Citation Nr: 1751377 Decision Date: 11/09/17 Archive Date: 11/17/17 DOCKET NO. 16-49 057 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in New Orleans, Louisiana THE ISSUES 1. Entitlement to a compensable disability rating for lumbar strain, to include entitlement to a temporary total evaluation because of treatment for a service-connected condition requiring convalescence pursuant to 38 C.F.R. § 4.30. 2. Entitlement to service connection for ischemic heart disease, claimed as due to herbicide exposure. 3. Entitlement to a compensable disability rating for bilateral hearing loss. 4. Entitlement to service connection for a left shoulder disorder. 5. Whether new and material evidence has been received to reopen a previously denied claim of entitlement to service connection for an acquired psychiatric disorder (previously claimed as a nervous condition). 6. Entitlement to service connection for erectile dysfunction. 7. Entitlement to a total disability rating based on individual unemployability due to service-connected disability (TDIU). REPRESENTATION Appellant represented by: J. Michael Woods, Private Attorney ATTORNEY FOR THE BOARD April Maddox, Counsel INTRODUCTION The Veteran served on active duty from May 1956 to May 1976. Significantly, his service personnel records show that the Veteran served on Nakhon Phanom, Mukdahan, and Udorn Royal Thai Air Force Bases (RTAFBs) in Thailand from September 1969 to September 1970 This matter comes to the Board of Veterans' Appeals (Board) on appeal from February 2013 and September 2016 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in New Orleans, Louisiana. Specifically, the February 2013 rating decision, in part, continued noncompensable disability ratings for the Veteran's service-connected bilateral hearing loss and lumbar strain; denied service connection for a left shoulder disorder; found that the Veteran had failed to submit new and material evidence to reopen previously denied claims of entitlement to service connection for heart and psychiatric disorders; and with regard to the claimed lumbar spine, heart, and left shoulder issues, denied temporary total evaluations because of treatment for a service-connected condition requiring convalescence. The September 2016 rating decision denied service connection for erectile dysfunction. The Veteran's claim for service connection for a heart disorder was initially denied in an unappealed June 2009 rating decision. The issue at that time was characterized as entitlement to service connection for heart disease. New and material evidence would ordinarily be required to reopen this claim. 38 U.S.C.A. § 5108. However, VA has issued a liberalizing regulation that creates a new presumptive basis for the grant of service connection for ischemic heart disease as secondary to herbicide exposure. See 75 Fed. Reg. 53, 202 (Aug. 31, 2010). The final rule noted that VA will apply this rule in re-adjudicating certain previously denied claims as required by court orders in Nehmer v. U.S. Department of Veterans Affairs. Therefore, new and material evidence is not required; and the claim must be reviewed on a de novo basis. See Pelegrini v. Nicholson, 18 Vet. App. 112, 125 (2004); Spencer v. Brown, 4 Vet. App. 283 (1993), aff'd 17 F. 3d 368 (Fed. Cir. 1994). With regard to both the heart and left shoulder issues, the RO characterized these issues as including claims of entitlement to a temporary total evaluation because of treatment for a service-connected condition requiring convalescence under 38 C.F.R. § 4.30. In his August 2012 claim for service connection for these disabilities, the Veteran wrote that he had surgery on his heart in 2002 and surgery on his left shoulder in January 2012. While the Board has granted service connection for ischemic heart disease, the earliest claim for service connection for heart disease is dated in December 2007 which post-dates the 2002 surgery claimed by the Veteran. With regard to the left shoulder, the earliest claim for service connection for a left shoulder is dated in August 2012 which post-dates the January 2012 surgery claimed by the Veteran. Furthermore, the Board has denied service connection for a left shoulder disability. As there is no possibility of a temporary total evaluation because of treatment for a service-connected heart or left shoulder disorder requiring convalescence under 38 C.F.R. § 4.30, the Board has recharacterized the heart and left shoulder issues as noted on the first page of this decision. With regard to the TDIU claim, a review of the record shows that the Veteran retired from his employment in 1991, at the age of 56. In a February 2016 statement, Dr. K.D.D. wrote that the Veteran was unable to maintain substantially gainful employment due to his service-connected lumbar strain. Given the above, the Board has taken jurisdiction of the TDIU issue in accordance with Rice v. Shinseki, 22 Vet. App. 447 (2009) (holding that a request for TDIU, whether expressly raised by the Veteran or reasonably raised by the record, is not a separate "claim" for benefits, but rather, is part of a claim for increased compensation). In a March 2017 rating decision, the RO found that the Veteran had failed to submit new and material evidence to reopen a previously denied claim of entitlement to service connection for diabetes. Later that month, the Veteran entered a notice of disagreement (NOD) with the Agency of Original Jurisdiction (AOJ) as to this decision. When an NOD has been filed with regard to an issue, and a statement of the case (SOC) has not been issued, the appropriate Board action is to remand the issue to the agency of original jurisdiction for issuance of an SOC. Manlincon v. West, 12 Vet. App. 238 (1999). However, a review of the claims file shows that the AOJ has acknowledged receipt of the NOD and is actively developing that claim. Accordingly, the Board declines to exercise jurisdiction over this claim for Manlincon purposes as no such action on the part of the Board is warranted at this time. During the course of the appeal for a compensable rating for the Veteran's service-connected lumbar strain, and prior to the March 24, 2015 effective date of the change in regulations requiring that a claim for benefits be submitted on the application form prescribed by the Secretary (38 C.F.R. § 3.1(p), 3.155, 3.160), the issue of entitlement to service connection for degenerative disc disease and degenerative joint disease of the lumbar spine to include entitlement to a temporary total evaluation because of treatment for a service-connected condition requiring convalescence pursuant to 38 C.F.R. § 4.30 was raised by the record. However, this issue has not yet been adjudicated by the Agency of Original Jurisdiction (AOJ). 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) (2016). This appeal was processed using the Veterans Benefits Management System (VBMS) and Virtual VA paperless claims processing systems. This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2017). 38 U.S.C.A. § 7107(a)(2) (West 2014). The issues of entitlement to a TDIU and entitlement to service connection for erectile dysfunction are addressed in the REMAND portion of the decision below and are REMANDED to the AOJ. FINDINGS OF FACT 1. The Veteran was stationed at Royal Thai Air Force Bases (RTAFBs) in Nakhon Phanom, Mukdahan, and Udorn, Thailand from September 1969 to September 1970. 2. Declassified Department of Defense reports show that herbicide agents were used during the Veteran's service at Nakhon Phanom and Udorn. 3. Based on his credible assertion of serving near the perimeter of Nakhon Phanom and Udorn RTAFBs, and resolving all doubt in his favor, the Veteran is found to have been exposed to herbicide agents during his active service. 4. The medical evidence establishes that the Veteran was diagnosed with ischemic heart disease in approximately January 2004. 5. The Veteran's ischemic heart disease is presumed related to his exposure to herbicide agents while serving in Thailand. 6. A left shoulder disability is not shown to be causally or etiologically related to any disease, injury, or incident in service, and did not manifest within one year of the Veteran's discharge from service. 7. In a final decision issued in June 1977, the RO denied the Veteran's claim of entitlement to service connection for a nervous condition. 8. Evidence added to the record since the final June 1977 denial is cumulative or redundant of the evidence of record at the time of the decision and does not raise a reasonable possibility of substantiating the Veteran's claim of entitlement to service connection for an acquired psychiatric disorder. 9. The record evidence shows that the Veteran does not experience any current residuals of his service-connected lumbar strain. 10. The Veteran has no more than Level II hearing loss in the right ear and Level II hearing loss in the left ear, evaluated as non-compensable. CONCLUSIONS OF LAW 1. The criteria for service connection for ischemic heart disease, as presumed related to active military service, are met. 38 U.S.C.A. §§ 1110, 1112, 1113, 1116, 1131, 5107(b) (West 2014); 38 C.F.R. §§ 3.1, 3.6, 3.102, 3.303, 3.307, 3.309 (2017). 2. A left shoulder disability was not incurred in or aggravated by the Veteran's active duty military service, nor may it be presumed to have been incurred in or aggravated by service. 38 U.S.C.A. §§ 1101, 1112, 1116, 1131, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309 (2017). 3. The June 1977 rating decision that denied service connection for a nervous condition is final. 38 U.S.C.A. § 7105 (West 1976) [(West 2014)]; 38 C.F.R. §§ 3.104, 20.302, 20.1103 (1977) [(2017)]. 4. New and material evidence has not been received to reopen the claim of entitlement to service connection for a nervous condition. 38 U.S.C.A. § 5108 (West 2014); 38 C.F.R. § 3.156(a) (2017). 5. The criteria for a compensable disability rating for lumbar strain are not met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.1, 4.3, 4.7, 4.71a, General Rating Formula for Diseases and Injuries of the Spine (for Diagnostic Code (DC) 5237) (2017). 6. The criteria for a compensable disability rating for bilateral hearing loss have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 2014); 38 C.F.R. §§ 3.385, 4.1-4.7, 4.21, 4.85, DC 6100 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran contends that his ischemic heart disease, left shoulder disorder, and an acquired psychiatric disorder are related to his service with the United States Air Force. He also contends that his service-connected lumbar strain and bilateral hearing loss are more disabling than currently evaluated. I. Notice and Assistance With respect to the Veteran's claim herein, VA has met all statutory and regulatory notice and duty to assist provisions. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2014); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326 (2015); see also Scott v. McDonald, 789 F.3d 1375 (Fed. Cir. 2015). Specifically, the Board finds that VA has satisfied its duty to notify under the Veterans Claims Assistance Act (VCAA) by way of an October 2012 letter, which was sent prior to the initial unfavorable decision issued in February 2013. Such letter advised the Veteran of the evidence and information necessary to substantiate his claims for service connection and an increased rating. Relevant to the duty to assist, the Veteran's available service treatment records as well as post-service VA and private treatment records have been obtained and considered. The Veteran has not identified any additional, outstanding records that have not been requested or obtained. With regard to the left shoulder issue decided below, the Board notes that no examination was conducted nor is one warranted in conjunction with such claim. In this regard, under 38 U.S.C.A. § 5103A(d), VA's duty to assist includes providing a claimant a medical examination or obtaining a medical opinion when an examination or opinion is necessary to make a decision on a claim and the claims file contains competent evidence that the claimant has a current disability and indicates that the disability may be associated with the claimant's service. The types of evidence that indicate that a current disability may be associated with military service include, but are not limited to, medical evidence that suggests a nexus but is too equivocal or lacking in specificity to support a decision on the merits, or credible evidence of continuity of symptomatology such as pain or other symptoms capable of lay observation. McLendon v. Nicholson, 20 Vet. App. 79, 83 (2006). The Board finds that a VA examination and/or opinion is not necessary with respect to the claim for service connection for a left shoulder disorder decided herein. Specifically, as will be discussed below, there is no medical evidence of such disability until several years after service and no indication that such is related to the Veteran's military service. Therefore, the Board finds that a VA examination and/or opinion is not necessary to decide this issue. With regard to the acquired psychiatric disorder issue, the Board notes that the Veteran has not been provided with a VA examination in connection with this claim; however, the VCAA and its implementing regulations include clear guidelines consistent with the intent of Congress regarding the timing and the scope of assistance VA will provide to a claimant who attempts to reopen a previously denied claim. See 38 C.F.R. § 3.159(1), (2), and (3). Such assistance includes obtaining service records, records in the custody of a Federal agency, and private records adequately identified by the claimant, but, prior to reopening a claim, there is no duty to obtain a VA medical examination or opinion. As the Veteran's claim for service connection for an acquired psychiatric disorder not reopened herein, there is no obligation on the part of VA to provide a medical examination or opinion in connection with such claim. With regard to the lumbar strain issue, while the April 2012 VA examination findings do not comply with the requirements in 38 C.F.R. § 4.59 and Correia v. McDonald, 28 Vet. App. 158 (2016) as the range of motion findings do not show pain on both active and passive motion, in weight-bearing and nonweight-bearing, given that the Veteran's service-connected lumbar strain has been found to have no current residuals, the Board finds that this is harmless error. With regard to the hearing loss issue, the Veteran was afforded a VA examination in April 2012 to determine the nature and severity of this disorder. There have been no allegations that such examination is inadequate or that such disorder has increased in severity since the most recent examination. Furthermore, the Board finds that the examination is adequate in order to evaluate the Veteran's service-connected disability as it includes an interview with the Veteran, a review of the record, and full examination, addressing the relevant rating criteria. As such, the Board finds that there is no need to obtain a new examination. II. Service Connection Analysis Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Service connection may also be granted for any disease diagnosed after discharge, when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Direct service connection may not be granted without evidence of a current disability; in-service incurrence or aggravation of a disease or injury; and a nexus between the claimed in-service disease or injury and the present disease or injury. 38 U.S.C.A. § 1112; 38 C.F.R. § 3.304. See also Caluza v. Brown, 7 Vet. App. 498, 506 (1995) aff'd, 78 F.3d 604 (Fed. Cir. 1996) [(table)]. Additionally, for Veterans who have served 90 days or more of active service during a war period or after December 31, 1946, certain chronic disabilities, such as arthritis, are presumed to have been incurred in service if manifest to a compensable degree within one year of discharge from service. 38 U.S.C.A. §§ 1101, 1112, 1137; 38 C.F.R. §§ 3.307, 3.309. Alternatively, when a disease at 38 C.F.R. § 3.309(a) is not shown to be chronic during service or the one year presumptive period, service connection may also be established by showing continuity of symptomatology after service. See 38 C.F.R. § 3.303(b). The use of continuity of symptoms to establish service connection is limited only to those diseases listed at 38 C.F.R. § 3.309(a) and does not apply to other disabilities which might be considered chronic from a medical standpoint. See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). The governing law provides that a "veteran who, during active military, naval, or air service, served in the Republic of Vietnam during the period beginning on January 9, 1962, and ending on May 7, 1975 shall be presumed to have been exposed during such service to an herbicide agent . . . unless there is affirmative evidence to establish that the veteran was not exposed to any such agent during that service." 38 U.S.C.A. § 1116(f). VA regulations provide that, if a veteran was exposed to an herbicide agent during active service, presumptive service connection is warranted for several disorders, to include ischemic heart disease. 38 C.F.R. § 3.309(e); See also 75 Fed. Reg. 53,202 (Aug. 31, 2010). "Service in the Republic of Vietnam," includes service in the waters offshore and service in other locations if the conditions of service involved duty or visitation in the Republic of Vietnam. 38 C.F.R. § 3.307(a)(6)(iii). The VA General Counsel has determined that the regulatory definition (which permits certain personnel not actually stationed within the borders of the Republic of Vietnam to be considered to have served in that Republic) requires that an individual actually have been present within the boundaries of the Republic. See VAOPGCPREC 27-97. Specifically, the General Counsel has concluded that in order to establish qualifying "service in Vietnam" a veteran must demonstrate actual duty or visitation in the Republic of Vietnam. VA procedures for verifying exposure to herbicides in Thailand during the Vietnam Era are detailed in the VA Adjudication Manual, M21-1MR, Part IV, Subpart ii, Chapter 2, Section C ("M21-1MR"). VA has determined that there was significant use of herbicides on the fenced-in perimeters of military bases in Thailand intended to eliminate vegetation and ground cover for base security purposes as evidenced in the "Project CHECO Southeast Asia Report: Base Defense in Thailand." Special consideration of herbicide exposure on a facts-found or direct basis should be extended to those veterans whose duties placed them on or near the perimeters of Thailand military bases. This allows for presumptive service connection of the diseases associated with herbicide exposure. The majority of troops in Thailand during the Vietnam Era were stationed at the Royal Thai Air Force Bases (RTAFB) of U-Tapao, Ubon, Nakhon Phanom, Udorn, Takhli, Korat, and Don Muang. If a veteran served on one of these air bases as a security policeman, security patrol dog handler, member of a security police squadron, or otherwise served near the air base perimeter, as shown by MOS (military occupational specialty), performance evaluations, or other credible evidence, then herbicide exposure should be acknowledged on a facts-found or direct basis. See M21-1MR, Part IV, Subpart ii, Chapter 2, Section C.10(q). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). 1. Ischemic heart disease In this case, the Veteran's private treatment records show a diagnosis of ischemic heart disease as early as January 2004. He filed an initial claim for service connection for heart disease in December 2007. Specifically, the Veteran notes that ischemic heart disease is a presumptive disorder for those Veterans who set foot in Vietnam during the Vietnam era pursuant to 38 C.F.R. § 3.309 as due to herbicide exposure. While the Veteran does not contend that he ever set foot in Vietnam, he notes that he was stationed at RTAFB in Nakhon Phanom, Mukdahan, and Udorn, Thailand during the Vietnam era and was exposed to herbicides during this service. Personnel records and service treatment records clearly show that the Veteran was stationed at the RTAFBs in Nakhon Phanom, Mukdahan, and Udorn Thailand from September 1969 to September 1970. His duty title in Nakhon Phanom was "communications center specialist" and his duty title in Udorn was "flight supervisor." The question remains as to whether the Veteran was exposed to herbicides while stationed in Thailand. Giving the Veteran the benefit of the doubt, the Board finds his job duties brought him near the perimeter of the Nakhon Phanom and Udorn RTAFBs and he was likely exposed to herbicides during that service. In January 2011 correspondence, the Veteran wrote that he served at RTAFBs in Thailand where herbicides were sprayed on the perimeter of the bases and transports carrying herbicides were stationed and serviced. According to the Veteran, part of his regular duties was to periodically pull guard duty on the perimeter of the bases in the areas which had been sprayed. He was also charged with meeting certain planes on the flight line and going to the plane to receive classified packages and delivering them to appropriate personnel. According to the Veteran, this regular time on the flight line and the time both around and on the planes containing herbicides contributed to his exposure to herbicides. In March 2017 correspondence, E.M. wrote that he was stationed with the Veteran in Thailand between September 1969 and December 1970 at Mukdahan where they were tasked with sending people across the borders, directing air strikes, and spraying herbicides. E.M. wrote that they were there for about seven months and all of them, including the Veteran, had to share in all of the details or tasks because there were only about 60 to 70 service members stationed there. There was not enough of them to only perform details to their military occupational specialties (MOSs), so they had to perform all duties assigned. The Board finds that there is no basis in the record to question the Veteran's credibility regarding his statements as to the nature and responsibilities of his service while at Nakhon Phanom and Udorn RTAFBs. The Veteran's personnel records show that he was stationed at Nakhon Phanom and Udorn RTAFBs from September 1969 to September 1970. His duty title in Nakhon Phanom was "communications center specialist" and his duty title in Udorn was "flight supervisor." According to the Veteran, he would also periodically perform guard duty along the perimeter of these bases. Consequently, the Board finds that the evidence supports a finding that the Veteran's daily work duties brought him near the perimeter of Nakhon Phanom and Udorn RTABFs. Consequently, the Board finds that the Veteran was likely exposed to herbicides while stationed in Thailand. As such, service connection for ischemic heart disease is warranted on a presumptive basis. 2. Left shoulder The Veteran contends that he has a current left shoulder disability which is related to his military service. However, the Veteran's service treatment records are negative for left shoulder problems. Significantly, the examination reports dated in April 1956, June 1967, June 1970, February 1974, and July 1975 show normal upper extremities. Furthermore, in May 1956, June 1967, June 1970, and February 1974 reports of medical history, the Veteran specifically denied "painful or 'trick' shoulder or elbow," "bone, joint, or other deformity," and "arthritis or rheumatism." Also, the Veteran does not contend that he was treated for left shoulder problems during his military service nor has he ever explained why he believes a left shoulder disability is related to his military service. The earliest medical evidence of a left shoulder disability is a January 2012 magnetic resonance imaging (MRI) scan of the left shoulder showing a significant rotator cuff tear of the left shoulder as well as osteoarthritis. Later that month, the Veteran underwent left shoulder arthroscopy with subacromial arch decompression and rotator cuff repair. The Veteran first submitted a claim for service connection for a left shoulder disorder in August 2012. The Board finds that the preponderance of the evidence is against service connection for arthritis on a presumptive basis. Significantly, there is no evidence of arthritis within one year after military service. As above, the earliest evidence of arthritis of the left shoulder is the January 2012 MRI which is approximately 36 years after the Veteran's discharge from military service. The Board also finds that the preponderance of the evidence is against service connection for a left shoulder disorder on a direct basis. First, there is no evidence of an indication or diagnosis of such disorder in service. As above, the Veteran's service treatment records are negative for left shoulder problems and the Veteran does not allege any in-service treatment for a left shoulder disorder. Second, the earliest indication of a left shoulder disorder is a January 2012 MRI showing a rotator cuff tear which suggests a recent onset. Such a lapse of time is a factor for consideration in deciding a service connection claim. Maxson v. Gober, 230 F.3rd 1330, 1333 (Fed. Cir. 2000). Finally, there is no medical evidence in the record that links any current disorder of the left shoulder to an incident of the Veteran's active military service. Consequently, there is no reasonable possibility of substantiating his claim on a direct basis. See Waters v. Shinseki, 601 F.3d 1274 (Fed. Cir. 2010) (distinguishing cases where only a conclusory generalized statement is provided by the Veteran, in which case an examination may not be required). It is acknowledged that the Veteran is competent to give evidence about his observable symptomatology. Layno, 6 Vet. App. at 465. It is further acknowledged that lay evidence concerning continuity of symptoms after service, may be credible regardless of the lack of contemporaneous medical evidence. Buchanan, 451 F.3d at 1331. Here, however, the Veteran has not contended that he has experienced left shoulder problems since his military service. Furthermore, any statements as to left shoulder problems continuing since service are not found to be persuasive in light of the fact that the Veteran was not treated for the left shoulder until January 2012 at which time the Veteran was treated for a rotator cuff tear, suggesting a much more recent onset. For these reasons, continuity of symptomatology has not here been established, either through the medical evidence or through the Veteran's statements. Stated differently, a left shoulder disorder was not demonstrated during service, at separation, or within one year of separation. Such findings are inconsistent with any possible allegation of continuity of symptomatology. Furthermore, there is no competent evidence linking the remote onset of the claimed disorder to service. Accordingly, for the reasons stated above, the Board finds that the preponderance of the evidence is against the claim for service connection for a left shoulder disability. III. New and Material Evidence Analysis By way of background, the Veteran's original claim of entitlement to service connection for a nervous condition was denied by a June 1977 rating decision. Specifically, the RO determined that, there was no evidence of psychiatric problems in service and no evidence of a current diagnosis of a psychiatric disorder. Although the RO provided notice of the June 1977 denial, the Veteran did not initiate an appeal. Therefore, the RO's decision of June 1977 is final. 38 U.S.C.A. § 7105 (West 1976) [(West 2014)]; 38 C.F.R. §§ 3.104, 20.302, 20.1103 (1977) [(20157)]. In this regard, the Board has considered the applicability of 38 C.F.R. § 3.156(b), which provides that, when new and material evidence is received prior to the expiration of the appeal period, it will be considered as having been filed in connection with the claim which was pending at the beginning of the appeal period. In the instant case, such regulation is applicable as no evidence pertaining to the Veteran's claim for service connection for an acquired psychiatric disorder was received prior to the expiration of the appeal period stemming from the June 1977 rating decision. See also Bond v. Shinseki, 659 F.3d 1362, 1367 (Fed. Cir. 2011); Roebuck v. Nicholson, 20 Vet. App. 307, 316 (2006); Muehl v. West, 13 Vet. App. 159, 161-62 (1999). Thereafter, in August 2012, the Veteran requested to reopen his previously denied claim of entitlement to service connection for an acquired psychiatric disorder. Rating actions are final and binding based on evidence on file at the time the claimant is notified of the decision and may not be revised on the same factual basis except by a duly constituted appellate authority. 38 C.F.R. § 3.104(a). The claimant has one year from notification of an RO decision to initiate an appeal by filing a notice of disagreement with the decision, and the decision becomes final if an appeal is not perfected within the allowed time period. 38 U.S.C.A. § 7105(b) and (c); 38 C.F.R. §§ 3.160(d), 20.200, 20.201, 20.202, and 20.302(a). Generally, a claim which has been denied in an unappealed Board decision or an unappealed RO decision may not thereafter be reopened and allowed. 38 U.S.C.A. §§ 7104(b), 7105(c). The exception to this rule is 38 U.S.C.A. § 5108, which provides that if new and material evidence is presented or secured with respect to a claim which has been disallowed, the Secretary shall reopen the claim and review the former disposition of the claim. New evidence means existing evidence not previously submitted to agency decisionmakers. Material evidence means existing evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. New and material evidence can be neither cumulative nor redundant of the evidence of record at the time of the last prior final denial of the claim sought to be reopened, and must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a). The Court of Appeals for Veterans Claims (Court) has held that the determination of whether newly submitted evidence raises a reasonable possibility of substantiating the claim should be considered a component of the question of what is new and material evidence, rather than a separate determination to be made after the Board has found that evidence is new and material. See Shade v. Shinseki, 24 Vet. App. 110 (2010). The Court further held that new evidence would raise a reasonable possibility of substantiating the claim if, when considered with the old evidence, it would at least trigger the Secretary's duty to assist by providing a medical opinion. Id. For the purpose of establishing whether new and material evidence has been submitted, the credibility of the evidence is to be presumed. Justus v. Principi, 3 Vet. App. 510, 513 (1992). At the time of the June 1977 rating decision, the evidence of record included the Veteran's service treatment records and an August 1976 VA psychiatric examination. As above, service treatment records and post-service records are negative for psychiatric problems and/or a diagnosis of a psychiatric disorder. Specifically, examination reports dated in April 1956, June 1967, June 1970, February 1974, and July 1975 show a normal psychiatric system. Furthermore, in May 1956, June 1967, June 1970, and February 1974 reports of medical history, the Veteran specifically denied "depression or excessive worry" and "nervous trouble of any sort." Furthermore, the August 1976 VA psychiatric examination found no evidence of psychiatric disease. Relevant evidence received since the June 1977 rating decision includes VA treatment records dated through January 2017 and private treatment records dated through March 2016. Significantly, a February 2008 VA psychiatric examination found no evidence of a psychiatric disability. While a September 2012 VA treatment record notes a positive depression screen, psychiatric examination at that time revealed no mental health diagnosis. Furthermore, March 2013, May 2014, May 2015, and July 2016 VA records show negative depression screenings. In this case, the Board finds that the evidence received since the last final denial in June 1977 is new in that it was not previously of record. However, it is cumulative or redundant of the other evidence of record and does not raise a reasonable possibility of substantiating the Veteran's claim of entitlement to service connection for an acquired psychiatric disorder. Specifically, a February 2008 VA psychiatric examination found no evidence of a psychiatric disability. While the Veteran had a positive depression screening in September 2012, psychiatric examination at that time revealed no mental health diagnosis. Furthermore, March 2013, May 2014, May 2015, and July 2016 VA records show negative depression screenings. Such is duplicative of the evidence previously of record in that there is still no evidence of psychiatric problems in service and no evidence of a current diagnosed psychiatric disability. Therefore, the Board must conclude that the evidence added to the record since the prior final denial in June 1977 does not raise a reasonable possibility of substantiating the Veteran's claim of entitlement to service connection for an acquired psychiatric disability. As such, the Board finds that the evidence received since June 1977 is not new and material and the requirements to reopen the claim of entitlement to service connection for an acquired psychiatric disability have not been met. IV. Increased Rating Analysis Disability evaluations are assigned by applying a schedule of ratings that represent, as far as can be determined, the average impairment of earning capacity. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1. Separate diagnostic codes identify the various disabilities and the criteria that must be met for specific ratings. The regulations require that, in evaluating a given disability, the disability be viewed in relation to its whole recorded history. 38 C.F.R. § 4.2; see Schafrath v. Derwinski, 1 Vet. App. 589 (1991). In every instance where the schedule does not provide a 0 percent evaluation for a diagnostic code, a 0 percent evaluation shall be assigned when the requirements for a compensable evaluation are not met. See 38 C.F.R. § 4.31. When rating the service-connected disability, the entire medical history must be borne in mind. Schafrath v. Derwinski, 1 Vet. App. (1991). The current level of disability, however, is of primary concern in a claim for an increased rating; the more recent evidence is generally the most relevant in such a claim, as it provides the most accurate picture of the current severity of the disability. Francisco v. Brown, 7 Vet. App. 55 (1994). That being said, given unintended delays during the appellate process, VA's determination of the "current level" of a disability may result in a conclusion that the disability has undergone varying and distinct levels of severity throughout the entire time period that the increased rating claim has been pending. In those instances, it is appropriate to apply staged ratings. See Hart v. Mansfield, 21 Vet. App. 505 (2007). 1. Lumbar strain The General Rating Formula for Diseases and Injuries of the Spine provides for assignment of a rating of 10 percent where disability of the thoracolumbar spine shows that forward flexion of the thoracolumbar spine is greater than 60 degrees but not greater than 85 degrees, or when the combined range of motion of the thoracolumbar spine is greater than 120 degrees but not greater than 235 degrees, or muscle spasm, guarding, or localized tenderness not resulting in an abnormal gait or abnormal spinal contour, or vertebral body fracture with loss of 50 percent or more of the height. A 20 percent rating is warranted for disability of the thoracolumbar spine where forward flexion of the thoracolumbar spine is greater than 30 degrees but not greater than 60 degrees, or when the combined range of motion of the thoracolumbar spine is not greater than 120 degrees, or muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis. A 40 percent rating is warranted for disability of the thoracolumbar spine either where forward flexion of the thoracolumbar spine is 30 degrees or less, or where there is favorable ankylosis of the thoracolumbar spine. A 50 percent rating is warranted where there is unfavorable ankylosis of the entire thoracolumbar spine, and a 100 percent rating is warranted where there is unfavorable ankylosis of the entire spine. The criteria are to be applied with or without symptoms such as pain (whether or not it radiates), stiffness, or aching in the area of the spine affected by disease or injury. 38 C.F.R. § 4.71a. Under the rating schedule, forward flexion to 90 degrees, and extension, lateral flexion, and rotation to 30 degrees each, are considered normal range of motion of the thoracolumbar spine. "Combined range of motion" refers to the sum of the ranges of forward flexion, extension, left and right lateral flexion, and left and right lateral rotation. Normal combined range of motion of the thoracolumbar spine is 240 degrees. 38 C.F.R. § 4.71a, General Rating Formula, Note 2, and Plate V. When evaluating musculoskeletal disabilities, VA may, in addition to applying schedular criteria, consider granting a higher rating in cases in which the claimant experiences additional functional loss due to pain, weakness, excess fatigability, or incoordination, to include with repeated use or during flare-ups, and those factors are not contemplated in the relevant rating criteria. See 38 C.F.R. §§ 4.40, 4.45 (2013); DeLuca v. Brown, 8 Vet. App. 202, 204-7 (1995). The provisions of 38 C.F.R. § 4.40 and 38 C.F.R. § 4.45 are to be considered in conjunction with the diagnostic codes predicated on limitation of motion. See Johnson v. Brown, 9 Vet. App. 7 (1996). Historically, the Veteran's service treatment records show several complaints of low back pain as well as a diagnosis of lumbar strain in April 1976. Soon after the Veteran's discharge from service, he submitted a claim for service connection for a back disability and, by rating decision dated in June 1977, the RO granted service connection for lumbar strain, assigning a noncompensable disability rating effective June 2, 1976. The Veteran submitted a claim for an increased rating in December 2007. In connection with this claim, he was afforded a VA examination in May 2008. Significantly, this examination showed a diagnosis of degenerative disc disease of the lumbar spine with probable spinal stenosis and full range of motion of the lumbar spine. By rating decision dated in June 2009, the RO continued a noncompensable disability rating for the Veteran's lumbar strain. In November 2011, the Veteran submitted the current claim for an increased rating. Evidence relevant to the Veteran's lumbar spine disability since this November 2011 claim includes a VA examination report dated in April 2012. This examination report shows diagnoses of degenerative disc disease and degenerative joint disease of the lumbar spine (which was found to be the sole basis for the Veteran's current lumbar spine symptomatology) as well as old lumbar strain (resolved with no residuals). In a December 2012 VA addendum opinion the examiner wrote that the Veteran's in-service low back problem was trivial in nature. Based on the Veteran's many years of service with relatively little treatment as well as 13 years of strenuous post-service employment, the Veteran's current back problems were not related to his military service. The examiner also opined that a May 2012 lumbar spine surgery was only due to the Veteran's nonservice-connected degenerative disc disease/degenerative joint disease. In connection with the Veteran's claim, the Veteran submitted a March 2016 statement from Dr. K.D.D. Essentially, Dr. K.D.D. opined that all of the Veteran's current back problems, including DDD and DJD of the lumbar spine, were related to his military service. In doing so, Dr. K.D.D. agreed with the April 2012 VA examiner that a strain normally resolves without any residuals or problems. The Board finds that the preponderance of the evidence does not support assigning a compensable disability rating for the Veteran's service-connected lumbar strain. As noted above, the April 2012 VA examiner opined that the Veteran's in-service lumbar strain had resolved and there were no current residuals. Dr. K.D.D. even agreed with the April 2012 VA examiner that it was likely that the Veteran's service-connected lumbar strain had resolved without any residuals or problems. As to whether the Veteran's current DDD/DJD of the lumbar spine are related to his in-service lumbar strain (on a direct or secondary basis), the Board has referred this issue to the RO for adjudication as noted above. With regard to the issue of entitlement to a temporary total evaluation because of treatment for a service-connected condition requiring convalescence pursuant to 38 C.F.R. § 4.30, the Board notes that the Veteran underwent lumbar laminectomy and fusion in May 2012. As above, the April 2012 VA examiner opined that the Veteran's May 2012 back surgery was due to his nonservice-connected DDD/DJD. As such, this issue has also been referred to the RO for adjudication as noted above. 2. Bilateral hearing loss Impaired hearing will be considered a disability only after threshold requirements are met. See 38 C.F.R. § 3.385. Once disability is established, levels of hearing loss are determined by considering the average pure tone threshold and speech discrimination percentage scores. 38 C.F.R. § 4.85(b). See Lendenmann v. Principi, 3 Vet. App. 345 (1992) (assignment of disability ratings for hearing impairment are derived by a mechanical application of the rating schedule to the numeric designations assigned after audiometric evaluations are rendered). The provisions of 38 C.F.R. § 4.86 address exceptional patterns of hearing loss. The exceptional patterns addressed in this section are present when the puretone threshold at each of the 4 specified frequencies (1000, 2000, 3000 and 4000 Hz) is 55 decibels or more, or when the puretone threshold is 30 decibels or less at 1000 Hz, and 70 decibels or more at 2000 Hz. The Veteran submitted an initial claim for service connection for bilateral hearing loss in December 2007. He was afforded a VA audiological examination in September 2008 which showed a diagnosis of bilateral hearing loss. By rating decision dated in June 2009, the RO granted service connection for bilateral hearing loss, assigning a noncompensable disability rating effective December 18, 2007, the date of his claim. The Veteran submitted the current claim for an increased rating for his service-connected bilateral hearing loss in January 2011. In connection with this claim, he was afforded a VA audiological examination in April 2012. At the time of the examination the Veteran reported that, with regard to functional impairment, his hearing loss impacted ordinary conditions of daily life, including his ability to work, in that he must wear hearing aids. Audiological testing revealed the following: Puretone Threshold 1000 Hz 2000 Hz 3000 Hz 4000 Hz Right Ear 25 dB 35 dB 50 dB 55 dB Left Ear 25 dB 40 dB 50 dB 50 dB Puretone Threshold Average Right Ear 41 dB Left Ear 41 dB Speech Recognition Right Ear 88% Left Ear 88% In the present case, the evidence does not show an exceptional level of impaired hearing; 38 C.F.R. § 4.86 is not applicable because the puretone threshold at each of the 4 specified frequencies (1000, 2000, 3000 and 4000 Hz) is not 55 decibels or more, nor is the puretone threshold 30 decibels or less at 1000 Hz, and 70 decibels or more at 2000 Hz. . Applying the results from the April 2012 VA contract audiological examination to Tables VI yields a Roman numeral value of II for the right ear and a Roman numeral value of II for the left ear. See 38 C.F.R. §§ 4.85, 4.86. Applying these values to Table VII, the Board finds that the Veteran's hearing loss warrants a noncompensable evaluation. The tables referred to above were provided to the Veteran in the Statement of the Case dated in September 2016. Accordingly, the Board finds that the preponderance of the evidence is against entitlement to a compensable disability rating for bilateral hearing loss. 38 C.F.R. § 4.3. While the April 2012 VA contract audiological examiner indicated that the claims file was not available for review in connection with the examination, in cases such as disability ratings for hearing loss, the current audiological findings are controlling in comparison to a history of the disability. In addition to dictating objective test results, a VA audiologist must fully describe the functional effects caused by a hearing disability in his or her final report. Martinak v. Nicholson, 21 Vet. App. 447 (2007). Such functional impairment has been appropriately considered but the overall evidence, as previously discussed, fails to support assignment of a compensable disability rating. With regard to whether referral for an extraschedular rating is warranted, the record does not establish that the rating criteria are inadequate for rating the Veteran's service-connected bilateral hearing loss. A review of the April 2012 VA audiological examination reflects that the examiner (audiologist) did describe the functional effects of the Veteran's hearing loss, noting that the Veteran's chief complaint was having to wear hearing aids. The rating criteria contemplate speech reception thresholds and ability to hear spoken words on Maryland CNC testing. Hence, the rating criteria contemplate the Veteran's symptomatology. Referral for consideration of an extraschedular rating is therefore not warranted. Thun v. Peake, 22 Vet. App. 111 (2008). ORDER Service connection for ischemic heart disease is granted. Service connection for a left shoulder disability is denied. New and material evidence not having been received, the application to reopen a claim of entitlement to service connection for an acquired psychiatric disability is denied. A compensable disability rating for lumbar strain is denied. A compensable disability rating for bilateral hearing loss is denied. REMAND With regard to the erectile dysfunction issue, as above, the Board notes that the RO is currently working an NOD regarding a January 2017 rating decision denying service connection for diabetes mellitus. Furthermore, the Board has conceded the Veteran's conceded herbicide exposure while stationed in Thailand from September 1969 to September 1970 based on the Veteran's credible assertion of serving near the perimeter of Nakhon Phanom and Udorn RTAFBs and presumptive service connection for diabetes mellitus is available under 38 C.F.R. § 3.309(e); See also 75 Fed. Reg. 53,202 (Aug. 31, 2010). Moreover, a February 2013 private treatment record suggests a link between the Veteran's low serum testosterone level (which likely contributes to his claimed erectile dysfunction) and his diabetes. Given the above, the Veteran's claim for service connection for erectile dysfunction is inextricably intertwined with the issue of entitlement to service connection for diabetes, which has been deferred pending RO readjudication. Therefore, a final decision on the issue of entitlement to service connection for erectile dysfunction cannot be rendered at this time. See Harris v. Derwinski, 1 Vet. App. 180 (1991) (two issues are "inextricably intertwined" when they are so closely tied together that a final decision on one issue cannot be rendered until a decision on the other issue has been rendered). With regard to the TDIU issue, as above, a review of the record shows that the Veteran retired from his employment in 1991, at the age of 56. In a February 2016 statement, Dr. K.D.D. wrote that the Veteran was unable to maintain substantially gainful employment due to his service-connected lumbar strain. A claim for TDIU is not a freestanding claim. Rather, it is a claim for an increased rating (a total rating based on individual unemployability) for the underlying disability(ies). Such a claim may be expressly raised or it may be "reasonably raised by the record," and the claim may be filed as a component of an initial claim or as a claim for an increased rating for a service-connected disability. If a veteran asserts entitlement to a TDIU during the appeal of the initial evaluation assigned, such as in the present case, the issue is part of the underlying claim for an increased initial evaluation. Rice, 22 Vet. App. at 447. The Board finds that the Veteran has raised the issue of entitlement to a TDIU as part of his claim for a higher rating for his service-connected lumbar strain. Although they are listed separately on the title page, the issues are not independent and must be adjudicated as one claim. See Rice, 22 Vet. App. at 455. On remand, the Veteran should be provided notice regarding the information and evidence necessary to substantiate a TDIU, and the AOJ should obtain all outstanding treatment records regarding his service-connected disabilities. 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. Provide the Veteran with proper notice regarding the evidence and information necessary to substantiate his TDIU claim. 2. Request that the Veteran identify any VA or non-VA healthcare provider who has treated him for his claimed disorders. After securing any necessary authorization from him, obtain all identified treatment records, to include all outstanding VA treatment records dated from January 2017 to the present. All reasonable attempts should be made to obtain any identified records. 3. Readjudicate the appeal. The appellant has the right to submit additional evidence and argument on the matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West 2014). ______________________________________________ L.M. BARNARD Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs