Citation Nr: 18143001 Decision Date: 10/18/18 Archive Date: 10/17/18 DOCKET NO. 14-38 324A DATE: October 18, 2018 ORDER New and material evidence having been received, entitlement to service connection for pes planus with plantar fasciitis is reopened. New and material evidence having been received, entitlement to service connection for bilateral hearing loss is reopened. An increased disability rating of 40 percent for a low back disability is granted, effective March 3, 2010. An increased disability rating of 20 percent for right lower extremity sciatica is granted, effective March 3, 2010. An increased disability rating of 20 percent for left lower extremity radiculopathy is granted, effective March 3, 2010. A separate 10 percent disability rating for limitation of extension of the left knee is granted, effective December 5, 2015. A separate 10 percent disability rating for limitation of extension of the right knee is granted, effective December 5, 2015. An increased disability rating of 30 percent for ethmoid sinusitis is granted, effective March 12, 2015. An increased initial disability rating of 70 percent for posttraumatic stress disorder (PTSD) is granted, effective March 3, 2011. REMANDED The issues of increased disability ratings for migraine headaches and entitlement to a total disability rating based on individual unemployability (TDIU) are remanded for further development. Additionally, as ordered above, the Board finds that the Veteran is entitled to: a 20 percent rating for right lower extremity sciatica; a 20 percent rating for left lower extremity radiculopathy; a separate 10 percent disability rating for limitation of extension of the left knee; a separate 10 percent disability rating for limitation of extension of the right knee; and a 70 percent rating for PTSD. However, further development is necessary to determine whether he is entitled to even higher ratings. As such, these issues will also be addressed in the Remand portion of the decision below. Further, as indicated above, the Board is reopening claims for service connection for pes planus with plantar fasciitis and bilateral hearing loss. Additional development, however, is needed before the Board may adjudicate the underlying claims for service connection on the merits. As such, those claims also are remanded. Lastly, in September 2018, the Veteran’s representative raised the issues of: (1) entitlement to an earlier effective date for the award of service connection for PTSD based on clear and unmistakable error (CUE) in a May 2007 rating decision; (2) entitlement to service connection for a cervical spine disability based on CUE in a January 2011 rating decision; and (3) entitlement to an earlier effective date for the award of a compensable rating for a low back disability based on CUE in a July 1993 rating decision. Effective March 24, 2015, a claim for benefits must be submitted on the application form prescribed by the Secretary. See 38 C.F.R. §§ 3.1(p), 3.155, 3.160. Considering the representative’s September 2018 statement, the Board requests that the Agency of Original Jurisdiction (AOJ) contact the Veteran and his representative and provide them with the appropriate forms to submit any claims regarding the above-mentioned issues involving CUE. VETERAN’S CONTENTIONS Regarding the issues of the ratings assigned for the low back disability, bilateral lower extremity neurological complications, bilateral knees, ethmoid sinusitis, and PTSD, the Veteran contends that his current ratings do not accurately encompass the severity of his disabilities. In regard to the issues of pes planus with plantar fasciitis as well as bilateral hearing loss, the Veteran contends that these disabilities were caused or aggravated by his active duty service. FINDINGS OF FACT 1. The claim for service connection for pes planus with plantar fasciitis was initially denied in a May 2007 rating decision. Although the Veteran submitted a timely notice of disagreement (NOD) and VA issued a statement of the case (SOC), the Veteran did not timely submit a VA Form 9 to perfect his appeal. Evidence received since the May 2007 rating decision relates to prior unestablished facts. 2. The claim for service connection for bilateral hearing loss was initially denied in a June 2012 rating decision. Evidence received since the June 2012 decision relates to prior unestablished facts. 3. When accounting for the frequency and severity of flare-ups, the Veteran’s low back disability has limited forward flexion of the thoracolumbar spine to no more than 30 degrees for the entire claim period. 4. For the entire claim period, the evidence of record demonstrates that the Veteran’s sciatica of the right lower extremity is most analogous to moderate incomplete paralysis of the sciatic nerve. 5. For the entire claim period, the evidence of record demonstrates that the Veteran’s radiculopathy of the left lower extremity is most analogous to moderate incomplete paralysis of the sciatic nerve. 6. During the claim period, the Veteran exhibited painful motion during extension of the left knee. 7. During the claim period, the Veteran exhibited painful motion during extension of the right knee. 8. The evidence of record indicates that the Veteran’s ethmoid sinusitis was productive of more than 6 non-incapacitating episodes per year during the entirety of the claim period. 9. For the entire claim period, the evidence of record demonstrates that the Veteran’s PTSD was productive of symptoms resulting in occupational and social impairment with deficiencies in most areas. CONCLUSIONS OF LAW 1. The May 2007 rating decision is final; new and material evidence has been received to reopen the claim of entitlement to service connection for pes planus with plantar fasciitis. 38 U.S.C. §§ 5108, 7105; 38 C.F.R. §§ 3.104, 3.156, 20.1103. 2. The June 2012 rating decision is final; new and material evidence has been received to reopen the claim of entitlement to service connection for bilateral hearing loss. 38 U.S.C. §§ 5108, 7105; 38 C.F.R. §§ 3.104, 3.156, 20.1103. 3. The criteria for an increased rating of 40 percent, but no higher, for a low back disability are met, effective March 3, 2010. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.400(o), 4.1, 4.2, 4.3, 4.7, 4.10, 4.27, 4.40, 4.59, 4.71a, Diagnostic Code 5010-5242; Sharp v. Shulkin, 29 Vet. App. 26 (2017). 4. The criteria for an increased rating of 20 percent, but no higher, for right lower extremity sciatica are met, effective March 3, 2010. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.124a, Diagnostic Code 8520. 5. The criteria for an increased rating of 20 percent, but no higher, for left lower extremity radiculopathy are met, effective March 3, 2010. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.124a, Diagnostic Code 8520. 6. The criteria for a separate rating of 10 percent, but no higher, limitation of extension of the left knee are met, effective December 5, 2015. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.10, 4.40, 4.45, 4.71a, Diagnostic Code 5261. 7. The criteria for a separate rating of 10 percent, but no higher, limitation of extension of the right knee are met, effective December 5, 2015. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.10, 4.40, 4.45, 4.71a, Diagnostic Code 5261. 8. The criteria for a rating of 30 percent, but no higher, for ethmoid sinusitis are met, effective March 12, 2015. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.97, Diagnostic Code 6511. 9. The criteria for a disability rating greater of 70 percent, but no higher, for PTSD are met, effective March 3, 2011. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.10, 4.126, 4.130, Diagnostic Code 9411. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from November 1985 to November 1991 and from July 1999 to September 2005, including service in the Southwest Asia theater of operations. The Veteran had additional service in the Alabama Army National Guard. These matters come before the Board of Veterans’ Appeals (Board) on appeal from October 2011, June 2012, November 2015, January 2017, and April 2017 rating decisions of Department of Veterans Affairs (VA) Regional Offices (RO). Jurisdiction of the Veteran’s claims file currently resides with the Montgomery, Alabama RO. New and Material Evidence As indicated above, the Board finds that new and material evidence has been received to reopen claims for entitlement to service connection for pes planus with plantar fasciitis as well as bilateral hearing loss. In making this determination, the Board first notes that service connection for pes planus with plantar fasciitis was initially denied in a May 2007 rating decision. The stated reason for denial was that the Veteran’s pes planus was a congenital condition not subject to service connection. The Veteran was notified of this decision via a letter issued in June 2007. The Veteran submitted a timely NOD in August 2007 and VA issued an SOC on October 31, 2008 which continued the denial of service connection. However, the Veteran’s VA Form 9, submitted on January 5, 2009, was untimely and, thusly, his appeal was not perfected. Accordingly, the May 2007 rating decision became final. See 38 U.S.C. § 7105; 38 C.F.R. §§ 3.156(b), 20.302, 20.1103; see also Bond v. Shinseki, 659 F.3d 1362 (Fed. Cir. 2011); see also Buie v. Shinseki, 24 Vet. App. 242, 251-52 (2010). Turning to the issue of service connection for bilateral hearing loss, this issue was first denied in June 2012 rating decision. The stated reason for denial was a lack of link between current bilateral hearing loss and service. The Veteran was notified of this decision via a letter issued in July 2012 and he neither appealed nor submitted any evidence within one year of notification. Accordingly, the June 2012 rating decision also became final. See 38 U.S.C. § 7105; 38 C.F.R. §§ 3.156(b), 20.302, 20.1103. For the purpose of establishing whether new and material evidence has been received, the credibility of the evidence, but not its weight, is to be presumed. Justus v. Principi, 3 Vet. App. 510, 513 (1992). Evidence received since the May 2007 and June 2012 rating decisions includes VA treatment records, lay statements, and argumentation submitted on the Veteran’s behalf. This evidence is “new,” as it was not previously submitted to agency decision makers. It is also “material,” as it addresses the reasons for the prior denials. Specifically, regarding pes planus with plantar fasciitis, in September 2018, the Veteran’s representative indicated that pes planus was not noted on the Veteran’s 1985 enlistment examination and commented that the Veteran could not have had pes planus when being evaluated to reenter active duty service in 1999. In January 2009, the Veteran contended that his pes planus was aggravated by his military occupational specialty as an armor crewman. Although in May 2007 the RO characterized the Veteran’s pes planus as a congenital defect and VA does not consider congenital or developmental defects to be diseases or injuries for compensation purposes, see 38 C.F.R. §§ 3.303(c), 4.9; Winn v. Brown, 8 Vet. App. 510, 516 (1996), service connection may still be possible when there is evidence of additional disability due to aggravation during service of the congenital defect by a superimposed disease or injury. See VAOPGCPREC 82-90; Monroe v. Brown, 4 Vet. App. 513, 514-15 (1993); Carpenter v. Brown, 8 Vet. App. 240, 245 (1995); VAOPGCPREC 67-90; VAOPGCPREC 11-99. A January 2005 service treatment record (STR) from Winn Army Community Hospital diagnosed the Veteran with bilateral plantar fasciitis, associated with pes planus. As this evidence relates to an unestablished fact necessary to substantiate the Veteran’s claim, the Board concludes that service connection for pes planus with plantar fasciitis must be reopened. 38 U.S.C. § 5108; 38 C.F.R. § 3.156(a); see also Shade v. Shinseki, 24 Vet. App. 110, 118 (2010). Similarly, regarding service connection for bilateral hearing loss, in July 2017, the Veteran was provided a VA hearing loss and tinnitus examination. Although the Veteran did not have hearing loss to an extent recognized as a disability for VA purposes during the examination, the examiner opined that the Veteran’s hearing loss was at least as likely as not caused by or a result of service. The examiner’s opinion relates to an unestablished fact that is necessary to substantiate the Veteran’s claim. As such, the claim is reopened. 38 U.S.C. § 5108; 38 C.F.R. § 3.156(a); see also Shade, 24 Vet. App. at 118. Increased Ratings Disability evaluations are determined by evaluating the extent to which a veteran’s service-connected disability adversely affects his ability to function under the ordinary conditions of daily life, including employment, by comparing his symptomatology with the criteria set forth in the Rating Schedule. 38 U.S.C. § 1155; 38 C.F.R. §§ 4.1, 4.2, 4.10. If two evaluations are potentially applicable, 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. When evaluating a disability based upon limitation of motion, the Board must also consider, in conjunction with the otherwise applicable diagnostic codes, any additional functional loss the Veteran may have sustained by virtue of other factors as described in 38 C.F.R. §§ 4.40 and 4.45. DeLuca v. Brown, 8 Vet. App. 202, 204-7 (1995). Such factors include more or less movement than normal, weakened movement, excess fatigability, incoordination, pain on movement, swelling, and deformity or atrophy from disuse. A finding of functional loss due to pain must be supported by adequate pathology and evidenced by the visible behavior of the Veteran. 38 C.F.R. § 4.40; Johnston v. Brown, 10 Vet. App. 80, 85 (1997). The intent of the schedule is to recognize painful motion with joint or particular pathology as productive of disability. It is the intention to recognize actually painful, unstable, or malaligned joints, due to healed injury, as entitled to at least the minimum compensable rating for the joint. 38 C.F.R. § 4.59. The provisions of 38 C.F.R. § 4.59, which relate to painful motion, are not limited to arthritis and must be considered when raised by the Veteran or when reasonably raised by the record. Burton v. Shinseki, 25 Vet. App. 1 (2011). In specific regard to rating disabilities of the knee, precedent opinions of VA’s General Counsel have held that dual ratings may be given for a knee disorder, with one rating for instability (Diagnostic Code 5257) and one rating for arthritis with limitation of motion (Diagnostic Codes 5003 and 5010). VAOPGCPREC 9-98 (63 Fed. Reg. 56,704 (1998)) and 23-97 (62 Fed. Reg. 63,604 (1997)). Another such opinion held that separate ratings under Diagnostic Code 5260 (leg, limitation of flexion) and Diagnostic Code 5261 (leg, limitation of extension) may be assigned for disability of the same joint. VAOPGCPREC 9-2004 (69 Fed. Reg. 59988 (2004)). Further, in Lyles v. Shulkin, the Court of Appeals for Veterans Claims (Court) recently held that evaluation of a knee disability under the diagnostic codes for recurrent subluxation or instability; limitation of extension; or limitation of flexion does not preclude as a matter of law a separate evaluation of a meniscal disability under Diagnostic Code 5258 or 5259—the diagnostic codes for removal or dislocation of semilunar cartilage. 29 Vet. App. 107, 115-16 (2017). Accordingly, considering the above, when evaluating the Veteran’s left knee disability, the Board may assign separate ratings for: (1) recurrent subluxation or lateral instability; (2) limitation of flexion; (3) limitation of extension; and (4) symptoms associated with the dislocation or removal of semilunar cartilage. For rating purposes, normal range of motion in a knee joint is from 0 to 140 degrees. 38 C.F.R. § 4.71, Plate II. 1. Low Back Disability As indicated above in the Conclusions of Law section, the Board finds that the Veteran is entitled to an increased 40 percent rating for his low back disability, effective March 3, 2010. Accordingly, to this extent, the Veteran’s claim is granted. Presently, the Veteran’s low back disability is rated as 10 percent disabling prior to June 28, 2017 and 20 percent disabling thereafter under 38 C.F.R. § 4.71a, Diagnostic Code 5010-5242. A disability assigned this diagnostic code is evaluated under the General Rating Formula for Diseases and Injuries of the Spine (general formula). Under the general formula, a 10 percent rating is warranted where forward flexion of the thoracolumbar spine is greater than 60 degrees but not greater than 85 degrees; or, the combined range of motion of the thoracolumbar spine is greater than 120 degrees, but not greater than 235 degrees; or, if a claimant has muscle spasm, guarding, or localized tenderness not resulting in an abnormal gait or abnormal spinal contour; or, there is a vertebral body fracture with loss of 50 percent or more of the height. A 20 percent rating is warranted where forward flexion of the thoracolumbar spine is greater than 30 degrees but not greater than 60 degrees; or, the combined range of motion of the thoracolumbar spine is not greater than 120 degrees; or, if a claimant has muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis. A 40 percent rating is warranted where forward flexion of the thoracolumbar spine is 30 degrees or less; or there is favorable ankylosis of the entire thoracolumbar spine. A 50 percent rating is warranted where there is unfavorable ankylosis of the entire thoracolumbar spine. Lastly, a 100 rating is warranted where there is unfavorable ankylosis of the entire spine. Turning to the evidence of record, the Veteran was afforded multiple VA examinations during the pendency of his claim—received by VA on March 3, 2011—regarding his low back. Firstly, in June 2011, the Veteran reported to a VA examiner that he experienced back pain that could become aggravated after walking more than 1 block. The Veteran stated that he experienced flare-ups every 2 to 3 days which additionally limited the range of motion of his thoracolumbar spine by 55 percent. Initial range of motion testing of the thoracolumbar spine produced the following results: forward flexion to 75 degrees; extension to 20 degrees; and left lateral flexion, right lateral flexion, left lateral rotation, and right lateral rotation all to 20 degrees. The examiner noted that there was objective evidence of painful motion during all tested movements. Lastly, the examiner commented that ankylosis was not present. Next, during an April 2017 VA examination, the Veteran reported daily symptoms of pain and a rapid burning sensation. He stated that he experienced flare-ups about twice a week that lasted several hours. Initial range of motion testing of the thoracolumbar spine produced the following results: forward flexion to 70 degrees; extension to 25 degrees; left lateral flexion to 30 degrees; right lateral flexion to 30 degrees; left lateral rotation to 25 degrees; and right lateral rotation all to 25 degrees. The examiner noted pain during the flexion movement. Despite the Veteran’s report of flare-ups, the examiner commented she could not provide an opinion regarding functional limitations during a flare as it would be mere speculation because the opinion would be dependent on subjective data. Lastly, the Veteran was afforded another VA examination in June 2017. The Veteran reported chronic low back pain without flare-ups. The Veteran stated that his low back pain made it difficult for him to bend over. Initial range of motion testing of the thoracolumbar spine demonstrated that forward flexion of the thoracolumbar spine was limited to 60 degrees, with objective evidence of pain during the flexion movement. The Veteran was able to perform repetitive-use testing, but, following such testing, no additional functional loss or range of motion was found. Again, no ankylosis was found. Although forward flexion of the thoracolumbar spine was not limited to 30 degrees or less during range of motion testing conducted in the 3 VA examinations summarized above, the Board notes that during the June 2011 VA examination, the Veteran reported that, during flare-ups, his range of motion was limited by an additional 55 percent. In Sharp v. Shulkin, the United States Court of Appeals for Veterans Claims (Court) reiterated that, when evaluating joint disabilities in the rating schedule for the musculoskeletal system and applying 38 C.F.R. §§ 4.40 and 4.45, examiners should provide opinions in terms of whether pain further reduces functional ability during flare-ups in terms of the degree of additional range-of-motion loss. 29 Vet. App. 26, 32 (2017) (quoting DeLuca v. Brown, 8 Vet. App. 202, 206 (1995)). Accordingly, applying the logic of Sharp within the context of the June 2011 VA examination, the Board finds that, during weekly flare-ups, forward flexion of the Veteran’s thoracolumbar spine was limited to 33.75 degrees. Additionally, during the June 2011 VA examination, the examiner noted objective evidence of pain during the forward flexion movement. Taking into account this additional limitation of motion—as well as the Veteran’s painful motion—the Board concludes that, on the whole, the Veteran’s low back disability was limited to approximately 30 degrees during the claim period. As such, an increased rating of 40 percent is warranted under the general rating formula. Comparatively, the Board notes that ankylosis of the thoracolumbar spine or the entire spine was not found at any point during the claim period. These criteria are required for higher ratings of 50 percent and 100 percent, respectively, under the general rating formula. Thus, to this extent, the Veteran’s appeal is denied. Lastly, regarding the effective date of the award of a 40 percent rating for the low back disability, VA law and regulations provide that, in the context of an increased rating claim, an effective date up to one year prior to the receipt of the claim may be assigned if it is ascertainable that an increase in the disability occurred within that time period. See 38C.F.R. § 3.400(o)(2). As stated previously, the Veteran’s low back increased rating claim was received by VA on March 3, 2011. In the instant case, the Board finds that it was ascertainable that the Veteran suffered an increase in severity of his low back disability up to one year prior to the receipt of claim. Specifically, a March 2010 VA treatment record documented intermittent flare-ups of back pain. Likewise, in June 2010, the Veteran sought treatment at a VA facility for a flare-up that had lasted for 3 days. Taking into account these repeated flare-ups within the year prior to the receipt of claim, the Board assigns a date of March 3, 2010 for the effectuation of the 40 percent rating. 2. Bilateral Lower Extremity Neurological Complications Associated with a Low Back Disability Note 1 to the general rating formula for diseases and injuries of the spine provides that objective neurological abnormalities associated with spinal conditions are to be rated separately under the appropriate diagnostic code. See 38 C.F.R. § 4.71a. Accordingly, although the Veteran did not explicitly submit a claim regarding his bilateral lower extremities along with his claim for an increase for a low back disability on March 3, 2011, pursuant to Note 1’s mandate, the Board will evaluate the Veteran’s bilateral lower extremity neurological issues for the possibility of increased ratings, from March 3, 2010 forward. After reviewing the evidence of record, the Board finds that the Veteran is entitled to 20 percent ratings for his right and left lower extremities pursuant to 38 C.F.R. § 4.124a, Diagnostic Code 8520, effective March 3, 2010. Thus, to this extent, the Veteran’s claim is granted. In support of this determination, the Board notes that, presently, the Veteran’s right lower extremity has received a 20 percent rating, effective August 16, 2015, pursuant to 38 C.F.R. § 4.124a, Diagnostic Code 8520—the diagnostic code for paralysis of the sciatic nerve. Comparatively, the Veteran’s left lower extremity has received a 10 percent rating, effective February 11, 2017, under 38 C.F.R. § 4.124a, Diagnostic Code 8526—the diagnostic code for paralysis of the femoral nerve. The Board finds Diagnostic Code 8520 to be more appropriate for rating both lower extremities in the instant case, as, at various times, medical professionals have indicated sciatic nerve involvement in both lower extremities. Under Diagnostic Code 8520, a 10 percent rating is assigned for mild incomplete paralysis. A 20 percent rating is assigned for moderate incomplete paralysis. A 40 percent rating is assigned for moderately severe incomplete paralysis. A 60 percent rating is assigned for severe incomplete paralysis with marked muscular atrophy. An 80 percent rating is assigned for complete paralysis where the foot dangles and drops, there is no active movement possible of the muscles below the knee, and flexion of the knee is weakened or lost entirely. Within the context of Diagnostic Code 8520, the terms “mild,” “moderate,” “moderately severe,” and “severe” are not defined. Rather than applying a mechanical formula, VA must evaluate all the evidence to the end that its decisions are equitable and just. 38 C.F.R. § 4.6. Use of terminology such as “severe” by VA examiners and others, although evidence to be considered by the Board, is not dispositive of an issue. All evidence must be evaluated in arriving at a decision regarding an increased rating. 38 C.F.R. §§ 4.2, 4.6. Turning to the evidence of record, the Board identifies several relevant VA examination reports of record. Specifically, during the above-mentioned June 2011 VA back examination, the Veteran reported that he had pain radiating from his low back into his right leg. A detailed reflex examination reflected an absence of reflexes on both sides during the knee jerk and hypoactive reflexes on both sides during the ankle jerk. However, sensory and detailed motor examinations of both lower extremities produced normal results. The examiner also commented that the Veteran had normal muscle tone and no muscle atrophy. Comparatively, in October 2015, the Veteran was provided a VA peripheral nerves examination. The examination was requested for the right lower extremity only and, therefore, it is unclear whether the left lower extremity was fully investigated. The Veteran reported daily symptoms of intermittent pinching or pulling, pain the leg, and numbness in his right foot. The examiner marked symptoms of severe intermittent pain, moderate paresthesias, and mild numbness of the right lower extremity. Muscle strength testing produced normal results. The examiner noted hypoactive deep tendon reflexes of the knee and ankle in both lower extremities, but a completely normal sensory examination and no trophic changes. Lastly, the examiner concluded that the Veteran suffered from moderate incomplete paralysis of the right lower extremity involving the sciatic nerve root. Thereafter, during an April 2017 VA back conditions examination, the Veteran reported back pain that radiated into both lower extremities, with numbness in both feet. Muscle strength testing produced normal results and the examiner commented that the Veteran did not have muscle atrophy. Additionally, the Veteran’s deep tendon reflexes were normal bilaterally, a sensory examination was normal on both sides, and straight leg raising tests were negative for each leg. The examiner noted that the Veteran had radiculopathy, with symptoms of moderate intermittent pain, paresthesias, and numbness impacting the femoral root on both sides. In conclusion, the examiner commented that the overall severity of the Veteran’s radiculopathy was mild bilaterally. Lastly, during a June 2017 VA back conditions examination, the Veteran reported chronic lower back pain which radiated down both legs, sometimes to the feet, with the majority of his pain on the right side. Muscle strength, reflex, and sensory examinations all produced normal results bilaterally. However, straight leg raising tests were positive on both sides. The examiner commented that the Veteran’s primary symptoms were mild intermittent pain in each lower extremity and that the Veteran’s radiculopathy impact the sciatic nerve roots on each side. Moving beyond the VA examination reports, in a November 2010 VA emergency department record, the Veteran complained of chronic back pain with pain shooting down into his left leg. Straight leg raising tests were positive bilaterally. A follow-up VA treatment record later in November 2010 documented that the Veteran was still experiencing radiating pain, this time in both of his lower extremities. A May 2011 VA treatment record documented that the Veteran still suffered from pain radiating from his back into both of his legs. Thereafter, a September 2011 VA physical therapy note indicated that manual muscle testing was normal except for slight deficiencies of hip extension on both sides. In light of the evidence noted above, the Board finds the Veteran’s disability picture to be most analogous to moderate incomplete paralysis of the sciatic nerve on both sides, effective March 3, 2010 onward. Under Diagnostic Code 8520, this warrants the assignment of 20 percent ratings for each lower extremity. Thus, to this extent, the Veteran’s claim is granted. Although this decision represents a partial grant of the benefits sought on appeal, the Board recognizes that further disposition of these issues would be premature. Accordingly, additional evidentiary development is necessary and is outlined in the Remand portion of this decision below. 3. Limitation of Extension of Both Knees Similar to the issues of bilateral lower extremity radiculopathy adjudicated immediately above, the Board noted previously that further development is needed prior to adjudication of the issues of increased disability ratings for the right and left knees. However, the Board notes that, presently, the evidence of record is supportive for the assignment of separate 10 percent ratings under 38 C.F.R. § 4.71a, Diagnostic Code 5261 for limitation of extension. Specifically, during a January 2017 VA knee and lower leg conditions examination, the examiner remarked that the Veteran demonstrated pain during both flexion and extension of both knees. While the Veteran’s knee extension was not limited to at least 10 degrees—the criteria for a 10 percent rating under Diagnostic Code 5261—the Board may assign compensable ratings in acknowledgment of this painful motion during the extension movement. See 38 C.F.R. § 4.59; DeLuca, supra. 4. Ethmoid Sinusitis Regarding his service-connected ethmoid sinusitis, the Veteran currently is in receipt of a 10 percent rating, effective March 16, 2016, pursuant to 38 C.F.R. § 4.97, Diagnostic Code 6511. After reviewing the evidence of record, the Board finds that the Veteran is entitled to a 30 percent rating, effective March 15, 2015—one year before the receipt of claim. See 38 C.F.R. § 3.400(o)(2). Disabilities assigned Diagnostic Code 6511 are evaluated under the General Rating Formula for Sinusitis. A noncompensable rating is assigned for sinusitis detected by x-ray only. A 10 percent rating is assigned for 1 or 2 incapacitating episodes per year requiring prolonged (lasting 4 to 6 weeks) antibiotic treatment, or; 3 to 6 non-incapacitating episodes per year of sinusitis characterized by headaches, pain, and purulent discharge or crusting. A 30 percent rating is assigned for 3 or more incapacitating episodes per year requiring prolonged (lasting 4 to 6 weeks) antibiotic treatment, or; more than 6 non-incapacitating episodes per year of sinusitis characterized by headaches, pain, and purulent discharge or crusting. A 50 percent rating is assigned following radical surgery with chronic osteomyelitis, or; near constant sinusitis characterized by headaches, pain and tenderness of affected sinus, and purulent discharge or crusting after repeated surgeries. The Note to the General Rating Formula for Sinusitis defines “incapacitating episode” to be “one that requires bed rest and treatment by a physician.” In support of its determination to assign a 30 percent rating, the Board notes that the Veteran was provided 3 VA examinations in connection with his sinusitis. Firstly, in a March 2016 examination, the Veteran stated that he suffered from recent sinus infections that were treated with antibiotics. The examiner noted current symptoms of pain and tenderness. The examiner then stated that the Veteran had 4 non-incapacitating episodes and 0 incapacitating episodes of sinusitis in the past 12 months. Lastly, the examiner noted that the Veteran has never had sinus surgery. Next, during a September 2016 examination, the Veteran reported sinus symptoms of chest congestion, headache, and runny nose, treated with pseudoephedrine and nasal spray. The examiner commented that the Veteran did not demonstrate any symptoms of sinusitis at the time of the examination. The examiner then commented that the Veteran had 5 non-incapacitating episodes and 0 incapacitating episodes in the past 12 months. Lastly, the examiner noted that the Veteran had not had sinus surgery. Thereafter, in a September 2017 examination, the examiner noted current symptoms of sinusitis episodes, tenderness of the affected sinus, and purulent discharge. The examiner marked that the Veteran had 3 non-incapacitating episodes and 0 incapacitating episodes of sinusitis in the past 12 months. Again, the examiner noted that the Veteran did not have sinus surgery. Separate from the VA examinations of record, the Board notes that in an April 2018 VA allergy and immunology treatment record, the clinician noted that the Veteran had more than 4 sinus infections in the past year and that the Veteran was treated with amoxicillin—an antibiotic. 3 months prior to that encounter, in January 2018, the Veteran presented for treatment at a VA facility complaining of a sinus infection, requesting Sudafed with antibiotics. Similar to the reports in 2018, a September 2017 VA psychiatry treatment record noted that the Veteran had cancelled 2 earlier appointments due to sinus infections. The Veteran also requested and was prescribed antibiotics by VA clinicians due to sinus infections in July 2017, February 2017, and July 2016. Additionally, VA treatment records from February and January 2016 documented congested sinuses. From the evidence recounted above, the Board concludes that the Veteran suffered from more than 6 non-incapacitating episodes of sinusitis per year throughout the claim period and that he occasionally received antibiotics for treatment. Such evidence is reflective of a 30 percent rating under Diagnostic Code 6511. However, the evidence does not reveal that the Veteran underwent radical surgery or had repeated surgeries for his sinusitis at any point during the claim period. Accordingly, the next higher rating of 50 percent is not warranted. 5. PTSD After reviewing the evidence of record, the Board finds that the Veteran is entitled to a 70 percent rating for his service-connected PTSD, effective March 3, 2011—the date of claim. Accordingly, to this extent, the Veteran’s claim is granted. Under 38 C.F.R. § 4.130, psychiatric impairment is rated under the General Rating Formula for Mental Disorders. Under that formula, a 30 percent rating is assigned for occupational and social impairment with occasional decreases 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 is warranted for 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 effective work and social relationships. A 70 percent rating is assigned for occupational and social impairment, with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood, due to such symptoms as: suicidal ideation; obsessional rituals which interfere with routine activities; speech intermittently illogical, obscure, or irrelevant; 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 worklike setting); inability to establish and maintain effective relationships. A 100 percent rating is assigned for total occupational and social impairment, due to such symptoms as: gross impairment in thought processes or communication; persistent delusions or hallucinations; grossly inappropriate behavior; persistent danger of hurting self or others; intermittent inability to perform activities of daily living (including maintenance of minimal personal hygiene); disorientation to time or place; memory loss for names of close relatives, own occupation, or own name. 38 C.F.R. § 4.130. When determining the appropriate disability evaluation to assign, the Board’s primary consideration is the Veteran’s symptoms, but it must also make findings as to how those symptoms impact the Veteran’s occupational and social impairment. Vazquez-Claudio v. Shinseki, 713 F.3d 112, 118 (Fed. Cir. 2013); Mauerhan v. Principi, 16 Vet. App. 436, 442 (2002). Because the use of the term “such as” in the rating criteria demonstrates that the symptoms after that phrase are not intended to constitute an exhaustive list, the Board need not find the presence of all, most, or even some, of the enumerated symptoms to award a specific rating. Mauerhan, 16 Vet. App. at 442; see also Sellers v. Principi, 372 F.3d 1318, 1326-27 (Fed. Cir. 2004). Nevertheless, all ratings in the general rating formula are also associated with objectively observable symptomatology, and the plain language of the regulation makes it clear that a Veterans impairment must be “due to” those symptoms, and that a Veteran may only qualify for a given disability by demonstrating the particular symptoms associated with that percentage, or others of similar severity, frequency, and duration. Vazquez-Claudio, 713 F.3d at 118. In the instant case, the Board finds that a rating of 70 percent is warranted for the Veteran’s PTSD due to his impaired impulse control with irritability and repeated bouts of suicidal ideation. Specifically, the Veteran reported experiencing suicidal thoughts in May 2018, January 2018, September 2017, June 2017, March 2017, February 2017, and January 2011 VA treatment records. Additionally, the Veteran reported suicidal thoughts during June 2011, March 2012, and October 2015 VA examinations. In addition to the evidence documenting suicidal ideation, VA treatment records from January 2011, April 2013, March 2015, and August 2015 document difficulty with anger management and an ongoing difficulty the Veteran had with irritability, resulting in the end of an engagement due to verbal altercations with a former fiancé. Accordingly, in light of the evidence above, the Board finds that a 70 percent rating is warranted under Diagnostic Code 9411. Although this decision represents a partial grant of the benefit sought on appeal, the Board recognizes that further disposition of this issue would be premature. Accordingly, additional evidentiary development is necessary and is outlined in the Remand portion of this decision below. REASONS FOR REMAND 1. Increased Ratings for Bilateral Lower Extremity Neurological Abnormalities, Migraine Headaches, Bilateral Knees, and PTSD; Service Connection for Bilateral Hearing Loss Regarding the issues of the bilateral lower extremities, migraines, bilateral knees, PTSD, and hearing loss, in September 2017, the Veteran contended that all of these disabilities had increased in severity. Accordingly, the Board remands these issues for the provision of additional VA examinations. 2. Service Connection for Pes Planus with Plantar Fasciitis As indicated above in its decision to acknowledge the receipt of new and material evidence, the Board previously noted that a January 2005 STR indicated an association between the Veteran’s congenital pes planus and the development of plantar fasciitis. As such, the Board remands this issue for the provision of an etiological opinion. 3. TDIU is remanded. Regarding the Veteran’s claims for a TDIU, the Board must remand this issue as well as it is dependent upon the remanded service connection and increased rating issues. Where a pending claim is inextricably intertwined with other claims currently on appeal, the appropriate remedy is to remand the claim on appeal pending the adjudication of the inextricably intertwined claims. See Harris v. Derwinski, 1 Vet. App. 180 (1991). The matters are REMANDED for the following action: 1. Obtain updated VA treatment records and associate them with the claims file—particularly those dated since June 2018. If no such records exist, the claims file should be annotated to reflect as such and the Veteran notified as such. 2. After the above has been completed to the extent possible, schedule the Veteran for an examination by an appropriate clinician to determine the current severity of his service-connected bilateral lower extremity neurological abnormalities. The examiner should provide a full description of the disability and report all signs and symptoms necessary for evaluating the Veteran’s disability under the rating criteria. The examiner is also asked to comment on and describe the functional impairment caused solely by the Veteran’s bilateral lower extremity neurological abnormalities as it pertains to the Veteran’s ability to function in an occupational environment. The examiner should, for instance, describe the limitations and restrictions imposed by his service-connected impairments on routine work activities, such as interacting with customers/coworkers and using technology, plus other physical activities such as sitting, standing, walking, lifting, carrying, pushing, and pulling, and mental activities such as understanding and remembering instructions, and sustained concentration. 3. After Item (1) has been completed to the extent possible, schedule the Veteran for an examination by an appropriate clinician to determine the current severity of his migraine headaches. The examiner should provide a full description of the disability and report all signs and symptoms necessary for evaluating the Veteran’s disability under the rating criteria. The examiner is also asked to comment on and describe the functional impairment caused solely by the Veteran’s migraine headaches as it pertains to the Veteran’s ability to function in an occupational environment. The examiner should, for instance, describe the limitations and restrictions imposed by his service-connected impairments on routine work activities, such as interacting with customers/coworkers and using technology, plus other physical activities such as sitting, standing, walking, lifting, carrying, pushing, and pulling, and mental activities such as understanding and remembering instructions, and sustained concentration. 4. After Item (1) has been completed to the extent possible, schedule the Veteran for a VA examination to assess the current nature and severity of his service-connected left and right knee disabilities. Range of motion should be reported, including whether and the extent to which such motion is affected by pain, weakness, fatigue, lack of endurance, incoordination or other symptoms resulting in functional loss. Based upon a review of the medical records, lay statements submitted in support of the claim, and/or statements elicited from the Veteran during the examination, state whether the Veteran experiences flare-ups of his service-connected knee disabilities, and how he characterizes the additional functional loss during a flare. If the Veteran describes experiencing flare-ups, identify the: (a.) frequency; (b.) duration; (c.) precipitating factors; and (d.) alleviating factors. Based upon the information elicited as a result of the foregoing, state whether it is at least as likely as not (50 percent probability or greater) that during a flare-up, range of motion is additionally limited to 30 degrees flexion and/or 15 degrees extension. Please explain why or why not. Based upon the information elicited as a result of the foregoing, state whether it is at least as likely as not (50 percent probability or greater) that during a flare-up the disability is manifested by effusion, instability, and/or locking. The examiner is also asked to comment on and describe the functional impairment caused solely by the Veteran’s bilateral knee disabilities as it pertains to the Veteran’s ability to function in an occupational environment. The examiner should, for instance, describe the limitations and restrictions imposed by his service-connected impairments on routine work activities, such as interacting with customers/coworkers and using technology, plus other physical activities such as sitting, standing, walking, lifting, carrying, pushing, and pulling, and mental activities such as understanding and remembering instructions, and sustained concentration. If the examiner cannot provide the requested opinions without resorting to speculation, he/she should explain why an opinion cannot be provided (e.g. lack of sufficient information/evidence in this case, or a lack of knowledge among the medical community at large, and not the insufficient knowledge of the individual examiner). If the inability to provide an opinion without resorting to speculation is due to a deficiency in the record (additional facts are required), the AOJ should develop the claim to the extent it is necessary to cure any such deficiency. If the inability to provide an opinion is due to the examiner’s lack of requisite knowledge or training, then the AOJ should obtain an opinion from a medical professional who has the knowledge and training needed to render such an opinion. 5. After Item (1) has been completed to the extent possible, schedule the Veteran for a VA examination with an appropriate clinician to determine the current nature and severity of his service-connected PTSD. The entire claims file—including a copy of this remand—must be made available to the examiner for review. The examination should be conducted in accordance with the current examination worksheet or disability questionnaire. The examiner is also asked to comment on and describe the functional impairment caused solely by PTSD as it pertains to the Veteran’s ability to function in an occupational environment. The examiner should, for instance, describe the limitations and restrictions imposed by his service-connected impairments on routine work activities, such as interacting with customers/coworkers and using technology, plus other physical activities such as sitting, standing, walking, lifting, carrying, pushing, and pulling, and mental activities such as understanding and remembering instructions, and sustained concentration. 6. After Item (1) has been completed to the extent possible, schedule the Veteran for an examination by an appropriate clinician to determine the nature and etiology of any hearing loss. The examiner must opine whether it is at least as likely as not (50 percent probability or more) that any hearing loss is related to service. The clinician must provide a complete rationale for any opinion rendered. If the clinician cannot provide an opinion without resorting to speculation, he/she should explain why an opinion cannot be provided (e.g., lack of sufficient information/evidence, the limits of medical knowledge, etc.). 7. After Item (1) has been completed to the extent possible, forward the Veteran’s claims file to an appropriate clinician for a medical opinion about the nature and etiology of his pes planus and plantar fasciitis. After reviewing the claims file—and performing a physical examination if deemed necessary—the clinician should address the following: (a.) Is the Veteran’s pes planus considered a congenital defect? For purposes of answering this question, the examiner is asked to consider a congenital defect to be a condition that is static in nature, such that it is incapable of improvement or deterioration. Alternatively, is the Veteran’s pes planus considered a congenital disease? In answering this question, the examiner is asked to consider a congenital disease to be a condition that is progressive in nature, such that it can worsen over time. (b.) If it is determined that the pes planus is a congenital defect, was there additional disability, including plantar fasciitis, superimposed upon that congenital defect during the Veteran’s service or lifetime? If so, is it at least as likely as not that the superimposed disability was related to any event or injury during the Veteran’s service? Please explain why or why not. (c.) If it is determined that the pes planus is a congenital disease, is it at least as likely as not that the condition is related to service? Did it first manifest in service? If it pre-existed service, did it progress at an abnormally high rate due to service? The clinician must provide a complete rationale for any opinion rendered. If the clinician cannot provide an opinion without resorting to speculation, he/she should explain why an opinion cannot be provided (e.g., lack of sufficient information/evidence, the limits of medical knowledge, etc.). (Signature on Next Page) S. C. KREMBS Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD N.S. Pettine, Associate Counsel