Citation Nr: 18144858 Decision Date: 10/25/18 Archive Date: 10/25/18 DOCKET NO. 07-00 349A DATE: October 25, 2018 ORDER Service connection for arthritis with plantar and calcaneal spurs of the left foot is granted. Service connection for bilateral plantar fasciitis is granted. Service connection for bilateral hand and wrist disorders, to include tendonitis and tenosynovitis, is denied. An evaluation in excess of 20 percent for degenerative disc disease (DDD) and intervertebral disc syndrome (IVDS) of the lumbar spine is denied. An initial evaluation in excess of 10 percent for radiculopathy of the left lower extremity is denied. An initial evaluation in excess of 10 percent for radiculopathy of the right lower extremity is denied. An initial evaluation in excess of 10 percent for bilateral hearing loss for the period prior to June 21, 2018, and in excess of 20 percent for the period beginning June 21, 2018, is denied. REMANDED Entitlement to compensation under 38 U.S.C. § 1151 for residuals of a dental surgery, claimed as nerve damage, pain, and scarring, is remanded. Entitlement to a total disability rating based on individual unemployability based on service-connected disabilities (TDIU) is remanded. Entitlement to specially adapted housing and/or a special home adaptation grant is remanded. FINDINGS OF FACT 1. The Veteran’s arthritis with plantar and calcaneal spurs of the left foot is shown to be the result of his service-connected lumbar spine disability. 2. The Veteran’s bilateral plantar fasciitis is shown to be the result of his service-connected bilateral foot disabilities. 3. The Veteran has been shown to have bilateral tendinitis and tenosynovitis of the bilateral hands and wrists; these are essentially the same claimed disorder. 4. The evidence of record does not demonstrate any evidence of an in-service disease, injury or event on which to predicate a nexus related to the Veteran’s current bilateral hand and wrist disability. 5. The evidence of record does not demonstrate that the Veteran’s bilateral hand and wrist disability is caused or aggravated by his service-connected residual scar of a left finger laceration. 6. The Veteran’s DDD and IVDS of the lumbar spine is not shown to be have any ankylosis of the thoracolumbar spine, to be limited to 30 degrees or less of forward flexion, or to result in any incapacitating episodes at any time during the appeal period. 7. The evidence of record demonstrates that the Veteran’s bilateral radiculopathy is not shown to be more than mild incomplete paralysis of the bilateral sciatic nerves throughout the appeal period. 8. For the periods prior to and beginning on June 21, 2018, the Veteran’s bilateral hearing acuity is not shown to meet the criteria necessary for higher evaluations than have already been assigned; it is not factually ascertainable that an increase in the Veteran’s bilateral hearing loss occurred prior to June 21, 2018. CONCLUSIONS OF LAW 1. The criteria for service connection for arthritis with plantar and calcaneal spurs of the left foot are met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.310. 2. The criteria for service connection for bilateral plantar fasciitis are met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.310. 3. The criteria for service connection for bilateral hand and wrist disorders, to include tendonitis and tenosynovitis, have not been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.310. 4. The criteria for an evaluation in excess of 20 percent for DDD and IVDS of the lumbar spine are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.10, 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes 5242, 5243. 5. The criteria for an initial evaluation in excess of 10 percent for radiculopathy of the left lower extremity are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.10, 4.124a, Diagnostic Code 8520. 6. The criteria for an initial evaluation in excess of 10 percent for radiculopathy of the right lower extremity are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.10, 4.124a, Diagnostic Code 8520. 7. The criteria for an initial evaluation in excess of 10 percent for bilateral hearing loss prior to June 21, 2018, and for an evaluation in excess of 20 percent for the period beginning June 21, 2018, are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.10, 4.85, 4.86, Diagnostic Code 6100. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active duty service from November 1964 to October 1967. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from July 2004, July 2005, September 2005, and July 2017 rating decisions by a Department of Veterans Affairs (VA) Regional Office (RO). This case was before the Board in January 2013, at which time all of the above issues except the section 1151 claim were remanded for additional development; those claims have been returned to the Board at this time for further appellate review. During the pendency of that remand, the Veteran and his representative completed appeal of the 1151 claim and the Board also has jurisdiction over that claim at this time. The Agency of Original Jurisdiction (AOJ) issued supplemental statements of the case in June 2017 and September 2017 with issue statements of “evaluation of degenerative joint disease, right foot, currently 10 percent disabling.” The Veteran’s representative has submitted appellate arguments related to that issue, along with arguments related to the other issues on appeal, in June 2017 and October 2017. Prior to the June 2017 supplemental statement of the case, there was no issue of entitlement to a higher rating for the right foot disability. A right foot rating issue has not been certified to the Board and it has not been placed in the Veterans Appeals Control and Locator System (VACOLS). No further discussion is necessary. As a final initial matter, the Board has recharacterized the left foot claim into a claim for arthritis and spurring of the left foot and a bilateral plantar fasciitis claim, as such more accurately reflects that issues on appeal in this case. See Clemons v. Shinseki, 23 Vet. App. 1 (2009). Service Connection Claims Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active service. See 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). “To establish a right to compensation for a present disability, a Veteran 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”—the so-called “nexus” requirement.” Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2010) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Regulations also provide that service connection may be presumed for certain chronic diseases, including arthritis, that manifests to a compensable degree within one year of separation from active service. See 38 U.S.C. §§ 1101, 1112; 38 C.F.R. §§ 3.307, 3.309. Service connection may also be established on a secondary basis for a disability which is proximately caused by or aggravated by a condition for which service connection has already been established. 38 C.F.R. § 3.310. Temporary or intermittent flare-ups of symptoms of a condition, alone, do not constitute sufficient evidence aggravation unless the underlying condition worsened. Cf. Davis v. Principi, 276 F. 3d 1341, 1346-47 (Fed. Cir. 2002); Hunt v. Derwinski, 1 Vet. App. 292, 297 (1991). Left Foot Disorders Regarding the Veteran’s left foot claim, the Board remanded that claim in January 2013 in order to obtain an VA examination and medical opinion. The Veteran underwent a VA examination in June 2015, at which time he was diagnosed with “minute calcaneal spurs” of the left foot; the examiner additionally noted that he had “absolutely no symptoms of plantar fasciitis,” and noted that “his complaints [were] due to [peripheral vascular disease] with dependent swelling.” After examination, that VA examiner opined that the Veteran’s left foot disorder was less likely proximately due to or the result of his lumbar spine disability, noting that although he had a small spur he did not have any symptoms or symptoms of plantar fasciitis. He indicated that evidence-based medicine has shown that one joint does not affect other joints or the spine, and cited to “Symptoms in the Opposite or Uninjured Joint” by Dr. Ian Harrington, 2005. The Board notes that no copy of that literature was provided by the June 2015 examiner. The June 2015 examiner additionally provided an addendum opinion in April 2016, in which he noted that the Veteran had minimal pain symptoms related to his lumbar spine, which were well-controlled with medication and heat, and which did not affect his daily activities; he additionally opined that given these minimal symptoms related to the lumbar spine disability, such would not be an “indication for cause or aggravation of an orthopedic foot condition,” again citing the 2005 literature by Dr. Ian Harrington without providing that literature. He further indicated that calcaneal spurs were caused by plantar fascia tearing at the calcaneus insertion, usually caused by plantar fasciitis. “People with high arches and poor shoe wear are more prone to this. When the fascia tears it bleeds and the body treats it like a fracture and deposits calcium at the point of the tear. This is what causes the spur.” He noted that there was no physical relationship between the lumbar spine and the foot and that the gait would not be a factor, although the Veteran’s gait was normal. He further noted that the Veteran had minimal lumbar spine symptoms, a normal examination, and no indication of any current radicular symptoms or physical findings of peripheral neuropathy; the examiner then stated that if the Veteran had been service-connected for peripheral neuropathy or radiculopathy, he should not have been as there were no current symptoms of peripheral neuropathy or radiculopathy in the 2015 examination and such was confirmed by the VA treatment records dating back to 2000. He further opined that because the Veteran did not have radiculopathy, there was no effect on his lower extremities, which was also confirmed by his VA treatment records. Lastly, the examiner stated that the Veteran did not have IVDS, although he currently had DDD; the Board notes that the examiner made these statements despite the Veteran being service connected for IVDS. The Veteran underwent a VA examination of his feet in August 2017, at which time the Veteran was diagnosed with bilateral arthritis of his feet; the Board also reflects that x-rays of the left foot obtained at that time revealed small plantar and calcaneal spurs of the left foot. After examination, that examiner opined that after review of the history provided by the Veteran, the current examination, and review of the medical records it was at least as likely as not that the Veteran’s left foot disorder was due to or the result of his lumbar spine disability, noting that the Veteran had a significant back condition that caused gait abnormalities on several of his medical examinations. The examiner noted that a change in gait can lead to abnormal pressure on various parts of his feet which could cause inflammation and spur formation. He concluded it was at least as likely as not that the Veteran’s back condition caused his current left foot condition. Finally, the Veteran underwent another VA examination of his feet in June 2018, at which time he was diagnosed with arthritis plantar fasciitis. After examination, that examiner indicated that the Veteran’s new diagnosis of plantar fasciitis was a “progression of the previous diagnosis [as] arthritic changes caus[e] inflammation of the plantar fascia.” Based on the foregoing evidence, the Board first finds that the Veteran’s current disability related to his left foot claim is bilateral plantar fasciitis and arthritis with plantar and calcaneal spurs of the left foot. The Board additionally notes that service connection has already been established for his DDD and IVDS of the lumbar spine and degenerative joint disease (DJD) of the right foot (arthritis of the right foot). Accordingly, the first two elements of secondary service connection have been met in this case. Turning to the left foot arthritis and spurring, the Board notes that the June 2015 VA examiner’s initial and addendum opinions are rife with factual inaccuracies, including that the Veteran did not have IVDS, radiculopathy, or evidence of plantar fasciitis, as he was clearly already service connected for IVDS and bilateral radiculopathy and VA treatment records prior to the examination showed treatment for plantar fasciitis. Additionally, that examiner minimized the severity of the Veteran’s lumbar spine disability. Consequently, given these factual inaccuracies and minimization errors, the Board affords the June 2015 VA examiner’s opinion very little probative value. In contrast, the Board finds that August 2017 VA examiner’s opinion to be highly probative and to outweigh the June 2015 VA examiner’s opinion in this case. Accordingly, the Board finds the Veteran’s arthritis with plantar and calcaneal spurring of the left foot is due to or the result of his service-connected lumbar spine disability. See 38 C.F.R. §§ 3.102, 3.310. Likewise, the Board reflects that an award of service connection for bilateral plantar fasciitis in this case is also warranted. As noted above, arthritis of the bilateral feet has already been established. The June 2018 VA examiner indicated that the Veteran’s bilateral plantar fasciitis was caused by arthritis causing inflammation in the plantar fascia. Accordingly, service connection for bilateral plantar fasciitis is also warranted at this time. See Id. In so reaching the above conclusions, the Board has appropriately applied the benefit of the doubt doctrine in this case. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. Bilateral Wrist and Hand Disorders In his March 2004 claim, the Veteran indicated that he had been diagnosed with bilateral tendonitis in his wrists and hands, which was a “total, chronic impairment.” Throughout the appeal period, the Veteran and his representative, however, have never provided any contentions regarding how any such wrist and hand disorders were related to military service. A review of the Veteran’s service treatment records indicates that he was treated for a lacerated left index finger in April 1966. On his August 1967 separation examination, the Veteran was noted to have a scar on the base of his left thumb, although there were no other problems with his upper extremities or hands/wrists noted at that time. At that time, the Veteran denied any arthritis or rheumatism, bone, joint or other deformity, lameness, loss of arm, leg, finger or toe, or a history of broken bones; he indicated he was in “good” health at the time of his separation. Service connection was established in a January 1969 rating decision for the Veteran’s residual scar of a left finger laceration. After discharge from service, the Veteran underwent a private examination with Dr. L.B. in July 2007, at which time he was noted to have a history of “triggering of fingers.” The Veteran reported having “cramping of muscles for about 9 months,” which was “precipitated by activity and involving the arms.” On examination, the Veteran’s wrists had normal flexion, extension, radioulnar motion, and closure of his digits; there was no synovitis in the MP and PIP joints, flexor tenosynovitis in the digits of, or Heberden’s nodes of the DIP joints of the bilateral hands. There was no DeQuervain’s tenosynovitis of either hand. Dr. L.B., however, noted that there was “triggering of the right finger and tenosynovitis of the long and middle fingers.” Dr. L.B. diagnosed the Veteran with “triggering of the right ring finger and flexor tenosynovitis of the right middle and index fingers.” Dr. L.B. recommended injecting the trigger tendon sheath and the 2 flexor tenosynovitis sheaths with steroids, and noted that the “spasms are most likely due to the spondyloarthritis”; Dr. L.B. had also diagnosed cervical and lumbar spondyloarthritis. A review of the Veteran’s VA treatment records indicates diagnosis of and treatment for bilateral tendonitis of the wrists and hand/wrist pain, described as “gouty versus DJD.” The Veteran underwent an initial VA rheumatology consultation in April 2003, in which he indicated that he was diagnosed with bilateral tendonitis in 1993 while working as a machinist. In an April 2006 rheumatology consultation, the Veteran was seen for wrist pain and swelling, and was diagnosed with bilateral tendonitis with chronic pain since 1993. In an April 2010 VA mental health record, the Veteran reported that he initially was diagnosed with bilateral tendonitis in his wrists in 1995, when he was working as a machinist. The balance of the VA treatment records are substantially similar to those noted above. Following the January 2013 remand, the Veteran underwent a wrist and hand VA examination in June 2015. During that examination, bilateral tendonitis of the wrists and hands was diagnosed. The Veteran reported at that time that his “tendonitis was due to his civilian welding job,” and he denied any current symptoms; she stated that as long as he does not use his hands repetitively he has no hand or wrist problems. He reiterated that it was due to his civilian job. On physical examination, the Veteran’s bilateral wrists and hands were noted as normal. The examiner additionally indicated that he could not see any scar from a left index finger laceration. Following examination and review of the claims file, the VA examiner opined that the Veteran’s bilateral wrist and hand disorders were less likely than not related to the Veteran’s service or service-connected disability, noting that the Veteran himself indicated that his hand and wrist conditions were due to his post-service job. The examiner further indicated that there were no problems with the healed laceration and that he could not even find a scar. Based on the foregoing evidence, the Board finds that service connection is not warranted in this case. Initially, the Board reflects that tendinitis is inflammation of the tendons and of tendon-muscle attachments and that tenosynovitis is inflammation of the tendon sheath. See Dorland’s Illustrated Medical Dictionary, 1904-1905 (31st Ed., 2007). In light of these definitions, the Board finds that the diagnoses of tendinitis and tenosynovitis are essentially the same claimed disorder in this case. Accordingly, the Board finds that the first element, a current disability, has been met in this case. With regard to direct service connection, the Veteran’s service treatment records do not demonstrate any bilateral hand or wrist problems during military service, as noted on the Veteran’s separation examination. The Veteran had a laceration that was treated during military service and that such was healed without any residuals other than a scar, as noted in the Veteran’s separation examination. Moreover, the Veteran and his representative have not pointed to any specific injury or event during military service that caused his current hand and wrist disability. Significantly, the Board notes that neither the Veteran nor his representative have even asserted that the current hand and wrist disability is even a residual of or otherwise related to the noted left finger laceration during service. Instead, all other evidence of record demonstrates that the Veteran’s bilateral hand and wrist disability began several years after discharge from military service, while working as a machinist. See Maxson v. West, 12 Vet. App. 453 (1999), aff'd, 230 F.3d 1330 (Fed. Cir. 2000) (a significant lapse in time between service and post-service medical treatment may be considered as part of the analysis of a service connection claim, which weighs against the claim). In fact, the Veteran’s own statements during his June 2015 VA examination indicated that he believed that over-use of his hands and wrists during his civilian post-service jobs caused his current hand and wrist disabilities. Such beliefs are bolstered and supported by the other evidence of record in this case, and are highly probative in this case. Accordingly, the Board finds that the evidence in this case does not demonstrate the presence of an in-service disease, injury, or event on which a nexus can be predicated in this case; the claim for direct service connection must therefore be denied at this time. See 38 C.F.R. § 3.303. Turning to the secondary service connection claim, considering that the Veteran’s healed scar due to his left finger laceration is service connected, the first two elements of secondary service connection have been met in this case. However, the Board must also deny service connection on a secondary basis, as the evidence clearly demonstrates that the Veteran’s service-connected left finger scar did not cause or aggravate his bilateral hand and wrist disability. The June 2015 VA examiner noted that the Veteran did not have any residuals from the laceration during military service, noting that he could not even find a scar. Moreover, the Veteran indicated that during his June 2015 examination that his hand and wrist disability was related to his post-service welding/machinist job and that as long as he did not use his hand/wrists repetitively, he did not have any symptoms. In short, there is no evidence of record to support either that the non-painful, not unstable residual scar at all caused or at all affects, in any way, the Veteran’s current bilateral wrist and hand disability. The above noted evidence weighs against a finding that it was either caused or aggravated by his service-connected residual scar of a left finger laceration, and such evidence—including the Veteran’s own lay statements—is the most probative evidence with respect to that finding. Service connection on a secondary service connection basis must also be denied based on the evidence of record at this time. See 38 C.F.R. § 3.310. In reaching the above conclusions, 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 claims, that doctrine is not applicable in the instant appeal. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. Increased Rating Claims Disability ratings are determined by applying the criteria set forth in the VA’s Schedule for Rating Disabilities, which is based on the average impairment of earning capacity. Individual disabilities are assigned separate diagnostic codes. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. The basis of disability evaluations is the ability of the body as a whole, or of the psyche, or of a system or organ of the body to function under the ordinary conditions of daily life including employment. 38 C.F.R. § 4.10. In determining the severity of a disability, the Board is required to consider the potential application of various other provisions of the regulations governing VA benefits, whether or not they were raised by the Veteran, as well as the entire history of the Veteran’s disability. 38 C.F.R. §§ 4.1, 4.2; Schafrath v. Derwinski, 1 Vet. App. 589, 595 (1991). If the disability more closely approximates the criteria for the higher of two ratings, the higher rating will be assigned; otherwise, the lower rating is assigned. 38 C.F.R. § 4.7. It is not expected that all cases will show all the findings specified; however, findings sufficiently characteristic to identify the disease and the disability therefrom and coordination of rating with impairment of function will be expected in all instances. 38 C.F.R. § 4.21. In deciding this appeal, the Board has considered whether separate ratings for different periods of time, based on the facts found, are warranted, a practice of assigning ratings referred to as “staging the ratings.” See Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2008). Lumbar Spine and Bilateral Radiculopathy In determining the appropriate evaluation for musculoskeletal disabilities, particular attention is focused on functional loss of use of the affected part. Under 38 C.F.R. § 4.40, functional loss may be due to pain, supported by adequate pathology and evidenced by visible behavior on motion. Weakness is as important as limitation of motion, and a part that becomes painful on use must be regarded as seriously disabled. Under 38 C.F.R. § 4.45, factors of joint disability include increased or limited motion, weakness, fatigability, or painful movement, swelling, deformity or disuse atrophy. Under 38 C.F.R. § 4.59, painful motion is an important factor of joint disability and actually painful joints are entitled to at least the minimum compensable rating for the joint. Where functional loss is alleged due to pain upon motion, the provisions of 38 C.F.R. § 4.40 and § 4.45 must be considered. DeLuca v. Brown, 8 Vet. App. 202, 207-08 (1995). Within this context, a finding of functional loss due to pain must be supported by adequate pathology, and evidenced by the visible behavior of the claimant. Johnston v. Brown, 10 Vet. App. 80, 85 (1997). Pain itself does not rise to the level of functional loss as contemplated by § 4.40 and § 4.45, but may result in functional loss only if it limits the ability to perform the normal working movements of the body with normal excursion, strength, coordination or endurance. Mitchell v. Shinseki, 25 Vet. App. 32, 43 (2011). Ankylosis is stiffening or fixation of a joint as the result of a disease process, with fibrous or bony union across the joint. Dinsay v. Brown, 9 Vet. App. 79, 81 (1996). The Veteran filed his claim for increased evaluation of his lumbar spine disability on December 30, 2003. Throughout the appeal period, the Veteran’s lumbar spine disability has been assigned a 20 percent evaluation under Diagnostic Code 5242-5243. Additionally, the Veteran was awarded service connection for his bilateral radiculopathy of the lower extremities since December 30, 2003; each of those extremities has been assigned a 10 percent evaluation under Diagnostic Code 8520 throughout the appeal period. In conjunction with these claims for increase, the Board has considered the relevant evidence since December 30, 2002. See 38 C.F.R. § 3.400(o). Diagnostic Code 5242 refers the rater to the General Rating Formula for Diseases and Injuries of the Spine, which provides a 20 percent evaluation for forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees, a combined range of motion of the thoracolumbar spine not greater than 120 degrees, or 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 evaluation requires evidence of forward flexion of the thoracolumbar spine to 30 degrees or less; or, favorable ankylosis of the entire thoracolumbar spine. A 50 percent evaluation is warranted for unfavorable ankylosis of the entire thoracolumbar spine. See 38 C.F.R. § 4.71a, General Rating Formula for Diseases and Injuries of the Spine. For VA compensation purposes, normal forward flexion of the thoracolumbar spine is zero to 90 degrees, extension is zero to 30 degrees, left and right lateral flexion are zero to 30 degrees, and left and right lateral rotation are zero to 30 degrees. The combined range of motion refers to the sum of the range of forward flexion, extension, left and right lateral flexion, and left and right rotation. The normal combined range of motion of the thoracolumbar spine is 240 degrees. The normal ranges of motion for each component of spinal motion provided in this note are the maximum that can be used for calculation of the combined range of motion. Id. at Note (2). For VA compensation purposes, unfavorable ankylosis is a condition in which the entire cervical spine, the entire thoracolumbar spine, or the entire spine is fixed in flexion or extension, and the ankylosis results in one or more of the following: difficulty walking because of a limited line of vision; restricted opening of the mouth and chewing; breathing limited to diaphragmatic respiration; gastrointestinal symptoms due to pressure of the costal margin on the abdomen; dyspnea or dysphagia; atlantoaxial or cervical subluxation or dislocation; or neurologic symptoms due to nerve root stretching. Fixation of a spinal segment in neutral position (zero degrees) always represents favorable ankylosis. Id. at Note (5). Alternatively, the Veteran’s lumbar spine disability may be evaluated under the Formula for Rating IVDS Based on Incapacitating Episodes, which assigns a 10 percent evaluation with incapacitating episodes having a total duration of at least one week but less than 2 weeks during the past 12 months. A 20 percent evaluation may be assigned with incapacitating episodes having a total duration of at least 2 weeks but less than 4 weeks during the past 12 months. A 40 percent evaluation may be assigned with incapacitating episodes having a total duration of at least 4 weeks but less than 6 weeks during the past 12 months. A 60 percent evaluation may be assigned for intervertebral disc syndrome with incapacitating episodes having a total duration of at least 6 weeks during the past 12 months. See 38 C.F.R. § 4.71a, Diagnostic Code 5243, Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes. An incapacitating episode is a period of acute signs and symptoms due to intervertebral disc syndrome that requires bedrest prescribed by a physician and treatment by a physician. Id. at Note (1). Respecting the bilateral radiculopathy, under Diagnostic Code 8520, which rates injuries to the sciatic nerve, a 10 percent rating is warranted for a mild incomplete paralysis. Moderate incomplete paralysis warrants a rating of 20 percent. Moderately severe incomplete paralysis warrants a 40 percent evaluation. Severe incomplete paralysis, with marked muscular atrophy, warrants a 60 percent evaluation. And finally, complete paralysis, defined as: the foot dangles and drops, no active movement possible of muscles below the knee, or flexion of the knee weakened or (very rarely) lost, warrants an 80 percent evaluation. See 38 C.F.R. § 4.124a, Diagnostic Code 8520. Turning to the evidence of record, the Veteran filed his claim for increased evaluation on December 30, 2003. The Veteran underwent a VA examination of his lumbar spine in May 2004, during which he reported having constant pain in his low back that travels from the bilateral L4-5 area, across his buttocks, and down the upper posterior legs bilaterally. He described the pain as burning, oppressing, and sharp; he had 8 out of 10 pain. He had pain with physical activity and sitting; it was relieved by rest and medication. He denied any incapacitation and reported his functional impairments involved limitations in walking, driving and sitting. On examination, his posture and gait were normal; he used a cane for ambulation related to his feet swelling. The Veteran did not have any complaints of radiating pain on movement and did not have any muscle spasms; he had tenderness over the L5-S1 area and a positive bilateral straight leg raising test. He had 90 degrees of flexion with pain at 40 degrees, 30 degrees of extension, bilateral lateral flexion, and bilateral rotation, with endpoint pain in extension and left rotation. The examiner noted that the Veteran was not additionally limited by fatigue, weakness, lack of endurance, or incoordination; there was no ankylosis of the spine and there were signs of IVDS at the L5 nerve root. Neurologically, the Veteran’s motor function and reflex testing were normal. He had decreased sensation to sharp touch that improved as you approached the legs from the feet bilaterally; fine filament testing was normal bilaterally. X-rays demonstrated degenerative arthritis and joint narrowing. The examiner diagnosed the Veteran with moderate to severe DDD with spondylitic changes and bilateral peripheral neuropathy of the lower extremities secondary to IVDS. The Veteran had a private examination with Dr. L.B in July 2007, at which time he was diagnosed with spondyloarthritis of the lumbar spine. On examination, there was no restriction noted in flexion, extension, or rotation of the thoracic or lumbar spines; there were no noted trigger points in the thoracic or lumbar spines and straight leg raising was negative bilaterally. The Veteran’s gait velocity was normal without a limp. In an October 2007 VA treatment record, the Veteran was noted to have lumbar spine tenderness over the left side of his lower back with bilateral straight leg raising at 50 degrees. He was diagnosed with chronic back pain and his prescription pain medications were continued. The Veteran underwent another VA examination of his lumbar spine in June 2010, at which time he reported limitation in walking and falls due to his back. He also reported stiffness, spasms, weakness, and paresthesia; he denied fatigue, decreased motion, bowel or bladder problems, and numbness. He also reported constant pain in his back that travels down his legs; his pain level was moderate and was exacerbated by physical activity and relieved by rest and medication. The Veteran denied any incapacitation in the last 12 months, although he did not that he quit work and school due to pain and tingling in his legs. Neurologically, he reported tingling, numbness, and pain; he denied abnormal sensation, anesthesia, weakness, or paralysis. His neurological symptoms were worse with walking, but occurred constantly. He did not have any treatment for his neurological symptoms. He finally reported that he was unable to sit due to his lumbar spine disability. On examination, the Veteran had a normal gait and posture; walking was steady. He did not have any evidence of radiating pain on movement and did not have any muscle spasms, guarding, tenderness, or weakness; muscle tone and musculature were normal. Straight leg raising bilaterally was negative and there was no sign of atrophy in his lower extremities. There was no ankylosis and Lesegue’s sign was negative. He had flexion to 85 degrees, extension to 30 degrees, bilateral lateral flexion to 15 degrees, and bilateral rotation to 10 degrees, with pain at all the end points except extension; his range of motion was unchanged after repetitive motion testing and the examination noted that there was no additional limitation due to pain, fatigue, weakness, lack of endurance, or incoordination. Neurologically, the Veteran’s motor function and reflex testing were normal; sensation to pinprick/pain, touch, position, vibration, and temperature were intact bilaterally. The examiner, however, did note that there was a sensory deficit of the bilateral feet due to IVDS, although there was no motor weakness and his reflexes were normal. The Veteran was examined again in June 2015, at which time he reported chronic low back pain without any current radicular symptoms; he was diagnosed with DDD of the lumbar spine. He reported that a heating pad helped. He denied any flare-ups or functional impairment. On examination, his range of motion was normal, without evidence of pain on examination or during weightbearing. His range of motion was unchanged after repetitive motion testing. He did not have muscle spasms or guarding, and his muscle strength, reflex, and sensory examinations were normal; straight leg raising testing was negative bilaterally. The examiner noted that the Veteran did not have any radiculopathy, ankylosis, IVDS, or any other neurological symptoms. He did not use any assistive devices; x-rays showed arthritis of the lumbar spine. The examiner concluded that the Veteran’s lumbar spine disability did not impact his ability to work. In a VA pain consultation record in October 2017, the Veteran was noted to have a history of low back pain which he indicated caused him to quit his job in 2004 or 2005. He reported that in the last two years, his symptoms had progressively worsened, noting tingling down his bilateral legs; he pain was exacerbated with staying in one position for too long. On examination, the Veteran had flexion to 80 degrees, extension to 10 degrees, bilateral lateral flexion to 20 degrees, and bilateral rotation to 30 degrees. Motor strength, reflex, and neurological testing were normal; straight leg raising testing was negative bilaterally. He was referred for a neurosurgical consultation. In a November 2017 VA neurosurgery note, the Veteran was noted to have DDD of the lumbar spine with progressive low back pain for 2 years; his pain was noted to radiate down his bilateral lower extremities along the medial thighs. He used a cane. He denied weakness. He had numbness only at the toes; he reported a single episode of questionable bowel incontinence. The examiner noted examination with full strength and normoreflexia. The Veteran was not interested in surgery at that time, and he was referred for physical therapy at that time, as noted in December 2017 treatment records. In a February 2018 neurosurgical follow-up, the Veteran reported that his back pain was greatly improved with physical therapy; he was able to walk 30 minutes a day. He denied any tingling and although he still had cramping it was not as severe as before. Finally, the Veteran underwent a VA lumbar spine examination in June 2018, at which time he was noted to have DDD and IVDS of his lumbar spine. The Veteran reported low back pain with muscle spasms and radiation to his bilateral lower extremities, with numbness, tingling and pain in his bilateral lower extremities. He took Ibuprofen. He also reported flare-ups that occurred every day for half a day, which were moderately severe and manifested as sharp pain and stiffness. He finally reported being unable to walk long distances. On examination, the Veteran had flexion to 65 degrees, extension to 30 degrees, right lateral flexion to 20 degrees, and left lateral flexion to 30 degrees, and bilateral rotation to 25 degrees, with pain on examination in flexion and lateral flexion; there was also pain on weightbearing. Ranges of motion were unchanged with repetitive motion testing. The examiner noted that it was not possible to determine, without resorting to mere speculation, to estimate loss of range of motion either after repeated use or during flare-ups because there was no conceptual or empirical basis for making that determination without directly observing functioning under these conditions. There was no evidence of guarding or muscle spasms, and there were no additional factors that contributed to additional functional impairment. There was no ankylosis of the thoracolumbar spine; although the examiner noted that the Veteran had IVDS, it was noted that he did not have any incapacitating episodes within the last 12 months. Neurologically, muscle strength and reflex testing were normal; the Veteran did not have any muscle atrophy. The Veteran’s sensory examination was decreased in the bilateral lower leg/ankle and in the left foot/toes, although all other aspects were normal; straight leg raising testing was positive bilaterally. The examiner noted that the Veteran radiculopathy that affected the bilateral sciatic nerves. The Veteran reported moderate bilateral intermittent pain (usually dull), paresthesias and/or dysesthesias, and numbness, but denied bilateral constant pain (may be excruciating at times). After neurological testing, however, the examiner indicated that the Veteran’s radiculopathy of the sciatic nerves was mild. The Veteran did not have any other neurological abnormalities. The examiner noted that the Veteran regularly used a back brace for his lumbar spine disability. The examiner also stated that the Veteran was retired and had missed 0-1 week of work time in the last 12 months. He was, however, noted to be unable to sit, stand, walk, or perform other weightbearing activities for extended periods of time; he additionally would have difficulty bending over or lifting heavy weights due to his lumbar spine disability. Finally, the examiner noted that passive range of motion was not performed as it was not feasible to perform in a safe and reasonable manner; there also was no pain during non-weightbearing on examination. Based on the foregoing evidence, the Board finds that a higher evaluation for his lumbar spine disability is not warranted in this case. In order to assign a higher evaluation in this case, the Board must find that there is any type of ankylosis in this case, or that the Veteran’s forward flexion of the lumbar spine is limited to 30 degrees or less. The Veteran is not shown to have ankylosis of the thoracolumbar spine at any time during the appeal period. Likewise, the Veteran’s lumbar spine, even considering his reports of moderately severe flare-up, is not shown at any time during the appeal period to be limited to 30 degrees or less. Finally, although the Veteran has IVDS, there is no evidence that he has had any incapacitating episodes, and certainly not any episodes of physician-prescribed bedrest, for at least 4 weeks at any time during the appeal period. Accordingly, an increased evaluation for the lumbar spine disability is not warranted in this case. See 38 C.F.R. §§ 4.7, 4.71a, Diagnostic Codes 5242, 5243. Turning to the Veteran’s radiculopathy, the Board acknowledges that the Veteran indicated throughout the appeal period that he had numbness, pain, and tingling that radiated to his bilateral lower extremities. The Board further acknowledges that the Veteran, himself, assessed the severity of those symptoms as moderate in the most recent VA examination. The Board, however, notes that the Veteran’s lay assessment is not competent evidence in this case, as he lacks the requisite medical knowledge to render a medical opinion as to the assessment of the severity of his radiculopathy in this case. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007) (noting general competence to testify as to symptoms but not to provide medical diagnosis); see also Jones v. West, 12 Vet. App. 383, 385 (1999) (where the determinative issue is one of medical causation or a diagnosis, only those with specialized medical knowledge, training, or experience are competent to provide evidence on the issue). Consequently, the VA examiners’ opinions that the Veteran’s radiculopathy of the bilateral sciatic nerves in this case is mild is the most probative evidence of record in this case. As there is no evidence of moderate incomplete paralysis of the bilateral sciatic nerves in this case due to his bilateral radiculopathy, the Board must find that higher evaluations than currently assigned in this case are not warranted. See 38 C.F.R. §§ 4.7, 4.124a, Diagnostic Code 8520. In reaching the above conclusions, 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 claims, that doctrine is not applicable in the instant appeal. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. Bilateral Hearing Loss The Veteran filed his claim for service connection for bilateral hearing loss on December 30, 2003, and he has been awarded service connection for that disability since that date. Throughout the appeal period, the Veteran’s bilateral hearing loss has been assigned a 10 percent evaluation for the period prior to June 21, 2018, and a 20 percent evaluation for the period beginning June 21, 2018. His disability evaluations have been assigned under Diagnostic Code 6100 throughout the appeal period. Evaluations of bilateral defective hearing range from noncompensable to 100 percent based on organic impairment of hearing acuity as measured by the results of controlled speech discrimination tests together with the average hearing threshold level as measured by pure tone audiometry tests in the frequencies 1000, 2000, 3000, and 4000 Hertz (Hz). To evaluate the degree of disability from bilateral service-connected defective hearing, the Rating Schedule establishes 11 auditory acuity levels designated from Level I for essentially normal hearing acuity through Level XI for profound deafness. 38 C.F.R. §§ 4.85, 4.86, Diagnostic Code 6100. The evaluation of hearing impairment applies a rather structured formula that is a mechanical application of the rating schedule to numeric designations after audiology evaluations are obtained. Lendenmann v. Principi, 3 Vet. App. 345, 349 (1992). Under 38 C.F.R. § 4.86, when the pure tone threshold at each of the four specified frequencies (1000, 2000, 3000, and 4000 Hz) is 55 decibels or more, the rating specialist will determine the Level designation for hearing impairment from either Table VI or Table VIa, whichever results in the higher numeral. 38 C.F.R. § 4.86(a). Further, when the average puretone threshold is 30 decibels at 1000 Hz, and 70 decibels or more at 2000 Hz, the rating specialist will determine the Level designation for hearing impairment from either Table VI or Table VIa, whichever results in the higher numeral. That numeral will then be elevated to the next higher Level. 38 C.F.R. § 4.86(b). Turning to the evidence of record, the Veteran underwent a VA audiological examination in May 2004, during which he reported difficulty hearing normal conversational speech; the Veteran was not treated with any hearing aids at that time and had not lost any time from work related to his hearing loss; the examiner recommended the Veteran be seen for hearing aid evaluation at that time. The Veteran underwent audiometric testing at that time, with the following results: 500 Hz 1000 Hz 2000 Hz 3000 Hz 4000 Hz Average Speech Discrimination RIGHT 10 15 35 55 60 41.25 80% LEFT 10 15 50 55 65 46.25 72% The above results do not show a pattern of exceptional hearing loss for either ear, and therefore, the Board will not use Table VIa in evaluation of the Veteran’s hearing loss. See 38 C.F.R. § 4.86. The results under Table VI equate to Level III hearing acuity for the right ear and Level IV hearing acuity for the left ear. See 38 C.F.R. § 4.85. Such findings are commensurate to a 10 percent evaluation. See Table VII. The Veteran underwent another VA audiological examination in July 2010, during which he reported difficulty hearing, and having to rely on lip reading or asking for repetition; the Veteran noted as having VA-issued hearing aids at that time. The Veteran additionally reported that he had attempted to work as a court translator/interpreter, although he had lost that job because he had to ask for repetition. The examiner noted that the impact on the Veteran’s occupational functioning was moderately severe without hearing aid use and the impact on his daily activity was severe without hearing aid use; she noted that the quality of the Veteran’s life would improve with hearing aid use. The Veteran underwent audiometric testing at that time, with the following results: 500 Hz 1000 Hz 2000 Hz 3000 Hz 4000 Hz Average Speech Discrimination RIGHT 30 30 65 65 60 55 90% LEFT 25 30 70 70 70 60 70% The above results do not show a pattern of exceptional hearing loss for either ear, and therefore, the Board will not use Table VIa in evaluation of the Veteran’s hearing loss. See 38 C.F.R. § 4.86. The results under Table VI equate to Level I hearing acuity for the right ear and Level V hearing acuity for the left ear. See 38 C.F.R. § 4.85. Such findings are commensurate to a noncompensable evaluation. See Table VII. Based on the audiological findings in this VA audiological examination, an increased evaluation for his bilateral hearing loss is not warranted. The Veteran underwent another VA audiological examination in June 2015, during which he reported interference with word understanding with any type of competing noise. He also reported difficulty hearing spoken guidance, instructions, or comments from other workers when in noise; he stated that he confused words and needed closed captions on his television. Further, he reported difficulty understanding telephonic communication as he could not read lips and facial expressions of the other talker; once he understood the topic, however, the examiner concluded that his hearing loss should not interfere with the completion of physical or sedentary work. The Veteran underwent audiometric testing at that time, with the following results: 500 Hz 1000 Hz 2000 Hz 3000 Hz 4000 Hz Average Speech Discrimination RIGHT 25 30 65 65 65 56 86% LEFT 25 30 65 70 65 58 92% The above results do not show a pattern of exceptional hearing loss for either ear, and therefore, the Board will not use Table VIa in evaluation of the Veteran’s hearing loss. See 38 C.F.R. § 4.86. The results under Table VI equate to Level II hearing acuity for the right ear and Level II hearing acuity for the left ear. See 38 C.F.R. § 4.85. Such findings are commensurate to a noncompensable evaluation. See Table VII. Based on the audiological findings in this VA audiological examination, an increased evaluation for his bilateral hearing loss is not warranted. Finally, on June 21, 2018, the Veteran underwent another VA audiological examination, during which he reported difficulty hearing in noisy environments, in group settings, and from a distance; he also was able to hear, but not clearly. He further stated that he had to ask people to repeat themselves a lot more, and that he was missing more and more of conversations. He stated that when he does hear it is sometimes incorrect. He stated that it was “very frustrating,” and that he avoided social and work situations because he could not follow the conversation. The examiner concluded, however, that the Veteran would have no work restrictions when using the proper hearing and adaptive devices. The Veteran underwent audiometric testing at that time, with the following results: 500 Hz 1000 Hz 2000 Hz 3000 Hz 4000 Hz Average Speech Discrimination RIGHT 25 30 60 65 75 58 72% LEFT 20 30 65 65 65 56 70% The above results do not show a pattern of exceptional hearing loss for either ear, and therefore, the Board will not use Table VIa in evaluation of the Veteran’s hearing loss. See 38 C.F.R. § 4.86. The results under Table VI equate to Level V hearing acuity for the right ear and Level V hearing acuity for the left ear. See 38 C.F.R. § 4.85. Such findings are commensurate to a 20 percent evaluation. See Table VII. Based on the audiological findings in this VA audiological examination, an increased evaluation for his bilateral hearing loss for the period beginning June 21, 2018, is not warranted. The Board has further reviewed the Veteran’s VA treatment records, which noted that the Veteran’s initial audiological consultation was in August 2002. He reported having decreased hearing since dental surgery at that time. After audiological evaluation, which does not appear to have included puretone and Maryland CNC testing, the examiner noted that the Veteran had normal to moderately severe bilateral hearing loss. The Veteran was then seen in March 2005 for another audiological consultation with complaints of difficulty comprehending speech. After audiological evaluation, which does not appear to have included puretone and Maryland CNC testing, the examiner noted that the Veteran had mild to moderately severe bilateral hearing loss with poor speech discrimination ability. The examiner noted that there was no significant change since his last examination in August 2002. However, he was referred by a VA social worker for hearing aid evaluation in March 2005 due to complaints of increased hearing issues. He was seen again in May 2005 for hearing aid evaluation; impressions were made for hearing aids at that time, although the Veteran noted that he was initially not interested in amplification, but that he was told he would need hearing aids in order to perform his court translator job that he was being trained for. It is unclear whether the Veteran received hearing aids at that time. However, in January 2006, the Veteran was again seen for hearing aid evaluation and he was fitted for and issued hearing aids at that time. In a May 2013 audiological consultation, the Veteran was noted to have been fit for and issued hearing aids in 2005. The Veteran, however, stated that he only wore his hearing aids while attending class and that he did “not feel his hearing loss [was] a problem.” After audiological evaluation, which does not appear to have included puretone and Maryland CNC testing, the examiner noted that the Veteran had moderate sloping to severe bilateral hearing loss. The examiner finally noted that the Veteran “currently lack[ed] necessary motivation for successful use of hearing aids.” The Board additionally notes that the Veteran has not submitted any private audiological treatment records. Social Security Administration (SSA) records associated with the claims file in this case are copies of the Veteran’s VA treatment records discussed above, and do not contain any additional audiological data that was not discussed above. Finally, during the course of the appeal, the Veteran has chronicled the difficulties that he has with his hearing loss disability under the normal conditions of his life and his activities of daily living, which include difficulty hearing in conversational situations, noisy environments, in group settings, and from a distance; he also noted having to rely on reading lips or facial expressions or closed captions, which impacted his ability to participate in telephonic communication. The Veteran finally was noted to have to ask people to repeat themselves. The Board is cognizant of the Veteran’s contentions concerning his difficulty in hearing. See Martinak v. Nicholson, 21 Vet. App. 447, 455-56 (2007). However, the assignment of disability ratings for hearing impairment is derived from a mechanical formula that is applicable in this case. Moreover, the Court has held that the rating criteria in this case contemplate the functional effects of decreased hearing and difficulty understanding speech in an everyday work environment as these are the effects that VA’s audiometric tests are designed to measure, although it does not contemplate effects other than difficulty hearing or understanding speech as it does not otherwise account for other functional effects, such as dizziness, vertigo, ear pain, recurrent loss of balance or social isolation due to difficulties communicating. See Doucette v. Shulkin, 28 Vet. App. 366, 369-70 (2017). In this case, the Veteran’s complaints on appeal merely describe his difficulty hearing and understanding speech in a normal everyday environment and are therefore contemplated by the rating criteria in this case. See Id. On appeal and particularly in the September 2018 informal hearing presentation, the Veteran and his representative have asserted that the increased evaluation demonstrated in the June 2018 VA examination was “factually ascertainable prior to the date” of that examination, and further asserted that his hearing loss “significantly worsened following his prior examination in 2015.” The Veteran and his representative particularly contend that the 20 percent evaluation for his bilateral hearing loss should be awarded “as early as June 2017,” although they do not point to any particular piece of evidence in this case on which they base this assertion of factual ascertainability. The Board acknowledges these contentions, although there is no evidence that the Veteran was evaluated audiologically by VA in June 2017. The Board reflects that May and June 2017 statements from the Veteran’s representative refers solely to arguments advanced as to other issues. The evidence of record—discussed above—does not demonstrate any evidence prior to June 21, 2018, that the Veteran’s bilateral hearing acuity manifested in a disability picture that was commensurate with a 20 percent evaluation. Although the Veteran and his representative have asserted that such is “factually ascertainable perhaps as early as June 2017,” they have not pointed to any specific evidence on which they make that claim. Consequently, the Board finds that the earliest factually ascertainable date on which the Board can find that the criteria for a 20 percent evaluation under 38 C.F.R. §§ 4.85 and 4.86 have been met in this case is on June 21, 2018. Insofar as the Veteran and his representative have attempted to claim an earlier effective date for the award of a 20 percent evaluation for the Veteran’s bilateral hearing loss on appeal, the Board finds that such is not warranted in this case. Accordingly, the Board cannot find that an evaluation in excess of 10 percent for the period prior to June 21, 2018, and in excess of 20 percent for the period beginning June 21, 2018, is warranted based on the evidence of record, and his claim for increased evaluation must be denied at this time. See 38 C.F.R. §§ 4.7, 4.85, 4.86, Diagnostic Code 6100. REASONS FOR REMAND With respect to the Veteran’s section 1151 claim, the Board reflects that after a review of the medical records from November 2001, it appears that the Veteran had three separate dental procedures on November 7, 2001, November 16, 2001, and November 20, 2001. Of record, however, are informed consent forms from the November 7 and 16, 2001, procedures only. Thus, it appears that there are outstanding VA treatment records in this case, and a remand in order to obtain those records is necessary at this time. See 38 U.S.C. § 5103A(b), (c); 38 C.F.R. § 3.159(b); see also Sullivan v. McDonald, 815 F.3d 786 (Fed. Cir. 2016) (where the Veteran “sufficiently identifies” other VA medical records that he or she desires to be obtained, VA must also seek those records even if they do not appear potentially relevant based upon the available information); Bell v. Derwinski, 2 Vet. App. 611 (1992). Moreover, it also appears that the Veteran may have filed a Federal Tort Claims Act claim with the Department of Veterans Affairs Regional Counsel on September 2003, as noted by the Form SF-95 associated with the claims file. The AOJ should attempt to obtain any and all records related to that claim and to associate those documents with the claims file. Additionally, the Veteran underwent a March 2017 VA examination respecting his section 1151 claim, although that examination was only related to his claimed scar and pain residuals. In statements on appeal, particularly the August 2017 notice of disagreement, the Veteran and his representative have asserted that he has nerve damage with associated numbness; the March 2017 examiner did not address those claimed residuals. Moreover, in light of the noted lack of the November 20, 2001 informed consent form, it appears that the March 2017 medical opinion is based on an incomplete record. Thus, on remand, the AOJ should obtain another VA examination and medical opinion in this case. See Barr v. Nicholson, 21 Vet. App. 303, 311 (2007); Kowalski v. Nicholson, 19 Vet. App. 171, 179 (2005) (a VA examination must be based on an accurate factual premise). The Veteran’s TDIU and specially adapted housing/special home adaptation claims are intertwined with the above remanded claim and must also be remanded at this time. See Henderson v. West, 12 Vet. App. 11, 20 (1998); Harris v. Derwinski, 1 Vet. App. 180, 183 (1991). Finally, the Board previously requested that this case be referred to the Director of Compensation (Director) for extraschedular TDIU under 38 C.F.R. § 4.16(b). This case was referred to the Director in April and December 2016; however, a policy analyst from the Director’s office closed the request in January 2017, because the AOJ did not update the December 2016 request. As it does not appear that the Director has actually addressed the merits of TDIU in this case, the AOJ should again refer this case to the Director for an appropriate action under 38 C.F.R. § 4.16(b). See Stegall v. West, 11 Vet. App. 268 (1998) (A remand by the Board confers upon the claimant, as a matter of law, the right to compliance with the remand order). The matters are REMANDED for the following action: 1. Obtain any and all VA treatment records not already associated with the claims file from the Houston VA Medical Center, or any other VA medical facility that may have treated the Veteran and associate those documents with the claims file. Particularly, the AOJ should obtain any and all dental treatment records from November 2001, including any informed consent form for the November 20, 2001 surgical treatment. If any of those records are unavailable and further attempts to obtain those records would be futile, a memorandum of unavailability should be associated with the claims file and the Veteran and his representative should be so notified. 2. The AOJ should attempt to obtain any and all documents related to any claim he may have filed with the VA Regional Counsel’s Office in September 2003, including any records or documents related to a Federal Tort Claims Act action related to the November 2001 episodes of dental treatment at issue in this case. 3. Ensure the Veteran is scheduled for an appropriate VA examination to determine any residuals resulting from the Veteran’s dental surgeries in November 2001. The claims file must be made available to and be reviewed by the examiner in conjunction with the examination. All tests deemed necessary should be conducted and the results reported in detail. After examination and review of the claims file, the examiner should indicate any and all residuals stemming from the Veteran’s dental surgeries in November 2001, to include claimed scars, pain, and nerve damage/numbness. Then, the examiner should opine as to whether any disability found, including scars, pain, and/or nerve damage/numbness, (a): is due to VA’s negligence, carelessness, lack of proper skill, error in judgment or other similar instance of fault, in the treatment of the Veteran in November 2001, particularly the noted surgeries on November 7, November 16, and November 20, 2001. In so discussing, the examiner should discuss the standard level of medical care in treating the dental issues that the Veteran had, as well as the Veteran’s specific allegations of negligence in failing to properly extract his teeth and prevent him from infection prior to, during and post-extraction. If (a) is answered in the negative, the examiner should additionally opine whether (b) any residuals of the November 2001 dental surgeries were reasonably foreseeable consequences of his VA treatment. Specifically, the examiner should discuss the November 7, 2001 and November 16, 2001 informed consent forms (as well as the November 20, 2001 informed consent form is such is associated with the claims file); the examiner should discuss what, if any, risks and complications would have been discussed prior to any surgical procedure when signing those forms. Finally, the examiner should discuss whether any of the residuals of the dental surgery would have been reasonably foreseeable consequences of the treatment regardless of whether such risks and complications were discussed while signing the informed consent forms. The examiner should additionally address previous March 2017 VA examination report and medical opinion in the his/her discussion, as well as any contentions made by the Veteran and his representative regarding negligence or fault on VA’s part in the Veteran’s care of his dental issues in November 2001, particularly in the September 2018 statement. The examiner should also consider any other pertinent evidence of record, as appropriate. All findings should be reported in detail and all opinions must be accompanied by a clear rationale. 4. The AOJ should complete any development determined to be necessary related to the Veteran’s TDIU claim, as appropriate. Then, the AOJ must refer this case to the Director of Compensation for an opinion regarding extraschedular consideration of TDIU under 38 C.F.R. § 4.16(b). JAMES G. REINHART Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD M. Peters, Counsel