KNEE IMPAIRMENT OF

KATHERINE KIEMLE BUCKLEY · 2022 · Case ID: 22021176

MIXED

Summary

The veteran, who served in the Army from September 1974 to September 1994, appeals the denial of increased ratings for degenerative joint disease of the right knee, PTSD, radiculopathy of the right lower extremity, and bilateral hearing loss, as well as an earlier effective date for these conditions and for hypertension. The Board previously remanded several of these claims in February 2020, instructing VA to obtain specific treatment records and conduct new examinations. The Board found that VA's compliance with these instructions was inadequate, necessitating a further remand. Specifically, for the lumbar spine and radiculopathy claims, the Board noted that previously identified treatment records remained unassociated with the claims file, and attempts to obtain records from William Beaumont Army Medical Center were unsuccessful and deemed futile. For the bilateral hearing loss claims, the Board found that audiograms referenced in prior treatment records were not located or associated with the file, despite instructions to do so. The Board also remanded the claim for service connection for a left knee disability, noting that the November 2020 VA examiner's opinion was impermissibly based on the absence of service treatment records showing left knee symptomatology, without adequately considering the Veteran's report of a 1979 diagnosis of left knee strain and the examiner's own finding of functional loss. The Board denied increased ratings for degenerative joint disease of the right knee and PTSD, as well as earlier effective dates for radiculopathy, bilateral hearing loss, right knee disability, PTSD, and service connection for hypertension, finding the criteria were not met.

Rationale

Criteria for evaluation exceeding 10% not met; No functional loss due to pain or other factors noted; No ankylosis, instability, or significant limitation of motion

Service Branch

ARMY

Special Benefit

NO SPECIAL BENEFIT

Docket No.

17-49 842

Full Decision Text

Citation Nr: 22021176
Decision Date: 04/08/22 Archive Date: 04/08/22

DOCKET NO. 17-49 842
DATE: April 8, 2022

ORDER

An evaluation in excess of 10 percent for degenerative joint disease of the right knee is denied.

An evaluation in excess of 50 percent for posttraumatic stress disorder (PTSD) is denied.

An effective date earlier than January 30, 2015 for a 20 percent evaluation for radiculopathy of the right lower extremity is denied.

An effective date earlier than January 30, 2015 for a 20 percent evaluation for bilateral hearing loss is denied.

An effective date earlier than January 30, 2015 for a 10 percent evaluation for degenerative joint disease of the right knee is denied.

An effective date earlier than January 30, 2015 for a 50 percent evaluation for PTSD is denied.

Service connection for hypertension is denied.

REMANDED

Entitlement to an evaluation in excess of 20 percent for multilevel discogenic and boney degenerative changes to the lumbosacral spine (hereinafter "a lumbar spine disability") is remanded.

Entitlement to an initial evaluation in excess of 20 percent for radiculopathy of the right lower extremity is remanded.

Entitlement to an evaluation in excess of 20 percent prior to February 12, 2018 for bilateral hearing loss is remanded.

Entitlement to an evaluation in excess of 30 percent from February 12, 2018 for bilateral hearing loss is remanded.

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

Entitlement to service connection for heart pathology manifested by sinus bradycardia, minimal voltage criteria for left ventricular hypertrophy, hypercholesterolemia, and chest pain (hereinafter "a heart disability") is remanded.

FINDINGS OF FACT

1. The Veteran's degenerative joint disease of the right knee is not productive of ankylosis, recurrent subluxation, lateral instability, dislocation or removal of the semilunar cartilage, malunion or nonunion of the tibia and fibula, genu recurvatum, limitation of extension, flexion limited to 30 degrees or less, or the functional equivalent thereof.

2. The Veteran's PTSD is not productive of total occupational and social impairment or occupational and social impairment with deficiencies in most areas such as work, school, family relations, judgment, or mood.

3. Prior to January 30, 2015, the Veteran did not express an intent to claim service connection for radiculopathy, and there is no evidence in the record of a radiculopathy diagnosis.

4. After a June 1995 final rating decision, the next communication indicating an intent to claim an increased rating bilateral hearing loss was the claim received by VA on January 30, 2015.

5. After a June 1995 final rating decision, the next communication indicating an intent to claim an increased rating for a right knee disability was the claim received by VA on January 30, 2015.

6. After a March 1997 final rating decision, the next communication indicating an intent to claim an increased rating for PTSD was the claim received by VA on January 30, 2015.

7. The Veteran's hypertension is not related to service and did not manifest within one year of separation of service.

CONCLUSIONS OF LAW

1. The criteria for an evaluation in excess of 10 percent for degenerative joint disease of the right knee are not met. 38 U.S.C. § 1155 (2018); 38 C.F.R. § 4.71a, Diagnostic Code 5260 (2021).

2. The criteria for an evaluation in excess of 50 percent for PTSD are not met. 38 U.S.C. § 1155 (2018); 38 C.F.R. § 4.130, Diagnostic Code 9411 (2021).

3. The criteria for an effective date prior to January 30, 2015 for a 20 percent evaluation for radiculopathy of the right lower extremity are not met. 38 U.S.C. §§ 5107, 5110 (2018); 38 C.F.R. §§ 3.102, 3.159 (2021).

4. The criteria for an effective date prior to January 30, 2015 for a 20 percent evaluation for bilateral hearing loss are not met. 38 U.S.C. §§ 5107, 5110 (2018); 38 C.F.R. §§ 3.102, 3.
9411 (2021).

5. The criteria for an effective date prior to January 30, 2015 for a 10 percent evaluation for degenerative joint disease of the right knee are not met. 38 U.S.C. §§ 5107, 5110 (2018); 38 C.F.R. §§ 3.102, 3.159 (2021).

6. The criteria for an effective date prior to January 30, 2015 for a 50 percent evaluation for PTSD are not met. 38 U.S.C. §§ 5107, 5110 (2018); 38 C.F.R. §§ 3.102, 3.159 (2021).

7. The criteria for service connection for hypertension are not met. 38 U.S.C. §§ 1101, 1110, 1131, 5107 (2018); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309 (2021).

REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

The Veteran served on active duty from September 1974 to September 1994.

This appeal is before the Board of Veterans' Appeals (Board) from a July 2015 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas.

In a February 2020 decision, the Board denied an increased rating and earlier effective date for tinnitus, an earlier effective date for a lumbar spine disability, and service connection for sleep apnea and a stroke. The Board reopened the claims of entitlement to service connection for a heart disability a left knee disability and remanded all issues with instruction to obtain relevant VA treatment records, VA examinations, private treatment records, and federal treatment records for the Veteran.

The appropriate VA treatment records were obtained except for those relating to issues herein remanded. The Veteran underwent VA examinations in November 2020. Private treatment records were obtained to the extent possible. Specifically, the Board instructed that the Veteran be requested to provide records or the information necessary for VA to obtain records from the Las Palmas Medical Center or a Dr. M. with CCC. Such records or information were requested in a February 2020 letter, but the Veteran did not respond. VA has thus met its duty with regard to these records. The Board further instructed that VA obtain records in federal custody, specifically those in the possession of the William Beaumont Army Medical Center (WBAMC). VA attempted to obtain such records via three letters sent to WBAMC in March 2020 and April 2020. No response was received, and the Veteran was informed of WBAMC's failure to respond in May 2020. The Board therefore finds that further attempts to obtain these records would be futile, and the duty to assist does not require additional efforts to obtain these records. 38 C.F.R. § 3.159(c)(2).

Accordingly, the Board is satisfied that the instructions in its February 2020 remand have been satisfactorily complied with, to this extent. See Stegall v. West, 11 Vet. App. 268 (1998).

Increased Ratings

Disability evaluations are determined by application of the criteria set forth in the VA's Schedule for Rating Disabilities, which is based on average impairment in earning capacity. 38 U.S.C. § 1155; 38 C.F.R. Part 4. An evaluation of the level of disability present must also include consideration of the functional impairment of the Veteran's ability to engage in ordinary activities, including employment. 38 C.F.R. § 4.10.

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

During the pendency of the appeal, the rating criteria for evaluating musculoskeletal disabilities under 38 C.F.R. § 4.71a were amended effective February 7, 2021. 85 Fed. Reg. 76,453 (Nov. 30, 2020). These amendments revised select diagnostic codes "to ensure that this portion of the rating schedule uses current medical terminology and provides detailed and updated criteria for the evaluation of musculoskeletal disabilities." Id.

If a law or regulation changes during the course of a claim or an appeal, the version more favorable to the claimant will apply, to the extent permitted by any stated effective date in the amendment in question. 38 U.S.C. § 5110(g). If the revised version of the regulation is more favorable, the implementation of that regulation under 38 U.S.C. § 5110(g) can be no earlier than the effective date of that change. If the former version is more favorable, VA can apply the earlier version of the regulation for the period prior to, and from, the effective date of the change. 38 U.S.C. § 5110. Therefore, the Board will consider the Veteran's claim under the old criteria prior to February 7, 2021 and both the old and new rating criteria from February 7, 2021. The criteria that is more favorable to the Veteran will be applied.

When a question arises as to which of two ratings apply under a particular diagnostic code, the higher evaluation is assigned if the disability more closely approximates the criteria for the higher rating. 38 C.F.R. § 4.7. After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the Veteran. 38 C.F.R. § 4.3. The Veteran's entire history is to be considered when making disability evaluations. See generally 38 C.F.R. § 4.1; Schafrath v. Derwinski, 1 Vet. App. 589 (1995).

1. Entitlement to an evaluation in excess of 10 percent for degenerative joint disease of the right knee

The Veteran claims an increased rating for his right knee disability.

The Veteran is currently in receipt of a 10 percent rating under 38 C.F.R. § 4.71a, Diagnostic Code 5260. Under this code, flexion of the leg is rated noncompensable when limited to 60 degrees, 10 percent when limited to 45 degrees, 20 percent when limited to 30 degrees, and 30 percent when limited to 15 degrees.

Alternative and additional Diagnostic Codes for the leg and the knee are available under 38 C.F.R. § 4.71a, as follows:

Under 38 C.F.R. § 4.71a, Diagnostic Code 525
the right knee

The Veteran claims an increased rating for his right knee disability.

Alternative and additional Diagnostic Codes for the leg and the knee are available under 38 C.F.R. § 4.71a, as follows:

Under 38 C.F.R. § 4.71a, Diagnostic Code 5256, ankylosis of the knee with a favorable angle in full extension, or in slight flexion between 0 and 10 degrees, is rated at 30 percent; ankylosis in flexion between 10 and 20 degrees is rated at 40 percent; ankylosis in flexion between 20 and 45 degrees is rated at 50 percent; and extremely unfavorable ankylosis, in flexion at an angle of 45 degrees or more, is rated at 60 percent.

Under 38 C.F.R. § 4.71a, Diagnostic Code 5257, recurrent subluxation or lateral instability is rated at 10 percent for slight instability, 20 percent for moderate instability, and 30 percent for severe instability. As of February 7, 2021, under the amended criteria, a 10 percent rating is warranted for a diagnosed condition with recurrent instability that does not require a prescription for a brace, cane, or walker; or for a sprain, incomplete ligament tear, or complete ligament tear causing persistent instability without a prescription for an assistive device or bracing for ambulation. A 20 percent rating is warranted for a diagnosed condition with recurrent instability after surgical repair that requires a prescription for a brace, cane, or walker; or for a sprain, incomplete ligament tear, or complete ligament tear causing persistent instability with a prescription for an assistive device or bracing for ambulation. A 30 percent rating is warranted for a diagnosed condition with recurrent instability after surgical repair that requires a prescription for a brace and either a cane or a walker; or for an unrepaired or failed repair of a complete ligament tear causing persistent instability with a prescription for both an assistive device and bracing for ambulation.

Under 38 C.F.R. § 4.71a, Diagnostic Code 5258, dislocation of semilunar cartilage with frequent episodes of "locking" pain and effusion into the joint is rated at 20 percent.

Under 38 C.F.R. § 4.71a, Diagnostic Code 5259, symptomatic removal of the semilunar cartilage is rated at 10 percent.

Under 38 C.F.R. § 4.71a, Diagnostic Code 5261, extension of the leg is rated noncompensable when limited to 5 degrees, 10 percent when limited to 10 degrees, 20 percent when limited to 15 degrees, 30 percent when limited to 20 degrees, 40 percent when limited to 30 degrees, and 50 percent when limited to 45 degrees.

Under 38 C.F.R. § 4.71a, Diagnostic Code 5262, malunion of the tibia and fibula is rated at 10 percent with slight disability, 20 percent with moderate disability, and 30 percent with marked disability. Nonunion of the tibia and fibula, with loose motion and requiring a brace, is rated at 40 percent. As of February 7, 2021, under the amended criteria, malunion of the tibia and fibula is to be evaluated under Diagnostic Codes 5256, 5257, 5260, or 5261 for the knee, or 5270 or 5271 for the ankle, whichever results in the highest evaluation. In addition, the code provides criteria for MTSS or shin splints. Treatment for less than 12 consecutive months warrants a 0 percent rating. A disability requiring treatment for no less than 12 consecutive months and unresponsive to either shoe orthotics or other conservative treatment warrants a 10 percent rating. A disability requiring treatment for no less than 12 consecutive months unresponsive to surgery and either shoe orthotics or other conservative treatment warrants a 20 percent rating in one lower extremity and a 30 percent rating for both lower extremities.

Under 38 C.F.R. § 4.71a, Diagnostic Code 5263, acquired traumatic genu recurvatum, with objectively demonstrated weakness and insecurity in weight-bearing is rated at 10 percent.

provides criteria for MTSS or shin splints. Treatment for less than 12 consecutive months warrants a 0 percent rating. A disability requiring treatment for no less than 12 consecutive months and unresponsive to either shoe orthotics or other conservative treatment warrants a 10 percent rating. A disability requiring treatment for no less than 12 consecutive months unresponsive to surgery and either shoe orthotics or other conservative treatment warrants a 20 percent rating in one lower extremity and a 30 percent rating for both lower extremities.

Under 38 C.F.R. § 4.71a, Diagnostic Code 5263, acquired traumatic genu recurvatum, with objectively demonstrated weakness and insecurity in weight-bearing is rated at 10 percent.

The Veteran underwent a VA examination in June 2015. He reported worsening pain and limitation of motion. He described pain with bending the knee or walking. Flare-ups were described as lasting an hour or two and occurring 2-3 times per week with rainy weather or when he loses his balance and must stretch the knee to avoid falling. Flexion was limited to 120 degrees and extension was full to 0 degrees. There was objective evidence of pain on flexion, pain on weight bearing, crepitus, and severe localized tenderness in the suprapatellar area. Repetitive testing did not lead to further loss of range or function. The examiner determined that flare-ups and repeated use over time caused pain that further reduced flexion to 90 degrees. Additional contributing factors of disability included deformity, instability of station, and interference with standing. Muscle strength was full without atrophy. There was no ankylosis. There was no history of recurrent subluxation, lateral instability, or recurrent effusion. Instability testing was not indicated. There was no tibial or fibular impairment. There was no meniscal condition. He reported constant use of a cane. X-rays confirmed arthritis. He was diagnosed with a right knee strain with joint osteoarthritis.

VA treatment records reflect that, in March 2017, the Veteran was issued a new knee brace for his right knee.

The Veteran underwent another VA examination in November 2017. He reported that his knee was getting worse and was unable to bear weight. He described a stretching sensation and pulling pain. He required a power chair to walk. Flare-ups consisted of more intense pain. Flexion was limited to 110 degrees and extension was full to 0 degrees. There was evidence of pain on flexion, moderate localized tenderness, pain with weight bearing, and crepitus. Repetitive testing did not lead to additional loss of range or function. The examiner found that pain and lack of endurance caused functional loss during flare-ups and with repeated use over time but not to an extent that further reduced range of motion. Additional contributing factors of disability consisted of swelling, disturbance of motion, interference with sitting, interference with standing, difficulty bending, and pain with prolonged weight bearing. Muscle strength was diminished to 4/5 without atrophy. There was no ankylosis. There was no history of recurrent subluxation, lateral instability, or recurrent effusion. Instability tests were normal. There was no tibial or fibular impairment. There was no meniscal condition. The Veteran reported constant use of a cane. X-rays confirmed arthritis. He was diagnosed with degenerative joint disease of the right knee.

VA treatment records reflect that, in December 2017, the Veteran reported continued knee pain, rated at 4-5/10, with no significant change from before. In February 2019, he reported worsening pain with decreasing response to medication. His knee exhibited moderate tenderness with no acute swelling.

The Veteran underwent another VA examination in November 2020. He reported constant knee pain, worse with walking and standing. Flare-ups were daily, moderate, and lasted one hour. He was unable to squat. Flexion was limited to 110 degrees, and extension was full to 0 degrees. Pain causing functional loss was noted in flexion and extension. There was mild localized tenderness under the kneecap. There was evidence of pain with weight bearing, but no evidence of crepitus. Repetitive testing did not lead to further loss of range or function. The examiner determined that pain limited flexion to 100 degrees with repeated use over time, and pain and fatigue limited flexion to 90 degrees during flare-ups. Muscle strength was full without atrophy. There was no ankylosis. There was no history of recurrent subluxation, lateral instability, or recurrent effusion. Instability tests were normal
110 degrees, and extension was full to 0 degrees. Pain causing functional loss was noted in flexion and extension. There was mild localized tenderness under the kneecap. There was evidence of pain with weight bearing, but no evidence of crepitus. Repetitive testing did not lead to further loss of range or function. The examiner determined that pain limited flexion to 100 degrees with repeated use over time, and pain and fatigue limited flexion to 90 degrees during flare-ups. Muscle strength was full without atrophy. There was no ankylosis. There was no history of recurrent subluxation, lateral instability, or recurrent effusion. Instability tests were normal. There was no tibial or fibular impairment. There was no meniscal condition. The Veteran reported constant use of a cane. X-rays confirmed arthritis. He was diagnosed with right knee osteoarthritis. Functional impairment caused an inability to stand and walk more than 10 minutes using a cane, to sit more than 30 minutes, or to run or squat.

The Board finds that an evaluation in excess of 10 percent is not warranted for the Veteran's right knee degenerative joint disease. Higher ratings are available for ankylosis, recurrent subluxation, lateral instability, dislocation, or removal of the semilunar cartilage, malunion or nonunion of the tibia and fibula, genu recurvatum, limitation of extension, flexion limited to 30 degrees or less, or the functional equivalent thereof. The evidence persuasively weighs against such symptomatology. There is no evidence in the record of ankylosis, recurrent subluxation, dislocation, or removal of the semilunar cartilage, malunion or nonunion of the tibia and fibula, or genu recurvatum.

While the Veteran reported flare-ups triggered by losing his balance, he never reported any sense of giving way or instability, and all instability tests performed on the knee were negative. A rating for instability is therefore not warranted.

Limitation of extension has not been documented through objective measurement, and the examiners have not noted it to be limited during flare-ups or with repeated use over time. Flexion has not been measured as limited to less than 110 degrees, and two examiners determined that flare-ups or repeated use over time further limited flexion to 90 degrees. There is no evidence of limitation of flexion approaching the 30 degrees required for a higher rating.

Critically, functional loss must be rated under the diagnostic code pertaining to limitation of motion of the affected joint, pursuant to 38 C.F.R. § 4.40; Schafrath v. Derwinski, 1 Vet. App. 589, 592 (1991) (noting that functional loss due to pain is to be rated at the same level as where motion is impeded); DeLuca v. Brown, 8 Vet. App. 202, 205-06 (noting that the disabling effect of painful motion must be considered when rating joint disabilities) (1995); Mitchell v. Shinseki, 25 Vet. App. 32, 37 (2011) (stating that functional loss caused by pain must be rated at the same level as if that functional loss were caused by some other factor that actually limited motion)); c.f., Petitti v. McDonald, 27 Vet. App. 415 (2015). Hence, there is no basis upon which to find additional limitation due to functional factors. See 38 C.F.R. §§ 4.40, 4.45; DeLuca, 8 Vet. App. at 202; Mitchell, 25 Vet. App. at 32. As indicated above, the Veteran's functional impairment and impaired motion during flare-ups is contemplated in the assigned disability rating. As set forth above, the Veteran does not meet the criteria for the assignment of separate compensable disability ratings for limitation of flexion or extension in his right knee under VAOPGCPREC 09-2004, VAOPGCPREC 23-97, or VAOPGCREC 9-98 during the appeal period.

For these reasons, the Board finds that an evaluation in excess of 10 percent is not warranted for the Veteran's right knee degenerative joint disease.

2. Entitlement to an evaluation in excess of 50 percent for PTSD

The Veteran claims an increased rating for PTSD.

For these reasons, the Board finds that an evaluation in excess of 10 percent is not warranted for the Veteran's right knee degenerative joint disease.

2. Entitlement to an evaluation in excess of 50 percent for PTSD

The Veteran claims an increased rating for PTSD.

Diagnostic Code 9411 of 38 C.F.R. § 4.130 specifically addresses PTSD; however, all psychiatric disabilities are evaluated under a general rating formula for mental disorders. Under the general rating formula, the Veteran's current 50 percent rating is warranted for occupational and social impairment with reduced reliability and productivity due to such symptoms as: flattened affect; circumstantial, circumlocutory, or stereotyped speech; panic attacks more than once a week; difficulty in understanding complex commands; impairment of short- and long-term memory (e.g. retention of only highly learned material, forgetting to complete tasks); impaired judgment; impaired abstract thinking; disturbances of motivation and mood; and difficulty in establishing effective work and social relationships.

A 70 percent rating is warranted for occupational and social impairment with deficiencies in most areas such as work, school, family relations, judgment, or mood, due to such symptoms as: suicidal ideation; obsessional rituals which interfere with routine activities; speech intermittently illogical, obscure, or irrelevant; near continuous panic or depression affecting the ability to function independently, appropriately and effectively; impaired impulse control (such an unprovoked irritability with periods of violence); spatial disorientation; neglect of personal appearance and hygiene; difficulty in adapting to stressful circumstances (including work or a work like setting); and inability to establish and maintain effective relationships.

A total schedular rating of 100 percent is warranted for total occupational and social impairment, due to such symptoms as: gross impairment in thought processes or communication; persistent delusions or hallucinations; grossly inappropriate behavior; persistent danger of hurting self or others; intermittent inability to perform activities of daily living (including maintenance of mental and personal hygiene); disorientation to time or place; memory loss for names of close relatives, own occupation, or own name.

The list of symptoms under the rating criteria are meant to be examples of symptoms that would warrant the rating, but are not meant to be exhaustive, and the Board need not find all or even some of the symptoms to award a specific rating. Mauerhan v. Principi, 16 Vet. App. 436, 442-43 (2002). If the evidence shows that the Veteran suffers symptoms or effects that cause occupational or social impairment equivalent to what would be caused by the symptoms listed in the criteria for a particular rating, the appropriate equivalent rating will be assigned. Id. at 443. Furthermore, the rating code requires not only the presence of certain symptoms but also that those symptoms have caused occupational and social impairment at a level consistent with the assigned rating. Vazquez-Claudio v. Shinseki, 713 F.3d 112, 116-17 (Fed. Cir. 2013).

The Veteran underwent a VA examination in July 2015. He reported that he had been married to his current wife for 20 years and had two children from his first marriage. He was currently unemployed. The examiner noted symptoms of anxiety, panic attacks occurring weekly or less often, chronic sleep impairment, impairment of short- and long-term memory, disturbances of motivation and mood, and suicidal ideation. The examiner clarified that the Veteran appeared to have suffered significant memory loss from a 2014 stroke, and that he had a history of putting a gun to his head seven years prior but did not have current suicidal ideation. He was diagnosed with PTSD productive of occupational and social impairment with reduced reliability and productivity.

VA treatment records reflect that, in November 2016, the Veteran reported that his anxiety, crying episodes, and irritability are bothering him. He had issues getting angry about a lot of different things. His social worker noted transient suicidal thoughts with no intent or plan. He was diagnosed with PTSD. In December 2016 he reported anxiety, depression, PTSD symptoms, and sleep problems, along with significant memory and cognitive functioning issues. He was diagnosed with chronic PTSD in stable condition. In January 2017, he reported that he still had dreams, but did not remember most of them. He stated that he and his wife were getting along, and he found her very supportive. To relax, he watches television, stays on the computer, and plays with his dogs. He stated that he once put a gun to his head about 20 years prior when he was experiencing stress related to the divorce he was going through. He denied any other
thoughts with no intent or plan. He was diagnosed with PTSD. In December 2016 he reported anxiety, depression, PTSD symptoms, and sleep problems, along with significant memory and cognitive functioning issues. He was diagnosed with chronic PTSD in stable condition. In January 2017, he reported that he still had dreams, but did not remember most of them. He stated that he and his wife were getting along, and he found her very supportive. To relax, he watches television, stays on the computer, and plays with his dogs. He stated that he once put a gun to his head about 20 years prior when he was experiencing stress related to the divorce he was going through. He denied any other attempts or any current suicidal ideation. In March 2017, the Veteran reported that he was doing well, using cooking, puzzles, and other hobbies as coping skills. He was looking into joining a fishing club. In June 2017, he reported that he had been doing well and believed that his symptoms were well-managed. In August 2017, he reported that he believed he was doing very well and no longer needed trauma-focused treatment. He was discharged from individual therapy for PTSD. At a November 2017 medication management consultation, the Veteran reported that he was doing well in regards of his mood, despite the recent death of his daughter. He denied depression and reported that his PTSD symptoms were under control. His sleep had been fair. Records thereafter show his mood and condition as stable and controlled by medication.

The Board finds that an evaluation in excess of 50 percent is not warranted for the Veteran's PTSD. Higher ratings are available for total occupational and social impairment or for occupational and social impairment with deficiencies in most areas such as work, school, family relations, judgment, or mood. The evidence persuasively weighs against such symptomatology. The July 2015 VA examiner stated that the Veteran's symptoms produced occupational and social impairment with reduced reliability and productivity, and there is no evidence in the record to contradict that finding. The examiner noted only two symptoms potentially associated with higher ratings: memory impairment and suicidal ideation. The memory impairment, however, was clearly associated with his non-service-connected stroke, and the suicidal ideation was predominantly remote and not reflective of his current symptoms. The Veteran described putting a gun to his head 20 years ago, but no such action has been demonstrated during the appeal period. Although the Board has considered the Veteran's history, it finds that this symptom has not resulted in additional occupational or social impairment such that a higher rating would be warranted. Of more probative value are his VA treatment records, showing a high-functioning patient who elected to end individual therapy and regularly reports doing well on medication alone. He describes a good relationship with his wife, active hobbies, and an interest in interacting socially with others through joining clubs.

Critically, treatment records, as well as the VA examination reports, have not shown that the Veteran had occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood, due to such symptoms as near-continuous depression; illogical speech, near continuous panic or depression affecting the ability to function independently; neglect of personal appearance; impaired impulse control with periods of unprovoked irritability; difficulty in adapting to stressful circumstances; and the inability to establish and maintain effective relationships. 38 C.F.R. § 4.130, DC 9411. Significantly, there is no indication in these records that the Veteran's occupational and social functioning was indicative of deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood at any time during the appeal period. See Vazquez-Claudio, supra.

Moreover, total occupational and social impairment has not been shown. Specifically, the evidence does not demonstrate total occupational and social impairment due to such symptoms as gross impairment in thought processes or communication; persistent delusions or hallucinations; grossly inappropriate behavior; intermittent inability to perform activities of daily living; or disorientation to time or place. There is no indication of total occupational and social impairment in the clinical evidence or examination reports.

For these reasons, the Board finds that an evaluation in excess of 50 percent is not warranted for the Veteran's PTSD.

Effective Dates

Generally, the effective date of an award of service connection or an increased rating is either the date of receipt of the claim or the date entitlement arose, whichever is later. 38 U.S.C. § 5110(a); 38 C.F.R. § 3.400. With respect to increased rating claims, if the earliest date that the claimed increase in disability had occurred was factually ascertainable based on all evidence of record within one year prior to the
disorientation to time or place. There is no indication of total occupational and social impairment in the clinical evidence or examination reports.

For these reasons, the Board finds that an evaluation in excess of 50 percent is not warranted for the Veteran's PTSD.

Effective Dates

Generally, the effective date of an award of service connection or an increased rating is either the date of receipt of the claim or the date entitlement arose, whichever is later. 38 U.S.C. § 5110(a); 38 C.F.R. § 3.400. With respect to increased rating claims, if the earliest date that the claimed increase in disability had occurred was factually ascertainable based on all evidence of record within one year prior to the receipt of claim, the effective date is the date such increase occurred. 38 C.F.R. § 3.400(o)(2).

Under regulations applicable prior to March 24, 2015, any communication or action indicating an intent to apply for one or more benefits under the laws administered by VA from a claimant may be considered an informal claim. An informal claim must identify the benefit sought. 38 C.F.R. § 3.155(a). In addition, the date of VA outpatient or hospital examination or admission is the date of receipt of a claim if such records show a worsening of disability. 38 C.F.R. § 3.157(a), (b)(1).

3. Entitlement to an effective date earlier than January 30, 2015 for a 20 percent evaluation for radiculopathy of the right lower extremity

The Veteran claims an earlier effective date for an award of service connection for radiculopathy of the right lower extremity.

The Veteran was originally service-connected for a lumbar spine disability in a June 1995 rating decision, which assigned a 20 percent rating for chronic lumbosacral strain from October 1, 1995. The Veteran neither appealed this decision nor submitted new evidence within the one-year appeal period. The decision therefore became final.

On January 30, 2015, VA received a claim for an increased rating for the Veteran's lumbar spine disability. Radiculopathy secondary to the lumbar spine disability was found at a June 2015 VA examination, and service connection was awarded effective the date that the Veteran's claim for an increased rating was received.

The Board finds that an effective date earlier than January 30, 2015 is not warranted for an award of service connection for radiculopathy of the right lower extremity. The Veteran did not assert a claim of entitlement to an increased disability rating for a lumbar spine disability or an intent to claim service connection for radiculopathy prior to that date. Moreover, there is no evidence of radiculopathy prior to January 30, 2015. VA treatment records prior to that date do not diagnose radiculopathy.

While the Board has herein remanded the claim of entitlement to an increased rating for radiculopathy of the right lower extremity to obtain records of aquatic therapy and physical therapy, this therapy began in approximately December 2017 and April 2018, respectively. The Board recognizes that the prior February 2020 remand indicated that the earlier effective date claim was intertwined with the increased rating claim for radiculopathy of the right lower extremity. However, the Board herein finds that there is no scenario in which any such records could support a claim for an effective date earlier than January 2015. Furthermore, the Veteran has not explained why he believes that an earlier effective date is warranted for his radiculopathy. For these reasons, the Board finds that an effective date earlier than January 30, 2015 is not warranted for an award of service connection for radiculopathy of the right lower extremity.

4. Entitlement to an effective date earlier than January 30, 2015 for a 20 percent evaluation for bilateral hearing loss

The Veteran claims an earlier effective date for an increase in rating from 0 to 20 percent for bilateral hearing loss, currently effective January 30, 2015.

Service connection for bilateral hearing loss was granted and a noncompensable rating assigned in a June 1995 rating decision. The Veteran neither appealed this decision nor submitted new evidence within the one-year appeal period. The decision therefore became final.

The Board finds that an effective date earlier than January 30, 2015 is not warranted for an increase in the Veteran's bilateral hearing loss rating. After the June 1995 final rating decision, the next communication indicating an intent to claim an increased rating for bilateral hearing loss was received by VA on January 30, 2015. VA treatment records reflect ongoing treatment in the interim, but do not contain a single
hearing loss, currently effective January 30, 2015.

The Board finds that an effective date earlier than January 30, 2015 is not warranted for an increase in the Veteran's bilateral hearing loss rating. After the June 1995 final rating decision, the next communication indicating an intent to claim an increased rating for bilateral hearing loss was received by VA on January 30, 2015. VA treatment records reflect ongoing treatment in the interim, but do not contain a single examination or admission showing that worsening had occurred and could be considered an informal claim. There is no evidence of a worsening of the Veteran's disability in treatment records one year prior to the date of his claim.

While the Board herein remanded the claim of entitlement to an increased rating for bilateral hearing loss to obtain additional audiometric testing records, these records are specific and dated no earlier than December 2017. The Board recognizes that the February 2020 remand indicated that the increased rating and earlier effective date claims were intertwined. However, the Board herein finds that there is no scenario in which said records could support a claim for an effective date earlier than January 2015. Furthermore, the Veteran has not explained why he believes that an earlier effective date is warranted for his increased rating claim. For these reasons, the Board finds that an effective date earlier than January 30, 2015 is not warranted for an increase to the Veteran's bilateral hearing loss rating.

5. Entitlement to an effective date earlier than January 30, 2015 for a 10 percent evaluation for degenerative joint disease of the right knee.

The Veteran claims an earlier effective date for an increase in rating from 0 to 10 percent for a right knee disability, currently effective January 30, 2015.

Service connection for patellar tendinitis of the right knee was granted and a noncompensable rating assigned in a June 1995 rating decision. The Veteran neither appealed this decision nor submitted new evidence within the one-year appeal period. The decision therefore became final.

The Board finds that an effective date earlier than January 30, 2015 is not warranted for an increase in the Veteran's right knee disability rating. After the June 1995 final rating decision, the next communication indicating an intent to claim an increased rating for a right knee disability was received by VA on January 30, 2015. VA treatment records reflect ongoing treatment in the interim, but do not contain a single examination or admission showing that worsening had occurred and could be considered an informal claim. There is no evidence of a worsening of the Veteran's disability in treatment records one year prior to the date of his claim. Furthermore, the Veteran has not explained why he believes that an earlier effective date is warranted for his increased rating claim. For these reasons, the Board finds that an effective date earlier than January 30, 2015 is not warranted for an increase to the Veteran's right knee disability rating.

6. Entitlement to an effective date earlier than January 30, 2015 for a 50 percent evaluation for PTSD

The Veteran claims an earlier effective date for an increase in rating from 10 to 50 percent for PTSD, currently effective January 30, 2015.

Service connection for PTSD was granted and a 10 percent rating assigned in a March 1997 rating decision. The Veteran neither appealed this decision nor submitted new evidence within the one-year appeal period. The decision therefore became final.

The Board finds that an effective date earlier than January 30, 2015 is not warranted for an increase in the Veteran's PTSD rating. After the March 1997 final rating decision, the next communication indicating an intent to claim an increased rating for PTSD was received by VA on January 30, 2015. VA treatment records reflect ongoing treatment in the interim, but do not contain a single examination or admission showing that worsening had occurred and could be considered an informal claim. There is no evidence of a worsening of the Veteran's disability in treatment records one year prior to the date of his claim. Furthermore, the Veteran has not explained why he believes that an earlier effective date is warranted for his increased rating claim. For these reasons, the Board finds that an effective date earlier than January 30, 2015 is not warranted for an increase to the Veteran's PTSD rating.

Service Connection

Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303
examination or admission showing that worsening had occurred and could be considered an informal claim. There is no evidence of a worsening of the Veteran's disability in treatment records one year prior to the date of his claim. Furthermore, the Veteran has not explained why he believes that an earlier effective date is warranted for his increased rating claim. For these reasons, the Board finds that an effective date earlier than January 30, 2015 is not warranted for an increase to the Veteran's PTSD rating.

Service Connection

Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Service connection requires: (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, 1167 (Fed. Cir. 2004); see also Caluza v. Brown, 7 Vet. App. 498 (1995). Service connection may also be granted for any disease diagnosed after discharge when the evidence establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d).

Service connection is also warranted for a disability which is proximately due to or the result of a service-connected disease or injury. 38 C.F.R. § 3.310(a). Such secondary service connection is warranted for any increase in severity of a nonservice-connected disability that is proximately due to or the result of a service-connected disability. 38 C.F.R. § 3.310(b).

For certain chronic diseases, such as arthritis or hypertension, a presumption of service connection arises if the disease is manifested to a degree of 10 percent within one year following discharge from service. 38 C.F.R. §§ 3.307(a)(3), 3.309(a). When a chronic disease is not shown to have manifested to a compensable degree within one year after service, under 38 C.F.R. § 3.303(b) for the showing of chronic disease in service, there is required a combination of manifestations sufficient to identify the disease entity and sufficient observation to establish chronicity at the time. When the fact of chronicity in service is not adequately supported, a showing of continuity after discharge is required to support a claim for such diseases; however, such continuity of symptomatology may only support a claim for those chronic diseases listed under 38 C.F.R. § 3.309(a). 38 C.F.R. § 3.303(b); see Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013).

In determining whether service connection is warranted for a disability, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the claimant prevailing in either event, or whether the evidence persuasively against the claim, in which case the claim is denied. 38 U.S.C. § 5107; Lynch v. McDonough, 21 F.4th 776 (Fed. Cir. 2021). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination, the benefit of the doubt is afforded the claimant.

7. Entitlement to service connection for hypertension

The Veteran claims service connection for hypertension.

VA regulations require that hypertension or isolated systolic hypertension be confirmed by readings taken two or more times on at least three different days. For compensation purposes, hypertension means that the diastolic blood pressure is predominantly 90mm or greater, and isolated systolic hypertension means that the systolic blood pressure is predominantly 160mm or greater with a diastolic blood pressure of less than 90mm. 38 C.F.R. § 4.104, Diagnostic Code 7101.

Service treatment records reflect that the Veteran exhibited isolated instances of elevated blood pressure, including 128/92 in February 1979, 120/90 in May 1987, and 130/90 in August 1991, at which time his blood pressure was noted to be "mildly high." Additionally, two measurements of 136/90 and 132/96 are undated but note that he was 26 and 27 years old respectively, placing them from 1982 to 1984. There are a large number of blood pressure measurements with diastolic pressure less than 90mm throughout his period of service. No hypertension abnormality was noted at his June 1994 separation examination,
.

At a VA examination in May 1995, the Veteran's blood pressure was measured at 124/88.

VA treatment records reflect that in December 2000 the Veteran reported a history of controlled hypertension for years. In March 2001 his physician noted hypertension since 1994. Problem lists in his VA treatment records note hypertension first diagnosed by a VA physician in May 1997.

The Veteran underwent a VA examination in November 2020. He was diagnosed with hypertension. The examiner listed the date of diagnosis as 1988. The examiner opined that hypertension was less likely than not related to service. This opinion was based on the rationale that in-service high blood pressure readings were acute and related to low back pain and shoulder pain that the Veteran was being treated for at the time. The Board finds that the evidence persuasively weighs against a finding that the Veteran's hypertension is related to service or manifested within one year of separation from service. VA treatment records reflect conflicting dates of a hypertension diagnosis reported by the Veteran, but his problem list indicates a diagnosis date of May 1997, nearly three years after separation from service. His service treatment records do not reflect an in-service diagnosis or blood pressure readings that meet VA's definition under Diagnostic Code 7101. While he had isolated high blood pressure readings over his 20 years of service, the November 2020 VA examiner explained that these readings were associated with the conditions he was being treated for at the time and were unrelated to any subsequent diagnosis of hypertension.

In this matter, the Board finds that the November 2020 medical opinion was based on a review of the record, including the statements and evidence submitted by the Veteran, and the examiner explained the reasons for his conclusion based on an accurate characterization of the evidence of record. The Board therefore places significant weight on the cumulative findings expressed in the November 2020 VA medical opinion. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008); see also Bloom v. West, 12 Vet. App. 185, 187 (1999) (the probative value of a physician's statement is dependent, in part, upon the extent to which it reflects "clinical data or other rationale to support his opinion"). Accordingly, the Board finds that the competent medical evidence demonstrating the absence of nexus between the claimed hypertension and the Veteran's active duty service outweighs any medical evidence suggestive of a nexus.

The Board has carefully considered the contentions of the Veteran that the currently diagnosed hypertension was incurred in by his active duty service. To this end, the Board recognizes that lay witnesses are competent to opine as to some matters of diagnosis and etiology, and the Board must determine on a case by case basis whether a veteran's particular disability is the type of disability for which lay evidence is competent. See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); Kahana v. Shinseki, 24 Vet. App. 428, 433, n. 4 (2011). In this case, the Veteran's assertions as to etiology concern an internal medical process, which extends beyond an immediately observable cause-and-effect relationship that is of the type that the courts have found to be beyond the competence of lay witnesses. Cf. Jandreau, 492 F.3d at 1376 (lay witness capable of diagnosing dislocated shoulder); Barr v. Nicholson, 21 Vet. App. 303, 308-9 (2007); Falzone v. Brown, 8 Vet. App. 398, 403 (1995) (lay person competent to testify to pain and visible flatness of his feet); with Clemons v. Shinseki, 23 Vet. App. 1, 6 (2009) ("It is generally the province of medical professionals
, which extends beyond an immediately observable cause-and-effect relationship that is of the type that the courts have found to be beyond the competence of lay witnesses. Cf. Jandreau, 492 F.3d at 1376 (lay witness capable of diagnosing dislocated shoulder); Barr v. Nicholson, 21 Vet. App. 303, 308-9 (2007); Falzone v. Brown, 8 Vet. App. 398, 403 (1995) (lay person competent to testify to pain and visible flatness of his feet); with Clemons v. Shinseki, 23 Vet. App. 1, 6 (2009) ("It is generally the province of medical professionals to diagnose or label a mental condition, not the claimant"); Woehlaert v. Nicholson, 21 Vet. App. 456, 462 (2007) (unlike varicose veins or a dislocated shoulder, rheumatic fever is not a condition capable of lay diagnosis); Jandreau, 492 F.3d at 1377, n. 4 ("sometimes the layperson will be competent to identify the condition where the condition is simple, for example a broken leg, and sometimes not, for example, a form of cancer"); see also Colantonio v. Shinseki, 606 F.3d 1378, 1382 (Fed. Cir.2010) (recognizing that in some cases lay testimony "falls short" in proving an issue that requires expert medical knowledge). Questions of competency notwithstanding, the Veteran's statements regarding the onset and etiology of his hypertension are contradicted by both the contemporaneous clinical records as well as the opinion of the November 2020 VA examiner who specifically considered the Veteran's lay statements in rendering the negative opinion. The Board finds the specific, reasoned opinion of the trained health care provider who conducted the November 2020 VA opinion to be of greater probative weight than the more general lay assertions of the Veteran.

The Board has considered that lay evidence concerning continuity of symptoms after service, if credible, is ultimately competent, regardless of the lack of contemporaneous medical evidence. Crucially, however, the Veteran's contentions in support of service connection, including in-service symptoms continuing post-service symptomatology of the currently diagnosed hypertension, are contradicted by the findings of the contemporaneous clinical evidence as well as the November 2020 VA examiner who specifically considered the lay assertions and any such inferences contained in the record in rendering the negative nexus opinion.

The Board is charged with weighing the positive and negative evidence; resolving reasonable doubt in the Veteran's favor when the evidence is in relative equipoise. Considering the record, including STRs, post-service medical evidence, the November 2020 VA medical opinions, and lay evidence presented by the Veteran, the Board finds that the negative evidence is more persuasive and of greater evidentiary weight.

In conclusion, as the evidence is not in approximate balance and is persuasively against the Veteran's claim, the benefit of the doubt rule is inapplicable. See 38 U.S.C. § 5107(b); Lynch v. McDonough, 21 F.4th 776 (Fed. Cir. 2021) (en banc).

REASONS FOR REMAND

1. Entitlement to an evaluation in excess of 20 percent for a lumbar spine disability is remanded.

2. Entitlement to an initial evaluation in excess of 20 percent for radiculopathy of the right lower extremity is remanded.

The Veteran claims increased ratings for his lumbar spine disability and associated right lower extremity radiculopathy.

The Board finds that the instructions in its February 2020 remand have not been adequately complied with, and an additional remand is therefore unfortunately necessary. Specifically, the February 2020 remand described VA treatment records beginning in December 2017 and April 2018, which referred to outside aquatic therapy and physical therapy records that had been scanned by VA but were not included in the records associated with the claims file. The Board remand instructed that these records, already in VA's possession, be located and associated with the claims file. Unfortunately, the records remain unassociated with the claims file, and there is no indication in the record of any attempt to comply with the instructions. An additional remand is therefore necessary. See Stegall v. West, 11 Vet. App. 268 (1998).

3. Entitlement to an evaluation in excess of 20 percent prior to February 12, 2018 for bilateral hearing loss is remanded.

4. Entitlement to an evaluation in excess of 30 percent from February 12, 2018 for bilateral hearing loss is remanded.

The Veteran claims increased ratings for bilateral hearing loss
and instructed that these records, already in VA's possession, be located and associated with the claims file. Unfortunately, the records remain unassociated with the claims file, and there is no indication in the record of any attempt to comply with the instructions. An additional remand is therefore necessary. See Stegall v. West, 11 Vet. App. 268 (1998).

3. Entitlement to an evaluation in excess of 20 percent prior to February 12, 2018 for bilateral hearing loss is remanded.

4. Entitlement to an evaluation in excess of 30 percent from February 12, 2018 for bilateral hearing loss is remanded.

The Veteran claims increased ratings for bilateral hearing loss.

The Board finds that the instructions in its February 2020 remand have not been adequately complied with, and an additional remand is therefore unfortunately necessary. Specifically, the February 2020 remand ordered that the threshold levels and speech recognition scores referenced in the above-mentioned December 2017 and December 2018 VA treatment records be located and associated with the claims file. Instead, VA reloaded the treatment records already in the claims file without any apparent attempt to locate the audiograms. An additional remand is therefore necessary. See Stegall v. West, 11 Vet. App. 268 (1998).

5. Entitlement to service connection for a left knee disability is remanded.

The Veteran claims service connection for a left knee disability.

Pursuant to the February 2020 Board Remand, the Veteran underwent a VA examination in November 2020. He reported knee pain since 2000 after repetitive running, jumping, and walking during physical training exercises and rock marches carrying excessive weight. He was diagnosed with a left knee strain first diagnosed in 1979. The examiner opined that the Veteran's disability was less likely than not related to service. This opinion was based on the rationale that service treatment records did not show any left knee symptomatology in service.

The Board finds that remand is necessary to obtain an adequate opinion from a VA medical examiner. The November 2020 VA examiner's opinion is impermissibly based solely on the lack of service treatment records addressing the Veteran's left knee. The Veteran's statement reporting in-service pain went unaddressed. Moreover, the February 2020 Board remand explicitly instructed that the rationale provided had to address that the Veteran filed a claim of service connection for bilateral knee disabilities prior to separation, that he reported pain since 1979 at a May 1995 VA examination, and October and November 2005 treatment records reporting left knee pain since service. The November 2020 VA examiner failed to address this evidence, and therefore failed to comply with the Board's instruction. An additional remand is therefore necessary. See Stegall v. West, 11 Vet. App. 268 (1998).

6. Entitlement to service connection for a heart disability is remanded.

The Veteran claims service connection for a heart disability.

Service treatment records do not reflect any diagnosis of or treatment for any heart disability, and no such abnormality was noted at the Veteran's June 1994 separation examination. In the accompanying report of medical history, he explicitly denied having ever experienced heart trouble. An associated July 1994 electrocardiogram (ECG) was noted as borderline, indicating sinus bradycardia and minimal voltage criteria for left ventricular hypertrophy, which may be a normal variant.

In his original October 1994 claim, the Veteran claimed service connection for a heart disability, specifically sinus bradycardia with minimal voltage criteria for left ventricular hypertrophy and chest pain.

The Veteran underwent a VA examination in May 1995. He reported that he had exhibited chest pain in service in 1986 but was told by his doctors that testing did not indicate coronary artery disease and the pain was probably musculoskeletal in origin. He was also diagnosed by military physicians with sinus bradycardia and minimal voltage criteria for left ventricular hypertrophy, which may be of normal variant. He reported continued chest pain. An ECG was borderline and showed normal sinus rhythm and minimal voltage criteria for left ventricular hypertrophy, may be normal variant. He was diagnosed with recurrent chest pain of undetermined etiology and minimal voltage criteria for left ventricular hypertrophy.

VA treatment records reflect that at a December 2000 cardiology consultation, the Veteran reported recent evaluation for ches pain. A perfusion study was normal, but gaited SPECT images showed global hypokinesis and an ejection fraction of only 39 percent, possibly suggesting dilated cardiomyopathy. He denied prior history of cardiac problems. He was diagnosed with costochondritis with chest wall pain and possible
be of normal variant. He reported continued chest pain. An ECG was borderline and showed normal sinus rhythm and minimal voltage criteria for left ventricular hypertrophy, may be normal variant. He was diagnosed with recurrent chest pain of undetermined etiology and minimal voltage criteria for left ventricular hypertrophy.

VA treatment records reflect that at a December 2000 cardiology consultation, the Veteran reported recent evaluation for ches pain. A perfusion study was normal, but gaited SPECT images showed global hypokinesis and an ejection fraction of only 39 percent, possibly suggesting dilated cardiomyopathy. He denied prior history of cardiac problems. He was diagnosed with costochondritis with chest wall pain and possible dilated cardiomyopathy. In March 2001, his cardiologist reordered an echocardiogram. February 2003 records indicate that an echocardiogram showed mild tricuspid regurgitation and mild pulmonary hypertension. In June 2003 his cardiologist diagnosed chronic chest pain syndrome and history of apparent cardiomyopathy. In March 2018, his physician noted that he had been hospitalized in January due to heart failure and underwent quadruple bypass surgery.

The Board finds that remand is necessary to provide the Veteran with a VA examination. VA has a duty to provide a medical examination where there is (1) competent evidence of a current disability or symptoms thereof; (2) evidence establishing that an event, injury, or disease occurred in service; (3) an indication that the disability is associated with service; and (4) insufficient competent medical evidence to decide the claim. McLendon v. Nicholson, 20 Vet. App. 79, 81 (2006); see 38 U.S.C. § 5103A(d)(2); 38 C.F.R. § 3.159(c)(4)(i). Here, the Veteran had an ECG noted as borderline at his separation examination and now exhibits significant heart disease post-bypass surgery. A medical opinion is necessary to establish any relationship between the two.

The matters are REMANDED for the following action:

1. Obtain and associate with the claims file audiograms associated with the Veteran's audiological consultations in December 2017 and December 2018. Obtaining additional copies of the CAPRI record of the audiological consultation is not sufficient. The audiometric readings, including pure tone thresholds and speech recognition scores, should be obtained. If the records are not available, please document attempts to obtain said records.

2. Obtain and associate with the claims file the aquatic therapy and physical therapy records from Health Masters Physical Therapy referred to in his VA treatment records as scanned into the system but not present in his VA treatment records. All unsuccessful attempts to obtain such records must be documented in the claims file.

3. Obtain an addendum opinion for the Veteran's left knee disability. A new examination may be ordered if the examiner deems it necessary. The examiner should offer an opinion as to whether it is at least as likely as not (i.e., 50 percent probability or more) that the Veteran's left knee disability is related to service. In so doing, the examiner must address the fact that the Veteran filed a claim of service connection for bilateral knee disabilities in October 1994 prior to separation, that he reported pain since 1979 at a May 1995 VA examination, and that October and November 2005 treatment records show the Veteran reported left knee pain since service. The examiner should note that the absence of evidence of treatment for a disability in the Veteran's service treatment records should not serve as the sole basis for a negative opinion.

All opinions are to be accompanied by a rationale consistent with the evidence of record. A discussion of the pertinent evidence, relevant medical treatises, and generally accepted medical principles is requested. If the examiner cannot provide an opinion without resorting to speculation, he or she shall provide complete explanations stating why this is so. In so doing, the examiner shall explain whether any inability to provide a more definitive opinion is the result of a need for additional information, or that he or she has exhausted the limits of current medical knowledge in providing an answer to that particular question.

4. Schedule the Veteran for a VA examination for a heart disability. The claims file must be reviewed by the examiner. The examiner should diagnose any heart-related disabilities. For each disability diagnosed, the examiner should offer an opinion as to whether it is at least as likely as not (i.e., 50 percent probability or more) that such disability is related to service, specifically to the Veteran's reported chest pain in service or the borderline July 1994 ECG associated with his June 1994 separation examination.

The examiner should note that the absence of evidence of treatment for a disability in the
need for additional information, or that he or she has exhausted the limits of current medical knowledge in providing an answer to that particular question.

The examiner should note that the absence of evidence of treatment for a disability in the Veteran's service treatment records should not serve as the sole basis for a negative opinion.

5. After completing the above, and any other development deemed necessary, readjudicate the appeal. If any benefit sought remains denied, return the appeal to the Board.

Katherine Kiemle Buckley

Acting Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board J. Gallagher, 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.

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