Citation Nr: 18147291 Decision Date: 11/02/18 Archive Date: 11/02/18 DOCKET NO. 15-45 924 DATE: November 2, 2018 ORDER The claim for service connection for a right shoulder disorder is reopened. Service connection for bilateral hearing loss is denied. Service connection for tinnitus is denied. Service connection for fibromyalgia is denied. Entitlement to an effective date prior to August 29, 2013, for the grant of service connection for depressive disorder with pain disorder is denied. A disability rating higher than 50 percent prior to May 27, 2016, and higher than 70 percent thereafter, for depressive disorder with pain disorder is denied. Entitlement to an effective date prior to July 6, 2012, for the grant of service connection for left lower extremity sciatica is denied. Entitlement to an effective date prior to July 6, 2012, for the grant of service connection for right lower extremity external cutaneous nerve radiculopathy is denied. An initial disability rating higher than 10 percent for left lower extremity sciatica is denied. An initial, compensable disability rating for right lower extremity external cutaneous nerve radiculopathy is denied. An initial disability rating higher than 10 percent for right lower extremity femoral nerve radiculopathy is denied. An initial disability rating higher than 10 percent for left lower extremity femoral nerve radiculopathy is denied. There was clear and unmistakable error (CUE) in the January 2015 rating decision assigning a 20 percent disability rating for dorsal scoliosis (back condition). REMANDED Service connection for a right shoulder disorder is remanded. Service connection for a cervical spine disorder, to include as secondary to service-connected lumbar spine disability, is remanded. An increased rating for linear scars of the chest and abdomen is remanded. FINDINGS OF FACT 1. The March 1996 rating decision that denied service connection for a right shoulder disorder was final. 2. The evidence received since the March 1996 rating decision is not cumulative or redundant, and raises a reasonable possibility of substantiating the claim denied. 3. The preponderance of the evidence of record is against finding that the Veteran has hearing loss for VA purposes. 4. The preponderance of the evidence of record is against finding that the Veteran has tinnitus due to service. 5. The preponderance of the evidence of record is against finding that the Veteran has fibromyalgia due to service. 6. In a July 2014 rating decision, the RO granted service connection for a psychiatric disorder, and established an effective date of August 29, 2013. 7. Prior to May 27, 2016, the Veteran depressive disorder was not manifested by deficiencies in most areas or total occupational and social impairment. 8. From May 27, 2016, the Veteran’s depressive disorder was not manifested by total occupational and social impairment. 9. In a December 2015 rating decision, the RO granted service connection for left lower extremity sciatica, and established an effective date of July 6, 2012. 10. In a December 2015 rating decision, the RO granted service connection for right lower extremity external cutaneous nerve radiculopathy, and established an effective date of July 6, 2012. 11. The Veteran’s left lower extremity sciatica was manifested by no more than mild, incomplete paralysis. 12. The Veteran’s right lower extremity external cutaneous nerve radiculopathy was manifested by no more than mild to moderate incomplete paralysis. 13. The Veteran’s right lower extremity femoral nerve radiculopathy was manifested by no more than mild, incomplete paralysis. 14. The Veteran’s right lower extremity femoral nerve radiculopathy was manifested by no more than mild, incomplete paralysis. 15. In the January 2015 rating decision, the RO incorrectly applied the applicable statutory and regulatory provisions existing at that time when it granted a 20 percent disability rating for the dorsal spine. CONCLUSIONS OF LAW 1. New and material evidence has been received to reopen the claim for service for a right shoulder disorder. 38 U.S.C. §§ 5108, 7105 (2012); 38 C.F.R. § 3.156 (2017). 2. The criteria for service connection for hearing loss are not met. 38 U.S.C. §§ 1110, 1131, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.385 (2017). 3. The criteria for service connection for tinnitus are not met. 38 U.S.C. §§ 1110, 1131, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.303 (2017). 4. The criteria for service connection for fibromyalgia are not met. 38 U.S.C. §§ 1110, 1131, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, (2017). 5. The criteria for an effective date prior to August 29, 2013, for the grant of service connection for depressive disorder have not been met. 38 U.S.C. § 5110 (2012); 38 C.F.R. §§ 3.105, 3.151, 3.155, 3.400 (2017). 6. The criteria for a rating higher than 50 percent prior to May 27, 2016, and higher than 70 percent thereafter, for depressive disorder have not been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.3, 4.7, 4.130, Diagnostic Code 9434 (2017). 7. The criteria for an effective date prior to July 6, 2012, for the grant of service connection for left lower extremity sciatica have not been met. 38 U.S.C. § 5110 (2012); 38 C.F.R. §§ 3.105, 3.151, 3.155, 3.400 (2017). 8. The criteria for an effective date prior to July 6, 2012, for the grant of service connection for right lower extremity external cutaneous nerve radiculopathy have not been met. 38 U.S.C. § 5110 (2012); 38 C.F.R. §§ 3.105, 3.151, 3.155, 3.400 (2017). 9. The criteria for a rating higher than 10 percent for left lower extremity sciatica have not been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §4.124a, Diagnostic Code 8520 (2017). 10. The criteria for a compensable rating for right lower extremity external cutaneous nerve radiculopathy have not been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §4.124a, Diagnostic Code 8529 (2017). 11. The criteria for a rating higher than 10 percent for right lower extremity femoral nerve radiculopathy have not been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §4.124a, Diagnostic Code 8526 (2017). 12. The criteria for a rating higher than 10 percent for left lower extremity femoral nerve radiculopathy have not been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §4.124a, Diagnostic Code 8526 (2017). 13. There was clear and unmistakable error (CUE) in assigning a 20 percent disability rating for dorsal scoliosis (back condition). 38 U.S.C. § 7105(c) (2012); 38 C.F.R. §§ 3.104, 3.105, 20.302(a), 20.1103 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from June 1992 to November 1994. In an April 2018 rating decision, the RO granted earlier effective dates for the grant of service connection for right and left femoral nerve radiculopathy. This was a full grant of the Veteran’s earlier effect date claims for each femoral nerve, as clearly stated in the rating decision. As such, these earlier effect date claims are not before the Board. The Board notes that there are two claims regarding increased rating for abdominal scars on appeal. Only the linear scar, rated as noncompensable, form the September 2013 rating decision is before the Board. The other scars adjudicated in the December 2015 rating decision are still under action by the RO. New and Material Evidence Claim The RO denied service connection for a right shoulder condition in a March 1996 rating decision. This decision became final in March 1997. The evidence submitted after March 1997, including private and VA treatment records and an October 2013 private opinion, relates to unestablished facts necessary to substantiate this service connection claim. Therefore, the Board finds that the right shoulder disorder claim should be reopened. Service Connection 1. Service connection for bilateral hearing loss and tinnitus. The Veteran contends that he developed bilateral hearing loss due to service. He further contends that he has had tinnitus since service. The question for the Board is whether the Veteran has a current disability that began during service or is at least as likely as not related to an in-service injury, event, or disease. Under VA standards, a Veteran has a ratable hearing loss “disability” when the threshold level in any of the frequencies 500, 1000, 2000, 3000 and 4000 Hertz is 40 decibels or greater; or the thresholds for at least three of these frequencies are 26 decibels or greater; or speech recognition scores are less than 94 percent. 38 C.F.R. § 3.385. The Court has explained that the threshold for normal hearing is from 0 to 20 decibels and that higher threshold levels indicate some degree of hearing loss. Hensley v. Brown, 5 Vet. App. 155, 157 (1993). The Court further opined that 38 C.F.R. § 3.385 operates only to establish when hearing loss can be service connected. Id. at 159. Service treatment records generally do not document that the Veteran’s hearing loss ever reached the “disability” level under 38 C.F.R. § 3.385. The May 2014 VA examiner found that the audiometric testing findings did not reach the level of a “disability” for VA purposes, 38 C.F.R. § 3.385. She further opined that tinnitus was less likely than not due to service, as his records were negative as to complaints and there was no evidence of acoustic damage. The Court has found that although 38 C.F.R. § 3.385 speaks in terms of “service connection,” it operates to establish when a measured hearing loss is (or, more accurately, is not) a “disability” for which compensation may be paid, provided that the requirements for service connection are otherwise met. Hensley, 5 Vet. App. at 159. The evidence of record supportive of the Veteran’s claim for hearing loss include his lay statements as to his hearing loss beginning to service and a June 2018 correspondence from Dr. R. Brandsted. In a roundabout way, she indicated that the Veteran had right ear high frequency sensorineural hearing loss due to service. The Veteran has also submitted an article about delayed onset hearing loss and tinnitus. However, neither Dr. Brandsted, nor the hearing loss article, provided any indication that the Veteran’s hearing loss would meet the level of a disability under 38 C.F.R. § 3.385. As the Veteran’s hearing does not meet 38 C.F.R. § 3.385, the Veteran does not currently have a hearing loss disability for which compensation can be paid. Similarly, the supportive evidence as to the claim for service connection for tinnitus is the Veteran’s lay statements of his having tinnitus since service, an article on delayed onset of tinnitus, and the June 2018 correspondence from Dr. Brandsted. During his May 2014 VA examination, the Veteran reported that he had constant, centralized tinnitus that started during the training exercise where he received a gunshot wound. He reported “sinuses were all messed up and he could hear himself talking and the ringing was bad.” Dr. Brandsted found that the Veteran’s “tinnitus is the result of loud noise exposure to gun fire. He reports…gunfire, he could not hear for days. He reports having had tinnitus at that time, which has persisted. Therefore, I believe that his tinnitus is related to his noise exposure in service due to right ear high frequency SNHL with a 4 khz notch, which is most commonly caused by loud noise exposure, and also caused high pitched tinnitus.” Dr. Brandsted’s findings as to tinnitus appear to be based on the Veteran’s report of tinnitus that has persisted since his in-service injury in service. The Board finds such report of chronicity since service to Dr. Brandsted, as well as, the Veteran’s other lay statements to that effect are not credible. Due to the unfortunate nature of the gunshot wound injury that led to his separation from service, the Veteran underwent multiple evaluations as to his physical condition prior to separation. At no time was either bilateral hearing loss or tinnitus reported or indicated, including during his months of treatment after his gunshot wound, on his physical evaluation board, medical board, or separation examination. In his May 1994 report of medical history, he specifically denied both hearing loss and ear trouble. Furthermore, such a claim of persistence since service is in direct contrast to a September 2012 private medical record, when he reported to Dr. K. Moore that he woke up to left ear pain and ringing after a bug flew into his ear. Dr. Moore examined the Veteran’s ears and found an abnormality of the left ear membrane and diagnosed him with acute otitis media. She prescribed medication for the left ear and indicated that he would follow up in 1 week if necessary. The Veteran did not follow up treatment, indicating that his acute tinnitus symptoms had abated. Indeed, in a June 2013 visit to Dr. Moore, he again complained of ear pain, but not tinnitus, following his taking of diving classes. Such evidence makes clear that the Veteran has not had constant tinnitus since service, but rather that he had one acute episode of only one ear, decades after service, and that acute episode had resolved with treatment. As the Board has found that the Veteran’s reports of chronicity are not credible, the opinion of Dr. Brandsted that was based on such a report is not probative. The Board further notes that the medical article submitted by the Veteran’s attorney in June 2018 as to delayed onset tinnitus was on animals, not humans, and argued of possible tinnitus with a delay of increased activity of at most 1-2 months following exposure. In contrast, the Veteran is a human with an episode of tinnitus post-service that developed over a decade following his separation from service. Furthermore, as stated above, the Board has found that the Veteran’s reports of tinnitus are not credible. To the extent that the Veteran’s attorney contends, in March 2016, that a new VA examination is warranted due to lapse in time since the VA examination, the duty to assist does not require that a claim be remanded solely because of the passage of time since an otherwise adequate VA examination was conducted. See Palczewski v. Nicholson, 21 Vet. App. 174, 181-83 (2007); VAOPGCPREC 11-95 (1995). As the most probative and credible evidence of record is against the claims, the benefit of the doubt rule does not apply. The Veteran’s claims for service connection for bilateral hearing loss and tinnitus are denied. 2. Service connection for fibromyalgia. The Veteran contends that he currently has fibromyalgia due to service or secondary to his service-connected gunshot wound. The question for the Board is whether the Veteran has a current disability that began during service or is at least as likely as not related to an in-service injury, event, or disease. The Board concludes that the Veteran does not have a current diagnosis of fibromyalgia and as such the evidence of record does not support finding that he has fibromyalgia due to service. 38 U.S.C. §§ 1110, 1131, 5107(b); Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009); Romanowsky v. Shinseki, 26 Vet. App. 289, 294 (2013); McClain v. Nicholson, 21 Vet. App. 319, 321 (2007); 38 C.F.R. § 3.303(a), (d). In an April 2015 VA examination, the examiner noted a prior diagnosis of fibromyalgia and that the Veteran complained of numbness in his right lateral thigh that began after his gunshot wound and related that “[e]very thing in my body is due to this.” The examiner found that the Veteran did not currently have any findings, signs, or symptoms attributable to fibromyalgia. The examiner then specifically found that the claimed condition was not proximately due to or the result of the Veteran’s service-connected disability. He explained that there was no clinical sign or symptom of fibromyalgia. Numbness of thigh was not related to L-1 bullet fragment which was also unrelated to fibromyalgia, which has an unknown etiology. Neurologic exam of right thigh revealed normal motor and sensory function of right leg, with no neuro deficits, and no painful muscle groups. Gunshot wounds was well-healed scar on right lateral chest wall and there were no torso complaints in this area. In a July 2015 DBQ, the Veteran’s private medical provider Dr. J. Dubois indicated that the Veteran had been diagnosed with fibromyalgia 3 years previously and was prescribed Lyrica to treat the condition. Also, in a July 2015 letter, Dr. Dubois reported that the Veteran “has been diagnosed with fibromyalgia. In my opinion, I feel that his service related gunshot wound was most likely contributed to the development of fibromyalgia.” In July 2016, the Veteran underwent another VA examination. The examiner specifically found that the Veteran did not have fibromyalgia after examination of the Veteran, and consideration of his lay statements and the medical evidence of record. The July 2016 VA examiner explained that “[t]here is no evidence- based on clinical criteria- for fibromyalgia in this veteran. His exam and specific testing and history is more suggestive of spinal degenerative arthritis- which is well-documented in his submitted private medical records.” The July 2016 VA examiner further reported review of the conflicting medical evidence and determined that: The “evidence” of this veteran’s private records is mere speculation without neurological testing or rationale, or review of STR’s, and seems to be dictated by the veteran for his benefit. His treating doctor repeatedly reports normal neurological findings, and normal palpatory exams and has no trigger points documented in his notes or evidence of any other typical symptoms compatible with fibromyalgia. He seems to take veteran’s word of pain clinic diagnosis with no documentation of this diagnosis from pain clinic in his records. Both treating physician’s (Moore and Dubois) records…repeatedly document spinal degenerative arthritis and cervical fusion surgery as cause of pain with frequent use of “sciatica” diagnosis- which is the most likely cause of this veteran’s pain- not fibromyalgia. The degenerative changes in the spine of this veteran are documented since 2010, and unrelated to gunshot wound in 1993. No linkage is presented between 1993 and present symptoms, as veteran has been full time with the post office, delivering the mail, since leaving the service. The Board finds that the July 2016 VA examination is the most probative evidence of record. The examiner provided the most detailed explanation as to his findings, examined the Veteran, reviewed the medical evidence of record, and is supported by other medical evidence of record. The Board notes that though the April 2015 VA examiner noted a prior diagnosis of fibromyalgia, that appears to be based on the Veteran’s report, as the April 2015 examiner also specifically found no findings, signs, or symptoms attributable to fibromyalgia on examination. The July 2016 VA examiner determined that the July 2015 DBQ finding of fibromyalgia from Dr. J. Dubois was not supported by the medical evidence of record and appeared to be based on the Veteran’s own reports. The Board finds that determination by the July 2016 VA examiner is supported by the evidence of record. A review of the medical records of Dr. J. Dubois do not document in-depth evaluation of fibromyalgia or treatment for such a condition. The first indication of fibromyalgia by Dr. Dubois (in a July 2015 private medical record the same date as the July 2015 DBQ and letter) indicated that the Veteran was applying for VA disability and the Veteran reported that he had been prescribed with Lyrica for the last 3 years from his pain clinic due to chronic pain from his neck and fibromyalgia. Dr. Dubois then indicated that the Veteran had fibromyalgia and that paper work (presumably the DBQ and letter from the same date) was completed, and that Dr. Dubois would continue Lyrica and follow up with Dr. Shelton. Importantly, Dr. Dubois stated that the Veteran “was seen today for advice only” and that “medical record reflects the history of present illness as obtained by myself in discussion with the patient.” Subsequent records further indicate that Dr. Dubois left treatment for fibromyalgia through the Veteran’s pain management provider – Dr. Shelton per these records. However, private medical records from Dr. Shelton do not support finding that Dr. Shelton actually diagnosed the Veteran with fibromyalgia. Rather, they include negative findings of fibromyalgia, including from October 2014 and December 2014 - prior to the Veteran’s July 2015 visit to Dr. Dubois. Dr. Shelton, and other pain management providers, also specifically and repeatedly found no fibromyalgia after the July 2015 visit to Dr. Dubois, including one month later in August 2015, as well as, more recently in October 2017, January 2018, and February 2018. Such findings make clear that the Veteran reports of having received a diagnosis of fibromyalgia by Dr. Shelton to Dr. Dubois were not credible. As such, the Board finds that Dr. Dubois’ finding of fibromyalgia, as well as, any other diagnosis of fibromyalgia based on the Veteran’s reports of such a disorder, are not probative. Although the Veteran may believe he has a current diagnosis of fibromyalgia, he is not competent to provide a diagnosis in this case. The issue is medically complex, as it requires specialized medical education and knowledge of the interaction between multiple organ systems in the body. Jandreau v. Nicholson, 492 F.3d 1372, 1377, 1377 n.4 (Fed. Cir. 2007). Consequently, the Board gives more probative weight to such medical evidence. Additionally, the Veteran’s attorney submitted an article regarding Fibromyalgia in Gulf War Veterans in November 2016. However, the Board notes that the Veteran did not serve outside of the United States. As such, he was not exposed to any hazards of Southwest Asia indicated in such article. As the preponderance of the probative, credible evidence is against the claim, the benefit of the doubt rule does not apply. Gilbert v. Derwinski, 1 Vet. App. 49, 58 (1991). The Veteran’s claim for service connection for fibromyalgia is denied. 3. Entitlement to an earlier effective date for the grant of service connection for depression and entitlement to increased staged ratings for depression. The Veteran is claiming that an effective date prior to August 29, 2013, is warranted for the grant of service connection for depressive disorder and that a disability rating higher than 50 percent is warranted prior to May 27, 2016, and higher than 70 percent from that time, is warranted. a. Earlier Effective Date Claim The Veteran contends that service connection for depressive disorder with pain disorder should have an effective date prior to August 29, 2013. In December 1994, the Veteran filed his initial claim for service connection for an acquired psychiatric disorder, specifically PTSD. In a May 1995 rating decision, the RO denied service connection. The Veteran submitted a June 1995 notice of disagreement, which he withdrew in August 1995. The RO subsequently readjudciated the Veteran’s claim and denied service connection again in March 1996. The Veteran did not appeal this decision and it became final. 38 U.S.C. § 7103(a); 38 C.F.R. § 20.1100. Under 38 U.S.C. § 5110(a), the effective date of an award based on a claim reopened after a final adjudication shall be fixed in accordance with the facts found, but shall not be earlier than the date of receipt of the application. As such, to the extent that the Veteran is claiming that an effective date prior to the date he filed any claim is warranted, no such date can be granted. The effective date for an award of benefits based upon new and material evidence is the date of receipt of the new claim or the date entitlement arose, whichever is later. 38 C.F.R. § 3.400(q)(l)(ii). Following the March 1996 rating decision, the Veteran filed a claim for service connection for PTSD on August 29, 2013 In a July 2014 rating decision, the RO granted service connection for other specified trauma related disorder (claimed as PTSD), with a 30 percent disability rating, effective August 29, 2013. In a May 2015 rating decision, the RO granted service connection for major depressive disorder with pain disorder (previously rated as other specified trauma related disorder), with a 30 percent disability rating effective February 17, 2015. In a June 2016 rating decision, the RO granted a 50 percent disability rating for depressive disorder (effective August 29, 2013), and a 70 percent disability rating effective from May 27, 2016. The Veteran has thus effectively been service-connected for depressive disorder from August 29, 2013 – the date VA received his first claim for service connection for an acquired psychiatric disorder following the March 1996 rating decision. Here, the first claim following the final March 1996 rating decision was received on August 29, 2013, the effective date already granted. An effective date prior to August 29, 2013, the date VA received the Veteran’s claim for service connection for an acquired psychiatric disorder cannot be granted. b. Increased Ratings for Depressive Disorder Higher than 50 percent prior to May 27, 2016 Prior to May 27, 2016, the Veteran is in receipt of a 50 percent disability rating, for occupational and social impairment with reduced reliability and productivity. During that time, he underwent VA examinations in May 2014 and April 2015. A 50 percent evaluation is assigned when results in occupational and social impairment with reduced reliability and productivity due to such symptoms as: flattened affect; circumstantial, circumlocutory, or stereo-typed speech; panic attacks more than once a week; difficulty in understanding complex commands; impairment of short- and long-term memory (e.g., retention of only highly learned material, forgetting to complete tasks); impaired judgment; impaired abstract thinking; disturbances of motivation and mood; difficulty in establishing and maintaining effective work and social relationships. The next higher disability rating is for 70 percent, which is contemplated for occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood, due to such symptoms as: suicidal ideation; obsessional rituals which interfere with routine activities; speech intermittently illogical, obscure, or irrelevant; near-continuous panic or depression affecting the ability to function independently, appropriately, and effectively; impaired impulse control (such as unprovoked irritability with periods of violence); spatial disorientation; neglect of personal appearance and hygiene; difficulty in adapting to stressful circumstances (including work or work like setting); inability to establish and maintain effective relationships. Both the May 2014 and May 2015 VA examiners found that the Veteran’s symptoms were consistent with occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks, although generally functioning satisfactorily, with normal routine behavior, self-care and conversation, consistent with a 50 percent disability rating. In a March 2014 correspondence, the Veteran reported anger over his inability to perform actions that he loved due to pain and locking himself away from friends and relationships because he could not keep up with them due to pain. He indicated he was very depressed and had lost all drive and ambition. The Board finds that the evidence of record does not support finding a 70 percent disability rating or higher, prior to May 27, 2016. For example, findings from VA examinations showed that although the Veteran has demonstrated difficulty establishing and maintaining effective relationships supportive of a 50 percent rating, he has not established an inability to establish such relationships. Additionally, though he had a tendency to isolate, he has continued to be able to work, indicating an ability to function including in stressful circumstances, and get along with his co-workers. The Veteran had relationships with his son and nephew and friends, though strained. Additionally, although he reported that his marriages had failed due to his psychiatric symptoms, he has also alternatively reported that his first marriage ended due to his wife’s drug use. He has consistently denied suicidal ideation. Judgment and insight were average and thought processes were not impaired. Although he reported getting easily irritated impaired impulse control, there was no indication that it was due to the level of unprovoked irritability with periods of violence. For example, in a February 2015 VA medical record he reported that he would have intense, scary anger outburst, but denied being physically aggressive. VA medical records also documented treatment for depression and generally showed similar levels of symptoms and challenges as the VA examinations. A March 2015 record found symptoms fell in the mild range. April, May, and June 2015 records documented symptoms fell in the moderate range. Given the level of functioning demonstrated by the Veteran above, and found by the VA medical professionals, prior to May 27, 2016, a 70 percent disability rating or higher is not warranted. The Veteran did not have occupational and social impairment, with deficiencies in most areas, such as work, family relations, judgment, thinking, or mood due to his psychiatric symptoms, consistent with a 70 percent disability rating. In other words, prior to May 27, 2016, the Veteran’s depressive symptoms were of a similar type, frequency, and duration as those associated with a 50 percent rating. Higher than 70 percent both prior to and from May 27, 2016 Following the May 27, 2016, VA examination, wherein the May 2016 VA examiner found occupational and social impairment with reduced reliability and productivity (consistent with a 50 percent disability rating) and noted moderate to severe symptoms. The RO appears to have given the Veteran the benefit of the doubt and granted a 70 percent disability rating for occupational and social impairment with deficiencies in most areas. However, neither prior to nor from May 27, 2016, has the record demonstrated total social impairment, to include as due to symptoms such gross impairment in thought processes or communication; persistent delusions or hallucinations; grossly inappropriate behavior; persistent danger of hurting self or others; intermittent inability to perform activities of daily living; disorientation to time or place; memory loss for names of close relatives, own occupation or own name to warrant a 100 percent evaluation. Medical providers and VA examiners (from May 2014, May 2015, and May 2016) have consistently found no hallucinations or delusions. Additionally, as noted above, the Veteran was working and able to perform activities of daily living. Thought process and communication has consistently been found to not be impaired. The May 2016 VA examiner specifically noted no obvious difficulties with speech, concentration, orientation, or fund of knowledge. The Veteran also repeatedly denied suicidal and homicidal ideation and there is no evidence that he was in persistent danger of hurting himself or others. In summary, prior to May 27, 2016, the preponderance of the evidence has demonstrated that the Veteran did not have the degree of deficiencies in social or occupational functioning in most areas as contemplated for a 70 percent rating. Also, during the entire appeal period, prior to and from May 27, 2016, the majority of the evidence has not shown total social and occupational impairment as contemplated for a 100 percent rating. He certainly did have deficiencies in some areas, but the greater weight of evidence demonstrates that it was to a degree no more than contemplated by the ratings currently assigned. Beginning May 27, 2016, his depressive symptoms are of a similar type, frequency, and duration as those associated with a 70 percent rating. 4. Entitlement to earlier effect dates for the grants of service connection for right lower extremity external cutaneous nerve radiculopathy and left extremity sciatica. The Veteran contends that an effective date prior to July 6, 2012, for the grant of service connection for right lower extremity external cutaneous nerve radiculopathy and left extremity sciatica is warranted. He has not indicated from what date he believes service connection should be granted. On July 6, 2012, VA received the Veteran’s claim for a bilateral lower extremity condition for numbness and tingling in the lower extremities. The RO initially granted service connection in a December 2015 rating decision and assigned an effective date of July 6, 2012 – the date the claim for service connection was received. In general, for disability compensation for service connection, unless the claim is received within one year of the Veteran’s discharge from service (in which case an effective date of the day after separation could be established), the effective date is the “date of receipt of claim, or date entitlement arose, whichever is later [emphasis added].” 38 C.F.R. § 3.400(b)(2)(i). See also 38 U.S.C. § 5110(a) (“Unless specifically provided otherwise..., the effective date of an award based on an original claim [or] a claim reopened after final adjudication... shall be fixed in accordance with the facts found, but shall not be earlier than the date of receipt of application therefor.”). As noted above, the effective date is the “date of receipt of claim, or date entitlement arose, whichever is later [emphasis added].” 38 C.F.R. § 3.400(b)(2)(i). An effective date prior to July 6, 2012, the date the claim (resulting in service connection for left lower extremity sciatica and right lower extremity external cutaneous nerve radiculopathy) was received cannot be granted. 5. Entitlement to increased ratings for left lower extremity sciatica, right lower extremity external cutaneous nerve radiculopathy, and right and left lower extremity femoral nerve radiculopathy. In a December 2015 rating decision, the RO granted service connection for left lower extremity sciatica (with a 10 percent disability rating under Diagnostic Code 8520), right lower extremity external cutaneous nerve radiculopathy (with a noncompensable disability rating under Diagnostic Code 8529), and right and left lower extremity femoral nerve radiculopathy (with a 10 percent per extremity under Diagnostic Code 8526). The Veteran contends that higher disability ratings are warranted. The Board notes that private medical records document occasional treatment for radiculopathy, but they generally do not provide findings for rating purposes. However, physicians, such as Dr. Boedefeld in a February 2018 record, have repeated found that the Veteran had 5/5 bilateral strength and diagnosed him with spondylosis without myelopathy or radiculopathy of the lumbosacral region. Unspecified neuralgia and neuritis was noted. Dr. Boedefeld also found that the Veteran’s reports of pain from the lumbar spine, but found that the Veteran’s pain seemed most consistent with sacroiliac joint pain. The May 2014 VA examiner found a normal left sciatic nerve and normal right and left femoral nerves. The examiner also found mild incomplete paralysis of the right external cutaneous nerves. The Veteran reported severe left lower extremity intermittent pain and right lower extremity numbness. Muscle strength testing and reflexes were normal. The October 2017 VA examiner noted reports of moderate lower extremity intermittent pain and numbness. The examiner found mild, incomplete paralysis of the left sciatic nerve and the right and left femoral nerves. The examiner also found a normal right external cutaneous nerve. Muscle strength testing and reflexes were normal. The Veteran reported moderate intermittent pain, mild paresthesias and/or dysesthesias, and moderate numbness bilaterally. He further claimed that due to pain in his legs, he is unable to ambulate, stand or sit still for prolonged periods. Furthermore, although the Veteran is being treated by his private medical providers for radiculopathy, he has not reported such severe symptoms to them. Although the Veteran has reported some severe symptoms, and an inability to ambulate, stand or sit still for prolonged periods of time, the Board finds that such reports are not credible. The Veteran may have some difficulties due to his radiculopathy, but medical records show he continues to work his route with the post office, which would require ambulating, standing, and sitting. For the left lower extremity sciatica, under Diagnostic Code 8520 the next higher 20 percent disability rating would be warranted for moderate incomplete paralysis, with higher disability ratings requiring moderately severe or severe incomplete paralysis, or complete paralysis. The VA examinations, however have found at most mild, incomplete paralysis in October 2017, and the May 2014 VA examiner found no paralysis. As such, the record does not support finding that the Veteran warrants a disability rating higher than 10 percent for his left leg sciatica. Regarding the right lower extremity external cutaneous nerve radiculopathy, for a compensable rating, under Diagnostic Code 8529, the only possible compensable rating possible would be for 10 percent, for severe to complete paralysis. None of the medical evidence of record is indicative of severe or complete paralysis for a compensable rating. Under Diagnostic Code 8526, for the femoral nerve, the next higher 20 percent disability rating would be warranted for moderate incomplete paralysis and a 30 percent for severe incomplete paralysis. Complete paralysis of the quadriceps extensor muscles would warrant a 40 percent disability rating. The May 2014 VA examiner found no paralysis of the right or left femoral nerve and the October 2017 VA examiner found only mild, incomplete paralysis. The Board finds that the Veteran does not have moderate, incomplete paralysis or worse for a disability rating more than 10 percent for the left lower extremity sciatica, does not have severe to complete paralysis for a compensable disability rating for right lower extremity external cutaneous nerve radiculopathy, and does not have moderate to severe incomplete paralysis or complete paralysis of the right or left lower extremity femoral nerve radiculopathy. The claim for a disability rating higher than 10 percent for femoral nerve radiculopathy is denied. 6. Whether the RO erred in finding CUE in its grant of a 20 percent disability rating for dorsal scoliosis (back condition), in the January 2015 rating decision. In a January 2015 rating decision, the RO granted a 20 percent disability rating for the already service-connected dorsal scoliosis (back condition) (previously rated as dorsal scoliosis at 0 percent), effective November 4, 2013. At that time, the Veteran was also already in receipt of a 20 percent disability rating for the separately rated intervertebral disc syndrome (rated under the criteria effective prior to 2002). In a December 2015 rating decision, the RO reduced the evaluation for dorsal scoliosis from 20 percent to 0 percent, finding CUE in granting the 20 percent rating. The Veteran appealed the CUE finding. In determining whether a prior determination involves CUE, the Court has established a three-prong test. The three prongs are: (1) either the correct facts, as they were known at the time, were not before the adjudicator (i.e., there must be more than simple disagreement on how the facts were weighed or evaluated), or the statutory/regulatory provisions extant at that time were not correctly applied; (2) the error must be “undebatable” and of the sort which, if it had not been made, would have manifestly changed the outcome at the time it was made; and (3) a determination that there was CUE must be based on the record and law that existed at the time of the adjudication in question. Damrel v. Brown, 6 Vet. App. 242, 245 (1994), citing Russell v. Principi, 3 Vet. App. 310, 313-14 (1992) (en banc). Here, all three prongs were met due, starting with the RO initially incorrectly applying the statutory/regulatory provisions extant at that time. In finding CUE in the January 2015 rating decision, the RO effectively found that it would be pyramiding for the Veteran to be rated separately under the dorsal (thoracic) and lumbar spine/intervertebral disc syndrome (IVDS), and that the current rating criteria requires that the dorsal (thoracic) and lumbar spine should be rated together as the thoracolumbar spine. When a claim is filed (here the increased rating claim received in November 2013), the applicable rating criteria under which the disability should be rated is the criteria in effect at the time the claim was filed. There were no rating criteria changes made during the pendency of this appeal. 38 C.F.R. § 4.71a provides a General Rating Formula for Diseases and Injuries of the Spine (General Rating Formula for the Spine) that generally rates the thoracolumbar spine based on limitation of motion and other symptoms. IVDS is evaluated under either the General Rating Formula or Formula for Rating IVDS Based on Incapacitating Episodes. In Cullen v. Shinseki, the Court held: “within a particular diagnostic code, a claimant is not entitled to more than one disability rating for a single disability unless the regulation expressly provides otherwise.” 24 Vet. App. 74, 84 (2010) (emphasis in original). The Court found that “the language of the regulation [General Rating Formula for the Spine], read as a whole, makes clear that the regulation prohibits multiple disability ratings for a single spinal disability, except in certain circumstances.” The Court further explained that there are some circumstances for an additional disability rating for symptoms associated with objective neurologic abnormalities related to a spinal disability. Id. at 79-80. In the present case, the Veteran is already in receipt of separate ratings for neurologic abnormalities, including radiculopathy of multiple nerves of the right and left lower extremities (some of which are rated above). Additionally, the Court made clear that “where a claimant’s disability involves only the thoracolumbar spine…he is entitled to only one disability rating for that condition.” Id. Thus, the RO correctly determined based on applicable law that in the January 2015 rating decision it had committed CUE in granting a second disability rating for the thoracolumbar spine (i.e. granted a second disability rating for the dorsal spine when the Veteran already was in receipt of one rating for the lumbar spine/IVDS). Such error is “undebatable” and manifestly changed the outcome of the determination. Additionally, the determination that there was CUE was based on the record and law that existed at the time of the claim. The Board finds that granting a 20 percent disability rating for the dorsal spine, in the January 2015 rating decision, had been CUE.   REASONS FOR REMAND 1. Entitlement to service connection for (a) a cervical spine disorder, to include as secondary to the service-connected lumbar spine disability, and (b) a right shoulder disorder, are remanded. The Board cannot make a fully-informed decision on the issues of service connection for the claimed right shoulder because no VA examiner has opined whether such disorder developed due to service. The Board notes that in addition to receiving a June 1993 gunshot wound in service, a February 1994 service treatment record documents that he reproted stressing his shoulder from falling off a roof he had been working on. Also, in an October 2013 letter, Dr. R. Howard reported that a right shoulder was possible to have developed an anterior Bankart Lesion in the prone position in a fire fight, regarding right shoulder disability. Additionally, an addendum medical opinion is necessary to address whether the cervical spine disorder was aggravated by the service-connected lumbar spine disability. 2. Entitlement to a compensable rating for linear scars of the chest and abdomen is remanded. In a September 2013 rating decision, the RO continued noncompensable disability rating for linear scars of the abdomen and chest. The Veteran has perfected an appeal of that claim. In a December 2015 rating decision, the RO separately granted service connection for painful and unstable scars of the abdomen and chest (with a 30 percent disability rating) for three or four unstable scars under Diagnostic Code 7804. The Veteran filed a notice of disagreement with that determination as to both the rating and the effective date and is awaiting a statement of the case for that issue. Because a decision on the increased rating claim for linear scars could significantly impact a decision on the issues of increased rating and entitlment to earlier effective dates for the grants of service connection for painful or unstable scars of the chest and abdomen, the issues are inextricably intertwined. A remand of the claim on appeal is required. The matters are REMANDED for the following actions: 1. Obtain any unassociated VA medical records. 2. Schedule the Veteran for an examination by an appropriate clinician to determine the nature and etiology of any right shoulder disorder. The claims file should be reviewed, and evidence of record including prior VA examinations, lay statements, private medical records (such as the October 2013 opinion from Dr. R Howard with Orthopaedic Specialists), and lay statements and articles submitted by the Veteran (including received in October 2015) should be considered. The examiner must opine whether it is at least as likely as not related to an in-service injury, event, or disease, including the June 1993 gunshot wound or February 1992 fall from a roof while performing repairs. 3. Obtain an addendum opinion from an appropriate clinician regarding whether the Veteran’s claimed cervical spine disability is at least as likely (1) proximately due to service-connected disability of the lumbar spine disability, or (2) aggravated beyond its natural progression by service-connected lumbar spine disability. The claims file should be reviewed. If a VA examination is necessary to provide the requested opinion, one should be obtained. 4. After the above development, and any additionally indicated development, has been completed, readjudicate the issues on appeal, including the inextricably intertwined issues of increased rating for linear scars of the chest and abdomen and the issues of increased rating and earlier effective date for painful or unstable scars of the chest and abdomen. If the benefit sought is not granted to the Veteran’s satisfaction, provide a Supplemental Statement of the Case and an opportunity to respond. If necessary, return the case to the Board for further appellate review. H.M. WALKER Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD A. Lindio