SHOULDER IMPAIRMENT OF

BARBARA B. COPELAND · 2019 · Case ID: 19159760

MIXED

Summary

The Veteran served on active duty from February 1997 to April 2000. The case involves appeals from multiple RO decisions, with jurisdiction transferred to the Houston RO. The Veteran testified at a February 2019 hearing about an in-service fall through a hatch that injured his shoulders and knees, reporting continuous symptoms since service separation. The Board found that the claims for service connection for left shoulder, right shoulder, left knee, and right knee conditions, as well as sleep apnea, migraine headaches, high blood pressure, chronic fatigue syndrome, an acquired psychiatric disorder (including depression), an increased rating for bronchial asthma, and TDIU, require further development. These claims are remanded to the Agency of Original Jurisdiction (AOJ) for additional development, including necessary VA examinations to determine the etiology and service connection of the shoulder and knee conditions. The Board also noted that the claims for service connection for bilateral hearing loss and an increased rating for GERD with hiatal hernia and eosinophilic esophagitis were denied by the RO. The Board found the criteria for these denials were not met, and the evidence preponderated against service connection for bilateral hearing loss, while the GERD claim did not meet the criteria for an increased rating. The decision also addresses the reopening of claims for the shoulder and knee conditions based on new and material evidence, finding the January 2009 RO denials final but the subsequent evidence sufficient to reopen these specific claims.

Rationale

New and material evidence presented since prior denial.; Claim reopened based on new evidence.; Remanded for VA examination to determine etiology and service connection.

Special Benefit

TDIU

Docket No.

1544012

Full Decision Text

Citation Nr: 19159760
Decision Date: 08/01/19 Archive Date: 08/01/19

DOCKET NO. 1544012
DATE: August 1, 2019

ORDER

As new and material evidence has been received, the claim for entitlement to service connection for a left shoulder condition is reopened.

As new and material evidence has been received, the claim for entitlement to service connection for a right shoulder condition is reopened.

As new and material evidence has been received, the claim for entitlement to service connection for a left knee condition is reopened.

As new and material evidence has been received, the claim for entitlement to service connection for a right knee condition is reopened.

Entitlement to service connection for bilateral hearing loss is denied.

Entitlement to an increased disability rating in excess of 10 percent for gastroesophageal reflux disease (GERD) with hiatal hernia and eosinophilic esophagitis is denied.

REMANDED

Entitlement to service connection for a left shoulder condition is remanded.

Entitlement to service connection for a right shoulder condition is remanded.

Entitlement to service connection for a left knee condition is remanded.

Entitlement to service connection for a right knee condition is remanded.

Entitlement to service connection for sleep apnea is remanded.

Entitlement to service connection for high blood pressure is remanded.

Entitlement to service connection for migraine headaches is remanded.

Entitlement to service connection for chronic fatigue syndrome is remanded.

Entitlement to service connection for an acquired psychiatric disorder, to include depression is remanded.

Entitlement to an increased disability rating in excess of 30 percent for bronchial asthma is remanded.

Entitlement to a total disability rating based upon individual unemployability (TDIU) is remanded.

FINDINGS OF FACT

1. In a January 2009 rating decision, the RO denied the Veteran’s claim of service connection for a left shoulder condition. The Veteran was notified of the decision and his appellate rights but did not timely appeal the decision or submit new and material evidence within one year of notification of the denial.

2. Evidence associated with the record since the January 2009 denial of the claim for service connection for a left shoulder condition includes new evidence that relates to an unestablished fact necessary to substantiate the claim and raises a reasonable possibility of substantiating the claim.

3. In a January 2009 rating decision, the RO denied the Veteran’s claim of service connection for a right shoulder condition. The Veteran was notified of the decision and his appellate rights but did not timely appeal the decision or submit new and material evidence within one year of notification of the denial.

4. Evidence associated with the record since the January 2009 denial of the claim for service connection for a right shoulder condition includes new evidence that relates to an unestablished fact necessary to substantiate the claim and raises a reasonable possibility of substantiating the claim.

5. In a January 2009 rating decision, the RO denied the Veteran’s claim of service connection for a left knee condition. The Veteran was notified of the decision and his appellate rights but did not timely appeal the decision or submit new and material evidence within one year of notification of the denial.

6. Evidence associated with the record since the January 2009 denial of the claim for service connection for a left knee condition includes new evidence that relates to an unestablished fact necessary to substantiate the claim and raises a reasonable possibility of substantiating the claim.

7. In a January 2009 rating decision, the RO denied the Veteran’s claim of service connection for a right knee condition. The Veteran was notified of the decision and his appellate rights but did not timely appeal the decision or submit new and material evidence within one year of notification of the denial.

8. Evidence associated with the record since the January 2009 denial of the claim for service connection for a right knee condition includes new evidence that relates to an unestablished fact necessary to substantiate the claim and raises a reasonable possibility of substantiating the claim.

9. The weight of the probative evidence demonstrates that the Veteran does not have bilateral hearing loss as defined by VA regulation.

10. The Veteran’s GERD with hiatal hernia and eosinophilic esophagitis resulted in persistently recurrent epigastric distress with dysphagia and pyrosis but there is no evidence of regurgitation accompanied by substernal or arm or shoulder pain, and that has been productive of considerable impairment of health.

CONCLUSIONS OF LAW

1. The January 2009 rating decision in which the RO declined to reopen a previously denied claim for service connection for a left shoulder condition is final. 38 U.S.C. § § 7105 (2012); 38 C.F.R. § § 20.1103
the Veteran does not have bilateral hearing loss as defined by VA regulation.

CONCLUSIONS OF LAW

2. The additional evidence presented since the January 2009 rating decision is new and material, and the claim for service connection a left shoulder condition is reopened. 38 U.S.C. § § 5108 (2012); 38 C.F.R. § § 3.156 (2018).

3. The January 2009 rating decision in which the RO declined to reopen a previously denied claim for service connection for a right shoulder condition is final. 38 U.S.C. § § 7105 (2012); 38 C.F.R. § § 20.1103 (2018).

4. The additional evidence presented since the January 2009 rating decision is new and material, and the claim for service connection a right shoulder condition is reopened. 38 U.S.C. § § 5108 (2012); 38 C.F.R. § § 3.156 (2018).

5. The January 2009 rating decision in which the RO declined to reopen a previously denied claim for service connection for a left knee condition is final. 38 U.S.C. § § 7105 (2012); 38 C.F.R. § § 20.1103 (2018).

6. The additional evidence presented since the January 2009 rating decision is new and material, and the claim for service connection a left knee condition is reopened. 38 U.S.C. § § 5108 (2012); 38 C.F.R. § § 3.156 (2018).

7. The January 2009 rating decision in which the RO declined to reopen a previously denied claim for service connection for a right knee condition is final. 38 U.S.C. § § 7105 (2012); 38 C.F.R. § § 20.1103 (2018).

8. The additional evidence presented since the January 2009 rating decision is new and material, and the claim for service connection a right knee condition is reopened. 38 U.S.C. § § 5108 (2012); 38 C.F.R. § § 3.156 (2018).

9. The criteria for entitlement to service connection for bilateral hearing loss have not been met. 38 U.S.C. § §§ 1101, 1110, 1112 (2012); 38 C.F.R. § § 3.102, 3.303, 3.307, 3.309 (2018).

10. The criteria for a disability rating in excess of 10 percent for GERD with hiatal hernia and eosinophilic esophagitis have not been met. 38 U.S.C. § §§ 1155, 5103, 5103A, 5107 (2012); 38 C.F.R. § § § 3.102, 3.159, 4.1, 4.2, 4.3, 4.6, 4.7, 4.10, 4.4.114, Diagnostic Code 7346 (2018).

REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

The Veteran served on active duty from February 1997 to April 2000.

These matters come before the Board of Veterans’ Appeals (Board) on appeal from rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in Atlanta, Georgia, and Phoenix, Arizona. Jurisdiction has been transferred to the RO in Houston, Texas.

In February 2019, the Veteran testified before the undersigned at a videoconference hearing. A copy of the hearing transcript has been obtained and associated with the record.

As a result of the evidence regarding the effect the Veteran’s service-connected disability has had on his ability to engage in substantially gainful employment, the Board finds that his increased rating claim include a claim for TDIU, and that this claim has therefore been added as an additional claim entitled to current appellate review. Rice
of Veterans’ Appeals (Board) on appeal from rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in Atlanta, Georgia, and Phoenix, Arizona. Jurisdiction has been transferred to the RO in Houston, Texas.

In February 2019, the Veteran testified before the undersigned at a videoconference hearing. A copy of the hearing transcript has been obtained and associated with the record.

The issues of entitlement to service connection for a left shoulder condition; service connection for a right shoulder condition; service connection for a left knee condition; service connection for a right knee condition; service connection for sleep apnea; service connection for high blood pressure; service connection for migraine headaches; service connection for chronic fatigue syndrome; service connection for an acquired psychiatric disorder, to include depression; an increased disability rating in excess of 30 percent for bronchial asthma; and TDIU are addressed in the REMAND portion of the decision below and are REMANDED to the Agency of Original Jurisdiction. VA will notify the Veteran if additional action is required on his part.

Claims to Reopen

In general, decisions of the RO and the Board that are not appealed in the prescribed time period are final. 38 U.S.C. § §§ 7104,7105 (2012); 38 C.F.R. § § § 3.104, 20.1100, 20.1103 (2018). A finally disallowed claim, however, may be reopened when new and material evidence is presented or secured with respect to that claim. 38 U.S.C. § § 5108 (2012).

Regardless of the action taken by the RO, the Board must determine whether new and material evidence has been received subsequent to an unappealed RO denial. Jackson v. Principi, 265 F.3d 1366, 1369 (Fed. Cir. 2001). As part of this review, the Board considers evidence of record at the time of the previous final disallowance of the claim on any basis, including on the basis that there was no new and material evidence to reopen the claim, and evidence submitted since the prior final disallowance. Evans v. Brown, 9 Vet. App. 273, 285-86 (1996).

New evidence means existing evidence not previously submitted to agency decision makers. Material evidence means existing evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. New and material evidence can be neither cumulative nor redundant of the evidence of record at the time of the last prior final denial of the claim sought to be reopened and must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § § 3.156 (2018). For purposes of reopening a claim, the credibility of newly submitted evidence is generally presumed. Justus v. Principi, 3 Vet. App. 510, 513 (1992).

The threshold for determining whether new and material evidence raises a reasonable possibility of substantiating a claim is low. Shade v. Shinseki, 24 Vet. App. 110, 117 (2010). In determining whether this low threshold is met, VA should not limit its consideration to whether the newly submitted evidence relates specifically to the reason why the claim was last denied, but instead should ask whether the evidence could reasonably substantiate the claim were the claim to be reopened, to include by triggering the Secretary’s duty to assist or consideration of a new theory of entitlement. Shade, 24 Vet. App. at 117-18.

Additionally, new and material evidence received prior to the expiration of the appeal period, or prior to the appellate decision if a timely appeal has been filed, will be considered as having been filed in connection with the claim which was pending at the beginning of the appeal period. 38 C.F.R. § § 3.156 (b).

1. Whether new and material evidence has been received to reopen the claim of entitlement to service connection for a left shoulder condition

2. Whether new and material evidence has been received to reopen the claim of entitlement to service connection for a right shoulder condition

3. Whether new and material evidence has been received to reopen the claim of entitlement to service connection for a left knee condition

4. Whether new and material evidence has been received to reopen
to the expiration of the appeal period, or prior to the appellate decision if a timely appeal has been filed, will be considered as having been filed in connection with the claim which was pending at the beginning of the appeal period. 38 C.F.R. § § 3.156 (b).

1. Whether new and material evidence has been received to reopen the claim of entitlement to service connection for a left shoulder condition

2. Whether new and material evidence has been received to reopen the claim of entitlement to service connection for a right shoulder condition

3. Whether new and material evidence has been received to reopen the claim of entitlement to service connection for a left knee condition

4. Whether new and material evidence has been received to reopen the claim of entitlement to service connection for a right knee condition

The Veteran’s claims for entitlement to service connection for a left shoulder condition, a right shoulder condition, a left knee condition, and a right knee condition were initially denied in a January 2009 decision which determined that there was no evidence of record that the conditions were incurred in or caused by your military service. The rating decision explained that the Veteran’s service treatment records did not reveal any treatment for or diagnosis of an injury to or disability of the shoulders or knees during military service. Also, while the VA treatment records show complaints of bilateral shoulder and knee pain, it did not show a diagnosis of a chronic disabilities that was incurred in or caused by military service. Therefore, service connection was denied.

The Veteran did not appeal the decision. As such, the January 2009 decision is final. See 38 U.S.C. § § 7105 (2012); 38 C.F.R. § § 20.1100 (2018).

In this regard, the Board has considered the applicability of 38 C.F.R. § § 3.156 (b), which provides that, when new and material evidence is received prior to the expiration of the appeal period, it will be considered as having been filed in connection with the claim which was pending at the beginning of the appeal period. However, here, such regulation is inapplicable as no new and material evidence pertaining to the Veteran’s claim for service connection for trigeminal neuralgia was received prior to the expiration of the appeal period stemming from the November 2012 decision. See also Bond v. Shinseki, 659 F.3d 1362, 1367 (Fed. Cir. 2011); Roebuck v. Nicholson, 20 Vet. App. 307, 316 (2006); Muehl v. West, 13 Vet. App. 159, 161-62 (1999).

The January 2009 rating action, therefore, represents the last previous final decision on any basis as to the issue of whether the Veteran is entitled to service connection for a left shoulder condition, a right shoulder condition, a left knee condition, and a right knee condition. Evans v. Brown, 9 Vet. App. 273 (1996).

According to the medical treatment records received since the January 2009 rating decision, the Veteran continued his treatment for various disabilities. There is no evidence of record that the Veteran’s left shoulder condition, right shoulder condition, left knee condition, and right knee condition began during his military service or that it is secondary to any service-connected disabilities.

The Veteran testified at the February 2019 Board hearing that he fell through a hatch and injured his shoulders and knees. He stated he went to sick call but was not treated or x-rayed. He stated he started complaining about his bilateral shoulders since he separated from service and has been continuous since. He also experienced symptoms in his knees such as swelling and flare-ups.

As the Court stated in Shade v. Shinseki, the threshold for determining whether new and material evidence raises a reasonable possibility of substantiating a claim is “low.” Shade, 24 Vet. App. at 117. When evaluating the materiality of newly submitted evidence, the focus must not be solely on whether the evidence remedies the principal reason for denial in the last prior decision; rather, the determination of materiality should focus on whether the evidence, taken together, could at least trigger the duty to assist or consideration of a new theory of entitlement. Id.

Given the Veteran’s testimony of injuries sustained during service to his bilateral shoulders and his knees, the Board finds this evidence is new and material, in that it was previously not considered in the prior decision, it relates to an unestablished fact necessary to substantiate the claims, and it raises a reasonable possibility of substantiating the claims.

Therefore, since there is new and material evidence, the claim of entitlement to service connection for a left shoulder condition, a right shoulder condition, a left knee condition,
remedies the principal reason for denial in the last prior decision; rather, the determination of materiality should focus on whether the evidence, taken together, could at least trigger the duty to assist or consideration of a new theory of entitlement. Id.

Therefore, since there is new and material evidence, the claim of entitlement to service connection for a left shoulder condition, a right shoulder condition, a left knee condition, and a right knee condition is reopened. 38 U.S.C. § § 5108; 38 C.F.R. § § 3.156. The claims must now be adjudicated on the underlying merits, i.e., on a de novo basis.

Service Connection

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

Generally, the evidence must show: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service. Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004) (citing Hansen v. Principi, 16 Vet. App. 110, 111 (2002); Caluza v. Brown, 7 Vet. App. 498, 505 (1995), aff’d, 78 F.3d 604 (Fed. Cir. 1996) (table)).

Service connection may be established under the provisions of 38 C.F.R. § § 3.303 (b) when the evidence, regardless of its date, shows that a veteran had a chronic condition in service or during the applicable presumptive period. In addition, certain chronic diseases, including organic diseases of the nervous system such as sensorineural hearing loss, may be presumed to have been incurred or aggravated during service if they become disabling to a compensable degree within one year of separation from active duty. 38 U.S.C. § §§ 1101, 1112; 38 C.F.R. § § § 3.307, 3.309. In such instances, service connection for sensorineural hearing loss may be established based on a continuity of symptomatology from the time of manifestation. See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013) (holding that the theory of continuity of symptomatology can be used only in cases involving those conditions explicitly recognized as chronic 38 C.F.R. § § 3.309 (a), such as sensorineural hearing loss).

In each case where a veteran is seeking service connection for any disability, due consideration shall be given to the places, types, and circumstances of such veteran’s service as shown by such veteran’s service record, the official history of each organization in which such veteran served, such veteran’s treatment records, and all pertinent medical and lay evidence. 38 U.S.C. § § 1154 (a).

The United States Court of Appeals for the Federal Circuit (Federal Circuit) has rejected the view that competent medical evidence is required when the determinative issue in a claim for benefits involves either medical etiology or a medical diagnosis. Under 38 U.S.C. § § 1154 (a), lay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); see also Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); Buchanan v. Nicholson, 451 F.3d 1331, 1335 (Fed. Cir. 2006).

In the absence
lay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); see also Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); Buchanan v. Nicholson, 451 F.3d 1331, 1335 (Fed. Cir. 2006).

In the absence of proof of present disability there can be no successful claim. Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). See also Degmetich v. Brown, 104 F.3d 1328 (Fed. Cir. 1997) (also interpreting 38 U.S.C. § § 1131 as requiring the existence of a present disability for VA compensation purposes). To be present as a current disability, there must be evidence of the condition at some time during the claim period. Gilpin v. West, 155 F.3d 1353, 1356 (Fed. Cir. 1998); see also McClain v. Nicholson, 21 Vet. App. 319, 321 (2007) (the Gilpin requirement that there be a current disability is satisfied when the disability is shown at the time of the claim or during the pendency of the claim, even though the disability subsequently resolves).

Finally, in a claim for service connection, the ultimate credibility or weight to be accorded evidence must be determined as a question of fact. The Board determines whether (1) the weight of the evidence supports the claim, or (2) the weight of the “positive” evidence in favor of the claim is in relative balance with the weight of the “negative” evidence against the claim: the appellant prevails in either event. However, if the weight of the evidence is against the appellant’s claim, the claim must be denied. 38 U.S.C. § § 5107 (b); 38 C.F.R. § § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990).

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. 38 C.F.R. § § 3.102.

Entitlement to service connection for bilateral hearing loss

For the purposes of applying the laws administered by VA, impaired hearing will be considered to be a disability when the auditory threshold in any of the frequencies 500, 1000, 2000, 3000, 4000 Hertz is 40 decibels or greater; or when the auditory thresholds for at least three of the frequencies 500, 1000, 2000, 3000, or 4000 Hertz are 26 decibels or greater; or when speech recognition scores using the Maryland CNC Test are less than 94 percent. 38 C.F.R. § § 3.385 (2018).

The Board points out that the absence of in-service evidence of hearing loss is not fatal to a claim for service connection. Ledford v. Derwinski, 3 Vet. App. 87, 89 (1992). Evidence of a current hearing loss disability (i.e., one meeting the requirements of 38 C.F.R. § § 3.385, as noted above) and a medically sound basis for attributing such disability to service may serve as a basis for a grant of service connection for hearing loss. Hensley v. Brown, 5 Vet. App. 155, 159 (1993).

The Veteran contends that he has bilateral hearing loss as a result of in-service noise exposure. The Veteran testified at the February 2019 Board hearing that he had exposure to hazardous noise as an operations specialist onboard a ship in the Persian Gulf. He stated he noticed hearing loss since he returned from deployment. He stated he did not report his hearing loss to the VA or any other audiologist. The Veteran stated he was examined by a VA audiologist who stated it was not at a compensable level but that his hearing has gotten worse since then.

The Veteran’s DD
a grant of service connection for hearing loss. Hensley v. Brown, 5 Vet. App. 155, 159 (1993).

The Veteran’s DD 214 indicates that his military occupational specialty was as a petroleum supply specialist. He also earned a marksmanship badge for the M-16 rifle, and the sharpshooter badge for hand grenades. The Veteran also earned a Driver and Mechanic badge and had service in Southwest Asia.

The service treatment records during active service do not indicate any complaints, treatment, or diagnosis for bilateral hearing loss. Furthermore, the audiometric testing conducted does not indicate hearing loss as defined by VA. Specifically, the following audiologic evaluations with pure tone thresholds, in decibels, were as follows in February 1997:

HERTZ

500 1000 2000 3000 4000

RIGHT 15 -5 -5 0 -5

LEFT 10 0 -5 0 0

The audiologic evaluations with pure tone thresholds, in decibels, were as follows during separation in May 1999 and January 2000, respectively:

HERTZ

500 1000 2000 3000 4000

RIGHT 5 -5 -5 -5 -5

LEFT 5 -5 -5 0 -5

HERTZ

500 1000 2000 3000 4000

RIGHT 5 5 0 0 0

LEFT 0 5 0 5 5

These audiograms during service do not reflect a diagnosis of hearing loss for VA purposes. Furthermore, the Board notes that the February 1997 Reference Audiogram noted the Veteran was not routinely exposed to hazardous noise. In addition, the Veteran denied hearing loss at the October 1996 (at enlistment) and January 1998 Reports of Medical History. The October 1996 Report of Medical Examination also did not find hearing loss.

Turning to the post-service treatment records, the Veteran was afforded a VA examination in May 2015 where on the authorized VA audiologic evaluation for rating purposes, pure tone thresholds, in decibels, were as follows:

HERTZ

500 1000 2000 3000 4000

RIGHT 15 10 15 15 15

LEFT 15 10 5 15 20

The pure tone average was 13.75 decibels in the right ear and 12.5 decibels for the left ear. Speech audiometry revealed speech recognition ability of 96 percent in both the right ear and left ear. The VA examiner diagnosed the Veteran with normal hearing, bilaterally

Based on the evidence of record, the Board concludes that the preponderance of the evidence is against finding that the Veteran has bilateral hearing loss for VA purposes. In this case, the VA examiner determined there was no bilateral hearing loss.

The above evidence does not establish bilateral hearing loss to the extent recognized as a disability for VA purposes, and the Veteran has not alluded to the existence of any other evidence establishing a current bilateral hearing loss disability. Despite the Veteran’s competent and credible reports of in-service noise exposure and ear/hearing symptoms, the determination of whether hearing loss constitutes a disability for VA purposes is determined by a mechanical application of the definition found in 38 C.F.R. § § 3.385 to audiometric (pure tone threshold and Maryland CNC) testing results. The provisions of 38 C.F.R. § § 3.385 do not authorize a finding of hearing loss disability when pure tone thresholds and/or speech recognition scores fail to meet the requirements of the regulation. Hence, although the Veteran has reported complaints of hearing loss, the Board is bound by the testing results and has no discretion in this regard. As such, the Veteran does not meet the VA requirements for hearing loss. See Degmetich v. Brown, 104 F.3d 1328 (Fed. Cir. 1997).

Furthermore, although the Veteran is competent to report that he has diminished hearing and that it has become worse since the May 2015 VA audiologic examination
CNC) testing results. The provisions of 38 C.F.R. § § 3.385 do not authorize a finding of hearing loss disability when pure tone thresholds and/or speech recognition scores fail to meet the requirements of the regulation. Hence, although the Veteran has reported complaints of hearing loss, the Board is bound by the testing results and has no discretion in this regard. As such, the Veteran does not meet the VA requirements for hearing loss. See Degmetich v. Brown, 104 F.3d 1328 (Fed. Cir. 1997).

Furthermore, although the Veteran is competent to report that he has diminished hearing and that it has become worse since the May 2015 VA audiologic examination, he is not competent to stated that it meets the specific criteria as defined by VA regulations. While the Board recognizes the Veteran’s sincere belief in his bilateral hearing loss claim and description of his symptoms, the most competent medical evidence of record does not show that the Veteran has a hearing loss disability caused or aggravated by military service during any period of his appeal. Indeed, as noted above, according to the objective evidence of record, the Veteran did not have a diagnosis of bilateral sensorineural hearing loss as defined by VA regulations. Medical expertise is required to make such a determination as it involves audiological testing and charting of specific results; the Veteran has not asserted, and the record does not show, that he has such expertise. Accordingly, the most probative evidence of record demonstrates that there is no hearing loss for VA purposes.

The Board recognizes the Veteran’s testimony that his hearing loss has become worse since the May 2015 VA audiologic examination and therefore, a new one should be afforded. In determining whether the duty to assist requires that a VA medical examination be provided or medical opinion obtained with respect to a Veteran’s claim for benefits, there are four factors for consideration. These four factors are: (1) whether there is competent evidence of a current disability or persistent or recurrent symptoms of a disability; (2) whether there is evidence establishing that an event, injury, or disease occurred in service, or evidence establishing certain diseases manifesting during an applicable presumption period; (3) whether there is an indication that the disability or symptoms may be associated with the Veteran’s service or with another service-connected disability; and (4) whether there otherwise is sufficient competent medical evidence of record to make a decision on the claim. See McLendon v. Nicholson, 20 Vet. App. 79 (2006); 38 U.S.C. § § 5103A (d); 38 C.F.R. § § 3.159 (c)(4).

With respect to the third factor above, the Court of Appeals for Veterans Claims has stated that this element establishes a low threshold and requires only that the evidence “indicates” that there “may” be a nexus between the current disability or symptoms and the Veteran’s service.

In this case the Board finds that the duty to provide a new examination and medical opinion is not triggered. The record does not indicate that the Veteran’s claimed hearing loss has a causal connection with his active military service. Rather, the record only contains the Veteran’s conclusory generalized statement that his currently has a diagnosis of hearing loss related to service. As such, the low threshold of an “indication” that the claimed hearing loss has an association with service has not been met. See Waters v. Shinseki, 601 F.3d 1274, 1278-79 (Fed. Cir. 2010) (rejecting the theory that medical examinations are to be routinely and virtually automatically provided to all veterans in disability cases involving nexus issues).

In reaching this conclusion, the Board has considered the applicability of the benefit-of-the-doubt doctrine. See 38 U.S.C. § § 5107 (b). However, the doctrine of reasonable doubt is not for application concerning this claim as the weight of the evidence is against it. 38 U.S.C. § § 5107 (b); 38 C.F.R. § § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). Accordingly, the appeal of the claim for entitlement to service connection for bilateral hearing loss must be denied.

Increased Rating

Disability ratings are determined by applying a schedule of ratings that is based on average impairment of earning capacity. Separate diagnostic codes identify the various disabilities. 38 U.S.C. § § 1155; 38 C.F.R., Part 4. Each disability must be viewed in relation to its history and the limitation of activity imposed by the disabling condition should be emphasized. 38 C.F.R. § § 4.1. Examination reports are to be interpreted in light of the whole recorded history, and each disability must be considered from the point of view of the appellant working or seeking work. 38 C.F.R. § § 4.2. Where there is a question as to which of two disability evaluations shall be applied, the higher evaluation is to be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating is to be assigned. 38 C.F.R. § § 4.7.

The Board notes that while the regulations require review of the recorded history of a disability by the adjudicator to ensure an accurate evaluation, the regulations do not give past medical reports precedence over the current medical findings. Where an increase in the disability rating is at issue, the present level of the veteran’s disability is the primary concern. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). It is also noted that staged ratings are appropriate for any increased rating claim whenever the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings. See Hart v. Mansfield, 21 Vet. App. 505 (2007); Fenderson v. West, 12 Vet. App. 119, 126 (1999).

The assignment of a particular diagnostic code is “completely dependent on the facts of a particular case.” See Butts v. Brown, 5 Vet. App. 532, 538 (1993). One diagnostic code may be more appropriate than another based on such factors as an individual’s relevant medical history, the current diagnosis and demonstrated symptomatology. Any change in a diagnostic code by VA must be specifically explained. Pernorio v. Derwinski, 2 Vet. App. 625 (1992).

It is possible for a veteran to have separate and distinct manifestations from the same injury that would permit rating under several diagnostic codes; however, the critical element in permitting the assignment of several ratings under various diagnostic codes is that none of the symptomatology for any one of the conditions is duplicative or overlapping with the symptomatology of the other condition. See Esteban v. Brown, 6 Vet. App. 259, 261-62 (1994); 38 C.F.R. § § 4.14 (2018) (precluding the assignment of separate ratings for the same manifestations of a disability under different diagnoses).

When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with a veteran prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case, the claim is denied. 38 U.S.C. § § 5107 (b); 38 C.F.R. § § 4.3.

Entitlement to an increased disability rating in excess of 10 percent for GERD with hiatal hernia and eosinophilic esophagitis

The Veteran appealed from the denial of a rating in excess of 10 percent for his GERD with hiatal hernia and eosinophilic esophagitis. He contends a higher rating is warranted as the current disability rating does not reflect the current severity.

The Veteran’s GERD has been assigned a disability rating under Diagnostic Code 7346, as analogous to hiatal hernia because GERD is not specifically listed in the rating schedule. See 38 C.F.R. § § § 4.20, 4.27, 4.114. There is no argument or indication that another code is more appropriate or would result in a higher rating.

Diagnostic Code 7346 provides for a maximum 60 percent rating where there are symptoms of pain, vomiting, material weight loss and hematemesis or melena with moderate anemia; or other symptom combinations productive of severe impairment of health. A 30 percent disability rating is assigned for persistently recurrent epigastric distress with dysphagia, pyrosis, and reg
under Diagnostic Code 7346, as analogous to hiatal hernia because GERD is not specifically listed in the rating schedule. See 38 C.F.R. § § § 4.20, 4.27, 4.114. There is no argument or indication that another code is more appropriate or would result in a higher rating.

Diagnostic Code 7346 provides for a maximum 60 percent rating where there are symptoms of pain, vomiting, material weight loss and hematemesis or melena with moderate anemia; or other symptom combinations productive of severe impairment of health. A 30 percent disability rating is assigned for persistently recurrent epigastric distress with dysphagia, pyrosis, and regurgitation, accompanied by substernal or arm or shoulder pain, productive of considerable impairment of health. A 10 percent disability rating is assigned for two or more of the symptoms for the 30 percent evaluation of less severity. 38 C.F.R. § § 4.114.

The Veteran testified at the February 2019 Board hearing that the severity of his disability has stayed the same and he has been taking his medication. He stated he visits his doctor to receive refill and provide updates as to whether the medication was working. The Veteran described his flare-up symptom as burning at the back of his throat and eosinophilic can affect his swallowing which can cause food impaction. He also eats bland food.

The Veteran underwent a VA examination for esophageal conditions in August 2013 where a diagnosis of GERD, hiatal hernia, and eosinophilic esophagitis was confirmed. The Veteran’s symptoms included persistently recurrent epigastric distress, dysphagia, pyrosis, reflux, and sleep disturbance caused by esophageal reflux with a frequency of four or more times per year lasting one to nine days. He continued to report burning in his throat.

VA outpatient treatment records show no indication that the condition did not include regurgitation, substernal or arm or shoulder pain, and did not result in considerable impairment of health. The Veteran has not identified any symptoms, to include frequency and duration, that cause him considerable impairment of health. As such, a schedular rating in excess of 10 percent may not be assigned under Diagnostic Code 7346. See Melson v. Derwinski, 1 Vet. App. 334, 337 (1991) (all rating criteria that are conjunctive versus disjunctive (as evidenced by the use of the word “and”) must be satisfied to warrant a higher rating).

While the Board accepts that the Veteran is competent to report that his symptoms, whether a disability meets the schedular criteria for the assignment of a higher evaluation is a factual determination by the Board based on the Veteran’s complaints coupled with the medical evidence. Although the Veteran believes he meets the criteria for a higher disability rating, his complaints and the medical findings do not meet the schedular requirements for an evaluation in excess of 10 percent.

The Board has considered whether a higher or separate disability evaluation is available under any other potentially applicable provision of the rating schedule. However, a higher evaluation is not warranted based on any other provision of the rating schedule as there is no symptomatology or pathology that meets any other criteria set out for the digestive system. See generally 38 C.F.R. § § 4.114.

Accordingly, the claim is denied. There is no basis for a staged rating. See Hart v. Mansfield, 21 Vet. App. 505 (2007). As the evidence of record is not in equipoise, there is no doubt to resolve. 38 U.S.C. § § 5107 (b); 38 C.F.R. § § 4.3.

Furthermore, neither the Veteran nor his representative has raised any other issues, nor have any other issues been reasonably raised by the record. See Doucette v. Shulkin, 28 Vet. App. 366, 371 (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

Unfortunately, another remand is required in this case. Although the Board sincerely regrets the additional delay, it is necessary to ensure that there is a complete record upon which to decide the Veteran’s claims so that he is afforded every possible consideration. VA has a duty to assist claimants in obtaining evidence needed to substantiate a claim. 38 U.S.C. § §§ 5107 (a), 5103A (2012); 38 C.F.R. § § 3.159 (c) (2018).

VA has a duty
ing 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

VA has a duty to assist claimants to obtain evidence needed to substantiate a claim. See 38 U.S.C. § § 5103A (2012); 38 C.F.R. § § 3.159 (2018). VA’s duty to assist includes providing a medical examination when is necessary to make a decision on a claim. 38 U.S.C. § § 5103A (d); 38 C.F.R. § § 3.159 (c)(4). Such development is necessary if the information and evidence of record does not contain sufficient competent medical evidence to decide the claim, but (1) contains competent evidence of diagnosed disability or symptoms of disability, (2) establishes that the veteran suffered an event, injury or disease in service, or has a presumptive disease during the pertinent presumptive period, and (3) indicates that the claimed disability may be associated with the in-service event, injury, or disease, or with another service-connected disability. 38 C.F.R. § § 3.159 (c)(4); McLendon v. Nicholson, 20 Vet. App. 79, 83-86 (2006) (noting that the third element establishes a low threshold and requires only that the evidence “indicates” that there “may” be a nexus between the current disability or symptoms and active service, including equivocal or non-specific medical evidence or credible lay evidence of continuity of symptomatology).

1. Entitlement to service connection for a left shoulder condition is remanded.

2. Entitlement to service connection for a right shoulder condition is remanded.

3. Entitlement to service connection for a left knee condition is remanded.

4. Entitlement to service connection for a right knee condition is remanded.

As stated above, the Veteran testified at the February 2019 Board hearing that he fell through a hatch and injured his shoulders and knees. He stated he went to sick call but was not treated or x-rayed. He stated he started complaining about his bilateral shoulders since he separated from service and has been continuous since. He also experienced symptoms in his knees such as swelling and flare-ups.

The Veteran has not been afforded a VA examination with respect to the question of whether his left shoulder condition, right shoulder condition, left knee condition, and right knee condition were of service onset or otherwise caused by his military service.

Accordingly, in light of the above, the Board finds that the Veteran should be afforded a VA examination to determine the etiology of these disabilities.

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

6. Entitlement to service connection for migraine headaches is remanded.

The Veteran contends that her obstructive sleep apnea and migraine headaches are due to his period of service. Specifically, the Veteran asserts that his they are due to service-connected asthma.

The Board acknowledges that the Veteran has been diagnosed with obstructive sleep apnea and migraine headaches and he has not been afforded a VA examination with respect to the question of whether these disabilities was of service onset or otherwise caused by his military service, to include whether the Veteran’s asthma caused or aggravated his sleep apnea and migraine headaches. Therefore, the Board finds that remand is appropriate to afford the Veteran new examinations that addresses all theories of entitlement regarding these claimed disabilities.

7. Entitlement to service connection for high blood pressure is remanded.

Under 38 C.F.R. § § 4.104, hypertension or isolated systolic hypertension must be confirmed by readings taken two or more times on at least three different days. The term hypertension means the diastolic blood pressure is predominantly 90 or greater, and isolated systolic hypertension means the systolic blood pressure is predominantly 160 or greater with a diastolic blood pressure of less than 90.

The Veteran testified at the February 2019 Board hearing that he did not have problems with high blood pressure during service but was told his high blood pressure was secondary to the medication to treat his asthma.

A review of the post-service treatment records did not reveal a diagnosis of hypertension but did show several instances where diast
Under 38 C.F.R. § § 4.104, hypertension or isolated systolic hypertension must be confirmed by readings taken two or more times on at least three different days. The term hypertension means the diastolic blood pressure is predominantly 90 or greater, and isolated systolic hypertension means the systolic blood pressure is predominantly 160 or greater with a diastolic blood pressure of less than 90.

A review of the post-service treatment records did not reveal a diagnosis of hypertension but did show several instances where diastolic blood pressure was 90 or greater. Therefore, the Board finds that a VA examination is warranted for an etiological opinion and clarification, to include if hypertension is diagnosed, whether the Veteran’s high blood pressure is caused or aggravated the medication used to treat any service-connected disabilities.

8. Entitlement to service connection for chronic fatigue syndrome is remanded.

The Veteran contends that he has chronic fatigue syndrome as a result of active service. Specifically, the Veteran stated started experiencing severe fatigue during his military service. He stated it was not diagnosed as chronic fatigue syndrome but was a symptom of other medical conditions such as sleep apnea. He also contends that it may have stemmed from his service in the Persian Gulf.

Service connection may be warranted for a Persian Gulf Veteran who exhibits objective indications of a qualifying chronic disability that became manifest during active military, naval or air service in the Southwest Asia Theater of operations during the Persian Gulf War. 38 C.F.R. § § 3.317. For purposes of 38 C.F.R. § § 3.317, there are three types of qualifying chronic disabilities: (1) an undiagnosed illness; (2) a medically unexplained chronic multi-symptom illness (such as fibromyalgia or chronic fatigue syndrome); and (3) a diagnosed illness that the Secretary determines in regulations prescribed under 38 U.S.C. § 1117 (d) warrants a presumption of service connection.

For disability due to undiagnosed illness and medically unexplained chronic multi symptom illness, the disability must have been manifest either during active military service in the Southwest Asia Theater of operations or to a degree of 10 percent or more not later than December 31, 2021. See 38 C.F.R. § § 3.317 (a)(1). The Veteran’s military personnel records indicate he service in Southwest Asia. Accordingly, the Board finds that the Veteran is a Persian Gulf veteran and the provisions of 38 U.S.C. § § 1117 and 38 C.F.R. § § 3.317 may apply if the Veteran is found to have a qualifying chronic disability.

Review of the Veteran’s records does not indicate the Veteran was diagnosed with chronic fatigue syndrome.

At a Gulf War examination in November 2008, the Veteran reported that he served in the Persian Gulf from 1998 to 1999 where he believes he has “unknown chemical and radiation exposure.” During the cardiac review of system, the Veteran denied a history of fatigue. A chronic multi-system illness such as chronic fatigue syndrome was not addressed.

According to a February 2013 Mayo Clinic treatment report, the examiner stated the Veteran’s “fatigue syndrome [was] greatly out of proportion to his identified medical issues such as mild esophagitis, asthma and allergies. I continue to be impressed that the patient remains complete asleep for more than 12 hours with no evidence of obstructive sleep apnea yet awakes completely unrefreshed. I assume that his sleep architecture cannot be normal.”

A review of the evidence of record suggests that the Veteran’s fatigue may be related to his sleep apnea, pain resulting from several disabilities, or the medication used to treat his depression. However, the record is unclear as to its specific cause to include whether the Veteran’s fatigue is a manifestations of an undiagnosed illness or medically unexplained chronic multi symptom illness other than chronic fatigue syndrome or fibromyalgia.

Therefore, an opinion is needed clarify as to the whether his symptoms are a result from an undiagnosed illness or medically unexplained chronic multi-symptoms illness resulting from service in Southwest Asia.

9. Entitlement to service connection for an acquired psychiatric disorder, to include depression is remanded.

The Veteran testified at the February 2019 Board hearing that his depression stems from his asthma and sinus conditions. He stated that his disabilities, and the medications used to treat them, prevent him from personal and professional activities. Although he tried to improve himself, “there as obviously a lot of emotions attached to what had happened and between losing my job and knowing that I
chronic multi symptom illness other than chronic fatigue syndrome or fibromyalgia.

9. Entitlement to service connection for an acquired psychiatric disorder, to include depression is remanded.

The Veteran testified at the February 2019 Board hearing that his depression stems from his asthma and sinus conditions. He stated that his disabilities, and the medications used to treat them, prevent him from personal and professional activities. Although he tried to improve himself, “there as obviously a lot of emotions attached to what had happened and between losing my job and knowing that I [was not] going to regain the health you need to go back full time.” He further stated he believed he was experiencing mental health problems during his military service as well.

The Board acknowledges that the Veteran has been diagnosed with mild recurrent major depression, generalized anxiety disorder, and dysthymia. He has also not been afforded a VA examination with respect to the question of whether his acquired psychiatric disorder was of service onset or otherwise caused by his military service, to include whether the Veteran’s asthma caused or aggravated his acquired psychiatric disorders. Therefore, the Board finds that remand is appropriate to afford the Veteran new examinations that addresses all theories of entitlement regarding this disability.

10. Entitlement to an increased disability rating in excess of 30 percent for bronchial asthma is remanded.

Following the Veteran’s submission of a substantive appeal in November 2015 and a Board hearing in February 2019, the Veteran was afforded a new VA examination for his respiratory condition in March 2019. The VA notified the Veteran of the additional evidence, his right to have it reviewed by the Agency of Original Jurisdiction (AOJ), and his ability to waive this right and in June 2019, the Veteran responded requesting that his case is sent back to the AOJ for review of the additional evidence that was submitted in his appeal. Therefore, the Agency of Original Jurisdiction must review the evidence prior to adjudication by the Board. 38 C.F.R. § § 20.1304 (2018).

11. TDIU

As the adjudication of the service connection and increased rating claims being remanded likely will impact adjudication of the claim for TDIU, it is inextricably intertwined and this issue is also remanded. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991) (holding that two issues are inextricably intertwined when they are so closely tied together that a final Board decision on one issue cannot be rendered until the other issue has been considered).

The matters are REMANDED for the following action:

1. Contact the appropriate VA Medical Center(s) and obtain and associate with the claims file all outstanding records of treatment. If any records are not available, or the search for any such records otherwise yields negative results, that fact must clearly be documented in the claims file. Efforts to obtain these records must continue until it is determined that they do not exist or that further attempts to obtain them would be futile. The non-existence or unavailability of such records must be verified and this should be documented for the record. Required notice must be provided to the Veteran.

2. Contact the Veteran and afford her the opportunity to identify by name, address and dates of treatment or examination any relevant medical records. Subsequently, and after securing the proper authorizations where necessary, make arrangements to obtain all the records of treatment or examination from all the sources listed by the Veteran which are not already on file. All information obtained must be made part of the file. All attempts to secure this evidence must be documented in the claims file, and if, after making reasonable efforts to obtain named records, they are not able to be secured, provide the required notice and opportunity to respond to the Veteran.

3. Once all outstanding records, if any, have been associated with the claims file, schedule the Veteran for examination with an appropriate examiner to determine the nature and etiology of his left and right shoulder conditions.

Based on a review of the claims file, the results of the examination, and the Veteran’s statements regarding the development and treatment of his claimed bilateral shoulder disorders during and after service, the examiner is asked to clarify whether the Veteran has any shoulder disorder or manifests shoulder pain resulting in functional impairment. The examiner should opine whether it is at least as likely as not (50 percent or greater probability) that any shoulder disorder had its onset in service or is otherwise linked to service.

The claims file should be provided to the examiner for review in conjunction with the examination and such should be acknowledged. All appropriate testing should be accomplished. The Veteran’s lay statements, especially regarding his symptomatology contained within the claims file and made at the examination and his report of an injury during service must be considered. The VA examiner is also asked to consider and address all relevant service treatment records.

All findings and conclusions should be set forth in a legible report. A clear rationale for all opinions rendered must be made. If the requested opinion cannot be provided without resort to speculation, the examiner should so state and explain why an opinion cannot be provided without resort to speculation.

4. Once all outstanding records, if any, have been associated with the claims file, schedule the Veteran for examination with an appropriate examiner to determine the nature and etiology of his left and right knee conditions.

Based on a review of the claims file, the results of the examination, and the Veteran’s statements regarding the development and treatment of his claimed bilateral knee disorders during and after service, the examiner is asked to clarify whether the Veteran has any shoulder disorder or manifests knee pain resulting in functional impairment. The examiner should opine whether it is at least as likely as not (50 percent or greater probability) that any shoulder disorder had its onset in service or is otherwise linked to service.

5. Once all outstanding records, if any, have been associated with the claims file, schedule the Veteran for examination with an appropriate examiner to determine the nature and etiology of his sleep apnea.

Following a review of the entire record and the Veteran’s competent lay statements, the VA examiner should opine as to the following:

a) Whether it is at least as likely as not (50 percent probability or more) that the Veteran’s obstructive sleep apnea is due to his service-connected asthma.

b) Whether it is at least as likely as not (50 percent probability or more) that the Veteran’s obstructive sleep apnea is aggravated by his service-connected asthma. “Aggravation” is defined as any worsening beyond the natural progression of the disability.

c) If the Veteran’s obstructive sleep apnea is NOT aggravated by his service-connected asthma, is it at least as likely as not (i.e., a 50 percent or greater probability) that the Veteran’s obstructive sleep apnea had its onset during, or is otherwise related to, his active duty service.

The claims file should be provided to the examiner for review in conjunction with the examination and such should be acknowledged. All appropriate testing should be accomplished. The Veteran’s lay statements, especially regarding his symptomatology contained within the claims file and made at the examination and his report of any symptoms during service must be considered. The VA examiner is also asked to consider and address all relevant service treatment records.

6. Once all outstanding records, if any, have been associated with the claims file, schedule the Veteran for examination with an appropriate examiner to determine the nature and etiology of his migraine headaches.

Following a review of the entire record and the Veteran’s competent lay statements, the VA examiner should opine as to the following:

a) Whether it is at least as likely as not (50 percent probability or more) that the Veteran’s migraine headaches are due to his service-connected asthma.

b) Whether it is at least as likely as not
rationale for all opinions rendered must be made. If the requested opinion cannot be provided without resort to speculation, the examiner should so state and explain why an opinion cannot be provided without resort to speculation.

Following a review of the entire record and the Veteran’s competent lay statements, the VA examiner should opine as to the following:

a) Whether it is at least as likely as not (50 percent probability or more) that the Veteran’s migraine headaches are due to his service-connected asthma.

b) Whether it is at least as likely as not (50 percent probability or more) that the Veteran’s migraine headaches are aggravated by his service-connected asthma. “Aggravation” is defined as any worsening beyond the natural progression of the disability.

c) If the Veteran’s migraine headaches are NOT aggravated by his service-connected asthma, is it at least as likely as not (i.e., a 50 percent or greater probability) that the Veteran’s migraine headaches had its onset during, or is otherwise related to, his active duty service.

The claims file should be provided to the examiner for review in conjunction with the examination and such should be acknowledged. All appropriate testing should be accomplished. The Veteran’s lay statements, especially regarding his symptomatology contained within the claims file and made at the examination and his report of any symptoms during service must be considered. The VA examiner is also asked to consider and address all relevant service treatment records.

7. Once all outstanding records, if any, have been associated with the claims file, schedule the Veteran for examination with an appropriate examiner to determine the nature and etiology of his high blood pressure, to include whether the Veteran has a diagnosis of hypertension.

Following a review of the entire record and the Veteran’s competent lay statements, the VA examiner should opine as to the following:

a) Whether it is at least as likely as not (50 percent probability or more) that the Veteran’s high blood pressure/hypertension is due to his service-connected disabilities to include any medications taken to treat service-connected disabilities.

b) Whether it is at least as likely as not (50 percent probability or more) that the Veteran’s high blood pressure/hypertension is aggravated by his service-connected disabilities to include whether medications used to treat his service-connected disabilities aggravated his high blood pressure/hypertension. “Aggravation” is defined as any worsening beyond the natural progression of the disability.

c) If the Veteran’s high blood pressure/hypertension is NOT aggravated by his service-connected disabilities, is it at least as likely as not (i.e., a 50 percent or greater probability) that the Veteran’s high blood pressure/hypertension had its onset during, or is otherwise related to, his active duty service.

The claims file should be provided to the examiner for review in conjunction with the examination and such should be acknowledged. All appropriate testing should be accomplished. The Veteran’s lay statements, especially regarding his symptomatology contained within the claims file and made at the examination and his report of any symptoms during service must be considered. The VA examiner is also asked to consider and address all relevant service treatment records.

8. Schedule the Veteran for an appropriate examination for the Veteran’s claimed chronic fatigue condition. The claims file should be made available to the examiner.

Following a review of the claims file, the reviewing examiner should provide an opinion for the following question:

a) Whether the Veteran had a diagnosis of chronic fatigue, during or in proximity to the appeal period

b) If so, is it at least as likely as not that chronic fatigue is otherwise related to an event, injury, or disease in active duty?

c) If the Veteran does not have a diagnosis of chronic fatigue, whether it is at least as likely as not these symptoms are due to an undiagnosed illness or medically unexplained chronic multi-symptom illness resulting from service in Southwest Asia during the Persian Gulf War. If so, the examiner should also comment on the severity of the symptomatology and report all signs and symptoms necessary for evaluating the illness under the rating criteria.

The claims file should be provided to the examiner for
Whether the Veteran had a diagnosis of chronic fatigue, during or in proximity to the appeal period

b) If so, is it at least as likely as not that chronic fatigue is otherwise related to an event, injury, or disease in active duty?

The claims file should be provided to the examiner for review in conjunction with the examination and such should be acknowledged. All appropriate testing should be accomplished. The Veteran’s lay statements, especially regarding his symptomatology contained within the claims file and made at the examination and his report of any symptoms during service must be considered. The VA examiner is also asked to consider and address all relevant service treatment records.

9. Once all outstanding records, if any, have been associated with the claims file, schedule the Veteran for examination with an appropriate examiner to determine the nature and etiology of his acquired psychiatric disorder, to include depression.

Following a review of the entire record and the Veteran’s competent lay statements, the VA examiner should opine as to the following:

a) Whether it is at least as likely as not (50 percent probability or more) that the Veteran’s acquired psychiatric disorders are due to his service-connected asthma or any other service-connected disabilities.

b) Whether it is at least as likely as not (50 percent probability or more) that the Veteran’s acquired psychiatric disorders are aggravated by his service-connected asthma or any other service-connected disabilities. “Aggravation” is defined as any worsening beyond the natural progression of the disability.

c) If the Veteran’s acquired psychiatric disorders are NOT aggravated by his service-connected asthma or any other service-connected disabilities, is it at least as likely as not (i.e., a 50 percent or greater probability) that the Veteran’s acquired psychiatric disorders had its onset during, or is otherwise related to, his active duty service.

The claims file should be provided to the examiner for review in conjunction with the examination and such should be acknowledged. All appropriate testing should be accomplished. The Veteran’s lay statements, especially regarding his symptomatology contained within the claims file and made at the examination and his report of any symptoms during service must be considered. The VA examiner is also asked to consider and address all relevant service treatment records.

10. Once all outstanding records, if any, have been associated with the claims file, adjudicate the issue of

entitlement to an increased disability rating in excess of 30 percent for bronchial asthma.

BARBARA B. COPELAND

Veterans Law Judge

Board of Veterans’ Appeals

Attorney for the Board H. Yoo, 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.

Analyze in VA Law Explorer