Citation Nr: 18145734 Decision Date: 10/29/18 Archive Date: 10/29/18 DOCKET NO. 09-23 059A DATE: October 29, 2018 ORDER The petition to reopen the claim for service connection for an acquired psychiatric disorder is granted. Entitlement to service connection for prostate cancer is denied. Entitlement to service connection for kidney disability is denied. Entitlement to service connection for seizure disorder is denied. Entitlement to a 30 percent but no higher rating for concussion with headaches from March 16, 2009 to April 23, 2015 is granted. Entitlement to a rating in excess of 30 percent for concussion with headaches from April 23, 2015 to January 17, 2018 is denied. Entitlement to a 40 percent but no higher rating for lumbar spine disability from September 14, 2006 to June 17, 2008 is granted. Entitlement to a rating in excess of 40 percent for lumbar spine disability from June 17, 2008 to January 17, 2018 is denied. REMANDED The petition to reopen the claim for service connection for heart disease is remanded. Entitlement to service connection for a bilateral knee disability is remanded. Entitlement to service connection for bilateral hearing loss is remanded. Entitlement to service connection for tinnitus is remanded. Entitlement to service connection for heart disease is remanded. Entitlement to service connection for acquired psychiatric disorder, to include depression and posttraumatic stress disorder (PTSD), is remanded. Entitlement to service connection for hypertension is remanded. Entitlement to service connection for diabetes is remanded. Entitlement to service connection for residuals of a stroke secondary to concussion with headaches is remanded. Entitlement to a total disability rating based on individual unemployability due to service-connected disability (TDIU) is remanded. Entitlement to special monthly compensation (SMC) based on the need for aid and attendance of another person is remanded. Entitlement to a certificate of eligibility for specially adapted housing is remanded. Entitlement to a certificate of eligibility for a special home adaptation grant is remanded. FINDINGS OF FACT 1. In an unappealed November 1991 rating decision, the RO denied service connection for nervous disorder. 2. Evidence received since the November 1991 decision related to an unestablished fact necessary to substantiate the claim and raises a reasonable possibility of substantiating a claim. 3. Prostate cancer is not shown to have become manifest in service or for many years thereafter and is not shown to be related to service. 4. Kidney disability was not shown in service or for many years thereafter and is not shown to be related to service. 5. The Veteran’s seizure disorder is not shown to have become manifest during service or for many years thereafter and is not shown to be related to service or to service-connected concussion with headaches. 6. For the entire period up until January 17, 2018, the Veteran’s headaches have been manifested by characteristic prostrating attacks occurring on an average of once a month over several months; very frequent completely prostrating and prolonged attacks productive of severe economic inadaptability have not been shown. 7. For the entire appeal period up until January 17, 2018, the Veteran’s lumbar spine disability has been manifested by limitation of flexion to 30 degrees or less; ankylosis and incapacitating episodes with physician prescribed bed rest have not been shown. CONCLUSIONS OF LAW 1. The November 1991 rating decision is final. 38 U.S.C. § 7105; 38 C.F.R. §§ 3.156, 20.200, 20.201, 20.302, 20.1103. 2. As new and material evidence has been received, the criteria for reopening of the claim for service connection for an acquired psychiatric disorder, previously claimed as nervous condition, have been met. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. 3. The criteria for entitlement to service connection for prostate cancer have not been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.303, 3.307, 3.309. 4. The criteria for entitlement to service connection for seizure disorder have not been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. § 3.303. 5. The criteria for entitlement to service connection for kidney disability have not been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.303, 3.307, 3.309. 6. From March 16, 2009 to April 23, 2015 the criteria for a 30 percent but no higher rating for headaches have been met. 38 U.S.C. § 1155; 38 C.F.R. § 4.124a, Diagnostic Code (Code) 8100. 7. From April 23, 2015 to January 17, 2018, the criteria for a rating in excess of 30 percent for headaches have not been met. 38 U.S.C. § 1155; 38 C.F.R. § 4.124a, Code 8100. 8. From September 14, 2006 to June 17, 2008, the criteria for a 40 percent but no higher rating for lumbar spine disability have been met. 38 U.S.C. § 1155; 38 C.F.R. § 4.171a, Code 5237. 9. From June 17, 2008 to January 17, 2018, the criteria for a rating in excess of 40 percent for lumbar spine disability have not been met. 38 U.S.C. § 1155; 38 C.F.R. § 4.171a, Code 5237. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from July 1973 to October 1990. This matter is on appeal before the Board of Veterans Appeals (Board) from April 2008, July 2009, March 2014, May 2015 and February 2017 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO). Many of the issues on appeal were remanded by the Board for further development in November 2015. All the issues on appeal were subsequently readjudicated by a January 2018 supplemental statement of the case (SSOC). There was additional evidence added to the record after the January 2018 issuance of the supplemental statement of the case and March 2018 certification of the issues on appeal to the Board without an accompanying waiver. This evidence includes VA treatment records dated after January 17, 2018. Regarding the claims for service connection for kidney disability, prostate disability and seizure disorder, this additional evidence, which includes VA treatment records documenting that the Veteran’s medical problems continue to include kidney/renal/prostate cancer and seizure disorder is cumulative, and therefore does not trigger the requirement for issuance of another SSOC. See 38 C.F.R. § 19.37(a) and 38 C.F.R. § 20.1304(c). Also, regarding any non-VA records or other evidence submitted in relation to these disabilities, the Veteran is presumed to have waived AOJ consideration of this evidence as his VA Form 9 was filed in September 2017. See 38 U.S.C. § 7105(e). Regarding the claims for increased ratings for low back disability and headaches, the evidence includes VA treatment records, which are pertinent to these claims and to require the issuance of an updated supplemental statement of the case. Because the Board can grant an increase in compensation for both disabilities for a period prior to January 17, 2018, the date of the most recent VA records that were last reviewed by the RO, it will do so in this decision. Readjudication of these claims for increase from January 17, 2018 will be addressed in the remand. 1. Whether new and material evidence has been received to reopen a claim for service connection for an acquired psychiatric disorder. Regarding the petition to reopen the claim for service connection for an acquired psychiatric disorder (claimed as depression), service connection for nervous condition was initially denied in a November 1991 rating decision. In that decision, the RO found that a nervous condition was not shown to have become manifest during service and by implication that a nexus between any current nervous condition and service was not shown. The Veteran did not appeal this decision and it became final. The Veteran filed a claim to reopen, which was denied by March 2014 rating decision, which simply found that new and material evidence had not been received to reopen the previously denied claim. An appeal of this latter decision was subsequently perfected. At a May 2013 VA psychological evaluation to determine whether the Veteran had PTSD, the psychologist diagnosed the Veteran with depression NOS. The examiner also opined that it was as likely as not that the Veteran’s depression was a result, at least in part, of his reported stressors from military service. Thus, the evaluation relates to an unestablished fact necessary to substantiate the claim (i.e. a nexus between current depression and service) and raises a reasonable possibility of substantiating the claim. Accordingly, the evidence is new and material and the claim for service connection for an acquired psychiatric disorder may be reopened. 38 C.F.R. § 3.156; Shade v. Shinseki, 24 Vet. App. 110 (2010). The Board notes that as this claim is being reopened and as the Veteran has a pending claim for service connection for PTSD, these claims have been consolidated into a claim for service connection for an acquired psychiatric disorder, to include depression and PTSD. Service Connection Service connection may be established for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. § 1110, 1131; 38 C.F.R. § 3.303. Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability was incurred in service. 38 C.F.R. § 3.303(d). To establish service connection for a claimed disorder, there must be: (1) medical evidence of a current disability; (2) medical, or in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the current disability. Hickson v. West, 12 Vet. App. 247, 253 (1999). A disability which is proximately due to or the result of a service-connected disease or injury shall be service connected. 38 C.F.R. § 3.310(a). A claimant is also entitled to service connection on a secondary basis when it is shown that a service-connected disability aggravates a nonservice- connected disability. Allen v. Brown, 7 Vet. App. 439 (1995). Certain listed, chronic disabilities, including prostate cancer and kidney cancer, are presumed to have been incurred in service if they become manifest to a compensable degree within one year of discharge from service. 38 U.S.C. §§ 1112, 1113; 38 C.F.R. §§ 3.307, 3.309. If a veteran was exposed to an herbicide agent (to include Agent Orange) during active military, naval or air service and has contracted an enumerated disease (to include diabetes, prostate cancer and ischemic heart disease) to a degree of 10 percent or more at any time after service, the veteran is entitled to service connection even though there is no record of such disease during service. 38 C.F.R. §§ 3.307, 3.309(e). Veterans who, during active service, served in the Republic of Vietnam during the period beginning on January 9, 1962, and ending on May 7, 1975, shall be presumed to have been exposed to an herbicide agent, unless there is affirmative evidence of non-exposure. 38 U.S.C. § 1116; 38 C.F.R. § 3.307. The standard of proof to be applied in decisions on claims for veterans’ benefits is set forth in 38 U.S.C. § 5107 (2012). A claimant is entitled to the benefit of the doubt when there is an approximate balance of positive and negative evidence. See also 38 C.F.R. § 3.102. When a claimant seeks benefits and the evidence is in relative equipoise, the claimant prevails. See Gilbert v. Derwinski, 1 Vet. App. 49 (1990). The preponderance of the evidence must be against the claim for benefits to be denied. See Alemany v. Brown, 9 Vet. App. 518 (1996). 2. Service connection for prostate cancer. The evidence shows that the Veteran has been diagnosed with prostate cancer with an initial diagnosis in 2014. He alleged that this disease was caused by his exposure to herbicides during service. In a January 2017 statement, the Veteran reported two instances of herbicide exposure during service: one instance due to service in Vietnam from approximately 1970 to 1971 and one instance occurring while he was stationed in Germany in 1975, serving as a Nuclear, Biological and Chemical (N.C.O.) Specialist. He has reported that during this latter duty that he calibrated barrels of different colors, which contained chemicals. Notably, the evidence does not show that the Veteran was on active duty during the period from 1970 to 1971. In this regard, the service personnel records indicate that his active duty military service began in July 1973. Also, the Veteran’s own reporting supports this finding. For example, in a February 1984 claim for VA education benefits, the Veteran indicated that the date he entered active duty was July 17, 1973. Similarly, in an early February 1991 claim for VA compensation benefits, the Veteran reported that his period of active duty service began in July 1973 and concluded in October 1990. Additionally, at the May 2013 VA psychological evaluation, he specifically reported a stressor event of a witnessing a friend die during boot camp in 1973, a report that also tends to indicate that his active duty service began in that year and not earlier, as a serviceman’s boot camp normally precedes/begins the commencement of active duty. Given that the Veteran’s report of the earlier Vietnam service is inconsistent with his reporting of active duty beginning in 1973 and given that the service personnel records are consistent with active duty beginning in 1973, the Board does not find credible the Veteran’s report of having had earlier active duty, which involved Vietnam service. Moreover, there is no indication from the personnel records and no specific allegation from the Veteran that he served in Vietnam in 1973 or thereafter. Accordingly, service in Vietnam is not established and the Veteran is not found to have been exposed to herbicides on a presumptive basis based on such service. Regarding the reported exposure in Germany, the Department of Defense (DOD) has provided a list of dates and locations of herbicide tests and storage outside of Vietnam, which may be found on the VA Public Health website. https://www.publichealth.va.gov/exposures/agentorange/locations/tests-storage/index.asp. Notably, this list does not show any use or storage of herbicides in Germany. Consequently, given that the Veteran has not provided any evidence which would tend to corroborate exposure to herbicides during duty in Germany in 1975 and given that DOD is deemed to have a significant amount of information concerning where and when herbicides were used and stored, the Board is also not able to credit this report of herbicide exposure. In sum, the evidence does not establish that the Veteran was exposed to herbicides during military service and thus, the Board does not have a basis for awarding service connection for prostate cancer based on such exposure. Moreover, prostate cancer was not shown in service or for many years thereafter and there is no probative evidence, which otherwise suggests that the current prostate cancer is related to military service. Further, to the extent the Veteran is asserting that prostate cancer is directly related to service, as a layperson without any demonstrated expertise concerning the etiology of the disease, this assertion may not be afforded any probative value. See e.g. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Consequently, service connection for prostate cancer on a direct basis or based on the chronic disease presumption is also not warranted. 38 C.F.R. §§ 3.303, 3.307, 3.309. Accordingly, the preponderance of the evidence is against this claim and it must be denied. The Board also notes that a VA examination was not necessary in this case given the absence of a prostate cancer related event, injury or disease in service or any credible evidence, which suggests a nexus between current prostate cancer and service. 38 C.F.R. § 3.159(c)(4). 3. Service connection for a kidney disability. In May 2016, the Veteran filed a claim for right kidney disability. Private medical records show that that the Veteran was diagnosed with kidney cancer (i.e. renal cell carcinoma) via a biopsy in July 2013. As a result, a subsequent cryoablation procedure was performed. Also, a June 2016 private ophthalmological progress note indicates that the Veteran had a medical history of kidney stones. However, the service treatment records do not show any indication of kidney problems and there is no subsequent evidence of kidney pathology until many years after service. Moreover, there is no medical evidence of record even suggesting that there might be a relationship between current kidney problems and the Veteran’s military service. The Veteran appears to assert that his kidney disability is related to service. However, as a layperson without any demonstrated expertise concerning the etiology of kidney disability, this assertion may not be afforded any probative value. See e.g. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Accordingly, as kidney disability, including any kidney cancer, was not shown during service or for many years thereafter, the Board does not have a basis for awarding service connection for this disability on a direct or presumptive basis. The preponderance of the evidence is against this claim and it must be denied. The Board also notes that a VA examination was not necessary in this case given the absence of a kidney pathology shown in service or any credible evidence, which suggests a nexus between current kidney disability and service. 38 C.F.R. § 3.159(c)(4). 4. Service connection for seizure disorder, to include as secondary to concussion with headaches. The Veteran has asserted that his current seizure disorder is related to his service connected concussion with headaches. Notably, service connection for concussion with headaches was granted by a November 1991 rating decision. The decision was based on the Veteran having suffered head injuries in service and having headaches as a residual disability. At a May 2016 VA neurological examination, it was noted that the Veteran had been diagnosed with tonic-clonic seizures or grand mal seizures in February 2016. It was also noted that he had begun having syncopal episodes in 2004 that had recurred infrequently over many years. Additionally, his medical history showed that he had suffered a fall with head injury three months prior to February 2016. The examiner commented that the Veteran had generalized epilepsy, onset in February 2016. He also noted that there was no evidence of seizures in service. Additionally, the traumatic brain injury (i.e. concussion) during service that reportedly caused the Veteran’s headaches was many years prior to his onset of seizures, making this event an unlikely cause of the seizures. Moreover, the Veteran’s headaches (i.e. migraines) were not medically recognized as a cause of generalized epilepsy. In a subsequent October 2016 seizure disorders disability questionnaire, an examiner noted that the Veteran had a history of concussion during service in the late 1970s involving loss of consciousness, along with another head injury during service. The examiner also noted the Veteran’s recent manifestation of seizure disorder was first diagnosed in February 2016. The examiner diagnosed tonic-clonic or grand mal (generalized convulsive seizures). The examiner opined that the Veteran’s current seizure disorder was less likely than not proximately due to or a result of his service-connected concussion with headaches. The examiner commented that seizures can have a large list of causes, including closed head injury and traumatic brain injury. However, given the timeline involved, including the Veteran’s fall three months prior to his diagnosis of seizure disorder, it was less likely than not that the seizure disorder was due to the service-connected concussion with headaches. Thus, the above summarized evidence shows that the Veteran’s seizure disorder was not shown in service or for many years thereafter and the medical evidence of record weighs against a finding that this disorder is otherwise related to service or to the service-connected concussion with headaches. Moreover, there is no competent evidence, which even suggests that the seizure disorder has been aggravated by the service-connected headaches and thus an opinion concerning such potential aggravation is not required. 38 C.F.R. § 3.159(c)(4). Notably, the Veteran appears to assert that the seizures are related to service and/or his service-connected headaches. However, as a layperson without any demonstrated expertise concerning the etiology of seizure disorder, this assertion may not be afforded any probative value. See e.g. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Accordingly, the preponderance of the evidence is against this claim and it must be denied. Increased Ratings 5. Entitlement to a rating in excess of 10 percent for concussion with headaches prior to April 23, 2015 and to a rating in excess of 30 percent from April 23, 2015 to January 17, 2018. Service connection for concussion with headaches was granted by a November 1991 rating decision. A 10 percent rating was assigned effective October 2, 1990. In a March 2009 claim, the Veteran sought an increased rating. The Veteran’s concussion with headaches is rated under Diagnostic Code 8100 for migraine headaches. A 30 percent rating is warranted for migraines with characteristic prostrating attacks occurring on an average once a month over the last several months. A 50 percent rating is warranted for very frequent completely prostrating and prolonged attacks productive of severe economic inadaptability. 38 C.F.R. § 4.124a. The rating criteria do not define “prostrating” as used in DC 8100. By way of reference, DORLAND’S ILLUSTRATED MEDICAL DICTIONARY 1530 (32nd Ed. 2012), defines “prostration” as “extreme exhaustion or powerlessness.” Similarly, the rating criteria also do not define “severe economic inadaptability.” “Productive of economic inadaptability” can be read as having either the meaning of “producing” or “capable of producing” severe economic inadaptability. See Pierce v. Principi, 18 Vet. App. 440. At an April 2009 VA examination, the Veteran reported headaches every day for which he took Lortab. In the past 6 months he had not been working so he had not missed any work due to the headaches. The Veteran’s wife also had a headache calendar, which showed four headaches for the month of March. It was also noted that the Veteran was in bed additional days in March for other problems. The diagnostic assessment was chronic daily headaches with frequent prostrating attacks by his history. The examiner noted that the frequency of prostrating attacks shown by VA clinic notes and reported by the Veteran’s wife indicated perhaps a few headaches a month of varying severity. At a subsequent June 2012 VA traumatic brain injury examination, it was noted that concerning evaluation of the nature and severity of the Veteran’s headaches, the examiner deferred to the findings of the April 2009 VA examination. At a July 2012 VA examination, the Veteran reported headaches every day. Again, he had not been working in the past 6 months so he had not missed any time due to headaches. The examiner indicated that the Veteran had characteristic prostrating attacks of migraine headache pain occurring more frequently than once per month. He also indicated that the Veteran did not have very frequent prostrating and prolonged attacks of migraine headache pain. The examiner commented that the Veteran had reported migraine recurring daily with a couple of prostrating attacks monthly by his history but that this was not substantiated in the medical record. At a December 2013 VA examination, the Veteran reported headaches daily lasting anywhere from 15 to 20 minutes to several hours. Symptoms sometimes included photosensitivity, watering eyes and blurred vision. To deal with the headaches he took over the counter medication and would lie down in a quiet, dark place and try to relax. The Veteran was noted to have characteristic prostrating attacks of migraine headache pain more frequently than once per month. The examiner noted that the Veteran had chronic daily post-traumatic headaches, which were frequently prostrating by history. At an April 2015 VA examination, the Veteran reported one to two headaches per month for which he was taking hydrocodone and gabapentin. He had not missed any work over the last 6 months due to headaches. He also estimated that he had had approximately 5 incapacitating episodes over this period. The examiner noted that the Veteran had characteristic prostrating attacks of migraine headaches approximately once every month. The examiner also found that the Veteran did not have very prostrating and prolonged attacks of migraines productive of severe economic adaptability. At an August 2016 VA examination, the Veteran reported daily headaches. He was taking hydrocodone and gabapentin for them. He indicated that in the past 6 months he had not worked so did not miss any time due to the headaches. He also reported that over that time he had had approximately 50 to 60 incapacitating headaches. The examiner found that the Veteran had chronic daily migraine headaches with multiple prostrating attacks per week according to the Veteran’s history but that this was not corroborated by the medical record. VA and private medical records over the course of the appeal period show that the Veteran had ongoing problems with headaches. These records do not tend to indicate that the Veteran suffered very frequent completely prostrating and prolonged attacks. The above summarized evidence indicates that the Veteran has had migraines with characteristic prostrating attacks occurring at least once a month over the course of the entire appeal period. Accordingly, a 30 percent rating is warranted for this entire period effective March 16, 2009, the date his claim for increase for concussion with headaches was received. A higher 50 percent rating is not warranted as the Veteran is not shown to have very frequent completely prostrating and prolonged attacks productive of severe economic inadaptability. In this regard, none of the VA examiners of record found that the attacks were completely prostrating on a very frequent basis or that they were productive of severe economic inadaptability. Additionally, neither the Veteran nor his representative specifically argued that the headaches are actually productive of severe economic inadaptability. The Veteran has appeared to report very frequent incapacitating episodes due to headaches. However, this report is not corroborated by VA or private treatment records. Instead these records tend to indicate that the Veteran has many other severe disabilities, including heart disease, respiratory disease, status post stroke and diabetes and that these disabilities can result in frequent incapacitation. However, in and of themselves, the headaches have not been shown to be frequently incapacitating. These records are also consistent with the reporting of the Veteran’s wife who noted at the April 2009 VA examination that the Veteran had approximately four headaches over the past month and has not otherwise reported very frequent incapacitating episodes due to headaches. In sum, the weight of the evidence is against the presence of completely prostrating and prolonged attacks productive of severe economic inadaptability at any time prior to January 17, 2018. Accordingly, a higher 50 percent rating is not warranted at any time during this period. 6. Entitlement to a rating in excess of 10 percent for lumbar spine disability prior to July 17, 2008 and to a rating in excess from July 17, 2008 to January 17, 2018. Service connection for lumbar spine disability was granted by the November 1991 rating decision. A 10 percent rating was assigned effective October 2, 1990. In a September 2006 claim, the Veteran sought an increased rating. The ratings for the Veteran’s lumbar spine disability have been assigned under Code 5237. The General Rating Formula for Diseases and Injuries of the Spine (General Rating Formula) encompasses such disabling symptoms as pain, ankylosis, limitation of motion, muscle spasms, and tenderness. See 38 C.F.R. § 4.71a, Codes 5235-5243. The General Rating Formula provides for a 20 percent rating where there is forward flexion of the thoracolumbar spine greater than 30 degrees, but not greater than 60 degrees; the combined range of motion (ROM) of the thoracolumbar spine is not greater than 120 degrees; or there is muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour, such as scoliosis, reversed lordosis, or abnormal kyphosis. A 40 percent rating is warranted where there is forward flexion of the thoracolumbar spine is 30 degrees or less, or favorable ankylosis of the entire thoracolumbar spine. A 50 percent rating is available for unfavorable ankylosis of the entire thoracolumbar spine. A 100 percent rating is available for unfavorable ankylosis of the entire 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 ROM refers to the sum of the range of forward flexion, extension, left and right lateral flexion, and left and right rotation. The normal combined ROM of the thoracolumbar spine is 240 degrees. The normal ROMs for each component of spinal motion provided in this note are the maximum that can be used for calculation of the combined ROM. 38 C.F.R. § 4.71a, Codes 5235-5243, Note (2); see also Plate V. Intervertebral disc syndrome (IVDS) (preoperatively or postoperatively) may be evaluated either under the General Rating Formula for Diseases and Injuries of the Spine or under the Formula for Rating IVDS Based on Incapacitating Episodes, whichever method results in the higher evaluation when all disabilities are combined under 38 C.F.R. § 4.25. 38 C.F.R. § 4.71a, DC 5243. A 20 percent rating requires incapacitating episodes having a total duration of at least two weeks but less than four weeks during the past 12 months. A 40 percent rating requires incapacitating episodes having a total duration of at least four weeks but less than six weeks during the past 12 months, and a 60 percent rating requires incapacitating episodes having a total duration of at least six weeks during the past 12 months. An “incapacitating episode” is defined as a period of acute signs and symptoms due to IVDS that requires bed rest prescribed by a physician and treatment by a physician. 38 C.F.R. § 4.71a, DC 5243, Note (1). At an October 2006 VA examination, the Veteran reported constant daily back pain. He indicated that he was only able to walk about 100 feet without symptoms of worsening low back pain. He indicated that he experienced severe pain a couple of times per month where he had to rest in a reclining way either in a bed or chair for a couple of days and was not able to do anything at that point. However, he did not describe any incapacitating episodes for which bedrest was prescribed by a physician. Physical examination showed that the Veteran could only bend forward on flexion to 4 degrees at which point he became dizzy and felt like he was going to pass out. It was noted that the Veteran’s stroke, which had affected his left side impaired the ability to evaluate his low back range of motion. Lumbar extension and right lateral flexion were also measured at 4 degrees. Left lateral flexion was 3 degrees, right lumbar rotation was 2 degrees and left lumbar rotation was 3 degrees with all movements limited by dizziness or discomfort. The diagnosis was degenerative disc disease at L5-S1 and degenerative arthritis, mild. At a June 2008 VA examination, the Veteran reported that he had back pain all the time, which was worse with movement. He noted that he had given up prolonged walking and driving a car due to lumbar pain. He used a back brace and took Lortab twice a day for pain. Physical examination showed flexion to 24 degrees, extension to 10 degrees, left and right lateral flexion to 6 degrees and left and right rotation to 4 degrees. There were objective signs of pain during all movements and worsening at the end of movement. The Veteran indicated that he was unable to do exercise and therefore repetitive motion testing was not completed. An MRI showed degenerative disc and joint disease resulting in foraminal stenosis at multiple levels. The examiner diagnosed the Veteran with lumbar strain and lumbar disc disease, moderately severe with spinal stenosis. The Veteran was afforded subsequent VA examinations in May 2012, December 2013, April 2015 and August 2016, which did not show impairment any more severe than that noted in the earlier VA examinations. Like the earlier examinations, these assessments did not show ankylosis or incapacitating episodes for which bedrest was prescribed by a physician. Similarly, VA and private medical treatment records show ongoing problems with low back pain but not do not show ankylosis or incapacitating episodes with bedrest prescribed by a physician. The above summarized evidence reasonably establishes that the Veteran’s forward flexion of the lumbar spine was limited to 30 degrees or less from the date of his claim for increase in September 2006. Accordingly, a 40 percent rating is warranted effective September 14, 2006, the date the claim was received. A rating in excess of 40 percent is not warranted at any point up until January 17, 2018 as neither ankylosis, incapacitating episodes having a total duration of at least six weeks during the past 12 months or other impairment compatible with these extremely severe levels of disability has been shown. REASONS FOR REMAND Whether new and material evidence has been received to reopen a claim of service connection for heart disease is remanded. The claims for entitlement to service connection for a bilateral knee disability, bilateral hearing loss, tinnitus, diabetes, hypertension, residuals of stroke and acquired psychiatric disorder, to include depression and PTSD are remanded. The claims for increased ratings for low back disability and headache disability from January 17, 2018, entitlement to a TDIU, special monthly compensation based on the need for aid and attendance, specially adapted housing and special home adaptation are also remanded. Regarding the claim for acquired psychiatric disability, to include depression and PTSD, as noted during the May 2013 VA psychological evaluation, the psychologist opined that it was as likely as not that the Veteran’s depression was a result of his reported stressors from military service. These reported stressors include witnessing a close friend being killed in a live fire exercise during basic training in 1973; witnessing a number of soldiers killed when they were fired upon from behind by a tank in Germany in 1978; and witnessing two soldiers get electrocuted at Fort Hood in 1982. The Board notes that none of these events are corroborated by the existing documentation of record. However, it may be possible to obtain corroboration of one or more of these events given that they all involve reported deaths occurring in the line of duty. In particular, the service personnel records reasonably indicate that the Veteran would have been in boot camp in July and August 1973. Accordingly, on remand appropriate attempts should be made to corroborate these events. Regarding the claims for service connection for bilateral knee disability, the service treatment records show multiple medical visits for left and right knee injuries during the Veteran’s service. Also, his service personnel records more generally show that he spent approximately 17 years on active duty as an infantryman and a fighting vehicle infantryman. Additionally, a March 2016 bone scan showed mild increased uptake in the knees reflecting degenerative changes. Consequently, as the evidence indicates that the Veteran may have current bilateral knee arthritis; that he experienced injuries of each knee in service and that he spent 17 years in service as an infantryman, a VA examination is warranted to determine the likelihood that any current left or right knee disability is related to his military service. Regarding the claim for service connection for bilateral hearing loss, the Veteran was most recently afforded a VA audiological evaluation in August 2016. The examiner diagnosed sensorineural hearing loss in the right ear and normal hearing in the left ear. The examiner indicated that it was less likely than not that current right ear hearing loss was related to service. However, the examiner did not provide an adequate rationale for this conclusion. Notably, the examiner did discuss the inconsistent findings on pure tone threshold testing of the Veteran over the years. However, the examiner did not explain why she found that the current hearing loss that was diagnosed was less likely than not related to service. Accordingly, on remand, the Veteran should be provided with a new VA examination with accompanying medical nexus opinion. The Board notes that because tinnitus can often be a symptom of hearing loss, the Veteran’s claim for service connection for this disability is inextricably intertwined with the hearing loss claim and must also be remanded. Regarding the claims for diabetes and hypertension, in the November 2015 remand, the Board requested that medical opinions be provided concerning the likelihood that the Veteran’s diabetes and hypertension were directly related to service and/or to a service-connected disability. In an August 2016 opinion, a VA examiner addressed the likelihood that the Veteran’s hypertension was directly related to service. However, the examiner did not address the likelihood that the Veteran’s diabetes was directly related to service. Accordingly, on remand an addendum opinion is required concerning the likely etiology of the diabetes. Also, because the diabetes could potentially have a secondary impact on the hypertension, the claim for service connection for hypertension is inextricably intertwined with the claim for diabetes and must also be remanded. Additionally, as hypertension is a known cause of stroke and can be a contributing factor to heart disease, the claims for service connection for residuals of stroke and heart disease are also inextricably intertwined with the claim for service connection for hypertension and must also be remanded. Regarding the claim for increase for low back disability, in a May 2018 VA telehealth progress note, it was noted that the Veteran had reported that his back was in really bad shape and that he was being referred to a specialist. This notation tends to indicate that the Veteran’s back has worsened since the last VA examination was conducted and appears to indicate he may have received an assessment from a back specialist, which is not currently associated with the claims file. Accordingly, on remand, updated records of evaluation or treatment of low back disability should be obtained and the Veteran should be afforded an updated VA low back examination. Regarding the claim for increase for headaches, VA treatment records pertaining to this disability were received after the issuance of the most recent supplemental statement of the case in January 2018 and are dated up until June 2018. Also, it appears likely that the Veteran has received additional treatment for headaches from June 2018 to the present. Accordingly, on remand, updated records of treatment for headaches should be obtained and the Veteran’s claim for increase for headaches from January 17, 2018 to the present should be readjudicated. Further, given that the above-mentioned claims for service connection must be remanded and that grants of one or more of these claims could have an impact on the claims for entitlement to TDIU, special monthly compensation, specially adapted housing and special home adaptation, these latter claims are also inextricably intertwined with the claims for service connection and must also be remanded. Prior to arranging for the development noted above, the AOJ should obtain updated records of VA treatment and evaluation for the disabilities addressed in this remand. The matters are REMANDED for the following action: 1. Obtain updated records of VA treatment and evaluation for the disabilities addressed in this remand. 2. Make appropriate efforts to obtain any additional private medical records pertaining to the disabilities addressed in this remand, which are appropriately identified by the Veteran. 3. Ask the Veteran to provide any additional information he can recall about the reported deaths of fellow servicemembers he witnessed during service, including witnessing a close friend being killed in a live fire exercise during basic training in 1973, which presumably occurred during the period from July 18, 1973 to mid-September 1973; witnessing a number of soldiers killed when they were fired upon from behind by a tank in Germany in 1978; and witnessing two soldiers get electrocuted at Fort Hood in 1982. Then make all appropriate efforts to attempt to obtain corroborating evidence of these reported events, including by referring the reports to JSRRC. 4. After the development in # 1 and # 2 has been completed, schedule the Veteran for an examination by an appropriate clinician to determine the nature and etiology of any left or right knee disability. The examiner should review the claims file in conjunction with the examination. This review should include a detailed review of the service treatment records, including all documentation of medical evaluation and treatment for right and left knee injuries/problem over the Veteran’s long period of active duty service. The review should also include any pertinent post-service medical evidence, pertaining to knee disability, including the March 2016 VA bone scan, and any other information deemed pertinent. The examiner should then provide an opinion as to whether it is at least as likely as not that any current right and/or left knee disability is related to the Veteran’s 17 years of service as an infantryman and fighting vehicle infantryman. The examiner should explain the rationale for the opinions provided. 5. After the development in # 1 and # 2 has been completed, schedule the Veteran for an examination by an appropriate clinician to determine the nature and etiology of any current bilateral hearing loss and tinnitus. The examiner should review the claims file in conjunction with the examination, including the results of all hearing testing done during service and post-service. For any hearing loss that is diagnosed, the examiner should provide an opinion as to whether it is at least as likely as not (i.e. a 50 percent chance or greater) related to noise exposure during the Veteran’s 17 years of service as an infantryman and mobile infantryman. Similarly, regarding tinnitus, the examiner should provide an opinion whether it is at least as likely as not (i.e. a 50 percent chance or greater) that this disability is related to noise exposure during the Veteran’s 17 years of service as an infantryman and mobile infantryman. The examiner should also indicate whether the tinnitus is a symptom of any current bilateral hearing loss. The examiner should provide a rationale for all opinions provided. 6. Obtain an addendum opinion from an appropriate clinician concerning the likely etiology of the Veteran’s diabetes. The clinician should review the claims file in conjunction with the provision of the opinion. The clinician should then provide an opinion as to whether it is at least as likely as not that the Veteran’s current diabetes is directly related to his military service. The clinician should explain the rationale for the opinion provided. If and only if the clinician determines that it is at least as likely as not that the Veteran’s diabetes is related to his military service, the clinician should provide additional opinions in answer to the following questions: A) Is it at least as likely as not that the Veteran’s diabetes caused his hypertension? B) Is it at least as likely as not that the Veteran’s diabetes has aggravated his hypertension? C) If the examiner finds that the Veteran’s hypertension has been permanently aggravated/worsened by his diabetes, to the extent feasible, the degree of worsening should be identified. The examiner should explain the rationale for all opinions provided. 7. Schedule the Veteran for an examination by an appropriate clinician to determine the current severity of his service-connected low back disability. The examiner should provide a full description of the disability and report all signs and symptoms necessary for evaluating the Veteran’s disability under the rating criteria. The examiner 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 examiner should identify any symptoms and functional impairments due to the low back disability alone and discuss the effect on any activities of daily living. The examiner should also comment on how the service-connected low back disability would be expected to impact the Veteran’s ability to work. 8. Readjudicate the claims. If any remain denied, issue an appropriate supplemental statement of the case and provide the Veteran and his representative the opportunity to respond. S. HENEKS Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Dan Brook, Counsel