Citation Nr: 1626183	
Decision Date: 06/29/16    Archive Date: 07/11/16

DOCKET NO.  06-37 488	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Waco, Texas


THE ISSUES

1. Entitlement to an effective date prior to March 5, 2013 for the grant of service connection for tinnitus.

2. Entitlement to an effective date prior to March 5, 2013 for the grant of service connection for allergic rhinitis.

3. Entitlement to an effective date prior to December 6, 2014 for the grant of service connection for lumbosacral strain with intervertebral disc syndrome (IVDS).

4. Entitlement to an effective date prior to December 6, 2014 for the grant of service connection for left lower extremity radiculopathy as secondary to the service-connected disability of lumbosacral strain with IVDS.

5. Entitlement to an effective date prior to December 6, 2014 for the grant of service connection for right lower extremity radiculopathy as secondary to the service-connected disability of lumbosacral strain with IVDS.

6. Entitlement to an effective date prior to December 6, 2014 for the grant of service connection for erectile dysfunction as secondary to the service-connected disability of lumbosacral strain with IVDS.

7. Entitlement to an effective date prior to December 6, 2014 for the grant of entitlement to special monthly compensation based on loss of use of a creative organ.

8. Entitlement to an effective date prior to December 6, 2014 for the grant of service connection for left ear hearing loss disability.

9. Entitlement to an effective date prior to January 30, 2013 for the grant of service connection for posttraumatic stress disorder (PTSD) with bipolar disorder.

10. Entitlement to an effective date prior to January 30, 2013 for the grant of service connection for bilateral pes planus with plantar fasciitis, hallux valgus, and degenerative joint disease.

11. Entitlement to an effective date prior to January 30, 2013 for the grant of service connection for gastroesophageal reflux disease (GERD).

12. Entitlement to an effective date prior to December 6, 2014 for the grant of service connection for pseudofolliculitis barbae (PFB).

13. Entitlement to an initial compensable disability rating for allergic rhinitis.

14. Entitlement to service connection for sleep apnea, to include as secondary to PTSD with bipolar disorder, as secondary to lumbosacral strain with IVDS, as secondary to radiculopathy of the left and right lower extremities, and as secondary to bilateral pes planus with plantar fasciitis, hallux valgus, and degenerative joint disease.

15. Entitlement to service connection for a disability manifested by sleep disturbances, to include as secondary to PTSD with bipolar disorder, as secondary to lumbosacral strain with IVDS, as secondary to radiculopathy of the left and right lower extremities, and as secondary to bilateral pes planus with plantar fasciitis, hallux valgus, and degenerative joint disease.

16. Entitlement to an initial disability rating in excess of 70 percent for PTSD with bipolar disorder.

17. Entitlement to an initial disability rating in excess of 20 percent for lumbosacral strain with IVDS.

18. Entitlement to an initial compensable disability rating for erectile dysfunction.

19. Entitlement to service connection for right ear hearing loss disability.

20. Entitlement to service connection for a left hip disability, to include degeneration, arthritis, and bursitis, to include as secondary to lumbosacral strain with IVDS.

21. Entitlement to service connection for a right hip disability, to include degeneration, arthritis, and bursitis, to include as secondary to lumbosacral strain with IVDS.

22. Entitlement to a disability manifested by unspecified joint and muscle pain throughout the body, to include as secondary to lumbosacral strain with IVDS, and as secondary to bilateral pes planus with plantar fasciitis, hallux valgus, and degenerative joint disease.

23. Entitlement to an effective date prior to January 30, 2013 for the recognition of "T" as a dependent child for VA compensation purposes.

24. Entitlement to a total disability rating based on individual unemployability (TDIU).

25. Entitlement to basic eligibility for Dependents' Educational Assistance under 38 U.S.C.A. Chapter 35.


REPRESENTATION

Veteran represented by:	Texas Veterans Commission


WITNESS AT HEARING ON APPEAL

The Veteran


ATTORNEY FOR THE BOARD

S. Delhauer, Associate Counsel


INTRODUCTION

The Veteran served on active duty from July 1988 to July 1990. 

This case comes before the Board of Veterans' Appeals (Board) on appeal from April 2009, March 2014, December 2014, and August 2015 rating decisions by the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas. 

This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2015).  38 U.S.C.A. § 7107(a)(2) (West 2014).

With regard to the sleep apnea claim, the Veteran offered testimony at a videoconference hearing in November 2009 before an Acting Veterans Law Judge (VLJ) who has retired from the Board.  A transcript of that hearing is associated with the evidentiary record.  In an August 2013 letter, the Veteran stated that he waived his right to appear at any additional hearing, and requested the Board consider his case on the evidence of record. 

In April 2010, the Board denied the Veteran's claim to reopen a previously denied claim of entitlement to service connection for obstructive sleep apnea.  The Veteran appealed that denial to the United States Court of Appeals for Veterans Claims (Court).  In December 2011, the Court issued a memorandum decision that remanded the claim to reopen a previously denied claim of entitlement to service connection for obstructive sleep apnea.  In September 2012, the Board reopened the claim of entitlement to service connection for obstructive sleep apnea and remanded it for further development.

In November 2013, the Board denied entitlement to service connection for obstructive sleep apnea.  The Veteran again appealed that denial to the Court.  In October 2014, the Court granted a joint motion for partial vacatur and remand (JMR) of the Board decision that vacated the Board's denial of entitlement of service connection for obstructive sleep apnea and remanded it for further consideration.  The rest of the Veteran's appeals were dismissed.

In February 2015, the Board remanded the sleep apnea claim for further development.  The Board also noted the Veteran had perfected an appeal of a denial to reopen a claim of entitlement to service connection for obstructive sleep apnea with sleep disturbances, but that the Board did not address the matter of sleep disturbances in its prior decisions.  Given that the issue was encompassed in the RO's earlier characterization, the Board listed entitlement service connection for a disability manifested by sleep disturbances as a separate claim, and also remanded it for further development.

In the February 2015 decision, the Board reopened and granted the Veteran's claim of entitlement to service connection for allergic rhinitis.  The Board remanded the rest of the Veteran's appeals for further development.

In a December 2014 rating decision, the RO denied a claim of entitlement to service connection for a musculoskeletal condition, also claimed as unspecified joint and muscle pain.  As the evidence of record indicates the Veteran seeks service connection for a disability manifested by unspecified joint and muscle pain throughout the body, however diagnosed, the matter is being characterized as stated on the title page, to afford the Veteran a broader scope of review.  See Browkowski v. Shinseki, 23 Vet. App. 79 (2009) (the Veteran may satisfy the requirement to identify the benefit sought by referring to a body part or system that is disabled or by describing symptoms of the disability); see also Clemons v. Shinseki, 23 Vet. App. 1 (2009) (regarding the scope of a claim).

In the February 2015 decision, the Board referred a claim of entitlement to service connection for arthritis of the back, shoulders, arms, legs, and hips to the Agency of Original Jurisdiction (AOJ) for appropriate action.  In an August 2015 letter, the AOJ asked the Veteran to clarify whether he intended to file a claim for the disabilities referred by the Board, to include arthritis of the back, shoulders, arms, and legs.  In an August 2015 statement, the Veteran stated he wanted to claim arthritis and degeneration of the hips, but did not indicate he wished to seek service connection for arthritis of any other specific joints.  Accordingly, the Board finds the Veteran has indicated he only wishes to pursue a claim of entitlement to service connection for arthritis of the hips at this time, and such claim is addressed below.

In the February 2015 decision, the Board also referred a claim of entitlement to service connection for a headache disorder to include migraines.  In a March 2016 rating decision, the AOJ denied the Veteran's claims of entitlement to service connection for migraines and for headaches.  In March 2016, VA received the Veteran's notice of disagreement with the March 2016 rating decision.  The Board's review of the evidentiary record reveals that the AOJ is taking action on these timely appealed issues.  As such, the Board will not accept jurisdiction over them at this time.

The issue of entitlement to service connection for chronic fatigue has been raised by the record in March 2014 and August 2015 statements, but has not been adjudicated by the Agency of Original Jurisdiction (AOJ).  See also February 2015 Board referral.  Therefore, the Board does not have jurisdiction over it, and it is referred to the AOJ for appropriate action.  38 C.F.R. § 19.9(b) (2015).  

The Veteran's file has been scanned, and converted from a hybrid paper and electronic file to a purely electronic file located on the Veterans Benefits Management System (VBMS).  Documents contained on the Virtual VA paperless claims processing system include a December 2014 VA Form 21-686c, Declaration of Status of Dependents; June 2015 VA examination reports; and VA treatment records from the North Texas VA Healthcare System (HCS) dated January 2008 to November 2015; other documents are duplicative of the evidence of record, or are not relevant to the issues currently before the Board.

The issues of entitlement to service connection for right ear hearing loss disability, a left hip disability, a right hip disability, and a disability manifested by unspecified joint and muscle pain throughout the body, entitlement to an earlier effective date for the recognition of "T" as a dependent child, entitlement to a total disability rating based on individual unemployability (TDIU), and entitlement to basic eligibility for Dependents' Educational Assistance are addressed in the REMAND portion of the decision below and are REMANDED to the AOJ.


FINDINGS OF FACT

1. In an April 2010 decision, the Board denied entitlement to service connection for erectile dysfunction; allergic rhinitis; gastroesophageal reflux disease (GERD); any acquired psychiatric disorder, which included a discussion of diagnosed bipolar disorder; and dismissed the claim of entitlement to service connection for posttraumatic stress disorder (PTSD).

2. In a December 2011 Memorandum Decision, the Court affirmed the Board's April 2010 denials of entitlement to service connection for erectile dysfunction, allergic rhinitis, GERD, and any acquired psychiatric disorder.

3. In a November 2013 decision, the Board denied entitlement to service connection for a low back disorder, bilateral hearing loss, bilateral plantar fasciitis, and pseudofolliculitis barbae (PFB).

4. In an October 2014 Order, the Court granted a JMR of the Board's November 2013 decision, which dismissed the Veteran's appeals as to the Board's denials of service connection for a low back disorder, bilateral hearing loss, bilateral plantar fasciitis, and PFB.

5. Following the final April 2010 Board decision, the next communication from the Veteran expressing an intent to file a claim of service connection for erectile dysfunction, allergic rhinitis, PTSD, and bipolar disorder was received by the AOJ on January 30, 2013.  

6. The first communication from the Veteran expressing an intent to file claims of service connection for leg pain and neuropathy in the legs, tinnitus, and bilateral pes planus was received by the AOJ on January 30, 2013.

7. Following the final November 2013 Board decision, the next communication from the Veteran expressing an intent to file a claim for a low back disability was received by the AOJ on December 5, 2013.

8. Following the final November 2013 Board decision, the next communication from the Veteran expressing an intent to file a claim of service connection for bilateral hearing loss was received by the AOJ on January 14, 2014.

9. Following the final November 2013 Board decision, the next communication from the Veteran expressing an intent to file a claim of service connection for PFB was received by the AOJ on December 6, 2014.

10. During the appeal period, the Veteran's allergic rhinitis was not manifested by greater than 50 percent obstruction of the nasal passage on both sides, complete obstruction on one side, or polyps.

11. The preponderance of competent and credible evidence weighs against finding that the Veteran's current obstructive sleep apnea incurred in or is otherwise related to his active duty service.

12. The preponderance of competent and credible evidence weighs against finding that the Veteran's current obstructive sleep apnea was caused or aggravated by a service-connected disability.

13. The preponderance of the competent and credible evidence of record is against a finding that the Veteran has a current, separate disability manifested by sleep disturbances which is not already evaluated as a manifestation of his service-connected PTSD with bipolar disorder.

14. In a June 2015 statement, prior to the promulgation of a decision in the appeal, the Veteran stated that he was not seeking an increased disability rating for his PTSD with bipolar disorder, lumbosacral strain with IVDS, or erectile dysfunction.


CONCLUSIONS OF LAW

1. The April 2010 Board decision, which denied the claims of entitlement to service connection for ED, allergic rhinitis, GERD, and any acquired psychiatric disorder, to include bipolar disorder, and dismissed the claim of entitlement to service connection for PTSD, became final.  38 U.S.C.A. § 7104(b) (West 2014); 38 C.F.R. § 20.1100 (2015).

2. The November 2013 Board decision, which denied the claims of entitlement to service connection for a low back disorder, bilateral hearing loss, bilateral plantar fasciitis, and PFB, became final.  38 U.S.C.A. § 7104(b) (West 2014); 38 C.F.R. § 20.1100 (2015).

3. The criteria for an effective date of January 30, 2013 for service connection of tinnitus have been met.  38 U.S.C.A. §§ 5101, 5107, 5110 (West 2014); 38 C.F.R. §§ 3.151, 3.155, 3.400 (2015).

4. The criteria for an effective date of January 30, 2013 for service connection of allergic rhinitis have been met.  38 U.S.C.A. §§ 5101, 5107, 5110 (West 2014); 38 C.F.R. §§ 3.151, 3.155, 3.400 (2015).

5. The criteria for an effective date of December 5, 2013 for service connection of lumbosacral strain with IVDS have been met.  38 U.S.C.A. §§ 5101, 5107, 5110 (West 2014); 38 C.F.R. §§ 3.151, 3.155, 3.400 (2015).

6. The criteria for an effective date of December 5, 2013 for service connection of left lower extremity radiculopathy as secondary to the service-connected disability of lumbosacral strain with IVDS have been met.  38 U.S.C.A. §§ 5101, 5107, 5110 (West 2014); 38 C.F.R. §§ 3.151, 3.155, 3.310, 3.400 (2015).

7. The criteria for an effective date of December 5, 2013 for service connection of right lower extremity radiculopathy as secondary to the service-connected disability of lumbosacral strain with IVDS have been met.  38 U.S.C.A. §§ 5101, 5107, 5110 (West 2014); 38 C.F.R. §§ 3.151, 3.155, 3.310, 3.400 (2015).

8. The criteria for an effective date of December 5, 2013 for service connection of erectile dysfunction as secondary to the service-connected disability of lumbosacral strain with IVDS have been met.  38 U.S.C.A. §§ 5101, 5107, 5110 (West 2014); 38 C.F.R. §§ 3.151, 3.155, 3.310, 3.400 (2015).

9. The criteria for an effective date of December 5, 2013 for the grant of entitlement to special monthly compensation based on loss of use of a creative organ have been met.  38 U.S.C.A. §§ 1114(k), 5101, 5107, 5110 (West 2014); 38 C.F.R. §§ 3.151, 3.155, 3.400 (2015).

10. The criteria for an effective date of January 14, 2014 for service connection of left ear hearing loss disability have been met.  38 U.S.C.A. §§ 5101, 5107, 5110 (West 2014); 38 C.F.R. §§ 3.151, 3.155, 3.400 (2015).

11. The criteria for an effective date prior to January 30, 2013 for service connection of PTSD with bipolar disorder have not been met.  38 U.S.C.A. §§ 5101, 5107, 5110 (West 2014); 38 C.F.R. §§ 3.151, 3.155, 3.400 (2015).

12. The criteria for an effective date prior to January 30, 2013 for service connection of bilateral pes planus with plantar fasciitis, hallux valgus, and degenerative joint disease have not been met.  38 U.S.C.A. §§ 5101, 5107, 5110 (West 2014); 38 C.F.R. §§ 3.151, 3.155, 3.400 (2015).

13. The criteria for an effective date prior to January 30, 2013 for service connection of GERD have not been met.  38 U.S.C.A. §§ 5101, 5107, 5110 (West 2014); 38 C.F.R. §§ 3.151, 3.155, 3.400 (2015).

14. The criteria for an effective date prior to December 6, 2014 for service connection of PFB have not been met.  38 U.S.C.A. §§ 5101, 5107, 5110 (West 2014); 38 C.F.R. §§ 3.151, 3.155, 3.400 (2015).

15. The criteria for an initial compensable rating for allergic rhinitis have not been met. 38 U.S.C.A. § 1155 (West 2014); 38 C.F.R. § 4.97, Diagnostic Code 6522 (2015).

16. The criteria for service connection for sleep apnea have not been met.  38 U.S.C.A. §§ 1131, 5103, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.310 (2015).

17. The criteria for entitlement to service connection for a disability manifested by sleep disturbances have not been met.  38 U.S.C.A. §§ 1131, 5103, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.159, 3.303 (2015).

18. The criteria for withdrawal of the claim of entitlement to an initial disability rating in excess of 70 percent for PTSD with bipolar disorder have been met.  38 U.S.C.A. § 7105(b)(2), (d)(5) (West 2014); 38 C.F.R. § 20.204 (2015).

19. The criteria for withdrawal of the claim of entitlement to an initial disability rating in excess of 20 percent for lumbosacral strain with IVDS have been met.  38 U.S.C.A. § 7105(b)(2), (d)(5) (West 2014); 38 C.F.R. § 20.204 (2015).

20. The criteria for withdrawal of the claim of entitlement to an initial compensable disability rating for erectile dysfunction have been met.  38 U.S.C.A. § 7105(b)(2), (d)(5) (West 2014); 38 C.F.R. § 20.204 (2015).


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

The Board has thoroughly reviewed all the evidence.  Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, all the evidence submitted by or on behalf of the Veteran.  See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (the Board must review the entire record, but does not have to discuss each piece of evidence).  The analysis below focuses on the most salient and relevant evidence and on what this evidence shows, or fails to show, on the claims.  The Veteran must not assume that the Board has overlooked pieces of evidence that are not explicitly discussed herein.  See Timberlake v. Gober, 14 Vet. App. 122 (2000) (the law requires only that the Board address its reasons for rejecting evidence favorable to the Veteran).

The Veterans Claims Assistance Act of 2000 (VCAA)

The VCAA, codified in part at 38 U.S.C.A. §§ 5103, 5103A, and implemented in part at 38 C.F.R. § 3.159, amended VA's duties to notify and to assist a claimant in developing information and evidence necessary to substantiate the claim.

VA's duty to notify was satisfied by letters in February 2009, October 2012, July 2013, January 2014, September 2014, and August 2015.  See 38 U.S.C.A. §§ 5102, 5103, 5103A (West 2014); 38 C.F.R. § 3.159 (2015); see also Scott v. McDonald, 789 F.3d 1375 (Fed. Cir. 2015).

The Board finds that all necessary development of the downstream earlier effective date claims has been accomplished and, therefore, appellate review of these claims may proceed without prejudicing the Veteran.

Regarding the Veteran's increased rating and service connection claims, the Board finds VA has fulfilled its duty to assist in obtaining identified and available evidence needed to substantiate the claims.  Lay statements, service treatment records, identified private treatment records, prison treatment records, Social Security Administration (SSA) records, and VA treatment records have been associated with the evidentiary record.

The Veteran was afforded a VA rhinitis examination in June 2015.  The VA examination report is thorough, and discusses the clinical findings and the Veteran's reported history and symptoms as necessary to rate the disability under the applicable rating criteria.  Based on the examination and the absence of evidence of worsening symptomatology since the June 2015 examination, the Board concludes the June 2015 examination report in this case are adequate upon which to base a decision regarding the disability rating for the Veteran's service-connected allergic rhinitis.  See Barr v. Nicholson, 21 Vet. App. 303, 312 (2007) (when VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate).

As part of the duty to assist, the Veteran was afforded a Board hearing in November 2009 regarding his sleep apnea and sleep disturbances claims, pursuant to his request.  In Bryant v. Shinseki, 23 Vet. App. 488 (2010), the Court held that 38 C.F.R. § 3.103(c)(2) requires that the VLJ of the Board or local decision review officer at the RO chairing a hearing fulfill two duties to comply with this VA regulation.  These duties consist of (1) fully explaining the issue and (2) suggesting the submission of evidence that may have been overlooked and that may be advantageous to the claimant's position.  Here, the VLJ fully explained the issues on appeal during the hearing.  Additionally, it is clear from the Veteran's testimony that he had actual knowledge of the elements that were lacking to substantiate his claims.  The Veteran testified regarding his current sleep impairment and symptoms, and the history of those symptoms including during and since his active duty service.  Significantly, neither the Veteran nor his representative has asserted that VA failed to comply with 38 C.F.R. § 3.103(c)(2), nor has either identified any prejudice in the conduct of the Board hearing.  As such, the Board finds that, consistent with Bryant, the VLJ complied with the duties set forth in 38 C.F.R. § 3.103(c)(2).  Further, in an August 2013 letter, the Veteran waived his right to appear at any additional hearing before a sitting VLJ, and requested the Board consider his case on the evidence of record.

In the September 2012 decision, the Board reopened the Veteran's claim of entitlement to service connection for sleep apnea.  The Board then remanded the claim to obtain any outstanding treatment records, and to afford the Veteran a VA examination to determine whether the disability was etiologically related to his military service.

In an October 2012 letter, the AOJ asked the Veteran to identify any medical treatment from any private physicians or hospitals, and to identify treatment from any VA facilities.  In an October 2012 statement, the Veteran reported he had not received any private treatment.  The AOJ obtained the Veteran's VA treatment records from the North Texas HCS dated January 2008 through March 2013.

In December 2012, the Veteran was afforded a VA sleep apnea examination.  However, upon the December 2012 VA examination, the Veteran's claims file was not available for the examiner to render a nexus opinion.  An addendum opinion was obtained in February 2013, after the December 2012 VA examiner's review of the evidentiary record. 

In the February 2015 remand, the Board noted the Veteran had submitted medical evidence relating his sleep disabilities to service-connected disabilities.  Accordingly, the Board instructed the AOJ to provide the Veteran with VCAA notice regarding secondary service connection claims.  The Board also instructed the AOJ to ask the Veteran to identify all treatment for his sleep apnea and any other sleep disorder, and to obtain treatment records from the Dallas VA Medical Center (VAMC) from March 2014 to the present.  Finally, the Board stated that in the October 2014 JMR, the Court noted that the February 2013 addendum opinion from the December 2012 VA examiner did not address a lay statement by B.J. reporting the Veteran's in-service symptoms.  Accordingly, the Board instructed the AOJ to afford the Veteran a new VA examination to determine the nature and extent of his sleep disorders.  The examiner was asked to comment on whether the Veteran has a disorder manifested by sleep disturbances separate from his obstructive sleep apnea, and to provide nexus opinions in regard to the theories of direct and secondary service connection for sleep apnea and any separate disorder manifested by sleep disturbances.

In an August 2015 letter, the AOJ informed the Veteran of the information and evidence needed to substantiate and complete a claim of secondary service connection.  The AOJ also asked the Veteran to send any treatment records, or to complete the enclosed forms for VA to obtain any doctor, hospital, or medical reports on his behalf.  The Veteran was also asked to identify treatment at any VA facility or treatment authorized by VA.  Treatment records from the North Texas HCS, which includes the Dallas VAMC, dated through January 2016 have been obtained and associated with the evidentiary record.  

In June 2015, the Veteran was afforded a new VA sleep apnea examination.  The VA examiner reviewed the evidentiary record on VBMS, as well as the Veteran's VA treatment records on the Computerized Patient Records System (CPRS).  The examiner noted the Veteran's reported history regarding his sleep apnea, examined the Veteran, and ultimately opined that the Veteran's current sleep apnea was not caused by his service-connected disabilities, and provided a rationale for the opinions which addressed a private nexus opinion of record.  In a December 2015 addendum opinion, the June 2015 VA examiner again reviewed the VBMS evidentiary record and the VA treatment records on CPRS.  The VA examiner opined as to whether the Veteran has a disability manifested by sleep disturbances separate from his sleep apnea.  She also provided a direct nexus opinion for the Veteran's sleep apnea, and addressed the lay statement from B.J. in her rationale.  Finally, she also opined as to whether the Veteran's current sleep apnea was aggravated by any of his service-connected disabilities, and provided a rationale for her opinions.  Given the foregoing, the Board finds the June 2015 VA examination report and December 2015 addendum opinion to be thorough, complete, and sufficient upon which to base a decision with respect to the Veteran's claims of service connection for sleep apnea and a disability manifested by sleep disturbances.  See Barr v. Nicholson, 21 Vet. App. 303, 312 (2007) (when VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate).

Given the October 2012 and August 2015 letters to the Veteran, the October 2012 letter from the Veteran stating he has not had private treatment, the association of the Veteran's outstanding VA treatment records with the evidentiary record, the December 2012 VA examination report and February 2013 addendum opinion, the June 2015 VA examination report and December 2015 addendum opinion, and the subsequent readjudication of the claims in January 2016, the Board finds that there has been substantial compliance with its remand directives.  See Stegall v. West, 11 Vet. App. 268, 271 (1998) (a remand by the Board confers upon the claimant, as a matter of law, the right to compliance with the remand instructions, and imposes upon the VA a concomitant duty to ensure compliance with the terms of the remand); see also D'Aries v. Peake, 22 Vet. App. 97, 105 (2008); Dyment v. West, 13 Vet. App. 141, 146-47 (1999).

Thus, with respect to the Veteran's claims, there is no additional development that needs to be undertaken or evidence that needs to be obtained.

Earlier Effective Dates

      Legal Criteria

The statutory guidelines for the determination of an effective date of an award are set forth in 38 U.S.C.A. § 5110.  Except as otherwise provided, the effective date of an evaluation and award of compensation based on an original claim, a claim reopened after a final disallowance, or a claim for increase will be the date of receipt of the claim, or the date entitlement arose, whichever is the latter.  38 C.F.R. § 3.400.

In cases involving direct service connection, the effective date will be the day following separation from active service or the date entitlement arose if the claim is received within one year after separation from service.  Otherwise, the effective date will be the date of receipt of the claim or the date entitlement arose, whichever is later.  38 C.F.R. § 3.400(b)(2)(i).

A Board decision becomes final and binding if the veteran does not timely perfect an appeal of the decision, or unless modified or reversed by the Court.  38 U.S.C.A. §§ 7104(b), 7252; 38 C.F.R. § 20.1100.  Previous determinations that are final and binding, including decisions of service connection, will be accepted as correct in the absence of clear and unmistakable error (CUE).  38 C.F.R. §§ 3.105(a), 20.1400.

The Court held in Sears v. Principi that "[t]he statutory framework simply does not allow for the Board to reach back to the date of the original claim as a possible effective date for an award of service-connected benefits that is predicated upon a reopened claim."  16 Vet. App. 244, 248 (2002).  In order for a veteran to be awarded an effective date based on an earlier claim, he has to show CUE in the prior denial of the claim, as a collateral attack.  Flash v. Brown, 8 Vet. App. 332, 340 (1995).  

The United States Court of Appeals for the Federal Circuit has determined that, even when a veteran has a claim to reopen, "he cannot obtain an effective date earlier than the reopened claim's application date."  Leonard v. Nicholson, 405 F.3d 1333, 1336-37 (Fed. Cir., 2005) (indicating that "no matter how [the veteran] tries to define 'effective date,' the simple fact is that, absent a showing of CUE, he cannot receive disability payments for a time frame earlier than the application date of his claim to reopen, even with new evidence supporting an earlier disability date").

      Analysis

In December 2014, the Veteran was informed of the December 9, 2014 rating decision, which granted entitlement to service connection for lumbosacral strain with IVDS (also claimed as tail bone pain and coccydynia); left and right lower extremity radiculopathy, as secondary to the service-connected disability of lumbosacral strain with IVDS; erectile dysfunction, as secondary to the service-connected disability of lumbosacral strain with IVDS; left ear hearing loss disability; PTSD with bipolar disorder (also claimed as depression and an acquired psychiatric disorder); bilateral pes planus with plantar fasciitis, hallux valgus, and degenerative joint disease; GERD; and PFB.  The Veteran was also informed that entitlement to special monthly compensation based on loss of use of a creative organ had been granted.  In December 2014, the Veteran was informed of the December 12, 2014 rating decision which granted entitlement to service connection for tinnitus.  In August 2015, the Veteran was informed of the August 3, 2015 rating decision which granted entitlement to service connection for allergic rhinitis.  The Veteran contends he is entitled to earlier effective dates for all of these service connected disabilities due to his prior claims seeking entitlement to service connection.  See, e.g., December 2014 notice of disagreement.

Beginning in August 2000, the Veteran has filed multiple claims of service connection for many different disabilities over the years, as well as requests to reopen his claims of service connection, and appealed many of the RO's denials to the Board.  

In an April 2010 decision, the Board denied entitlement to service connection for erectile dysfunction, allergic rhinitis, GERD, any acquired psychiatric disorder, and dismissed the Veteran's claim of entitlement to service connection for PTSD as withdrawn.  The Veteran appealed the Board's April 2010 decisions to the Court.  In a December 2011 Memorandum Decision, the Court affirmed the Board's April 2010 denials of entitlement to service connection for erectile dysfunction, allergic rhinitis, GERD, and any acquired psychiatric disorder.  Accordingly, the April 2010 Board decision became final as to those issues.  See 38 U.S.C.A. § 7104(b); 38 C.F.R. § 20.1100; see also Bond v. Shinseki, 659 F.3d 1362, 1367-68 (Fed. Cir. 2011).

In a November 2013 decision, the Board denied entitlement to service connection for a low back disorder, bilateral hearing loss, bilateral plantar fasciitis, and PFB.  The Veteran appealed the Board's November 2013 decisions to the Court.  In an October 2014 Order, the Court granted a JMR of the Board's November 2013 decision which dismissed the Veteran's appeals as to the Board's denials of service connection for a low back disorder, bilateral hearing loss, bilateral plantar fasciitis, and PFB.  Accordingly, the November 2013 Board decision became final as to those issues.  See 38 U.S.C.A. § 7104(b); 38 C.F.R. § 20.1100; see also Bond v. Shinseki, 659 F.3d 1362, 1367-68 (Fed. Cir. 2011).

Following the final April 2010 Board decision, the next communication from the Veteran expressing an intent to file a claim of service connection for erectile dysfunction, allergic rhinitis, PTSD, and bipolar disorder was received by the AOJ on January 30, 2013.  In the claim received on January 30, 2013, the Veteran also expressed an intent to file claims of service connection for leg pain and neuropathy in the legs, tinnitus, and bilateral pes planus for the first time. 

Because the January 30, 2013 claim was the first communication from the Veteran expressing an intent to file a claim of service connection for tinnitus, and the claim for tinnitus was not subject to a prior final RO or Board decision, the Board finds the earliest possible effective date for the grant of service connection is January 30, 2013, the date of receipt of the Veteran's original claim.  38 C.F.R. § 3.400.  Accordingly, entitlement to an effective date of January 30, 2013 for the grant of service connection for tinnitus is granted.

Because the January 30, 2013 claim was the first communication from the Veteran following the final April 2010 Board decision expressing an intent to file a claim of service connection for allergic rhinitis and GERD, the Board finds the earliest possible effective date for the grants of service connection is January 30, 2013, the date of receipt of the Veteran's reopened claims.  38 C.F.R. § 3.400.  Accordingly, entitlement to an effective date of January 30, 2013 for the grant of service connection for allergic rhinitis is granted.  However, entitlement to an effective date prior to January 30, 2013 for the grant of service connection for GERD is denied.

Regarding the Veteran's PTSD with bipolar disorder, in the April 2010 decision, the Board denied to reopen the Veteran's claim of entitlement to service connection for a psychiatric disorder, to include stress and anxiety; dismissed the Veteran's claim of entitlement to service connection for PTSD as withdrawn; and denied entitlement to service connection for any acquired psychiatric disorder, which included the Veteran's diagnosed bipolar disorder.  In the December 2011 Memorandum Decision, the Court vacated and remanded the claim to reopen service connection for a psychiatric disorder, to include stress and anxiety, but affirmed the Board's denial of entitlement to service connection for any acquired psychiatric disorder.  Accordingly, the claim which remained pending before the Board following the December 2011 Memorandum Decision was entitlement to service connection for a psychiatric disorder to include anxiety, but not including PTSD or bipolar disorder.  See, e.g., September 2012 Board decision.  Accordingly, the Board's April 2010 decision was final regarding the dismissal of service connection for PTSD, and the denial of any acquired psychiatric disorder, which included bipolar disorder.  

Because the January 30, 2013 claim was the first communication from the Veteran following the final April 2010 Board decision expressing an intent to file claims of entitlement to service connection for PTSD and for bipolar disorder, the Board finds the earliest possible effective date for the grant of service connection is January 30, 2013, the date of receipt of the Veteran's new, original PTSD claim, and reopened claim for bipolar disorder.  38 C.F.R. § 3.400.  Accordingly, entitlement to an effective date prior to January 30, 2013 for the grant of service connection for PTSD with bipolar disorder is denied.

Regarding the Veteran's bilateral pes planus with plantar fasciitis, hallux valgus, and degenerative joint disease, in the April 2010 decision, the Board denied to reopen the Veteran's claim of entitlement to service connection for plantar fasciitis.  In the December 2011 Memorandum Decision, the Court reversed the Board's denial to reopen the claim of entitlement to service connection for plantar fasciitis.  Accordingly, the plantar fasciitis claim remained pending before the Board.  In the claim received on January 30, 2013, the Veteran expressed for the first time an intent to file a claim of service connection for pes planus.  In the November 2013 decision, the Board referred the Veteran's claim of entitlement to service connection for pes planus back to the AOJ, and denied the Veteran's claim of entitlement to service connection for plantar fasciitis.  In the October 2014 Order, the Court-granted JMR dismissed the Veteran's appeal as to the Board's November 2013 denial of service connection for bilateral plantar fasciitis.  Accordingly, the November 2013 Board decision became final as to the denial of bilateral plantar fasciitis.  However, the Veteran's January 30, 2013 claim of entitlement to service connection for pes planus remained pending throughout that time, and was subsequently granted by the RO in the December 9, 2014 rating decision as bilateral pes planus with plantar fasciitis, hallux valgus, and degenerative joint disease.  

Because the January 30, 2013 claim was the first communication from the Veteran expressing an intent to file a claim of service connection for pes planus, and because the Veteran's claim of entitlement to service connection for plantar fasciitis was subsequently denied by the final November 2013 Board decision, the Board finds the earliest possible effective date for the grant of service connection for bilateral pes planus with plantar fasciitis, hallux valgus, and degenerative joint disease is January 30, 2013, the date of receipt of the Veteran's original claim of entitlement to service connection for pes planus.  38 C.F.R. § 3.400.  Accordingly, entitlement to an effective date prior to January 30, 2013 for the grant of service connection for bilateral pes planus with plantar fasciitis, hallux valgus, and degenerative joint disease is denied.

Following the final November 2013 Board decision, the next communication from the Veteran expressing an intent to file a claim for a low back disability was received by the AOJ on December 5, 2013, at which time the Veteran stated he sought service connection for degenerative disc disease.  

Because the December 5, 2013 claim was the first communication from the Veteran following the final November 2013 Board decision expressing an intent to file a claim of service connection for a low back disability, the Board finds the earliest possible effective date for the grant of service connection for lumbosacral strain with IVDS is December 5, 2013, the date of receipt of the Veteran's reopened claim.  38 C.F.R. § 3.400.  Accordingly, entitlement to an effective date of December 5, 2013 for the grant of service connection for lumbosacral strain with IVDS is granted.

Regarding the Veteran's radiculopathy of the left and right lower extremities, the first communication from the Veteran expressing an intent to file a claim of service connection for pain and neuropathy in his legs was received on January 30, 2013.  Further, the January 30, 2013 communication from the Veteran was the first communication following the final April 2010 Board decision in which the Veteran expressed an intent to file a claim of service connection for erectile dysfunction.  However, in the December 9, 2014 rating decision, the RO granted entitlement to service connection for radiculopathy of the lower extremities and erectile dysfunction as secondary to the Veteran's service-connected lumbosacral strain with IVDS.  Accordingly, the Board finds that entitlement to service connection for radiculopathy of the bilateral lower extremities and erectile dysfunction did not arise until the effective date of the grant of service connection for lumbosacral strain with IVDS.  See 38 C.F.R. § 3.310.  Therefore, the Board finds the earliest possible effective date for the grants of service connection for radiculopathy of the left lower extremity, radiculopathy of the right lower extremity, and erectile dysfunction is December 5, 2013.  38 C.F.R. § 3.400.  Accordingly, entitlement to an effective date of December 5, 2013 for the grants of service connection radiculopathy of the left lower extremity, radiculopathy of the right lower extremity, and erectile dysfunction is granted.  

In the December 9, 2014 rating decision, the AOJ granted entitlement to special monthly compensation based on loss of use of a creative organ as effective the same date as the grant of service connection for the Veteran's erectile dysfunction.  38 U.S.C.A. § 1114(k).  Accordingly, as an effective date of December 5, 2013 for the grant of service connection for erectile dysfunction has been established, the Board finds that entitlement to an effective date of December 5, 2013 for the grant of special monthly compensation based on the loss of use of a creative organ is also granted.  38 C.F.R. § 3.400.

Following the final November 2013 Board decision, the next communication from the Veteran expressing an intent to file a claim of service connection for bilateral hearing loss was received by the AOJ on January 14, 2014.  Although the Veteran characterized the statement as a notice of disagreement, the Veteran indicated he sought service connection for, "Tinnitus, to include Decreased Hearing Loss."  Therefore, the Board finds the earliest possible effective date for the grant of service connection for left ear hearing loss disability is January 14, 2014, the date of receipt of the Veteran's reopened claim.  38 C.F.R. § 3.400.  Accordingly, entitlement to an effective date of January 12, 2014 for the grant of service connection for left ear hearing loss disability is granted.

Finally, following the final November 2013 Board decision, the next communication from the Veteran expressing an intent to file a claim of service connection for PFB was received on December 6, 2014.  At that time, the Veteran submitted multiple documents, which included a copy of a November 2014 independent medical examination report from Dr. J.W.E., which opined as to the etiology of the Veteran's PFB.  Although the examination reported was dated in November 2014, under 38 C.F.R. § 3.400(b), it is the date of receipt of the claim which is considered for effective date purposes.  Therefore, the date of the examination report itself does not establish a possible effective date earlier than December 6, 2014, the date the report was received by VA.  Therefore, the Board finds the earliest possible effective date for the grant of service connection for PFB is December 6, 2014, the date of receipt of the Veteran's reopened claim.  38 C.F.R. § 3.400.  Accordingly, entitlement to an effective date prior to December 6, 2014 for the grant of service connection for PFB is denied.

For these reasons, the Board finds that the criteria for earlier effective dates for the grants of service connection for tinnitus, allergic rhinitis, lumbosacral strain with IVDS, radiculopathy of the left lower extremity, radiculopathy of the right lower extremity, erectile dysfunction, and left ear hearing loss disability have been met.  Further, the Board finds the criteria for an earlier effective date for the grant of special monthly compensation for loss of use of a creative organ has been met.  Accordingly, these claims are granted.

However, the Board finds that the preponderance of the evidence is against the claims for earlier effective dates for the grants of service connection for PTSD with bipolar disorder; bilateral pes planus with plantar fasciitis, hallux valgus, and degenerative joint disease; GERD; and PFB.  Because the preponderance of the evidence is against the claims, the doctrine of reasonable doubt is inapplicable.  See 38 U.S.C.A. § 5107(b); 38 C.F.R. §§ 3.102, 4.3.  Accordingly, the claims are denied.

Increased Rating

      Legal Criteria

A disability rating is determined by the application of VA's Schedule for Rating Disabilities (Rating Schedule), 38 C.F.R. Part 4.  The percentage ratings contained in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and their residual conditions in civil occupations.  Separate diagnostic codes identify the various disabilities.  38 U.S.C.A. § 1155; 38 C.F.R. § 4.1.  

VA has a duty to acknowledge and consider all regulations that are potentially applicable through the assertions and issues raised in the record, and to explain the reasons and bases for its conclusions.  Schafrath v. Derwinski, 1 Vet. App. 589 (1991).

Where there is a question as to which of two evaluations shall be applied, 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. 

The Board will consider whether separate ratings may be assigned for separate periods of time based on facts found, a practice known as "staged ratings."  Fenderson v. West, 12 Vet. App. 119, 126-27 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007).

The Veteran's allergic rhinitis has been rated under Diagnostic Code 6522.  Under this code, allergic rhinitis without polyps, but with greater than 50-percent obstruction of nasal passage on both sides or complete obstruction on one side warrants a 10 percent evaluation.  Allergic rhinitis with polyps warrants a 30 percent evaluation.  38 C.F.R. § 4.97, Diagnostic Code 6522.

      Analysis

In support of his claim for service connection, the Veteran submitted an April 2013 Sinusitis/Rhinitis and Other Conditions of the Nose, Throat, Larynx and Pharynx Disability Benefits Questionnaire (DBQ), completed by Dr. T.S., his treating physician at the Dallas VAMC.  See also April 2013 Allergy Consult note (filled out DBQ for patient).  Dr. T.S. indicated he had reviewed the Veteran's chart in CPRS, and listed the Veteran's only diagnosed condition as allergic rhinitis.  The Veteran reported that he has suffered with sneezing, runny and stuffy nose, and itchy eyes year-round since July 1988.  Dr. T.S. reported that the Veteran did not have greater than 50 percent obstruction of the nasal passage on both sides due to rhinitis, complete nasal obstruction on one side due to rhinitis, permanent hypertrophy of the nasal turbinates, nasal polyps, or any granulomatous conditions.

Upon examination for a May 2013 visit to the VA allergic clinic, the Veteran had no nasal congestion.  Allergy skin testing was performed, and the Veteran was advised to use a steroid nasal spray daily, especially during the spring and fall, as well as continue his antihistamine medication. 

The Veteran was afforded a VA examination in June 2015.  The VA examiner reviewed the evidentiary record and the Veteran's records on CPRS, and listed the Veteran's only diagnosed condition as allergic rhinitis.  The VA examiner indicated that upon examination, the Veteran did not have greater than 50 percent obstruction of the nasal passage on both sides due to rhinitis, complete nasal obstruction on one side due to rhinitis, permanent hypertrophy of the nasal turbinates, nasal polyps, or any granulomatous conditions.  The examiner also noted the Veteran's use of an antihistamine and a steroid nasal spray to treat his allergic rhinitis, as prescribed by the VA allergic clinic.  Finally, the VA examiner noted the Veteran's allergy symptoms will likely fluctuate in intensity during and in between allergy seasons, based upon the VA allergy clinic notes indicating the Veteran's allergic rhinitis is worse in the spring and fall due to his primary allergens.

The Board finds that a compensable rating is not warranted at any time during the appeal period.  The evidence does not reflect that the Veteran has rhinitis with polyps or that the Veteran has experienced more than 50 percent obstruction of both nasal passages or complete obstruction on one side to warrant a 10 percent rating.  Further, the Board has considered whether any other diagnostic codes would allow for a compensable evaluation during the initial rating period on appeal.  Diagnoses of sinusitis, granulomatous conditions, larynx and pharynx conditions or a deviated septum have been specifically excluded.  See June 2015 VA examination report; April 2013 DBQ completed by Dr. T.S.  Therefore, Diagnostic Codes 6514, 6520, 6521, 6523 and 6524 do not apply.  38 C.F.R. § 4.97.

The Veteran has reported experiencing a stuffy and runny nose.  See, e.g., April 2013 DBQ completed by Dr. T.S.  The Veteran is competent to report the symptoms of his disability, and his complaints are credible.  The Veteran's complaints have been considered; however, evaluations for VA purposes have not shown the severity required for a higher schedular rating.  To the extent that the Veteran argues or suggests that the clinical data supports an increased disability rating, his statements are outweighed by the more probative medical evidence.  The June 2015 VA examiner has conducted an examination to specifically address the extent of obstruction and found that he does not have any nasal obstruction or polyps to warrant a compensable rating.  The VA examiner's findings also confirm the findings reported by the Veteran's treating physician in the April 2013 DBQ.

For these reasons, the Board finds that the weight of the evidence is against a finding of an initial compensable disability rating for allergic rhinitis.  To the extent any higher level of compensation is sought, the preponderance of the evidence is against this claim, and hence the benefit of the doubt doctrine does not apply.  38 U.S.C.A. § 5107(b) ; 38 C.F.R. §§ 4.3, 4.7.

	Extraschedular Consideration

While the Board does not have authority to grant an extraschedular rating in the first instance, the Board does have the authority to decide whether the claim should be referred to the VA Director of Compensation for consideration of an extraschedular rating.  38 C.F.R. § 3.321(b)(1).  The governing norm for an extraschedular rating is a finding that the case presents such an exceptional or unusual disability picture with such related factors as marked interference with employment or necessitated frequent periods of hospitalization so as to render the regular schedular standards impractical.
 
The threshold factor for extraschedular consideration is a finding that the evidence presents such an exceptional disability picture that the available schedular rating for the service-connected disability is inadequate.  There must be a comparison between the level of severity and symptomatology of the service-connected disability with the established criteria. 
 
If the criteria reasonably describe the Veteran's disability level and symptomatology, then the disability picture is contemplated by the Rating Schedule, and the assigned schedular evaluation is, therefore, adequate, and no referral is required.  Thun v. Peake, 22 Vet. App. 111 (2008).

In this case, the record reflects that the manifestations of the Veteran's allergic rhinitis addressed above are specifically contemplated by the schedular criteria.  For instance, the Veteran's allergic rhinitis is manifested by sneezing, runny and stuffy nose, and itchy eyes.  The ratings assigned contemplate these impairments.  For these reasons, the disability picture is contemplated by the Rating Schedule, and the assigned schedular ratings are, therefore, adequate.  Accordingly, the Board has concluded that referral of this case for extra-schedular consideration is not in order.  Thun v. Peake, 22 Vet. App. 111, 115 (2008).

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.  Notably, the Veteran is also service connected for PTSD with bipolar disorder; bilateral pes planus with plantar fasciitis, hallux valgus, and degenerative joint disease; PFB; lumbosacral strain with IVDS; right and left lower extremity radiculopathy; GERD, tinnitus; left ear hearing loss; and erectile dysfunction.  Notably, neither the Veteran nor his representative has indicated any specific service-connected disabilities which are not captured by the schedular evaluations of the Veteran's individual service-connected conditions.

After applying the benefit of the doubt under of Mittleider v. West, 11 Vet. App. 181 (1998), the Board finds there are no additional service-connected disabilities that have not been attributed to a specific service-connected condition.  Accordingly, this is not an exceptional circumstance in which extraschedular consideration may be required to compensate the Veteran for a disability that can be attributed only to the combined effect of multiple conditions.

Service Connection

      Legal Criteria

A veteran is entitled to VA disability compensation if there is a disability resulting from personal injury suffered or disease contracted in the line of duty in active service, or for aggravation of a preexisting injury suffered or disease contracted in the line of duty in active service.  38 U.S.C.A. § 1131.  

Generally, to establish a right to compensation for a present disability, 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, the so-called "nexus" requirement.  Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004).

Service connection means the facts, shown by evidence, establish that a particular injury or disease resulting in disability was incurred coincident with service, or if preexisting such service, was aggravated by service.  This may be accomplished by affirmatively showing inception or aggravation during service.  38 C.F.R. § 3.303(a). 

Service connection may be granted for disability shown after service, when all of the evidence, including that pertinent to service, shows that it was incurred in service.  38 C.F.R. § 3.303(d). 

Service connection may also be established for any disability which is proximately due to or the result of a service-connected disease or injury.  See 38 C.F.R. § 3.310. In order to prevail on the issue of entitlement to secondary service connection, there must be (1) evidence of a current disability; (2) evidence of a service-connected disability; and (3) nexus evidence establishing a connection between the service-connected disability and the current disability.  See Wallin v. West, 11 Vet. App. 509, 512 (1998).

In Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990), the Court stated that "a veteran need only demonstrate that there is an 'approximate balance of positive and negative evidence' in order to prevail."  To deny a claim on its merits, the preponderance of the evidence must be against the claim.  See Alemany v. Brown, 9 Vet. App. 518, 519 (1996) (citing Gilbert, 1 Vet. App. at 54).

      Analysis

The Veteran's service treatment records do not contain any complaints of sleep disturbances, snoring, or daytime somnolence.  Upon his separation from active duty service, the Veteran reported in a June 1990 Report of Medical History that he was in good health, and specifically denied frequent trouble sleeping.  Upon the June 1990 separation examination, all of the Veteran's body systems were marked as normal, except for the notation of a tattoo.  

The Board notes that upon his November 2009 videoconference hearing, the Veteran testified that he does not remember filling out the Report of Medical History form at discharge, or undergoing a separation examination, and testified that he was told to sign a form and he could leave.

Further, the Board notes that the medical evidence of record does not include any complaints of sleep disturbances, to include sleep apnea, or related symptoms, not attributed to a psychiatric condition, until October 2008.  But see August 2005 prison mental health treatment record.  The Veteran has reported that he was unable to receive medical treatment for his many claimed conditions following his separation from service because he was homeless until early 1992, and that he was precluded from VA treatment until his discharge upgrade was approved in 1998.  Further, the Veteran was incarcerated from October 2002 through October 2007.  See, e.g., December 2013 Veteran statement.  

		Sleep Apnea

The Veteran contends that his current sleep apnea began during, and is related to, his active duty service.  See, e.g., February 2009 claim; August 2000 claim.  The Veteran further contends that his current sleep apnea is caused or aggravated by his service-connected PTSD with bipolar disorder, back disability, and/or foot disabilities.  See, e.g., December 2014 claim; November 2014 Dr. J.W.E. opinion; November 2014 Dr. D.A. opinion. 

The first elements under both Shedden and Wallin are met, as a February 2009 VA sleep study diagnosed obstructive sleep apnea.

Regarding the second element of Shedden for direct service connection, an in-service incurrence or aggravation of a disease or injury, during his November 2009 hearing before the Board, the Veteran testified that that he did not have trouble sleeping until the military, and that people would tell him that he was snoring, including his wife.  In May 2012, the Veteran submitted a lay statement from B.J., who stated he served on the same ship as the Veteran between December 1988 and May 1990.  B.J. stated, "I can recall sleeping near [the Veteran], and although he has always maintained a very good physique and exercises, regularly he snored very loudly for a young man and would constantly awake in the middle of the night and it sounded as if he would lose his breath while in a state of sleep."  The Board acknowledges that a layman is competent to report what he experiences through one of the senses.  See Layno v. Brown, 6 Vet. App. 465, 470 (1994).  Accordingly, the Board finds B.J. is competent to report his personal observations of the Veteran's sleep symptoms during service.  The evidence of record does not indicate any reason for the Board to question the credibility of B.J.'s statement.  Accordingly, the Board finds the second element of Shedden has been met.

In a December 2014 rating decision, service connection was granted for PTSD with bipolar disorder, lumbosacral strain with IVDS, and bilateral pes planus with plantar fasciitis, hallux valgus, and degenerative joint disease.  Therefore, the Board finds the second element under Wallin for secondary service connection is also met.

However, the Board finds that the preponderance of competent and credible evidence weighs against finding that the Veteran's current sleep apnea had its onset during active duty service, or that his current sleep apnea is otherwise related to his active duty service; therefore the third element under Shedden is not met.  

In December 2009, the Veteran submitted 16 form letters titled, "Witness Statement," in which various individuals filled in their name, and then signed the statement.  The text of these statements was identical, and all read that the individuals signing them "have known the claimant[] before military service, during enlistment...I can also personally declare and attest to the fact that [the] claimant suffered the following service-connected disabilities while preparing, training or engaged in extra-hazardous duty under conditions simulating war.  The Veteran is still currently receiving medical treatment at Dallas VA Medical Center for injuries/ailments he sustained while on active military duty."  One of the 18 disabilities listed on these forms was obstructive sleep apnea.  However, these form letters do not indicate exactly how the individuals signing them know the Veteran, or how they would know if the Veteran suffered disabilities or injuries during service.  Further, none of the statements indicate that the individuals signing them have any medical expertise in order to diagnose the conditions for which they claim to know the Veteran has experienced during and since his active duty service.  Similarly, in a December 2009 lay statement, Y.H. stated she has known the Veteran since 1986, and listed sleep apnea as one of the Veteran's ailments since his return home from service.  Again, a layman is competent to report what he experiences through one of the senses.  See Layno, 6 Vet. App. at 470.  Because these statements do not indicate how any of the individuals would have knowledge of what they are stating through their own senses, or that any of the individuals has any medical expertise in order to diagnose sleep apnea, the Board affords these lay statements little weight of probative value.

The only December 2009 form statement which indicated any specific relationship to the Veteran was from N.M., who indicated she was the Veteran's ex-wife.  In his August 2000 claim, the Veteran indicated he has lived with N.M. since December 1993.  However, the December 2009 form letter did not attest to anything N.M. may have observed through her own senses during their marriage, such as the Veteran's snoring, and therefore does not corroborate the Veteran's November 2009 testimony that she told him he snored.  Accordingly, the Board also affords N.M.'s form statement little weight of probative value.

In the February 2013 addendum to the December 2012 VA examination, the VA examiner reported that the claims file had been reviewed.  The VA examiner opined that it was not as likely as not the Veteran's sleep apnea was due to, caused by, or incurred in military service.  She noted that the Veteran did not have reports of sleep apnea, snoring, or other related symptoms during his military service.  She also stated the Veteran was diagnosed in 2009, that he had gained 38 pounds from the prior year, and that he weighed about 100 pounds more than he did at the time of his separation from active duty service.  The VA examiner noted that the most common risk factor for sleep apnea is obesity.

In November 2014, the Veteran was examined by Dr. D.A., who stated he reviewed the Veteran's entire claims file and recent medical literature.  Dr. D.A. opined, "[I]t is likely that the [V]eteran's obstructive sleep apnea began while he was in service," and noted the lay statement from B.J. about the Veteran's in-service symptoms.  Dr. D.A. cited a medical article for the proposition that snoring is a symptom of sleep apnea, and that "[g]enerally, symptoms of OSA [obstructive sleep apnea] begin insidiously and are often present for years before the patient is referred for evaluation."

However, in the December 2015 addendum to the June 2015 VA examination report, the VA examiner also noted the lay statement from B.J. regarding the Veteran's reported in-service symptoms, to include snoring.  The VA examiner also noted that the Veteran's service treatment records were silent for any report of daytime fatigue or sleepiness, or other sleeping disturbances, and stated that the evidentiary record was silent for any snoring, apnea, or daytime sleepiness until 2009.  The VA examiner opined that it is not as likely as not the Veteran's sleep apnea was due to military service, because not everyone who snores has sleep apnea, and indicated the Veteran's known risk factors for snoring included being a male, having allergic rhinitis, having a small airway, and a history of alcohol abuse.  Further, the Veteran had multiple known risk factors for sleep apnea, to include being a male, advanced age, and currently being overweight, but that during service he was young and not overweight.  Further, she noted the Veteran has a small airway, and a possible family history of sleep apnea in his father.  See also November 2009 videoconference hearing testimony.  

The Board places the most weight of probative value on the December 2015 VA addendum opinion, as it provides a detailed rationale for the Veteran's specific case and personal history, based upon medical principles and the totality of the evidence of record, regarding whether the Veteran's current sleep apnea is related to his active duty service, to include B.J.'s reports of the Veteran's in-service symptoms.  Although Dr. D.A.'s opinion was positive, it appears to have been based entirely on the lay statement regarding the Veteran's in-service snoring, and did not address the other evidence of record, to include the Veteran's other risk factors for sleep apnea upon its diagnosis in 2009.  Accordingly, the Board finds that the preponderance of the objective medical evidence of record does not support the Veteran's contentions that his current sleep apnea had its onset during service, or is otherwise related to his active duty service.

The Board has also considered the lay evidence offered by the Veteran.  This includes his statements that his sleep apnea began during, and has continued since, active duty service, as evidenced by his symptoms in service noted by B.J.  Although the basic principle that snoring can be a symptom of sleep apnea is within the common knowledge of lay persons, the factual picture presented is complex.  Whether the Veteran's in-service symptoms reported by B.J., including snoring, were related to his current diagnosis of sleep apnea cannot be determined by mere observation alone.  The Board finds that determining the etiology of the Veteran's current sleep apnea is not within the realm of knowledge of a non-expert given the remote report of snoring symptoms, the lack of medical or competent lay evidence of a continuation of symptoms since service, the 2009 diagnosis of sleep apnea, as well as the Veteran's many listed risk factors for sleep apnea.  As the evidence does not show that the Veteran has expertise in medical matters, the Board concludes that his nexus opinion in this regard is not competent evidence and therefore is not probative of whether the Veteran's current sleep apnea had its onset in service or is directly related to his active duty service.  See Wills v. Amerada Hess Corp., 379 F.3d 32, 46 (2d Cir. 2004) ("In a case such as this, where an injury has multiple potential etiologies, expert testimony is necessary to establish causation, even in view of plaintiff's reduced burden to prove causation.").

Accordingly, the Board finds the preponderance of competent and credible evidence weighs against finding that the Veteran's sleep apnea was incurred in, or is otherwise related to, his active duty service.  Therefore, service connection cannot be established on a direct basis.  38 C.F.R. § 3.303(a), (d); see Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004).

Further, the Board finds that the preponderance of competent and credible evidence weighs against finding that the Veteran's current sleep apnea was caused or aggravated by his service-connected PTSD with bipolar disorder, back disability, or foot disabilities; therefore the third element under Wallin is not met.

Upon an October 2008 VA sleep medicine consultation, the Veteran reported sleep problems "for years," including insomnia, excessive daytime somnolence, and snoring.  He also reported nightmares three times per week, and that he would check the perimeter every time he got up.  The assessment was insomnia, hypervigilence, nightmares, and PTSD, and the physician stated that even if the Veteran had obstructive sleep apnea, it could not be addressed.

In February 2009, the Veteran submitted a copy of the October 2008 sleep medicine consultation report, and wrote, "PTSD and sleep apnea."

In the November 2014 independent medical opinion, Dr. D.A. opined that it is more likely than not that the Veteran's sleep apnea is secondary to his PTSD, as well as pain syndrome related to his back injuries.  Dr. D.A. cited an article for the proposition that recent evidence suggests the increased incidence of sleep disturbances in redeployed military personnel is related to PTSD, depression, and anxiety.  He also noted that individuals with inadequately controlled pain may have fragmented sleep, and that chronic pain and disrupted sleep share a clear cause-and-effect relationship, and cited several medical articles.  

In November 2014, the Veteran also underwent an independent medical evaluation performed by Dr. J.W.E.  Dr. J.W.E. stated his opinions were based upon his examination of the Veteran, review of medical and/or service records, and his education and experience.  Dr. J.W.E. opined, "It is my medical opinion, that it is as likely as not, that the back injury that occurred in the service, which caused radiculopathy down the legs, decreased [the Veteran's] ability to perform the activities of daily living and made him more prone to developing weight gain.  His weight gain has contributed to the sleep apnea.  The weight around his neck has contributed to and aggravated his obstructive sleep apnea."  Dr. J.W.E. further opined, "It is also my medical opinion, that it is as likely as not, that his bilateral pes planus and bilateral plantar fasciitis, which were aggravated by the service, have also contributed to his inability to exercise and do the activities of daily living resulting in weight gain and aggravation of his chronic sleep apnea."

Upon the June 2015 VA examination, the VA examiner noted the opinions of Dr. J.W.E.  However, after reviewing the evidentiary record and performing her own examination, the June 2015 VA examiner opined that the Veteran's sleep apnea is not as likely as not due to or the result of his PTSD, bipolar disorder, back condition, and foot condition.  First, the VA examiner found that the Veteran was not a reliable historian, based upon her examinations, and based upon notations in several VA mental health notes.  She further noted the Veteran had seven known risk factors for sleep apnea at the time of his 2009 VA sleep study, two of which were obesity and a neck circumference greater than 17 inches.  Further, she noted the Veteran's prescribed psychiatric medications had known side effects of weight gain.  She opined that while it is likely that obesity contributed to the Veteran's sleep apnea, there is no way to determine exactly how much due to his having five other risk factors.  Further, she noted that the Veteran had seven known risk factors for weight gain, and that inactivity was only one.  She noted that the Veteran gained weight from 2007 to 2009 after being released from prison.  "He was 37 years old and under multiple social stressors (unemployed and difficulty finding [a] job and housing because of [the] nature of his incarceration[)], limited financial resources [] (needing foodstamps [sic] to eat), relationship issues (divorce) and was on medications for bipolar disorders that has known weight gain side effects."  She further noted that in 2009, the Veteran reported that for recreation and leisure, he would walk in the park.  She stated this indicated that despite pain from his back and foot conditions, he was likely able to do activities of daily living as well.

In the December 2015 addendum opinion, the June 2015 VA examiner opined that the Veteran's obstructive sleep apnea was not aggravated beyond its normal progression by his PTSD with bipolar disorder, back disability, or foot disabilities, because the Veteran's VA treatment records show the sleep apnea is not getting worse, but that he continues to have symptoms because of poor compliance using his CPAP (continuous positive airway pressure) over the years.  She further stated that the Veteran's VA treatment records indicate the Veteran's sleep apnea is better now than at the time of diagnosis when he uses his CPAP.

The Board places the most weight of probative value on the June 2015 VA examination report and the December 2015 VA addendum opinion.  The VA examiner provided a detailed rationale for the Veteran's specific case and personal history, based upon medical principles and the totality of the evidence of record, regarding whether the Veteran's current sleep apnea is caused or aggravated by his PTSD with bipolar disorder, back disability, or feet disabilities.  Dr. D.A.'s positive opinions appear to be based mostly on general propositions found in the cited medical literature, and did not discuss any specific relationship(s) between the Veteran's specific service-connected psychiatric disorders and/or his back disability and his diagnosed sleep apnea.  Further, Dr. J.W.E.'s opinions appear to have considered solely the possibility that the Veteran's back and foot disabilities have affected his ability to exercise, and extrapolated that this caused him to gain weight, and then noted the relationship between obesity and neck circumference and sleep apnea.  However, Dr. J.W.E. did not discuss the Veteran's multiple other risk factors for both gaining weight and for developing sleep apnea, as noted by the June 2015 VA examiner and supported by the totality of the evidence of record.  See, e.g., Veteran's VA mental health treatment notes.  Accordingly, the Board finds that the preponderance of the objective medical evidence of record does not support the Veteran's contentions that his current sleep apnea was caused or aggravated by his service-connected PTSD with bipolar disorder, back disability, and/or foot disabilities.

The Board has also considered the lay evidence offered by the Veteran.  This includes his statements that his sleep apnea was caused or aggravated by his service-connected disabilities.  Although the basic principles that sleep disturbances can be associated with psychiatric disorders, and musculoskeletal disabilities can cause a person to have decreased physical activity due to pain and then consequently to possibly gain weight, are within the common knowledge of lay persons, the factual picture presented is complex.  Whether the Veteran's service-connected psychiatric and/or physical disabilities caused or aggravated his current diagnosis of sleep apnea cannot be determined by mere observation alone.  The Board finds that determining the etiology of the Veteran's current sleep apnea is not within the realm of knowledge of a non-expert given the complex medical and psychiatric diagnoses of record, and the Veteran's many listed risk factors for weight gain and for sleep apnea.  As the evidence does not show that the Veteran has expertise in medical matters, the Board concludes that his nexus opinion in this regard is not competent evidence and therefore is not probative of whether the Veteran's current sleep apnea had its onset in service or is directly related to his active duty service.  See Wills v. Amerada Hess Corp., 379 F.3d 32, 46 (2d Cir. 2004).

Accordingly, the Board finds the preponderance of competent and credible evidence weighs against finding that the Veteran's sleep apnea was caused or aggravated by a service-connected disability.  38 C.F.R. § 3.310; see Wallin v. West, 11 Vet. App. 509, 512 (1998).

For the foregoing reasons, the Board must conclude that the preponderance of the evidence is against the claim of entitlement to service connection for sleep apnea.  The benefit of the doubt doctrine is therefore not applicable, and the claim must be denied.  See 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; Fagan v. Shinseki, 573 F.3d 1282, 1287 (Fed. Cir. 2009).

		Disability Manifested by Sleep Disturbances

An August 2005 mental health treatment note during the Veteran's incarceration included the Veteran's reports of decreased sleep, fatigue, being tired all the time, and that he could not sleep.  In the assessment section, the practitioner noted the Veteran continued to be noncompliant with his psychiatric medication, stated he presented as mildly manic, and diagnosed bipolar I disorder.

Upon an October 2008 VA sleep medicine consultation, the Veteran reported sleep problems "for years," including insomnia.  The Veteran reported falling asleep sitting, taking naps, falling asleep at red lights, and talking to his wife.  He also reported nightmares three times per week, and that he would check the perimeter every time he got up.  The assessment was insomnia, hypervigilence, nightmares, and PTSD.

The Veteran's VA mental health treatment records and examination reports have continually included the Veteran's reports of sleep disturbances, including nightmares, insomnia, fatigue, and decreased sleep, as symptoms of his psychiatric disorders.  See, e.g., June 2015 VA PTSD examination report; April 2013 mental health PTSD assessment; December 2012 VA primary care physician note; March 2010 mental health attending note; December 2008 mental health outpatient note; January 2008 mental health history.  The available medical evidence of record does not include any diagnosis of a disability, manifested by sleep disturbances, other than sleep apnea.

In the November 2014 independent medical opinion, Dr. D.A. discussed an article regarding the increased incidence of sleep disturbances in redeployed military personnel as being related to PTSD, depression, and anxiety.  However, Dr. D.A. did not indicate that the Veteran currently suffers from a specific disability manifested by sleep disturbances other than the diagnosed sleep apnea.

In the December 2015 addendum opinion to the June 2015 VA examination, the VA examiner noted that the Veteran complained of insomnia, stated that medical literature confirms difficulty sleeping is a common problem with bipolar disorder, and stated a mental health provider should be consulted if more information was needed about the insomnia and bipolar disorder.

The Board finds that the preponderance of the evidence of record is against finding the Veteran has a diagnosis of a separate disability manifested by sleep disturbances, to include insomnia, which is not already evaluated as a manifestation of his service-connected PTSD with bipolar disorder.  When evaluating a mental disorder, VA shall consider the frequency, severity, and duration of psychiatric symptoms, the length of remissions, and the veteran's capacity for adjustments during periods of remission.  38 C.F.R. § 4.126.  PTSD and bipolar disorder are rated under the schedule of ratings for mental disorders, 38 C.F.R. § 4.130, under which chronic sleep impairment is an enumerated symptom.  Further, the psychiatric symptoms listed in the rating criteria are not exclusive, but are examples of typical symptoms for the listed percentage ratings; VA considers the effects of all psychological symptoms on the Veteran's occupational and social functioning when rating his service-connected PTSD with bipolar disorder.  Mauerhan v. Principi, 16 Vet. App. 436 (2002).

The Board has also considered the lay evidence offered by the Veteran.  This includes his belief that he currently suffers from a disability manifested by sleep disturbances that was incurred in or is related to his active duty service, or that was caused or aggravated by his service-connected disabilities.  Under certain circumstances, a lay person is competent to identify a simple medical condition, a contemporaneous medical diagnosis, or symptoms that later support a diagnosis by a medical professional.  Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007).  Here, however, the question of whether the Veteran currently has a diagnosable condition separate from sleep apnea and the manifestations of his PTSD with bipolar disorder is a complex medical question, unlike testimony as to varicose veins or flat feet, which are capable of direct observation.  See Barr v. Nicholson, 21 Vet. App. 308-09 (2007) (finding that lay testimony is competent to establish the presence of varicose veins); Woehlaert v. Nicholson, 21 Vet. App. 456, 462 (2007) (discussing that unlike varicose veins, rheumatic fever is not a condition capable of lay diagnosis); Falzone v. Brown, 8 Vet. App. at 405 (finding that a lay person is competent to testify to pain and visible flatness of his feet).  As a disability manifested by sleep disturbances, to include insomnia, is not a simple medical condition capable of lay diagnosis, especially when there are concurrent sleep disorders and psychiatric diagnoses of record, the Veteran is not competent to render such diagnosis.  Rather, the Board affords significant weight of probative value to the findings of the June 2015 VA examiner, as she considered the Veteran's reported symptoms and history, but based on the totality of the evidence of record, and an objective examination, concluded there is no current diagnosis of a sleep disorder, and attributed the Veteran's insomnia to his service-connected bipolar disorder.

Congress has specifically limited entitlement to service-connected benefits to cases where there is a current disability.  "In the absence of proof of a present disability, there can be no valid claim."  Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992).  In this case, the preponderance of the competent and credible evidence of record is against a finding that the Veteran has a current diagnosis of a sleep disability manifested by sleep disturbances, other than obstructive sleep apnea, or which is not already evaluated as a manifestation of his service-connected PTSD with bipolar disorder.  Therefore, without a current diagnosis of a distinct sleep disability, service connection is not warranted.

The weight of the evidence is against the Veteran's claim, and the benefit of the doubt provision does not apply.  See 38 U.S.C.A. § 5107(b); Ortiz v. Principi, 274 F. 3d 1361 (Fed. Cir. 2001); Gilbert v. Derwinski, 1 Vet. App. 49 (1990).  Accordingly, the Board concludes that service connection for a disability manifested by sleep disturbances, to include insomnia, is not warranted.


Withdrawals

The Board may dismiss any appeal which fails to allege specific errors of fact or law in the determination being appealed.  38 U.S.C.A. § 7105.  An appeal may be withdrawn as to any or all issues involved in the appeal at any time before the Board promulgates a decision.  38 C.F.R. § 20.204.  

In a June 2015 written statement, prior to the promulgation of a decision in the appeal, the Veteran stated that he was not seeking an increased disability rating for his PTSD with bipolar disorder, lumbosacral strain with IVDS, or erectile dysfunction.  See also June 2015 Report of General Information (telephone conversation with Veteran).  This communication from the Veteran shows a clear desire on his part to withdraw these issues from his appeal.  As the Veteran has withdrawn the appeal as to the claims of entitlement to increased initial disability ratings for PTSD with bipolar disorder, lumbosacral strain with IVDS, and erectile dysfunction, there remain no allegations of errors of fact or law for appellate consideration as to those issues.  Accordingly, the Board does not have jurisdiction to review those appeals and they are dismissed.


ORDER

Entitlement to an effective date of January 30, 2013 for the grant of service connection for tinnitus is granted.

Entitlement to an effective date of January 30, 2013 for the grant of service connection for allergic rhinitis (also claimed as hay fever) is granted.

Entitlement to an effective date of December 5, 2013 for the grant of service connection for lumbosacral strain with IVDS (also claimed as tail bone pain and coccydynia) is granted.

Entitlement to an effective date prior of December 5, 2013 for the grant of service connection for left lower extremity radiculopathy as secondary to the service-connected disability of lumbosacral strain with IVDS is granted.

Entitlement to an effective date of December 5, 2013 for the grant of service connection for right lower extremity radiculopathy as secondary to the service-connected disability of lumbosacral strain with IVDS is granted.

Entitlement to an effective date of December 5, 2013 for the grant of service connection for erectile dysfunction as secondary to the service-connected disability of lumbosacral strain with IVDS is granted.

Entitlement to an effective date of December 5, 2013 for the grant of entitlement to special monthly compensation based on loss of use of a creative organ is granted.

Entitlement to an effective date of January 14, 2014 for the grant of service connection for left ear hearing loss disability is granted.

Entitlement to an effective date prior to January 30, 2013 for the grant of service connection for PTSD with bipolar disorder (also claimed as depression and an acquired psychiatric disorder) is denied.

Entitlement to an effective date prior to January 30, 2013 for the grant of service connection for bilateral pes planus with plantar fasciitis, hallux valgus, and degenerative joint disease is denied.

Entitlement to an effective date prior to January 30, 2013 for the grant of service connection for GERD is denied.

Entitlement to an effective date prior to December 6, 2014 for the grant of service connection for PFB is denied.

Entitlement to an initial compensable disability rating for allergic rhinitis is denied.

Entitlement to service connection for sleep apnea is denied.

Entitlement to service connection for a disability manifested by sleep disturbances is denied.

The appeal as to the claim of entitlement to an initial disability rating in excess of 70 percent for PTSD with bipolar disorder is dismissed.

The appeal as to the claim of entitlement to an initial disability rating in excess of 20 percent for lumbosacral strain with IVDS is dismissed.

The appeal as to the claim of entitlement to an initial compensable disability rating for erectile dysfunction is dismissed.


REMAND

An April 2014 VA audiology note indicates puretone testing was performed, however the audiogram is not of record.  On remand, the AOJ should obtain all outstanding VA treatment records, to include all audiograms.

The Veteran was last afforded a VA audiological examination in December 2012, and at that time, the Veteran's auditory thresholds and speech discrimination scores were on the threshold of meeting the requirements under 38 C.F.R. § 3.385 to be considered a disability for VA compensation purposes.  On remand, the AOJ should afford the Veteran a new VA audiological examination to determine the current severity of the Veteran's right ear hearing loss.

The Veteran's VA treatment records indicate that in September 2015, the Veteran requested his primary care provider add a request to perform an MRI of his hips to a previously ordered MRI of his back, to be performed at an outside facility.  The physician indicated the request was added, however, the records are unclear if the MRI of the hips was performed.  See, e.g., October 2015 primary care message.  On remand, the AOJ should ask the Veteran to identify any private treatment or testing regarding his hips, to include any MRI reports, and undertake appropriate efforts to obtain any outstanding records.

The Veteran's VA treatment records also suggest there may be a relationship between the Veteran's service-connected back disability and his hips.  See, e.g., August 2015 primary care note; February 2014 primary care physician note.  On remand, the AOJ should afford the Veteran a VA examination to determine whether the Veteran's current left and/or right hip disability is caused or aggravated by the Veteran's service-connected back disability.

While the Veteran has sought service connection for disabilities of specific joints in the past, he also has indicated that he seeks service connection for a separate disability manifested by unspecified joint and muscle pain throughout the body.  See, e.g., January 2013 claim.  On remand, the AOJ should afford the Veteran a VA examination to determine whether the Veteran has a current disability manifested by joint and muscle pain throughout the body.

Finally, the Board finds the Veteran's claims for TDIU, basic eligibility for Dependents' Educational Assistance, and entitlement to an earlier effective date for the recognition of "T" as a dependent child for VA compensation purposes are inextricably intertwined with the remanded claims of service connection.  Accordingly, the Board will defer decision on the matters.  See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991) (finding that two or more issues are inextricably intertwined if one claim could have significant impact on the other).

Accordingly, the case is REMANDED for the following action:

(This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c).  Expedited handling is requested.)

1. The AOJ should ask the Veteran to identify any private treatment related to his hearing loss, hips, and/or his unspecified joint and muscle pain.  The AOJ should undertake appropriate development to obtain any outstanding private treatment records, to include any MRI of the hips performed in 2015.  The Veteran's assistance should be requested as needed.  All obtained records should be associated with the evidentiary record.

The AOJ must perform all necessary follow-up indicated.  If the records are not available, the AOJ should make a formal finding of unavailability, advise the Veteran and his representative of the status of his records, and give the Veteran the opportunity to obtain the records on his own.

2. The AOJ should obtain any outstanding VA treatment records, to include the April 2014 audiogram, and all updated treatment records from February 2016 to the present.  All obtained records should be associated with the evidentiary record.

3. After the above development has been completed, and after any records obtained have been associated with the evidentiary record, the Veteran should be afforded a VA examination with an appropriate examiner to determine the current severity of his right ear hearing loss.  All necessary tests and studies should be accomplished, and all clinical findings should be reported in detail.

4. After #1 and #2 have been completed, and after any records obtained have been associated with the evidentiary record, the Veteran should be afforded a VA examination with an appropriate examiner to determine the nature and etiology of his current left and/or right hip disabilities.  The evidentiary record, including a copy of this remand, must be made available to and reviewed by the examiner.  The examination report must include a notation that this record review took place.

The examiner should elicit a full history from the Veteran.  All necessary tests and studies should be accomplished, and all clinical findings should be reported in detail.

After the record review, and a thorough examination and interview of the Veteran, the VA examiner should offer his/her opinion with supporting rationale as to the following inquiries:

a) For each left and/or right hip diagnosis, is it at least as likely as not (i.e. probability of 50 percent or greater) that the Veteran's current disability was caused by the Veteran's service-connected back disability?

The examiner is advised that the Veteran has already been awarded service connection for radiculopathy of the left and right lower extremities as secondary to his back disability; accordingly, the Board is not inquiring as to any neurological issues of the hips related to the back disability.

b) For each left and/or right hip diagnosis, is it at least as likely as not (i.e. probability of 50 percent or greater) that the Veteran's current disability is aggravated by the service-connected back disability?

Aggravation indicates a permanent worsening of the underlying condition as compared to an increase in symptoms.  If aggravation is found, the examiner should attempt to quantify the extent of additional disability resulting from the aggravation.

The complete rationale for all opinions should be set forth.  

5. After #1 and #2 have been completed, and after any records obtained have been associated with the evidentiary record, the Veteran should be afforded a VA examination with an appropriate examiner to determine the nature and etiology of any current disability manifested by unspecified joint and muscle pain throughout the body.  The evidentiary record, including a copy of this remand, must be made available to and reviewed by the examiner.  The examination report must include a notation that this record review took place.

The examiner should elicit a full history from the Veteran.  All necessary tests and studies should be accomplished, and all clinical findings should be reported in detail.

After the record review, and a thorough examination and interview of the Veteran, the VA examiner should offer his/her opinion with supporting rationale as to the following inquiry:

Does the Veteran have a current diagnosis of a disability manifested by unspecified joint and muscle pain throughout the body?

The examiner should note that the Veteran has sought service connection for disabilities of specific joints in the past; however, he appears to indicate that he also suffers from a separate, underlying disability manifested by joint and muscle pain throughout his body.

The complete rationale for all opinions should be set forth.  

6. After the above development has been completed, adjudicate the claims.  If any benefit sought remains denied, provide the Veteran and his representative with a supplemental statement of the case, and return the case to the Board.

The Veteran 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 LANE
Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs