairment after repetitive use or during a flare-up as a prerequisite to offering a DeLuca opinion regarding functional loss.  See DeLuca v. Brown, 8 Vet. App. 202 (1995).  Indeed, it is not expected that such observation will usually occur; therefore, VA examiners should offer opinions based on estimates derived from information procured from all relevant sources, including the lay statements of Veterans.  VA examiners have a duty to elicit information from the Veteran when attempting to describe functional loss associated with pain during unobserved exacerbations.  If a non-speculative opinion still cannot be offered, the VA examiner must explain the basis for this conclusion.  It must be apparent that the inability to provide an opinion without resorting to speculation reflects the limitation of knowledge in the medical community at large and not a limitation (whether based on lack of expertise, insufficient information, or unprocured testing) of the individual examiner.

The Board finds that a new examination is warranted to support adequately informed appellate review and to comply with the decision in Sharp.

Furthermore, although the July 2017 VA examination report of record includes remarks attempting to provide the required information contemplated by the Court s holding in Correia v. McDonald, 28 Vet. App. 158 (2016), the VA examiner s remarks are inadequate and unclear for the purposes of final appellate review.  The VA examiner states that there is  evidence of pain on passive range of motion testing,  and also  evidence of pain when the joint is used in non-weight bearing.   The VA examiner noted that during testing, there was  [p]ain noted and causes functional loss.   The range of motion testing documented in the VA examination report does not present any clear indication of the impact of the noted functional loss due to pain, including with regard to passive (rather than active) range of motion testing and in both weight-bearing and non-weight-bearing use.  Notably, the VA examination report does not provide range of motion data from passive motion testing (or address the applicability or results of weight-bearing / non-weight bearing contexts of range of motion testing).

In Correia v. McDonald, 28 Vet. App. 158 (2016), the Court held that the final sentence of 38 C.F.R. � 4.59 creates a requirement that certain range of motion testing be conducted whenever possible in cases of joint disabilities.  The final sentence provides that  [t]he joints involved should be tested for pain on both active and passive motion, in weight-bearing and non-weight-bearing and, if possible, with the range of the opposite undamaged joint.   The Court found that, to be adequate, a VA examination of the joints must, wherever possible, include the results of the range of motion testing described in the final sentence of � 4.59.  Correia, 28 Vet. App. at 169-170.

One potential interpretation of the final sentence of 38 C.F.R. � 4.59 ( The joints involved should be tested for pain on both active and passive motion, in weight-bearing and nonweight-bearing&  ) is that the information provided by the July 2017 VA examiner in this case is sufficient.  This is true, the argument continues, because the text of the regulation requires only that the examiner test for pain and the examiner in this case has done that by indicating whether or not the Veteran experienced pain during range of motion testing using the required methods.

But there are several parts of the opinion in Correia which suggest that it is not enough merely to indicate whether or not pain was present during a test.  In the part of the decision which considered whether � 4.59 was ambiguous, the Court explained the role of the regulation in the context of other regulations which apply generally to disabilities of the musculoskeletal system.   In that context, then, we read the final sentence of � 4.59 as explaining the kinds of test results that  should  be obtained to permit an adjudicator to assess the effect of painful motion - range of motion tests for both passive and active motion, and in both weight-bearing and non-weight-bearing circumstances.   Correia, 28 Vet. App. at 165 (emphasis in original).  It is difficult to see how test results which merely indicate the presence or absence of pain would permit an adjudicator to assess the -effect- of pain on range of motion.  To do so effectively, it would be useful for the adjudicator to have the full results of each range of motion test, i.e., the range of motion, in degrees, of the relevant joint using each of the testing methods identified in the regulation.

The Correia opinion continues with analysis of the proper interpretation of � 4.59.  This part of the Court s analysis indicates that the regulation should be read together with 38 C.F.R. �� 4.40 and 4.45.

The Court explained that:

[� 4.40] states that it  is essential  that an examination on which a disability rating is based  adequately portray the anatomical damage[] and the functional loss  that occurs as a result of those elements.  Section 4.45 explains that  the factors of [joint] disability reside in reductions of their normal excursion of movements in different planes, ....  Neither of those regulations, however, explains how that information should be obtained, except that � 4.40 refers to  an examination,  but the Secretary has answered this question in � 4.59.

Correia, 28 Vet. App. at 169 (internal short form citations and explanatory parenthetical omitted) (emphasis in original).

If � 4.59 was intended to accomplish the purposes of � 4.40 and � 4.45, one of which is to assess  reductions of [the] normal excursion of movements [of the joint] in different planes,  the most reasonable reading of � 4.59 requires the examiner to provide detailed range of motion test results, not merely an indication of whether or not pain was present.  The final sentence the Court s regulatory interpretation analysis supports this conclusion:  Consequently, we are left with the inescapable conclusion that, to be adequate, a VA examination of the joints must, wherever possible, include the results of the range of motion testing described in the final sentence of � 4.59.  Id. at 169-70.

In these right hand rating matters before the Board, in particular, the July 2017 VA examination report provides an indication that range of motion testing for passive motion of the right hand was affected by objectively evidenced pain.  The report does not provide the test results or data necessary for the Board to assess the degree of functional impairment of the right hand associated with this reported finding.

The absence of any indication of the portion of the extent of the ranges of motion affected by pain, or the degree of limitation due to pain, from testing that was directly conducted/observed by the VA examiner, prevents the Board from making a meaningfully informed determination as to the severity of the functional loss associated with the Veteran s painful right hand disability.  The Board finds that clearer and more adequate descriptions of functional loss due to pain on passive motion testing would be important to informed appellate review.

The Board finds that a new examination is warranted to support adequately informed appellate review and to comply with the decision in Correia.

10. The issue of entitlement to SMC based on the need for regular aid and attendance of another person is remanded.

The Court has held that two issues are inextricably intertwined when they are so closely tied together that a final decision cannot be rendered unless both issues have been considered.  Harris v. Derwinski, 1 Vet. App. 180, 183 (1991).  Thus, the Board must defer final adjudication of the claim seeking SMC until (1) the forthcoming AOJ rating determinations for the newly service-connected disabilities established in the Board decision are completed, and (2) the separate appeals regarding the Veteran s claimed entitlements to increased ratings for his service-connected disabilities and claimed entitlements to service connection for additional disabilities have been fully developed and prepared for informed appellate review.  A remand of the claim for SMC is required.

The matters are REMANDED for the following action:

1. Associate with the claims-file any outstanding pertinent treatment records, including VA treatment records (such as those that may have been created since the last such update of the claims-file).  In particular, ensure that the set of VA medical records cited in the May 2019 SOCs ( VAMC &  treatment records, Bronx VA Medical Center, from May 9, 2017 through February 20, 2019 ) are made available for review in the Veteran s claims-file.

2. After the record is determined to be complete, schedule the Veteran for an appropriate VA examination to determine the nature and etiology of his claimed erectile dysfunction.  The Veteran s file should be made available for review by the examiner.  The examiner should review the file and this fact should be noted in the accompanying medical report.  The examiner should diagnose any pertinent current disability and must opine as to the following:

(a) Is it at least as likely as not (i.e., a 50 percent or greater probability) that the Veteran s claimed erectile dysfunction has been caused by medication prescribed for a service-connected disability (including, in particular, narcotic pain medication)?

(b) Is it at least as likely as not (i.e., a 50 percent or greater probability) that the Veteran s erectile dysfunction has been aggravated (increased in severity) by medication prescribed for a service-connected disability (including, in particular, narcotic pain medication)?

Any opinion expressed by the VA examiner should be accompanied by a complete rationale.  If the VA examiner is unable to offer an opinion without resorting to speculation, a thorough explanation as to why an opinion cannot be rendered should be provided.

After the record is determined to be complete, schedule a VA examination to ascertain the severity of the Veteran s service-connected right hand degenerative joint disease.  The claims-file must be made available to, and be reviewed by, the examiner.  All indicated testing should be accomplished and all symptomatology associated with the right hand disability should be identified.  The VA examiner must address each of the following items:

(a) The examiner should determine the effective ranges of motion of the right hand s joints, and present the results of range of motion tests in a written report by recording separate sets of the range of motion test results for both active and passive motion, in weight bearing and nonweight-bearing (to the extent applicable), and, if possible, in comparison to the opposite, undamaged, joint (to the extent applicable).

(b) The examiner s report should describe objective evidence of painful motion, if any, during each test.  It is not sufficient merely to indicate whether or not pain was present during one of the required range of motion tests.  If any of these findings are not possible, please provide an explanation.

(c) The examiner is also asked to describe whether pain, weakness, fatigue and/or incoordination significantly limits functional ability during flares or repetitive use, and if so, the examiner must estimate range of motion during flares or repetitive use.  If the examination does not take place during a flare or repetitive testing cannot be performed, the examiner should have the Veteran describe and/or demonstrate the extent of motion loss during flares or repetitive use and provide the extent of motion loss described in terms of degrees.  Lack of observable flare-ups during examination is not an adequate basis for failure to provide an estimation. If there is no pain and/or no limitation of function, such facts must be noted in the report.

If the VA examiner is unable to offer an opinion without resorting to speculation, a thorough explanation as to why an opinion cannot be rendered should be provided.

3. After the above development, and any additionally indicated development, has been completed, readjudicate the issues on appeal, including the inextricably intertwined issue of entitlement to SMC.  If the benefit sought is not granted to the Veteran s satisfaction, send the Veteran and his representative a Supplemental Statement of the Case and provide an opportunity to respond.  If necessary, return the case to the Board for further appellate review.

M. C. GRAHAM

Veterans Law Judge

Board of Veterans  Appeals

Attorney for the Board	A. Barone, 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: granted

disposition: remanded

benefit: tdiu

text:
��Citation Nr: 20014000

Decision Date: 02/25/20	Archive Date: 02/24/20

DOCKET NO. 07-30 937A

DATE: February 25, 2020

ORDER

An increased disability rating of 20 percent for right ankle tendonitis is granted for the entire claim period.

Service connection for a low back disability is granted.

REMANDED

The issues of (1) entitlement to service connection for a bilateral foot disability, and (2) entitlement to a total disability rating based on individual unemployability (TDIU) are remanded for further development.

FINDINGS OF FACT

1. When accounting for functional impairment, the effects of the Veteran s right ankle tendonitis are equivalent to marked limitation of motion of the ankle throughout the entire claim period.

2. The evidence of record indicates that the Veteran has a current low back disability that is etiologically related to service.

CONCLUSIONS OF LAW

1. The criteria for an increased disability rating of 20 percent for a right ankle tendonitis are met.  38 U.S.C. �� 1155, 5107; 38 C.F.R. �� 4.1, 4.2, 4.3, 4.6, 4.7, 4.10, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5271; Burton v. Shinseki, 25 Vet. App. 1 (2011); DeLuca v. Brown, 8 Vet. App. 202 (1995).

2. The criteria for service connection for a low back disability are met.  38 U.S.C. �� 1110, 1131, 5107(b); 38 C.F.R. �� 3.102, 3.303.

REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

The Veteran served on active duty from January 1978 to September 1980 and from January 1991 to May 1991, with additional service in the United States Army Reserve.

These matters come before the Board of Veterans  Appeals (Board) on appeal from October 2005 and April 2008 rating decisions of Department of Veterans Affairs (VA) Regional Offices (RO).

In the October 2005 rating decision, a VA RO denied assigning a compensable rating for the Veteran s right ankle.  Thereafter, in a November 2012 rating decision, a VA RO increased the right ankle rating to 10 percent, effective May 20, 2005 the date of receipt of claim.  As this increase did not represent a total grant of the benefit sought on appeal, the Veteran s right ankle increased rating claim remains in appellate status.  AB v. Brown, 6 Vet. App. 35 (1993).

In her October 2007 substantive appeal, the Veteran requested a Board hearing.  She subsequently withdrew her hearing request in May 2011.

In June 2011 and June 2013, the Board remanded the case for additional development.  Thereafter, in January 2014, the Board denied the issue of service connection for a low back disability.  Additionally, the Board remanded the issues of service connection for a bilateral foot disability, entitlement to an increased rating for right ankle tendonitis, and entitlement to a TDIU.  The Veteran appealed the denial of service connection for the low back to the United States Court of Appeals for Veterans Claims (Court).  In July 2014, the Secretary and the Veteran filed a Joint Motion for Partial Remand (JMPR) which was granted by the Court.  Accordingly, the January 2014 Board decision denying service connection for the low back was vacated and the case was remanded for action consistent with the JMPR.

The Veteran s appeal returned to the Board, by which time the issues of service connection for a bilateral foot disability, entitlement to an increased rating for right ankle tendonitis, and entitlement to a TDIU had also been returned to the Board from the Agency of Original Jurisdiction (AOJ).  In October 2014, the Board remanded all of the issues for further development.

Thereafter, in September 2017, the Board denied entitlement to a disability rating greater than 10 percent for the right ankle.  The Board then remanded the 2 pending service connection issues and entitlement to a TDIU once again for additional development.

The Veteran appealed the September 2017 Board decision to the Court.  In May 2018, the Secretary and the Veteran filed another JMPR regarding the Board s denial of an increased rating for the right ankle.  This JPMR was granted by the Court later in May 2018 and the case returned to the Board.

In May 2019, service connection for the low back and bilateral feet, an increased rating for right ankle tendonitis, and entitlement to a TDIU were again before the Board.  The Board remanded all of the issues for further development.

Entitlement to an Increased Rating for Right Ankle Tendonitis

As indicated above in the Conclusions of Law section, the Board finds that the Veteran is entitled to a 20 percent rating for her right ankle tendonitis for the entire claim period.  Accordingly, the Veteran s claim is granted.

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

When evaluating a disability based upon limitation of motion, the Board must also consider, in conjunction with the otherwise applicable diagnostic codes, any additional functional loss the veteran may have sustained by virtue of other factors as described in 38 C.F.R. �� 4.40 and 4.45.  DeLuca v. Brown, 8 Vet. App. 202, 204-7 (1995).  Such factors include more or less movement than normal, weakened movement, excess fatigability, incoordination, pain on movement, swelling, and deformity or atrophy from disuse.  A finding of functional loss due to pain must be supported by adequate pathology and evidenced by the visible behavior of the veteran.  38 C.F.R. � 4.40; Johnston v. Brown, 10 Vet. App. 80, 85 (1997).

The intent of the schedule is to recognize painful motion with joint or particular pathology as productive of disability.  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.  The provisions of 38 C.F.R. � 4.59, which relate to painful motion, are not limited to arthritis and must be considered when raised by the Veteran or when reasonably raised by the record.  Burton v. Shinseki, 25 Vet. App. 1 (2011).

In the instant case, the Veteran s right ankle is currently assigned a 10 percent rating pursuant to 38 C.F.R. � 5271, Diagnostic Code 5271 limited motion of the ankle.  Under Diagnostic Code 5271, a 10 percent rating is assigned for  moderate  limited motion.  Comparatively, a maximum 20 percent rating is assigned for  marked  limited motion.  The words  moderate  and  marked  are not defined in the rating schedule and, rather than applying a mechanical formula, the Board must evaluate the evidence to the end that its decision is  equitable and just.   38 C.F.R. � 4.6.

After reviewing the evidence of record, the Board finds that the symptoms of the Veteran s right ankle tendonitis most closely reflect marked limitation of motion of the right ankle particularly when considering functional loss warranting the assignment of a 20 percent rating under Diagnostic Code 5271.  Specifically, throughout the claim period, the Veteran has displayed painful motion during range of motion testing of the right ankle.  See, e.g., August 2016 VA Treatment Record; August 2012 VA Physical Medicine & Rehabilitation Consultation; January 2012 VA Treatment Record; April 2010 VA Podiatry Note; January 2010 VA Podiatry Note; February 2009 VA Podiatry Note; December 2008 Podiatry Note; September 2007 VA Physical Medicine & Rehabilitation Consultation.

Additionally, the Veteran and medical professionals throughout the claim period have documented that the Veteran s right ankle pain has impacted her ability to walk long distances, stand for long time periods, climb ladders, and walk on uneven surfaces.  See, e.g., July 2019 VA Ankle Conditions Examination Report; January 2019 Dr. Frigon Evaluation.  Additionally, the Veteran has reported that her right ankle pain has impacted her ability to sleep.  See August 2018 Statement.  In consideration of the holdings in DeLuca and Burton, and resolving all reasonable doubt in favor of the Veteran, the Board finds that the criteria for an evaluation of 20 percent for the right ankle are met for the entire claim period due to functional loss.

Comparatively, the Board also finds that the criteria for a rating greater than 20 percent have not been met in the instant case.  The only other relevant diagnostic code under which the Board could possibly assign a rating in excess of 20 percent is 38 C.F.R. � 4.71a, Diagnostic Code 5270 for ankylosis of the ankle.  Under Diagnostic Code 5270, a 30 percent rating is assigned when the ankle is ankylosed at between 30 and 40 degrees in plantar flexion, or at between 0 and 10 degrees in dorsiflexion.  The maximum 40 percent rating is warranted when the ankle is ankylosed at more than 40 degrees in plantar flexion, or at more than 10 degrees in dorsiflexion, or with abduction, adduction, inversion, or eversion deformity.

The Court has defined ankylosis as immobility and consolidation of a joint due to disease, injury, or surgical procedure.  Shipwash v. Brown, 8 Vet. App. 218, 221 (1995); Nix v. Brown, 4 Vet. App. 462, 465 (1993); Lewis v. Derwinski, 3 Vet. App. 259 (1992) (memorandum decision).  At no point during the pendency of the appeal has the Veteran s right ankle presented with ankylosis.  Indeed, ankylosis was not indicated in any of the VA treatment records associated with the claims file, the January 2019 evaluation report of private orthopedist Dr. Frigon, or the most recent VA examination report of July 2019.  The Board notes that this conclusion is not based on any other VA ankle examination provided during the claims period as all other prior VA ankle examination reports were previously deemed inadequate in the Board remands discussed in the Introduction section as well as the May 2018 JMPR.  As such, a rating greater than 20 percent for the right ankle is not warranted in the present case.

Service Connection for a Low Back Disability

As stated in the Conclusions of Law section, the Board concludes that the Veteran has a current low back disability that is etiologically related to service.  Accordingly, the Board finds that service connection for is warranted.  38 C.F.R. � 3.303(a).

In support of this determination, the Board first notes that, generally, establishing service connection requires competent evidence of: (1) a current disability; (2) an in-service precipitating disease, injury, or event; and (3) a causal relationship, i.e., a nexus, between the current disability and the in-service event.  Fagan v. Shinseki, 573 F.3d 1282, 1287 (Fed. Cir. 2009); 38 C.F.R. � 3.303(a).

In the instant case, the Board notes that the Veteran has been diagnosed with a low back disability during the course of the claim.  Specifically, the Veteran has received a diagnosis of degenerative disc disease of the lumbar spine.  See, e.g., July 2019 VA Back Conditions Examination Report; January 2019 Dr. Frigon Evaluation; November 2012 VA MRI Report; October 2009 VA MRI Report.

Next, in regard to an incident in service, the Board notes that the Veteran s September 1977 enlistment examination did not indicate the existence of any preexisting back issues prior to service.  A review of her service treatment records (STRs) indicates complaints of back pain in February 1978 and April 1981.

In addition to this documentation in her STRs, the Veteran has stated during the course of her appeal that she began having back pain in service around 1981 which continued post-discharge to the present.  See October 2018 Affidavit.  As a layperson, the Veteran is competent to identify symptoms she experiences with her own senses such as back pain and to report on their continuity.  Layno v. Brown, 6 Vet. App. 465 (1994).  The Board finds the Veteran s reports of in-service back pain and continuity of symptomatology to be credible in the instant case.

Lastly, regarding a nexus between the current low back disability and service, the Board notes that, in January 2019, private orthopedist Dr. Frigon provided an etiological opinion concerning the Veteran s lumbar degenerative disc disease.  After reviewing the Veteran s complete claims file and conducting a phone interview, Dr. Frigon opined that the Veteran s disability at least as likely as not had its initiating cause in service.  In support of this conclusion, Dr. Frigon referenced the Veteran s back pain documented in the STRs, the Veteran s lay reports mentioning back symptoms, and documentation of the Veteran s condition in VA treatment records.

The Board finds Dr. Frigon s opinion to be adequate for adjudicative purposes.  See Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007).  As it is the only competent, adequate medical opinion of record addressing service connection on a direct basis, the Board finds that service connection for a low back disability is warranted.  38 C.F.R. � 3.303(a).

REASONS FOR REMAND

1. Service Connection for a Bilateral Foot Disability

In the May 2019 remand, the Board indicated that VA medical opinions from November 2017 and March 2018 regarding the Veteran s foot disabilities were inadequate as they did not substantially comply with prior remand directives from September 2017.  Specifically, the November 2017 opinion concluded that there were no  new  diagnoses of the feet and did not answer questions for existing diagnoses which continued throughout the appeal period.  Additionally, the March 2018 addendum opinion also did not provide answers to the questions presented.  Accordingly, the Board remanded service connection for a bilateral foot disability once again for a VA clinician to identify all foot disabilities present since June 2005.  Then, for each right and left foot disability identified, regardless of when it was diagnosed, the clinician was to address: (1) whether that identified condition had its onset in service or in the year immediately after service, was related to the Veteran s use of combat boots in service, or was otherwise the result of a disease or injury in service; (2) whether the identified condition was proximately caused by a service-connected disability, to include right ankle tendonitis; and (3) whether any current disability and any disability present since June 2005 underwent an aggravation beyond natural progression due to a service-connected disability, to include right ankle tendonitis.

Following the May 2019 remand, the requested opinion was provided in July 2019.  However, the Board finds this opinion to be inadequate as well due to an inconsistency in the rationale regarding secondary service connection on a causation basis.  Specifically, the clinician indicated that the Veteran s already-service-connected right ankle disability was not caused by a foot condition, but also stated that the right ankle could not cause any foot condition.  Additionally, the July 2019 clinician did not provide specific opinions with respect to all of identified foot conditions of record including those listed in the May 2019 remand directives themselves.  As such, the July 2019 VA opinion is of little probative value.  See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008).

As the case currently stands, the Board is unable to adjudicate the Veteran s claim for service connection without clarification as to whether her diagnosed foot conditions are associated with service or are secondary to her service-connected ankle disabilities.  In reaching this conclusion, the Board acknowledges Dr. Frigon s January 2019 opinion regarding the feet.  However, similar to prior VA examiners and clinicians, Dr. Frigon was inconsistent regarding which diagnosis he was referring to in providing his etiological opinion.  Although he concluded that the Veteran s current foot arthritis was caused by service, he also stated that, generically, all of the Veteran s bilateral foot conditions began in service.  Due to this inconsistency, the Board finds that additional clarification is needed prior to adjudication of this issue on its merits.

Under 38 U.S.C. � 5109(a), VA may obtain an advisory medical opinion from an independent medical expert from outside the Department based upon the medical complexity or controversy of a particular case.  Here, remand is warranted for the provision of an additional medical opinion from outside the Department pursuant to 38 U.S.C. � 5109 due to the unique complexity of the issue of whether the Veteran is entitled to service connection for a bilateral foot disability.

2. Entitlement to a TDIU

Regarding the Veteran s claim for a TDIU, the Board must remand this issue as well as it is dependent upon the remanded service connection issue and the initial rating assigned for the Veteran s low back disability.  Where a pending claim is inextricably intertwined with other claims currently on appeal, the appropriate remedy is to remand the claim on appeal pending the adjudication of the inextricably intertwined claims.  See Harris v. Derwinski, 1 Vet. App. 180 (1991).

The matters are REMANDED for the following action:

1. Notify the Veteran and his representative that VA is requesting an advisory medical opinion pursuant to 38 U.S.C. � 5109 regarding entitlement to service connection for a bilateral foot disability.

2. Then, pursuant to 38 U.S.C. � 5109, forward the Veteran s claims file to a non-VA, independent medical expert in the field of orthopedics or podiatry.  The entire claims file, including a copy of this Remand, must be made available to and must be reviewed by the expert.

The expert should then address the following:

(a.) Please identify by diagnosis any current disability of either foot.   Current  is defined as any condition identified since June 2005 to the present including but not limited to neuroma, tibialis posterior tendonitis, hallux valgus, pes cavus, capsulitis, plantar fasciitis, tenosynovitis, gastroc soleus equinus, and degenerative changes.

(b.) For each disability identified in subsection (a), please state whether it is at least as likely as not (50 percent probability or more) that the disability was caused by, incurred in, or is otherwise related to service.

In providing responses to subsection (b), please directly address:

" 	the Veteran s contention that she has a current foot disability as a result of her documented in-service foot problems or the use of combat boots; and

" 	Dr. Frigon s January 2019 evaluation report and opinion.

(c.) For each disability identified in subsection (a), please state whether it is at least as likely as not (50 percent probability or more) that the disability had its onset within 1 year of the Veteran s separation from active duty service.

(d.) For each disability identified in subsection (a), please state whether it is at least as likely as not (50 percent probability or more) that the disability was proximately caused by the Veteran s service-connected right and left ankle disabilities.

(e.) For each disability identified in subsection (a), please state whether it is at least as likely as not (50 percent probability or more) that the disability was aggravated (worsened beyond natural progression) by the Veteran s service-connected right and left ankle disabilities.

For the purpose of providing responses to subsections (b) through (e), the expert should take as true the Veteran s lay reports regarding continuity of experiencing foot pain.

The expert should consider medical and lay evidence dated both prior to and since the filing of the claim.

The expert must provide a complete rationale for any opinion rendered.  If the expert cannot provide an opinion without resorting to speculation, he or she should explain why an opinion cannot be provided (e.g., lack of sufficient information/evidence, the limits of medical knowledge, etc.).

3. Following receipt of the opinion requested in Item (2), furnish a copy of the opinion to the Veteran and her representative and allow them adequate time to submit a response.

S.C. KREMBS

Veterans Law Judge

Board of Veterans  Appeals

Attorney for the Board	N.S. Pettine, 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: M TENNER

text:
��Citation Nr: 20015000

Decision Date: 02/27/20	Archive Date: 02/26/20

DOCKET NO. 18-14 707

DATE: February 27, 2020

ORDER

The rating reduction from 40 percent to 20 percent for peripheral neuropathy of the right upper extremity, effective November 1, 2014, was improper and restoration of 40 percent rating is warranted.

The rating reduction from 30 percent to 20 percent for peripheral neuropathy of the left upper extremity, effective November 1, 2014, was improper and restoration of 30 percent rating is warranted.

REMANDED

Entitlement to an increased rating in excess of 40 percent for right upper extremity peripheral neuropathy, secondary to diabetes mellitus, type II is remanded.

Entitlement to an increased rating in excess of 30 percent for left upper extremity peripheral neuropathy secondary to diabetes mellitus, type II is remanded.

Entitlement to an increased rating in excess of 20 percent for right lower extremity peripheral neuropathy secondary to diabetes mellitus, type II is remanded.

Entitlement to an increased rating in excess of 20 percent for left lower extremity peripheral neuropathy secondary to diabetes mellitus, type II is remanded.

FINDINGS OF FACT

1. An August 2014 rating decision improperly reduced the Veteran s service- connected peripheral neuropathy of the right upper extremity from 40 percent to 20 percent, effective November 1, 2014.

2. An August 2014 rating decision improperly reduced the Veteran s service-connected peripheral neuropathy of the left upper extremity from 30 percent to 20 percent, effective November 1, 2014.

3. The evidence of record at the time of the reduction failed to demonstrate actual improvement in the Veteran s service-connected peripheral neuropathy of the right and left upper extremity under ordinary conditions of life and work.

CONCLUSIONS OF LAW

1. The rating reduction from 40 percent to 20 percent for right upper extremity peripheral neuropathy, effective November 1, 2014, was improper and restoration of a 40 percent rating is warranted.  38 U.S.C. � 1155; 38 C.F.R. �� 3.105, 3.344, 4.124a, Diagnostic Codes 8510.

2. The rating reduction from 30 percent to 20 percent for left upper extremity peripheral neuropathy, effective November 1, 2014, was improper and restoration of a 30 percent rating is warranted.  38 U.S.C. � 1155; 38 C.F.R. �� 3.105, 3.344, 4.124a, Diagnostic Codes 8510.

REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

The Veteran served on active duty in the United States Air Force from April 1970 to December 1993.

These matters come before the Board of Veterans  Appeals (Board) on appeal from an August 2014 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO).

In October 2019, the Veteran testified before the undersigned Veterans Law Judge during a Travel Board hearing.

The Board notes the Veteran disputed the rating reduction for his peripheral neuropathy of his left and right lower extremity in a May 2015 notice of disagreement (NOD).  However, in a February 2018 rating decision, the Veteran s rating for his left and right lower extremity peripheral neuropathy was restored to 20 percent, effective June 29, 2010.  As such, the propriety of rating reduction for the Veteran s peripheral neuropathy of bilateral upper extremity and whether he is entitled to increased ratings for his peripheral neuropathy of bilateral upper and lower extremities is before the Board for adjudication.

This appeal has been advanced on the Board s docket pursuant to 38 U.S.C. � 7107 (a)(2); 38 C.F.R. � 20.900 (c).

Propriety of Rating Reduction

1. Propriety of rating reduction from 40 percent to 20 percent for right upper extremity peripheral neuropathy, effective November 1, 2014.

2. Propriety of rating reduction from 30 percent to 20 percent for left upper extremity peripheral neuropathy, effective November 1, 2014.

The provisions of 38 C.F.R. � 3.105 (e) allow for the reduction in evaluation of a service-connected disability when warranted by the evidence, but only after following certain procedural guidelines.  The RO must issue a rating action proposing the reduction and setting forth all material facts and reasons for the reduction.  The veteran must then be given 60 days to submit additional evidence and to request a predetermination hearing.  Then a rating action will be taken to effectuate the reduction.  38 C.F.R. � 3.105 (e).  The effective date of the reduction will be the last day of the month in which a 60-day period from the date of notice to the veteran of the final action expires.  38 C.F.R. � 3.105 (e), (i)(2)(i).

Here, the Board observes that the AOJ complied with � 3.105(e) in that the veteran was informed of the proposed reduction in a December 2013 rating decision and advised of the opportunity to present additional evidence within a 60-day period as well as a right to request a personal hearing.  Thereafter, the reduction was effectuated on the August 2014 rating decision on appeal, which reduced the ratings assigned for his peripheral neuropathy of the left and right upper extremities.

The criteria governing certain rating reductions for certain service-connected disabilities is found in 38 C.F.R. � 3.344.  The United States Court of Appeals for Veterans Claims (Court) stated that this regulation applied to ratings that had been continued for long periods of time at the same level (five years or more).  Brown v. Brown, 5 Vet. App. 413 (1993).  In the present case, his ratings for both his right and lower upper extremity were in effect from June 29, 2010 to November 1, 2014. As the ratings has not been in effect for more than five years, the provision of 38 C.F.R. � 3.344 pertaining to stabilization of disability evaluations do not apply.

However, the Court noted in Brown that there are several general VA regulations that apply to all rating reductions regardless of whether the rating has been in effect for five years or more.  Id. at 420-421.  Specifically, 38 C.F.R. � 4.1 requires that each disability be viewed in relation to its history.  Furthermore, 38 C.F.R. � 4.13 provides that the rating agency should assure itself that there has been an actual change in the condition, for better or worse, and not merely a difference in the thoroughness of the examination or in use of descriptive terms.  Additionally, in any rating reduction case, not only must it be determined that an improvement in a disability has actually occurred, but that such improvement reflects improvement in ability to function under ordinary conditions of life and work.  Brown, 5 Vet. App. at 420-21; see 38 C.F.R. �� 4.2, 4.10.  A claim as to whether a rating reduction was proper must be resolved in the Veteran s favor unless the Board concludes that a fair preponderance of evidence weighs against the claim.  Id.

In considering propriety of a reduction, the Board must focus on the 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 had demonstrated actual improvement.  Dofflemyer v. Derwinski, 2 Vet. App. 277, 281-282 (1992).

Throughout the appeal period, the Veteran s peripheral neuropathy of the left and right upper extremities have been rated under 38 C.F.R. � 4.124a, Diagnostic Code 8510.  Under DC 8510, ratings are assigned based on major or minor extremity.  For the major extremity, a 20 percent rating is warranted for mild incomplete paralysis, a 40 percent is warranted for moderate incomplete paralysis, a 50 percent is warranted for severe incomplete paralysis, and a 70 percent is warranted for complete paralysis of the major extremity with all shoulder and elbow movements lost or severely affected and hand and wrist movements not affected.  38 C.F.R. � 4.124a, DC 8510.

For the minor extremity, a 20 percent is warranted for mild incomplete paralysis, a 30 percent rating is warranted for moderate incomplete paralysis; a 40 percent rating is warranted for severe incomplete paralysis; and a 60 percent rating is warranted for complete paralysis of the minor extremity, with all shoulder and elbow movements lost or severely affected and hand and wrist movements not affected.  38 C.F.R. � 4.124a, DC 8510.

Upon review of the evidence, the Board finds the reduction in ratings for peripheral neuropathy of the right and left upper extremity was improper.  The medical evidence of record did not demonstrate actual improvement of his disabilities at the time of the reduction.

In February 2013, the Veteran sought an increased in evaluation for peripheral neuropathy of his right and left upper extremity and was provided with a VA examination in November 2013.  Subsequently, in a December 2013 rating decision, the AOJ determined that his current level of severity for his right upper extremity was of mild severity based on the November 2013 VA examination and proposed a 20 percent reduction in rating.  The AOJ further determined that his left upper extremity was of mild severity based on the November 2013 VA examination and proposed a 20 percent rating reduction.

However, the Veteran s subsequent VA medical treatment record does not reflect that his condition has improved.  In June 2013 and February 2014 VA treatment records, the Veteran s primary care doctor noted the Veteran had worsening neuropathy glove and stocking distribution and had more difficulty with proprioception and balance due to neuropathy.  It was also noted in the 2014 record that he fell stepping down a curb.

Taken together, the Board finds that the evidence at that time did not clearly demonstrate that the Veteran s peripheral neuropathy of the right and left upper extremity had improved.  Rather, it appears that the reduction was based on the use of descriptive terms in the November 2013 VA examination.  Accordingly, based on the analysis above, the reduction in ratings assigned for the Veteran s peripheral neuropathy of the right upper extremity was improper and restoration of the 40 percent ratings is warranted, effective November 1, 2014.  Additionally, the reduction in rating for peripheral neuropathy of the lower upper extremity was improper and restoration of the 30 percent ratings is warranted.

REASONS FOR REMAND

1. Increased rating in excess of 40 percent for peripheral neuropathy of right upper extremity, secondary to type II diabetes mellitus

2. Increased rating in excess of 30 percent for peripheral neuropathy of lower upper extremity, secondary to type II diabetes mellitus

3. Increased rating in excess 20 percent for peripheral neuropathy of right lower extremity, secondary to type II diabetes mellitus

4. Increased rating in excess of 20 percent for peripheral neuropathy of left lower extremity, secondary to type II diabetes mellitus

The Board finds that a remand is warranted to properly adjudicate the claims.

A review of the record indicates the Veteran s disabilities have increased in severity since the November 2013 VA examinations.

His VA treatment records reflect his condition has worsened and that consultation for electromyography (EMT) or nerve conduction test (NCT) was scheduled.  However, the record does not reflect any EMT or NCT results.  In a December 2017 VA treatment record, a doctor noted the Veteran had weak grip strength and there was electrodiagnostic evidence consistent with an electro diagnostically severe axonal sensory motor polyneuropathy with some demyelinating features.  Moreover, a private medical treatment record indicates the Veteran was referred to receive a rolling walker and wheelchair in November 2018.

In an October 2019 Board hearing, the Veteran testified that he has been unable to use his hands to perform activities of daily living such as eating, holding utensils, brushing his teeth, scratching his back, combing his hair, or bathing.  Additionally, he states he is always in a wheelchair and requires assistance to get in and out of bed.

Accordingly, a new VA examination is warranted.

The matters are REMANDED for the following action:

1. Contact the Veteran and afford him the opportunity to identify any relevant VA and private medical records pertaining to his hypertension disability.  All information obtained must be made part of the file.

2. After, provide a copy of the claims file and a copy of this remand to an appropriate medical professional to obtain medical findings addressing the current severity of the Veteran s peripheral neuropathy of his bilateral upper and lower extremity.  All necessary diagnostic testing must be conducted, and all symptomatology and findings necessary for evaluating the Veteran s disabilities under the rating criteria must be reported in detail.

3. After, readjudicate the claim.  If the claims remain denied, send the Veteran and his representative a supplemental statement of the case (SSOC), and allow them an appropriate time to respond before returning the issue to the Board for further appellate consideration.

M. Tenner

Veterans Law Judge

Board of Veterans  Appeals

Attorney for the Board	D. Xiong, Attorney Advisor

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.