ANKLE IMPAIRMENT OF

BETHANY L. BUCK · 2026 · Case ID: A26040095

MIXED

Summary

The Veteran, who served from July 2005 to December 2005, appeals the denial of service connection for a shin or stress fracture disability and seeks increased ratings for his service-connected bilateral ankle osteoarthritis and entitlement to service connection for bilateral knee osteoarthritis, lumbar spondylosis, and secondary lumbosacral radiculopathy. The Board granted increased ratings of 20 percent for both left and right ankle osteoarthritis, finding the VA examiner's opinion of limited probative value due to internal inconsistencies and applying the benefit of the doubt to the Veteran's credible lay testimony regarding severe flare-ups. Service connection was granted for bilateral knee osteoarthritis and lumbar spondylosis, based on continuity of symptomatology since service and the Veteran's competent testimony, despite the VA examiner applying an incorrect standard. Secondary service connection for lumbosacral radiculopathy was granted due to its relation to the newly service-connected lumbar spine condition. The claim for shin or stress fracture disability was denied, as the Board found the evidence persuasively against a current diagnosis or functional impairment, giving more weight to the probative VA examination over the Veteran's lay opinion. Claims for bilateral plantar fasciitis, weight gain, obstructive sleep apnea, and headaches/fatigue were remanded for additional VA examinations and opinions to address the proper legal standards for nexus and continuity of symptomatology.

Rationale

VA exam internally inconsistent regarding severity of flare-ups; VA examiner applied wrong standard regarding functional ability; Veteran's lay testimony found most probative regarding severity; Benefit of the doubt applied in Veteran's favor

Special Benefit

NO SPECIAL BENEFIT

Diagnostic Code

5271

Docket No.

210208-138751

Full Decision Text

Citation Nr: A26040095
Decision Date: 04/29/26 Archive Date: 04/29/26

DOCKET NO. 210208-138751
DATE: April 29, 2026

ORDER

Entitlement to an initial 20 percent disability rating, but no higher, for service-connected left ankle osteoarthritis is granted.

Entitlement to an initial 20 percent disability rating, but no higher, for service-connected right ankle osteoarthritis is granted.

Entitlement to service connection for a right knee disability is granted.

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

Entitlement to service connection for chronic lower back pain is granted.

Entitlement to secondary service connection for bilateral lower extremity radiculopathy is granted.

Entitlement to service connection for a shin or stress fracture disability is denied.

REMANDED

Entitlement to service connection for bilateral plantar fasciitis is remanded.

Entitlement to service connection for weight gain (obesity) is remanded.

Entitlement to service connection for obstructive sleep apnea (OSA) is remanded.

Entitlement to service connection for headaches and fatigue is remanded.

FINDINGS OF FACT

1. Resolving reasonable doubt in the Veteran's favor, the Board finds that his service-connected ankles during flare-ups more nearly approximated marked limited motion for the period on appeal.

2. The Veteran has experienced pain in his knees related to currently diagnosed degenerative arthritis of the bilateral knees since active-duty service.

3. The Veteran has experienced pain in his lower back related to currently diagnosed spondylosis of the lumbar spine with disc derangement and a herniated disc since active-duty service.

4. The Veteran's currently diagnosed lumbosacral radiculopathy is due to now service-connected spondylosis of the lumbar spine.

5. The evidence of record persuasively weighs against finding that the Veteran has had a shin or related stress fracture disability at any time during or approximate to the pendency of the claim.

CONCLUSIONS OF LAW

1. The criteria for an initial 20 percent disability rating for service-connected left ankle osteoarthritis, but no higher, have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5271.

2. The criteria for an initial 20 percent disability rating for service-connected right ankle osteoarthritis, but no higher, have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5271.

3. The criteria for entitlement to service connection for degenerative arthritis of the right knee are met. 38 U.S.C. §§ 1110, 1112, 1113, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309.

4. The criteria for entitlement to service connection for degenerative arthritis of the left knee are met. 38 U.S.C. §§ 1110, 1112, 1113, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309.

5. The criteria for entitlement to service connection for spondylosis of the lumbar spine with disc derangement and a herniated disc are met. 38 U.S.C. §§ 1110, 1112, 1113, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309.

6. The criteria for service connection for lumbosacral radiculopathy as secondary to service-connected spondylosis of the lumbar spine with disc derangement and a herniated disc are met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.310.

7. The criteria for service connection for a shin or stress fracture disability are not met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303.

REASONS AND BASES
.307, 3.309.

7. The criteria for service connection for a shin or stress fracture disability are not met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303.

REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

The Veteran had active-duty service from July 2005 to December 2005.

This matter comes before the Board of Veterans' Appeals (Board) from November 2020 rating decisions issued by a Department of Veterans Affairs (VA) Regional Office (RO).

In the February 2021 VA Form 10182, Decision Review Request: Board Appeal (Notice of Disagreement), the Veteran elected the Hearing docket. A Board hearing was held in July 2024.

Therefore, the Board may only consider the evidence of record at the time of the November 2020 agency of original jurisdiction (AOJ) decisions on appeal, as well as any evidence submitted by the Veteran or representative at the hearing or within 90 days following the hearing. 38 C.F.R. § 20.302(a). If evidence was submitted either (1) during the period after the AOJ issued the decision on appeal and prior to the Board hearing, or (2) more than 90 days following the hearing, the Board did not consider it in its decision. 38 C.F.R. §§ 20.300, 20.302(a), 20.801.

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

However, because the Board is remanding the claims of bilateral plantar fasciitis, weight gain, obstructive sleep apnea, and for headaches, any evidence the Board could not consider will be considered by the AOJ in the adjudication of those claims. 38 C.F.R. § 3.103(c)(2)(ii).

Increased Ratings

1. Entitlement to a disability rating in excess of 10 percent for service-connected left ankle osteoarthritis

2. Entitlement to a disability rating in excess of 10 percent for service-connected right ankle osteoarthritis

The Veteran seeks increased ratings for his service-connected ankles in claiming that his symptoms are much worse than reflected by the assigned ratings. See, e.g., July 2024 Hearing Transcript.

The Veteran's ankles are rated under 38 C.F.R. § 4.71a, Diagnostic Code 5271, for limitation of motion of the ankle. Under Diagnostic Code 5271, a 10 percent rating is warranted for moderate limited motion of the ankle and a 20 percent rating is warranted for marked limited motion of the ankle. Id.

Effective February 7, 2021, VA amended the rating criteria for Diagnostic Code 5271. 85 Fed. Reg. 76,453 (Nov. 30, 2020). Under the new criteria, a 10 percent rating is warranted for moderate limited motion of the ankle (less than 15 degrees dorsiflexion or less than 30 degrees plantar flexion.) A 20 percent rating is warranted for marked limited motion of the ankle (less than 5 degrees dorsiflexion or less than 10 degrees plantar flexion.) As this regulatory change was enacted during the pendency of this appeal, the Board will consider both the old and new versions of the rating criteria from the effective date and apply the version most favorable to the Veteran.

The Veteran was afforded a November 2020 VA examination assessing the severity of his disability. Per the report, the Veteran has symptoms of sharp/throbbing pain, tensions, swelling, and cannot walk for long periods of time. Additionally, the Veteran is unable to stand for more than 5 minutes and is unable to lose weight due to an inability to perform physical activities. The VA examiner indicated that the Veteran suffers flare-ups with both ankles which are severe, last for hours, and are precipitated by walking for
flexion.) As this regulatory change was enacted during the pendency of this appeal, the Board will consider both the old and new versions of the rating criteria from the effective date and apply the version most favorable to the Veteran.

The Veteran was afforded a November 2020 VA examination assessing the severity of his disability. Per the report, the Veteran has symptoms of sharp/throbbing pain, tensions, swelling, and cannot walk for long periods of time. Additionally, the Veteran is unable to stand for more than 5 minutes and is unable to lose weight due to an inability to perform physical activities. The VA examiner indicated that the Veteran suffers flare-ups with both ankles which are severe, last for hours, and are precipitated by walking for long distances, and are only alleviated by pain medications.

As to initial range of motion measurements, the Veteran's ankles were all normal, and while he experiences pain, to include with weight bearing, said pain was not found to cause functional loss. The Veteran was able to perform repetitive-use testing without suffering any additional loss of function or range of motion. With repeated use over time, the Veteran was not examined immediately after repetitive use over time, and the examination was deemed to be medically consistent with the Veteran's statements describing functional loss with repetitive use over time. The VA examiner did not find that pain, weakness, fatigability, or incoordination significantly limits his functional ability with repeated use over a period of time. Lastly, with flare-ups, the VA examiner indicated that the examination was conducted during one, and that pain weakness, fatigability, or incoordination do not significantly limit his functional ability with flare-ups. The VA examiner indicated that there were no other additional contributing factors of the disability for either ankle, nor were findings made as to a reduction in muscle strength, muscle atrophy, or ankylosis. As to the functional impact of the Veteran's disability, the VA examiner indicated that the Veteran may require frequent rest breaks post aggravation.

Here, the Board finds that the November 2020 VA examination report to be internally inconsistent as to the severity of the Veteran's disability. To point, the report indicates that the Veteran suffers severe flare-ups, that last for hours, whereby the Veteran cannot walk for long periods of time and is unable to stand for more than 5 minutes, symptoms of which are only alleviated by pain, and yet the VA examiner did not find that the aforesaid symptomatology limits his overall functional ability. Said findings are baseless in relation to the Veteran's lay testimony as to the severity of his flare-ups, and given that no rationale was provided as to why the VA examiner did not find that flare-ups limit his functional ability, the Board ultimately finds the examination report to be of limited probative value.

Conversely, the Board finds the Veteran's lay statements to be most probative as to the severity of his disability, especially with flare-ups, in that, as noted in the report, they are rather severe and cause him functional limitations as it concerns his inability to walk for long periods of time, and with being unable to stand for more than 5 minutes. Accordingly, given that the Veteran is competent to report said symptomatology, and as the VA exam report itself reflects a level of severity that does more nearly approximate the maximum schedular rating for the Veteran's service-connected ankles, the Board finds that the benefit-of-the-doubt doctrine is for application, and therefore by resolving doubt in the Veteran's favor, increased 20 percent ratings are assigned for the period on appeal and the claims are granted.

The Board has considered whether any other diagnostic codes related to disabilities of the ankle would provide for a higher disability ratings. However, those other diagnostic codes are not applicable as there is no evidence of record indicating that the Veteran's service-connected ankle disabilities involve ankylosis of the subastragalar or tarsal joint, malunion of the os calcis or astragalus, or an astragalectomy. See 38 C.F.R. § 4.71a, Diagnostic Codes 5272, 5273, and 5274. Furthermore, the Veteran is now in receipt of 20 percent ratings which are the maximum rating allowed for all of these DCs, to include under the amended criteria for DC 5271. Accordingly, ratings of 20 percent for the Veteran's service-connected ankle disabilities are warranted, and the claim is granted. Notably, 20 percent is the maximum rating allowable under the schedule.

Service Connection

Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. § 3.303. The three-element test for service connection requires evidence of: (1) a current disability;
, the Veteran is now in receipt of 20 percent ratings which are the maximum rating allowed for all of these DCs, to include under the amended criteria for DC 5271. Accordingly, ratings of 20 percent for the Veteran's service-connected ankle disabilities are warranted, and the claim is granted. Notably, 20 percent is the maximum rating allowable under the schedule.

Service Connection

Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. § 3.303. The three-element test for service connection requires evidence of: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the current disability and the in-service disease or injury. Shedden v. Principi, 381 F.3d 1163, 1166 -67 (Fed. Cir. 2004).

Certain chronic diseases will be presumed related to service, absent an intercurrent cause, if they were shown as chronic in service; or, if they manifested to a compensable degree within a presumptive period following separation from service; or, if they were noted in service (or within an applicable presumptive period) with continuity of symptomatology since service that is attributable to the chronic disease. 38 U.S.C. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.303, 3.307, 3.309. Walker v. Shinseki, 708 F.3d 1331, 1338 (Fed. Cir. 2013).

Service connection may also be granted for a disability that is due to, or aggravated by, service-connected disease or injury. 38 C.F.R. § 3.310.

3. Entitlement to service connection for a right knee disability

4. Entitlement to service connection for a left knee disability

5. Entitlement to service connection for chronic lower back pain

6. Entitlement to secondary service connection for bilateral lower extremity radiculopathy

Initially, the Board notes the favorable findings of record indicating that the Veteran has current diagnoses for osteoarthritis of the bilateral knees, lumbar spondylosis (a form of arthritis), lumbosacral disc derangement, lumbosacral radiculopathy, and a lumbar spine herniated disc. Here, the RO aptly noted that the primary disabilities are chronic diseases which may be presumptively linked to service, and that the Veteran has sufficient service to meet the minimum requirements for said theory of entitlement. See November 2020 Rating Decisions.

Per the record, particularly the evidence submitted in support of the claim, the Veteran has competently and consistently stated that he suffered knee and back pain in service due to military training, and that said symptoms have continued ever since service, to the extent that he has self-medicated with over-the-counter medication. See September 2020 Correspondence; September 2020 Medical Treatment Record - Non-Government Facility (Statement in Support of Claim); July 2024 Hearing Transcript. The Veteran's service treatment records do reveal notations for problems with the knee. See August 12, 2005, STR (generalized swelling of both knees); see also March 2020 private treatment record (noting that the disabilities may be due to cumulative trauma as due to service).

The November 2020 VA examiner did not find that the currently diagnosed knee disabilities relate to service; however, the wrong standard was applied, namely the examiner relied on a lack of "chronicity of care" to find no nexus. Evidence of medical care is not required. Additionally, the VA examiner impermissibly discounted the Veteran's subjective complaints. Accordingly, the Board affords the opinion no probative value.

Ultimately, the Board finds that presumptive service connection is met for the bilateral knees and for the lumbar spine, as the Veteran has currently diagnosed chronic diseases, namely arthritis, and where the record is consistent as to him experiencing pain in service and ever since service, and therefore continuity of symptomatology is deemed to be shown. Accordingly, as the most probative evidence of record weighs persuasively in favor of finding that the Veteran has experienced pain in both his knees and in his back ever since service in relation to his current diagnoses of arthritis, presumptive service connection is warranted for these claims, and they are therefore granted as such.

Lastly, as previously indicated, the Veteran has a current diagnosis for lumbosacral radiculopathy due to his now service-connected lumbar spine. Thus, with a current diagnosis for the disability, and as the primary disability is
has currently diagnosed chronic diseases, namely arthritis, and where the record is consistent as to him experiencing pain in service and ever since service, and therefore continuity of symptomatology is deemed to be shown. Accordingly, as the most probative evidence of record weighs persuasively in favor of finding that the Veteran has experienced pain in both his knees and in his back ever since service in relation to his current diagnoses of arthritis, presumptive service connection is warranted for these claims, and they are therefore granted as such.

Lastly, as previously indicated, the Veteran has a current diagnosis for lumbosacral radiculopathy due to his now service-connected lumbar spine. Thus, with a current diagnosis for the disability, and as the primary disability is now service connected, given that it is medically related to the Veteran's lumbar spine, the Board also finds that secondary service connection is also warranted for lumbosacral radiculopathy as due to the Veteran's service-connected lumbar spine disability. The claim is granted.

7. Entitlement to service connection for a shin or stress fracture disability

The Veteran contends that he suffers from a shin/stress fracture disability due to service, specifically his military training/running. See, e.g., September 2020 Statement in Support of Claim; see also September 8, 2005, STR.

Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. § 3.303. The three-element test for service connection requires evidence of: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the current disability and the in-service disease or injury. Shedden v. Principi, 381 F.3d 1163, 1166 -67 (Fed. Cir. 2004).

The question for the Board is whether the Veteran has a current disability that began during service or is at least as likely as not related to an in-service injury, event, or disease.

The Board concludes that the Veteran does not have a current diagnosis of shin splints or related stress fractures and has not had one at any time during the pendency of the claim or recent to the filing of the claim. Romanowsky v. Shinseki, 26 Vet. App. 289, 294 (2013); McClain v. Nicholson, 21 Vet. App. 319, 321 (2007).

Per Saunders v. Wilkie, 886 F.3d 1356 (Fed. Cir. 2018), the Federal Circuit held that "pain alone, without an accompanying diagnosis of a present disease, can qualify as a disability" if it "reaches the level of a functional impairment of earning capacity." Id. at 1367-69. While the Veteran reports experiencing shin pain during the period on appeal, there are no indications that he suffers functional impairment outside of what he is already being compensated for in relation to his service-connected ankles. See November 2020 VA examination report. Although the Veteran's service treatment records do reveal a notation of shin pain, it is far removed from the period on appeal, and where the November 2020 VA examination is found to be probative as to there not being a currently diagnosed shin/stress fracture disability. Here, the Veteran was afforded an in-person examination, during which his medical record and lay statements were considered, and therefore the Board finds the November 2020 VA examination report to be highly probative.

While the Veteran believes there is a current diagnosis of a shin disability, the Veteran is not competent to provide a diagnosis in this case. The issue is medically complex, as it requires specialized medical education. Jandreau v. Nicholson, 492 F.3d 1372, 1377, 1377 n.4 (Fed. Cir. 2007). Consequently, the Board gives more probative weight to the aforesaid competent medical evidence. Thus, as the evidence is persuasively against the claim, the benefit-of-the-doubt doctrine is not for application. 38 U.S.C. § 5107; 38 C.F.R. § 3.102.

REASONS FOR REMAND

1. Entitlement to service connection for bilateral plantar fasciitis is remanded.

REASONS FOR REMAND

1. Entitlement to service connection for bilateral plantar fasciitis is remanded.

The Veteran was afforded a VA examination, and per the examiner, the Veteran's claimed feet disability is less likely than not due to service, as the disability was merely acute during service, and that since service the symptoms have only ever been subjective with no evidence of chronicity of care. See November 2020 VA medical opinion. Here, the VA examiner applied the wrong standard, namely chronicity of care. Pursuant to 38 C.F.R. § 3.303(b), the legal standard is not continuity of care, but continuity of symptomatology. Continuous symptoms, not continuous complaints or treatment for them (i.e., care), are what VA regulations require. See Wilson v. Derwinski, 2 Vet. App. 16, 19 (1991). Therefore, the November 2020 VA medical opinion is deemed to be inadequate as the examiner impermissibly equates "chronicity of care" with "continuity of symptoms," and only the latter is required by 38 C.F.R. § 3.303(b). See Savage v. Gober, 10 Vet. App. 488, 496 (1997) (citing Wilson, 2 Vet. App. at 19). Accordingly, the Board finds a remand is in order to correct this pre-decisional duty to assist error prior to the adjudication of the claim on appeal.

2. Entitlement to service connection for weight gain (obesity) is remanded.

3. Entitlement to service connection for obstructive sleep apnea (OSA)

4. Entitlement to service connection for headaches and fatigue is remanded.

Initially, the Board notes that the Veteran has yet to be afforded VA examinations assessing the nature and etiology of these claimed disabilities. Per the rating decision on appeal, the Veteran has current diagnoses for sleep apnea and headaches, and the medical records for the period on appeal also evidence that the Veteran is overweight and suffers from obesity. See, e.g., June 19, 2019, private treatment record (indicating that the Veteran is unable to lose weight due to an inability to exercise as a result of bilateral leg swelling, and sore ankles). Here, the Board notes that for purposes of meeting the requirement of a currently diagnosed disability for service connection, obesity is considered to be a disability if it results in a functional impairment of earning capacity. See Adams v. Collins, 38 Vet. App. 273, 284 (2025); Saunders v. Wilkie, 886 F.3d 1356 (Fed. Cir. 2018). Additionally, as it relates to the Veteran's claimed OSA disability, obesity can also serve as an intermediary step between a service-connected disability and a claimed disability for purposes of establishing service connection on a secondary basis. See VAOPGCPREC 1-2017.

Thus, based on the aforesaid, the Board finds that theories of secondary service connection were reasonably raised during the period on appeal, and that therefore it was a pre-decisional duty to assist error to have not obtained medical opinions addressing whether or not the Veteran's service-connected musculoskeletal disabilities caused or aggravated his currently diagnosed obesity, and if so, whether the claimed for OSA disability is secondary to that same obesity, to include by way of obesity serving as an intermediary step between the Veteran's service-connected musculoskeletal disabilities and his OSA. Accordingly, the Board finds that a remand is in order to complete this development prior to the adjudication of the claims.

As to the Veteran's currently diagnosed headaches, in filing the claim for service connection, the Veteran indicated that he began experiencing headaches during service. See October 2020 VA Form 21-526EZ. As the Veteran is competent to report said symptoms, the Board finds that the claim met the low threshold under McLendon for the period on appeal requiring VA to afford the Veteran a medical opinion assessing the nature and etiology of the disability culminating in a pre-decisional duty to assist error requiring remand to complete this development prior to adjudication of the claim. See McLendon v. Nicholson, 20 Vet. App. 79, 84-86 (2006).

The matters are REMANDED for the following action:

Obtain VA examinations and medical opinions for the period on appeal assessing the nature and etiology of the claimed for disabilities. Upon review of the record, to include this remand, and as indicated below, the VA examiner is requested to opine as to
, the Board finds that the claim met the low threshold under McLendon for the period on appeal requiring VA to afford the Veteran a medical opinion assessing the nature and etiology of the disability culminating in a pre-decisional duty to assist error requiring remand to complete this development prior to adjudication of the claim. See McLendon v. Nicholson, 20 Vet. App. 79, 84-86 (2006).

The matters are REMANDED for the following action:

Obesity & Obstructive Sleep Apnea...

Is it at least as likely as not that the Veteran's currently diagnosed obesity was caused by service-connected disability?

a. Is it at least as likely as not that the Veteran's currently diagnosed obesity was aggravated (increased in severity) by service-connected disability?

The VA examiner's attention is directed to the evidence of record indicating that the Veteran has been diagnosed with obesity, with suggestions that the disability is made worse or is otherwise unalleviated to the extent that he is unable to exercise due to his service-connected musculoskeletal disabilities. See VBMS, document titled "Medical Treatment Record - Non-Government Facility," receipt dated July 20, 2019 (indicating that the Veteran is unable to lose weight by way of exercising, and in relation to his service-connected ankles).

b. Is it at least as likely as not that the Veteran's obesity caused or aggravated his claimed for obstructive sleep apnea?

Note that aggravation means any incremental increase in disability in non-service-connected disabilities (i.e., any additional impairment of earning capacity) resulting from service-connected disabilities.

If aggravation due to obesity is found, the examiner should address the following medical issues to the extent possible: (1) the baseline manifestation of the Veteran's sleep apnea prior to aggravation; and (2) the increased manifestations which, in the examiner's opinion, are due to any obesity due to those disabilities.

Headaches & Fatigue...

Is it at least as likely as not that the Veteran's currently diagnosed headaches, to include symptoms of fatigue, incurred in service or are otherwise directly related to service?

Here, the VA examiner's attention is directed to the lay statements of record indicating that during service the Veteran experienced fatigue, general tiredness, and sleepiness leading to morning headaches, then and contemporaneously. See, e.g., VBMS document titled "Medical Treatment Record - Non-Government Facility," receipt dated September 19, 2020 (indicating difficulty staying awake, loud snoring, apnea, with complaints of morning headaches); document titled "Buddy/Lay Statement," receipt dated September 19, 2020 (noting symptoms of sleepless nights, tiredness, looking worn out, lacking focus and getting easily distracted, as well as lightheadedness); document titled "Buddy/Lay Statement," receipt dated September 14, 2020.

Feet...

Is it at least as likely as not that the Veteran has a currently diagnosed foot disability that incurred during service or is otherwise directly related to service, to include as due to training exercises as alleged by the Veteran?

Here, the VA examiner's attention is directed to that of the Veteran's service treatment records indicating that he experienced pain in his feet while in service. See VBMS, document titled "STR," receipt dated October 25, 2019 (STRs dated for September 8, 2005 and November 4, 2005); document titled "VA 21-4138 Statement In Support of Claim," receipt dated March 23, 2020 (contention of having attended sick call during service for issues with the Veteran's feet as due to military training, to include long distance running).

For all remanded claims, the VA examiner must address the Veteran's competent, credible, and consistent lay testimony as to the onset of his disabilities and their related symptomatology.

Additionally, for all claims on appeal, the VA examiner is informed that reliance on a lack of treatment and/or gap between discharge from military service and diagnosis of a disability, without explaining why such evidence is significant, is insufficient rationale.

The VA examiner is also informed that the absence of contemporaneous service treatment records or medical records in general, standing alone, without explaining why such evidence is significant, is again insufficient rationale.

The examiner is asked to explain the reasons behind any opinions expressed and conclusions reached. The examiner is reminded that the term "as likely as not" does not mean "within the realm of medical possibility," but rather that the likelihood is at least approximately balanced or nearly equal, if not higher.

Bethany L. Buck

Veterans Law

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