Citation Nr: 1754173
Decision Date: 11/28/17 Archive Date: 12/07/17

DOCKET NO. 12-14 690 ) DATE
)
)

On appeal from the
Department of Veterans Affairs Regional Office in Muskogee, Oklahoma

THE ISSUES

1. Entitlement to a compensable disability rating prior to June 2, 2015, and to a disability rating greater than 20 percent from June 2, 2015, for bilateral hearing loss.

2. Entitlement to service connection for a heart disability.

3. Entitlement to service connection for a bilateral knee disability.

4. Entitlement to service connection for a bilateral ankle disability.

5. Entitlement to service connection for a bilateral hand disability.

REPRESENTATION

Veteran represented by: Robert C. Brown, Attorney

WITNESS AT HEARING ON APPEAL

The Veteran

ATTORNEY FOR THE BOARD

J. J. Tang, Associate Counsel

INTRODUCTION

The Veteran served on active duty in the U.S. Marine Corps from September 1971 to September 1975, and from June 1979 to June 1981.

This case is before the Board of Veterans’ Appeals (Board) on appeal from rating decisions by a Regional Office (RO) of the Department of Veterans Affairs (VA).

In November 2014, the Board reopened and remanded for further development the issues of service connection for the bilateral hand disability, bilateral knee disability, bilateral ankle disability, and a heart disability. The Board also remanded the matter of increased compensation for bilateral hearing loss. The case is again before the Board for further appellate proceedings.

The Board notes that the appeal for entitlement to service connection for a cervical spine disability was fully resolved in a January 2016 rating decision, in which RO granted service connection for degenerative joint disease of the cervical spine, and assigned an initial disability rating and an effective date. The RO provided the Veteran notice of this decision by letter in January 2016 with a copy of his appellate rights.

Records in the Virtual VA paperless claims processing system and the Veterans Benefits Management System have been reviewed, to include a copy of the January 2014 Board hearing presided over by the undersigned Veterans Law Judge.

The issues of entitlement to service connection for a bilateral knee disability, a bilateral ankle disability, and a bilateral hand disability, are addressed in the REMAND portion of the decision below and are REMANDED to the Agency of Original Jurisdiction (AOJ).

FINDINGS OF FACT

1. Prior to June 2, 2015, the Veteran’s measured hearing loss was not shown to be worse than Level II for the right ear and Level II for the left ear.

2. From June 2, 2015, the Veteran’s measured hearing loss was not shown to be worse than Level VI for the right ear and Level V for the left ear.

3. The Veteran’s current heart disability is not etiologically related to service.

CONCLUSIONS OF LAW

1. Prior to June 2, 2015, the criteria for a compensable disability rating for the service-connected bilateral hearing loss disability have not been met or approximated. 38 U.S.C.A. §§ 1155, 5107(b) (West 2014); 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.10, 4.85, 4.86(a), Diagnostic Code 6100 (2017).

2. From June 2, 2015, the criteria for a disability rating greater than 20 percent for the service-connected bilateral hearing loss disability have not been met or approximated. 38 U.S.C.A. §§ 1155, 5107(b) (West 2014); 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.10, 4.85, 4.86(a), Diagnostic Code 6100 (2015).

3. A heart disability was not incurred in or aggravated by service. 38 U.S.C.A. §§ 1155, 5107(b) (West 2014); 38 C.F.R. §§ 3.102, 3.303 (2017).

REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

Compliance with Prior Remand

In November 2014, the Board remanded the case and directed the AOJ to obtain identified outstanding and relevant treatment, and the AOJ did so. The Board also directed the AOJ to afford the Veteran a VA audiological examination and the AOJ did so, and the examiner provided the requested information. The Board also directed the AOJ to obtain a VA cardiac examination, and the AOJ did so, and the examiner provided the requested information. The claims were then readjudicated in a supplemental statement of the case. For these reasons, the Board’s prior remand instructions have been substantially complied with. See Stegall v. West, 11 Vet. App. 268, 271 (1998).

Duties to Notify and Assist

The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations impose obligations on VA to provide claimants with notice and assistance. 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2017).

The Veteran in this case has not referred to any deficiencies in either the duties to notify or assist; therefore, the Board may proceed to the merits of the claim. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed.Cir. 2015, cert denied, U.S.C. Oct.3, 2016) (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 [appellant] fails to raise them before the Board”); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to an appellant’s failure to raise a duty to assist argument before the Board).

The Board has reviewed all of the evidence in the Veteran’s claims file. Although the Board has an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that the evidence submitted by the Veteran or obtained on his behalf be discussed in detail. Rather, the Board’s analysis below will focus specifically on what evidence is needed to substantiate the claim and what the evidence in the claims file shows, or fails to show, with respect to the claim. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) and Timberlake v. Gober, 14 Vet. App. 122, 128-130 (2000).

Rating for Bilateral Hearing Loss

The Veteran’s service-connected bilateral hearing loss disability is currently evaluated as noncompensable prior to June 2, 2015, and as 10 percent disabling from June 2, 2015, under Diagnostic Code (DC) 6100 (hearing impairment). The Veteran contends that these evaluations do not accurately depict the severity of his bilateral hearing loss. DC 6100 contemplates the Veteran’s diagnosis and symptoms of hearing impairment, and thus the Veteran is appropriately rated under DC 6100. No other codes are for application.

Evaluations of hearing loss must be conducted by a state-licensed audiologist and are based upon organic impairment of hearing acuity as measured by the results of a Maryland CNC speech discrimination test, together with the average hearing threshold level as measured by puretone audiometry tests in the frequencies of 1000, 2000, 3000, and 4000 hertz. 38 C.F.R. § 4.85(a) and (d).

To evaluate the degree of disability for service-connected bilateral hearing loss, the rating schedule establishes eleven auditory acuity levels, designated from level I, for essentially normal acuity, through level XI, for profound deafness. 38 C.F.R. § 4.85, DC 6100. The assignment of disability ratings for hearing impairment is derived by mechanical application of the rating schedule to the numeric designations assigned after audiometric testing results are rendered. See Lendenmann v. Principi, 3 Vet. App. 345, 349 (1992). The Board acknowledges that the Veteran testified at the Board hearing that he was told he should be rated at 10 percent by Dr. W.; however, the assignment of the rating is a legal determination based upon application of the rating schedule, and there is no indication that Dr. W. determined that a 10 percent rating was warranted based on the rating schedule.

The numeric designation of impaired efficiency (I through XI) will be determined for each ear by applying the appropriate table as required by 38 C.F.R. § 4.85 or
§ 4.86. In Table VI, the percent of discrimination resulting from the controlled speech discrimination tests, located along the vertical axis, is compared with the puretone threshold average, located along the horizontal axis. In Table VIA, only the puretone threshold average is used. The puretone threshold average is the sum of the puretone thresholds at 1000, 2000, 3000, and 4000 hertz, divided by four. 38 C.F.R. § 4.85. The numeric designations resulting from Table VI or Table VIA are then matched between the “better” ear and the “poorer” ear on Table VII to determine the Veteran’s disability rating under DC 6100. 38 C.F.R. § 4.85.

When there is an exceptional pattern of hearing impairment under 38 C.F.R. § 4.86(a), defined as when the puretone threshold at each of the four specified frequencies (1000, 2000, 3000, and 4000 Hertz) is 55 decibels or more, the rating will be determined pursuant to the Roman numeral designation for hearing impairment from either Table VI or Table VIA, which ever results in the higher numeral. Also, each ear will be evaluated separately in this regard. Here, 38 C.F.R. § 4.86(a) does not apply because no such exceptional pattern of hearing impairment is shown at any point during the appeal period. Also, because there is no evidence at any point during the appeal period of an exceptional pattern of hearing impairment under 38 C.F.R. § 4.86(b), defined as when the puretone threshold is 30 decibels or less at 1000 Hertz and 70 decibels or more at 2000 Hertz, the rating provisions under 38 C.F.R. § 4.86(b) do not apply.

The Veteran is competent to report his symptoms and observations, and the Board finds that such reports are credible. The Board has considered the Veteran’s lay statements as to the subjective severity of the Veteran’s bilateral hearing loss and functional impairments thereof and the Veteran’s contention that his current disability rating does not accurately depict the severity of his bilateral hearing loss. However, the Board finds that the audiological testing as to the severity of bilateral hearing loss is essentially a medical matter. The record does not indicate that the Veteran has medical expertise or training in the field of audiology. Thus, his essential contention that his subjective hearing loss is objectively more severe than as reflected in the audiological testing results of record is not competent evidence. See Jandreau v. Nicholson, 492 F.3d 1372 (2007); Kahana v. Shinseki, 24 Vet. App. 428, 438 (2011). Thus, the Veteran’s essential lay opinions that his subjective hearing loss impairment is objectively more severe than as reflected in the audiological testing results of record, and that the audiological testing results of record do not accurately reflect the objective severity of his hearing loss, have no probative value and are outweighed by the objective audiometric testing results of record performed by the audiologists in this case.

The December 31, 2010 VA examination showed the right ear puretone threshold average was 55 decibels, and the speech discrimination score was 88 percent. After applying Table VI, the right ear has a numerical designation of Level II. The left ear puretone threshold average was 52.5 decibels, and the speech discrimination score was 84 percent. After applying Table VI, the left ear has a numerical designation of Level II. Application of Table VII by comparing the right ear and left ear numerical designations shows that an evaluation of 0 percent is warranted. The Veteran reported difficulty hearing and understanding conversations in daily activities and in occupation.

The June 2, 2015 VA examination showed the right ear puretone threshold average was 63.75 decibels, and the speech discrimination score was 66 percent. After applying Table VI, the right ear has a numerical designation of Level VI. The left ear puretone threshold average was 65 decibels, and the speech discrimination score was 72 percent. After applying Table VI, the left ear has a numerical designation of Level V. Application of Table VII by comparing the right ear and left ear numerical designations shows that an evaluation of 20 percent is warranted. The Veteran reported that the effect on daily life and work includes difficulty hearing and understanding conversations.

On review, prior to June 2, 2015, the criteria for a compensable disability rating for bilateral hearing loss have not been met or approximated under DC 6100. The Board concludes that the currently assigned noncompensable rating is appropriate for that period. From June 2, 2015, the criteria for a disability rating greater than 20 percent for bilateral hearing loss have not been met or approximated under DC 6100. The Board concludes that the currently assigned 20 percent disability rating is appropriate for that period.

At no point during the appeal period have the criteria for a rating greater than that discussed above been met or approximated. The Board has considered the applicability of the benefit of the doubt doctrine. However, because the preponderance of the evidence is against a finding that a rating greater than that discussed above are warranted, the benefit of the doubt doctrine is not applicable. 38 U.S.C.A. § 5107(b).

Neither the Veteran nor his attorney has raised any other issues, nor have any other issues been reasonably raised by the record in conjunction with his claim for increased rating for bilateral hearing loss. See Doucette v. Shulkin, No. 15-2818, 2017 U.S. App. Vet. Claims LEXIS 319, *8-9 (Vet. App. March 17, 2017) (confirming that the Board is not required to address issues unless they are specifically raised by the claimant or reasonably raised by the evidence of record).

Service Connection

A veteran is entitled to VA disability compensation for service connection if the facts establish that a disability resulted from disease or personal injury incurred in the line of duty or for aggravation of a preexisting injury in the active military, naval or air service. 38 U.S.C.A. §§ 1110, 1131 (West 2014); 38 C.F.R. § 3.303 (2017). Generally, to establish entitlement to service connection, a veteran must show: (1) a present disability; (2) an 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).

Heart Disability

The Veteran contends that he has a heart disability that is related to service, specifically to include chest pain in service. The medical evidence of record shows that the Veteran has been diagnosed with coronary artery disease. See e.g., May 2012 and May 2015 VA examinations. The Veteran’s service treatment records show that in January 1974, the Veteran reported chest pain, assessed as strain, and then later in January 1974, chest pain of the left side, diagnosed as costal chondritis. The Veteran stated in the May 2012 VA examination that he had chest pain in service for four days, and he denied that he was diagnosed with coronary artery disease at that time. The Veteran reported in the May 2015 VA examination that the onset of his current symptoms was in 2008. Also, the Veteran reported in a May 2012 private independent medical examination by Dr. E. that he had chest pain in service. The Veteran stated that subsequently, he has no more chest wall pain. The Veteran reported that he had chest pain again three or four years ago.

The Veteran is competent to report his symptoms and observations. However, the Board finds that the diagnosis of chest symptoms, the identification and diagnosis of coronary artery disease, as well as the determination as to the etiology of a heart disorder, are essentially medical questions, and as such it is beyond its own competence to evaluate based upon its own knowledge and expertise. The record does not indicate that the Veteran has medical expertise or training. It follows that the Veteran’s determination that his current heart disability is related to his in-service chest pain is also not competent evidence. See Jandreau v. Nicholson, 492 F.3d 1372 (2007); Kahana v. Shinseki, 24 Vet. App. 428, 438 (2011). Therefore, such lay opinion by the Veteran has no probative value.

On the other hand, the contemporaneous medical evidence in service regarding the nature of the Veteran’s chest symptoms has probative value, as the in-service providers rendered diagnoses of the Veteran’s symptoms based on examination of the Veteran and on clinical testing results. As noted above, the in-service provider diagnosed the Veteran’s chest pain in service as strain or costochondritis. The service treatment records show that in January 1974, the Veteran was afforded an EKG that showed normal results. No heart disability was noted on the separation examination for either period of service.

Further, the May 2015 VA examination regarding the Veteran’s heart disability has probative value because it was rendered by a physician who has the requisite expertise to render an opinion as to nature and etiology of the Veteran’s current heart disability. Moreover, the VA examiner reviewed the claims file, he examined the Veteran, he supported his opinion with rationale, and he rendered his opinion on the Veteran’s medical history and subjective reports. The Board acknowledges that in the September 2015 statement, the Veteran reported that at the VA examination in May 2015, the doctor asked if he was in combat, and when he told him no, he leaned back in his chair and raised his glasses and laughed and said he was not going to get any VA money. However, this behavior does not render the May 2015 VA cardiac examination inadequate, because, as noted above, the VA examiner provided sufficient information for the Board to render an informed decision regarding service connection for a heart disability.

The May 2015 VA examiner considered the Veteran’s in-service treatment for chest pain and the Veteran’s history of heart disability, diagnosed as coronary artery disease, which the VA examiner noted as beginning in the late 2000s. The May 2015 VA examiner opined that the Veteran’s current heart disability is not related to service, and stated that “chest pain episode nonexertional and diagnosis of costochondritis at age 22 is less likely than not related to Coronary Artery Disease diagnosed in 2008 when claimant was in his fifties.”

On review, and in light of the above discussed service treatment records and the May 2015 VA examination, the preponderance of the evidence is against a finding that the Veteran’s coronary artery disease is etiologically related to service. Because the Veteran has not reported continuing chest symptoms since his single in-service episode of chest pain, and in light of the May 2015 VA examination, the presumption of service connection for a chronic heart disability does not apply. A relationship between the Veteran’s current heart disorder and service is not shown; therefore, service connection is not warranted for the same. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); 38 C.F.R. § 3.303.

Because the preponderance of the evidence is against the Veteran’s claim for a heart disability on appeal, the benefit of the doubt provision does not apply, and this claim must be denied. See 38 U.S.C.A. § 5107.

ORDER

Entitlement to a compensable disability rating prior to June 2, 2015, and to a disability rating greater than 20 percent from June 2, 2015, for bilateral hearing loss, is denied.

Entitlement to service connection for a heart disability is denied.

REMAND

Bilateral Hand Disability:

The Veteran contends that he has a bilateral hand disability that is related to service, specifically to an in-service injury to his right hand in 1974. See service treatment records (showing that the Veteran had metal fragments removed from his right hand in April or May 1974); June 1975 separation examination (showing right hand scar noted on separation from the Veteran’s first period of active duty); January 2014 Board hearing transcript (Veteran testified that he dropped a steel plate on his hand and had to get stitches).

The Veteran contends that he has bilateral hand arthritis. The Board notes that there is a June 2006 private treatment record from Dr. W., in which the Veteran was diagnosed with right knee and bilateral hands osteoarthritis. However, there is no indication that radiological testing was performed on the right knee and bilateral hands to confirm these diagnoses. Though the Veteran is noted as having an MRI of the back, no other radiological study was noted. On the other hand, the May 2015 VA examiner and the December 2012 VA examiner each obtained x-rays that reflected normal results and no arthritis, and both examiners diagnosed strain.

The Veteran alternatively contends that he has a bilateral hand disability that is related to overuse in service. The May 2015 VA examiner opined that the Veteran’s bilateral hand strain is not related to service, because “records are insufficient to service connect current [bilateral] hand pathology to any in service event and no ongoing [bilateral] hand issues noted in records reviewed.” The May 2015 VA examiner did not consider the Veteran’s reports of in-service upper extremity symptoms nor reports of continuing issues since service, nor did the May 2015 VA examiner consider the objective evidence of right hand symptoms in service, which are described below.

The Board acknowledges that there is an April 1981 report of medical history on separation from service, in which the in-service provider noted that the Veteran had a right elbow fracture, a right forearm fracture, and a locking sensation at the right elbow. Notably, the locking sensation at the elbow is a symptom reported by the Veteran that is not shown in the remaining service treatment records. Further, there is no supporting evidence in the service treatment records of a right elbow fracture or a right forearm fracture. Then, in the April 1981 report of medical examination, after physical examination of the Veteran, the same in-service provider noted that the Veteran has decreased range of motion of the right third finger. The provider did not confirm any objective right elbow or right forearm disability. Further, the remaining evidence of record, to include the Veteran’s Board hearing testimony, shows no report by the Veteran as to any right forearm or right elbow fracture in service. Based on this evidence, the Board finds that the provider’s notations in this report of medical history of a right elbow fracture and right forearm fracture were based only on the Veteran’s subjective reports. Notably, the Veteran’s reports in the April 1981 report of medical history as to a right elbow fracture and a right forearm fracture in service are inconsistent with the remaining evidence of record. Therefore, the evidence is not sufficient at this time to obtain a VA medical opinion as to whether the Veteran’s current right hand disability is related to the Veteran’s April 1981 report of right elbow and forearm fracture.

However, the Veteran’s April 1981 report of locking right elbow and the objective evidence of decreased range of motion of the right third finger on separation from service should be considered by the VA examiner when determining the etiology of the Veteran’s current right hand disability. Further, the Veteran’s reports of symptoms beginning in service and continuing since service should be considered by the VA examiner. At the Board hearing, he testified as to how he built boxes in a construction shop while in service, and that’s when he started noticing trouble with his hands. He described how his hands started being tight, then his joints started hurting, and he had knots and twisting of the fingers, and that his pain continued after service. Also, in the May 2015 VA examination, the Veteran reported hand pain that started in service. Also, in a May 2012 private independent medical evaluation by Dr. E., the Veteran stated that aa few months after basic training, he began having tingling down his arms, especially into his middle, ring, and little fingers of both hands, with shooting pain and numbness and tingling into his arms.

The Board notes that though the May 2015 VA examiner noted that the record indicated a history of possible carpal tunnel syndrome. However, it remains unclear whether the Veteran currently has a neurological disorder of the bilateral hands.

The above facts are relevant to the claim and raise additional medical questions. The Veteran should be afforded a new VA examination to determine the nature and etiology of a right hand disability and a left hand disability.

Bilateral Ankle Disability and Bilateral Knee Disability:

The Veteran contends that he has a bilateral knee disability and bilateral ankle disability that is related to physical activity such as running in service. Like with the bilateral hand disability, no arthritis has been confirmed per x-ray study of either knee or either ankle. The Veteran was last afforded VA examination in May 2015, in which the VA examiner opined that the Veteran’s bilateral knee strain and bilateral ankle strain are not related to service, in that “records are insufficient to service connect current [bilateral knee and bilateral ankle] pathology to any in service event and no ongoing [knee or ankle] issues noted in records reviewed.” The May 2015 VA examiner did not reconcile these opinions with the Veteran’s reports of in-service knee and ankle symptoms or his reports of continuing issues since service. Further, though the May 2015 VA examiner diagnosed the Veteran with bilateral plantar calcaneal spurs per x-ray study, he provided no opinion as to whether these are related to service. The Veteran should be afforded a new VA examination to determine the nature and etiology of a bilateral ankle disability and bilateral knee disability.

Accordingly, the case is REMANDED for the following action:

1. Please schedule the Veteran for a VA examination with a physician who did not perform the May 2015 examination to determine the nature and etiology of a right hand disability and a left hand disability. Make the claims file available to the examiner for review of the case. The examiner should review all records associated with the claims file and should note that this case review took place.

a. After performing all necessary testing, the examiner is asked to please opine as the nature and diagnosis(es) of the Veteran’s right hand symptoms (to include neurological symptoms) and left hand symptoms. The examiner’s attention is invited to the following:

(i) the diagnoses of bilateral hand strain.

(ii) the Veteran’s testimony at the Board hearing as to his continuing symptoms of tight bilateral hands, hand joint pain, “knots” and “twisting” of the fingers since service, and the Veteran’s reports in the May 2012 private independent medical evaluation by Dr. E., that he has tingling down his arms, especially into his middle, ring, and little fingers of both hands, with shooting pain and numbness and tingling into his arms.

b. Please provide an opinion as to whether it is at least as likely as not (probability of 50 percent) that each above diagnosed right hand disability and/or left hand disability manifested in service or is otherwise etiologically related to service. The examiner’s attention is invited to the following:

(i) The Veteran’s in-service injury to his right hand in 1974. See service treatment records (showing that the Veteran had metal fragments removed from his right hand in April or May 1974); January 2014 Board hearing transcript (Veteran testified that he dropped a steel plate on his hand and had to get stitches).

(ii) The Veteran’s testimony at the Board hearing as to how he built boxes in a construction shop while in service, and that’s when he started noticing trouble with his hands. He described how his hands started being tight, then his joints started hurting, and he had knots and twisting of the fingers, and that his pain continued after service.

(iii) The Veteran’s report in a May 2012 private independent medical evaluation by Dr. E., that a few months after basic training, he began having tingling down his arms, especially into his middle, ring, and little fingers of both hands, with shooting pain and numbness and tingling into his arms, and that these symptoms have continued since service.

(iv) The service treatment records showing the Veteran’s September 1972 report of pain in the right elbow and his April 1981 report of locking right elbow.

(v) The April 1981 separation examination noting objective evidence of decreased range of motion of the right third finger.

(vi) The May 2012 private independent medical evaluation by Dr. E.

The examiner is asked to explain the reasons behind any opinions expressed and conclusions reached. The examiner is reminded that the term “as likely as not” does not mean “within the realm of medical possibility,” but rather that the evidence of record is so evenly divided that, in the examiner’s expert opinion, it is as medically sound to find in favor of the proposition as it is to find against it.

Please note that the lack of documented treatment in service, while probative, cannot serve as the sole basis for a negative finding. The Veteran’s lay contentions (e.g., regarding his in-service symptoms and continuing symptoms since service) must be considered and weighed in making the determination as to whether a nexus exists between service and the currently diagnosed disability.

2. Please schedule the Veteran for a VA examination with a physician who did not perform the May 2015 examination to determine the nature and etiology of a bilateral knee disability and a bilateral ankle disability. Make the claims file available to the examiner for review of the case. The examiner should review all records associated with the claims file and should note that this case review took place.

c. After performing all necessary testing, the examiner is asked to please opine as the nature and diagnosis(es) of the Veteran’s bilateral ankle and bilateral knee disabilities. Attention is invited to the diagnoses of bilateral knee strain, bilateral ankle strain, and bilateral plantar calcaneal spurs.

d. Please provide an opinion as to whether it is at least as likely as not (probability of 50 percent) that each above diagnosed knee and/or ankle disability manifested in service or is otherwise etiologically related to service. The examiner’s attention is invited to the following:

(i) The Veteran’s testimony at the Board hearing that that when doing the physical training test and running and other physical activities in service, his knees and ankles would swell up and pop and take 2-3 days to go down.

(ii) The May 2012 private independent medical evaluation by Dr. E.

(iii) The April 2016 private evaluation by Dr. E., in which he stated that the Veteran likely injured his knees in basic training, in that he strained the muscles ligaments and tendons in his knees, which caused continued deterioration of the cartilage and soft tissues in his knees, which is causing instability of the knees causing repetitive strains of the ligaments in both knees.

The examiner is asked to explain the reasons behind any opinions expressed and conclusions reached. The examiner is reminded that the term “as likely as not” does not mean “within the realm of medical possibility,” but rather that the evidence of record is so evenly divided that, in the examiner’s expert opinion, it is as medically sound to find in favor of the proposition as it is to find against it.

Please note that the lack of documented treatment in service, while probative, cannot serve as the sole basis for a negative finding. The Veteran’s lay contentions (e.g., regarding his in-service symptoms and any reports of continuing symptoms since service) must be considered and weighed in making the determination as to whether a nexus exists between service and the currently diagnosed disability.

3. Thereafter, readjudicate the claims on appeal and furnish the Veteran and his attorney a supplemental statement of the case if a matter is not resolved to the Veteran’s satisfaction. Provide an opportunity to respond before the case is returned to the Board.

The appellant has the right to submit additional evidence and argument on the matters 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).

______________________________________________
MICHAEL A. PAPPAS
Veterans Law Judge, Board of Veterans’ Appeals

Department of Veterans Affairs

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