Citation Nr: 18143119 Decision Date: 10/18/18 Archive Date: 10/17/18 DOCKET NO. 16-20 261 DATE: October 18, 2018 ORDER Entitlement to service connection for an acquired psychiatric disorder is granted. Entitlement to service connection for obstructive sleep apnea (OSA) is granted. Entitlement to an initial rating in excess of 10 percent for tinnitus is denied. Entitlement to an effective date prior to May 21, 2013, for the grant of service connection for bilateral hearing loss is denied. Entitlement to an effective date prior to May 21, 2013, for the grant of service connection for tinnitus is denied. Entitlement to an effective date prior to May 21, 2013, for the grant of service connection for right foot metatarsalgia with 2nd metatarsal phalangeal (MTP) joint arthritis is denied. Entitlement to an effective date prior to May 21, 2013, for the grant of service connection for right lower extremity (RLE) sciatica is denied. Entitlement to an effective date prior to May 21, 2013, for the grant of service connection for thoracolumbar degenerative joint disease (DJD) is denied. Entitlement to an effective date prior to May 21, 2013, for the grant of service connection for left lower extremity (LLE) sciatica is denied. Entitlement to a total disability rating based on individual unemployability (TDIU) is granted. REMANDED Entitlement to service connection for a left hip disability is remanded. Entitlement to service connection for a right hip disability is remanded. Entitlement to service connection for a left knee disability is remanded. Entitlement to service connection for a right knee disability is remanded. Entitlement to an initial rating in excess of 40 percent for thoracolumbar DJD is remanded. Entitlement to an initial rating in excess of 10 percent for right foot metatarsalgia with 2nd MTP joint arthritis is remanded. Entitlement to an initial compensable rating for bilateral hearing loss is remanded. Entitlement to an initial rating in excess of 20 percent for LLE sciatica is remanded. Entitlement to an initial rating in excess of 20 percent for RLE sciatica is remanded. FINDINGS OF FACT 1. Resolving reasonable doubt in the Veteran’s favor, his psychiatric disorder is proximately due to his service-connected physical disabilities. 2. Resolving reasonable doubt in the Veteran’s favor, his OSA is proximately due to his now service-connected psychiatric disorder. 3. The Veteran is in receipt of the maximum schedular evaluation for his service-connected tinnitus. 4. VA received no communication that constituted a formal or informal claim for service connection for bilateral hearing loss until May 21, 2013. 5. VA received no communication that constituted a formal or informal claim for service connection for tinnitus until May 21, 2013. 6. VA received no communication that constituted a formal or informal claim for service connection for a right foot disability until May 21, 2013. 7. VA received no communication that constituted a formal or informal claim for service connection for a RLE disability until May 21, 2013. 8. VA received no communication that constituted a formal or informal claim for service connection for a low back disability until May 21, 2013. 9. VA received no communication that constituted a formal or informal claim for service connection for a LLE disability until May 21, 2013. 10. For the entire period on appeal, the Veteran has had a combined disability rating of no less than 70 percent and at least one single disability rating of no less than 40 percent. 11. The Veteran is unemployable based solely on his service-connected disabilities. CONCLUSIONS OF LAW 1. The criteria for secondary service connection for an acquired psychiatric disorder are met. 38 U.S.C. §§ 1131, 5107(b); 38 C.F.R. §§ 3.102, 3.310(a). 2. The criteria for secondary service connection for OSA are met. 38 U.S.C. §§ 1131, 5107(b); 38 C.F.R. §§ 3.102, 3.310(a). 3. The criteria for an initial rating in excess of 10 percent for tinnitus have not been met. 38 U.S.C. §§ 1155, 5102, 5103, 5103A, 5107; 38 C.F.R. §§ 3.159, 3.321, 4.87, Diagnostic Code 6260. 4. The criteria for an effective date earlier than May 21, 2013, for the grant of service connection for bilateral hearing loss have not been met. 38 U.S.C. § 5110; 38 C.F.R. § 3.400. 5. The criteria for an effective date earlier than May 21, 2013, for the grant of service connection for tinnitus have not been met. 38 U.S.C. § 5110; 38 C.F.R. § 3.400. 6. The criteria for an effective date earlier than May 21, 2013, for the grant of service connection for right foot metatarsalgia with 2nd MTP joint arthritis have not been met. 38 U.S.C. § 5110; 38 C.F.R. § 3.400. 7. The criteria for an effective date earlier than May 21, 2013, for the grant of service connection for RLE sciatica have not been met. 38 U.S.C. § 5110; 38 C.F.R. § 3.400. 8. The criteria for an effective date earlier than May 21, 2013, for the grant of service connection for thoracolumbar DJD have not been met. 38 U.S.C. § 5110; 38 C.F.R. § 3.400. 9. The criteria for an effective date earlier than May 21, 2013, for the grant of service connection for LLE sciatica have not been met. 38 U.S.C. § 5110; 38 C.F.R. § 3.400. 10. The criteria for a TDIU have been met. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.340, 3.341, 4.16, 4.25. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Army from September 1975 to August 1979. As the Veteran is challenging the disability ratings assigned for his service-connected orthopedic and audiological disabilities, and the record raises assertions that he is unemployable because of these service-connected disabilities, the determination as to whether he is entitled to a TDIU is part and parcel of the determination of the increased rating claim. See Rice v. Shinseki, 22 Vet. App. 447, 453 (2009). As such, the Board has jurisdiction over the TDIU claim as a part of his increased rating claims. The issues have been recharacterized above. Service Connection Under the relevant laws and regulations, service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. § 1131. Generally, the evidence must show: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service. Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004); Caluza v. Brown, 7 Vet. App. 498, 505 (1995); see Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013) (noting that nexus may be demonstrated by a showing of continuity of symptomatology where the disability claimed qualifies as a chronic disease listed in 38 C.F.R. § 3.309(a)). Service connection may also be established on a secondary basis for a disability which is proximately due to, or the result of, a service-connected disability. 38 C.F.R. § 3.310(a). Secondary service connection may also be established for a disorder which is aggravated by a service-connected disability; compensation may be provided for the degree of disability (but only that degree) over and above the degree of disability existing prior to the aggravation. 38 C.F.R. § 3.310(b); Allen v. Brown, 8 Vet. App. 374 (1995). In order to prevail on the issue of secondary service connection, the record must show: (1) evidence of a current disability; (2) evidence of a service-connected disability; and (3) medical nexus evidence establishing a connection between the service-connected disability and the current disability. See Wallin v. West, 11 Vet. App. 509, 512 (1998); see also Allen, supra. 1. Entitlement to service connection for an acquired psychiatric disorder The Veteran contends that his acquired psychiatric disability was caused by his service-connected physical disabilities. Specifically, he argues that his service-connected physical disabilities have caused him to become depressed and that service connection is warranted on a secondary basis. With regard to a present disability, the Veteran has been diagnosed with depressive disorder with anxious distress features. See Private DBQ, January 2017. The first elements of Shedden/Caluza and Wallin are met. With regard to an in-service event, the Veteran’s service treatment records are negative for any psychiatric complaints or treatment. However, the Veteran does not claim that he had an in-service psychiatric disorder. Rather, he claims that his psychiatric disability is secondary to his service-connected physical disabilities. The record does show that he is service connected for a low back disability with associated lower extremity radiculopathies, bilateral foot disabilities, and audiological disabilities. The second Wallin element is met. The remaining question is whether there is a medical nexus between the Veteran’s currently diagnosed psychiatric disability and his service-connected physical disabilities. The Veteran submitted a private DBQ and psychological evaluation that establish a medical nexus. Private DBQ and psychological evaluation, January 2017. The private psychologist diagnosed the Veteran with depressive disorder with anxious distress features caused by medical conditions. In providing this diagnosis, she referenced only his service-connected disabilities. She cited studies showing a correlation between chronic medical conditions and depression and/or anxiety. She further explained that the Veteran’s service-connected disabilities rendered him completely disabled and unable to work which caused a deterioration in his mental health. Based on this, she was able to link his current depressive disorder to his service-connected disabilities. There is no other competent evidence that discusses the etiology of the Veteran’s psychiatric disability or contradicts the positive private opinion. The Board notes that the Veteran’s psychiatric claim could be remanded for a VA opinion that addresses his contentions. However, in light of the competent private opinion and lack of contradictory negative evidence, the Board finds that the evidence is, at a minimum, in equipoise regarding the question of whether the Veteran’s current psychiatric disability is related to his service-connected orthopedic and audiological disabilities. 38 U.S.C. § 1131; 38 C.F.R. §§ 3.303, 3.310. The benefit of the doubt will be conferred in the Veteran’s favor and remand is not necessary. The service-connection claim for an acquired psychiatric disorder is granted. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). As the Veteran’s claim for service connection has been granted on a secondary basis, any further discussion of service connection on a direct basis is not necessary. 2. Entitlement to service connection for OSA The Veteran contends that his OSA was caused by his service-connected psychiatric and orthopedic disabilities. Specifically, he argues that his service-connected psychiatric disability has caused sleep interruption, causing or worsening his OSA, and that opioid pain medication used for his service-connected low back disability also caused or aggravated his OSA. He believes that service connection is warranted on a secondary basis. With regard to a present disability, the Veteran has been diagnosed with OSA. See Private DBQ, June 2017. The first elements of Shedden/Caluza and Wallin are met. With regard to an in-service event, the Veteran’s service treatment records are negative for sleep-related complaints or treatment. However, the Veteran does not claim that he had an in-service sleep disorder. Rather, he claims that his OSA is secondary to his service-connected disabilities. The record does show that he is service connected for a low back disability with associated lower extremity radiculopathies, bilateral foot disabilities, and audiological disabilities. Additionally, service connected for a psychiatric disability has been granted herein. The second Wallin element is met. The remaining question is whether there is a medical nexus between the Veteran’s currently diagnosed OSA and his service-connected psychiatric and/or physical disabilities. The Veteran submitted a private DBQ that establishes a medical nexus. Private DBQ, June 2017. The private physician concluded that the Veteran’s depression and opioid pain medication for his service-connected orthopedic disabilities aided in the development of and permanently aggravated his OSA. He explained that there is a strong association between psychiatric disorders and OSA and that opioid medications are known to depress respiratory function. He also provided medical journal articles that supported these assertions. Based on this, he was able to link the Veteran’s current OSA to his service-connected disabilities. There is no other competent evidence that discusses the etiology of the Veteran’s OSA or contradicts the positive private opinion. The Board notes that the Veteran’s OSA claim could be remanded for a VA opinion that addresses his contentions. However, in light of the competent private opinion and lack of contradictory negative evidence, the Board finds that the evidence is, at a minimum, in equipoise regarding the question of whether the Veteran’s current OSA is related to his service-connected psychiatric and orthopedic disabilities. 38 U.S.C. § 1131; 38 C.F.R. §§ 3.303, 3.310. The benefit of the doubt will be conferred in the Veteran’s favor and remand is not necessary. The service-connection claim for OSA is granted. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). As the Veteran’s claim for service connection has been granted on a secondary basis, any further discussion of service connection on a direct basis is not necessary. Increased Rating Disability evaluations are determined by evaluating the extent to which a veteran’s service-connected disability adversely affects his or her ability to function under the ordinary conditions of daily life, including employment, by comparing his or her symptomatology with the criteria set forth in the Schedule for Rating Disabilities. The percentage ratings represent as far as can practicably be determined the average impairment in earning capacity resulting from such diseases and injuries and the residual conditions in civilian occupations. Generally, the degrees of disability specified are considered adequate to compensate for considerable loss of working time from exacerbation or illness proportionate to the severity of the several grades of disability. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Separate diagnostic codes identify the various disabilities and the criteria for specific ratings. If two disability evaluations are potentially applicable, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. Any reasonable doubt regarding the degree of disability will be resolved in favor of the veteran. 38 C.F.R. § 4.3. The Veteran’s entire history is reviewed when making a disability determination. 38 C.F.R. § 4.1. Where the Veteran timely appealed the rating initially assigned for the service-connected disability within one year of the notice of the establishment of service connection for it, VA must consider whether the Veteran is entitled to “staged” ratings to compensate him for times since filing his claim when his disability may have been more severe than at other times during the course of his appeal. See Fenderson v. West, 12 Vet. App. 119 (1999). The evaluation of the same disability under various diagnoses, known as pyramiding, is generally to be avoided. 38 C.F.R. § 4.14. The critical element in permitting the assignment of several ratings under various diagnostic codes is that none of the symptomatology for any one of the disabilities is duplicative or overlapping with the symptomatology of the other disability. See Esteban v. Brown, 6 Vet. App. 259, 261-62 (1994). 3. Entitlement to an initial rating in excess of 10 percent for tinnitus The Veteran’s bilateral tinnitus is evaluated as 10 percent disabling under Diagnostic Code 6260. He generally claims that he deserves a higher rating. Under Diagnostic Code 6260, a 10 percent evaluation is assigned for recurrent tinnitus. 38 C.F.R. § 4.87, Diagnostic Code 6260. Only a single evaluation may be assigned for recurrent tinnitus, whether the sound is perceived in one ear, both ears, or in the head. 38 C.F.R. § 4.87, Diagnostic Code 6260, Note (2); see also Smith v. Nicholson, 451 F.3d 1344 (Fed. Cir. 2006). While the Board acknowledges the Veteran’s tinnitus symptoms and the effect they have on him, he is already receiving the maximum rating available for tinnitus. No higher rating is legally available. As tinnitus has its own code, DC 6260, no rating by analogy under other codes is permissible; thus, a higher rating under another code provision is not warranted. Copeland v. McDonald, 27 Vet. App. 333, 338 (2015) (held that where there is a diagnostic code that addresses the particular service-connected disability, to evaluate that disability under another code would constitute impermissible rating by analogy). The Veteran has not raised any other issues, to include entitlement to an extraschedular rating for this condition, nor have any other issues been reasonably raised by the record. See Doucette v. Shulkin, 28 Vet. App. 366 (2017) (confirming that the Board is not required to address issues unless they are specifically raised by the claimant or reasonably raised by the evidence of record). Effective Date Except as otherwise provided, the effective date of an evaluation and award of compensation based on an original claim will be the date of receipt of the claim or the date entitlement arose, whichever is later. 38 U.S.C. § 5110; 38 C.F.R. § 3.400. If the claim for service connection is received within one year of a veteran’s discharge from service, the effective date of an award of service connection will be the day following discharge from service. 38 U.S.C. § 5110(b)(1); 38 C.F.R. § 3.400(b)(2); see also Wright v. Gober, 10 Vet. App. 343, 347 (1997) (holding that § 5110(b)(1) “applies only to those awards of disability compensation actually based on a claim filed within one year after the veteran’s separation”). Otherwise, the effective date will be the later of the date of receipt of claim or the date entitlement arose. 38 U.S.C. § 5110; 38 C.F.R. § 3.400(b)(2). A specific claim in the form prescribed by the Secretary must be filed in order for benefits to be paid to any individual under the laws administered by VA. 38 U.S.C. § 5101(a); 38 C.F.R. § 3.151(a). The term “claim” or “application” means a formal or informal communication in writing requesting a determination of entitlement or evidencing a belief in entitlement to a benefit. 38 C.F.R. § 3.1(p). Effective March 24, 2015, VA amended its regulations to require that all claims governed by VA’s adjudication regulations be filed on a standard form. Prior to March 24, 2015, VA recognized formal and informal claims. The amended regulations, however, apply only to claims filed on or after March 24, 2015. Because this claim was initiated prior to that date, the former regulations apply. An informal claim is any communication or action indicating an intent to apply for one or more benefits under the laws administered by VA from a claimant may be considered an informal claim. An informal claim must be (1) a communication in writing that (2) expresses an intent to apply for benefits, and (3) identifies the benefits sought. See Brokowski v. Shinseki, 23 Vet. App. 79, 84 (2009); 38 C.F.R. § 3.155(a); see also MacPhee, 459 F.3d at 1325 (holding that VA regulations require claimant to identify benefit sought and indicate intent to apply for benefits). 4. Entitlement to an effective date prior to May 21, 2013, for the grant of service connection for bilateral hearing loss The Veteran disagrees with the effective date assigned for the grant of service connection for bilateral hearing loss. He has not provided any argument as to why he believes an earlier effective date is warranted or what effective date he believes should be assigned. The Board has reviewed the entire claims file, paying particular attention to the documents prior to May 21, 2013. However, there are no submissions from the Veteran prior to May 21, 2013. There are also no documents that discuss hearing loss or suggest that he was filing a claim for hearing loss. In fact, the most recent document prior to his May 2014 claim is a July 1980 VA Form 21-6789 noting that the Veteran had not filed a claim for service connection for any condition. There is simply no evidence of a written communication expressing an intent to apply for benefits related to hearing loss at any time prior to May 21, 2014, when his current claim was received. To the extent that he may have experienced hearing loss prior to his May 21, 2014 claim, there is no provision in the law for awarding an earlier effective date based simply on the presence of the disability. See Brannon v. West, 12 Vet. App. 32, 35 (1998) (the mere presence of medical evidence of a condition does not establish an intent on the part of the veteran to seek service connection for the disability). As noted above, the law provides that the effective date of a claim filed more than one year from discharge is the later of the date of receipt of claim or the date entitlement arose. 38 U.S.C. § 5110; 38 C.F.R. § 3.400(b)(2). In this case, the Veteran did not file a claim for benefits for his hearing loss within one year following discharge, and he has been granted service connection effective one year prior to the date his first claim of entitlement to service connection for hearing loss was received. Thus, he is already in receipt of an effective date earlier than is required by law. Further, even if entitlement arose prior to the date his claim was received, the proper effective date would be the later date (the date the claim was received). There is simply no evidence or argument to support an effective date for this grant of service connection prior to May 21, 2013. In reaching this conclusion, the Board has considered the applicability of the benefit-of-the-doubt doctrine. However, as the preponderance of the evidence is against the Veteran’s claim of entitlement to an effective date earlier than May 21, 2013, for the grant of service connection for bilateral hearing loss, that doctrine is not applicable. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; see also Ortiz v. Principi, 274 F.3d 1361, 1365 (Fed. Cir. 2001). 5. Entitlement to an effective date prior to May 21, 2013, for the grant of service connection for tinnitus The Veteran disagrees with the effective date assigned for the grant of service connection for tinnitus. He has not provided any argument as to why he believes an earlier effective date is warranted or what effective date he believes should be assigned. The Board has reviewed the entire claims file, paying particular attention to the documents prior to May 21, 2013. However, there are no submissions from the Veteran prior to May 21, 2013. There are also no documents that discuss tinnitus or suggest that he was filing a claim for tinnitus. In fact, the most recent document prior to his May 2014 claim is a July 1980 VA Form 21-6789 noting that the Veteran had not filed a claim for service connection for any condition. There is simply no evidence of a written communication expressing an intent to apply for benefits related to tinnitus at any time prior to May 21, 2014, when his current claim was received. To the extent that he may have experienced tinnitus prior to his May 21, 2014 claim, there is no provision in the law for awarding an earlier effective date based simply on the presence of the disability. See Brannon v. West, 12 Vet. App. 32, 35 (1998) (the mere presence of medical evidence of a condition does not establish an intent on the part of the veteran to seek service connection for the disability). As noted above, the law provides that the effective date of a claim filed more than one year from discharge is the later of the date of receipt of claim or the date entitlement arose. 38 U.S.C. § 5110; 38 C.F.R. § 3.400(b)(2). In this case, the Veteran did not file a claim for benefits for his tinnitus within one year following discharge, and he has been granted service connection effective one year prior to the date his first claim of entitlement to service connection for tinnitus was received. Thus, he is already in receipt of an effective date earlier than is required by law. Further, even if entitlement arose prior to the date his claim was received, the proper effective date would be the later date (the date the claim was received). There is simply no evidence or argument to support an effective date for this grant of service connection prior to May 21, 2013. In reaching this conclusion, the Board has considered the applicability of the benefit-of-the-doubt doctrine. However, as the preponderance of the evidence is against the Veteran’s claim of entitlement to an effective date earlier than May 21, 2013, for the grant of service connection for tinnitus, that doctrine is not applicable. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; see also Ortiz, supra. 6. Entitlement to an effective date prior to May 21, 2013, for the grant of service connection for right foot metatarsalgia with 2nd MTP joint arthritis The Veteran disagrees with the effective date assigned for the grant of service connection for right foot metatarsalgia with 2nd MTP joint arthritis. He has not provided any argument as to why he believes an earlier effective date is warranted or what effective date he believes should be assigned. The Board has reviewed the entire claims file, paying particular attention to the documents prior to May 21, 2013. However, there are no submissions from the Veteran prior to May 21, 2013. There are also no documents that discuss the right foot or suggest that he was filing a claim for right foot metatarsalgia. In fact, the most recent document prior to his May 2014 claim is a July 1980 VA Form 21-6789 noting that the Veteran had not filed a claim for service connection for any condition. There is simply no evidence of a written communication expressing an intent to apply for benefits related to the right foot at any time prior to May 21, 2014, when his current claim was received. To the extent that he may have experienced right foot metatarsalgia prior to his May 21, 2014 claim, there is no provision in the law for awarding an earlier effective date based simply on the presence of the disability. See Brannon v. West, 12 Vet. App. 32, 35 (1998) (the mere presence of medical evidence of a condition does not establish an intent on the part of the veteran to seek service connection for the disability). As noted above, the law provides that the effective date of a claim filed more than one year from discharge is the later of the date of receipt of claim or the date entitlement arose. 38 U.S.C. § 5110; 38 C.F.R. § 3.400(b)(2). In this case, the Veteran did not file a claim for benefits for his right foot disability within one year following discharge, and he has been granted service connection effective one year prior to the date his first claim of entitlement to service connection for a right foot disability was received. Thus, he is already in receipt of an effective date earlier than is required by law. Further, even if entitlement arose prior to the date his claim was received, the proper effective date would be the later date (the date the claim was received). There is simply no evidence or argument to support an effective date for this grant of service connection prior to May 21, 2013. In reaching this conclusion, the Board has considered the applicability of the benefit-of-the-doubt doctrine. However, as the preponderance of the evidence is against the Veteran’s claim of entitlement to an effective date earlier than May 21, 2013, for the grant of service connection for right foot metatarsalgia with 2nd MTP joint arthritis, that doctrine is not applicable. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; see also Ortiz, supra. 7. Entitlement to an effective date prior to May 21, 2013, for the grant of service connection for RLE sciatica The Veteran disagrees with the effective date assigned for the grant of service connection for RLE sciatica. He has not provided any argument as to why he believes an earlier effective date is warranted or what effective date he believes should be assigned. The Board has reviewed the entire claims file, paying particular attention to the documents prior to May 21, 2013. However, there are no submissions from the Veteran prior to May 21, 2013. There are also no documents that discuss the RLE or suggest that he was filing a claim for a RLE disability. In fact, the most recent document prior to his May 2014 claim is a July 1980 VA Form 21-6789 noting that the Veteran had not filed a claim for service connection for any condition. There is simply no evidence of a written communication expressing an intent to apply for benefits related to the RLE at any time prior to May 21, 2014, when his current claim was received. To the extent that he may have experienced RLE sciatica prior to his May 21, 2014 claim, there is no provision in the law for awarding an earlier effective date based simply on the presence of the disability. See Brannon v. West, 12 Vet. App. 32, 35 (1998) (the mere presence of medical evidence of a condition does not establish an intent on the part of the veteran to seek service connection for the disability). As noted above, the law provides that the effective date of a claim filed more than one year from discharge is the later of the date of receipt of claim or the date entitlement arose. 38 U.S.C. § 5110; 38 C.F.R. § 3.400(b)(2). In this case, the Veteran did not file a claim for benefits for his RLE sciatica within one year following discharge, and he has been granted service connection effective one year prior to the date his first claim of entitlement to service connection for RLE sciatica was received. Thus, he is already in receipt of an effective date earlier than is required by law. Further, even if entitlement arose prior to the date his claim was received, the proper effective date would be the later date (the date the claim was received). There is simply no evidence or argument to support an effective date for this grant of service connection prior to May 21, 2013. In reaching this conclusion, the Board has considered the applicability of the benefit-of-the-doubt doctrine. However, as the preponderance of the evidence is against the Veteran’s claim of entitlement to an effective date earlier than May 21, 2013, for the grant of service connection for RLE sciatica, that doctrine is not applicable. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; see also Ortiz, supra. 8. Entitlement to an effective date prior to May 21, 2013, for the grant of service connection for thoracolumbar DJD The Veteran disagrees with the effective date assigned for the grant of service connection for thoracolumbar DJD. He has not provided any argument as to why he believes an earlier effective date is warranted or what effective date he believes should be assigned. The Board has reviewed the entire claims file, paying particular attention to the documents prior to May 21, 2013. However, there are no submissions from the Veteran prior to May 21, 2013. There are also no documents that discuss his low back symptoms or suggest that he was filing a claim for a low back disability. In fact, the most recent document prior to his May 2014 claim is a July 1980 VA Form 21-6789 noting that the Veteran had not filed a claim for service connection for any condition. There is simply no evidence of a written communication expressing an intent to apply for benefits related to the low back at any time prior to May 21, 2014, when his current claim was received. To the extent that he may have experienced thoracolumbar DJD prior to his May 21, 2014 claim, there is no provision in the law for awarding an earlier effective date based simply on the presence of the disability. See Brannon v. West, 12 Vet. App. 32, 35 (1998) (the mere presence of medical evidence of a condition does not establish an intent on the part of the veteran to seek service connection for the disability). As noted above, the law provides that the effective date of a claim filed more than one year from discharge is the later of the date of receipt of claim or the date entitlement arose. 38 U.S.C. § 5110; 38 C.F.R. § 3.400(b)(2). In this case, the Veteran did not file a claim for benefits for his low back disability within one year following discharge, and he has been granted service connection effective one year prior to the date his first claim of entitlement to service connection for a low back disability was received. Thus, he is already in receipt of an effective date earlier than is required by law. Further, even if entitlement arose prior to the date his claim was received, the proper effective date would be the later date (the date the claim was received). There is simply no evidence or argument to support an effective date for this grant of service connection prior to May 21, 2013. In reaching this conclusion, the Board has considered the applicability of the benefit-of-the-doubt doctrine. However, as the preponderance of the evidence is against the Veteran’s claim of entitlement to an effective date earlier than May 21, 2013, for the grant of service connection for thoracolumbar DJD, that doctrine is not applicable. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; see also Ortiz, supra. 9. Entitlement to an effective date prior to May 21, 2013, for the grant of service connection for LLE sciatica The Veteran disagrees with the effective date assigned for the grant of service connection for LLE sciatica. He has not provided any argument as to why he believes an earlier effective date is warranted or what effective date he believes should be assigned. The Board has reviewed the entire claims file, paying particular attention to the documents prior to May 21, 2013. However, there are no submissions from the Veteran prior to May 21, 2013. There are also no documents that discuss the LLE or suggest that he was filing a claim for a LLE disability. In fact, the most recent document prior to his May 2014 claim is a July 1980 VA Form 21-6789 noting that the Veteran had not filed a claim for service connection for any condition. There is simply no evidence of a written communication expressing an intent to apply for benefits related to a LLE disability at any time prior to May 21, 2014, when his current claim was received. To the extent that he may have experienced LLE sciatica prior to his May 21, 2014 claim, there is no provision in the law for awarding an earlier effective date based simply on the presence of the disability. See Brannon v. West, 12 Vet. App. 32, 35 (1998) (the mere presence of medical evidence of a condition does not establish an intent on the part of the veteran to seek service connection for the disability). As noted above, the law provides that the effective date of a claim filed more than one year from discharge is the later of the date of receipt of claim or the date entitlement arose. 38 U.S.C. § 5110; 38 C.F.R. § 3.400(b)(2). In this case, the Veteran did not file a claim for benefits for his LLE sciatica within one year following discharge, and he has been granted service connection effective one year prior to the date his first claim of entitlement to service connection for LLE sciatica was received. Thus, he is already in receipt of an effective date earlier than is required by law. Further, even if entitlement arose prior to the date his claim was received, the proper effective date would be the later date (the date the claim was received). There is simply no evidence or argument to support an effective date for this grant of service connection prior to May 21, 2013. In reaching this conclusion, the Board has considered the applicability of the benefit-of-the-doubt doctrine. However, as the preponderance of the evidence is against the Veteran’s claim of entitlement to an effective date earlier than May 21, 2013, for the grant of service connection for LLE sciatica, that doctrine is not applicable. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; see also Ortiz, supra. 10. Entitlement to a TDIU For the entire period on appeal, the Veteran has been granted service connection for thoracolumbar DJD (40 percent disabling), bilateral pes planus with plantar fasciitis (30 percent disabling), RLE sciatica (20 percent disabling), LLE sciatica (20 percent disabling), right foot metatarsalgia with 2nd MTP joint arthritis (10 percent disabling), tinnitus (10 percent disabling), and bilateral hearing loss (0 percent disabling). His combined rating has been 80 percent, according to 38 C.F.R. § 4.25. In light of his combined disability rating of at least 70 percent and his single disability rating of at least 40 percent, he meets the percentage rating standards for TDIU for the entire period on appeal. 38 C.F.R. § 4.16(a). The Board notes that additional claims have been granted and remanded herein and that they may result in additional percentage assignments. However, as the Veteran meets the percentage requirements without considering these claims, the Board does not see a reason to delay the adjudication of his TDIU claim. The remaining question is whether the Veteran is unemployable due solely to his service-connected disabilities. The Board concludes that the evidence supports such a finding. Significantly, a June 2017 private vocational assessment notes that the Veteran’s service-connected disabilities alone would prevent him from performing substantial gainful employment of any kind. He explained that the Veteran’s orthopedic disabilities render him unable to stand for ten minutes without needing to lean on something, walk for 50 yards unassisted, sit for more than ten minutes at a time, or lift or carry anything over five pounds. He further opined that he would have to miss work or leave early ten days per month, would need two or more additional breaks per day beyond the normally scheduled morning, lunch, and afternoon breaks, and would have over three days per month that he would not be able to stay focused for at least seven hours. In light of these significant restrictions and limitations, the Board is satisfied that the evidence of record shows that the Veteran’s combined service-connected disabilities would render him unemployable in either a physical or sedentary environment. See Geib v. Shinseki, 733 F.3d 1350 (2013) (held that determination of whether a Veteran is unable to secure or follow a substantially gainful occupation due to service-connected disabilities is a factual rather than a medical question and that it is an adjudicative determination properly made by the Board or the RO). In considering all of the Veteran’s service-connected disabilities and affording him the benefit of the doubt, the Board finds that there is sufficient evidence that the Veteran is unemployable due solely to his service-connected disabilities. The criteria for a TDIU have been met. 38 C.F.R. §§ 3.340, 3.341, 4.16. REASONS FOR REMAND 1. Entitlement to service connection for a left hip disability is remanded. A June 2017 private occupational assessment indicates that the Veteran receives disability benefits from the Social Security Administration (SSA) for his claimed physical disabilities, but no such records have been obtained. As there may be outstanding and relevant SSA records, a remand is required to allow VA to request these records. 2. Entitlement to service connection for a right hip disability is remanded. A June 2017 private occupational assessment indicates that the Veteran receives disability benefits from the SSA for his claimed physical disabilities, but no such records have been obtained. As there may be outstanding and relevant SSA records, a remand is required to allow VA to request these records. 3. Entitlement to service connection for a left knee disability is remanded. A June 2017 private occupational assessment indicates that the Veteran receives disability benefits from the SSA for his claimed physical disabilities, but no such records have been obtained. As there may be outstanding and relevant SSA records, a remand is required to allow VA to request these records. 4. Entitlement to service connection for a right knee disability is remanded. A June 2017 private occupational assessment indicates that the Veteran receives disability benefits from the SSA for his claimed physical disabilities, but no such records have been obtained. As there may be outstanding and relevant SSA records, a remand is required to allow VA to request these records. 5. Entitlement to an initial rating in excess of 40 percent for thoracolumbar DJD is remanded. A June 2017 private opinion on the Veteran’s employability indicated that he was not able to stand for even ten minutes due to his service-connected orthopedic disabilities. At his most recent VA examination in August 2014, however, he was only restricted in standing for prolonged times. As this additional functional impairment suggests a possible worsening, he should be provided an opportunity to report for a VA examination to ascertain the current severity and manifestations of his service-connected low back disability. 6. Entitlement to an initial rating in excess of 10 percent for right foot metatarsalgia with 2nd MTP joint arthritis is remanded. A June 2017 private opinion on the Veteran’s employability indicated that he was not able to stand for even ten minutes due to his service-connected orthopedic disabilities. At his most recent VA examination in February 2015, however, he was only restricted in standing for prolonged times. As this additional functional impairment suggests a possible worsening, he should be provided an opportunity to report for a VA examination to ascertain the current severity and manifestations of his service-connected right foot disability. 7. Entitlement to an initial compensable rating for bilateral hearing loss is remanded. As noted above, there are outstanding SSA records. As the June 2017 private occupational assessment indicates the Veteran is unemployable due, in part, to his audiological disabilities, the hearing loss claim must also be remanded to obtain the SSA records. Further, as this claim is being remanded, the Board finds it appropriate to obtain a new VA examination as well. 8. Entitlement to an initial rating in excess of 20 percent for LLE sciatica is remanded. A June 2017 private opinion on the Veteran’s employability indicated that he was not able to stand for even ten minutes due to his service-connected orthopedic disabilities. At his most recent VA examination in August 2014, however, he was only restricted in standing for prolonged times. As this additional functional impairment suggests a possible worsening, he should be provided an opportunity to report for a VA examination to ascertain the current severity and manifestations of his service-connected LLE sciatica. 9. Entitlement to an initial rating in excess of 20 percent for RLE sciatica is remanded. A June 2017 private opinion on the Veteran’s employability indicated that he was not able to stand for even ten minutes due to his service-connected orthopedic disabilities. At his most recent VA examination in August 2014, however, he was only restricted in standing for prolonged times. As this additional functional impairment suggests a possible worsening, he should be provided an opportunity to report for a VA examination to ascertain the current severity and manifestations of his service-connected RLE sciatica. The matters are REMANDED for the following actions: 1. Obtain the Veteran’s disability records from SSA, including any decisions and any underlying medical evidence. Document all requests for information as well as all responses in the claims file. 2. Schedule the Veteran for examinations by appropriate clinicians to determine the current severity of his service-connected low back disability, right foot disability, LLE sciatica, RLE sciatica, and bilateral hearing loss. The examiners should provide a full description of the disability and report all signs and symptoms necessary for evaluating each disability under the rating criteria. The examiners must attempt to elicit information regarding the severity, frequency, and duration of any flare-ups, and the degree of functional loss during flare-ups. To the extent possible, the examiners should identify any symptoms and functional impairments due to the service-connected disability alone and discuss the effect of the disability on any occupational functioning and activities of daily living. If it is not possible to provide a specific measurement, or an opinion regarding flare-ups, symptoms, or functional impairment without speculation, the examiners must state whether the need to speculate is due to a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts), a deficiency in the record (additional facts are required), or the examiner (does not have the knowledge or training). N. RIPPEL Acting Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD M. Moore, Counsel