Citation Nr: 18160519
Decision Date: 12/27/18	Archive Date: 12/26/18

DOCKET NO. 11-22 163
DATE:	December 27, 2018
ORDER
Entitlement to a rating of 30 percent, but no higher, for post-concussion headaches, prior to October 23, 2017, is granted.
Entitlement to a rating higher than 30 percent for post-concussion headaches, from October 23, 2017 to the present, is denied.
Entitlement to a 10 percent rating, but no higher, for L5 spondylolysis with L5-S1 spondylolisthesis, prior to October 23, 2017, is granted.
REMANDED
Entitlement to service connection for a cervical spine disorder.
Entitlement to service connection for a left hip disorder.
Entitlement to service connection for a right hip disorder.
Entitlement to service connection for a left knee disorder.
Entitlement to service connection for a right knee disorder.
Entitlement to service connection for a bilateral foot disorder.
Entitlement to service connection for gastroesophageal reflux disease (GERD).
Entitlement to service connection for neuropathy or radiculopathy of the upper left extremity.
Entitlement to service connection for neuropathy or radiculopathy of the upper right extremity.
Entitlement to a rating higher than 10 percent for L5 spondylolysis with L5-S1 spondylolisthesis from October 23, 2017 to the present.
Entitlement to a higher rating for traumatic brain injury (TBI), currently rated as noncompensable prior to October 17, 2017, and 10 percent thereafter.
Entitlement to a higher rating for posttraumatic stress disorder (PTSD), currently rated at 30 percent prior to January 27, 2015, and 50 percent thereafter.
FINDINGS OF FACT
1. Throughout the period on appeal, the Veteran’s post-concussion headaches were productive of functional impairment most closely approximating characteristic prostrating attacks occurring on an average of once a month; post-concussion headaches were not productive of severe economic inadaptability.   
2. Prior to October 23, 2017, the Veteran’s L5 spondylolysis with L5-S1 spondylolisthesis is productive of functional impairment most closely approximating painful motion with no evidence of limitation of range of motion to less than 60 degrees of forward flexion or less than 120 degrees of combined range of motion, and no evidence of muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour.    
CONCLUSIONS OF LAW
1. The criteria for a rating of 30 percent, but no higher, for the Veteran’s service-connected post-concussion headaches have been met prior to October 23, 2017.  38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.159, 3.321, 4.1, 4.7, 4.124a, Diagnostic Code (DC) 8100.
2.  The criteria for a rating higher than 30 percent for the Veteran’s service-connected post-concussion headaches have not been met from October 23, 2017 to the present.  U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.159, 3.321, 4.1, 4.7, 4.124a, DC 8100.
3. The criteria for a rating of 10 percent, but no higher, for the Veteran’s service-connected L5 spondylolysis with L5-S1 spondylolisthesis have been met prior to October 23, 2017.  38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.159, 3.321, 4.59, 4.71a, DC 5242-5237.  
REASONS AND BASES FOR FINDINGS AND CONCLUSIONS
The Veteran served on active duty from May 2006 to May 2010.
These matters come before the Board of Veterans’ Appeals (Board) on appeal from February 2011 and August 2011 rating decisions by a Department of Veterans Affairs (VA) Regional Office (RO).  In February 2013, the Veteran testified before a Veterans Law Judge (VLJ) who is no longer employed by the Board.  The Board sent the Veteran a letter in December 2016 asking if he would like another hearing as the VLJ who held his February 2013 hearing is no longer available to decide his appeal and informing the Veteran that if he did not respond within 30 days, the Board would assume that he did not want another hearing.  To date, the Veteran has not responded.
These matters were previously remanded by the Board for additional development in October 2014 and April 2017.  A November 2017 rating decision assigned a 30 percent rating for post-concussion headaches effective October 23, 2017, a 50 percent rating for PTSD effective January 27, 2015, a 10 percent rating for TBI effective October 17, 2017, and a 10 percent rating for the lumbar spine disability effective October 23, 2017.  A June 2018 rating decision granted service connection for a left shoulder disability, and that issue is no longer on appeal.
Increased Rating
Disability evaluations are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities found in 38 C.F.R. Part 4.  Disability ratings are intended to compensate impairment in earning capacity due to a service-connected disorder.  38 U.S.C. § 1155.  Pertinent regulations do not require that all cases show all findings specified by the Schedule, but that findings sufficient to identify the disease and the resulting disability and above all, coordination of the rating with impairment of function will be expected in all cases.  38 C.F.R. §4.21; see also Mauerhan v. Principi, 16 Vet. App. 436 (2002).  
Evaluation of a service-connected disorder requires a review of the veteran’s entire medical history regarding that disorder.  38 C.F.R. §§ 4.1, 4.2; Schafrath v. Derwinski, 1 Vet. App. 589 (1991).  When a reasonable doubt arises regarding the degree of disability, such doubt will be resolved in favor of the claimant.  38 C.F.R. § 4.3.  If there is a question as to which evaluation to apply to the veteran’s disability, the higher evaluation 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.  
In all claims for an increased disability rating, VA has a duty to consider the possibility of assigning staged ratings.  See Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007).  Where the evidence contains factual findings that demonstrate distinct time periods in which the service-connected disability exhibited diverse symptoms meeting the criteria for different ratings during the course of the appeal, the assignment of staged ratings is necessary.  
The evaluation of the same disability under various diagnoses is to be avoided.  38 C.F.R. § 4.14.  Both the use of manifestations not resulting from service-connected disease or injury in establishing the service-connected evaluation, and the evaluation of the same manifestation under different diagnoses are to be avoided.  Id.; Esteban v. Brown, 6 Vet. App. 259 (1994).  
1. Entitlement to a rating higher than 10 percent for post-concussion headaches prior to October 23, 2017.
2. Entitlement to a rating higher than 30 percent for post-concussion headaches from October 23, 2017.
The Veteran contends that his post-concussion headaches should be assigned a rating higher than 10 percent prior to October 23, 2017 and higher than 30 percent thereafter because his headaches cause him to miss work.
The Veteran’s post-concussion headaches have been rated under DC 8100.  According to DC 8100, a 10 percent evaluation is awarded for headaches with characteristic prostrating attacks averaging one in 2 months; a 30 percent evaluation is warranted for headaches with characteristic prostrating attacks occurring on an average once a month over the last several months; and the maximum 50 percent evaluation is warranted for headaches with very frequent completely prostrating and prolonged attacks productive of severe economic inadaptability.  38 C.F.R. § 4.124a, DC 8100.  Neither the rating criteria, nor the Court, has defined “prostrating.”  Cf. Fenderson, 12 Vet. App. at 126-127 (quoting Diagnostic Code 8100 verbatim but not specifically addressing the definition of a prostrating attack).  By way of reference, in DORLAND'S ILLUSTRATED MEDICAL DICTIONARY 1531 (32nd Ed. 2012), “prostration” is defined as “extreme exhaustion or powerlessness.”  The rating criteria also do not define “severe economic inadaptability.”  However, nothing in Diagnostic Code 8100 requires that the Veteran be completely unable to work in order to qualify for a 50 percent rating.  Pierce v. Principi, 18 Vet. App. 440 (2004). 
The Board finds that, allowing the Veteran the benefit of the doubt, his headaches are productive of functional impairment that is most comparable to characteristic prostrating attacks occurring on an average once a month throughout the period on appeal. 
A January 2011 VA examination found that the Veteran’s headaches can be somewhat painful and distracting, but not severely prostrating or incapacitating.  Similarly, a March 2011 VA treatment note described the Veteran’s headaches as fairly mild.  However, in May 2011, the Veteran described his headache as mostly moderate, with one severe headache per month.  A February 2013 vocational rehabilitation note found that the Veteran reported suffering from migraine headaches since incurring his TBI, which require him to take medication and remain in a dark, quiet room until impairment subsides.  Although the notation did not state how often these prostrating attacks occur, the Board will resolve doubt in favor of the Veteran to find that it is at least as likely as not that the one severe headache per month described in March 2011 is comparable to the prostrating attack described in February 2013.  Such an interpretation is consistent with the Veteran’s February 2013 description of these headaches as occurring since his TBI, rather than describing a new increase in severity.  In the February 2013 hearing, the Veteran testified that he has prostrating headaches 7-10 times per month, but that they only require him to lie down for 15-30 minutes before he can go back to what he is doing.  This hearing testimony also supports a finding that the Veteran’s prostrating headaches occur on average at least once a month.  Therefore, the Board finds that a rating of 30 percent is warranted for the period prior to October 23, 2017.
However, a rating of 50 percent is not warranted at any time during the period on appeal because, although the February 2013 hearing testimony indicates that the prostrating headaches occur frequently, the record does not reflect that they are prolonged, as is required for a 50 percent rating.  On the contrary, the Veteran testified that the prostrating headaches only require that he lay down for 15-30 minutes before he can go back to what he was doing.  
The Veteran also testified that his headaches cause him to miss work.  However, missing work is not necessarily comparable to severe economic inadaptability.  Throughout the period on appeal, the Veteran has been employed and pursued a secondary degree.  A January 2011 VA psychiatric examination noted that the Veteran reported having academic difficulty due to problems with school attendance in 2010, prior to the period on appeal, but that he stated he had improved and now had very good attendance.  Moreover, the Veteran did not attribute this poor attendance to his headaches.  Although the Veteran has missed several VA appointments, a November 2012 notation in the Veteran’s records indicates that he missed these appointments due to being busy.  A March 2012 note attributed various missed appointments due to factors that are unrelated to the Veteran’s headaches.  The record does not reflect that the Veteran has suffered negative consequences such as receiving a significant penalty at work or school due to absences because of his headaches during the period on appeal.  Although the Veteran reports missing work due to his headaches, he appears to have found a way to manage or adapt while continuing to pursue both education and employment.  For this reason, the Board cannot find that the Veteran’s headaches have resulted in severe economic inadaptability for the period prior to October 23, 2017.  For these reasons, a rating higher than 30 percent is not warranted prior to that date.
As for the period from October 23, 2017 to the present, an October 2017 VA examination found that the Veteran’s headaches result in characteristic prostrating attacks once every month.  The examiner explicitly found that the Veteran does not have very prostrating and prolonged attacks of migraines/non-migraine pain productive of severe economic inadaptability.  The examiner noted that the Veteran initially reported missing work 2-3 days a month due to back and hip, then later mentioned 2-3 incapacitating headaches a month.  The examiner opined that this assertion cannot be verified or clearly documented or supported.  The Veteran’s record does not establish that he has faced penalties in work or school due to absences caused by his headaches since October 23, 2017.  Thus, the Board finds that the post-concussion headaches do not cause severe economic inadaptability for the period from October 23, 2017 to the present, and a rating higher than 30 percent is denied. 
Thus, for the entire period on appeal, the Board cannot assign a rating higher than 30 percent because the record does not reflect that the Veteran’s prostrating attacks are prolonged or productive of severe economic inadaptability.  Therefore, the Board finds that the Veteran’s headaches are most comparable to characteristic prostrating attacks occurring on an average once a month and assigns a rating of 30 percent but no higher throughout the appeal period.
3. Entitlement to a compensable rating for L5 spondylolysis with L5-S1 spondylolisthesis prior to October 23, 2017
The Veteran asserts that his lumbar spine symptoms warrant a compensable rating.
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 of these elements.  In evaluating disabilities of the musculoskeletal system, it is necessary to consider, along with the schedular criteria, functional loss due to flare-ups of pain, fatigability, incoordination, pain on movement, and weakness.  DeLuca v. Brown, 8 Vet. App. 202 (1995).  The functional loss may be due to absence of part, or all, of the necessary bones, joints and muscles, or associated innervation, or other 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.  Pain on movement, swelling, deformity or atrophy of disuse as well as instability of station, disturbance of locomotion, interference with sitting, standing and weight bearing are relevant considerations for determination of joint disabilities.  38 C.F.R. § 4.45.  Painful, unstable, or malaligned joints, due to healed injury, are entitled to at least the minimal compensable rating for the joint.  38 C.F.R. § 4.59; Burton v. Shinseki, 25 Vet. App. 1 (2011) (holding that 38 C.F.R. § 4.59 applies to disabilities other than arthritis).  However, painful motion alone is not a functional loss without some restriction of the normal working movements of the body.  Mitchell v. Shinseki, 25 Vet. App. 32, 43 (2011).
Under the General Rating Formula for Diseases and Injuries of the Spine, ratings are assigned as follows:
A 10 percent rating is assigned for forward flexion of the thoracolumbar spine greater than 60 degrees but not greater than 85 degrees; or, combined range of motion of the thoracolumbar spine greater than 120 degrees but not greater than 235 degrees; or, muscle spasm, guarding, or localized tenderness not resulting in abnormal gait or abnormal spinal contour; or, vertebral body fracture with loss of 50 percent or more of the height.
A 20 percent rating is assigned for forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees; or, the combined range of motion of the thoracolumbar spine not greater than 120 degrees; or, muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis.
A 40 percent rating is assigned for forward flexion of the thoracolumbar spine 30 degrees or less; or, favorable ankylosis of the entire thoracolumbar spine.
A 50 percent rating is assigned for unfavorable ankylosis of the entire thoracolumbar spine.
A 100 percent rating is assigned for unfavorable ankylosis of the entire spine.  
Note (1) to the rating formula specifies that any associated objective neurologic abnormalities, including, but not limited to, bowel or bladder impairment, should be separately evaluated under an appropriate diagnostic code.  
Note (2): (See also Plate V).  For VA compensation purposes, normal forward flexion of the thoracolumbar spine is zero to 90 degrees, extension is zero to 30 degrees, left and right lateral flexion are zero to 30 degrees, and left and right lateral rotation are zero to 30 degrees.  The combined range of motion refers to the sum of the range of forward flexion, extension, left and right lateral flexion, and left and right rotation.  The normal combined range of motion of the thoracolumbar spine is 240 degrees.  The normal ranges of motion for each component of spinal motion provided in this note are the maximum that can be used for calculation of the combined range of motion.  
Note (3): In exceptional cases, an examiner may state that because of age, body habitus, neurologic disease, or other factors not the result of disease or injury of the spine, the range of motion of the spine in a particular individual should be considered normal for that individual, even though it does not conform to the normal range of motion stated in Note (2) provided that the examiner supplies an explanation, the examiner’s assessment that the range of motion is normal for that individual will be accepted.  
Note (4): Round each range of motion measurement to the nearest five degrees.  
Note (5): For VA compensation purposes, unfavorable ankylosis is a condition in which the entire cervical spine, the entire thoracolumbar spine, or the entire spine is fixed in flexion or extension, and the ankylosis results in one or more of the following: difficulty walking because of a limited line of vision; restricted opening of the mouth and chewing; breathing limited to diaphragmatic respiration; gastrointestinal symptoms due to pressure of the costal margin on the abdomen; dyspnea or dysphagia; atlantoaxial or cervical subluxation or dislocation; or neurologic symptoms due to nerve root stretching. Fixation of a spinal segment in neutral position (zero degrees) always represents favorable ankylosis.  
Note (6): Separately evaluate disability of the thoracolumbar and cervical spine segments, except when there is unfavorable ankylosis of both segments, which will be rated as a single disability.  
Intervertebral disc syndrome (preoperatively or postoperatively) may be evaluated either under the General Rating Formula for Diseases and Injuries of the Spine or under the Formula for Rating Intervertebral Disc Syndrome (IVDS) Based on Incapacitating Episodes, whichever method results in the higher evaluation when all disabilities are combined.  See 38 C.F.R. § 4.25 (combined ratings table).  
The Formula for Rating IVDS Based on Incapacitating Episodes provides that incapacitating episodes having a total duration of at least 4 weeks but less than 6 weeks during the past 12 months warrant a 40 percent rating.  A 60 percent rating is warranted when there are incapacitating episodes having a total duration of at least 6 weeks during the past 12 months.  38 C.F.R. § 4.71a, Diagnostic Code (DC) 5235-5243.  
The Veteran reported back pain in a May 2011 VA treatment note.  A July 2011 VA examination found that the Veteran had full range of motion.  The examiner found no spasm, atrophy, or guarding.  The Veteran had normal posture and gait.  However, the Veteran did report pain.  A November 2012 VA treatment note also recorded a report of low back pain.
The record does not reflect any limitation of motion, muscle spasm, or guarding, or loss of 50 percent or more of vertebral body height.  Although the Veteran is not entitled to a compensable rating based on limitation of motion, he is entitled to a compensable rating based upon painful motion.  Painful, unstable, or malaligned joints, due to healed injury, are entitled to at least the minimal compensable rating for the joint.  38 C.F.R. § 4.59; Burton v. Shinseki, 25 Vet. App. 1 (2011) (holding that 38 C.F.R. § 4.59 applies to disabilities other than arthritis).  As such, the Veteran’s painful spine entitles him to the minimal 10 percent compensable rating.  
The record does not indicate that the Veteran’s painful motion has served as the functional equivalent of limitation of motion.  Therefore, the Veteran is not entitled to a rating higher than 10 percent.  DeLuca, 8 Vet. App. at 206; Mitchell v. Shinseki, 25 Vet. App. 32, 43 (holding that painful motion alone is not functional loss).  Similarly, there is no indication of muscle spasm or guarding sever enough to result in an abnormal gait or abnormal spinal contour.  Therefore, the Board grants entitlement to a rating of 10 percent but no higher prior to October 23, 2017.
Neither the Veteran nor his representative has raised any other issue, nor have any other issues been reasonably raised by the record.  See Doucette v. Shulkin, 28 Vet. App. 366, 369-70 (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).
REASONS FOR REMAND
1. Entitlement to service connection for a cervical spine disorder.
The October 2017 VA examination provided a negative nexus opinion and found that the Veteran’s cervical spine disorder was of unknown etiology, but likely to be mechanical in origin.  The examiner also referenced “wear and tear.”  The examiner did not consider whether the mechanical etiology he referenced might be the in-service events of a March 2007 motor vehicle accident resulting in a sore neck, exposure to an improvised explosive device (IED) blast in August 2009, or the cumulative effects of wearing heavy body armor in service.  Upon remand, a supplemental opinion should be obtained that addresses these theories of entitlement.  
2. Entitlement to service connection for a left hip disorder.
3. Entitlement to service connection for a right hip disorder.
The October 2017 examination determined that the Veteran’s hip disabilities were likely of mechanical origin, and provided a negative nexus opinion.  The examiner did not address whether the in-service events of exposure to an IED blast and the cumulative effects of wearing heavy body armor in service are the cause of the Veteran’s current hip disabilities.  Upon remand, a supplemental opinion should be obtained that addresses these theories of entitlement.  This supplemental opinion should also consider the Veteran’s competent assertion that he has experienced bilateral hip pain since service.
4. Entitlement to service connection for a left knee disorder.
5. Entitlement to service connection for a right knee disorder.
The October 2017 examination found that the Veteran’s bilateral knee disorder has a known etiology, but declined to state what that etiology was aside from an assertion that it is likely of mechanical origin, rather than environmental hazards.  Upon remand, a supplemental opinion should be obtained that addresses whether the bilateral knee disorder is due to exposure to an IED blast and the cumulative effects of wearing heavy body armor in service.  The examiner should also discuss the Veteran’s competent assertion that he has experienced bilateral knee strain since service.
6. Entitlement to service connection for a bilateral foot disorder.
The October 2017 examiner found that the Veteran’s bilateral foot disorder was a known diagnosis with a known etiology, yet simultaneously found that the Veteran does not appear to have a bilateral structural foot disorder.  Upon remand, a new examination should be conducted that determines if the Veteran has a diagnoseable foot disorder and determines whether it is due to service or, if unable to attribute the Veteran’s foot pain to a diagnosis, considers whether it is a symptom of an undiagnosed illness or medically unexplained chronic multisymptom illness.
7. Entitlement to service connection for GERD.
The October 2017 examiner included GERD among the musculoskeletal disabilities in asserting that the Veteran’s disabilities are all of mechanical origin.  The examiner also referred to GERD as a common structural issue. It is unclear to the Board how GERD, a gastrointestinal disorder, is mechanical in origin.  Additionally, the examiner found that GERD is likely due to natural progression of disease with age, and is not likely to be due to service in Afghanistan.  However, the Veteran is under 35 years of age.  The examiner has not provided adequate rationale to support the unusual contention that such a young individual would commonly develop GERD as part of the natural progression of age.  Upon remand, a supplemental opinion should be obtained that provides a sufficient rationale.
8. Entitlement to service connection for neuropathy or radiculopathy of the upper left extremity.
9. Entitlement to service connection for neuropathy or radiculopathy of the upper right extremity.
The October 2017 VA examination found that the Veteran has no diagnosis of radiculopathy, and stated that he has a diagnosable disorder that is yet to be diagnosed.  If the Veteran’s numbness of the upper extremities is attributable to a known diagnosis, the examiner should clearly state the diagnosis.  It is not sufficient to simply state that the Veteran suffers from a diagnosable disorder that is yet to be diagnosed.  Upon remand, a new examination should be conducted.
10. Entitlement to a rating for L5 spondylolysis with L5-S1 spondylolisthesis that is higher than 10 percent from October 23, 2017 to the present.
While the record contains a contemporaneous VA examination regarding the Veteran’s lumbar spine disability, the examination does not comply with the requirements in Sharp v. Shulkin, 29 Vet. App. 26, 34-36 (2017).  The examiner did not attempt to elicit relevant information regarding the description of the Veteran’s flare-ups and any additional functional loss suffered during flare-ups.  
The record should also be updated to include VA treatment records compiled since January 2, 2018.
11. Entitlement to a higher rating for traumatic brain injury (TBI), currently rated as noncompensable prior to October 17, 2017, and 10 percent thereafter.
12. Entitlement to a higher rating for posttraumatic stress disorder (PTSD), currently rated at 30 percent prior to January 27, 2015, and 50 percent thereafter.
The October 2017 VA examination as to TBI is not adequate.  The examiner was a “C&P Certified Physician Examiner,” rather than a neurologist, and the examiner did not provide any response for most of the facets of TBI-related cognitive impairment and subjective symptoms of TBI.  It is unclear whether this lack of response is intended to indicate normal functioning, or if the examination was simply not completed.  This confusion is particularly pronounced because an October 2017 VA psychiatric examination found that the Veteran did demonstrate some TBI-related cognitive impairment in a facet for which the TBI examination provided no response.  Additionally, there is contradictory information in the TBI and PTSD examination concerning which symptoms are attributed to the TBI and which to the PTSD.  Upon remand, new examinations should be conducted for both TBI and PTSD to determine whether there are overlapping symptoms, or whether it is possible to distinguish the Veteran’s TBI symptoms from his PTSD symptoms.
The matters are REMANDED for the following action:
1. Obtain the Veteran’s VA treatment records for the period from January 2018 to the present.
2. Obtain an addendum opinion from an appropriate clinician who has not provided an opinion on this matter before as to the following:
(a.)  Is the Veteran’s cervical spine disorder at least as likely as not (50 percent or greater probability) caused by or otherwise related to service, to include a March 2007 motor vehicle accident resulting in a sore neck, August 2009 exposure to IED blasts, and the cumulative effects of wearing heavy body armor during service?
(b.) If the cervical spine disorder is not caused by service, is it at least at least as likely as not (50 percent or greater probability) (1) proximately due to the service-connected TBI, or (2) aggravated beyond its natural progression by the service-connected TBI?
Any opinion offered must be supported by a complete rationale.
3. Obtain an addendum opinion from an appropriate clinician who has not provided an opinion on this matter before as to the following:
(a.) Is the Veteran’s bilateral hip disorder at least as likely as not (50 percent or greater probability) related to service, to include August 2009 exposure to IED blasts and the cumulative effects of wearing heavy body armor during service?  The examiner is to discuss the Veteran’s contention in the February 2013 hearing and the October 2017 examination that he has had problems with his hips since service.
(b.) If the Veteran’s bilateral hip disorder is not caused by service, is it at least as likely as not (50 percent or greater probability) (1) proximately due to the service-connected lumbar spine disability, or (2) aggravated beyond its natural progression by the service-connected lumbar spine disability?
Any opinion offered must be supported by a complete rationale.
4.  Obtain an addendum opinion from an appropriate clinician who has not provided an opinion on this matter before as to the following:
(a.) Is the Veteran’s bilateral knee disorder at least as likely as not (50 percent or greater probability) related to service, to include August 2009 exposure to IED blasts, and the cumulative effects of wearing heavy body armor during service? The examiner is to discuss the Veteran’s contention in the October 2017 examination that he has had problems with his knees since service.
(b.) If the examiner finds that the Veteran’s bilateral knee disorder is not caused by service, is it at least as likely as not (50 percent or greater probability) (1) proximately due to the service-connected lumbar spine disability, or (2) aggravated beyond its natural progression by the service-connected lumbar spine disability?
Any opinion offered must be supported by a complete rationale.
5.  Obtain an addendum opinion from an appropriate clinician who has not provided an opinion on this matter before as to the following:
(a.)  Is the Veteran’s GERD at least as likely as not (50 percent or greater probability) related to service, to include environmental exposures during service in Kuwait and Afghanistan and a July 2006 report of viral gastroenteritis?  
(b.) If the Veteran’s GERD is not caused by service, is it at least as likely as not (50 percent or greater probability) (1) proximately due to the service-connected PTSD, or (2) aggravated beyond its natural progression by the service-connected PTSD?
The opinion must be supported by a complete rationale.    If the clinician believes that the Veteran’s GERD is the natural result of aging, the clinician must explain how he or she has come to this conclusion considering that the Veteran is under 35 years of age.
6. Schedule the Veteran for an examination by an appropriate clinician who has not provided an opinion on this matter before to determine the nature and etiology of any foot disorder.  
(a.) For any foot disorder diagnosed, the examiner must provide an opinion as to whether it is at least as likely as not (50 percent or greater probability) related to an in-service injury, event, or disease, to include August 2009 exposure to IED blasts, and the cumulative effects of wearing heavy body armor during service.
(b.) If the examiner finds that the Veteran’s foot disorder is not caused by service, he or she must provide an opinion as to whether it is at least as likely as not (50 percent or greater probability) (1) proximately due to the service-connected lumbar spine disability, or (2) aggravated beyond its natural progression by the service-connected lumbar spine disability.
(c.) If the examiner is unable to diagnose the Veteran with any foot disorder, he or she must provide an opinion regarding whether it is at least as likely as not (50 percent or greater probability) that the Veteran’s foot pain represents a medically unexplained chronic multisymptom illness or undiagnosed illness; and whether it is at least as likely as not that the Veteran’s reported symptoms represent a cluster of signs or symptoms typically seen in Gulf War Veterans.  
Each opinion provided must be supported by a complete rationale. 
7. Schedule the Veteran for an examination by an appropriate clinician who has not provided an opinion on this matter before to determine the nature and etiology of any disorder productive of numbness in the upper extremities.	
(a.) For any diagnosed disorder productive of numbness in the upper extremities, the examiner must provide an opinion as to whether it is at least as likely as not (50 percent or greater probability) related to an in-service injury, event, or disease, to include August 2009 exposure to IED blasts, exposure to environmental hazards in Kuwait and Afghanistan, and the cumulative effects of wearing heavy body armor during service.
(b.) If the examiner is unable to diagnose the Veteran with any disorder productive of numbness in the upper extremities, he or she must provide an opinion regarding whether it is at least as likely as not (50 percent or greater probability) that the Veteran’s numbness in the upper extremities represents a medically unexplained chronic multisymptom illness or undiagnosed illness; and whether it is at least as likely as not that the Veteran’s reported symptoms represent a cluster of signs or symptoms typically seen in Gulf War Veterans.
Each opinion provided must be supported by a complete rationale. 
8. Schedule the Veteran for an examination to assess the current severity of his lumbar spine disability.  The examiner must test the Veteran’s active motion, passive motion, and pain with weight-bearing and without weight-bearing.  If any of the requested testing is not feasible, the examiner must explain why it is not feasible.  
The examiner must attempt to elicit information regarding the severity, frequency, and duration of any flare-ups, and the degree of functional loss during flare-ups.  To the extent possible, the examiner should identify any symptoms and functional impairments due to the lumbar spine disability alone and discuss the effect of the Veteran’s lumbar spine disability on any occupational functioning and activities of daily living.  
If it is not possible to provide a specific measurement, or an opinion regarding flare-ups, symptoms, or functional impairment without speculation, even after eliciting specific information from the Veteran regarding the extent of his functional limitation during flare-ups, the examiner must state whether the need to speculate is due to a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts), a deficiency in the record (additional facts are required), or the examiner (does not have the knowledge or training).
9. Schedule the Veteran for an examination by an appropriate clinician to determine the current severity of his service-connected PTSD.  The examiner should provide a full description of the disability and report all signs and symptoms necessary for evaluating the Veteran’s disability under the rating criteria.  
The examiner must attempt to elicit information regarding the severity, frequency, and duration of symptoms.  To the extent possible, the examiner should identify any symptoms and social and occupational impairment due to his PTSD alone.  The examiner should state whether it is possible to distinguish the Veteran’s PTSD symptoms from his TBI symptoms, and if so, he or she must clearly state which symptoms are attributed to each disability.  If it is not possible to distinguish the PTSD symptoms from the TBI symptoms, the examiner must so state.
10.  Schedule the Veteran for an examination by a neurologist to determine the current severity of his service-connected TBI.  All studies, tests, and evaluations deemed necessary by the examiner should be performed.  The examiner should state whether it is possible to distinguish the Veteran’s PTSD symptoms from his TBI symptoms, and if so, he or she must clearly state which symptoms are attributed to each disability.  If it is not possible to distinguish the PTSD symptoms from the TBI symptoms, the examiner must so state.
11. After the above development, and any additionally indicated development, has been completed, readjudicate the issues on appeal.  If any benefit sought is not granted to the Veteran’s satisfaction, send the Veteran and his representative a Supplemental Statement of the Case and provide the appropriate opportunity for them to respond.  If necessary, return the case to the Board for further appellate review.

 
K. M. SCHAEFER
Veterans Law Judge
Board of Veterans’ Appeals
ATTORNEY FOR THE BOARD	A. Budd, Counsel 

For A Complete Guide To VA Disability Claims and to find out more about your potential VA disability case and how to obtain favorable VA Rating Decision! Visit: VA-Claims.org

For More Information on Veterans Disability Compensation Benefits! Visit: DisableVeteran.org ~ A Non-Profit Non Governmental Agency


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