Citation Nr: 1749106	
Decision Date: 10/31/17    Archive Date: 11/06/17

DOCKET NO.  13-23 177	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in San Diego, California


THE ISSUES

1.  Entitlement to service connection for Meniere's disease.

2.  Entitlement to service connection for a chronic ear disorder, to include chronic otitis externa. 

3.  Entitlement to service connection for a lumbar spine disorder, to include as secondary to bilateral knee disabilities.

4.  Entitlement to service connection for hypertension.  

5.  Entitlement to service connection for a bilateral eye disorder to include glaucoma and scotoma.  

6.  Entitlement to service connection for restless leg syndrome of the right leg.

7.  Entitlement to an evaluation in excess of 10 percent for osteoarthritis of the right knee.

8.  Entitlement to an initial evaluation in excess of 10 percent for right knee instability/subluxation. 

9.  Entitlement to an initial evaluation in excess of 10 percent for left knee instability/subluxation.

10.  Entitlement to an initial evaluation in excess of 10 percent for left knee chondromalacia.  

11.  Entitlement to an evaluation in excess of 20 percent from July 9, 2016 for left knee cartilage, semilunar, dislocated, with frequent episodes of locking, pain, and effusion in the joint.  


REPRESENTATION

Appellant represented by:	California Department of Veterans Affairs


ATTORNEY FOR THE BOARD

C. L. Krasinski, Counsel


INTRODUCTION

The Veteran had active duty service from August 1995 through November 1999.

This matter comes before the Board of Veterans' Appeals (Board) on appeal from January 2010 and May 2012 rating decisions by the Department of Veterans Affairs (VA) Regional Office (RO).  The Veteran timely appealed the above issues.

The March 2016 Board decision reopened the claim for service connection for right pes planus and remanded this issue for additional development.  The Board denied entitlement to a higher disability rating for tinnitus and remanded the remaining issues to the agency of original jurisdiction (AOJ) for additional development.  The Board finds that the AOJ scheduled the Veteran for the appropriate VA examinations and obtained the requisite medical opinions, and conducted the additional development.  Based on the foregoing actions, the Board finds that there has been substantial compliance with the Board's Remand.  Stegall v. West, 11 Vet. App. 268 (1998) (finding that a remand by the Board confers on the appellant the right to compliance with the remand orders).

The Board notes that the Veteran additionally also appealed service connection for bipolar disorder; however, during the pendency of the appeal, in a May 2015 rating decision, service connection for bipolar disorder was granted.  Service connection for right pes planus, left ear hearing loss, gastroesophageal reflux disease, and poly substance abuse disorder were granted in a December 2016 rating decision.  This action constituted a full grant of the benefits sought, and these claims are no longer open for appellate review.  See Grantham v. Brown, 114 F.3d 1156 (Fed. Cir. 1997).

In October 2015, the Veteran withdrew his request for a hearing before the Board.  

The December 2016 rating decision assigned a 100 percent rating to the service-connected unspecified bipolar disorder from November 3, 2011.   

In July 2017, the Veteran submitted a waiver of AOJ consideration of new evidence pursuant to 38 C.F.R. § 20.1304 (2016).

The issue of service connection for a lumbar spine disability is addressed in the REMAND portion of the decision below and is REMANDED to the Agency of Original Jurisdiction (AOJ).





FINDINGS OF FACT

1.  The Veteran does not have a current diagnosis of Meniere's disease.  

2.  A chronic ear disorder to include otitis externa was not manifested during the Veteran's active duty service, is not related to active service, and is not due to or aggravated by a service-connected disability to include tinnitus.  

3.  No disease or chronic symptoms of hypertension were manifested during service or were continuously manifested in the years after service; hypertension was not manifested to a degree of ten percent within one year of service separation; and the hypertension is not related to disease or injury in service and is not due to or aggravated by a service-connected disability.

4.  Refractive error of the eye is not a disability for which service connection may be granted, and the Veteran's refractive error was not subjected to a superimposed disease or injury that had its onset in service or that is otherwise associated with service.

5.  The Veteran does not have a current diagnosis of glaucoma or scotoma, and the current bilateral eye disability to include blepharitis and corneal scar of the right eye first manifested many years after active service, are not related to disease or injury or other event in active service, and are not due to or aggravated by a service-connected disability.    

6.  Restless leg syndrome was not manifested during the Veteran's active duty service, is not related to active service, and is not due to or aggravated by a service-connected disability.  

7.  For the entire period of the appeal, the service-connected right knee osteoarthritis is principally manifested by pain, painful motion, stiffness, flexion ranging from 130 degrees to full flexion, full extension, mild patellar tenderness, and slight crepitus, without objective evidence of deformity, lack of endurance, heat, redness, or effusion; dislocated semilunar cartilage or an absence of the semilunar cartilage in the knee joint; or evidence of additional limitation of motion or loss of function due to pain, fatigue, weakness, lack of endurance, or incoordination. 

8.  For the entire period of the appeal, the service-connected right knee instability is manifested by mild or slight recurrent patellar dislocation or subluxation without objective evidence of moderate or severe knee subluxation or instability.  

9.  For the entire period of the appeal, the service-connected left knee chondromalacia is principally manifested by pain, painful motion, stiffness, flexion ranging from 130 degrees to full flexion, full extension, mild patellar tenderness, and slight crepitus, without objective evidence of deformity, lack of endurance, heat, redness, or effusion; or evidence of additional limitation of motion or loss of function due to pain, fatigue, weakness, lack of endurance, or incoordination.

10.  For the entire period of the appeal, the service-connected left knee instability is manifested by mild or slight recurrent patellar dislocation or subluxation without objective evidence of moderate or severe knee subluxation or instability.  

11.  Prior to July 9, 2016, the left knee disability was manifested by a meniscal tear and symptoms of intermittent locking and effusion without evidence of removal of symptomatic cartilage.    

12.  From July 9, 2016, the left knee disability is manifested by cartilage, semilunar, dislocated, with frequent episodes of locking, pain, and effusion in the joint, and the 20 percent rating is the highest schedular rating under Diagnostic Code 5258.    


CONCLUSIONS OF LAW

1.  The criteria for service connection for Meniere's disease have not been met.  38 U.S.C.A. §§ 1110, 5103, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.310 (2016).

2.  The criteria for service connection for a chronic ear disease to include otitis externa have not been met.  38 U.S.C.A. §§ 1110, 5103, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.310 (2016).

3.  The criteria for service connection for hypertension have not been met.  38 U.S.C.A. §§ 1110, 1112, 1113, 5103, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309, 3.310 (2016).

4.  The criteria for service connection for a bilateral eye disorder have not been met.  38 U.S.C.A. §§ 1110, 5103, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.310 (2016).

5.  The criteria for service connection for restless leg syndrome have not been met.  38 U.S.C.A. §§ 1110, 1112, 1113, 5103, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309, 3.310 (2016).

6.  The criteria for the assignment of an increased disability rating in excess of 10 percent for the service-connected right knee ostearthritis have not been met.  38 U.S.C.A. § 1155 (West 2014); 38 C.F.R. §§ 3.102, 4.1, 4.3, 4.7, 4.10, 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes 5003, 5010, 5256, 5260, 5261 (2016). 

7.  The criteria for the assignment of an increased disability rating in excess of 10 percent for the service-connected right knee instability/subluxation have not been met.  38 U.S.C.A. § 1155 (West 2014); 38 C.F.R. §§ 3.102, 4.1, 4.3, 4.7, 4.10, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5257 (2016). 

8.  The criteria for the assignment of an increased disability rating in excess of 10 percent for the service-connected left knee chondromalacia have not been met.  38 U.S.C.A. § 1155 (West 2014); 38 C.F.R. §§ 3.102, 4.1, 4.3, 4.7, 4.10, 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes 5003, 5010, 5256, 5260, 5261 (2016). 

9.  The criteria for the assignment of an increased disability rating in excess of 10 percent for the service-connected left knee instability/subluxation have not been met.  38 U.S.C.A. § 1155 (West 2014); 38 C.F.R. §§ 3.102, 4.1, 4.3, 4.7, 4.10, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5257 (2016). 

10.  Prior to July 9, 2016, the criteria for the assignment of a compensable disability rating for left knee semilunar cartilage have not been met.  38 U.S.C.A. § 1155 (West 2014); 38 C.F.R. §§ 3.102, 4.1, 4.3, 4.7, 4.10, 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes 5258, 5259 (2016). 

11.  From July 9, 2016, the criteria for the assignment of a disability rating in excess of 20 percent for left knee semilunar cartilage have not been met.  38 U.S.C.A. § 1155 (West 2014); 38 C.F.R. §§ 3.102, 4.1, 4.3, 4.7, 4.10, 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes 5258, 5259 (2016).


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

1.  Duties to Notify and Assist

VA has a duty to notify and assist claimants in substantiating a claim for VA benefits.  38 U.S.C.A. §§ 5103, 5103A (West 2015); 38 C.F.R. § 3.159 (2016).  VA provided the Veteran with 38 USCA § 5103(a)-compliant notice in July 2009, July 2010, February 2011, September 2011, October 2011, November 2011,  and July 2014.  Therefore, additional notice is not required. 

The record also shows that VA has fulfilled its obligation to assist the Veteran in developing the claims.  Neither the Veteran nor his representative has identified any deficiency in VA's notice or assistance duties.  38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2014); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2016); see also Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that "the Board's obligation to read filings in a liberal manner does not require the Board...to search the record and address procedural arguments when the veteran fails to raise them before the Board.");  Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to duty to assist argument).




2.   Service Connection Legal Criteria

Service connection will be granted for disability resulting from a disease or injury incurred in or aggravated by military service.  38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303.  Service connection may also be granted for a disease first diagnosed after discharge when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service.  38 C.F.R. § 3.303(d).  

Service connection requires competent evidence showing, (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), citing Hansen v. Principi, 16 Vet. App. 110, 111 (2002); see also Caluza v. Brown, 7 Vet. App. 498 (1995).  

In this case, cardiovascular disease to include hypertension, an organic disease of the nervous system, and arthritis, are listed among the "chronic diseases" under 38 C.F.R. § 3.309 (a).  Where a veteran served ninety days or more of active service, and certain chronic diseases, such as cardiovascular disease, become manifest to a degree of 10 percent or more within one year after the date of separation from such service, such disease shall be presumed to have been incurred in service, even though there is no evidence of such disease during the period of service.  38 U.S.C.A. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309(a).  While the disease need not be diagnosed within the presumption period, it must be shown, by acceptable lay or medical evidence, that there were characteristic manifestations of the disease to the required degree during that time.  Id.

Additionally, where the evidence shows a "chronic disease" in service or "continuity of symptoms" after service, the disease shall be presumed to have been incurred in service.  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.  With chronic disease as such in service, subsequent manifestations of the same chronic disease at any later date, however remote, are service-connected, unless clearly attributable to intercurrent causes.  If a disease noted during service is not shown to be chronic, then generally, a showing of "continuity of symptoms" after service is required for service connection.  38 C.F.R. § 3.303 (b); Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013).  

Pursuant to § 3.310(a) of VA regulations, service connection may be established on a secondary basis for a disability which is proximately due to or the result of service-connected disease or injury.  38 C.F.R. § 3.310 (a).  Establishing service connection on a secondary basis requires evidence sufficient to show (1) that a current disability exists and (2) that the current disability was either (a) proximately caused by or (b) proximately aggravated by a service-connected disability.  Allen v. Brown, 7 Vet. App. at 448 (1995).  Where a service-connected disability aggravates a nonservice-connected condition, a Veteran may be compensated for the degree of disability (but only that degree) over and above the degree of disability existing prior to the aggravation.  Allen, 7 Vet. App. at 448.  Temporary or intermittent flare-ups of symptoms of a condition, alone, do not constitute sufficient evidence aggravation unless the underlying condition worsened.  Cf. Davis v. Principi, 276 F. 3d 1341, 1346-47 (Fed. Cir. 2002); Hunt v. Derwinski, 1 Vet. App. 292, 297 (1991).

In rendering a decision on appeal the Board must also analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant.  Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990).  Competency of evidence differs from weight and credibility.  Competency is a legal concept determining whether testimony may be heard and considered by the trier of fact, while credibility is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted.  Rucker v. Brown, 10 Vet. App. 67, 74 (1997); Layno v. Brown, 6 Vet. App. 465, 469 (1994); see also Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991) ("although interest may affect the credibility of testimony, it does not affect competency to testify").

Once the evidence has been assembled, it is the Board's responsibility to evaluate the evidence.  38 U.S.C.A. § 7104(a).  The Secretary shall consider all information and lay and medical evidence of record in a case before the Secretary with respect to benefits under laws administered by the Secretary.  

When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant.  38 U.S.C.A. § 7105; 38 C.F.R. §§ 3.102, 4.3.  

3.  Analysis: Service Connection for Meniere's Disease and a Chronic Ear Disorder to include Otitis Externa. 

The Veteran contends that he has Meniere's disease and a chronic ear disease due to active duty service.  In the August 2011 application, the Veteran asserted that his Meniere's syndrome was related to his military service in that his tinnitus and hearing loss were directly related to his days serving in the infantry and he now has episodes of vertigo just after he has an increase in the ringing in his ears.  The Veteran stated that whenever he experiences high levels of stress, the ringing in the ears increases.  He indicated that there are times when the room starts spinning and he has to sit down and if possible, he will lay down and rest until the spinning stops.  The Veteran indicated that he had bilateral tinnitus and his right ear has pus starting to form that he cannot get out with the normal means of ear treatment.  He indicated that this has created a sensation of fullness and pressure in his right ear.  The Veteran stated that this is the fault of his days in the infantry and the abuse his ears took from all the very loud noises caused by the all the weaponry being fired.  

In another August 2011 claim, the Veteran stated that he has bilateral tinnitus and his right ear feels as if there is pressure and it is full with pus.  The Veteran indicated that he is starting to experience vertigo about once to two times a month and he has to sit down or lay down if it is possible for about l5 to 30 minutes.  He stated that he had one attack while he was driving and it was very scary.  The Veteran indicated that this was very frustrating and caused his blood pressure to rise making his hypertension even worse.  He stated that it makes work challenging and he absolutely cannot work in any job that has load noises, moving equipment, or things that spin.  He stated that this limits to his ability to make and earn a living.  He stated that he stopped drinking alcohol and only drinks socially because he does not like these vertigo attacks or dizzy spells. He stated that this is also depressing because he has to stay home at times and avoid social gatherings that have load noises, moving equipment, or crowds. 

In another August 2011 application, the Veteran stated that chronic otitis externa was a big problem in his life and he had to spend about 45 minutes each day cleaning his ear out.  The Veteran stated that he does what the VA ear doctor has been telling him to do and it causes him pain and duress every day and it limits his ability to work.  The Veteran indicated that he cannot work in any job that has load noises because that simply exacerbates his ear pain and he could not work in any job that requires him to swim.  The Veteran asserted that this problem was directly related to his tinnitus disability.  In another August 2011 application, the Veteran stated that his chronic otitis externa is related to his military service because that is where it started just like his tinnitus.  He indicated that his tinnitus has exacerbated this problem.  He stated that he had to put on camouflage all the time when going out to the field to train and he was also exposed to very load weapons when he was in the infantry and at times it was overwhelming.  The Veteran stated that sometimes, he had to stick his dirty fingers into his ears because the noise was overwhelming and the unit didn't have any ear plugs.  He also stated that the NCO's yelled in his ear.  

Service connection for tinnitus was granted with an evaluation of 10 percent assigned from May 27, 2010.  Service connection for left ear hearing was granted and a zero percent rating is assigned from November 3, 2011.  

Based upon a review of all the lay and medical evidence, the Board finds the weight of the competent and credible evidence shows that the claimed Meniere's disease and the claimed chronic ear disease to include otitis externa are not proximately due to or aggravated by the service-connected tinnitus or other service-connected disability, and are not related to injury, disease, or other event in active service.  The Veteran separated from active service in November 1999.  

A pre-discharge VA examination in July 1999 does not show complaints or diagnosis of a chronic ear disease or Meniere's disease.  Examination related that the left tympano membrane was occluded; the right tympano membrane was within normal limits.  A diagnosis of chronic ear disease was not made.  

Based upon the available evidence of record, the preponderance of the evidence does not show that the Veteran has a current diagnosis of Meniere's disease during the pendency of this appeal.  The most probative evidence is the July 2016 VA examination report and medical opinion.  The July 2016 VA examiner concluded that the Veteran did not meet diagnostic criteria for Meniere's disease.  The examination report indicates that the Veteran reported that he used to have vertigo but stated that he hadn't had that occur in a while but he still had this issue when drinking alcohol.  

The Board finds that the VA examiner has the requisite medical expertise to render a medical opinion regarding whether the Veteran has a current diagnosis of Meniere's disease.  The VA examiner took into account the Veteran's report of symptoms and the results of the examination when reaching the conclusion.  The medical opinion is based on sufficient facts and data.  Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008).  The VA examiner has the skill and expertise to render the medical opinions.  Black v. Brown, 10 Vet. App. 279, 284   (1997).  As such, the Board finds the VA medical opinion to have great probative weight.

The Board notes that the Veteran has asserted that he has Meniere's disease due to events in active service (noise exposure, dirt) and due to the service-connected tinnitus.  While the Veteran might sincerely believe that he has Meniere's disease that is related to active service or that is due to tinnitus, and lay persons are competent to provide opinions on some medical issues, in this case the question of whether the Veteran has a medical diagnosis of Meniere's disease falls outside the realm of common knowledge of a lay person and is an issue requiring medical expertise.  While the Veteran is competent to relate a general history of ear or balance complaints and he is competent to report observable symptoms, he is not competent to diagnose a disability based on those symptoms.  There is no evidence that the Veteran has medical expertise.  Therefore, the Veteran is not competent to provide a diagnosis or a medical opinion with respect to the issue of entitlement to service connection for Meniere's disease.  Kahana v. Shinseki, 24 Vet. App. 428 (2011); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007).  Even were the Veteran competent to diagnose the types of chronic ear skin disorders afflicting him at various times, the probative value of his opinions in this regard, including any relationship to service, are far outweighed by the opinions of the VA examiner, who clearly has more extensive education, training and experience in diagnosing and determining the origin of ear disorders than the Veteran.  There is no competent evidence to establish a diagnosis of Meniere's disease at any time during the appeal period.  

With regard to Meniere's disease, the existence of a current disability is the cornerstone of a claim for VA disability compensation.  Degmetich v. Brown, 104 F. 3d 1328 (Fed. Cir. 1997); Gilpin v. West, 155 F.3d 1353 (Fed. Cir. 1998).  In the absence of evidence of a current disability, there can be no valid claim.  Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992).  See also McClain v. Nicholson, 21 Vet. App. 319, 321 (2007) (The requirement of a current disability is "satisfied when a claimant has a disability at the time a claim for VA disability compensation is filed or during the pendency of that claim").  Accordingly, the preponderance of the evidence of record does not show that the Veteran has had Meniere's disease.  Therefore, service connection for Meniere's disease is denied.  Gilbert, 1 Vet. App. 49. 

The weight of the competent and credible evidence establishes that the chronic ear disease to include otitis externa first manifested years after active duty, is not related to injury or other event in active service, and is not proximately due to or aggravated by a service-connected disability to include tinnitus.   

The Veteran was afforded a VA ear disease examination in July 2016 to obtain medical evidence as to the nature and etiology of the chronic ear disease.  The July 2016 VA examination report indicates that the VA examiner concluded that the Veteran had mild symptoms consistent with chronic otitis externa and there was no evidence of infection on exam that day.  

The July 2016 VA examination report indicates that the Veteran reported that during his time in the army, he developed hearing loss after being repeatedly exposed to loud noises and a training grenade went off near his head which caused tinnitus.  The Veteran stated that he first noticed his ear infection after being discharged from the military and indicated that his symptoms include aural fullness and occurred mostly on the right.  The Veteran stated that he used Q-tips regularly and he had recurrent itching in the right ear. 

The VA examiner opined that the claimed chronic ear disease was less likely than not (less than 50 percent probability) incurred in or caused by the claimed in-service injury, event or illness.  The VA examiner stated that the rationale was that the Veteran has a diagnosis of recurrent otitis externa based on his symptoms of recurrent aural fullness, hearing loss and pruritus.  The VA examiner noted that on review of his service treatment records, there was no evidence of otitis externa found which was consistent with the Veteran's statement that the symptoms developed after his time in the service.  The VA examiner further noted that the Veteran reported that he had been treated several times by his primary care physician for this issue, however no documentation of this was found in the VA records.  The VA examiner noted that on exam, the Veteran demonstrated no signs of an active infection, however chronic otitis externa can come and go.  The VA examiner also opined that the otitis externa is not a cause of, or caused by his noise induced hearing loss or high pitched, nonpulsatile tinnitus.  

The Board finds the VA medical opinion to have great evidentiary weight as the opinion reflects a comprehensive and reasoned review of the entire evidentiary record.  The VA examiner reviewed the claims folder and the Veteran's medical history, considered the Veteran's report of symptoms and onset of the claimed disorder, and examined the Veteran before rendering the medical opinions.  The VA examiners cited to the facts that support the opinion.  Factors for assessing the probative value of a medical opinion are the examiner's access to the claims file and the thoroughness and detail of the opinion.  See Hernandez-Toyens v. West, 11 Vet. App. 379, 382 (1998); see also Prejean v. West, 13 Vet. App. 444, 448-9 (2000).  The medical opinion is based on sufficient facts and data.  See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008).  As such, the Board finds the VA medical opinion to have great probative weight.  

The Board has considered the Court's holding in Dalton v. Peake, 21 Vet. App. 23 (2007) and the Board finds that the VA medical opinion is adequate.  The VA examiner based the opinion on the findings of ear exams in service and after service, whether the Veteran sought treatment after service for the ear infections, and the Veteran's own report of the onset and frequency of symptoms.  The VA physicians did not base the opinions solely upon the absence of documentation in service or after service.  See Dalton v. Peake, 21 Vet. App. 23 (2007) (a medical opinion based solely on the absence of documentation in the record is inadequate and a medical opinion is inadequate if it does not take into account the Veteran's reports of symptoms and history (even if recorded in the course of the examination)).  The VA physician considered the Veteran's report of symptoms both in active service and after service, the medical findings in service and after service, and the medical treatment after service. For these reasons, the Board finds that the VA medical opinion is adequate.

The Veteran's own assertions that the claimed chronic ear infection is related to active service or is caused by a service-connected disability are afforded no probative weight in the absence of evidence that the Veteran has the expertise to render opinions about medical matters.  See Jandreau; supra.  Rendering a medical opinion about the etiology of ear disease or an ear infection requires specialized medical training and is not susceptible of lay opinion.  There is no evidence that the Veteran has medical expertise.  Therefore, the Board finds that the Veteran's lay statements cannot be accepted as competent evidence sufficient to establish service connection for chronic ear disease and are not competent to diagnose chronic ear disease or infection or relate these disorders to any event, injury, or disease during service or to a service-connected disability.  The Board notes that neither the Veteran nor his representative has produced a medical opinion to contradict the conclusions of the VA examiner.  There is no comment evidence that the chronic ear disease to include otitis externa is due to or aggravated by a service-connected disability.  

As such, the Board finds the weight of the competent and credible evidence shows that the chronic ear disease to include otitis externa did not manifest in service, first manifested many years after active service and is not related to active service.  The Board finds the weight of the competent and credible evidence shows that the chronic ear disease to include otitis externa is not due to or permanently aggravated by the service-connected hearing loss or tinnitus or any other service-connected disability.  Thus, the Board finds that a preponderance of the lay and medical evidence that is of record weighs against the claim for service connection for the chronic ear disease to include otitis externa on a direct and secondary basis, and the claim for service connection for the chronic ear disease to include otitis externa is denied.

4.  Analysis: Service Connection for Hypertension

The Veteran contends that he has hypertension due to his service-connected knee disabilities and right foot disability because he cannot run or do sports or do any job that is physical, and this in turn has forced the Veteran to not be able to work out and he is suffering from hypertension.  The Veteran stated that his tinnitus drives him crazy at times, and it raises his blood pressure.  He stated that his doctor has prescribed Atenolol and she stated that she is surprised the Veteran did not have a heart attack yet.  See the August 2011 claim. 

The Board finds that the weight of the competent and credible evidence establishes that the Veteran's current hypertension first manifested many years after service separation, and is not caused by or otherwise related to his active military service. 

Service connection for right knee degenerative joint disease and right knee instability is in effect and 10 percent disability ratings are assigned.  Service connection is in effect for left knee chondromalacia and left knee instability and 10 percent ratings are assigned for these manifestations.  A 20 percent rating is assigned for the left knee meniscal tear.  

Review of the record shows that during the Veteran's period of service, there were no findings of symptoms or diagnosis of a cardiovascular disorder to include hypertension.  The Veteran did not have a cardiovascular disability upon entrance examination. The July 1999 separation examination report indicates that examination of the heart and chest was normal.  Chest x-ray was negative.  The blood pressure reading was 130/72.  The Veteran separated from service in November 1999.  

A pre-discharge VA examination in July 1999 does not show complaints or diagnosis of hypertension.  The blood pressure reading was 130/72.  

The Veteran was afforded a VA examination in July 2016 to obtain medical evidence as to the nature and etiology of the hypertension.  The July 2016 VA examination report indicates that the VA examiner concluded that it was less likely than not that the Veteran's hypertension began in service as this disease was diagnosed 11 years post military discharge.  The VA examiner indicated that review of claims file and VA records showed that the Veteran's first visit to the VA San Diego medical facilities in 2003 show no evidence of hypertension, the blood pressure reading was 114/79, and there was no treatment for hypertension.  The VA examiner stated that the VA records note elevated blood pressure readings in June 2010 and a diagnosis of hypertension and he started on atenolol.

The Board finds the VA medical opinion to have great evidentiary weight.  The VA examiner reviewed the claims folder and the Veteran's medical history, considered the Veteran's report of symptoms and onset of the claimed disorder, examined the Veteran, and reviewed and cited to the facts that supported the opinion.  Factors for assessing the probative value of a medical opinion are the examiner's access to the claims file and the thoroughness and detail of the opinion.  See Hernandez-Toyens v. West, 11 Vet. App. 379, 382 (1998); see also Prejean v. West, 13 Vet. App. 444, 448-9 (2000).  The medical opinions are based on sufficient facts and data.  Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008).  As such, the Board finds the VA medical opinion to have great probative weight.

The Board finds that the weight of the competent and credible evidence establishes that the hypertension first manifested many years after active service and is not related to disease or injury or other event in active service.  As noted, service treatment records do not document findings or diagnosis of cardiovascular disease. 

There is no competent evidence of a diagnosis of hypertension within one year after service separation in November 1999.  The first clinical evidence of hypertension is 2010, 11 years after service separation.  Thus, presumptive service connection under the provisions of 38 C.F.R. § 3.307 (a) is not warranted. 

The Board also finds that the weight of the competent and credible evidence shows that the Veteran did not experience chronic and continuous symptoms of hypertension in service or since service separation.  There is no lay or medical evidence of chronic symptoms hypertension in active service or in the years after service separation until 2010 when hypertension was diagnosed.  Hypertension was diagnosed 11 years after service separation but there is no evidence of observable symptoms of hypertension in active service and after service separation up until the time of diagnosis.  The Board finds that the service medical evidence and post service medical evidence show a lack of complaints, treatment, or diagnosis of hypertension for many years after service.  Thus, presumptive service connection under the provisions of 38 C.F.R. § 3.303 (b) is not warranted.  The Board notes that such a lengthy time interval between service and the earliest post service clinical documentation of the disability is of itself a factor for consideration against a finding that the disability is related to service.  See Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000). 

The Board notes that the Veteran argued that he was entitled to service connection for hypertension under a theory of secondary service connection.  As noted above, the Veteran asserted that he has hypertension due to his service-connected knee disabilities and right foot disability because he cannot run or do sports or do any job that is physical, and this in turn, has forced the Veteran to not be able to work out and he is suffering from hypertension.  The Veteran stated that his tinnitus drives him crazy at times, and it raises his blood pressure.  See the August 2011 claim. 

The Board finds that the weight of the competent and credible evidence establishes that the hypertension is not caused by or aggravated by a service-connected disability.  The Board finds that the weight of the competent and credible evidence establishes that the hypertension is not caused by or aggravated by the service-connected tinnitus or psychiatric disorders.  The February 2017 VA medical opinion indicates that the VA examiner opined that the service-connected tinnitus was not associated with hypertension and therefore is not a cause for or aggravation of hypertension.  The VA examiner also noted that the Veteran has a diagnosis of PTSD, bipolar disease and depression, and he has remained on lisinopril 5 milligrams daily for hypertension and this does not indicate that the hypertension has been aggravated beyond its natural progression by psychiatric conditions. 

A VA medical opinion and examination were not provided to address the theory that the Veteran incurred hypertension due to his inability to exercise due to his service-connected knee and right foot disabilities.  The Federal Circuit Court of Appeals (Federal Circuit) has recognized that there is not a duty to provide an examination in every case.  See Waters v. Shinseki, 601 F.3d 1274 (Fed. Cir. 2010).  Rather, the Secretary's obligation under 38 U.S.C. § 5103A (d) to provide the Veteran with a medical examination or to obtain a medical opinion is not triggered unless there is an indication that the disability or persistent or recurrent symptoms of a disability may be associated with the Veteran's service or with another service-connected disability.  See McLendon v. Nicholson, 20 Vet. App.79, 81 (2006). 

The Board finds that such an examination is not necessary to render a decision under the circumstances of this case.  There is no indication of an association between any inactivity caused by the service-connected knee and right foot disabilities and the onset of the hypertension.  The record in this case is negative for any indication, other than the Veteran's own general assertions, that the service-connected disabilities led to the hypertension.  The evidence of record shows that the Veteran is able to exercise despite the service-connected knee and right foot disabilities.  A July 2016 VA examination report indicates that the Veteran reported having intermittent mild to moderate medial foot pain in the right foot.  The severity of the knee disabilities is discussed in detail below.  A minimal 10 percent rating is assigned to each knee disability based upon noncompensable limited flexion and pain.  10 percent ratings are assigned to each knee disability for mild instability or subluxation.  An October 2016 VA treatment record notes that the Veteran reported that his knee and flexibility have greatly improved with his yoga and exercise efforts.  The Veteran reported that he has been participating in physical therapy, however has also continued with yoga and rides his stationary bike. 

As noted above, although lay persons are competent to provide opinions on some medical issues, see Kahana; supra; as to the specific issue in this case, an opinion as to the cause of hypertension and whether the service-connected knee and right foot disabilities caused the hypertension falls outside the realm of common knowledge of a lay person.  Jandreau; supra.  There is no evidence that the Veteran has medical expertise or training to render this opinion.  Neither the Veteran nor his representative has produced competent evidence which indicates that there is an association between the hypertension and the service-connected disabilities.  

The Board also finds that although the Veteran is competent to report whether he is able to exercise, the Veteran's credibility is undermined by the fact that his own lay statements concerning whether he is able to exercise are inconsistent and are not supported by the evidence of record.  As noted, the VA treatment records show that the Veteran is able to engage is some forms of exercise despite his knee and right foot disabilities.  In weighing credibility, VA may consider bias, self-interest, consistency with other evidence of record, and desire for monetary gain.  See generally Caluza v. Brown, 7 Vet. App. 498 (1995).  Aside from the Veteran's own lay assertions, which the Board finds have limited credibility and therefore limited probative value, there is no indication that hypertension is associated in any way with the Veteran's knee and right foot disabilities.  As such, there is no duty to provide a VA examination with regard to the claim for service connection for hypertension as secondary to the knee and right foot disabilities.  See Waters v. Shinseki, 601 F.3d 1274 (Fed. Cir. 2010); McLendon v. Nicholson, 20 Vet. App. 79 (2006).

Accordingly, on this record, the evidence is found to preponderate against the claim for service connection for a hypertension on a direct, presumptive, and secondary basis.  Therefore, service connection for hypertension is denied.  Because the preponderance of the evidence is against the claim, the benefit of the doubt doctrine is not for application.  See 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102.

5.  Analysis: Service Connection for a Bilateral Eye Disorder

The Veteran contends that he has an eye disorder due to active duty service.  In the August 2011 application, the Veteran asserted that when he was in the field for six weeks during a MOUT training exercise, they were practicing entering and clearing a room.  The Veteran stated that someone had thrown a training grenade into the room where he was and he did not have enough time to get out, and it went off in his face.  The Veteran stated that he was blind for 10 minutes and his eye sight didn't really come back all at once.  He stated that he washed his eyes out with water.  He stated that he could not see a doctor and he simply told the optometrist this when he had his final eye exam. 

In another August 2011 application, the Veteran stated that his glaucoma has hampered his ability to effectively work and earn money.  The Veteran indicated that he believed that his glaucoma was blamed on the constant use of night optical/observation device (NODS) while in the army.  He stated that when you have to spend hours with a pair of NODS on your head, and all you can see is a green world and this experience would put a lot of pressure on your eyeballs.  The Veteran stated that the only reason he didn't seek treatment for it in the army, is because his chain of command would not him seek treatment other than eye drops 

In another August 2011 application, the Veteran stated that in reference to his claim for scotoma in the right eye and glaucoma, both of these disabilities started in the army and the only reason he didn't put a claim in then was because he didn't know these conditions were even compensable.  He stated that he thought these were just part of the job and if he was to go on profile for these conditions, they would have made fun of him and accused him of malingering. 

The Board finds that the weight of the competent and credible evidence establishes that the Veteran's eye disabilities to include glaucoma and scotoma did not manifest in service, were first diagnosed many years after service separation, were not caused by an in-service event or injury, are not related to active service, and were not caused or aggravated by a service-connected disability. 

Service treatment records show that upon enlistment examination in June 1994, physical examination of the eyes was normal.  Separation examination in July 1999, physical examination of the eyes was normal.  Right and left eye distant vision was 20/50.  There is competent and credible evidence that the Veteran has a current diagnosis of bilateral refractive error (myopia).  See the May 2017 VA examination report.  

Service connection may not be granted for refractive error of the eyes even if visual acuity decreased in service, as this is not a disease or injury within the meaning of applicable legislation relating to service connection.  38 C.F.R. §§ 3.303 (c), 4.9 (2016).  Refractive errors of the eyes are congenital or developmental defects and not disease or injury within the meaning of applicable legislation.  38 C.F.R. §§ 3.303 (c), 4.9.  VA regulations specifically prohibit service connection for refractory errors of the eyes unless such defect was subjected to a superimposed disease or injury which created additional disability.  See VAOPGCPREC 82-90 (July 18, 1990) (cited at 55 Fed. Reg. 45,711  ) (Oct. 30, 1990) (service connection may not be granted for defects of congenital, developmental or familial origin, unless the defect was subject to a superimposed disease or injury).  See also O'Bryan v. McDonald, 771 F.3d 1376, 1380-81 (Fed. Cir. 2014) (refractive error of the eye is not a compensable disease because it is specifically excluded from the regulation even though refractive errors of the eye can progress) (citing Terry v. Principi, 340 F.3d 1378, 1383-84 (Fed. Cir. 2003)).

The service treatment records do not document an eye disability other than refractive error.  The service treatment records do not document glaucoma or scotoma.  There is no indication of refractive error was subjected to a superimposed disease or injury in active service.  The Veteran separated from active service in November 1999.    

There are no current diagnoses of glaucoma or scotoma.  See the May 2017 VA eye examination report.  The May 2017 VA examination report indicates that there was no diagnosis of bilateral glaucoma on exam.  The VA examiner, a VA optometrist, also opined that there was no diagnosis of scotoma of the right eye and there was no current eye condition that would warrant needing a visual field test.  The VA examiner indicated that the service treatment records were silent in confirming any past findings or diagnosis for scotoma and the Veteran's visual field test was normal in both eyes.  The VA examiner further stated that the service treatment records were silent for right eye scotoma as well as any event or injury that would cause right eye scotoma.  

For a disability to be service-connected, it must be present at the time a claim for VA disability compensation is filed or during or contemporary to the pendency of the claim.  McClain v. Nicholson, 21 Vet. App. 319 (2007).  As the medical evidence of record does not show that the Veteran has current diagnoses of current glaucoma or scotoma, the Board finds that service connection for such is not warranted.  The Court has held that Congress specifically limited entitlement to service connected benefits to cases where there is a current disability.  "In the absence of proof of a present disability, there can be no valid claim."  Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992).  Accordingly, the claim of service connection for glaucoma or scotoma is denied.

There is competent and credible evidence that the Veteran has current diagnoses of a corneal scar in the right eye, bilateral blepharitis, and bilateral refractive error (myopia).  See the May 2017 VA eye examination report.  The VA examiner opined that it was less likely than not (50 percent probability or less) that the current eye disorders began in service or are otherwise related to military service.  The VA examiner stated that the opinion was based upon a thorough review of the claims file and all available medical records and the current peer reviewed medical literature.  The VA examiner stated that the Veteran's bilateral blepharitis and the right eye corneal scar are less likely than not began in active service or are otherwise related to military service to include exposure to chemicals, bugs, and during his period of military service in the Persian Gulf.  The VA examiner stated that the service treatment records are silent in confirming any past findings or diagnosis of scotoma.  The VA examiner indicated that the Veteran's blepharitis is a common eyelid disorder that is caused by a colonization of the normal facial flora at the base of the eyelashes and blepharitis is not caused by exposure to chemicals, bugs, and sand during military service in the Persian Gulf.  The VA examiner cited to the medical research and cited to https://www.aao.org/eye-health/diseases/what-causes-blepharitis and http://europepmc.org/abstract/med/10417910.  

The May 2017 VA examiner indicated that the Veteran had a corneal scar on the right eye.  The corneal scar was described as a tiny, almost pinpoint round scar on the right corner located outside the visual axis; the scar was not visible to the naked eye and it did not cause disfigurement and high magnification under the slit lamp biomicroscopy was necessary to visualize the scar.  The VA examiner stated that the date of diagnosis of the corneal scar was 2005 and cited to the VA treatment record dated in July 2005 which shows treatment for a corneal abrasion in the right eye post-service.  

The Board finds the May 2017 VA medical opinion to have great evidentiary weight as the opinion reflects a comprehensive and reasoned review of the entire evidentiary record.  The VA examiner reviewed the claims folder and the Veteran's medical history, considered the Veteran's report of symptoms and injury to the eyes in service, and examined the Veteran before rendering the medical opinions.  The VA examiner cited to the facts that support the opinion.  See Hernandez-Toyens; supra.  See also Prejean; supra; and Nieves-Rodriguez; supra.  As such, the Board finds the VA medical opinion has great probative weight.  The VA examiner, as an optometrist, has the skill and expertise to render a medical opinion about the current eye diagnoses and etiology for the current disabilities.  Black v. Brown, 10 Vet. App. 279, 284 (1997).  As such, the Board finds the VA medical opinion to have great probative weight.  

The Board finds that the weight of the competent and credible evidence establishes that the current eye disabilities did not manifest in active service but first manifested many years after service separation, are not caused by an in-service event or injury, and are not related to active service.  There is no competent evidence that indicates that the current eye disabilities are caused or aggravated by a service-connected disability.  

The Veteran himself has asserted that his current eye disabilities to include glaucoma and scotoma are related to active service.  As noted, the Veteran, as a lay person, is competent to describe observable symptoms such as blurry vision.  See Layno v. Brown, 6 Vet. App. 465 (1994).  Although lay persons are competent to provide opinions on some medical issues, see Kahana,  24 Vet. App. at 435, as to the specific issue in this case, an opinion as to a medical diagnosis or medical causation falls outside the realm of common knowledge of a lay person.  Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007).  Some medical issues require specialized training for a determination as to diagnosis and causation, and such issues are therefore not susceptible of lay opinions.  The evidence does not establish that the Veteran has medical expertise.  Thus, the Board finds that Veteran is not competent to render a medical diagnosis or provide an opinion as to etiology for a disability.  The Veteran has not submitted any competent evidence to support his assertions.  There is no competent evidence to establish a nexus between the current eye disabilities and any documented injury, disease, event or incident of active service.  There is no competent and credible medical evidence that links the claimed disease to service.

In light of the above, the Board finds that the preponderance of the evidence is against a finding that the bilateral eye disabilities are related to active service.  As the preponderance of the evidence is against the Veteran's claim, the benefit of the doubt rule is not applicable.  See 38 U.S.C.A. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49, 54-56 (1990).  The claim for service connection for bilateral eye disabilities is denied.   

6.  Analysis: Service Connection for Restless Leg Syndrome

In an August 2011 application, the Veteran stated that his restless leg syndrome or tic has progressively grown worse over the years and it was now severe enough to be disabling. The Veteran indicated that this restless leg syndrome was related to his military service.  The Veteran stated that he injured his right knee in the Army and his right knee has mild degenerative arthritis, along patellofemoral chondromalacia, and now he moves his right leg up and down every time he sits down.  He stated that the he has an urge to move his leg and if he doesn't move his leg, somehow or way, or if he does not get up and walk, he starts to stress out and become anxiety ridden.  

In an August 2011 application, the Veteran stated that if he stands or walks for too long then his knees and right foot start to hurt him.  He stated that his right leg starts to have feelings like uncomfortable, antsy, electrical, creeping, painful, itching, pins and needles, pulling, creepy-crawly, and ants inside the legs type, and feeling this forces him to move his right leg up and down or flex his right foot up and down and he does this uncontrollably without even thinking about it.  

In a June 2014 statement, the Veteran indicated that when he was deployed t Kuwait, he was given five anthrax shots along with malaria pills.  He stated that this definitely caused his restless leg syndrome.  

The Board finds that the weight of the competent and credible evidence establishes that the Veteran's current restless leg syndrome did not manifest in service, was first diagnosed many years after service separation, was not caused by an in-service event or injury, is not related to active service, and was not caused or aggravated by a service-connected disability. 

Service treatment records show that upon enlistment examination in June 1994, physical examination of the lower extremities was normal except for a leg length discrepancy.  Separation examination in July 1999, physical examination of the lower extremities revealed bilateral patella laxity and right foot pres planus.  Restless leg syndrome was not diagnosed.  The service treatment records do not document restless leg syndrome.  The Veteran separated from active service in November 1999.  The July 1999 pre discharge VA examination report did not sow a diagnosis of restless leg syndrome.  

There is no competent evidence of a diagnosis of restless leg syndrome within one year after service separation in November 1999.  Thus, presumptive service connection under the provisions of 38 C.F.R. § 3.307 (a) is not warranted. 

Presumptive service connection for restless leg syndrome as a chronic disease is not warranted.  See Walker, 708 F.3d at 1338.  Because restless leg syndrome was not noted during service, let alone shown to be chronic, service connection may not be established restless leg syndrome as a chronic disease based on a chronicity in service or a continuity of symptomatology after service.  See 38 C.F.R. § 3.303 (b).  The weight of the competent and credible evidence shows that the Veteran did not experience chronic and continuous symptoms of restless leg syndrome in service or since service separation.  The record shows that the restless leg syndrome symptoms began in 2002, almost 3 years after service separation.  Thus, presumptive service connection under the provisions of 38 C.F.R. § 3.303 (b) is not warranted.  

The July 2016 VA neurologic examination reports indicate that the VA examiner noted that the Veteran was in the Persian Gulf from April to July 1998 and received malaria and anthrax vaccinations.  The VA examiner indicated that the Veteran had the symptoms in 2002 with shaking and rocking of his right leg increasing in severity over time.  It was a feeling that he had to move it.  Over time in the last 4 or 5 years, the movements have exacerbated knee, foot and leg movements in the army.  It was noted that the Veteran felt that these problems were not the cause of his movement problem and the problem usually occurs while sitting; he did not have movement of any other extremity.  It was noted that in 2007, the Veteran had low back pain from an accident with sciatica including the right leg and magnesium helped a bit.  The diagnosis was restless leg syndrome.  The VA examiner noted that a small percentage of restless leg syndrome involved one extremity.  

The VA examiner provided an addendum medical opinion in February 2017.  The VA examiner, a neurologist, opined that it was less likely than not (less than 50 percent probability) incurred in or caused by the claimed in-service injury, event or illness.  The VA examiner stated that the rationale was that the record was carefully reviewed and it included all Veteran's statements and those by his mother and stepfather.  The VA examiner stated that the Veteran reported at the exam and in statements in the record that the restless leg syndrome symptoms started more than one year after discharge in 2002.  The VA examiner indicated that there is no known definitive association between vaccination or Persian Gulf exposure and the delayed development of restless leg syndrome and to their knowledge, it involves iron depletion in the basal ganglia and dopamine dysregulation certain systemic diseases and a variety of pharmaceuticals. 

The Board finds the 2016 and 2017 VA medical opinions to have great evidentiary weight as the opinion reflects a comprehensive and reasoned review of the entire evidentiary record.  The VA examiner reviewed the claims folder and the Veteran's medical history, considered the Veteran's report of symptoms, and examined the Veteran before rendering the medical opinions.  The VA examiner cited to the facts that support the opinion.  See Hernandez-Toyens; supra.  See also Prejean; supra; and Nieves-Rodriguez; supra.  As such, the Board finds the VA medical opinion has great probative weight.  The VA examiner has the skill and expertise to render a medical opinion about the current restless leg syndrome and its etiology.  Black v. Brown, 10 Vet. App. 279, 284 (1997).  As such, the Board finds the VA medical opinion to have great probative weight.  

The Veteran himself has asserted that his current restless leg syndrome is related to active service and is also caused by the knee disabilities.  However, the evidence does not establish that the Veteran has medical expertise and he is not competent to render a medical diagnosis or provide an opinion as to etiology for a disability.  The Veteran has not submitted any competent evidence to support his assertions.  There is no competent evidence to establish a nexus between the current restless leg syndrome and any documented injury, disease, event or incident of active service.  There is no competent and credible medical evidence that links the claimed disease to service.  There is no competent evidence that indicates that the current restless leg syndrome is caused or aggravated by a service-connected disability.    

In light of the above, the Board finds that the preponderance of the evidence is against a finding that the restless leg syndrome is related to active service.  As the preponderance of the evidence is against the Veteran's claim, the benefit of the doubt rule is not applicable.  See 38 U.S.C.A. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49, 54-56 (1990).  The claim for service connection for restless leg syndrome is denied.   




7.  Increased Ratings for the Left and Right Knee Disabilities

Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (Rating Schedule) found in 38 C.F.R. Part 4. 38 U.S.C.A. § 1155.  It is not expected that all cases will show all the findings specified; however, findings sufficiently characteristic to identify the disease and the disability therefrom and coordination of rating with impairment of function will be expected in all instances.  38 C.F.R. § 4.21.  

Where there is a question as to which of two evaluations (ratings) shall be applied, the higher rating will be assigned if the disability picture more nearly approximates the criteria for that rating.  Otherwise, the lower rating will be assigned.  38 C.F.R. § 4.7.  When there is an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant.  38 U.S.C.A. § 5107(b); 38 C.F.R. §§ 4.3, 4.7.  

In deciding this appeal, VA has specifically considered whether separate ratings for different periods of time are warranted, assigning different ratings for different periods of the Veteran's appeal.  Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2008).   

VA should interpret reports of examination in light of the whole recorded history, reconciling the various reports into a consistent picture so that the current rating may accurately reflect the elements of disability.  38 C.F.R. § 4.2.  Any reasonable doubt regarding the degree of disability should be resolved in favor of the claimant.  38 C.F.R. § 4.3. 

Disability of the musculoskeletal system is primarily the inability, due to damage or infection in the parts of the system, to perform the normal working movements of the body with normal excursion, strength, speed, coordination, and endurance.  It is essential that the examination on which ratings are based adequately portray the anatomical damage, and the functional loss, with respect to all these elements.  The functional loss may be due to absence of part, or all, of the necessary bones, joints and muscles, or associated structures, or to deformity, adhesions, defective innervation, or other pathology, or it may be due to pain, supported by adequate pathology and evidenced by visible behavior of the claimant undertaking the motion.  Weakness is as important as limitation of motion, and a part that becomes painful on use must be regarded as seriously disabled.  38 C.F.R. §§ 4.40, 4.45; see also DeLuca v. Brown, 8 Vet. App. 202, 206-07 (1995).  

Diagnostic Code 5010 (traumatic arthritis) directs that arthritis be rated under Diagnostic Code 5003 (degenerative arthritis), which states that degenerative arthritis established by x-ray findings will be rated on the basis of limitation of motion under the appropriate diagnostic codes for the specific joint or joints involved.  38 C.F.R. § 4.71a, Diagnostic Codes 5003, 5010.  

Under Diagnostic Code 5256, ankylosis of the knee, a 30 percent rating is warranted for knee ankylosis in a favorable angle in full extension, or in slight flexion between zero degrees and 10 degrees.  A 40 percent rating is provided for knee ankylosis in flexion between 10 and 20 degrees.  A 50 percent rating is provided for knee ankylosis in flexion between 20 degrees and 45 degrees.  A 60 percent rating is provided for knee ankylosis that is extremely unfavorable, in flexion at an angle of 45 degrees or more.  38 C.F.R. § 4.71a, Diagnostic Code 5256.  

Under Diagnostic Code 5257 (other impairment of the knee), a 20 percent evaluation requires moderate recurrent subluxation or lateral instability.  A 30 percent evaluation requires severe recurrent subluxation or lateral instability.  

Under 38 C.F.R. § 4.71a, Diagnostic Code 5258, a 20 percent rating is assigned for dislocated semilunar cartilage with frequent episodes of "locking", pain and effusion into the joint.  Under 38 C.F.R. § 4.71a, Diagnostic Code 5259, a 10 percent rating is assigned for symptomatic removal of symptomatic semilunar cartilage.  Semilunar cartilage is synonymous with the meniscus.

Diagnostic Codes 5260 and 5261 are utilized to rate limitation of flexion and extension of the knee joint.  38 C.F.R. § 4.71a.  Under Diagnostic Code 5260, limitation of flexion to 30 degrees warrants a 20 percent evaluation and limitation of flexion to 15 degrees warrants a 30 percent evaluation, the highest schedular evaluation under this diagnostic code.  38 C.F.R. § 4.71a.   

Under Diagnostic Code 5261, limitation of extension to 15 degrees warrants a 20 percent evaluation, and limitation of extension to 20 degrees warrants a 30 percent evaluation.  Limitation of extension of the knee to 30 degrees warrants a 40 percent evaluation and limitation of extension of the knee to 45 degrees warrants a 50 percent evaluation, the highest schedular evaluation under this diagnostic code.  38 C.F.R. § 4.71a.  

The Schedule provides that the normal range of motion of the knee is from 0 degrees of extension to 140 degrees of flexion.  38 C.F.R. § 4.71, Plate II.  

VA's General Counsel has interpreted that a veteran who has arthritis and instability of the knee could receive separate ratings under Diagnostic Codes 5003 and 5257.  VAOPGCPREC 23-97.  

In VAOPGCPREC 9-98, the VA General Counsel further explained that, when a veteran has a knee disability evaluated under Diagnostic Code 5257, to warrant a separate rating for arthritis based on x-ray findings, the limitation of motion need not be compensable under Diagnostic Code 5260 or Diagnostic Code 5261; rather, such limited motion must at least meet the criteria for a zero-percent rating.  

In VAOPGCPREC 9-2004, the VA General Counsel held that when considering Diagnostic Codes 5260 and 5261 together with 38 C.F.R. § 4.71, a veteran may receive a rating for limitation in flexion only, limitation of extension only, or separate ratings for limitations in both flexion and extension under Diagnostic Code 5260 (leg, limitation of flexion), and Diagnostic Code 5261 (leg, limitation of extension).  

When there is an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the veteran.  See 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102.

The Veteran asserts that higher disability ratings are warranted for his right and left knee disabilities.  With regard to the history of the disabilities at issue, service connection for degenerative joint disease of the right knee was granted in a November 1999 rating decision and a 10 percent rating was assigned from November 4, 1999 under Diagnostic Codes 5010 and 5260.  Service connection for meniscal tear of the left knee was granted and a 10 percent rating was assigned from November 4, 1999 under Diagnostic Codes 5299 and 5260.  San October 2010 rating decision denied entitlement to increased ratings for the right and left knee disabilities.  

In a September 2011 rating decision, service connection was granted for left knee patella subluxation and a 10 percent rating was assigned from January 24, 2011 under Diagnostic Code 5257.  The service-connected left knee meniscal tear was recharacterized as history of left knee internal derangement with torn meniscus and patellofemoral chondromalacia and a rating in excess of 10 percent was denied.  The service-connected right knee degenerative arthritis was recharacterized as mild degenerative arthritis of the right knee with patellofemoral chondromalacia and a disability rating in excess of 10 percent was denied.  

In a December 2016 rating decision, service connection was granted for right knee instability and a 10 percent rating was assigned from July 18, 2015 under Diagnostic Code 5257.  The right knee mild degenerative arthritis of the right knee with patellofemoral chondromalacia was recharacterized as osteoarthritis of the right knee.  The left knee internal derangement with torn meniscus and patellofemoral chondromalacia was recharacterized as chondromalacia of the ft knee.  

In June 2017, the RO granted service connection for left knee cartilage, semilunar, dislocated, with frequent episodes of locking, pain, and effusion into the joint under Diagnostic Code 5258 from July 9, 2016.  



Increased rating for the right knee disability

Based upon a review of the evidence, the Board concludes that a rating in excess of 10 percent for the service-connected right knee osteoarthritis is not warranted at any time during the appeal.  In order for a disability evaluation in excess of 10 percent to be assigned under Diagnostic Code 5260, flexion of the knee must be limited to 30 degrees or less.  38 C.F.R. § 4.71a, Diagnostic Code 5260.  Here, the Board finds no basis for assigning a rating in excess of 10 percent under Diagnostic Code 5260.  The weight of the evidence shows that the Veteran has demonstrated flexion of the right knee well beyond 30 degrees on every occasion range of motion has been tested during the course of his appeal.  VA examinations show right knee flexion was from zero to 130 degrees to full flexion.  See the VA examination reports dated in July 2016, June 2015, May 2012, March 2011 and July 2009.  Thus, on this record, a higher disability evaluation under Diagnostic Code 5260 is not warranted.  See 38 C.F.R. § 4.71a, Diagnostic Code 5260.

Under Diagnostic Code 5261, in order for a disability evaluation in excess of 10 percent to be assigned, extension of the knee must be limited to 15 degrees or more.  The evidence shows that during the course of the appeal, the extension of the right knee has not been limited to 15 degrees or more at any time during the course of the appeal.  The VA examinations show full extension of the right knee.  See the VA examination reports dated in July 2016, June 2015, May 2012, March 2011 and July 2009.  An April 2016 VA physical medicine rehabilitation consult indicates that examination of the knees showed full range of motion, mild tenderness on patellar compression and medial joint line, and complaints of mild to moderate pain.  Thus, on this record, a higher disability evaluation under Diagnostic Code 5261 is not warranted.  See 38 C.F.R. § 4.71a, Diagnostic Code 5261.

The Board has considered whether a higher rating may be assigned on the basis of functional loss due to pain under 38 C.F.R. § 4.40 and functional loss due to weakness, fatigability, incoordination, lack of endurance or pain on movement of a joint under 38 C.F.R. § 4.45.  See DeLuca, supra.  The weight of the evidence shows no additional limitation of flexion or extension of the right knee due to pain or other symptoms.  The July 2009 VA examination report documents full range of motion of the right knee without significant pain.  The March 2011 VA examination report indicates that thee was full range of motion of the right knee with no objective evidence of pain on motion.  The May 2012 VA examination report indicates that range of motion of the right knee was zero degrees to 130 degrees with no objective evidence of painful motion although the Veteran reported that pain began at 130 degrees.  The VA examiner stated that there was no additional limitation of motion with repetitive movement of the right knee.  The June 2015 VA examination report indicates that the Veteran had right knee flexion to 130 degrees.  The VA examiner stated that there was no pain on examination of weightbearing.  There was no additional limitation of motion of the right knee with repetitive testing.  The July 2016 VA examination report indicates that right knee flexion was to 130 degrees and the VA examiner indicated that there was no additional limitation of motion with repetitive testing or due to weakness, fatigability, incoordination, lack of endurance or pain on movement.  The VA examiner stated that there was no pain with weightbearing.  There was evidence of mild tenderness to touch of the patella.  The VA examination reports dated in June 2015 and March 2011 indicate that there were findings of crepitus.  The VA examination reports show that muscle strength in the right knee was 5/5 (normal).    

The Board finds that the Veteran's current 10 percent disability rating for the right knee disability takes into consideration and incorporates the functional loss and impairment due to pain, crepitus, tenderness, and flare-ups.  The right knee disability has not been shown to produce additional impairment of extension or flexion due to pain or functional loss that would warrant ratings higher than 10 percent.  See DeLuca; supra.  As noted, the weight of the evidence shows Veteran has full extension in the right knee for the period and flexion of the knee has been well beyond 30 degrees when considering pain and functional loss.  The current functional impairment of the right knee and the symptoms of pain are encompassed in the current 10 percent rating under Diagnostic Code 5260.   

The Board has considered the Veteran's report of pain in the knees and the report of flare-ups.  Moreover, the record shows that the VA examiners noted these symptoms in their examination reports and considered them in their assessments of the overall severity of the knee disability.  Further, the Veteran's subjective complaints were directly considered by the RO when assigning the current 10 percent rating for functional limitation resulting from pain, painful motion, and limited motion.  As such, the Veteran's subjective complaints are fully contemplated by the currently assigned 10 percent rating to the right knee disability.  DeLuca v. Brown, 8 Vet. App. 202 (1995); 38 C.F.R. §§ 4.40, 4.45, 4.59.  The Board finds that there is no basis for the assignment of additional disability due to pain, weakness, fatigability, weakness, or incoordination, and the Board finds that the assignment of additional disability pursuant to 38 C.F.R. §§ 4.40  and 4.45 is not warranted.  

The Board acknowledges the Court recently held that the final sentence of 38 C.F.R. § 4.59 requires that VA examinations include joint testing for pain on both active and passive motion, in weight-bearing and nonweight-bearing and, if possible, with range of motion measurements of the opposite undamaged joint.  Correia v. McDonald, 28 Vet. App. 158, 169-70 (2016).  In the present case, the evidence of record satisfies the requirements of the Correia case, as several VA examinations considered both active and passive range of motion as well as the effect of weight-bearing on the Veteran's knees. 

The Board has also considered whether any other applicable rating criteria may enable a higher evaluation.  However, after review, the Board finds that no other diagnostic code provides for a higher rating.  There is no evidence of ankylosis of the right knee.  See the VA examination reports dated in July 2016, June 2015, May 2012, March 2011 and July 2009.  Therefore, Diagnostic Code 5256 is not for application.  

The Board also finds that a higher disability rating or a separate disability rating is not warranted under either Diagnostic Code 5258 or 5259.  Diagnostic Codes 5258 and 5259 address meniscus injuries and symptoms which is not shown by the evidence of record.  The weight of the competent and credible evidence shows that there is no right knee meniscal disability or pathology.  See the VA examination reports dated in July 2016, June 2015, May 2012, March 2011 and July 2009.  

In summary, for these reasons, the Board finds that the preponderance of the evidence is against the assignment of a disability rating in excess of 10 percent for the service-connected right knee osteoarthritis at any time during the appeal period, and the claim for a higher rating is denied. 

The Board has considered VAOPGCPREC 23-97 and VAOPGCPREC 9-98.  The record shows that a separate 10 percent rating is assigned to the right knee under Diagnostic Code 5257 on the basis of slight recurrent subluxation and instability.  See the June 2015VA examination report.  The July 2016 VA examination report shows findings of slight recurrent patellar dislocation of the right knee.  The weight of the competent and credible evidence does not establish moderate or severe subluxation or instability of the right knee.  Thus, the Board finds that the evidence is against the assignment of a rating in excess of 10 percent for the service-connected right knee subluxation under Diagnostic Code 5257.

Separate compensable ratings for limitation of extension of the right knee pursuant to VAOPGCPREC 9-2004 is not for application for the appeal period.  Under Diagnostic Code 5261, in order for a compensable disability evaluation to be assigned, extension of the knee must be limited to 10 degrees or more.  The evidence shows that during the course of the appeal, there has been full extension of the right knee.  See the VA examination reports dated in July 2016, June 2015, May 2012, March 2011 and July 2009.  Thus, on this record, a separate disability rating under Diagnostic Code 5261 is not warranted.  

In conclusion, the Board finds that the assignment of disability ratings in excess of 10 percent is not warranted at any time during the appeal period for the right knee osteoarthritis and right knee instability, and the claims for higher ratings are denied.  The preponderance of the evidence is against the Veteran's claim for increased ratings for the right knee disabilities and the claims are denied.

Increased rating for the left knee disability

Based upon a review of the evidence, the Board concludes that a rating in excess of 10 percent for the service-connected left knee chondromalacia is not warranted at any time during the appeal.  In order for a disability evaluation in excess of 10 percent to be assigned under Diagnostic Code 5260, flexion of the knee must be limited to 30 degrees or less.  38 C.F.R. § 4.71a, Diagnostic Code 5260.  Here, the Board finds no basis for assigning a rating in excess of 10 percent under Diagnostic Code 5260.  The weight of the evidence shows that the Veteran has demonstrated flexion of the left knee well beyond 30 degrees on every occasion range of motion has been tested during the course of his appeal.  VA examinations show left knee flexion was from zero to 130 degrees to full flexion.  See the VA examination reports dated in July 2016, June 2015, May 2012, March 2011 and July 2009.  Thus, on this record, a higher disability evaluation under Diagnostic Code 5260 is not warranted.  See 38 C.F.R. § 4.71a , Diagnostic Code 5260.

Under Diagnostic Code 5261, in order for a disability evaluation in excess of 10 percent to be assigned, extension of the knee must be limited to 15 degrees or more.  The evidence shows that during the course of the appeal, the extension of the left knee has not been limited to 15 degrees or more at any time during the course of the appeal.  The VA examinations show full extension of the left knee.  See the VA examination reports dated in July 2016, June 2015, May 2012, March 2011 and July 2009.  Thus, on this record, a higher disability evaluation under Diagnostic Code 5261 is not warranted.  See 38 C.F.R. § 4.71a, Diagnostic Code 5261.

The Board has considered whether a higher rating may be assigned on the basis of functional loss due to pain under 38 C.F.R. § 4.40 and functional loss due to weakness, fatigability, incoordination, lack of endurance or pain on movement of a joint under 38 C.F.R. § 4.45.  See DeLuca, supra.  The weight of the evidence shows no additional limitation of flexion or extension of the left knee due to pain or other symptoms.  The July 2009 VA examination report documents full range of motion of the left knee without significant pain.  The VA examiner noted that repetitive motion and manipulation did not cause any additional impairment.  The March 2011 VA examination report indicates that there was full range of motion of the left knee with objective evidence of pain on motion.  The May 2012 VA examination report indicates that range of motion of the left knee was zero degrees to 130 degrees with no objective evidence of painful motion although the Veteran reported that pain began at 130 degrees.  The VA examiner stated that there was no additional limitation of motion with repetitive movement of the left knee.  The June 2015 VA examination report indicates that the Veteran had left knee flexion to 130 degrees.  The VA examiner stated that there was no pain on examination or on weightbearing.  There was no additional limitation of motion of the left knee with repetitive testing.  The July 2016 VA examination report indicates that left knee flexion was to 130 degrees and the VA examiner indicated that there was no additional limitation of motion with repetitive testing or due to weakness, fatigability, incoordination, lack of endurance or pain on movement and there was functional impairment with prolonged walking, standing, and sitting.  The VA examiner stated that there was no pain with weightbearing.  There was evidence of mild tenderness to touch of the patella.  The VA examination reports dated in June 2015 and March 2011 indicate that there were findings of crepitus.  The VA examination reports show that muscle strength in the left knee was 5/5 (normal).    

The Board finds that the Veteran's current 10 percent disability rating for the left knee disability takes into consideration and incorporates the functional loss and impairment due to pain, limited motion, crepitus, tenderness, and flare-ups.  The left knee disability has not been shown to produce additional impairment of extension or flexion due to pain or functional loss that would warrant ratings higher than 10 percent.  See DeLuca; supra.  As noted, the weight of the evidence shows Veteran has full extension in the left knee for the period and flexion of the knee has been well beyond 30 degrees when considering pain and functional loss.  The current functional impairment of the left knee and the symptoms of pain are encompassed in the current 10 percent rating under Diagnostic Code 5260.   

The Board has considered the Veteran's report of pain in the knees and the report of severe flare-ups.  Moreover, the record shows that the VA examiners noted these symptoms in their examination reports and considered them in their assessments of the overall severity of the knee disability.  Further, the Veteran's subjective complaints were directly considered by the RO when assigning the current 10 percent rating for functional limitation resulting from pain, painful motion, and limited motion.  As such, the Veteran's subjective complaints are fully contemplated by the currently assigned 10 percent rating to the left knee disability.  DeLuca v. Brown, 8 Vet. App. 202 (1995); 38 C.F.R. §§ 4.40, 4.45, 4.59.  The Board finds that there is no basis for the assignment of additional disability due to pain, weakness, fatigability, weakness, or incoordination, and the Board finds that the assignment of additional disability pursuant to 38 C.F.R. §§ 4.40 and 4.45 is not warranted.  

The Board finds that in the present case, the evidence of record satisfies the requirements of the Correia case, as several VA examinations considered both active and passive range of motion as well as the effect of weight-bearing on the Veteran's knees.

The Board has also considered whether any other applicable rating criteria may enable a higher evaluation.  However, after review, the Board finds that no other diagnostic code provides for a higher rating.  There is no evidence of ankylosis of the left knee.  See the VA examination reports dated in July 2016, June 2015, May 2012, March 2011 and July 2009.  Therefore, Diagnostic Code 5256 is not for application.  

The Board also finds that a higher disability rating or a separate disability rating is not warranted under either Diagnostic Code 5258 or 5259 prior to July 9, 2016.  The weight of the competent and credible evidence shows that prior to July 9, 2016, the left knee disability was manifested by a meniscal tear and symptoms of intermittent locking and effusion without evidence of removal of symptomatic cartilage.  The evidence shows that the Veteran did not undergo a meniscectomy of the left knee and did not undergo removal of cartilage.  The weight of the evidence shows that during this time period, the Veteran experienced pain, painful motion, some limited motion (limited by 10 degrees on flexion; see the May 2012, June 0215, and July 2016 VA examinations), intermittent locking (episodes of locking less than once a year; see the March 2011 VA examination report), and crepitus (described as slight on the July 2009 VA examination).  See the VA examination reports dated in July 2016, June 2015, May 2012, March 2011 and July 2009.  

The Board finds that a separate rating pursuant to Diagnostic Code 5259 is not appropriate in this case because although there is evidence of meniscal tear symptoms, the Veteran's complaints of pain and limited motion in the left knee are already contemplated in his current rating for limitation of motion under Diagnostic Code 5260, and the current 10 percent rating takes into account impairment from pain and limited motion.  38 C.F.R. §§ 4.40, 4.45.  A separate rating would constitute impermissible pyramiding.  See 38 C.F.R. § 4.14 (indicating that the evaluation of the same manifestation under different diagnoses is to be avoided).  Thus, a separate rating under Diagnostic Code 5259 is not warranted for the left knee.  

Additionally, a disability rating in excess of 20 percent under Diagnostic Code 5258 from July 9, 2016 is not warranted. The 20 percent rating is the only rating available under this diagnostic code. 

In summary, for these reasons, the Board finds that the preponderance of the evidence is against the assignment of a disability rating in excess of 10 percent for the service-connected left knee chondromalacia under Diagnostic Code 5260 and in excess of 20 percent for the left knee semilunar cartilage under Diagnostic Code 5258 at any time during the appeal period, and the claim for higher ratings is denied. 

The Board has considered VAOPGCPREC 23-97 and VAOPGCPREC 9-98.  The record shows that a separate 10 percent rating is assigned to the left knee under Diagnostic Code 5257 on the basis of slight recurrent subluxation and instability.  See the June 2015VA examination report.  The June 2015 VA examination report shows findings of slight recurrent subluxation and instability of the left knee.  The May 2012 VA examination indicates that there was mild patellar subluxation of the left knee.  The weight of the competent and credible evidence does not establish moderate or severe subluxation or instability of the left knee.  Thus, the Board finds that the evidence is against the assignment of a rating in excess of 10 percent for the service-connected left knee subluxation or instability under Diagnostic Code 5257.

A separate compensable rating for limitation of extension of the left knee pursuant to VAOPGCPREC 9-2004 is not for application for the appeal period.  Under Diagnostic Code 5261, in order for a compensable disability evaluation to be assigned, extension of the knee must be limited to 10 degrees or more.  The evidence shows that during the course of the appeal, there has been full extension of the left knee.  See the VA examination reports dated in July 2016, June 2015, May 2012, March 2011 and July 2009.  Thus, on this record, a separate disability rating under Diagnostic Code 5261 is not warranted.  

In conclusion, the Board finds that the assignment of disability ratings in excess of 10 percent are not warranted at any time during the appeal period for the left knee chondromalacia and left knee instability.  The Board finds that the assignment of a disability rating in excess of 20 percent is not warranted for the left knee semilunar cartilage from July 9, 2016.  The claims for higher ratings are denied.  The preponderance of the evidence is against the Veteran's claims for increased ratings for the left knee disabilities and the claims are denied.






















(Continued on the next page)

ORDER

Service connection for Meniere's disease is denied. 

Service connection for a chronic ear disorder, to include chronic otitis externa, is denied.  

Service connection for hypertension is denied.  

Service connection for a bilateral eye disorder, to include glaucoma and scotoma is denied.  

Service connection for restless leg syndrome of the right leg is denied.  

Entitlement to a disability rating in excess of 10 percent for osteoarthritis of the right knee is denied.  

Entitlement to a disability rating in excess of 10 percent for right knee instability/subluxation is denied.   

Entitlement to a disability rating in excess of 10 percent for left knee instability/subluxation is denied. 

Entitlement to a disability rating in excess of 10 percent for left knee chondromalacia is denied.    

Entitlement to an evaluation in excess of 20 percent from July 9, 2016 for left knee cartilage, semilunar, with frequent episodes of locking, pain, and effusion is denied.   





REMAND

Unfortunately it is once again necessary to remand the issue of service connection for a lumbar spine disability.  

VA's duty to assist includes providing a medical examination or obtaining a medical opinion when such an examination or opinion is necessary to make a decision on the claim.  38 U.S.C.A. § 5103A (d) (West 2014).  

The Veteran was afforded a VA examination of the lumbar spine in July 2016 and a medical opinion was obtained as to the etiology of the lumbar spine disability.  The VA examiner opined that it was less likely than not that the lumbar spine disability was related to active service or was caused or aggravated by the service-connected knee disabilities.  However, the VA examiner did not discuss the significance of medical findings pertinent to the lumbar spine that were found upon enlistment examination in August 1995.  An August 1995 in-service x-ray examination of the lumbar spine revealed mild levo convex scoliosis, incomplete fusion at L5-S1 with no anomalies of the vertebral bodies noted, and a 7 centimeter leg length discrepancy right versus left.  A February 2015 private medical record indicates that the Veteran had diagnoses of lumbar radiculopathy, osteoarthrosis, and scoliosis.  The July 2016 VA examination report shows only a diagnosis of lumbosacral strain.   

The Board finds that a remand for an addendum VA medical opinion is necessary and the VA examiner should be asked to comment on the significance of the lumbar spine findings shown on the August 2015 x-ray examination.  Once VA undertakes the effort to provide an examination, it must obtain a fully adequate one. Barr v. Nicholson, 21 Vet. App. 303, 311 (2007).  

Accordingly, the case is REMANDED for the following actions:

1.  Obtain an addendum opinion, or full VA examination if deemed necessary by the examiner, to assess the current nature and etiology of the Veteran's lumbar spine disability.  The examiner should review the entire claims file and specifically consider the August 1995 x-ray examination report showing findings of mild levo convex scoliosis, incomplete fusion at L5-S1 with no anomalies of the vertebral bodies noted, and a 7 centimeter leg length discrepancy right versus left.  

The examiner should provide an opinion as to the following:

(a) Is it at least as likely as not (i.e. a probability of 50 percent or more) that any identified lumbar spine disability had its onset during active service or within one year of separation from service, or, otherwise resulted from active military service?   

(b) Is it at least as likely as not (i.e. a probability of 50 percent or more) that the pre-existing mild levo convex scoliosis and incomplete fusion at L5-S1 with no anomalies of the vertebral bodies were aggravated (i.e., permanently worsened) during active military service?  If there was an increase in severity, was the increase due to the natural progress of the disease during active service? 

(c) If any of the responses above are negative, is it at least as likely as not (a 50 percent or greater probability) that any current lumbar spine disability was caused by or aggravated by a service-connected disability? 

The term "aggravation" means an increase in the claimed disability; that is, a worsening of the condition beyond the natural clinical course and character of the condition due to the service-connected disability as contrasted to a temporary worsening of symptoms.  If aggravation is found, a baseline level of severity should be determined, if possible, for the Veteran's lumbar spine disability.  If it is not possible to determine a baseline, provide a rationale.

The examiner should provide a complete rationale for all opinions provided.  If an opinion cannot be provided without to resorting to mere speculation, the examiner should fully explain why this is the case and identify what additional evidence (if any) would allow for a more definitive opinion.

2.  Following completion of the foregoing, readjudicate the claim of service connection for a lumbar spine disability.  If it remains denied, issue an appropriate supplemental statement of the case, afford the Veteran and his representative an opportunity to respond, and return the case to the Board.

The appellant has the right to submit additional evidence and argument on the matter the Board has remanded.  Kutscherousky v. West, 12 Vet. App. 369 (1999).

This claim must be afforded expeditious treatment.  The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner.  See 38 U.S.C.A. §§ 5109B, 7112 (West 2014).




____________________________________________
Thomas H. O'Shay
Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs

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