Citation Nr: 18142750 Decision Date: 10/16/18 Archive Date: 10/16/18 DOCKET NO. 16-01 200 DATE: October 16, 2018 ORDER A rating of more than 40 percent since March 28, 2011, for arthritis of the lumbosacral and thoracic spines is denied. A rating of 10 percent since January 19, 2011, for right lower extremity radiculopathy is granted. A rating of 10 percent since January 19, 2011, for left lower extremity radiculopathy is granted. A rating of more than 30 percent since March 28, 2011, for cervical spine post discectomy of the C4-5 and C5-6 is denied. A rating of 10 percent since July 2, 2010, for right upper extremity radiculopathy is granted. A rating of 10 percent since July 2, 2010, for left upper extremity radiculopathy is granted. A rating of 70 percent since March 28, 2011, for depressive disorder, not otherwise specified (NOS) is granted. The Veteran’s application to reopen his claim of entitlement to service connection for erectile dysfunction (ED) is, and to this extent only, the appeal is granted. A total rating for compensation purposes based on individual unemployability due to service-connected disabilities (TDIU) is granted effective March 28, 2011. REMANDED The issue of entitlement to service connection for sleep apnea is remanded. The issue of entitlement to service connection for an intestinal disorder, to include irritable bowel syndrome, constipation, and diarrhea, is remanded. The issue of entitlement to service connection for hemorrhoids is remanded. The issue of entitlement to service connection for a gastroesophageal disorder, to include gastroesophageal reflux disease (GERD), hiatal hernia, and acid reflux, is remanded. The issue of entitlement to service for erectile dysfunction (ED) is remanded. FINDINGS OF FACT 1. Since March 28, 2011, the Veteran’s lumbar spine disorder caused degenerative joint disease (DJD), scoliosis, bulging discs, central canal narrowing, and bilateral neural foraminal narrowing; pain, difficulty walking, difficulty with prolonged standing, difficulty rising from chairs, and sleep disturbances which prevented him from sleeping in a bed; required the use of a back brace, cane, walker, and multiple pain medications per day; caused limitation of forward flexion to 25 degrees with pain, limitation of extension to 10 degrees with pain, limitation of right lateral flexion to 10 degrees with pain, limitation of left lateral flexion to 10 degrees with pain, and prevented lateral rotation on both the right and left sides; required assistance for dressing and undressing; and caused guarding, muscle spasm, and localized tenderness, which all resulted in an abnormal gait or abnormal spinal contour. He had no ankylosis. 2. Since January 19, 2011, the Veteran has had pain and weakness radiating from his back down both lower extremities and decreased sensation in the left foot and toes. 3. Since March 28, 2011, the Veteran’s cervical spine disorder caused DJD, disc fusion, disc space narrowing, osteophytes, multilevel facet arthropathy, disc herniation and bulging, stenosis, spurring, pain, functional loss, and limited range of motion; required injections to treat the pain with limited success; prevented him from putting on socks and shoes and required him to turn his entire body to look to the side or behind him; and limited forward flexion to 20 degrees with pain, extension to 5 degrees with pain, right lateral flexion to 10 degrees with pain, left lateral flexion to 10 degrees with pain, and he had no range of motion of the right and left lateral rotation. He had no ankylosis. 4. Since July 2, 2010, the Veteran has had pain, numbness, and tingling radiating from his cervical spine down both upper extremities and decreased sensation in the hands and fingers. 5. Since March 28, 2011, the Veteran’s depressive disorder, NOS has caused suicidal ideation, memory impairment, verbal aggression, depressed mood, anxiety, chronic sleep impairment, worry, anger-management difficulties, relationship difficulties, decreased motivation, difficulty following instructions, and feelings of hopelessness. 6. In December 2006, the Veteran was notified that VA denied service connection for ED. The Veteran was informed in writing of the adverse determination and his appellate rights and did not submit a notice of disagreement (NOD) with the decision. 7. The December 2006 rating decision is final. 8. The additional documentation submitted since the December 2006 rating decision is new and material and raises a reasonable possibility of substantiating the Veteran’s claim of service connection for ED. 9. The Veteran’s service-connected disabilities make him unable to secure or follow a substantially gainful occupation. CONCLUSIONS OF LAW 1. The criteria for a rating of more than 40 percent, since March 28, 2011, for arthritis of the lumbosacral and thoracic spines have not been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.321, 3.326(a), 4.7, 4.10, 4.14, 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes 5003, 5010, 5242 (2017). 2. The criteria for a rating of 10 percent, since January 19, 2011, for right lower extremity radiculopathy have been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.321, 3.326(a), 4.7, 4.14, 4.124a, Diagnostic Code 8520 (2017). 3. The criteria for a rating of 10 percent, since January 19, 2011, for left lower extremity radiculopathy have been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.321, 3.326(a), 4.7, 4.14, 4.124a, Diagnostic Code 8520 (2017). 4. The criteria for a rating of more than 30 percent, since March 28, 2011, for cervical spine post discectomy of the C4-5 and C5-6 have not been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.321, 3.326(a), 4.7, 4.10, 4.14, 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes 5003, 5010, 5243 (2017). 5. The criteria for a rating of 10 percent, since July 2, 2010, for right upper extremity radiculopathy have been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.321, 3.326(a), 4.7, 4.14, 4.124a, Diagnostic Code 8513 (2017). 6. The criteria for a rating of 10 percent, since July 2, 2010, for left upper extremity radiculopathy have been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.321, 3.326(a), 4.7, 4.14, 4.124a, Diagnostic Code 8513 (2017). 7. The criteria for a rating of 70 percent, since March 28, 2011, for depressive disorder, NOS have been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.321, 3.326(a), 4.7, 4.14, 4.130, Diagnostic Code 9434 (2017). 8. The December 2006 rating decision denying service connection for ED is final. 38 U.S.C. § 7105 (2012); 38 C.F.R. § 20.1103 (2017). 9. New and material evidence sufficient to reopen the Veteran’s claim of entitlement to service connection for ED has been presented. 38 U.S.C. §§ 5103, 5103A, 5107, 5108 (2012); 38 C.F.R. §§ 3.102, 3.156, 3.159, 3.326(a) (2017). 10. The criteria for a TDIU have been met since March 28, 2011. 38 U.S.C. §§ 1155, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.326(a), 4.16 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served in the U.S. Marine Corps from May 1975 to November 1975 and from July 1977 to December 1996. Increased Ratings Disability evaluations are determined by comparing the Veteran’s current symptomatology with the criteria set forth in the Schedule For Rating Disabilities. 38 U.S.C. § 1155 (2012); 38 C.F.R. Part 4 (2017). Traumatic arthritis is to be rated as degenerative arthritis. 38 C.F.R. § 4.71a, Diagnostic Code 5010 (2017). Degenerative arthritis, established by X-ray, will be rated on the basis of limitation of motion under the appropriate diagnostic criteria for the specific joint or joints involved. When however, the limitation of motion of the specific joint or joints involved is noncompensable under the appropriate diagnostic codes, a rating of 10 percent is for application for each such major joint or group of minor joints affected by limitation of motion, to be combined, not added under diagnostic code 5003. Limitation of motion must be objectively confirmed by findings such as swelling, muscle spasm, or satisfactory evidence of painful motion. In the absence of limitation of motion, a 10 percent rating is warranted for X-ray evidence of involvement of 2 or more major joints or 2 or more minor joint groups; a 20 percent rating is warranted if there are also occasional incapacitating exacerbations. Note (1) provides: The 20 percent and 10 percent ratings based on X-ray findings, above, will not be combined with ratings based on limitation of motion. Note (2) provides: The 20 percent and 10 percent ratings based on X ray findings, above, will not be utilized in rating conditions listed under diagnostic codes 5013 to 5024, inclusive. 38 C.F.R. § 4.71a, Diagnostic Code 5003 (2017). Where there is a question as to which of two disability evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that evaluation. Otherwise, the lower evaluation will be assigned. 38 C.F.R. § 4.7. The evaluation of the same disability under several diagnostic codes, known as pyramiding, must be avoided. Separate ratings may be assigned for distinct disabilities resulting from the same injury so long as the symptomatology for one condition is not duplicative of or overlapping with the symptomatology of the other condition. 38 C.F.R. § 4.14; Esteban v. Brown, 6 Vet. App. 259, 262 (1994). 1. Entitlement to a rating of more than 40 percent since March 28, 2011, for arthritis of the lumbosacral and thoracic spines. The Veteran’s arthritis of the lumbosacral and thoracic spines is rated according to diagnostic code 5242. A 40 percent rating is warranted for forward flexion of the thoracolumbar spine 30 degrees or less or for favorable ankylosis of the entire thoracolumbar spine. A 50 percent rating is warranted for unfavorable ankylosis of the entire thoracolumbar spine. 38 C.F.R. § 4.71a, Diagnostic Code 5242 (2017). There are also several relevant note provisions associated with diagnostic code 5242. Note (1): Evaluate any associated objective neurologic abnormalities, including, but not limited to, bowel or bladder impairment, separately, under an appropriate diagnostic code. Note (2): (See also Plate V.) For VA compensation purposes, normal forward flexion of the thoracolumbar spine is zero to 90 degrees, extension is zero to 30 degrees, left and right lateral flexion are zero to 30 degrees, and left and right lateral rotation are zero to 30 degrees. The combined range of motion refers to the sum of the range of forward flexion, extension, left and right lateral flexion, and left and right rotation. The normal combined range of motion of the thoracolumbar spine is 240 degrees. The normal ranges of motion for each component of spinal motion provided in this note are the maximum that can be used for calculation of the combined range of motion. Note (3): In exceptional cases, an examiner may state that because of age, body habitus, neurologic disease, or other factors not the result of disease or injury of the spine, the range of motion of the spine in a particular individual should be considered normal for that individual, even though it does not conform to the normal range of motion stated in Note (2). Provided that the examiner supplies an explanation, the examiner’s assessment that the range of motion is normal for that individual will be accepted. Note (4): Round each range of motion measurement to the nearest five degrees. Note (5): For VA compensation purposes, unfavorable ankylosis is a condition in which the entire cervical spine, the entire thoracolumbar spine, or the entire spine is fixed in flexion or extension, and the ankylosis results in one or more of the following: difficulty walking because of a limited line of vision; restricted opening of the mouth and chewing; breathing limited to diaphragmatic respiration; gastrointestinal symptoms due to pressure of the costal margin on the abdomen; dyspnea or dysphagia; atlantoaxial or cervical subluxation or dislocation; or neurologic symptoms due to nerve root stretching. Fixation of a spinal segment in neutral position (zero degrees) always represents favorable ankylosis. Note (6): Separately evaluate disability of the thoracolumbar and cervical spine segments, except when there is unfavorable ankylosis of both segments, which will be rated as a single disability. 38 C.F.R. § 4.71a, Diagnostic Code 5242 (2017). Diagnostic Code 8520 provides ratings for paralysis of the sciatic nerve. A 10 percent rating is warranted for mild incomplete paralysis, a 20 percent rating is warranted for moderate incomplete paralysis, a 40 percent rating is warranted for moderately severe incomplete paralysis, and a 60 percent rating is warranted for severe incomplete paralysis with marked muscular atrophy. 38 C.F.R. § 4.124a, Diagnostic Code 8520 (2017). April 2010 private treatment records indicate that the Veteran had degenerative lumbar spondylosis with disc protrusion, mild spinal stenosis, lumbar degenerative disc disease (DDD), displacement of lumbar intervertebral disc without myelopathy, tendinitis, bursitis, and myofascial pain syndrome. He was receiving steroid injections for his symptoms. A January 2011 private treatment record indicates that the Veteran had back pain which radiated down both legs. In his March 2011 claim, the Veteran reported that he had difficulty walking, getting up from a chair, and that his back pain interfered with sleep. He stated that he was “unable to spend an entire night in a single sleeping location, but must switch between my bed, a recliner and a sofa to achieve any level of comfort. Sometimes my back is so painful and stiff that I cannot get out of bed.” A March 2011 private X-ray study indicated that the Veteran had upper lumbar scoliosis, had a stimulator device in the right hemipelvis with a catheter extending into the spinal canal, had disc space narrowing, had small anterior osteophytes, and had minimal retrolisthesis. A June 2011 VA treatment record noted that the Veteran had leg weakness. In January 2012, the Veteran was afforded a VA examination. A diagnosis of degenerative joint disease (DJD) was noted. The Veteran reported constant, sharp, throbbing pain on a level of 5 to 6 out of 10 while using pain medication. He could walk 20 yards with a cane and had had a spine stimulator since 2006. He reported discontinuing work in October 2008 in part due to back pain. He took both Percocet and Oxycontin twice a day. On examination, he had active and passive ranges of flexion to 20 degrees with pain, active and passive ranges of extension to 20 degrees with pain, active and passive bilateral lateral flexion to 20 degrees with pain, and active and passive bilateral lateral rotation to 30 degrees with pain. He had pain after repeated use but no additional loss of range of motion. He had functional loss resulting in less movement than normal and pain on movement. He had tenderness and guarding or muscle spasms which resulted in an abnormal gait and abnormal spinal contour. Muscle strength testing was normal, he had no muscle atrophy, reflexes were normal, sensory examination was normal, straight leg testing was normal, he had no radiculopathy symptoms or other neurologic symptoms caused by his back disorder, he had no intervertebral disc syndrome (IVDS), he regularly used a cane, and arthritis was documented using imaging studies. A February 2012 VA treatment record noted that the Veteran had lumbar spine pain continuous and radiating down his left lower extremity. In the Veteran’s July 2012 NOD, he indicated that the spinal stimulator was irritating and caused twitching of the legs. In March 2015, the Veteran was afforded another VA examination. He reported that the spine stimulator did not provide him any pain relief. He was taking two different pain medications daily. He reported constant back pain and that he could not sleep in a bed—he had to sleep in a recliner—and would only get about 4 broken hours of sleep per night. He constantly wore a back brace, used a cane, and would use a walker if he was going to be out for an extended period. The Veteran reported functional loss resulting in less movement, pain with movement, interruption of sleep, and difficulty with prolonged standing or walking. He had forward flexion to 25 degrees with pain, extension to 10 degrees with pain, right lateral flexion to 10 degrees with pain, left lateral flexion to 10 degrees with pain, and no ability to rotate laterally on the right or left side. The examiner noted that the Veteran had limited motion due to pain, that he needed help dressing and undressing for the examination, and that he required a cane or walker for ambulation. He had pain on weight-bearing, pain on palpation, and pain prevented repeated use testing. He had guarding, muscle spasm, and localized tenderness, which all resulted in an abnormal gait or abnormal spinal contour. Muscle strength testing was normal, there was no muscle atrophy, reflexes were normal, there was decreased sensation in the left foot and toes, straight leg testing was negative, and the Veteran had no symptoms of radiculopathy or other neurological impairment. He did not have IVDS or ankylosis. A July 2017 private MRI report indicates that the Veteran had bulging discs, central canal narrowing, and bilateral neural foraminal narrowing throughout his lumbar spine. Since March 28, 2011, the Veteran’s lumbar spine disorder caused DJD, scoliosis, bulging discs, central canal narrowing, and bilateral neural foraminal narrowing; pain, difficulty walking, difficulty with prolonged standing, difficulty rising from chairs, and sleep disturbances which prevented him from sleeping in a bed; required the use of a back brace, cane, walker, and multiple pain medications per day; caused limitation of forward flexion to 25 degrees with pain, limitation of extension to 10 degrees with pain, limitation of right lateral flexion to 10 degrees with pain, limitation of left lateral flexion to 10 degrees with pain, and prevented lateral rotation on both the right and left sides; required assistance for dressing and undressing; and caused guarding, muscle spasm, and localized tenderness, which all resulted in an abnormal gait or abnormal spinal contour. He had no ankylosis. The current 40 percent rating adequately reflects the Veteran’s lumbar spine limitation of motion and functional impairment during the relevant period. 38 C.F.R. § 4.7. See Hart v. Mansfield, 21 Vet. App. 505 (2007). In making this determination, the Board has considered, along with the schedular criteria, the Veteran’s functional loss due to pain. 38 C.F.R. §§ 4.40, 4.45 (2017); DeLuca v. Brown, 8 Vet. App. 202, 206-207 (1995). A rating of 50 percent is not warranted as the Veteran did not have ankylosis. Since January 19, 2011, the Veteran has also had pain and weakness radiating from his back down both lower extremities and decreased sensation in the left foot and toes. Therefore, a separate 10 percent rating for mild right and left lower extremity radiculopathy is warranted since that time. A 20 percent rating is not warranted for moderate incomplete paralysis because the Veteran’s disorder was not severe enough to be detectable at all times, including during VA examinations. 2. Entitlement to a rating of more than 30 percent since March 28, 2011, for cervical spine post-discectomy of the C4-5 and C5-6. The Veteran’s cervical spine disorder is rated according to diagnostic code 5243. A 30 percent rating is warranted for forward flexion of the cervical spine 15 degrees or less; or favorable ankylosis of the entire cervical spine. A 40 percent rating is warranted for unfavorable ankylosis of the entire cervical spine. A 100 percent rating is warranted for unfavorable ankylosis of the entire spine. 38 C.F.R. § 4.71a, Diagnostic Code 5243 (2017). Notes 1, 3, 4, 5, and 6 stated above under the rating criteria for the lumbosacral and thoracic spines also apply to ratings for the cervical spine. Note (2) provides that: (See also Plate V.) For VA compensation purposes, normal forward flexion of the cervical spine is zero to 45 degrees, extension is zero to 45 degrees, left and right lateral flexion are zero to 45 degrees, and left and right lateral rotation are zero to 80 degrees. The combined range of motion refers to the sum of the range of forward flexion, extension, left and right lateral flexion, and left and right rotation. The normal combined range of motion of the cervical spine is 340 degrees. The normal ranges of motion for each component of spinal motion provided in this note are the maximum that can be used for calculation of the combined range of motion. 38 C.F.R. § 4.71a, Diagnostic Code 5243 (2017). Intervertebral Disc Syndrome can alternatively be rated under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes. The method that results in the higher evaluation when all disabilities are combined under 38 C.F.R. § 4.25 is the method that should be utilized. 38 C.F.R. § 4.71a, Diagnostic Code 5243. Under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes, a 40 percent rating is warranted for incapacitating episodes having a total duration of at least 4 weeks but less than 6 weeks during the past 12 months. A 60 percent rating is warranted for incapacitating episodes having a total duration of at least 6 weeks during the past 12 months. Note (1) provides that for purposes of evaluations under diagnostic code 5243, an incapacitating episode is a period of acute signs and symptoms due to intervertebral disc syndrome that requires bed rest prescribed by a physician and treatment by a physician. Note (2) provides that, if intervertebral disc syndrome is present in more than one spinal segment, provided that the effects in each spinal segment are clearly distinct, evaluate each segment on the basis of incapacitating episodes or under the General Rating Formula for Diseases and Injuries of the Spine, whichever method results in a higher evaluation for that segment. 38 C.F.R. § 4.71a, Diagnostic Code 5243 (2017). Paralysis of all upper extremity radicular groups is rated according to diagnostic code 8513. A 20 percent rating is warranted for mild incomplete paralysis of all radicular groups of the minor upper extremity. A 30 percent rating is warranted for moderate incomplete paralysis of all radicular groups of the minor upper extremity. A 60 percent rating is warranted for severe incomplete paralysis of all radicular groups of the minor upper extremity. An 80 percent is warranted for complete paralysis of all radicular groups of the minor upper extremity. 38 C.F.R. § 4.124a, Diagnostic Code 8513 (2017). A July 2, 2010, private treatment record indicates that the Veteran had a past surgical history which included anterior cervical decompression and fusion, cervical laminectomy, and a spinal cord stimulator. He had received epidural steroid injections. He had diagnoses of cervical herniated nucleus pulposus and of radiculitis. A November 2010 private treatment record indicates that the Veteran had neck pain which radiated to his left upper extremity and was constant, aching, spastic, throbbing, increased with movement, and decreased with rest. A January 2011 private treatment record indicates that the Veteran had neck pain and numbness in the right upper extremity. A June 2011 VA treatment record indicates that the Veteran had left upper extremity pain radiating through the shoulder and down to the hand and fingers. In January 2012, the Veteran was afforded a VA examination. He was diagnosed with DJD, status-post fusion and discectomy. The Veteran reported no flare-ups of his cervical spine disorder. The examiner noted that he had a decompression and fusion in 1989 and a laminectomy in 1991. He underwent discectomy in 1987 and 1992. He reported current symptoms of constant pain of approximately 6 to 7 out of 10 with pain medication, and intermittent numbness and tingling in both arms. On examination, he had passive and active forward flexion to 10 degrees with pain, passive and active extension to 10 degrees with pain, right and left lateral flexion to 10 degrees with pain in both directions, and left and right lateral rotation to 60 degrees with pain in both directions. He had no additional loss of range of motion following repeated use testing, no tenderness on palpation, and no guarding or muscle spasm. He had functional impairment resulting in less movement than normal. Muscle strength testing was normal, he had no muscle atrophy, reflexes were normal, and sensation to light touch was normal. He had no signs or symptoms of radiculopathy. The examiner indicated that the Veteran did not have IVDS. The Veteran’s July 2012 NOD noted that the Veteran had pain radiating from his cervical spine into the left upper extremity. He had numbness in the fingers of the left hand. In March 2015, the Veteran was afforded a VA examination. He was diagnosed with residuals of a discectomy of the C4-5 and C5-6 vertebrae. He reported receiving injections in his neck for pain but they only brought the pain down to about a level 4 out of 10 and only for about two days; after that, he returned to being in constant pain. The pain prevented him from putting on his shoes and socks. He reported no flare-ups but he did have functional impairment in that he was in pain and was very limited in his ability to move his neck. On examination, he had forward flexion to 20 degrees with pain, extension to 5 degrees with pain, right lateral flexion to 10 degrees with pain, left lateral flexion to 10 degrees with pain, and he had no range of motion of the right and left lateral rotation. Pain contributed to functional loss. The examiner noted that he had very limited range of motion, he could not turn his head to look behind him, and he had to move his entire body to look to the side or behind him. He had no tenderness on palpation and no additional loss of range of motion after repeated use. He had no guarding or muscle spasm. Muscle strength testing was normal and he had no muscle atrophy. He had decreased reflexes in the bilateral biceps, triceps, and brachioradialis and he had decreased sensation to light touch in the right and left hands and fingers. He had no other signs or symptoms of radiculopathy and no ankylosis. A June 2017 MRI study report indicates that the Veteran had disc fusion, disc space narrowing, osteophytes, multilevel facet arthropathy, disc herniation and bulging, stenosis, and spurring. Since March 28, 2011, the Veteran’s cervical spine caused DJD, disc fusion, disc space narrowing, osteophytes, multilevel facet arthropathy, disc herniation and bulging, stenosis, spurring, pain, functional loss, and limited range of motion; required injections to treat the pain with limited success; prevented him from putting on socks and shoes and required him to turn his entire body to look to the side or behind him; and limited forward flexion to 20 degrees with pain, extension to 5 degrees with pain, right lateral flexion to 10 degrees with pain, left lateral flexion to 10 degrees with pain, and he had no range of motion of the right and left lateral rotation. He had no ankylosis. Given these facts, the Board finds that the current 30 percent rating adequately reflects the Veteran’s cervical spine limitation of motion and functional impairment during the relevant period. 38 C.F.R. § 4.7. See Hart, 21 Vet. App. at 505. In making this determination, the Board has considered, along with the schedular criteria, the Veteran’s functional loss due to pain. 38 C.F.R. §§ 4.40, 4.45 (2017); DeLuca, 8 Vet. App. at 206-207. A rating of 40 percent is not warranted as the Veteran did not have ankylosis and because there was no evidence that the Veteran had incapacitating episodes of a total duration of at least 4 weeks but less than 6 weeks during the past 12 months. Since July 2, 2010, the Veteran has also had pain, numbness, and tingling radiating from his cervical spine down both upper extremities and decreased sensation in the hands and fingers. Therefore, a separate 10 percent rating for mild right and left upper extremity radiculopathy is warranted since that time. A 20 percent rating is not warranted for moderate incomplete paralysis because the Veteran’s disorder was not severe enough to be detectable at all times, including during VA examinations. 3. Entitlement to a rating of more than 30 percent since March 28, 2011, for depressive disorder, NOS. A 30 percent rating is warranted for depressive disorder where there is occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks (although generally functioning satisfactorily, with routine behavior, self-care, and conversation normal), due to such symptoms as: depressed mood, anxiety, suspiciousness, panic attacks (weekly or less often), chronic sleep impairment, mild memory loss (such as forgetting names, directions, recent events). A 50 percent rating requires occupational and social impairment with reduced reliability and productivity due to such symptoms as: flattened affect; circumstantial, circumlocutory, or stereotyped speech; panic attacks more than once a week; difficulty in understanding complex commands; impairment of short and long-term memory (e.g., retention of only highly learned material, forgetting to complete tasks); impaired judgment; impaired abstract thinking; disturbances of motivation and mood; difficulty in establishing and maintaining effective work and social relationships. A 70 percent rating requires occupational and social impairment with deficiencies in most areas such as work, school, family relations, judgment, thinking, or mood due to symptoms such as suicidal ideation, obsessional rituals which interfere with routine activities, intermittently illogical, obscure, or irrelevant speech, near continuous panic or depression affecting the ability to function independently, appropriately and effectively, impaired impulse control (such as unprovoked irritability with periods of violence), spatial disorientation, neglect of personal appearance and hygiene, difficulty in adapting to stressful circumstances (including work or a work like setting), and an inability to establish and maintain effective relationships. A 100 percent rating requires total occupational and social impairment due to symptoms such as gross impairment in thought processes or communication, persistent delusions or hallucinations, grossly inappropriate behavior, a persistent danger of hurting himself or others, an intermittent inability to perform activities of daily living (including maintenance of minimal personal hygiene), disorientation to time or place, and memory loss for names of close relatives, own occupation, or own name. 38 C.F.R. § 4.130, Diagnostic Code 9434 (2017). The use of the phrase “such symptoms as,” followed by a list of examples, provides guidance as to the severity of symptomatology contemplated for each rating. In particular, use of such terminology permits consideration of items listed as well as other symptoms and contemplates the effect of those symptoms on the claimant's social and work situation. See Mauerhan v. Principi, 16 Vet. App. 436 (2002). A June 2011 VA treatment record indicates that the Veteran had suicidal ideation and had been taking antidepressant medication for eight months. In January 2012, the Veteran was afforded a VA examination. Diagnoses of dysthymia and attention deficit/hyperactivity disorder were noted. The examiner noted that the Veteran’s depressive affect was due to dysthymia and his difficulty concentrating and memory impairment could be related to either diagnosed psychiatric disorder. The Veteran reported living with his spouse of 35 years but that they had relationship conflicts. He also reported some conflicts with his children. He was taking classes to pursue a degree in business and to be a teacher. He had failed one course because he forgot to take an online examination. He had not been employed in 3.5 years and had been let go of his last job, where he worked as a sales representative, after 6 months. He reported “difficulty censoring his words with customers.” He reported no physical altercations as an adult but that he was verbally aggressive. On examination, he had symptoms of depressed mood, anxiety, chronic sleep impairment, and suicidal ideation. He reported having a depressed mood every day and having passive thoughts of suicide on occasion. He reported worrying about his spouse who was undergoing cancer treatment and his inability to work—and that his spouse had to work despite having cancer. He only slept 3 to 4 hours per day, sometimes during the day. He was short-tempered and critical. He reported no visual or auditory hallucinations. He had minimal memory impairment. On his July 2012 NOD, the Veteran reported difficulty following instructions, forgetfulness, memory impairment, decreased motivation, relationship difficulty, feelings of hopelessness, and suicidal ideation. Since March 28, 2011, the Veteran’s depressive disorder has caused suicidal ideation, memory impairment, verbal aggression, depressed mood, anxiety, chronic sleep impairment, worry, anger-management difficulties, relationship difficulties, decreased motivation, difficulty following instructions, and feelings of hopelessness. Given these facts, the Board finds that the Veteran’s symptoms most closely approximate a 70 percent rating during the entire period on appeal. See 38 C.F.R. § 4.7. A 100 percent rating is not warranted as the Veteran was able to take courses in pursuit of a degree and had maintained a marriage for 35 years. Therefore, he was not totally socially and occupationally impaired. New and Material Evidence Generally, absent the filing of an NOD within one year of the date of mailing of the notification of the initial review and determination of a veteran’s claim and the subsequent filing of a timely substantive appeal, a rating determination is final and is not subject to revision upon the same factual basis except upon a finding of clear and unmistakable error (CUE). 38 U.S.C. §§ 5108, 7105; 38 C.F.R. §§ 20.200, 20.300, 20.1103. A claimant may reopen a finally adjudicated claim by submitting new and material evidence. New evidence means existing evidence not previously submitted to agency decisionmakers. Material evidence means existing evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. New and material evidence can be neither cumulative nor redundant of the evidence of record at the time of the last prior final denial of the claim sought to be reopened, and must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a). The provisions of 38 C.F.R. § 3.156(a) create a low threshold, with the phrase “raises a reasonable possibility of substantiating the claim” enabling rather than precluding reopening and not constituting a third requirement that must be met before the claim is reopened. Shade v. Shinseki, 24 Vet. App. 110 (2010); Evans v. Brown, 9 Vet. App 273, 283 (1996). See Hodge v. West, 155 F.3d 1356 (Fed. Cir. 1998). New and material evidence received prior to the expiration of the appeal period will be considered as having been filed in connection with the claim which was pending at the beginning of the appeal period. 38 C.F.R. § 3.156(b). Where documents are within VA’s control and could reasonably be expected to be a part of the record, such documents are, in contemplation of law, before VA and should be included in the record. Bell v. Derwinski, 2 Vet. App. 611, 613 (1992). The Board is required to consider the question of whether new and material evidence has been received to reopen the Veteran’s claim without regard to the RO’s determination in order to establish the Board’s jurisdiction to address the underlying claims and to adjudicate the claims on a de novo basis. Jackson v. Principi, 265 F.3d 1366, 1369 (Fed. Cir. 2001); Barnett v. Brown, 83 F.3d 1380 (Fed. Cir. 1996). In December 2006, VA denied service connection for ED because there was no evidence that ED was caused by the Veteran’s service-connected lumbar spine or cervical spine disorders. The Veteran was informed in writing of the adverse decision and did not submit an NOD. New and material evidence pertaining to the issue of service connection for ED was not received by VA or constructively in its possession within one year of written notice to the Veteran of the December 2006 rating decision. Therefore, that decision became final. 38 C.F.R. § 3.156(b). The additional documentation received since the December 2006 rating decision includes VA treatment records, an internet article about the effect of pain medication on ED, a VA examination and medical opinion, and a statement from the Veteran that his ED began with his treatment for his service-connected depressive disorder. When determining whether a claim should be reopened, the credibility of the newly submitted evidence is presumed. Justus v. Principi, 3 Vet. App. 510 (1992). Here, without examination of any other evidence of record, the newly-submitted evidence is of such significance that, when considered for the limited purpose of reopening the Veteran’s claim, it raises a reasonable possibility of substantiating his claim for service connection when considered with the previous evidence of record. As new and material evidence has been received, the Veteran’s claim is reopened. TDIU The Board has determined that an inferred claim for TDIU has been raised under Rice v. Shinseki, 22 Vet. App. 447 (2009). VA regulations allow for the assignment of TDIU when a veteran is unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities, and the veteran has certain combinations of ratings for service connected disabilities. If there is only one such disability, that disability must be ratable at 60 percent or more. If there are two or more disabilities, there must be at least one disability ratable at 40 percent or more, and sufficient additional disability to bring the combined rating to 70 percent or more. 38 C.F.R. § 4.16(a). The Veteran is in receipt of a 70 percent rating for depressive disorder, NOS, and, therefore, meets the minimum disability rating required for a schedular TDIU. The Veteran has not worked since 2008. Since March 28, 2011, he has had severe psychiatric and physical impairments, as evidenced by his 70 percent rating for depressive disorder, NOS, his 40 percent rating for lumbar and thoracic spine disorders, his 30 percent rating for a cervical spine disorder, and his ratings for right and left upper and lower extremity radiculopathy. Given these facts, the Board finds that the Veteran is unable to secure or follow a substantially gainful occupation as a result of his service connected disabilities during the entire period on appeal. Therefore, TDIU is granted effective March 28, 2011. REASONS FOR REMAND 1. The issue of entitlement to service connection for sleep apnea is remanded. 2. The issue of entitlement to service connection for an intestinal disorder, to include irritable bowel syndrome, constipation, and diarrhea, is remanded. 3. The issue of entitlement to service connection for hemorrhoids is remanded. 4. The issue of entitlement to service connection for a gastroesophageal disorder, to include GERD, hiatal hernia, and acid reflux, is remanded. 5. The issue of entitlement to service for ED is remanded. The matters are REMANDED for the following action: 1. Reasons for the remand: Remand is necessary to obtain new VA medical opinions because the prior opinions are inadequate. The record indicates that that Veteran applied for Social Security Disability benefits. The evidence considered by the Social Security Administration (SSA) in granting the Veteran’s claim is not of record. Therefore, remand is necessary to obtain records from the SSA. Masors v. Derwinski, 2 Vet. App. 181, 187-188 (1992). Remand is also necessary to associate VA treatment records with the Veteran’s file. He has reported receiving VA treatment for several disorders but the most recent VA treatment records in the file are from February 2012. 2. Associate with the record any VA clinical documentation not already of record pertaining to the treatment of the Veteran since February 2012. 3. Contact the SSA and request that it provide documentation of the Veteran’s determination of disability benefits and copies of all records developed in association with the decision for incorporation into the record. 4. Return the file to the VA examiner who conducted the January 2012 VA sleep apnea examination. If the examiner is not available, have the file reviewed by a similarly qualified examiner. If necessary to respond to the inquiries below, schedule the Veteran for a VA sleep apnea examination to obtain an opinion as to the nature and etiology of his sleep apnea. All indicated tests and studies should be accomplished and the findings reported in detail. All relevant medical records must be made available to the examiner for review of pertinent documents. The examination report should specifically state that such a review was conducted. The examiner must provide a comprehensive explanation for all opinions provided. The examiner should address the following: (a.) Whether sleep apnea was caused by any in service event, injury, disease, or disorder, or in any way originated during service. (b.) Whether sleep apnea was caused by any service connected disorder, including treatment therefor. (c.) Whether sleep apnea was aggravated by any service connected disorder, including treatment therefor. Service connection is currently in effect for arthritis of the lumbosacral and thoracic spines with right and left lower extremity radiculopathy, cervical spine post discectomy of the C4-5 and C5-6 with right and left upper extremity radiculopathy, and depressive disorder NOS. The examiner’s attention is drawn to the following: *November 2003 VA treatment record indicating complaints of fatigue. VBMS Entry 1/5/2006, p. 16. *June 2004 private treatment record indicating that the Veteran had a “loss of sleep hygiene” which seemed to be due to pain. VBMS Entry 9/3/2004, p. 13. *September 2004 private treatment record stating that the Veteran was beginning to take Oxycontin and Trazadone for sleep hygiene problems. VBMS Entry 9/3/2004, p. 10. *October 2005 statement from the Veteran’s spouse indicating that he was taking pain medications for his service-connected back and neck disorders. *September 2010 private treatment record stating a diagnosis of sleep apnea. VBMS Entry 4/18/2011, p. 44. *July 2012 internet article titled “Higher Risk of Sleep Apnea When Patients Use Opioid-Based Pain Medications” and sleep apnea information from WebMD. *July 2012 NOD which noted that the Veteran believed his sleep apnea was caused by his use of opioid medications to treat his service-connected back and neck disorders and that sleep apnea was caused by weight-gain due to an inability to exercise because of his back and neck disorders. 5. Return the file to the VA examiner who conducted the January 2012 VA intestinal conditions examination. If the examiner is not available, have the file reviewed by a similarly qualified examiner. If necessary to respond to the inquiries below, schedule the Veteran for a VA intestinal disorders examination to obtain an opinion as to the nature and etiology of all identified intestinal disorders. All indicated tests and studies should be accomplished and the findings reported in detail. All relevant medical records must be made available to the examiner for review of pertinent documents. The examination report should specifically state that such a review was conducted. The examiner must provide a comprehensive explanation for all opinions provided. The examiner should address the following: (a.) Whether each identified intestinal disorder was caused by any in-service event, injury, disease, or disorder, or in any way originated during service. (b.) Whether each identified intestinal disorder was caused by any service-connected disorder, including treatment therefor. (c.) Whether each identified intestinal disorder was aggravated by any service-connected disorder, including treatment therefor. Service connection is currently in effect for arthritis of the lumbosacral and thoracic spines with right and left lower extremity radiculopathy, cervical spine post discectomy of the C4-5 and C5-6 with right and left upper extremity radiculopathy, and depressive disorder NOS. The examiner’s attention is drawn to the following: *December 1982 report of medical history where the Veteran indicated that he had piles or rectal disease and where the examiner indicated that the Veteran had frequent problems with constipation and hemorrhoids. VBMS Entry 7/8/2006, p. 19-20. *September 2004 private treatment record stating that the Veteran was beginning to take Oxycontin and Trazadone. VBMS Entry 9/3/2004, p. 10. *October 2005 statement from the Veteran’s spouse indicating that he was taking pain medications for his service-connected back and neck disorders. *January 2012 VA intestinal disorders examination stating a diagnosis of irritable bowel syndrome. *July 2012 internet articles indicating that constipation and diarrhea are side effects of Percocet and Oxycontin. *July 2012 NOD indicating that the Veteran was taking Oxycontin and Percocet for his service connected back and neck disorders and that he believed the medications caused his intestinal disorders. 6. Return the file to the VA examiner who conducted the January 2012 VA rectum and anus examination. If the examiner is not available, have the file reviewed by a similarly-qualified examiner. If necessary to respond to the inquiries below, schedule the Veteran for a VA rectum and anus examination to obtain an opinion as to the nature and etiology of hemorrhoids. All indicated tests and studies should be accomplished and the findings reported in detail. All relevant medical records must be made available to the examiner for review of pertinent documents. The examination report should specifically state that such a review was conducted. The examiner must provide a comprehensive explanation for all opinions provided. THE EXAMINER MUST ADVISE THE VETERAN THAT HE MUST UNDERGO A PHYSICAL EXAMINATION IN ORDER TO DETERMINE WHETHER HE CURRENTLY HAS HEMORRHOIDS. The examiner should address the following: (a.) Whether hemorrhoids were caused by any in service event, injury, disorder, or disease, or in any way originate during service. (b.) Whether hemorrhoids were caused by any service-connected disorder, including treatment therefor. (c.) Whether hemorrhoids were aggravated by any service-connected disorder, including treatment therefor. Service connection is currently in effect for arthritis of the lumbosacral and thoracic spines with right and left lower extremity radiculopathy, cervical spine post discectomy of the C4-5 and C5-6 with right and left upper extremity radiculopathy, and depressive disorder NOS. The examiner’s attention is drawn to the following: *July 1980 report of medical history where the Veteran indicated that he had piles or rectal disease and the examiner noted that he had itchiness and spots on toilet paper. VBMS Entry 6/23/2014, p. 25-26. *December 1982, March 1984, September 1994 reports of medical history where the Veteran indicated that he had piles or rectal disease and where the examiners noted that the Veteran had hemorrhoids. VBMS Entry 7/8/2006, p. 19-21; 6/23/2014, p. 36-37. *December 1982 examination where it was noted that the Veteran had a history of rectal irritation probably secondary to exposure to stool. A notation of “cleanliness” was also made. VBMS Entry 6/23/2014, p. 32-33. *March 2011 informal claim where the Veteran reported being treated for hemorrhoids in service and now being treated with medication by VA for the disorder. *July 2012 NOD where the Veteran reported that his hemorrhoids began in service and have continued since that time. He reported self-treating after service and then, eventually, seeking care at VA. 7. Return the file to the VA examiner who conducted the January 2012 VA esophageal conditions examination. If the examiner is not available, have the file reviewed by a similarly-qualified examiner. If necessary to respond to the inquiries below, schedule the Veteran for a VA esophageal conditions examination to obtain an opinion as to the nature and etiology of all gastroesophageal disorders. All indicated tests and studies should be accomplished and the findings reported in detail. All relevant medical records must be made available to the examiner for review of pertinent documents. The examination report should specifically state that such a review was conducted. The examiner must provide a comprehensive explanation for all opinions provided. The examiner should address the following: (a.) Whether each identified gastroesophageal disorder was caused by any in-service event, injury, disease, or disorder, or in any way originated during service. (b.) Whether each identified gastroesophageal disorder was caused by any service-connected disorder, including treatment therefor. (c.) Whether each identified gastroesophageal disorder was aggravated by any service-connected disorder, including treatment therefor. Service connection is currently in effect for arthritis of the lumbosacral and thoracic spines with right and left lower extremity radiculopathy, cervical spine post discectomy of the C4-5 and C5-6 with right and left upper extremity radiculopathy, and depressive disorder NOS. The examiner’s attention is drawn to the following: *November 2003 VA treatment record indicating that the Veteran had acid reflux/GERD. VBMS Entry 1/5/2006, p. 16. *September 2004 private treatment record stating that the Veteran was beginning to take Oxycontin and Trazadone. VBMS Entry 9/3/2004, p. 10. *December 2004 private treatment record indicating a diagnosis of GERD. VBMS Entry 9/3/2004, p. 5. *October 2005 statement from the Veteran’s spouse indicating that he was taking pain medications for his service-connected back and neck disorders. *April 2006 VA treatment record indicating that the Veteran had heartburn symptoms for approximately 8 years. VBMS Entry 7/10/2006, p. 2. *March 2011 informal claim where the Veteran reported taking Prilosec daily. *January 2012 VA examination report stating a diagnosis of GERD. *February 2012 VA treatment record stating that the Veteran had had heartburn symptoms since the late 1990s. VBMS Entry 3/28/2012, p. 3. *July 2012 internet article listing side effects of Oxycontin, including heartburn and abdominal pain. *July 2012 NOD indicating that the Veteran believed his gastroesophageal disorders were caused by the pain medications he took for his service-connected back and neck disorders. He also indicated that he thought they may have been caused by his service-connected depressive disorder. 8. Return the file to the VA examiner who conducted the January 2012 VA male reproductive system examination. If the examiner is not available, have the file reviewed by a similarly-qualified examiner. If necessary to respond to the inquiries below, schedule the Veteran for a VA examination to obtain an opinion as to the nature and etiology of his ED. All indicated tests and studies should be accomplished and the findings reported in detail. All relevant medical records must be made available to the examiner for review of pertinent documents. The examination report should specifically state that such a review was conducted. The examiner must provide a comprehensive explanation for all opinions provided. The examiner should address the following: (a.) Whether ED was caused by any in-service event, injury, disease, or disorder, or in any way originated during service. (b.) Whether ED was caused by any service connected disorder, including treatment therefor. (c.) Whether ED was aggravated by any service connected disorder, including treatment therefor. Service connection is currently in effect for arthritis of the lumbosacral and thoracic spines with right and left lower extremity radiculopathy, cervical spine post discectomy of the C4-5 and C5-6 with right and left upper extremity radiculopathy, and depressive disorder NOS. The examiner’s attention is drawn to the following: *October 2005 statement from the Veteran’s spouse that he had been told by his physicians that ED could be caused either by his low back disorder or by the pain medication he took to treat the back and neck disorders. *January 2006 VA examination report stating that ED “does not appear to be neurologically concerning.” *April 2006 VA treatment record indicating that he had had ED for approximately two years. VBMS Entry 7/10/2006, p. 2. *September 2006 VA examination report stating that the most likely etiology of ED was medication the Veteran was taking and low testosterone which had been detected by laboratory tests. *March 2011 informal claim where the Veteran reported that he believed his ED was caused by his service-connected depressive disorder. *February 2012 VA treatment record where the Veteran reported that ED began in 2004. VBMS Entry 3/28/2012, p. 3. *July 2012 internet article which noted that opioid medications can cause a decrease in testosterone levels and ED. *July 2012 NOD stating that the Veteran believed the pain medications, including Percocet and Oxycontin, which he was taking for his service connected back and neck disorders, caused ED. He also stated that he believed ED was caused by his service-connected depressive disorder. (Continued on the next page)   9. Readjudicate the issues on appeal. If any benefit sought on appeal remains denied, the Veteran should be provided a supplemental statement of the case (SSOC). An appropriate period should be allowed for response before the case is returned to the Board. Vito A. Clementi Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD J. E. Miller, Associate Counsel