Citation Nr: 1524395 Decision Date: 06/08/15 Archive Date: 06/19/15 DOCKET NO. 10-11 054 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Houston, Texas THE ISSUES 1. Entitlement to service connection for headaches. 2. Entitlement to service connection for right ear disabilities, claimed as external otitis and tinnitus. 3. Entitlement to service connection for left ear disease. 4. Entitlement to service connection for right carpal tunnel syndrome. 5. Entitlement to service connection for right forearm strain. 6. Entitlement to service connection for a neck disability, also claimed as secondary to a service-connected back disability. 7. Entitlement to service connection for sleep apnea, also claimed as secondary to a back disability. 8. Entitlement to an effective date earlier than April 19, 2006, for the award of an increased rating of 20 percent for a back disability (osteoarthritis and degenerative spondylosis with intervertebral disc syndrome (IVDS)). 9. Entitlement to an effective date earlier than June 27, 2007, for the award of a separate compensable rating for right side sciatica (right leg disability). 10. Entitlement to an initial rating higher than 20 percent for left ulnar nerve paresthesias. 11. Entitlement to a rating higher than 20 percent for a back disability. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD T. Adams, Counsel INTRODUCTION The Veteran served on active duty from June 1992 to May 1996. This case comes before the Board of Veterans' Appeals (Board) on appeal from October 2006 and March 2008 rating decisions issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Houston, Texas. In February 2015, the Veteran signed an expedited waiver of the 30 day waiting period. This case was remanded in April 2014 for further development. The claims for entitlement to service connection for headaches, bilateral ear disease, and right forearm strain and the claims for earlier effective dates for the assignment of a 20 percent disability for a back disability and a separate compensable rating for a right leg disability are now ready for disposition. As stated in the April 2014 remand, the issue of entitlement to service connection for left carpal tunnel syndrome has been raised by the record, but has not been adjudicated by the Agency of Original Jurisdiction (AOJ). Therefore, the Board does not have jurisdiction over it, and it is again referred to the AOJ for appropriate action. This appeal was processed using the Virtual VA and Veterans Benefits Management System (VBMS) paperless claims processing systems. Accordingly, any future consideration of this Veteran's case should take into consideration the existence of these electronic records. The issues of entitlement to service connection for a neck disability, sleep apnea, and right carpal tunnel syndrome, and entitlement to a rating higher than 20 percent for a back 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. In an October 23, 2014 statement, which was received prior to the promulgation of a decision in the appeal, the Veteran withdrew his appeal on the issue of entitlement to service connection for headaches. 2. Giving him the benefit of the doubt, the Veteran has right ear disabilities (external otitis and tinnitus) and left ear disease, that are etiologically related to his active duty service. 3. The preponderance of the evidence weighs against a finding that the Veteran has a right forearm disability, claimed as right forearm strain, at this time. 4. The Veteran's dominant hand is his right hand. 5. The most probative evidence indicates that the Veteran's symptoms associated with left ulnar nerve paresthesias approximate moderate incomplete paralysis. 6. Prior to April 19, 2006, it was not factually ascertainable that the Veteran's back disability had increased to warrant a 20 percent rating. 7. In a March 2008 rating decision, the RO granted service connection and assigned a 10 percent rating for right sciatic nerve, effective June 27, 2007. 8. The Veteran did not file a notice of disagreement with the assigned effective date or submit additional relevant evidence within one year one year of the letter notifying him of the March 2008 rating decision; and the effective date became final as to this issue. CONCLUSIONS OF LAW 1. The criteria for withdrawal of the appeal of the issue of entitlement to a service connection for headaches, by the Veteran have been met. 38 U.S.C.A. § 7105(b)(2), (d)(5) (West 2014); 38 C.F.R. § 20.204 (2014). 2. Resolving reasonable doubt in the Veteran's favor, the criteria for service connection right ear disabilities and left ear disease, are met. 38 U.S.C.A. §§ 1110, 1131, 1507 (West 2014); 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.307, 3.309 (2014). 3. Criteria for entitlement to service connection for right forearm strain have not been met. 38 U.S.C.A. §§ 1110, 1111, 1131, 1132, 5103(a), 5103A (West 2014); 38 C.F.R. §§ 3.159, 3.303 (2014). 4. The criteria for an initial disability evaluation higher than 20 percent for left ulnar nerve paresthesias are not met. 38 U.S.C.A. § 1155 (West 2014); 38 C.F.R. § 4.124a, Diagnostic Codes 8516, 8616 (2014). 5. The criteria for an effective date earlier than April 19, 2006, for the assignment of a 20 percent rating for the Veteran's back disability have not been met. 38 U.S.C.A. §§ 5107, 5110 (West 2014); 38 C.F.R. § 3.400 (2014). 6. The criteria for an effective date earlier than June 27, 2007, for the award of a separate compensable rating for a right leg disability under the law have not been met. 38 U.S.C.A. §§ 5107, 5110 (West 2014); 38 C.F.R. § 3.400 (2014); Rudd v. Nicholson, 20 Vet. App. 296 (2006). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Withdrawal Under 38 U.S.C.A. § 7105, the Board may dismiss any appeal which fails to allege specific error of fact or law in the determination being appealed. A substantive appeal may be withdrawn on the record at a hearing or in writing at any time before the Board promulgates a decision. 38 C.F.R. §§ 20.202, 20.204. Withdrawal may be made by the appellant or by his or her authorized representative. 38 C.F.R. § 20.204. Here, in an October 2014 written statement, the Veteran withdrew the claim of entitlement to service connection for headaches. Hence, there remain no allegations of errors of fact or law. II. Service Connection Claims Under the circumstances, the Board finds that VA has complied with all duties to notify and assist required under 38 U.S.C.A. § 5103A and 38 C.F.R. § 3.159. The Board also finds that there has been substantial compliance with its remands. See Dyment v. West, 13 Vet. App. 141 (1999) (a remand is not required under Stegall v. West, 11 Vet. App. 268 (1998) where there is substantial compliance with the Board's remand instructions); Sabonis v. Brown, 6 Vet. App. 426, 430 (1994) (remands which would only result in unnecessarily imposing additional burdens on VA with no benefit flowing to the veteran are to be avoided); see also Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C.A. §§ 1110, 1131 (West 2014). Generally, the evidence must show: (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, 1166-67 (Fed. Cir. 2004); Caluza v. Brown, 7 Vet. App. 498, 505 (1995). In addition, for certain chronic diseases, such as arthritis and organic diseases of the nervous system, a presumption of service connection arises if the disease is manifested to a compensable degree within one year after service. The presumption is rebuttable by probative evidence to the contrary. 38 U.S.C.A. §§ 1101, 1112, 1113 (West 2014); 38 C.F.R. §§ 3.307, 3.309(a) (2014). When chronicity in service is not adequately supported, then a showing of continuity after discharge is required to support a claim for such diseases. 38 C.F.R. § 3.303(b); see Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Finally, 38 U.S.C.A. § 1154(a) requires that VA give 'due consideration' to 'all pertinent medical and lay evidence' in evaluating a claim for disability or death benefits. Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). Specifically, '[l]ay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional.' Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); see also Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006). The Veteran contends that he has bilateral ear disabilities (external otitis and tinnitus of the right ear and left ear disease) and right arm disabilities, claimed as carpal tunnel syndrome and forearm strain that are related to his service. The Board will address each claim in turn. Bilateral ear disabilities The Veteran contends that his bilateral ear disabilities, claimed as right ear tinnitus and external otitis and left ear disease, are related to chronic ear infections that began during service. The service treatment records (STRs) include a December 1995 clinical note which indicates treatment for and a diagnosis of external otitis in the right ear. The Veteran was advised to follow-up with ENT if not clearly improved Post-service treatment records include a December 1997 private report which indicates a complaint of bilateral ear pain for three days and an assessment of bilateral otitis externa, severe on the left. VA treatment records refer to chronic ear infections, with multiple episodes of care. These include a July 2006 VA treatment records includes a history of chronic ear infections since 1993 with a worsening in 1995. Additional records include a history of intermittent tinnitus since 1993. Evidence in favor of the claims includes an April 2006 VA examination report indicated that the Veteran had middle ear pathology and constant mild bilateral tinnitus. An April 2007 private opinion, Dr. Bash opined that the Veteran's ENT problems are due to his experiences and problems during service. A September 2007 QTC audio indicates complaint of tinnitus for 13 years constant and persistent and bilateral hearing loss. On May 2014 VA examination, the examiner diagnosed a left ear osteoma and opined that it is at least as likely as not due to his service. The record also includes an April 2007 private opinion and May 2014 VA opinion relating the Veteran's "ENT problems" and left ear osteoma to his service and negative June and July 2014 VA medical opinions. However, while the July 2014 VA examiner opined that the Veteran's chronic ear infections and tinnitus were not related to his service, the examiner also opined that it is possible his chronic ear infections led to transient tinnitus and hearing loss, for which he was previously granted service connection. The Board has considered in detail the medical opinions of record. In this regard, the Board finds that no one opinion is any more probative than the other. The opinions are in relative equipoise. See Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990) (held that an appellant need only demonstrate that there is an "approximate balance of positive and negative evidence" in order to prevail.). Therefore, resolving all doubt in favor to the Veteran, the Board finds that the evidence supports a nexus between the Veteran's current bilateral ear disabilities and his military service. As all elements of service connection have been satisfied, service connection for bilateral ear disabilities is granted. See 38 U.S.C.A. § 1131 (West 2014); 38 C.F.R. § 3.303(d) (2014). The nature and extent of these disabilities caused by service is not currently before the Board. Right forearm strain The Veteran contends that he currently has right forearm strain that is related to his service. Specifically, he contends that he suffered an injury to his right forearm as a result of a fall down a ladder during service. The STRs include clinical notes and reports dated in March 1995 which reflect treatment for injuries sustained to the forearms during a fall from the top of a ladder in the supply room. He complained of bilateral forearm pain. Examination of the upper extremities indicated possible pain to the forearms just distal to the elbows bilaterally. Full range of motion was noted, but mild pain was elicited with the grasping of objects bilaterally. It was noted that the injury was probably caused when he fell and landed on his arms outstretched behind him. The assessment was muscle strain/contusions to the upper extremities. However, an April 1996 separation examination indicates a normal clinical evaluation of the upper extremities. On September 2006 QTC examination an X-ray of the right arm was negative. The examiner indicated that the Veteran had been suffering from right forearm strain for 10 years due to the March 1995 service-related fall at which time he injured from the top of a ladder injuring both arms. The injuries were muscle strains and contusions just below the elbows and involved the forearm and wrist. However, the examiner opined that with regard to the claimed right forearm strain, there is no diagnosis because there is no pathology to render a diagnosis. The Board also reviewed an April 2007 private medical opinion from Dr. Bash, but the opinion only addresses the Veteran's service-connected left arm disability. On March 2014 VA elbow and forearm conditions Disability Benefits Questionnaire examination, the examiner noted a 2010 diagnosis of "CTS median nerve right." The Board acknowledges that the examiner erred in stating that the Veteran never claimed that he had a forearm disability. It is clear that the Veteran believes that he has a disability of the forearm. However, despite that mistake, there is no currently diagnosed disability of the forearm of record. Moreover, the examiner performed a thorough examination of both the Veteran's right arm, but did not diagnosis any forearm strain. Accordingly, the Board finds that the report of examination is adequate in so far as there is no objective evidence which supports a diagnosis of right forearm strain. While the Veteran was diagnosed with muscle contusions and right arm strain in-service, there is no medical evidence of right forearm strain since service. None of the VA examiners or treating physicians has diagnosed right forearm strain. The existence of a current disability is the cornerstone of a claim for VA disability compensation. See Degmetich v. Brown, 104 F. 3d 1328 (1997) (holding that section 1110 of the statute requires the existence of a present disability for VA compensation purposes); see also Gilpin v. West, 155 F.3d 1353 (Fed. Cir. 1998); Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992); Rabideau v. Derwinski, 2 Vet. App. 141, 144 (1992); Romanowsky v. Shinseki, 26 Vet. App. 289 (2013). While the Board has considered the Veteran's complaints of right forearm pain, including as it relates to the claimed right forearm strain, VA does not generally grant service connection for symptoms alone, without an identified basis for those symptoms. VA needs to identify a 'disability,' not symptoms of a disability, or treatment. Accordingly, service connection cannot be granted for symptoms of a disability, standing alone. The treatment records, overall, provide highly probative evidence against this claim. While the Board understands the Veteran's concerns, he is not medically qualified to diagnose himself with right forearm strain. However, even if the Board assumes that the Veteran does have a currently diagnosed right forearm strain, there is no evidence of an in-service right forearm strain or an opinion relating any current right forearm symptoms to the Veteran's service. Again, for reasons cited above, the service and post-service evidence provide particularly negative evidence against this claim. The Board has taken the Veteran's contention that he has a currently diagnosed right forearm strain disability seriously. The Board has also closely reviewed the medical and lay evidence in the Veteran's claims file and finds no evidence that indicates a current diagnosis of a right forearm strain. Although lay persons are competent to provide opinions on some medical issues, see Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011), the specific issue in this case, the existence of a current right forearm disability, falls outside the realm of common knowledge of a lay person. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007) (lay persons not competent to diagnose cancer). In light of the above discussion, the Board concludes that the preponderance of the evidence is against the claim for service connection for right forearm strain and there is no doubt to be otherwise resolved. As such, the appeal is denied. Increased Rating Claim Disability ratings are determined by the application of the VA's Schedule for Rating Disabilities. Separate diagnostic codes identify the various disabilities, which are based, as far as practically can be determined, on average impairment in earning capacity. 38 U.S.C.A. § 1155 (West 2014); 38 C.F.R. Part 4 (2014). When rating a service-connected disability, the entire history must be borne in mind. Schafrath v. Derwinski, 1 Vet. App. 589 (1991). The Board will also consider entitlement to staged ratings to compensate for times since filing the claim when the disability may have been more severe than at other times during the course of the claim on appeal. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). Where there is a question as to which of two ratings shall be applied, the higher rating will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7 (2014). Reasonable doubt regarding the degree of disability will be resolved in the Veteran's favor. 38 C.F.R. § 4.3 (2014). In view of the number of atypical instances it is not expected, especially with the more fully described grades of disabilities, that all cases will show all the findings specified. Findings sufficiently characteristic to identify the disease and the disability therefrom, and above all, coordination of rating with impairment of function will, however, be expected in all instances. 38 C.F.R. § 4.21 (2014). At the time of an initial rating, separate ratings can be assigned for separate periods of time based on facts found, a practice known as "staged" ratings. Fenderson v. West, 12 Vet. App. 119, 126 (1999). The evaluation of the same disability under various diagnoses, known as pyramiding, is generally to be avoided. 38 C.F.R. § 4.14 (2014). The critical element in permitting the assignment of several ratings under various diagnostic codes is that none of the symptomatology for any one of the disabilities is duplicative or overlapping with the symptomatology of the other disability. See Esteban v. Brown, 6 Vet. App. 259, 261-62 (1994). The Veteran contends that his service-connected left ulnar nerve paresthesias disability is more severe than the current 20 percent disability rating would indicate. Historically, in October 2006, the RO granted service connection for left ulnar nerve paresthesias (left wrist disability) and assigned a 20 percent disability evaluation, effective November 21, 2005 (date of service connection claim). The RO also granted service connection for scars status post-surgical repair for left cubital tunnel syndrome and assigned a 10 percent disability evaluation. The Veteran did not disagree with the rating assigned for his surgical scar so this issue is not before the Board at that time. However, the Veteran did appeal the issue of entitlement to an initial evaluation in excess of 20 percent. In March 2008, the Veteran was awarded a temporary total disability rating based on convalescence from July 5, 2006 to August 31, 2006, so medical records from this period will not be considered because the Veteran is already in receipt of a total disability evaluation during this time. In September 2014, the RO increased the rating from 10 to 20 percent, effective from November 21, 2005. However, since this increase did not constitute a full grant of the benefit sought, the higher initial evaluation issue remains in appellate status. AB v. Brown, 6 Vet. App. 35, 39(1993). The Veteran's left wrist disability is rated as 20 percent disabling pursuant to Diagnostic Code 8516, which addresses paralysis of the ulnar nerve. 38 C.F.R. § 4.124a (2014). Disability ratings of 10 percent, 20 percent, and 30 percent are assigned for incomplete paralysis of the minor extremity that is mild, moderate, or severe. Disability ratings of 10 percent, 30 percent, and 40 percent are assigned for incomplete paralysis of the major extremity that is mild, moderate, or severe. Complete paralysis of the ulnar nerve is rated 50 percent for the minor extremity and 60 percent for the major extremity, and it contemplates the "griffin claw" deformity due to flexor contraction of ring and little fingers, atrophy very marked in dorsal interspace and thenar and hypothenar eminences; loss of extension of ring and little fingers cannot spread the fingers (or reverse), cannot adduct the thumb; flexion of wrist weakened. 38 C.F.R. § 4.124a, Diagnostic Code 8516 (2014). Turning to the merits of the claim, the record includes an October 2005 EMG demonstrated left ulnar nerve entrapment at the elbow. The assessment was cubital tunnel syndrome on the left and left mild carpal tunnel syndrome. It was noted that his dominant hand was his right hand. A November 2005 private report shows that an evaluation of the left upper extremity demonstrated a positive Tinel's at the cubital tunnel and ulnar aspect of the left wrist. He also had a positive elbow flexion test. He had decreased sensation of his ulnar two fingers. Evaluation of the right upper extremity demonstrated no Tinel's sign at the wrist. He had good grip strength, bilaterally. The prayer sign elicited pain at the forearm Private treatment records include a May 2006 EMG which indicates mild left ulnar entrapment neuropathy (cubital syndrome). In July 2006, the Veteran underwent a carpal tunnel decompression and flexor tendon tenosynovectomy ulnar nerve transposition of the left wrist. VA treatment records include a January 2007 X-ray examination of the upper extremities and hands which was normal. In an April 2007 private opinion, Dr. Bash opined that the Veteran should be assigned a higher disability rating for his left cubital tunnel syndrome on the basis of his neuropathy and loss of function of his left hand. VA treatment records include an August 2007 neurological evaluation which indicated a reduction in pain, but increased weakness; the Veteran had pain with resistance and less strength in his left arm. However, motor and reflect examinations of the left arm were normal. A June 2008 EMG report indicated mild to moderate ulnar neuropathy across the elbow (cubital tunnel) on the left, status post prior surgery. Findings were consistent with mild recurrent ulnar neuropathy. An August 2008 evaluation indicated a normal motor examination of the left arm. Sensory examination to light touch was intact with normal DTRs. On June 2014 VA peripheral nerves conditions DBQ examination, the examiner diagnosed left cubital tunnel syndrome. The Veteran complained of numbness on the ulnar side of the forearm and hand with occasional radiating pain from the elbow to hand. He described occasional cramping in forearm muscles and fingers and used a splint at night on his elbow. Symptoms were aggravated with repetitive motion of the elbow and probation/supination. Surgery improved his condition some and he denied any worsening since his surgery. However, he used compression gloves when using his hand. He also had modified tools, including toothbrushes, to accommodate decreased grip strength. He reported that he did some jewelry repair. Attributable to the peripheral nerve, he had mild intermittent pain, moderate paresthesias and/or dysesthesias, and moderate numbness. Strength testing indicated active movement against some resistance on elbow flexion and extension, wrist flexion and extension, and grip. Pinch strength was normal. Reflex examination was normal. With the exception of decreased sensation in the left hand/fingers, sensory examination was normal. Median nerve testing was positive. There was incomplete paralysis of the left ulnar nerve. Other findings included a positive Tinel's over ulnar nerve proximal to elbow. Compression in that area reproduced radicular symptoms into his fingers. A 2010 EMG in the left arm was normal. Finally, the examiner stated that the Veteran's peripheral nerve condition impacted his ability to work in that it limited the use of his hand use to short periods of time, then he had to rest his hand. Applying the relevant rating criteria, the Board notes that a rating higher than 20 percent for the Veteran's left wrist disability is not warranted under Diagnostic Code 8516. The evidence of record does not show that the Veteran's symptoms rise to the level of moderate incomplete paralysis. Dr. Bash's April 2007 opinion that the Veteran is entitled to a higher rating on the basis of the loss of function of his left hand, the opinion is contradicted by the Veteran's own statement made to the June 2014 VA examiner that he is able to do "some" jewelry repair. This does not support a finding of loss of use of the left hand. With regard to Dr. Bash's opinion, it is important to note that the fact that the Veteran has problems with this disability is not in dispute. This question is only the degree. In this regard, Dr. Bash's opinion provides limited evidence on this issue. Moreover, the VA examiner opined that the Veteran has only mild intermittent pain, moderate paresthesias and/or dysesthesias and moderate numbness which demonstrates that the left wrist disability is no more than moderate in severity. These findings are against a rating higher than 20 percent. As an October 2005 EMG indicated mild carpal tunnel syndrome of the left wrist, the Board has also considered whether the Veteran's left wrist disability warrants a rating higher than 20 percent under Diagnostic Code 8515 which pertains to paralysis of the median nerve. However, similar to DC 8516, moderate incomplete paralysis of the median nerve warrants no more than a 20 percent rating. Accordingly, a rating higher than 20 percent for the Veteran's carpal tunnel syndrome under DC 8515 is not warranted. Nor is the Veteran entitled to a separate rating under Diagnostic Code 8515. While the Veteran has been diagnosed with both left ulnar nerve paresthesias (8516) and carpal tunnel syndrome (8515), evaluation of the "same disability" or the "same manifestation" under various diagnoses is to be avoided. See 38 C.F.R. § 4.14 (2014), see also Fanning v. Brown, 4 Vet. App. 225 (1993), see also Esteban v. Brown, 6 Vet. App. 259 (1994). While the Board understands the Veteran's central concern that his left wrist disability has negatively impacted his quality of life, making it impossible to drive and to do some activities of daily living, it is important for Veteran to also understand that without some problems associated with his left wrist disability there would be no basis for a compensable evaluation (zero), let alone a 20 percent rating for his left wrist disability. Findings made on June 2014 VA examination do not support the assignment of a higher rating of 30% under DC 8516 or 8515. Moreover, without consideration of the problems he cited and the other issues he has with his left wrist disability at this time, the current evaluation could not be justified. The problems he has cited have not been ignored. In fact, the subjective problems are the primary basis for his current evaluation. Accordingly, the Board finds that the preponderance of the evidence is against the assignment of an initial rating greater than 20 percent for his left ulnar nerve paresthesias disability. With regard to his left wrist disability, the Veteran is competent to report his current pain and diminished grip strength, as these observations come to them through their senses. Layno v. Brown, 6 Vet. App. 465, 469 (1994). The Board also acknowledges the Veteran's beliefs that his symptoms are of such severity as to warrant a higher rating. However, the Veteran is not competent to identify a specific level of disability of his left wrist disability according to the appropriate diagnostic code. On the other hand, such competent evidence concerning the nature and extent of the Veteran's left wrist disability has been provided by the medical personnel who have examined him during the current appeal and who have rendered pertinent opinions in conjunction with the evaluation. The medical findings (as provided in the examination reports) directly address the criteria under which this disability is evaluated. In sum, the totality of the evidence fails to support the assignment of a 30 percent rating for left ulnar nerve paresthesias. Additionally, with respect to an extraschedular rating under 38 C.F.R. § 3.321 for his increased disability claim, the applicable rating criteria contemplate all impairment resulting from his left wrist disability. The criteria reasonably describe the Veteran's disability level and symptomatology, specifically his complaints of pain, numbness, and weak grip strength due to his disability. The assigned schedular rating is, therefore, adequate and referral for extraschedular consideration is not required under 38 C.F.R. § 3.321(b)(1). Thun v. Peake, 22 Vet. App. 111 (2008), aff'd, Thun v. Shinseki, 572 F.3d 1366 (Fed. Cir. 2009). The Board has also considered whether an inferred claim for a total disability rating based on individual unemployability (TDIU) under Rice v. Shinseki, 22 Vet. App. 447 (2009) has been raised. The Board further notes that entitlement to TDIU was denied by the RO in October 2008 and the Veteran has not claimed, nor does the record so indicate, the intent to pursue such a claim again at this time. While there were indications of problems with work, this was the basis of the RO's action to address TDIU, which was not appealed and is therefore not before the Board at this time. Finally, the Board notes that under Johnson v. McDonald, 762 F.3d 1362 (Fed. Cir. 2014), a Veteran may be awarded an extraschedular rating based upon the combined effect of multiple conditions in an exceptional circumstance where the evaluation of the individual conditions fails to capture all the service-connected disabilities experienced. However, in this case, after applying the benefit of the doubt under Mittleider v. West, 11 Vet. App. 181 (1998), there are no additional service-connected disabilities that have not been attributed to a specific service-connected condition. Earlier Effective Date Claims The effective date of an award based on an original claim, a claim reopened after final adjudication, or a claim for increase of compensation, dependency and indemnity compensation, or pension, shall be fixed in accordance with the facts found, but shall not be earlier than the date of receipt of application therefor. 38 U.S.C.A. § 5110(a). Generally, the effective date of an award of an increased evaluation is the date of receipt of claim or date entitlement arose, whichever is later. 38 C.F.R. § 3.400(o)(1). For disability compensation, the effective date of an award shall be the earliest date as of which it is factually ascertainable that an increase in disability had occurred if the claim is received within 1 year from such date otherwise, the date of receipt of claim. 38 C.F.R. § 3.400(o)(2 ). Back The Veteran seeks an effective date earlier than April 19, 2006, for the assignment of a 20 percent rating for his back disability. Specifically, he seeks an earlier effective date in May 2005. See, June 2007 claim. In this case, the claim for an increased evaluation for the service-connected back disability was received on November 21, 2005. An October 2006 rating decision increased the rating from 10 percent to 20 percent for a back disability, effective April 19, 2006, the date of the VA examination showing criteria warranting the higher evaluation. In June 2007, the Veteran appealed the effective date. As previously stated, the effective date of a rating is the earliest date as of which it is factually ascertainable that an increase in disability had occurred, if a claim is received within one year from such date, and otherwise the date of receipt of the claim. Thus, the 20 percent rating for the Veteran's back disability may be effective up to a year earlier than the November 2005 claim date, if the earliest date as of which it is factually ascertainable that his back disability increased is a date during the year before the November 2005 claim was received. As such, VA must consider whether there is any medical evidence between November 21, 2004 and April 19, 2006, making it factually ascertainable that the Veteran's back disability was 20 percent disabling. 38 U.S.C.A. § 5110(b) (2); Dalton v. Nicholson, 21 Vet. App. 23, 31-32 (2007); Harper v. Brown, 10 Vet. App. 125 (1997); 38 C.F.R. § 3.400 (o)(1)(2) ; VAOPGCPREC 12-98 (1998). In this case, a review of the post-service treatment records dated from November 2004 to April 2006, including the April 2006 VA examination shows that the earliest evidence showing that an increase in the Veteran's service-connected back disability was warranted was the April 2006 VA examination. There is no evidence, then, that a date during the year preceding November 21, 2005, is the earliest date as of which it is factually ascertainable that the Veteran's back disability produced increased symptomatology. The evidence of record does not provide a basis for an effective date earlier than April 19, 2006, for the 20 percent disability rating. Accordingly, an effective date earlier than April 19, 2006, the date of the VA examination showing criteria warranting the increased evaluation, must be denied. Right leg The Veteran also seeks an effective date earlier than June 27, 2007, for the grant of service connection and the assignment of a 10 percent rating for his right sciatic nerve disability (right leg disability). Specifically, he seeks an earlier effective date in 1998. See, January 2010 substantive appeal. In March 2008, the RO granted service connection and a 10 percent rating for right sciatic nerve, effective June 27, 2007, the date of the Veteran's formal service connection claim. In April 2008, the Veteran was provided with a letter that explained to him that he had one year to appeal this rating decision (meaning either the rating or the effective date assigned) or it would become final. Unfortunately, the Veteran failed to file such a decision and it did in fact become final. See 38 U.S.C.A. § 7105(c); 38 C.F.R. § 3.104. Once a decision becomes final, the law provides that the decision will not be subject to revision on the same factual basis, except by duly constituted appellate authorities, for new and material evidence, or for clear and unmistakable error (CUE). 38 C.F.R. §§ 3.104(a), 3.105(a). Therefore, in order for the Veteran to obtain an earlier effective date for the right sciatic nerve rating, he must show either that CUE was made in the rating decision that established the effective date, or show that evidence was constructively in VA's possession that was not considered. See Rudd v. Nicholson, 20 Vet. App. 296 (2006). Rudd explained that if new and material evidence was presented in a claim that had been disallowed, VA would reopen the claim and review the former disposition. However, in this case, the rating decision in question dealt with the initial grant of service connection, and therefore new and material evidence would not be relevant. In this case, neither the Veteran nor his representative has alleged that a clear and unmistakable error (CUE) was made in the March 2008 rating decision that granted service connection and assigned the 10 percent rating for the Veteran's right side sciatic nerve, effective June 27, 2007. As such, the mere filing for an earlier effective date, without alleging that a CUE was made, is precluded by law. See Rudd v. Nicholson, 20 Vet. App. 296 (2006). In summary, under the facts of this case, there is no legal entitlement to an effective date earlier than June 27, 2007, for the grant of service connection and assignment of a 10 percent rating for the Veteran's right leg disability. The Board finds that the January 2010 informal claim for an effective date earlier than September 30, 2011, for the grant of service connection for the Veteran's right leg disability amounts to a free-standing effective date claim which violates the rule of finality. See Rudd, 20 Vet. App. at 300. Based on the procedural history of this case, the Board has no alternative but to dismiss the appeal without prejudice to the Veteran filing a CUE claim. See Sabonis v. Brown, 6 Vet. App. 426 (1994) (where the law is dispositive, the claim must be denied due to an absence of legal entitlement). Duties to Notify and Assist As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. 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) (2014). As the Veteran's claims for service connection for right ear disabilities, claimed as external otitis and tinnitus, and left ear disease are being granted on the merits, any error that was committed with respect to either the duty to notify or the duty to assist was harmless and need not be further considered with regard to these specific issues. As to the earlier effective date for the Veteran's back and right leg disability, the resolution of the Veteran's appeal for earlier effective dates turns on the law as applied to the undisputed facts in the Veteran's claim regarding the date his claim was received and date his entitlement arose. As this case turns on a matter of law, further assistance, such as the further procurement of records, would not assist the Veteran with the claim. Consequently, no further notice or development under the VCAA is warranted. See Mason v. Principi, 16 Vet. App. 129, 132 (2002); see also Livesay v. Principi, 15 Vet. App. 165 (2001) (en banc) (holding that the VCAA is not applicable where it could not affect a pending matter and could have no application as a matter of law). As to the claim for an increased rating for a left wrist disability and the claim for service connection claim for right forearm strain, the Veteran has received all essential notice, has had a meaningful opportunity to participate in the development of her claims, and is not prejudiced by any technical notice deficiency along the way. See Conway v. Principi, 353 F.3d 1369 (Fed. Cir., 2004). The RO sent the Veteran letters in June, July and August 2007, which informed him of all three elements required by 38 C.F.R. § 3.159(b). As such, the VCAA duty to notify was satisfied. The Board is also satisfied VA has made reasonable efforts to obtain relevant records and evidence. Specifically, the information and evidence that has been associated with the claims file includes the Veteran's available service treatment records, post-service VA and private treatment records (including those pertained pursuant to the Board's remand), SSA records, and the Veteran's written assertions. No outstanding evidence has been identified that has not otherwise been obtained. In this regard, the Board acknowledges that in an August 2007 statement, the Veteran indicated that he submitted August 2006 lay statements from "L.I." and "A.I." in support of his claims for service connection for service connection for a left wrist disability and for right forearm strain. These statements were offered in do not appear to be of record. However, subsequent to the submission of these statements the Veteran was in fact granted service connection for a left wrist disability and was not found to have a diagnosed right forearm strain. The Board finds that a remand at this juncture would result in a further delay in full adjudication of these claims, and based on the above discussion, is unnecessary. Moreover, as noted in the Introduction, in February 2015, the Veteran signed an expedited waiver of the 30 day waiting period. Accordingly, the Board finds that there is no basis for additional development under these circumstances. See Soyini v. Derwinski, 1 Vet. App. 541 (1991). Next, relevant VA examinations and opinions were obtained in September 2006 and pursuant to the Board's April 2014 remand in March and June 2014. The Board finds that the examination report and opinion shows the examiner considered the evidence of record and the reported history of the Veteran, conducted thorough VA neurological, elbow and forearms, and peripheral nerve examinations, noting all findings necessary for proper adjudication of the matter, and explained the rationale for the opinion offered. Hence, the Board finds that the VA examination and medical opinion obtained in this case is adequate. See Barr v. Nicholson, 21 Vet. App. 303 (2007) (VA must provide an examination that is adequate for rating purposes). With regard to the Veteran's increased rating claim, the duty to assist does not require that a claim be remanded solely because of the passage of time since an otherwise adequate examination was conducted. VAOPGCPREC 11-95. Here, there is no objective evidence indicating that there has been a material change in the severity of the Veteran's left wrist disability since the most recent June 2014 VA examination. Under the circumstances, the Board finds that there has been substantial compliance with its remands. See Dyment v. West, 13 Vet. App. 141 (1999) (a remand is not required under Stegall v. West, 11 Vet. App. 268 (1998) where there is substantial compliance with the Board's remand instructions); Sabonis v. Brown, 6 Vet. App. 426, 430 (1994) (remands which would only result in unnecessarily imposing additional burdens on VA with no benefit flowing to the veteran are to be avoided). Under these circumstances, the Board finds that VA has complied with all duties to notify and assist required under 38 U.S.C.A. § 5103A and 38 C.F.R. § 3.159. ORDER The issue of entitlement to service connection for headaches, is dismissed. Service connection for right ear disabilities, claimed as external otitis and tinnitus, is granted. Service connection for left ear disease, is granted. Service connection for right forearm strain, is denied. An initial disability rating higher than 20 percent for left ulnar nerve paresthesias is denied. REMAND The Veteran contends that his service-connected back disability is more severe than his current evaluation of 20 percent would indicate. The Veteran was most recently examined in May 2014, but a December 2014 VA medical center admission report indicates treatment of lumbar stenosis from November to December 2014. Therefore, the Veteran's rating claim should be remanded for a new VA examination. See Weggenmann v. Brown, 5 Vet. App. 281, 284 (1993). VAOPGCPREC 11-95 (1995). The Veteran also contends that he has sleep apnea and a neck disability secondary to his service-connected back disability. This claims were remanded in April 2014 for further development. However, with regard to the neck disability claim, the AOJ did not comply satisfactorily with the April 2014 Board remand orders, and thus an additional remand is necessary. See Stegall v. West, 11 Vet. App. 268, 271 (1998) (holding that where the remand orders of the Board are not complied with, the Board errs as a matter of law when it fails to ensure compliance). The Board regrets the additional delay. In the April 2014 remand, the Board directed that VA examiner should examine the Veteran and opine on the etiology of the Veteran's sleep apnea and neck disability. With regard to the neck disability, the Board pointed out that the February 2008 VA examiner discussed factors regarding direct service connection, but failed to discuss factors regarding secondary service connection and requested an opinion that addressed both questions of causation and aggravation. In May 2014, the VA examiner again failed to address aggravation. With regard to sleep apnea, on remand the Veteran was afforded a VA the Veteran now contends that his sleep apnea is secondary to his service-connected disability and provided medical treatise evidence in support of his contention. However, while the Veteran was afforded a June 2014 VA spine examination which again addressed direct causation, there is no opinion of record which addresses aggravation. With regard to his right carpal tunnel syndrome, the Board requested an opinion concerning whether the right CTS was related to an in-service fall. STRs show that the Veteran sustained multiple contusions to his arm during the fall. The Veteran has a current diagnosis of right CTS and has submitted medical treatise evidence which shows a relationship between CTS and trauma and an April 2007 private opinion from Dr. Bash in support of his claim. While he was afforded a May 2014 VA elbow and forearm examination, the examiner related the Veteran's right CTS to his profession as a jeweler. However, the Veteran has stated that he did not begin an online jewelry repair class until 2013 and is unemployed. Furthermore, on June 2014 VA peripheral nerves examination the examiner noted that the Veteran reportedly performed "some jewelry repair." Accordingly, the May 2014 VA examination is inadequate for adjudication purposes as to this issue. As such, it remains unclear whether the Veteran's right CTS is related to his service. Once VA undertakes the effort to provide an examination, even if not statutorily obligated to do so, VA must provide an adequate one or notify the claimant when one will not or cannot be provided. Barr v. Nicholson, 21 Vet. App. 303 (2007). As such, the Board must remand for an addendum to determine the nature and etiology of any current neck disability, right carpal tunnel syndrome, and sleep apnea. Accordingly, the case is REMANDED for the following actions: 1. Obtain all outstanding VA medical records related to the Veteran's back, neck and right wrist disabilities, and sleep apnea, including those from the Houston VAMC, dated from September 2014 to the present. All records and/or responses received should be associated with the claims file (the Veteran himself can also submit all records he believes to be pertinent-this will also expedite the case). 2. Ask the Veteran to submit copies of the lay statements dated in August 2006 from "L.I." and "A.I." and any other lay statements pertinent to the claims for an increased rating for a back disability and claims for service connection for a neck disability, right carpal tunnel syndrome, and sleep apnea. 3. After the foregoing has been completed, schedule the Veteran for a VA examination to ascertain and evaluate the current level of severity of his back disability. The claims file should be made available to the examiner. The examiner should report the extent of the Veteran's disability in accordance with VA rating criteria. If possible, but not required, an assessment of the Veteran's capability at employment would be greatly appreciated by the Board. 4. Forward the Veteran's claims folder to an examiner for an addendum opinion. The examiner is requested to review the claims folder, to include this remand. Unless the examiner finds that a new examination is required, the Veteran need not be examined again. The examiner should provide the following opinions: a) Whether it is at least as likely as not (i.e., a likelihood of 50 percent or greater) that the claimed right carpal tunnel syndrome is related to the Veteran's service, to include as due to a fall from a ladder in 1995. The term "at least as likely as not" does not mean within the realm of medical possibility, but rather the weight of medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of that conclusion as it is to find against it. b) Whether it is at least as likely as not (50 percent probability or more) that any currently-diagnosed neck disability is (a) proximately due to or the result of the Veteran's service-connected back disability, or (b) aggravated or permanently worsened by service-connected back disability. If it is determined that the bilateral lower extremity disability is related to service-connected back disability, to the extent possible, the examiner should indicate the approximate degree of disability or baseline before the onset of aggravation. c) Whether it is at least as likely as not (50 percent probability or more) that any currently-diagnosed sleep apnea is (a) proximately due to or the result of the Veteran's service-connected back disability, or (b) aggravated or permanently worsened by service-connected back disability. If it is determined that the sleep apnea is related to service-connected back disability, to the extent possible, the examiner should indicate the approximate degree of disability or baseline before the onset of aggravation. Note: The term "aggravated" in the above context refers to a permanent worsening of the underlying condition, as contrasted to temporary or intermittent flare-ups of symptomatology which resolve with return to the baseline level of disability. Note: The requested opinions on aggravation should be premised on the baseline level of severity of the disorder before the onset of aggravation, or by the earliest medical evidence created at any time between the onset of aggravation and the examiner's current findings. If an opinion cannot be rendered without resorting to speculation, the physician should explain why it would be speculative to respond. 4. After completing the above, and any other development as may be indicated by any response received as a consequence of the actions taken in the preceding paragraphs, the Veteran's claims should be readjudicated based on the entirety of the evidence. If the claims remain denied, the Veteran and his representative should be issued a supplemental statement of the case. An appropriate period of time should be allowed for response. The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). These claims 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). ______________________________________________ JOHN J. CROWLEY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs