Citation Nr: 1752264 Decision Date: 11/15/17 Archive Date: 11/22/17 DOCKET NO. 15-07 846 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Muskogee, Oklahoma THE ISSUES 1. Entitlement to a higher initial disability rating for bilateral hearing loss in excess of 0 percent (noncompensable) prior to July 31, 2014, and in excess of 10 percent from July 31, 2014. 2. Entitlement to an effective date earlier than July 31, 2014, for the award of a 10 percent disability rating for bilateral hearing loss. 3. Entitlement to a higher initial disability rating for lumbar strain in excess of 10 percent prior to May 29, 2015, and in excess of 20 percent from May 29, 2015. 4. Entitlement to an effective date earlier than July 25, 2013, for the award of service connection for lumbar strain. 5. Entitlement to a higher initial disability rating for right ankle strain with degenerative joint disease (DJD) in excess of 10 percent. 6. Entitlement to an effective date earlier than October 24, 2012, for the award of service connection for right ankle strain with DJD. 7. Entitlement to a higher initial disability rating for radiculopathy of the left lower extremity in excess of 10 percent. 8. Entitlement to service connection for radiculopathy of the right lower extremity, including as due to service-connected lumbar strain. 9. Entitlement to service connection for a right knee disorder, including as due to service-connected lumbar strain. 10. Entitlement to service connection for a left knee disorder, including as due to service-connected lumbar strain. 11. Entitlement to a total disability rating for compensation purposes based on individual unemployability due to service-connected disabilities (TDIU). (The issues of service connection for a cervical spine disorder and entitlement to the payment of attorney fees based upon the grant of service connection for lumbar strain, from July 25, 2013, and right ankle strain with DJD, from October 24, 2012, and the grant of an increased disability rating of 10 percent for bilateral hearing loss from July 21, 2014, will be adjudicated in separate Board decisions). REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The Veteran (Appellant) ATTORNEY FOR THE BOARD E. Blowers, Counsel INTRODUCTION The Veteran, who is the appellant, had active service from February 1972 to March 1976. This matter comes before the Board of Veterans' Appeals (Board) on appeal from multiple rating decision of the RO in Muskogee, Oklahoma. The Veteran testified from Muskogee, Oklahoma, at an August 2016 Board videoconference hearing before the undersigned Veterans Law Judge, who was seated in Washington, DC. The hearing transcript has been associated with the record. The Veteran has appealed from the initial rating assigned for multiple service-connected disabilities. In Fenderson v. West, 12 Vet. App. 119, 125-26 (1999), the United States Court of Appeals for Veterans' Claims (Court) addressed a similar appeal and directed that such appeal of the initial rating assigned following a grant of service connection was specifically not a claim for an increased disability rating. The Court also directed that separate ratings may be assigned for separate periods of time based on the facts found, a practice known as "staged" ratings. The instant matter is a Veterans Benefits Management System (VBMS) appeal. The Board has reviewed both the VBMS and the "Virtual VA" files so as to insure a total review of the evidence. This appeal has been advanced on the Board's docket pursuant to 38 U.S.C. § 7107(a)(2) (2012) and 38 C.F.R. § 20.900(c) (2017). The issues of higher initial ratings for lumbar strain, right ankle strain with DJD, and radiculopathy of the left lower extremity, service connection for right and left knee disorders, and entitlement to a TDIU are addressed in the REMAND portion of the decision below and are REMANDED to the AOJ. For the reasons discussed below, in the instant decision the Board dismisses the issue of a higher initial disability rating for the service-connected bilateral hearing loss due to a May 2015 Board decision becoming final; however, the record reflects that subsequent to the May 2015 Board decision, the Veteran raised the issue of entitlement to an increased disability rating for the service-connected bilateral hearing loss in excess of 10 percent. As this issue has not yet been adjudicated by the Agency of Original Jurisdiction (AOJ), 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) (2017). FINDINGS OF FACT 1. The May 2015 Board decision finding that a higher initial disability rating for the service-connected bilateral hearing loss was not warranted prior to July 31, 2014, and granting a staged higher initial disability rating of 10 percent from July 31, 2014, was final when issued, and any subsequent adjudication of either the rating assigned and/or the effective date of the new rating by the Board is constrained by the principles of finality and res judicata. 2. The May 2015 Appeals Management Center (AMC) rating decision implementing the Board's final decision to grant a 10 percent disability rating for the service-connected bilateral hearing loss from July 31, 2014, involved no adjudication of any question of fact or law. 3. The Veteran had active service from February 1972 to March 1976 4. A February 1991 RO rating decision denied service connection for back and right ankle disorders; the rating decision was not appealed, no new and material evidence was received within one year of the denial, and no procedural defect prevented the rating decision from becoming final. 5. On October 24, 2012, VA received a VA Form 21-526, Veteran's Application for Compensation, requesting that the issue of service connection for a right ankle disorder be reopened and granted. 6. No claim, formal or informal, was received between the February 1991 rating decision becoming final and the October 24, 2012 request to reopen and grant the issue of service connection for a right ankle disorder. 7. On July 25, 2013, VA received a VA Form 21-4138, Statement in Support of Claim, in which the Veteran made statements that the RO interpreted to be a claim to reopen and grant service connection for a back disorder. 8. No claim, formal or informal, was received between the February 1991 rating decision becoming final and the July 25, 2013 request to reopen and grant the issue of service connection for a back disorder. 9. The Veteran is currently diagnosed with radiculopathy of the right lower extremity. 10. The radiculopathy of the right lower extremity is proximately due to or the result of the service-connected lumbar strain. CONCLUSIONS OF LAW 1. Because of the May 2015 final Board decision, the Board now does not have jurisdiction to consider the issue of a higher initial disability rating for bilateral hearing loss in excess of 0 percent (noncompensable) prior to July 31, 2014, and in excess of 10 percent from July 31, 2014. 38 U.S.C. §§ 7104, 7105 (2012); 38 C.F.R. §§ 20.1100, 20.1104 (2017). 2. Because of the May 2015 final Board decision, the Board now does not have jurisdiction to consider the issue of an effective date earlier than July 31, 2014, for the award of a 10 percent disability rating for bilateral hearing loss. 38 U.S.C. §§ 7104, 7105 (2012); 38 C.F.R. §§ 20.1100, 20.1104 (2017). 3. The May 2015 attempted Notice of Disagreement (NOD) purporting to appeal both the bilateral hearing loss disability rating and the effective date assigned for the 10 percent disability rating in the May 2015 AMC rating decision (effectuating the May 2015 Board decision) is of no legal significance and is not a valid NOD, as the May 2015 AMC decision did not decide any questions of fact or law which can be appealed. 38 U.S.C. §§ 7104, 7105 (2012); 38 C.F.R. §§ 20.1100, 20.1104 (2017). 4. The criteria for an effective date prior to October 24, 2012 for the award of service connection for right ankle strain with DJD have not been met. 38 U.S.C. § 5110 (2012); 38 C.F.R. §§ 3.155, 3.400 (2017). 5. The criteria for an effective date prior to July 25, 2013 for the award of service connection for lumbar strain have not been met. 38 U.S.C. § 5110 (2012); 38 C.F.R. §§ 3.155, 3.400 (2017). 6. Resolving reasonable doubt in the Veteran's favor, the criteria for service connection for radiculopathy of the right lower extremity, as secondary to the service-connected lumbar strain, have been met. 38 U.S.C. §§ 1101, 1110, 1131, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.310, 3.326 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duties to Notify and to Assist The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations impose obligations on VA to provide claimants with notice and assistance. 38 U.S.C. §§ 5102, 5103, 5103A, 5107, 5126 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.326(a). The Court issued a decision in the appeal of Dingess v. Nicholson, 19 Vet. App. 473 (2006), which held that the notice requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) apply to all five elements of a service connection claim, including the degree of disability and the effective date of an award. Those five elements include: (1) veteran status; (2) existence of a disability; (3) a connection between a veteran's service and the disability; (4) degree of disability; and (5) effective date of the disability. As the instant decision grants service connection for radiculopathy of the right lower extremity, and remands the issues of service connection for right and left knee disorders, higher initial disability ratings for lumbar strain, right ankle strain with DJD, and radiculopathy of the left lower extremity, and entitlement to a TDIU, the Board need not discuss the duties to notify and assist as to those issues. The Court has held that the provisions of the VCAA have no effect on an appeal where the law, and not the underlying facts or development of the facts, is dispositive of the matter. See Sabonis v. Brown, 6 Vet. App. 426, 430 (1994) (where the law is dispositive, the claim must be denied due to a lack of legal merit); Dela Cruz v. Principi, 15 Vet. App. 143, 149 (2001); Mason v. Principi, 16 Vet. App. 129 (2002); see also VAOPGCPREC 5-2004 (VA is not required to provide notice of the information and evidence necessary to substantiate a claim where that claim cannot be substantiated because there is no legal basis for the claim or because undisputed facts render the claimant ineligible for the claimed benefit). Here, as is addressed below, the issues of a higher initial disability rating for bilateral hearing loss in excess of 0 percent (noncompensable) prior to July 31, 2014, and in excess of 10 percent from July 31, 2014, and an effective date earlier than July 31, 2014, for the award of a 10 percent disability rating for bilateral hearing loss, must be dismissed at law due to the Board's lack of jurisdiction over the issues; therefore, no further discussion of VA's duties to notify and assist is necessary as to these issues. As to the question of earlier effective dates for the service-connected back and right ankle disabilities, because the issues arise from the Veteran's disagreement with the effective date following the grant of service connection, no additional notice is required regarding this downstream element of the service connection claim. The United States Court of Appeals for the Federal Circuit (Federal Circuit) and the Court have similarly held that regarding the downstream elements of initial rating and effective dates that, once service connection is granted the claim is substantiated, additional notice is not required, and any defect in notice is not prejudicial. Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007); Dunlap v. Nicholson, 21 Vet. App. 112 (2007) (noting that, once an initial VA decision awarding service connection and assigning a disability evaluation and effective date has been made, 38 U.S.C. § 5103(a) notice is no longer required); 38 C.F.R. § 3.159(b)(3) (no VCAA notice required because of filing of NOD). Regarding the duty to assist in this case, as will be explained below, the law, and not the facts, is dispositive of the effective dates in this case; therefore, the duty to assist imposed by the VCAA is not applicable. See Mason, 16 Vet. App. at 132. Bilateral Hearing Loss Initial Rating and Effective Date In a May 2015 decision, the Board addressed the issue of a compensable initial disability rating for the service-connected bilateral hearing loss. Upon reviewing all the evidence of record, the Board found that a compensable rating was not warranted prior to July 31, 2014. Specifically, the Board found that the results of audiometric examinations in December 2012, May 2013, and July 2014 all showed that a noncompensable disability rating for bilateral hearing loss was warranted under Diagnostic Code 6100. 38 C.F.R. § 4.85 (2017). Further, the Board also found that the results from a July 31, 2014 private audiometric examination showed that a 10 percent disability rating was warranted from the date of examination. In other words, the Board granted a higher initial disability rating of 10 percent for the service-connected bilateral hearing loss from July 31, 2014, and denied a compensable initial disability rating for the service-connected bilateral hearing loss prior to July 31, 2014. In a non-adjudicative rating decision dated May 2015, which made no decision on any question of law or fact, but merely implemented the Board's May 2015 decision, the AMC effectuated the Board's decision on the disability rating percentage and effective date for the service-connected bilateral hearing loss. Because the May 2015 AMC rating decision merely implemented the Board's May 2015 final decision to grant a 10 percent disability rating for bilateral hearing loss from July 31, 2014, and no earlier, the decision involved no adjudication of any question of fact or law that was appealable. Subsequently, in May 2015, VA received a VA Form 21-0958, Notice of Disagreement, from the Veteran. In pertinent part, the Form purported to be a NOD to both the disability rating assigned (10 percent) for the bilateral hearing loss and the effective date assigned for the 10 percent disability rating. With few exceptions, Board decisions are final when issued. 38 C.F.R. § 20.1100. As such, the May 2015 Board decision granting a 10 percent staged disability rating for the service-connected bilateral hearing loss as of July 31, 2014 became final on May 1, 2015, the date of issuance of the Board decision. Id. The May 2015 decision was not appealed to the Court. As noted by the Federal Circuit in Cook v. Principi, "principles of finality and res judicata apply to agency decisions that have not been appealed and have become final." Cook v. Principi, 318 F.3d 1334, 1336 (2002). In DiCarlo v. Nicholson, 20 Vet. App. 52, 55-56 (2006), the Court explained the concept of res judicata as follows: The concept of res judicata requires that there be only one valid decision on any adjudicated issue or claim; that decision is the only appropriate target for any future collateral attack on that issue or claim. Cf. Hazan v. Gober, 10 Vet.App. 511, 520-21 (1997) (holding that where an unappealed final decision is determinative of an issue, an appellant is collaterally estopped from "relitigating the same issue based upon the same evidence, albeit for a different purpose"). Except as provided by law, when a case or issue has been decided and an appeal has not been taken within the time prescribed by law, the case is closed, the matter is ended, and no further review is afforded. See Leonard v. Nicholson, 405 F.3d 1333, 1337 (Fed.Cir.2005) ("'The purpose of the rule of finality is to preclude repetitive and belated readjudications of veterans' benefits claims.'" (quoting Cook, 318 F.3d at 1339)); Bissonnette, 18 Vet.App. at 112 ("In essence, the res judicata precedent ensures that a litigant may have his or her day in Court, but not two or three."); see also Hazan, supra. There are two primary exceptions to the rule of finality, the reopening of a claim upon the receipt of new and material evidence, and/or revision on the grounds of clear and unmistakable error (CUE). Cook, 318 F.3d at 1337 (discussing 38 U.S.C.A. §§ 5108, 5109A, 7111). Even these limited exceptions are strictly bound by the principles of finality and res judicata. See Russell v. Principi, 3 Vet. App. 310, 315 (1992) (entering a "cautionary note" that CUE does not mean that the same issue may be endlessly reviewed; that there is finality in veterans' benefits jurisprudence; and that once CUE is addressed it may not be raised again, it is res judicata). See also Link v. West, 12 Vet. App. 39, 44 (1998) (citing Russell, 3 Vet. App. at 315) (stating that "under the principle of res judicata, '[o]nce there is a final decision on the issue of [CUE] . . . that particular claim of [CUE] may not be raised again"). The previous RO rating decisions concerning the rating and effective date of the rating of the service-connected bilateral hearing loss were subsumed in the final May 2015 Board decision. 38 C.F.R. § 20.1104. See Hazan v. Gober, 10 Vet. App. 511 (1997) (where RO decision was appealed and subsumed in the Board's final decision, an effective date cannot be assigned prior to the date of the Board decision); Smith v. Brown, 35 F. 3d 1516 (Fed. Cir. 1994); Mykles v. Brown, 7 Vet. App. 372 (1995); Olson v. Brown, 5 Vet. App. 430 (1993) (when a determination of the AOJ is affirmed by the Board, the determination is subsumed by the final appellate decision); see also VAOPGCPREC 14-95. As noted above, in the May 2015 decision, the Board granted a 10 percent "staged" disability rating for the service-connected bilateral hearing loss for the rating period from July 31, 2014, the date the evidence first showed that the Veteran was entitled to a 10 percent disability rating. As discussed above, in assigning this effective date, the Board specifically considered whether a compensable disability rating could be assigned even earlier; however, the audiometric testing reports prior to July 31, 2014 do not show that a compensable disability rating was warranted under Diagnostic Code 6100 prior to that date. The subsequent May 2015 AMC rating decision, which merely implemented the Board's decision to increase the disability rating for the service-connected bilateral hearing loss from noncompensable to 10 percent disabling from July 31, 2014, specifically noted that the rating decision was made pursuant to the Board's May 2015 decision. As such, there was no adjudication of any issue, or even of any related or ancillary question, in the May 2015 rating decision, as the AMC did not have the authority to assign a rating or effective date contrary to the Board's order. See Smith v. Brown, 35 F.3d 1516, 1526 (Fed. Cir. 1994) (recognizing VA's administrative (RO)-judicial (BVA, appellate) review scheme, and declining to interpret a regulation in such a way that would, counter to that scheme, "oddly, permit an inferior [adjudicatory tribunal] to collaterally review the actions of a superior" appellate tribunal). As no issue, or even a question of fact or law, was adjudicated in the May 2015 AMC rating decision that merely implemented the Board's May 2015 decision, there was no specific error of fact or law that could be appealed via a NOD; therefore, there is no error of fact or law before the Board at this time as to the hearing loss issue. See 38 U.S.C.A. § 7105 (the Board may dismiss any appeal that fails to allege a specific error of fact or law in the determination being appealed). For these reasons, the Board finds that the purported May 2015 "NOD" is not a NOD, is of no legal significance, and as such, the Board does not have jurisdiction over the purported issues of a higher initial disability rating for bilateral hearing loss in excess of 0 percent (noncompensable) prior to July 31, 2014, and in excess of 10 percent from July 31, 2014, and/or an effective date earlier than July 31, 2014 for a 10 percent disability rating for bilateral hearing loss. The rating and effective date questions the Veteran attempted to raise in May 2015 are precluded by the final May 2015 Board decision on the very same questions of rating and effective date of the 10 percent disability rating for bilateral hearing loss. The Board has considered the application of the holding of the Court in Percy v. Shinseki, 23 Vet. App 37 (2009), as it relates to the instant decision. In Percy, the Court noted that, although Congress used "permissive language" in the statute for filing a substantive appeal (38 U.S.C.A. § 7105(d)(3)), the language used by Congress in enacting the statute for filing a NOD was "mandatory," indicating a clear intention to foreclose the Board's exercise of jurisdiction over a matter where a NOD had not been filed, but not where a substantive appeal had not been filed. Id. at 44, citing Act of Sept. 19, 1962, Pub. L. No. 87-666, 76 Stat. 553 (enacting both NOD and Substantive Appeal requirements). Indeed, the Court noted that "[t]he permissive language of section 7105(d)(3) stands in stark contrast to the statutory language mandating that claimants file a timely NOD: 'notice of disagreement shall be filed within one year from the date of mailing of notice of the result of initial review or determination' and '[i]f no notice of disagreement is filed . . . within the prescribed period, the action or determination shall become final.'" See also Manlincon v. West, 12 Vet. App. 238, 240 (1999) (indicating that a NOD is a jurisdiction-conferring document that required remand rather than referral); Roy v. Brown, 5 Vet. App. 554, 555 (1993) ("appellate review of an RO decision is initiated by an NOD"); Marsh v. West, 11 Vet. App. 468, 470 (1998) ("an untimely NOD deprives [BVA] of jurisdiction"). In Percy, the appellant had filed a timely NOD but failed to file a substantive appeal as to all of the issues on appeal. Percy, 23 Vet. App. at 38. As the Court held the filing of a substantive appeal was permissive, the filing of the mandatory NOD allowed the Board to assume jurisdiction of the issues not included in the original substantive appeal. Id. at 46-47. The instant matter is distinguishable from Percy in that the Board, as discussed above, has found there is no jurisdiction-conferring NOD. The Board notes that, at the August 2016 Board videoconference hearing, the Board erroneously took testimony on the issues of a higher initial disability rating for bilateral hearing loss in excess of 0 percent (noncompensable) prior to July 31, 2014, and in excess of 10 percent from July 31, 2014, and an effective date earlier than July 31, 2014 for the award of a 10 percent disability rating for bilateral hearing loss. Notwithstanding that the Board took such testimony, the Board is not permitted to waive the jurisdictional-conferring NOD requirement. See Manlincon, 12 Vet. App. at 240. As the Board has found that it does not have jurisdiction over the issues of a higher initial disability rating for bilateral hearing loss in excess of 0 percent (noncompensable) prior to July 31, 2014, and in excess of 10 percent from July 31, 2014, and an effective date earlier than July 31, 2014 for the award of a 10 percent disability rating for bilateral hearing loss, due to the absence of a question of fact or law before it, the Board must consider whether denial or dismissal of the claim is the appropriate remedy. Per the above discussion, the Board may dismiss any appeal which fails to allege specific error of fact or law in the determination being appealed. 38 U.S.C.A. § 7105(d)(3). In cases where the Board finds that a claim has no legal merit, the Board does not reach the true merits of the underlying claim, and the Court has indicated that the remedy is to either deny or dismiss (terminate) the claim/appeal. See Sabonis, 6 Vet. App. at 430 ("where the law and not the evidence is dispositive, the claim should be denied or the appeal to the BVA terminated because of the absence of legal merit or the lack of entitlement under the law"). In Gibson v. Peake, 22 Vet. App. 11, 20 (2007), a case in which the appeal arose from a RO finding of an untimely filed substantive appeal, the only suggested remedy by the Court was dismissal by the Board. Jurisdictional "dismissal" or "denial" has the same effect: it ends the claim. See Canady v. Nicholson, 20 Vet. App. 393, 404 (2006) ("denial of relief and dismissal of the case" both end the claim; recognizing that dismissal with prejudice is a final decision); see also Sabonis, 6 Vet. App. at 43; Fenderson v. West, 12 Vet. App. 119, 130 (Court upheld the Board's finding that, because the veteran never filed a substantive appeal with respect to specific issues, "these issues are not before the Board"). As the Board lacks jurisdiction to consider the merits of the issues of a higher initial disability rating for bilateral hearing loss in excess of 0 percent (noncompensable) prior to July 31, 2014, and in excess of 10 percent from July 31, 2014, and an effective date earlier than July 31, 2014 for a 10 percent disability rating for bilateral hearing loss, the instant decision does not address the issues' merits, and the Board finds that dismissal of the purported issues is the appropriate remedy. In summary, the May 2015 AMC rating decision effectuating the May 2015 Board decision was not an adjudication of any issue related to the service-connected hearing loss, and there was no specific error of fact or law that could be appealed via a NOD. As such, the May 2015 "NOD" purporting to appeal the 10 percent higher initial disability rating, and the effective date of said increase, "assigned" in the May 2015 rating decision (which actually was assigned by the Board in its May 2015 decision) is invalid on its face. Further, even if the Board were to accept the May 2015 "NOD" as valid, the Board is still barred from considering the issues, other than under certain limited circumstances not relevant to the instant decision, under the principles of finality and res judicata. As such, the appeal for a higher initial disability rating for bilateral hearing loss in excess of 0 percent (noncompensable) prior to July 31, 2014, and in excess of 10 percent from July 31, 2014, and an effective date earlier than July 31, 2014 for a 10 percent disability rating for bilateral hearing loss is without legal merit, and must be denied. See Sabonis, 6 Vet. App. at 430 (where the law is dispositive, the claim must be denied due to a lack of legal merit). Earlier Effective Dates for Service Connection for Lumbar Strain and Right Ankle Strain with DJD Unless otherwise specifically provided in Chapter 51 of Title 38 of the United States Code, the effective date of an award based on an original claim shall be fixed in accordance with the facts found, but shall not be earlier than the date of receipt of application therefor. 38 U.S.C. § 5110(a). Title 38 of the Code of Federal Regulations (2017) clarifies that an award of direct service connection will be effective on the day following separation from active military service or the date on which entitlement arose if the claim is received within one year of separation from service; otherwise, the effective date shall be the date of receipt of the appellant's claim or the date on which entitlement arose, whichever is later. 38 C.F.R. § 3.400(b)(2)(i). A "claim" is defined as a formal or informal communication, in writing, requesting a determination of entitlement, or evidencing a belief in entitlement to a benefit and VA is required to identify and act on informal claims for benefits. 38 C.F.R. §§ 3.1(p), 3.155 (2017); see also Servello v. Derwinski, 3 Vet. App. 196, 198-200 (1992). Pursuant to 38 C.F.R. § 3.155, any communication or action indicating intent to apply for one or more VA benefits, including statements from a veteran's duly authorized representative, may be considered an informal claim. Such an informal claim must identify the benefit sought. 38 C.F.R. § 3.1(p) defines application as a formal or informal communication in writing requesting a determination of entitlement or evidencing a belief in entitlement to a benefit. See also Rodriguez v. West, 189 F.3d. 1351 (Fed. Cir. 1999). The date of receipt of a claim is the date on which a claim, information, or evidence is received by VA. 38 C.F.R. § 3.1(r) (2016). Generally, a claim which has been denied may not thereafter be reopened and allowed based on the same record. 38 U.S.C. § 7105. However, pursuant to 38 U.S.C. § 5108 (2017), if new and material evidence is presented or secured with respect to a claim which has been disallowed, the VA Secretary shall reopen the claim and review the former disposition of the claim. The Veteran had active service from February 1972 to March 1976. A February 1991 RO rating decision denied service connection for back and right ankle disorders. The Veteran did not appeal the rating decision, and no new and material evidence was received within one year of the denial. In the May 2015 NOD, the Veteran advanced that an earlier effective date of 1986 for both the lumbar strain and right ankle strain with DJD was warranted because, "I was homeless when I filed in 1986, I did not receive any mail because VA did not have a homeless program, but I should have received letters supposedly sent in 1991." Review of the record reflects that the Veteran did not file a claim for service connection for either a back or a right ankle disorder in 1986. Rather, the record shows that the Veteran requested service connection for the disorders in a May 1990 VA Form 21-526, Veteran's Application for Compensation. Further, the record also reflects that VA was in continual contact with the Veteran during the pendency of the May 1990 claim. VA letters and notices were either sent to a P.O. Box that was on file for the Veteran and/or they were sent to a General Delivery address. Further, per two VA Form 119s, Report of Contact, the Veteran personally spoke with VA about the claim in August 1990 and September 1990. In February 1991, VA issued a rating decision denying service connection for back and right ankle disorders. Per the record, in March 1991, the Veteran was sent a letter informing that the claim had been denied, and providing the Veteran with procedural and appellate rights. At the August 2016 Board videoconference hearing, the Veteran testified to knowing that the claim had been denied, "but not until March the first, 1991." In other words, by the Veteran's own admission, the Veteran did receive the March 1991 notice sent by VA that the May 1990 claim had been denied. As such, the Veteran had the full one-year appellate period in order to submit a NOD and/or new and material evidence to VA, and there was no procedural deficiency that would warrant finding that the February 1991 rating decision denying service connection for back and right ankle disorders did not become final. See 38 U.S.C.A. §§ 5108, 7105; 38 C.F.R. § 3.156. As the Board finds that the February 1991 rating decision became final, the only question remaining before the Board is whether the Veteran filed any claims, formal or informal, between the date the February 1991 rating decision became final and the currently assigned effective dates. Review of the record reflects that on October 24, 2012, VA received a VA Form 21-526, Veteran's Application for Compensation, requesting that the issue of service connection for a right ankle disorder be reopened and granted. Subsequently, on July 25, 2013, VA received a VA Form 21-4138, Statement in Support of Claim, in which the Veteran made statements that the RO interpreted as a claim to reopen and grant service connection for a back disorder. Review of the record as to the issue of service connection for a right ankle disorder reflects that no claim, formal or informal, was received between the February 1991 rating decision becoming final and the October 24, 2012 request to reopen and grant the issue of service connection for a right ankle disorder. Further, as to the issue of service connection for a back disorder, the record also reflects that no claim, formal or informal, was received between the February 1991 rating decision becoming final and the July 25, 2013 request to reopen and grant the issue of service connection for a back disorder. At the August 2016 Board videoconference hearing, the Veteran testified that no new service connection claims had been filed prior to 2012. Per the above discussion, the Veteran's formal claim to reopen service connection for a right ankle disorder was received by VA on October 24, 2012, over 30 years after service separation, and over 20 years since the February 1991 rating decision denying service connection became final. Further, the Veteran's formal claim to reopen service connection for a back disorder was received by VA on July 25, 2013, over 30 years after service separation, and over 20 years since the February 1991 rating decision denying service connection became final. As such, the appropriate effective date for the award of service connection for right ankle strain with DJD is October 24, 2012, and the appropriate effective date for the award of service connection for lumbar strain is July 25, 2013. 38 U.S.C. § 5110(a); 38 C.F.R. §3.400(b)(2)(i). On these facts, because the earliest effective dates legally possible have been assigned under 38 C.F.R. §§ 3.400, the appeal for earlier effective dates as to the issues of service connection for right ankle strain with DJD and lumbar strain, is without legal merit, and must be denied. See Sabonis at 430 (where the law is dispositive, the claim must be denied due to a lack of legal merit). For these reasons, the Board concludes that earlier effective dates for the award of service connection for ankle strain with DJD and/or lumbar strain is not warranted for either disability as a matter of law. Service Connection for Right Lower Extremity Radiculopathy Service connection may be granted for disability arising from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). As a general matter, service connection for a disability requires evidence of: (1) the existence of a current disability; (2) the existence of the disease or injury in service, and; (3) a relationship or nexus between the current disability and any injury or disease during service. Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004); see also Hickson, 12 Vet. App. at 253, citing Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd, 78 F.3d 604 (Fed. Cir. 1996). Lower extremity radiculopathy (as other organic diseases of the nervous system) is a chronic disease under 38 C.F.R. § 3.309(a). As such, the presumptive service connection provisions under 38 C.F.R. § 3.303(b) for service connection based on "chronic" symptoms in service and "continuous" symptoms since service are applicable to the issue of service connection for radiculopathy of the right lower extremity. Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Under 38 C.F.R. § 3.303(b), service connection will be presumed where there are either chronic symptoms shown in service or continuity of symptomatology since service for diseases identified as "chronic" in 38 C.F.R. § 3.309(a). Walker, 708 F.3d at 1338-40 (holding that continuity of symptomatology is an evidentiary tool to aid in the evaluation of whether a chronic disease existed in service or an applicable presumptive period). With a chronic disease shown as such in service, subsequent manifestations of the same chronic disease at any later date, however remote, are service connected, unless clearly attributable to intercurrent causes. For the showing of chronic disease in service, there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time. If a condition noted during service is not shown to be chronic, then generally, a showing of continuity of symptoms after service is required for service connection. 38 C.F.R. § 3.303(b). Service connection may be granted for disability that is proximately due to or the result of a service-connected disability. Service connection may also be granted for the degree of disability resulting from aggravation of a nonservice-connected disability by a service-connected disability. See 38 C.F.R. § 3.310; Allen v. Brown, 7 Vet. App. 439, 448 (1995). Lay assertions may serve to support a claim for service connection by establishing the occurrence of observable events or the presence of disability or symptoms of disability subject to lay observation. 38 U.S.C. § 1154(a) (2012); 38 C.F.R. § 3.303(a); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); see also Buchanan v. Nicholson, 451 F. 3d 1331, 1336 (Fed. Cir. 2006) (addressing lay evidence as potentially competent to support presence of disability even where not corroborated by contemporaneous medical evidence). The Federal Circuit has clarified that lay evidence can be competent and sufficient to establish a diagnosis or etiology when (1) a lay person is competent to identify a medical condition; (2) the lay person is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the veteran prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case, the claim is denied. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49 (1990). The Board has thoroughly reviewed all the evidence in the Veteran's claims file. Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, the evidence submitted by the Veteran or on his or her behalf. 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 Veteran is currently service connected for radiculopathy of the left lower extremity, as secondary to the service-connected lumbar strain. The Veteran asserts that service connection is also warranted for radiculopathy of the right lower extremity, also as secondary to the service-connected lumbar strain. While there is conflicting evidence concerning whether the Veteran has radiculopathy of the right lower extremity, review of the available evidence of record, both lay and medical, reflects that the Veteran has consistently complained of, and sought treatment for, radiating right leg pain. Per a June 2016 VA treatment record, the Veteran sought treatment for pain in both lower extremities. At the conclusion of the examination, the VA examiner diagnosed the Veteran with radiculopathy in both lower extremities. As noted above, the Veteran is already service connected for radiculopathy of the left lower extremity, as secondary to the service-connected lumbar strain. Per the July 2016 VA treatment record, the VA examiner opined that the bilateral lower extremity radiculopathy was specifically lumbar radiculopathy. As such, the VA physician effectively opined that the currently diagnosed radiculopathy of the right lower extremity was caused by the service-connected lumbar strain. The Board finds that the evidence of record is at least in equipoise on the question of whether the Veteran's currently diagnosed radiculopathy of the right lower extremity is proximately due to or the result of the service-connected lumbar strain. In July 2016, a VA physician specifically opined that radiculopathy of both lower extremities was lumbar radiculopathy. As such, resolving all reasonable doubt in the Veteran's favor, the Board finds that the criteria for service connection for radiculopathy of the right lower extremity, as secondary to the service-connected lumbar strain, have been met. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. As service connection has been granted on a secondary basis, there is no need to discuss entitlement to service connection on a direct, presumptive, or any other basis, as other theories of service connection have been rendered moot, leaving no question of law or fact to decide. See 38 U.S.C. § 7104 (2012). ORDER The issue of a higher initial disability rating for bilateral hearing loss, in excess of 0 percent (noncompensable) prior to July 31, 2014, and in excess of 10 percent from July 31, 2014, being without legal merit, is dismissed. The issue of an effective date earlier than July 31, 2014 for a 10 percent disability rating for bilateral hearing loss, being without legal merit, is dismissed. An effective date prior to October 24, 2012 for service connection for right knee strain with DJD is denied. An effective date prior to July 25, 2013 for service connection for lumbar strain is denied. Service connection for radiculopathy of the right lower extremity, as secondary to the service-connected lumbar strain, is granted. REMAND Higher Initial Disability Ratings for Lumbar Strain, Right Ankle Strain with DJD, and Radiculopathy of the Left Lower Extremity A veteran is entitled to a new VA examination where there is evidence that the condition has worsened since the last examination. Weggenmann v. Brown, 5 Vet. App. 281, 284 (1993); Snuffer v. Gober, 10 Vet. App. 400 (1997); Caffrey v. Brown, 6 Vet. App. 377 (1994); VAOPGCPREC 11-95. When VA undertakes to either provide an examination or to obtain an opinion, it must ensure that the examination or opinion is adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). Since the last relevant VA examinations, subsequently received VA and private treatment records, along with the Veteran's testimony at the August 2016 Board videoconference hearing, suggest that the symptoms of the service-connected lumbar strain, right ankle strain with DJD, and radiculopathy of the left lower extremity may have worsened. As such, the Board finds new VA examinations are warranted. Service Connection for Right and Left Knee Disorders VA must afford a veteran a medical examination and/or obtain a medical opinion when it is necessary to make a decision on the claim. 38 U.S.C. § 5103A(d); 38 C.F.R. § 3.159(c)(4). In disability compensation (service connection) claims, VA must provide a medical examination and medical opinion when there is (1) competent evidence of a current disability or persistent or recurrent symptoms of a disability, and (2) evidence establishing that an event, injury, or disease occurred in service or establishing certain diseases manifesting during an applicable presumptive period for which the claimant qualifies, and (3) an indication that the disability or persistent or recurrent symptoms of a disability may be associated with the veteran's service or with another service-connected disability, but (4) insufficient competent medical evidence on file for the VA to make a decision on the claim. McLendon v. Nicholson, 20 Vet. App. 79, 81-82 (2006). The Veteran has not received a VA knee examination during the course of this appeal. Review of all the relevant medical evidence of record, to include both VA and private treatment records, reflects that the Veteran may have arthritis in both knees. During the course of this appeal, the Veteran has advanced that the symptoms of the service-connected lumbar strain, and by extension the related bilateral lower extremity radiculopathy, have caused the Veteran to fall on numerous occasions, resulting in right and left knee disorders. Further, a November 2014 private treatment record noted that, while the Veteran was not a paratrooper, the Veteran did advance spending "a lot of time jumping out of helicopters," which resulted in moderate impact on the Veteran's knees. For these reasons, the Board finds remand appropriate to determine what, if any, knee disorders are present, and to determine whether any such knee disorders are related to service and/or a service-connected disability. TDIU The outcome of the claim for TDIU could be affected by the results of development ordered on remand; therefore, the issue of entitlement to a TDIU is inextricably intertwined with the remanded service connection and disability rating issues, and adjudication of entitlement to a TDIU should be deferred pending the proposed development. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991) (the adjudication of claims that are inextricably intertwined is based upon the recognition that claims related to each other should not be subject to piecemeal decision-making or appellate litigation). Outstanding Treatment Records VA should obtain all relevant VA and private clinical documentation that could potentially be helpful in resolving the issues. Murphy v. Derwinski, 1 Vet. App. 78, 81-82 (1990); Bell v. Derwinski, 2 Vet. App. 611 (1992). On remand the AOJ should request that the Veteran provide any relevant outstanding private treatment records not already associated with the record. Further, the AOJ should obtain any outstanding VA treatment records for the period from March 2016. Accordingly, the issues of higher initial ratings for lumbar strain, right ankle strain with DJD, and radiculopathy of the left lower extremity, service connection for right and left knee disorders, and entitlement to a TDIU are REMANDED for the following action: (This appeal has been advanced on the Board's docket pursuant to 38 U.S.C. § 7107(a)(2) and 38 C.F.R. § 20.900(c). Expedited handling is requested.) 1. Contact the Veteran and request information as to any private back, right ankle, radiculopathy, and/or knee treatment received during the relevant period on appeal. Upon receipt of the requested information and the appropriate releases, the AOJ should contact all identified health care providers and request that they forward copies of all available treatment records and clinical documentation for the relevant time period on appeal pertaining to the treatment of the Veteran's relevant disorders, not already of record, for incorporation into the record. If identified records are not ultimately obtained, the Veteran should be notified pursuant to 38 C.F.R. § 3.159(e) (2017). 2. Associate with the record all VA treatment records pertaining to the treatment of the Veteran's back, right ankle, radiculopathy, and knees, not already of record, for the period from March 2016. 3. Schedule the appropriate VA examinations. The relevant documents in the record should be made available to the examiners, who should indicate on the examination report that he/she has reviewed the documents in conjunction with the examination. A detailed history of relevant symptoms should be obtained from the Veteran. All indicated studies should be performed. A rationale for all opinions and a discussion of the facts and medical principles involved should be provided. The examiners should provide the following opinions: Back, Right Ankle, and Left Lower Extremity Radiculopathy The VA examiner(s) should report the extent of the symptomatology of the lumbar strain, right ankle strain with DJD, and radiculopathy of the left lower extremity in accordance with VA rating criteria. Right and Left Knees A) Does the Veteran have a currently diagnosed right and/or left knee disorder, to include arthritis? If the VA examiner finds that the Veteran does not have a currently diagnosed disorder of either the right or left knee, the VA examiner should address the evidence of record to the contrary. B) If the Veteran does have a currently diagnosed right or left knee disorder, is it at least as likely as not (50 percent or higher degree of probability) that the right or left knee disorder had its onset during a period of active service, including as due to jumping from helicopters? C) Is it at least as likely as not (50 percent or higher degree of probability) that the service-connected lumbar strain caused a currently diagnosed right or left knee disorder, including as due to falls caused by the back disorder? D) Is it at least as likely as not (50 percent or higher degree of probability) that the service-connected lumbar strain aggravated (that is, worsened in severity) a currently diagnosed right or left knee disorder, including as due to falls caused by the back disorder? 4. Then, readjudicate the issues of higher initial ratings for lumbar strain, right ankle strain with DJD, and radiculopathy of the left lower extremity, service connection for right and left knee disorders, and a TDIU. If any benefit sought on appeal remains denied, the Veteran and representative should be provided a Supplemental Statement of the Case (SSOC). An appropriate period of time should be allowed for response before the case is returned 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 or by the Court for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C. §§ 5109B, 7112 (2012). ______________________________________________ J. PARKER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs