Citation Nr: 1712421 Decision Date: 04/18/17 Archive Date: 04/26/17 DOCKET NO. 12-26 853 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Houston, Texas THE ISSUES 1. Entitlement to an effective date prior to September 28, 2011, for the award of service connection for tinnitus, to include whether there is clear and unmistakable error (CUE) in the September 2004 rating decision that denied service connection for tinnitus. 2. Whether there was CUE in the September 2004 rating decision denying service connection for hypertension or the March 2009 rating decision denying the Veteran's claim to reopen a claim for service connection for hypertension. 3. Whether new and material evidence has been received in order to reopen a claim of entitlement to service connection for hypertension, and, if so, whether service connection is warranted. 4. Entitlement to an initial rating in excess of 10 percent for right lower extremity sciatic nerve impairment. 5. Entitlement to an initial rating in excess of 10 percent for degenerative arthritis of the lumbar spine with intervertebral disc syndrome (IVDS). 6. Entitlement to a rating in excess of 10 percent for left knee osteoarthritis. 7. Whether new and material evidence has been received in order to reopen a claim of entitlement to service connection for right ear hearing loss, and, if so, whether service connection is warranted. (This decision is being issued concurrently with a decision addressing the validity of debt in the initial amount of $17, 513, and the propriety of recoupment by withholding future benefit payments.) REPRESENTATION Appellant represented by: Texas Veterans Commission ATTORNEY FOR THE BOARD Jason George, Associate Counsel INTRODUCTION The Veteran served on active duty from May 1984 to June 1992. This matter comes before the Board of Veterans' Appeals (Board) on appeal from rating decisions issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Houston, Texas. In a January 2012 rating decision, the RO granted service connection and assigned 10 percent ratings for degenerative arthritis with IVDS and right lower extremity sciatic nerve impairment, denied a rating in excess of 10 percent for left knee osteoarthritis, and found no new and material evidence had been submitted to reopen the Veteran's claim for service connection for hypertension. The RO also found no CUE in the September 2004 and March 2009 rating decisions denying service connection for hypertension. In January 2012, the veteran noted his disagreement with the January 2012 rating decision adjudicating these issues. In a March 2012 rating decision, the RO denied service connection for right ear hearing loss. At that time, the RO granted service connection for tinnitus, rated as 10 percent rating effective September 28, 2011. In April 2012, the Veteran expressed disagreement with the denial of his service connection claim and the effective date assigned for tinnitus and claimed CUE with the original, September 2004 rating decision that denied service connection for tinnitus. Although the RO has styled this issue as including consideration of the rating assigned for this disability, the Veteran's NOD does not express disagreement in this respect, so the Board has narrowed it to solely involve a consideration of CUE. VA has associated additional treatment records with the claims file since the most recent adjudications of the claims in the April 2013 and December 2015 statements of the case (SOC). However, there is no prejudice to the Veteran in proceeding with his claims. The Veteran's claim to reopen a claim of service connection for hypertension is entirely favorable. The claims of CUE related to service connection for hypertension and tinnitus and the claim of entitlement to an earlier effective date for service connection for tinnitus are entirely legal in nature, and the records added are not relevant to the underlying legal determination. With regard to the claim for an initial rating in excess of 10 percent for lower right extremity sciatic nerve impairment, the SOC readjudicating the claim noted consideration of VA treatment records from October 10, 2002, through November 18, 2015. No additional, noncumulative VA treatment records related to his right lower extremity sciatic nerve disability dated after November 18, 2015, have been associated with the claims file. The remaining claims are remanded for further development by the AOJ, after which the AOJ will have the opportunity to consider such records in the readjudicate the remanded claims. The issues of entitlement to service connection for a left knee disorder; a lumbar spine disorder; pseudofolliculitis; a skin condition; and a right knee disorder, to include as secondary to a left knee disorder have been raised by the record in an Application for Disability Compensation and Related Compensation Benefits filed in January 2017, but have not been adjudicated by the Agency of Original Jurisdiction (AOJ). The Veteran has also raised a CUE claim regarding the rating decision adjudicating his claim for entitlement to service connection for right hear hearing loss, which has not been adjudicated by the AOJ. Therefore, the Board does not have jurisdiction over these unadjudicated claims, and they are 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 system. The reopened claim for service connection for hypertension, and claims for increased ratings for degenerative arthritis of the lumbar spine with IVDS and left knee osteoarthritis and to reopen a claim for service connection for right ear hearing loss are addressed in the REMAND portion of the decision below and are REMANDED to the AOJ. FINDINGS OF FACT 1. VA received the Veteran's original claim for service connection for service connection for tinnitus on March 22, 2004. 2. In a final decision issued in September 2004, the RO denied service connection for tinnitus. 3. The correct facts as they were known at the time of the September 2004 rating decision were before the RO, and the statutory or regulatory provisions extant at that time were correctly applied. 4. The September 2004 rating decision that denied service connection for tinnitus was consistent with, and reasonably supported by, the evidence then of record and the existing legal authority, and does not contain an error which, had it not been made, would have manifestly changed the outcome of the claim. 5. Following the final September 2004 rating decision, VA first received the Veteran's application to reopen the previously denied claim for service connection for tinnitus on September 28, 2011. 6. In a March 2012 rating decision, service connection for tinnitus was granted, effective September 28, 2011, the date VA received the Veteran's reopened claim. 7. VA received the Veteran's prior claims for service connection for service connection for hypertension on March 22, 2004, and August 16, 2007. 8. In final decisions issued in September 2004, and March 2009, the RO denied service connection for hypertension. 9. The correct facts as they were known at the time of the September 2004 and March 2009 rating decisions were before the RO, and the statutory or regulatory provisions extant at that time were correctly applied. 10. The September 2004 and March 2009 rating decisions that denied service connection for hypertension were consistent with, and reasonably supported by, the evidence then of record and the existing legal authority, and do not contain any error which, had it not been made, would have manifestly changed the outcome of the claim. 11. Evidence added to the record since the final March 2009 denial is not cumulative or redundant of the evidence of record at the time of the decision and raises a reasonable possibility of substantiating the Veteran's claim of entitlement to service connection for hypertension. 12. Since the September 28, 2011, the Veteran's right lower extremity sciatic nerve impairment has been manifested by no more than mild incomplete paralysis of the sciatic nerve, to include pain, albeit sometimes severe and numbness, gait, and slow walking, without muscle atrophy or motor impairment, or more severe symptomatology, and the Veteran has been separately rated for erectile dysfunction. CONCLUSIONS OF LAW 1. The September 2004 rating decision that denied service connection for tinnitus is final. 38 U.S.C.A. § 7105(c) (West 2002) [(West 2014)]; 38 C.F.R. §§ 3.104, 20.302, 20.1103 (2004) [(2016)]. 2. The September 2004 rating decision that denied service connection for tinnitus was not clearly and unmistakably erroneous. 38 U.S.C.A. § 5109A (West 2014); 38 C.F.R. § 3.105 (2016). 3. The criteria for an effective date prior to September 28, 2011, for the award of service connection for tinnitus have not been met. 38 U.S.C.A. §§ 5107, 5110 (West 2014); 38 C.F.R. §§ 3.102, 3.156, 3.400 (2016). 4. The September 2004 and March 2009 rating decisions that denied service connection for hypertension are final. 38 U.S.C.A. § 7105(c) (West 2002) [(West 2014)]; 38 C.F.R. §§ 3.104, 20.302, 20.1103 (2004) (2008) [(2016)]. 5. The September 2004 and March 2009 rating decisions that denied service connection for hypertension were not clearly and unmistakably erroneous. 38 U.S.C.A. § 5109A (West 2014); 38 C.F.R. § 3.105 (2016). 6. New and material evidence has been received to reopen the claim of entitlement to service connection for hypertension. 38 U.S.C.A. § 5108 (West 2014); 38 C.F.R. § 3.156(a) (2016). 7. The criteria for an initial rating in excess of 10 percent for right lower extremity sciatic nerve impairment have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.321, 4.1-4.14, 4.123, 4.124a, Diagnostic Code (DC) 8620 (2016). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Due Process Considerations 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.A. §§ 5102, 5103, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2016). The Board notes that the VCAA is not applicable to the Veteran's claim of CUE in the September 2004 and March 2009 rating decisions as a matter of law. See Baldwin v. Principi, 15 Vet. App. 302 (2001) (holding VCAA does not apply to RO CUE claims). Regulations and legal precedents establish that a review for CUE is only upon the evidence of record at the time the decision was entered (with exceptions not applicable in this matter). See Fugo v. Brown, 6 Vet. App. 40, 43 (1993); Pierce v. Principi, 240 F.3d 1348 (Fed. Cir. 2001) (affirming the Court's interpretation of 38 U.S.C.A. § 5109A that RO CUE must be based upon the evidence of record at the time of the decision). Nevertheless, in the April 2013 and December 2015 statements of the case, the Veteran was informed of the criteria for a motion for reversal or revision of a final RO decision on the basis of CUE. With regard to the Veteran's claim for earlier effective date for service connection for tinnitus, an October 2011 letter, sent prior to the issuance of the rating decision on appeal, addressed his underlying claims for service connection. See 38 U.S.C.A. §§ 5102, 5103, 5103A; 38 C.F.R. § 3.159; see also Scott v. McDonald, 789 F.3d 1375 (Fed. Cir. 2015); Pelegrini v. Principi, 18 Vet. App. 112 (2004). Thereafter, in the March 2012 rating decision, service connection for tinnitus was granted, effective September 28, 2011. Following the issuance of the rating decision, the Veteran entered a notice of disagreement as to the propriety of the assigned effective dates. The Board observes that a claim for an earlier effective date for the grant of service connection is a downstream issue from the original award of such benefit. Grantham v. Brown, 114 F.3d 1156 (1997). VA's General Counsel has held that no VCAA notice is required for such downstream issues. VAOPGCPREC 8-2003, 69 Fed. Reg. 25180 (May 5, 2004). In addition, the Board notes that the Court held that "the statutory scheme contemplates that once a decision awarding service connection, a disability rating, and an effective date has been made, § 5103(a) notice has served its purpose, and its application is no longer required because the claim has already been substantiated." Dingess v. Nicholson, 19 Vet. App. 473, 490 (2006); see also Goodwin v. Peake, 22 Vet. App. 128 (2008) (the Court held that as to the notice requirements for downstream earlier effective date claims following the grant of service connection, "that where a claim has been substantiated after enactment of the VCAA, the appellant bears the burden of demonstrating any prejudice from defective VCAA notice with respect to the downstream elements"). In this case, the Veteran's service connection claims were granted and effective dates were assigned in the March 2012 rating decision on appeal. As such, no additional 38 U.S.C.A. § 5103(a) notice is required because the purpose that the notice is intended to serve has been fulfilled. Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007); Dunlap v. Nicholson, 21 Vet. App. 112 (2007). Likewise, the Veteran's claim of entitlement to a higher initial rating for his lower right extremity sciatic nerve involvement stems from his disagreement with the initial evaluation following the grant of service connection. Once service connection has been granted, the claim is substantiated, additional notice is not required, and any defect in the notice is not prejudicial. Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007); Dunlap v. Nicholson, 21 Vet. App. 112 (2007). Further, as the Board's decision to reopen the Veteran's claim of entitlement to service connection for hypertension is completely favorable, no further action is required to comply with the Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations. With regard to the duty to assist as it pertains to the Veteran's CUE and earlier effective date claims, the Board notes that relevant medical evidence was reviewed by the AOJ in connection with the adjudication of the Veteran's service connection claims. However, pertinent to his CUE and effective date claim, as the Veteran has been assigned the earliest possible effective date under VA regulations, namely the date of receipt of his application to reopen his claim for service connection for tinnitus and the date of receipt of his original claim for service connection for tinnitus, and his arguments on appeal are limited to his interpretation of governing legal authority, all pertinent information and evidence is already of record. There is no outstanding information or evidence that would help substantiate the Veteran's claims. VA's General Counsel has held that in cases where a 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, VA is not required to provide notice of, or assistance in developing, the information and evidence necessary to substantiate such a claim under 38 U.S.C.A. §§ 5103(a) and 5103A. See VAOPGCPREC 5-04 (June 23, 2004). With regard to the increased rating claim for lower right extremity sciatic nerve impairment, the VCAA also requires VA to make reasonable efforts to help a claimant obtain evidence necessary to substantiate his claim. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159(c), (d). This "duty to assist" contemplates that VA will help a claimant obtain records relevant to his claim, whether or not the records are in Federal custody, and that VA will provide a medical examination or obtain an opinion when necessary to make a decision on the claim. 38 C.F.R. § 3.159(c)(4). In the instant case, the Board finds that all relevant facts have been properly developed and that all evidence necessary for equitable resolution of the issue decided herein has been obtained. The Veteran's service treatment records (STRs) and post-service VA and private treatment records have been obtained and considered. The Veteran was also provided with a VA contract examination in November 2011 to assess the nature and severity of his right lower extremity sciatic nerve impairment. The Board finds that the examination is sufficient evidence for deciding the claim in that the examination report is adequate as it is based upon consideration of the Veteran's prior medical history and examinations, describes the disability in sufficient detail so that the Board's evaluation is a fully informed one, and contains reasoned explanations. The Board further notes that neither the Veteran nor his representative have alleged that his right lower extremity sciatic nerve impairment has worsened in severity since the last VA examination. Rather, they argue that the evidence reveals that the Veteran's right lower extremity sciatic nerve impairment is more severe than the currently assigned rating for the duration of the appeal period. Palczewski v. Nicholson, 21 Vet. App. 174 (2007) (the passage of time alone, without an allegation of worsening, does not warrant a new examination). Therefore, the Board finds that the examination of record is adequate to adjudicate the Veteran's claim for a higher initial rating and no further examination is necessary. In light of the foregoing, the Board finds that VA's duties to notify and assist have been satisfied. Thus, appellate review may proceed without prejudice to the Veteran. See Bernard v. Brown, 4 Vet. App. 384, 394 (1993). II. Analysis A. Entitlement to an Effective Date Prior to September 28, 2011, for Service Connection for Tinnitus, to Include Whether CUE in the September 2004 Rating Decision Denying Service Connection for Tinnitus. 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). From the date of notification of an AOJ decision, the claimant has one year 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). In this regard, if the claimant files a timely notice of disagreement with the decision and the AOJ issues a statement of the case, a substantive appeal must be filed within 60 days from the date that the AOJ mails the statement of the case to the appellant, or within the remainder of the 1-year period from the date of mailing of the notification of the determination being appealed, whichever period ends later. 38 C.F.R. § 20.302(b). If new and material evidence is received during an applicable appellate period following an AOJ decision (1 year for a rating decision and 60 days for a statement of the case) or prior to an appellate (Board) decision (if an appeal was timely filed), the new and material evidence will be considered as having been filed in connection with the claim that was pending at the beginning of the appeal period. 38 C.F.R. § 3.156(b). Thus, under 38 C.F.R. § 3.156(b), "VA must evaluate submissions received during the relevant [appeal] period and determine whether they contain new evidence relevant to a pending claim, whether or not the relevant submission might otherwise support a new claim." Bond v. Shinseki, 659 F.3d 1362, 1367-68 (Fed. Cir. 2011). "[N]ew and material evidence" under 38 C.F.R. § 3.156(b) has the same meaning as "new and material evidence" as defined in 38 C.F.R. § 3.156(a). See Young v. Shinseki, 22 Vet. App. 461, 468 (2011). VA is required to determine whether subsequently submitted materials constitute new and material evidence relating to an earlier claim, regardless of how VA characterizes that later submission of evidence. Beraud v. McDonald, 766 F.3d 1402, 1405 (Fed.Cir. 2014). If VA does not make the necessary determination, the underlying claim remains pending. Id. At any time after VA issues a decision on a claim, if VA receives or associates with the claims file relevant official service department records that existed and had not been associated with the claims file when VA first decided the claim, VA will reconsider the claim, notwithstanding paragraph (a) of the same section (which defines new and material evidence). 38 C.F.R. § 3.156(c). The regulation further identifies service records related to a claimed in-service event, injury, or disease as relevant service department records. 38 C.F.R. § 3.156(c)(1)(i). In the instant case, VA received the Veteran's original claim for service connection for tinnitus on March 22, 2004. In a September 2004 rating decision, the AOJ considered the Veteran's STRs from May 1984 to June 1992, which did not show complaints or treatment for tinnitus. No VA or private treatment records regarding the Veteran's tinnitus prior to September 2004 had been identified at that time, even though the AOJ in a May 2004 letter requested information regarding post service treatment from the Veteran, to which the Veteran never responded. See Wood v. Derwinski, 1 Vet. App. 190, 193 (1991) ("The duty to assist is not always a one-way street. If a Veteran wishes help, he cannot passively wait for it in those circumstances where he may or should have information that is essential in obtaining the putative evidence."). Based on the foregoing, the AOJ determined that the evidence of record did not show tinnitus that was incurred in service. Therefore, the AOJ found that the rule regarding benefit of reasonable doubt did not apply because the preponderance of evidence was unfavorable and denied service connection for tinnitus. The Veteran was informed of the denial of his claim for service connection for tinnitus in a September 2004, of which the Veteran was notified in a September 2004 letter. Thereafter the AOJ did not receive any further correspondence from the Veteran regarding his claim for tinnitus until September 28, 2011, and no STRs or other governmental records relevant to the claim that were in existence at the time the September 2004 denial was issued that was relevant to the Veteran's claim for service connection for tinnitus have since been added to the claims file. Consequently, the September 2004 rating decision that denied service connection for tinnitus is final, at least in so far as the issue denied service connection for tinnitus. 38 U.S.C.A. § 7105(c) (West 2002) [(West 2014)]; 38 C.F.R. §§ 3.104, 20.302, 20.1103 (2004) [(2016)]. Thus, the rating decision will be accepted as correct in the absence of clear and unmistakable error. See 38 U.S.C.A. § 5109A; 38 C.F.R. § 3.105. In order for a claim of CUE to be valid, there must have been an error in the prior adjudication of the claim; either the correct facts, as they were known at the time, were not before the adjudicator or the statutory or regulatory provisions extant at the time were incorrectly applied. Phillips v. Brown, 10 Vet. App. 25, 31 (1997); Damrel v. Brown, 6 Vet. App. 242, 245 (1994); Russell v. Principi, 3 Vet. App. 310, 313-14 (1992) (en banc). Furthermore, the error must be "undebatable" and of the sort which, had it not been made, would have manifestly changed the outcome at the time it was made, and a determination that there was CUE must be based on the record and law that exited at the time of the prior adjudication in question. Id. Simply to claim CUE on the basis that the previous adjudication improperly weighed and evaluated the evidence can never rise to the stringent definition of CUE, nor can broad-brush allegations of "failure to follow the regulations" or "failure to give due process," or any other general, non-specific claim of "error" meet the restrictive definition of CUE. Fugo, 6 Vet. App. at 44. Furthermore, clear and unmistakable error is an administrative failure to apply the correct statutory and regulatory provisions to the correct and relevant facts. It is not mere misinterpretation of facts. Oppenheimer v. Derwinski, 1 Vet. App. 370, 372 (1991). It is a very specific and rare kind of error of fact or law that compels the conclusion, as to which reasonable minds could not differ, that the result would have been manifestly different but for the error. Fugo, supra. Breach of duty to assist in development of the claim cannot serve as a basis for claiming CUE. Roberson v. Principi, 251 F.3d 1378 (Fed. Cir. 2001). Where evidence establishes CUE, the prior decision will be reversed or amended. For the purpose of authorizing benefits, the rating decision which constitutes a reversal of a prior decision on the grounds of CUE has the same effect as if the corrected decision had been made on the date of the reversed decision. 38 C.F.R. §§ 3.104(a), 3.400(k). The Court has propounded a three-pronged test to determine whether CUE is present in a prior final determination: (1) either the correct facts, as they were known at the time, were not before the adjudicator (i.e., more than a simple disagreement as to how the facts were weighed or evaluated) or the statutory or regulatory provisions extant at that time were incorrectly applied; (2) the error must be "undebatable" and of the sort "which, had it not been made, would have manifestly changed the outcome at the time it was made"; and (3) a determination that there was CUE must be based on the record and law that existed at the time of the prior adjudication in question. Damrel, supra. To raise a valid claim of CUE, the Veteran must state, with "some degree of specificity," what the error is and also provide "persuasive reasons" why the result would have been manifestly different but for the alleged error. An assertion that the adjudicators had "improperly weighed and evaluated the evidence can never rise to the stringent definition of CUE." Fugo, supra. It must be remembered that there is a presumption of validity to otherwise final decisions, and that were such decisions are collaterally attacked, and a CUE claim is undoubtedly a collateral attack, the presumption is even stronger. Therefore, a claimant who seeks to obtain retroactive benefits based on CUE has a much heavier burden than that placed on a claimant who seeks to establish prospective entitlement to VA benefits. Akins v. Derwinski, 1 Vet. App. 228, 231 (1991). The following legal criteria were extant at the time of the September 2004 RO decision. Service connection will be granted if it is shown that the Veteran suffers from a disability resulting from personal injury or for aggravation of a preexisting injury or disease contracted in the line of duty during active military service. 38 U.S.C.A. §§ 1110, 1131 (West 2002); 38 C.F.R. § 3.303 (2004). Disorders diagnosed after discharge will still be service connected if all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). 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 organic diseases of the nervous system, 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, service connection may be established under 38 C.F.R. § 3.303(b) by (a) evidence of (i) the existence of a chronic disease in service or during an applicable presumption period under 38 C.F.R. § 3.307 and (ii) present manifestations of the same chronic disease, or (b) when a chronic disease is not present during service, evidence of continuity of symptomatology. 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. In his September 2011 CUE claim, the Veteran argues CUE stems from the AOJ's failure to afford him a VA examination to determine the nature and etiology of the Veteran's tinnitus, overlooking reports of tinnitus during service and VA treatment records, and thereby failing to recognize that his tinnitus originated during service. With regard to the Veteran's claim that he should have been afforded a VA examination, deficiencies in the duty to assist, to include providing a VA examination, do not constitute CUE. Roberson, supra. If VA erred in not affording him an examination in connection with his claim for service connection for tinnitus, the Veteran should have raised the error in 2004 or 2005, before the September 2004 rating decision became final. Furthermore, the Veteran in his filing also cites extensively to his STRs; however, none of the records to which he cites contain a complaint of tinnitus. The VA treatment records to which the Veteran cites do not demonstrate complaints of a diagnosis of tinnitus prior to September 2004, nor could they as most of the records are dated after September 2004. At most, the other evidence to which the Veteran cites, and the argument he makes, express his belated disagreement with the decision reached in September 2004. Such disagreement is insufficient to establish CUE. Fugo, supra; Oppenheimer, supra. Further, that the AOJ later granted service connection for tinnitus based on new and material evidence received after the September 2004 rating decision became final does not establish CUE in the earlier decision. Consequently, the Board finds that the correct facts as they were known at the time of the September 2004 rating decision were before the RO, and the statutory or regulatory provisions extant at that time were correctly applied. Therefore, the September 2004 rating decision that denied service connection for tinnitus was consistent with, and reasonably supported by, the evidence then of record and the existing legal authority, and does not contain an error which, had it not been made, would have manifestly changed the outcome of the claim. Therefore, the Veteran's allegations of error in September 2004 rating decision are without merit, and his CUE motion is denied. With respect to his claim for an earlier effective date for the award of service connection for bilateral hearing loss, VA regulations provide that, unless specifically provided otherwise, the effective date for a grant of service connection is the day after separation from service or day entitlement arose, if a claim is received within one year of separation from service; otherwise, the date of receipt of claim, or the date entitlement arose, whichever is later. 38 U.S.C.A. § 5110(b)(1); 38 C.F.R. § 3.400(b)(2)(i). However, under 38 C.F.R. § 3.400(q)(1)(ii), the effective date based on new and material evidence other than service department records received after the final disallowance is the date of receipt of the new claim or the date entitlement arose, whichever is later. Under 38 C.F.R. § 3.400(r), the effective date based on a reopened claim is the date of receipt of the claim or the date entitlement arose, whichever is later. See also 38 U.S.C.A. § 5110. A specific claim in the form prescribed by the Secretary must be filed in order for benefits to be paid to any individual under the laws administered by VA. 38 U.S.C.A. § 5101(a); 38 C.F.R. § 3.151. Prior to March 2015, any communication or action indicating an intent to apply for one or more benefits under the laws administered by VA from a claimant may be considered an informal claim. 38 C.F.R. § 3.155. Such informal claim must identify the benefit sought. Upon receipt of an informal claim, if the formal claim has not been filed, an application form will be forwarded to the claimant for execution. If received within one year from the date it was sent to the claimant, it will be considered filed as of the date of the receipt of the informal claim. 38 C.F.R. § 3.155. The basic facts in this case are not in dispute. The Veteran initially filed a claim for service connection for tinnitus in March 2004, which was denied in a final September 2004 rating decision. Thereafter, VA first received the Veteran's application to reopen the previously denied claim for service connection for tinnitus on September 28, 2011. The Board finds that there is no document of record that can be construed as an informal or formal claim for service connection after the final September 2004 denial, but prior to the September 28, 2011 claim. In this regard, the record is entirely void of any submissions regarding tinnitus entered during such time period. In the March 2012 rating decision, service connection for tinnitus was ultimately granted, effective September 28, 2011, the date VA received the Veteran's reopened claim. The Board recognizes that the Veteran may have experienced tinnitus for many years. However, the effective date of an award of service connection is assigned not based on the date the disability appeared or the date of the earliest medical evidence demonstrating the existence of such disability and a causal connection to service or a service-connected disability; rather, the effective date is assigned based on consideration of the date that the application upon which service connection was eventually awarded was received by VA. See Lalonde v. West, 12 Vet. App. 377, 382-383 (1999). However, while Lalonde emphasis the general rule, importantly, the pertinent regulations specifically state that the effective date should be the date of a claim to reopen after a final disallowance or the date entitlement arose, whichever is later. See 38 C.F.R. § 3.400. In the instant case, based on these regulations, the effective date has been appropriately assigned as the date on which the claim to reopen was received by VA. While sympathetic to the Veteran's belief that an earlier effective date is warranted, for the reasons outlined above, the Board is precluded by law from assigning an effective date prior to September 28, 2011, for the grant of service connection for bilateral hearing loss. Accordingly, the preponderance of the evidence is against the claim for an effective date prior to September 28, 2011 for the award of service connection for such disability. As such, the benefit-of-the-doubt doctrine does not apply. 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). B. Whether There is CUE in the September 2004 Rating Decision Denying Service Connection for Hypertension or the March 2009 Rating Decision Denying Reopening of a Claim for Service Connection for Hypertension. In the instant case, VA received the Veteran's original claim for service connection for hypertension on March 22, 2004. In a September 2004 rating decision, the AOJ considered the Veteran's STRs from May 1984 to June 1992, which did not show complaints or treatment for hypertension. No VA or private treatment records regarding the Veteran's hypertension prior to September 2004 had been identified at that time. The AOJ in a May 2004 letter also requested information regarding post service treatment from the Veteran. However, the Veteran never responded. See Wood, supra. The AOJ thus denied the claim as there was no "evidence of treatment from discharge to present" or "a current diagnosis." The Veteran was promptly notified of the denial of the claim in a September 2004 notification letter. The Board did not receive any correspondence regarding the Veteran's claim for hypertension until August 16, 2007, at which time the Veteran requested review of the claim. Evidence of a diagnosis of hypertension was then shown for the first time at a January 2008 examination by Dr. A.L.M., who indicated that the Veteran was originally diagnosed with hypertension in 1996. The AOJ then denied the claim in a March 2008 rating decision, because there was no diagnosis within one year of separation from service and no indication that hypertension was incurred in or caused by service. The Veteran was notified of the decision in a March 2008 letter, and in January 2009, the Veteran asked the AOJ to reconsider his claim. Thereafter, the AOJ readjudicated the claim in a March 2009 rating decision, finding that no new and material evidence had been received as no evidence had been received that of a diagnosis of hypertension within one year of separation of service. The Veteran was notified of the denial of his claim rating decision in March 2009. The Board notes, however, that since the September 2004 and March 2009 rating decisions, VA treatment records from 2002 show that the Veteran has hypertension meeting VA's definition. Specifically, VA defines hypertension, in pertinent part, as diastolic blood pressure that is predominately 90 mmHg or greater. 38 C.F.R. § 4.104, DC 7101, Note 1. A VA treatment record from October 2002 shows diastolic blood pressure of 93, another VA record from November 2002 shows diastolic blood pressures of 80, 90, 99 and 100, and a second VA record from later in November 2002 of 88, 93, 99, and 100. The record reflects that the Veteran was also on Tiazac, a medication that controls blood pressure. His dosage was increased during this period because his blood pressure was elevated. Even though the AOJ did not consider these records, the rating decisions are final. At the time of the decisions, there were no outstanding service department records. 38 C.F.R. § 3,156(b). VA treatment records are not included in the definition of service department records and do not affect the finality of the rating decisions. Consequently, the September 2004 and March 2009 rating decisions that denied service connection for hypertension are final. 38 U.S.C.A. § 7105(c) (West 2002) [(West 2014)]; 38 C.F.R. §§ 3.104, 20.302, 20.1103 (2004) (2008) [(2016)]. Thus, the rating decision will be accepted as correct in the absence of clear and unmistakable error. See 38 U.S.C.A. § 5109A; 38 C.F.R. § 3.105. The legal criteria extant at the time of the September 2004 and March 2009 RO decisions are the same as those listed above. In addition, the legal criteria to establish a claim to reopen based on new and material evidence are as follows. Generally, a claim which has been denied in an unappealed Board decision or an unappealed AOJ 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 decision makers. 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 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 September 2004 and March 2009 rating decisions, the correct facts as they could have been ascertained at the time were not before the adjudicator. Evidence now of record reveals that the Veteran had a current diagnosis of hypertension at that time as his diastolic blood pressure was predominately above 90 mmHg. Thus, the question becomes whether this error was "undebatable" and of the sort "which, had it not been made, would have manifestly changed the outcome at the time it was made." The Board concludes that the error was not undebatable in this sense as there was no evidence in the record that the Veteran had a diagnosis of hypertension within one year of his separation from service or a medical opinion establishing a nexus between his current hypertension and service. In fact, it was later revealed that the Veteran's hypertension did not onset until 1996, four years after separation from service. Further, there is still no nexus opinion of record. Without one of these, the claim for service connection would not have been granted. Further, the RO's finding that new and material evidence had not been submitted between the September 2004 denial and the March 2009 rating decision was not CUE. In September 2004, the claim was denied for lack of current diagnosis of hypertension. In March 2009, the AOJ denied the claim to reopen, because, although a current diagnosis of hypertension was revealed at the January 2008 VA examination, such diagnosis did not meet VA's definition of hypertension which requires diastolic blood pressure predominately above 90 mmHg or systolic blood pressure predominately above 160 mmHg, 38 C.F.R. § 4.104, DC 7101, Note 1, as the only blood pressure readings then of record were 106/84, 100/82, and 98/84. The Veteran also provided a private treatment record to the January 2008 examiner which showed one blood pressure reading from October 2006 of 133/83 and one blood pressure reading from October 2007 of 144/96, after which his medication was altered. One blood pressure reading of diastolic pressure above 90 mmHg is not sufficient to constitute a diastolic pressure predominately above 90 mmHg, as DC 7101 contemplates blood pressure readings taken two or more times on at least three different days. Id. Further, although the Veteran's blood pressure was well-controlled because he was on medication, this does not change the outcome, as DC 7101 contemplates the ameliorative effects of medication. McCarroll v. McDonald, No. 14-2345 (United States Court of Appeals for Veterans Claims, November 7, 2016) (the Board did not err in failing to discount the ameliorative effects of blood pressure medication as the plain language of DC 7101 contemplates the effects of medications). In any event, the claim would have been denied on the merits as there was no evidence of a medical nexus, to include onset during the one-year presumptive period. Although relevant VA treatment records were not considered at the time of these rating decisions, such does not constitute CUE. Roberson, supra. Similarly, the Veteran's claim that he should have been afforded a VA examination may be found to constitute a failure in the duty to assist, but does not constitute CUE. Id. Further, such records do not evidence onset of hypertension within one year of separation or a medical nexus opinion of record at the time the prior rating decisions were issued. Without one of these, reasonable minds could differ as to the result, and CUE is not found. Fugo, supra. Thus, the Veteran's CUE claim for service connection for hypertension is denied. C. New and Material Evidence to Reopen a Claim for Service Connection for Hypertension The criteria currently used for evaluating a claim to reopen based on the submission of new and material evidence are the same as listed above. As noted above the March 2009 rating decision denying reopening service connection for hypertension is final. At that time, the RO found no current diagnosis meeting VA's definition of a hypertension disability. 38 C.F.R. § 4.104, DC 7101, Note 1. Since then, the Veteran has submitted another claim to reopen his claim for service connection for hypertension on September 28, 2011. Additional VA treatment records, outlined above, have since been associated with the claims file that show a current diagnosis of hypertension meeting VA's definition of hypertension as found in 38 C.F.R. § 4.104, DC 7101, Note 1. In those treatment records from October and November 2002, the Veteran had diastolic blood pressure readings of 80, 88, 90, 93, 99, 99, 100, and 100. The readings took place on multiple days and were consistently at or above 90 mmHg. Therefore, presuming the credibility of such evidence pursuant to Justus, the Board finds that new and material evidence has been received to reopen the claim for service connection for hypertension based on evidence of a current diagnosis meeting VA's definition of hypertension. 38 C.F.R. § 3.156(a); Shade, supra. D. Entitlement to an Initial Rating in Excess of 10 Percent for Right Lower Extremity Sciatic Nerve Impairment The Veteran is currently in receipt of a 10 percent rating under 38 C.F.R. § 4.124a, DC 8620. He now claims that he is entitled to a higher rating. Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities, found in 38 C.F.R., Part 4. The rating schedule is primarily a guide in the evaluation of disability resulting from all types of diseases and injuries encountered as a result of or incident to military service. The ratings are intended to compensate, as far as can practicably be determined, the average impairment of earning capacity resulting from such diseases and injuries and their residual conditions in civilian occupations. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1. Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for that rating. Otherwise the lower rating will be assigned. 38 C.F.R. § 4.7. All benefit of the doubt will be resolved in the Veteran's favor. 38 C.F.R. § 4.3. In order to evaluate the level of disability and any changes in condition, it is necessary to consider the complete medical history of the Veteran's condition. Schafrath v. Derwinski, 1 Vet. App. 589, 594 (1991). Where the appeal arises from the original assignment of a disability evaluation following an award of service connection, the severity of the disability at issue is to be considered during the entire period from the initial assignment of the disability rating to the present time. Fenderson v. West, 12 Vet. App. 119 (1999). Staged ratings are appropriate for an increased rating claim whenever the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings. See Hart v. Mansfield, 21 Vet. App. 505 (2007). Consideration is given to the potential application of the various provisions of 38 C.F.R. Parts 3 and 4, whether or not they are raised by the Veteran, as required by Schafrath, supra. In general, all disabilities, including those arising from a single disease entity, are rated separately, and all disability ratings are then combined in accordance with 38 C.F.R. § 4.25. Pyramiding, the evaluation of the same disability, or the same manifestation of a disability, under different diagnostic codes, is to be avoided when rating a Veteran's service-connected disability. 38 C.F.R. § 4.14. It is possible for a Veteran to have separate and distinct manifestations from the same injury which would permit rating under several diagnostic codes, however, the critical element in permitting the assignment of several ratings under various diagnostic codes is that none of the symptomatology for any one of the conditions is duplicative or overlapping with the symptomatology of the other condition. See Esteban v. Brown, 6 Vet. App. 259, 261-62 (1994). The basis of disability evaluation is the ability of the body as a whole, or of the psyche, or of a system or organ of the body to function under the ordinary conditions of daily life including employment. 38 C.F.R. § 4.10. The Veteran's right lower extremity sciatic nerve impairment is currently rated at 10 percent disabling under DC 8620. The Veteran claims he is entitled to a higher rating of as high as 60 percent for his right lower extremity sciatic nerve impairment. In rating peripheral nerve injuries and their residuals, attention should be given to the site and character of the injury, the relative impairment and motor function, atrophic changes, or sensory disturbances. 38 C.F.R. § 4.120. Under 38 C.F.R. § 4.124a, disability from neurological disorders is rated from 10 to 100 percent in proportion to the impairment of motor, sensory, or mental function. With partial loss of use of one or more extremities from neurological lesions, rating is to be by comparison with mild, moderate, severe, or complete paralysis of the peripheral nerves. The term 'incomplete paralysis' indicates a degree of lost or impaired function substantially less than the type of picture for complete paralysis given with each nerve, whether due to varied level of the nerve lesion or to partial regeneration. When the involvement is only sensory, the rating should be for the mild, or at most, the moderate degree. In rating peripheral nerve disability, neuritis, characterized by loss of reflexes, muscle atrophy, sensory disturbances, and constant pain, at times excruciating, is to be rated on the scale provided for injury of the nerve involved, with a maximum equal to severe, incomplete paralysis. The maximum rating to be assigned for neuritis not characterized by organic changes referred to in this section will be that for moderate incomplete paralysis, or with sciatic nerve involvement, for moderately severe incomplete paralysis. 38 C.F.R. § 4.123. For neurological manifestations, Diagnostic Code 8520 provides the rating criteria for paralysis of the sciatic nerve, and these criteria are incorporated into the criteria for rating neuritis of that nerve under Diagnostic Code 8620. Complete paralysis of the sciatic nerve, which is rated as 80 percent disabling, contemplates foot dangling and dropping, no active movement possible of muscles below the knee, and flexion of the knee weakened or (very rarely) lost. Ratings of 10 percent, 20 percent, and 40 percent are assignable for incomplete paralysis that is mild, moderate, or moderately severe in degree, respectively. A 60 percent rating is warranted for severe incomplete paralysis with marked muscle atrophy. 38 C.F.R. § 4.124a, Diagnostic Code 8520. At the November 2011 examination, the examiner noted the Veteran's numbness and pain, described as severe, in the right leg. He did not experience paresthesia. The pain was relieved by rest. The Veteran reported that he could walk 50 yards, though it took him 15 minutes to accomplish this. The Veteran walked with an antalgic gait due to hip pain. No atrophy was reported in the right leg. As to reflexes, knee and ankle jerk were 2+. The lower extremities were said to show no signs of pathologic reflexes and to show normal cutaneous reflexes. The examiner stated that there are "no non-organic physical signs." He can function with medication, though he is slower walking from office to office. He reported no bowel problems, though he did report erectile dysfunction, for which he is now separately rated. The Board finds that these symptoms do not warrant a rating in excess of 10 percent. The primary symptoms of the Veteran's right sciatic nerve impairment are pain and numbness. The disability does not affect the Veteran's reflexes which were normal or result in any non-organic physical signs of a neurological disability. Further, the Veteran did not experience paresthesia or atrophy in the right leg. Although the Veteran must walk slowly and with pain, he does not exhibit the signs and symptoms of a moderate or moderately severe, or severe sciatic nerve impairment. The Board has considered whether staged ratings under Hart, supra, are appropriate for the Veteran's service-connected right lower extremity sciatic nerve impairment; however, the Board finds that his symptomatology has been stable throughout the appeal period. Therefore, assigning staged ratings for such disability is not warranted The Veteran has also argued that his erectile dysfunction should be considered in conjunction with the rating for his right lower extremity sciatic nerve impairment. However, the Board notes that the Veteran has been assigned a separate, noncompensable rating for his erectile dysfunction under 38 C.F.R. § 4.115b, DC 7522, and is in receipt of special monthly compensation for loss of use of a creative organ under 38 U.S.C.A. § 1114(k)(1). As his erectile dysfunction has been compensated under a separate code, consideration of such symptomatology 38 C.F.R. § 4.124a, DC 8620, would constitute pyramiding, which is to be avoided. 38 C.F.R. § 4.14. Additionally, the Board has contemplated whether the case should be referred for extra-schedular consideration. An extra-schedular disability rating is warranted if the case presents such an exceptional or unusual disability picture with such related factors as marked interference with employment or frequent periods of hospitalization that application of the regular schedular standards would be impracticable. 38 C.F.R. § 3.321(b)(1). In Thun v. Peake, 22 Vet. App. 111, 115-16 (2008), the Court explained how the provisions of 38 C.F.R. § 3.321 are applied. Specifically, the Court stated that the determination of whether a claimant is entitled to an extra-schedular rating under section 3.321 is a three-step inquiry. First, it must be determined whether the evidence presents such an exceptional disability picture that the available schedular evaluations for that service-connected disability are inadequate. In this regard, the Court indicated that there must be a comparison between the level of severity and symptomatology of the claimant's service-connected disability with the established criteria found in the rating schedule for that disability. Under the approach prescribed by VA, if the criteria reasonably describe the claimant's disability level and symptomatology, then the claimant's disability picture is contemplated by the rating schedule, the assigned schedular evaluation is, therefore, adequate, and no referral is required. Second, if the schedular evaluation does not contemplate the claimant's level of disability and symptomatology and is found inadequate, the RO or Board must determine whether the claimant's exceptional disability picture exhibits other related factors such as "marked interference with employment" and "frequent periods of hospitalization." Third, when an analysis of the first two steps reveals that the rating schedule is inadequate to evaluate a claimant's disability picture and that picture has attendant thereto related factors such as marked interference with employment or frequent periods of hospitalization, then the case must be referred to the Under Secretary for Benefits or the Director of the Compensation and Pension Service to determine whether, to accord justice, the Veteran's disability picture requires the assignment of an extra-schedular rating. Thun, supra. The Board has carefully compared the level of severity and symptomatology of the Veteran's lower right extremity sciatic nerve impairment with the established criteria found in the rating schedule. The Board finds that the Veteran's symptomatology is fully addressed by the rating criteria under which such disabilities are currently evaluated which contemplate pain and has been separately rated for erectile dysfunction. In this regard, the Veteran's 10 percent rating contemplates all symptomatology associated with such disabilities. There are no additional symptoms either demonstrated by the medical evidence of record or through the Veteran's lay statements not contemplated by the ratings assigned herein. Furthermore, the Board finds that the Veteran's functional impairment resulting from such disability, to include slow walking and gait, is contemplated by the current ratings assigned for his right lower extremity sciatic nerve impairment. The Board notes that, pursuant to Johnson v. McDonald, 762 F.3d 1362 (Fed. Cir. 2014), a Veteran may be awarded an extra-schedular rating based upon the combined effect of multiple conditions in an exceptional circumstance where evaluation of the individual conditions fails to capture all the symptoms associated with service-connected disabilities experienced. However, in Yancy v. McDonald, 27 Vet. App. 484 (2016), the Court stated that "[n]othing in Johnson changes the long-standing principle that the issue of whether referral for extra-schedular consideration is warranted must be argued by the claimant or reasonably raised by the record." Id. at 495. The Court held that "the Board is required to address whether referral for extra-schedular consideration is warranted for a Veteran's disabilities on a collective basis only when that issue is argued by the claimant or reasonably raised by the record through evidence of the collective impact of the claimant's service-connected disabilities." Id., citing Thun v. Peake, 22 Vet. App. 111, 115 (2008); Robinson v. Nicholson, 21 Vet. App. 545, 552 (2008). In the instant case, while such issue has not been raised by the Veteran or the record, the Board finds that, even after affording the Veteran the benefit of the doubt, there is no additional impairment that has not been attributed to a specific, rated disability. Accordingly, this is not an exceptional circumstance in which extra-schedular consideration may be required to compensate the Veteran for disability that can be attributed only to the combined effect of multiple conditions. Therefore, the Board finds that the rating criteria reasonably describe the Veteran's disability level and symptomatology associated with his service-connected right lower extremity sciatic nerve impairment. As such, the Board need not proceed to consider the second factor, viz., whether there are attendant thereto related factors such as marked interference with employment or frequent periods of hospitalization. Consequently, the Board concludes that referral of this case for consideration of an extra-schedular rating is not warranted. Thun, supra; Bagwell v. Brown, 9 Vet. App. 337, 338-39 (1996); Floyd v. Brown, 9 Vet. App. 88, 96 (1996). Finally, the Board acknowledges the holding in Rice v. Shinseki, 22 Vet. App. 447 (2009), that a total disability based on individual unemployability (TDIU) claim is part of a claim for a higher rating when such claim is raised by the record or asserted by the Veteran. At this time, the Board acknowledges that the Veteran is currently rated as 30 percent disabled from the beginning of the appeal period, September 28, 2011. There is nothing in the record raising the issue of TDIU at this time; however, the Board will wait to further address the issue of TDIU in relation to the increased rating claims on appeal, as the Board has remanded and referred several claims for further development which could alter the analysis of the issue of TDIU. ORDER An effective date prior to September 28, 2011, for the award of service connection for tinnitus, to include whether there is CUE in the September 2004 rating decision that denied service connection for tinnitus, is denied. The claims of CUE with the September 2004 denying service connection for hypertension and March 2009 denying a claim to reopen a claim for service connection for hypertension rating decisions are denied. New and material evidence having been received, the claim of entitlement to service connection for hypertension is reopened; the appeal is granted to this extent only. An initial rating in excess of 10 percent for right lower extremity sciatic nerve impairment is denied. REMAND Although the Board regrets additional delay, another remand is necessary to ensure that due process is followed and that there is a complete record upon which to decide the Veteran's claims so that he is afforded every possible consideration. 38 U.S.C.A. § 5103A (West 2014); 38 C.F.R. § 3.159 (2016). Because the Veteran's clinical records establish a diagnosis of hypertension meeting VA's definition of hypertension and there is an indication, through the assertions of the Veteran, that the hypertension may be related to his service, the Board finds that a medical examination with an opinion is necessary to decide the claim. 38 C.F.R. § 3.159(c)(4); McLendon v. Nicholson, 20 Vet. App. 79 (2006). Specifically, a remand is required in order to afford the Veteran a VA examination so as to determine the nature and etiology of his hypertension. With regard to the Veteran's claims for increased ratings for his degenerative arthritis of the lumbar spine with IVDS and his left knee osteoarthritis, the Board notes that the United States Court of Appeals for Veterans Claims recently made a precedential finding that the final sentence of 38 C.F.R. § 4.59 requires that VA examinations include joint testing for pain on both active and passive motion, in weight-bearing and nonweight-bearing and, if possible, with range of motion measurements of the opposite undamaged joint. See Correia v. McDonald, 28 Vet. App. 158 (2016). Upon a review of the knee examination conducted during the course of the appeal in November 2011, it does not appear that such testing was conducted, or that the VA examiner explained why such testing could not be conducted or was not necessary. A new knee examination is not necessary because in March 2017 the Veteran was afforded a VA knee examination in conjunction with his claim for service connection for a right knee disability that is now pending before the RO. The examination, which shows limited range of motion on the right knee, includes range of motion measurements for the left knee and indicates that there was no evidence of left knee pain on weight bearing. Pain was also noted when flexion was tested, but was said not to result in additional functional loss. While this examination complies with Correia, a retrospective opinion addressing the inquiries mandated in Correia for the range of motion measurements in the November 2011 examination is necessary. To ensure the orderly adjudication of the claim, and to afford the Veteran the benefit of the doubt, the Board will remand the entire claim at this time. Similarly, with regard to the Veteran's claim for an increased rating for degenerative arthritis of the lumbar spine with IVDS, it appears that the back examination conducted in November 2011 did not address the Correia inquiries. Therefore, it is necessary to afford the Veteran a new VA back examination that address the Correia inquires outlined above, and to obtain a retrospective medical opinion as to the findings included in the November 2011 examination conducted during the appeal period. Further, a new examination of the Veteran's degenerative arthritis of the lumbar spine with IVDS is necessary pursuant to Snuffer v. Gober, 10 Vet. App. 400, 403 (1997). In February 2012 correspondence, the Veteran stated that he is entitled to a higher rating because he has experienced incapacitating episodes due to IVDS. The November 2011 examiner did note that the Veteran had IVDS, but that the Veteran had not suffered any incapacitating episodes due to IVDS. The statement from the Veteran constitutes an indication of worsening of his service-connected back disability, and, thus a new examination is also necessary to determine the extent to which the Veteran has had incapacitating episodes. Id. In this regard, the Board notes that VA defines as requiring bed rest prescribed by a physician and treatment by a physician. 38 C.F.R. § 4.71(a), Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes, Note 1. Finally, the Board is remanding the Veteran's claim to reopen a claim for service connection for right ear hearing loss. In this regard, the Board notes that in September 2004, the Veteran's claim for service connection for right ear hearing loss was denied. Thereafter, he filed a claim of CUE with that decision. The AOJ has not yet adjudicated this CUE claim, which the Board has referred to the AOJ for adjudication. The Board finds that the granting of the CUE claim would moot his claim to reopen. Thus, the claim to reopen service connection for right ear hearing loss is inextricably intertwined with the claim of CUE in the September 2004 rating decision denying service connection for right ear hearing loss. 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). Therefore, the claim to reopen a claim for service connection for a right ear hearing disability is remanded so that the AOJ can consider the CUE claim. Accordingly, the case is REMANDED for the following action: 1. Schedule the Veteran for an examination of his hypertension for the purpose of obtaining a medical opinion regarding the etiology of his hypertension. The record, to include a copy of this remand, must be made available to and be reviewed by the examiner. The examiner is asked to furnish an opinion with respect to the following: Is it at least as likely as not (50 percent probability or more) that the Veteran's hypertension had its onset in service, had its onset in the year immediately following service, or is otherwise the result of an incident in service. The examiner should consider all evidence, including lay statements, medical records, and other medical opinions of record. Any opinions offered should be accompanied by clear rationale consistent with the evidence of record. 2. Schedule the Veteran for the appropriate VA examination(s) so as to determine the current level of severity of his back disability. The examiner is also asked to render a retrospective opinion with respect to the range of motion testing of the back and left knee conducted in the November 2011 examination. It is left to the examiner's discretion whether to schedule the Veteran for a new knee examination. The record, to include a complete copy of this remand, must be made available to the examiner, and the examination report should include discussion of the Veteran's documented medical history and his assertions. All indicated tests and studies should be accomplished (with all findings made available to the requesting examiner prior to the completion of his or her report), and all clinical findings should be reported in detail. The examiner must provide all examination findings, along with a complete rationale for the conclusions reached. Examination findings should be reported to allow for application of pertinent rating criteria for the spine. The examiner should record the range of motion observed on clinical evaluation in terms of degrees. It is imperative that the examiner comment on the functional limitations caused by pain and any other associated symptoms, to include the frequency and severity of flare-ups of these symptoms, and the effect of pain on range of motion. If there is clinical evidence of pain on motion, the examiner should indicate the degree of range of motion at which such pain begins. The examiner should record the results of range of motion testing for pain on both active and passive motion, on weight-bearing and nonweight-bearing and, if possible, with range of motion measurements of the opposite undamaged joint. If the examiner is unable to conduct the required testing or concludes that the required testing is not necessary in this case he or she should clearly explain why that is so. The examiner is also requested to review the VA examination containing range of motion findings pertinent to the Veteran's lumbar spine and left knee disabilities conducted during the course of the appeal in November 2011 and offer an opinion as to the range of motion findings for pain on both active and passive motion, on weight-bearing and nonweight-bearing and, if possible, with range of motion measurements of the opposite undamaged joint. If the examiner is unable to do so, he or she should explain why. With regard to the knee disability, the examiner should also note any relevant findings from the March 2017 knee examination. Finally, with regard to the back disability, the examiner should also state whether the Veteran's IVDS has previously resulted in incapacitating episodes, and if so, the duration of the episodes over the past 12 months. This should also be addressed for each year beginning in February 2012 to the present. An incapacitating episode is a period of acute signs and symptoms due to IVDS that requires bed rest prescribed by a physician and treatment by a physician. 3. Adjudicate the Veteran's right ear hearing loss CUE claim. The Board notes that, if the CUE claim is granted, the Veteran's claim to reopen a claim of entitlement to service connection for right ear hearing loss would be moot. 4. After completing the above, and any other development as may be indicated by any response received as a consequence of the actions taken in the preceding paragraphs, the Veteran's claims should be readjudicated based on the entirety of the evidence. If the claims remain denied, the Veteran and his representative should be issued a supplemental statement of the case, and an appropriate period of time should be allowed for response. Thereafter, the case should be returned to the Board for further appellate consideration, if otherwise in order. The Board intimates no opinion as to the outcome of this case. The Veteran need take no action until so informed. The purpose of this REMAND is to ensure compliance with due process considerations. 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). These claims must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West 2014). _________________________________________________ Michael J. Skaltsounis Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs