Citation Nr: 18148608
Decision Date: 11/08/18	Archive Date: 11/07/18

DOCKET NO. 16-41 814
DATE:	November 8, 2018
ORDER
Service connection for hypertension is denied.
Service connection for migraine headaches is granted.
Service connection for depressive disorder is granted.
An effective date earlier than June 13, 2014 for the grant of service connection for a left ankle sprain is denied.
An effective date earlier than January 27, 2016, for the grant of service connection for left lower extremity radiculopathy is denied.
Prior to January 27, 2016, a rating in excess of 10 percent for degenerative arthritis of the lumbar spine is denied.
For the period beginning January 27, 2016 a rating in excess of 20 percent for degenerative arthritis of the lumbar spine is denied.
For the entire period on appeal, a 20 percent rating for a right ankle internal derangement is granted. 
Entitlement to an effective date earlier than June 14, 2014 for the grant of a 20 percent rating for a right ankle internal derangement is dismissed as moot.
For the entire period on appeal, a 10 percent rating for a left ankle sprain is granted.
Entitlement to an initial rating in excess of 10 percent for left lower extremity radiculopathy is denied.
A rating in excess of 40 percent for bilateral hearing loss is denied.
An initial rating in excess of 10 percent for tinnitus is denied.
REMANDED
Entitlement to service connection for a sleep condition is remanded.
Whether new and material evidence has been received to reopen a claim of entitlement to service connection for a left knee disability, to include as secondary to service-connected lumbar spine disability is remanded.
Whether new and material evidence has been received to reopen a claim of entitlement to service connection for a right knee disability, to include as secondary to service-connected lumbar spine disability is remanded.
FINDINGS OF FACT
1. Hypertension was not present in service or for years thereafter, and is not etiologically related to service.
2. The Veteran’s migraine headaches are etiologically related to his service-connected disabilities.
3. The Veteran’s depression is etiologically related to his service-connected disabilities.
4. The claim of entitlement to service connection for a left ankle disability was not received within one year of the Veteran's discharge from service or until June 13, 2014.
5. The Veteran was initially diagnosed with left lower extremity radiculopathy in a January 27, 2016 VA examination.
6. Prior to January 27, 2016, the Veteran's lumbar spine disability was manifested by forward flexion of the thoracolumbar spine of no less than 70 degrees, even with consideration of pain and functional impairment; there is no evidence of muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis; and there is no evidence of intervertebral disc syndrome, associated neurological deficit or ankylosis.
7. For the period beginning January 27, 2016, the Veteran’s lumbar spine disability has been manifested by forward flexion of the thoracolumbar spine greater than 30 degrees, even with consideration of pain and functional impairment; and there is no evidence of intervertebral disc syndrome resulting in incapacitating episodes or physician-prescribed bedrest, associated neurological deficit not already accounted for, or ankylosis.
8. Since the effective date of service connection on August 9, 2012, the Veteran's right ankle internal derangement has been manifested by pain and marked limitation of motion, without evidence of ankylosis or deformity of the ankle. 
9. The grant of an initial 20 percent disability rating for a right ankle internal derangement, effective August 9, 2012, renders moot the issue of entitlement to an effective date earlier than June 14, 2014, for a 20 percent rating for a right ankle internal derangement.
10. For the entire period on appeal, the Veteran’s left ankle disability has been manifested by pain and marked limitation of motion, without evidence of ankylosis or deformity of the ankle.
11. The Veteran’s left lower extremity radiculopathy is manifested by no more than mild incomplete paralysis of the common peroneal nerve.
12. The Veteran has had, at worst, Level IV hearing in the right ear during the appeal.
13. The Veteran has had, at worst, Level IV hearing in the left ear during the appeal.
14. The Veteran's tinnitus is assigned a single 10 percent rating, which is the maximum evaluation authorized under Diagnostic Code (DC) 6260; and he has not been shown to have any symptoms which are not contemplated by the rating criteria.
CONCLUSIONS OF LAW
1. Hypertension was not incurred or aggravated during active duty, and its incurrence or aggravation during such service may not be presumed. 38 U.S.C. §§ 1101, 1110, 1112, 1113 (2012); 38 C.F.R. §§ 3.303, 3.307, 3.309, (2018).
2. Migraine headaches were caused or aggravated by service-connected disabilities. 38 U.S.C. §§ 1110, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304, 3.310 (2018).
3. Depression was caused or aggravated by service-connected disabilities. 38 U.S.C. §§ 1110, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304, 3.310 (2018).
4. The criteria for an effective date earlier than June 13, 2014 for the grant of service connection for a left ankle sprain have not been met. 38 U.S.C. § 5110 (2012); 38 C.F.R. § 3.400 (2018).
5. The criteria for an effective date earlier than January 27, 2016 for the grant of service connection for left lower extremity radiculopathy have not been met. 38 U.S.C. § 5110 (a) (2012); 38 C.F.R. § 3.400 (2018).
6. Prior to January 27, 2016, the criteria for a rating in excess of 10 percent for degenerative arthritis of the lumbar spine have not been met. 38 U.S.C. § 1155 (2012); 38 C.F.R §§ 4.1-4.7, 4.71, 4.71a, Diagnostic Codes 5235-5237 (2018).
7. For the period beginning January 27, 2016, the criteria for a rating in excess of 20 percent for degenerative arthritis of the lumbar spine have not been met. 38 U.S.C. § 1155 (2012); 38 C.F.R §§ 4.1-4.7, 4.71, 4.71a, Diagnostic Codes 5235-5237 (2018).
8. For the entire period on appeal, the criteria for a 20 percent disability rating, but no higher, for the Veteran's right ankle internal derangement have been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.102, 3.321, 4.71(a), Diagnostic Code 5271 (2018).
9. The Veteran's claim of entitlement to an effective date earlier than June 14, 2014, for a 20 percent rating for the right ankle internal derangement is moot. 38 U.S.C. §§ 5110, 5107, 7104, 7105 (2012); 38 C.F.R. §§ 3.400, 20.1100 (2018).
10. For the entire period on appeal, the criteria for a 20 percent disability rating, but no higher, for the Veteran's left ankle sprain have been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.102, 3.321, 4.71(a), Diagnostic Code 5271 (2018).
11. The criteria for a disability rating in excess of 10 percent for left lower extremity radiculopathy have not been met. 38 U.S.C. § 1155 (2012); 38 C.F.R. § 4.124a, Diagnostic Code 8721 (2018).
12. The criteria for a rating in excess of 40 percent for bilateral hearing loss have not been met at any time during the appeal. 38 U.S.C. § 1155 (2012); 38 C.F.R. § 4.85, 4.86(a), Diagnostic Code 6100 (2018).
13. A rating in excess of 10 percent for tinnitus is not warranted. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.102, 4.7, 4.87, Code 6260 (2018).
REASONS AND BASES FOR FINDINGS AND CONCLUSIONS
The Veteran served on active duty from October 1978 to May 1984.
Service Connection
Service connection will be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred in or aggravated by active military service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303 (a).
Establishing service connection generally requires (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 present disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); see Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd per curiam, 78 F.3d 604 (Fed. Cir. 1996) (table); see also Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); Hickson v. West, 12 Vet. App. 247, 253 (1999); 38 C.F.R. § 3.303.
Under 38 C.F.R. § 3.303 (b), an alternative method of establishing the second and third Shedden/Caluza element is through a demonstration of continuity of symptomatology. Barr v. Nicholson, 21 Vet. App. 303 (2007); see Clyburn v. West, 12 Vet. App. 296, 302 (1999). Continuity of symptomatology may be established if a claimant can demonstrate (1) that a condition was "noted" during service; (2) evidence of post- service continuity of the same symptomatology; and (3) medical or, in certain circumstances, lay evidence of a nexus between the present disability and the post-service symptomatology. See Hickson, 12 Vet. App. at 253 (lay evidence of in-service incurrence sufficient in some circumstances for purposes of establishing service connection); 38 C.F.R. § 3.303 (b). The theory of continuity of symptomatology can be used only in cases involving those conditions explicitly recognized as chronic under 38 C.F.R. § 3.309 (a). See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013).
In relevant part, 38 U.S.C. 1154 (a) requires that VA give "due consideration" to "all pertinent medical and lay evidence" in evaluating a claim for disability or death benefits. Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). The United States Court of Appeals for the Federal Circuit (Federal Circuit) has held that "[l]ay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional." Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); see also Buchanan v. Nicholson, 451 F.3d at 1337 ("[T]he Board cannot determine that lay evidence lacks credibility merely because it is unaccompanied by contemporaneous medical evidence").
"Symptoms, not treatment, are the essence of any evidence of continuity of symptomatology." Wilson v. Derwinski, 2 Vet. App. 16, 19 (1991). Once evidence is determined to be competent, the Board must then determine whether such evidence is also credible. See Layno, supra (distinguishing between competency ("a legal concept determining whether testimony may be heard and considered") and credibility ("a factual determination going to the probative value of the evidence to be made after the evidence has been admitted"). 
Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303 (d).
Where a Veteran served for at least 90 days during a period of war or after December 31, 1946, and manifests certain chronic disabilities, including hypertension, to a degree of 10 percent within one year from the date of termination of such service, such disease shall be presumed to have been incurred or aggravated in service, even though there is no evidence of such disease during the period of service. 38 U.S.C. §§ 1101, 1112, 1137; 38 C.F.R. §§ 3.307, 3.309. 
A disability which is proximately due to or the result of a service-connected disease or injury shall be service-connected. When service connection is thus established for a secondary condition, the secondary condition shall be considered a part of the original condition. 38 C.F.R. § 3.310 (2018); see also Harder v. Brown, 5 Vet. App. 183, 187 (1993). 
In order to prevail on the issue of secondary service connection, the record must show: (1) evidence of a current disability; (2) evidence of a service-connected disability; and (3) medical nexus evidence establishing a connection between the service-connected disability and the current disability. See Wallin v. West, 11 Vet. App. 509, 512 (1998).
Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits under laws administered by the Secretary. The Secretary shall consider all information and lay and medical evidence of record in a case before the Secretary with respect to benefits under laws administered by the Secretary. 
When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of the matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107 (2012); 38 C.F.R. § 3.102 (2018); see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert, 1 Vet. App. At 54.
1. Entitlement to service connection for hypertension
Hypertension was not diagnosed until many years after service, and there is no competent evidence to establish that it is due to any event or incident of the Veteran's period of active duty. 
Service treatment records show an elevated blood pressure reading in April 1982 after a dog bite, but no diagnosis of hypertension during active duty or at discharge. 
Post-service medical records show a diagnosis of hypertension many years after service, and do not indicate that the Veteran's hypertension is related to his active military service.
The Veteran was afforded VA examination in January 2016. The examiner opined that the diagnosed hypertension was less likely than not incurred in or caused by the claimed in-service injury, event or illness. In rendering the opinion, the examiner noted that the single mild elevated blood pressure reading in 1982, under conditions of acute injury, does not imply the beginning of the current hypertension. He noted further that there are no subsequent elevated blood pressure readings found the service treatment records and the Veteran himself denied a history of high blood pressure on multiple occasions thereafter, during service. 
There is no evidence otherwise linking the current disability to service. The Veteran has not specifically reported a continuity of symptomatology beginning in service and there is no other evidence, VA or private, which indicates that the Veteran's hypertension may be related to his active military service.
The presumption of service connection for chronic diseases diagnosed within one year following discharge from active duty is also not applicable to this case because the evidence demonstrates that hypertension was initially shown more than one year after the Veteran's discharge from service.
With regard to the years-long evidentiary gap in this case between active service and the earliest manifestations of hypertension, the Board notes that a prolonged period without medical complaint can be considered, along with other factors concerning a claimant's health and medical treatment during and after military service, as evidence of whether an injury or a disease was incurred in service which resulted in any chronic or persistent disability. See Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000). 
The Board acknowledges the Veteran's assertion that his hypertension is due to events during his active service. However, while the Veteran is competent to report the observable symptoms of a disability, and in certain situations a lay person may be competent to establish the etiology of a disability; in the present case, the Veteran is not competent to provide a nexus between his currently diagnosed hypertension and his active service or events therein. Such an opinion would require medical expertise as it would require clinical testing of his blood pressure and interpretation of clinical findings as well as assessing the relevance of any noted symptomatology. Thus, the Board finds that the Veteran, as a layperson, is not qualified to render an opinion concerning the cause of his hypertension. 38 C.F.R. § 3.159 (a)(1), (2) (2018). 
For the reasons and basis stated above, the Board finds that service connection for hypertension on a direct or presumptive basis is not warranted. In reaching this decision, the Board has considered the benefit-of-the-doubt doctrine; however, as the preponderance of the evidence is against the claim, that doctrine is not applicable.
2. Entitlement to service connection for headaches, to include as secondary to service-connected disabilities
The Veteran does not contend and the evidence does not show that his headaches were incurred during active military service. Rather, he asserts that he has a currently diagnosed headache disorder, secondary to other service-connected disabilities. 
In a January 2017 private medical evaluation, the Veteran was diagnosed with migraine headaches, which the examining physician, after reviewing the Veteran’s claims file and interviewing the Veteran, opined are as likely as not caused and permanently aggravated by his service-connected tinnitus and depressive disorder, which the Board (as discussed further below) is granting service connection for in this decision.
The medical evidence of record shows that the Veteran has complained of headaches, related to his service-connected disabilities. The medical evidence of record shows that the Veteran has a current diagnosis of migraine headaches. Furthermore, a private physician has opined that the Veteran's currently diagnosed migraine headaches are related to his service-connected tinnitus and newly service-connected depressive disorder.
Therefore, resolving reasonable doubt in the Veteran's favor, the Board finds that the evidence shows that the Veteran's migraine headaches were caused or aggravated by his service-connected disabilities. Thus, the Board finds that service connection for migraine headaches, on a secondary basis, is warranted. See 38 U.S.C. § 5107 (b); 38 C.F.R. §§ 3.102, 3.310.
3. Entitlement to service connection for depression, to include as secondary to service-connected disabilities
Service treatment records are negative for any evidence of a mental health disability during active duty or at discharge.
The Veteran does not contend and the evidence does not show that his depression was incurred during active military service. Rather, he asserts that he has a currently demonstrated depressive disorder, secondary to other service-connected medical conditions.
VA treatment records do not show a diagnosis of depression or any other psychiatric disorder.  In fact, these records show that several depression and PTSD screenings were negative, and that the Veteran has denied depression, anxiety and suicidal ideation.
However, in a more recent January 2017 private medical evaluation, the Veteran was diagnosed with depressive disorder. The examining doctor opined that, based on her review of the claims file and interview of the Veteran, his bilateral hearing loss, right ankle disability, lumbar spine disability, tinnitus, hemorrhoids, left ankle disability and left lower extremity radiculopathy are more likely than not causing his depressive disorder.
The medical evidence of record shows that the Veteran has complained of depression, related to his service-connected disabilities. The medical evidence of record shows that the Veteran has a current diagnosis of depressive disorder. Furthermore, a private Ph.D. has opined that the Veteran's currently diagnosed depressive disorder is related to his service-connected disabilities, noted above.
Therefore, resolving reasonable doubt in the Veteran's favor, the Board finds that the evidence shows that the Veteran's depressive disorder was caused or aggravated by his service-connected disabilities. Thus, the Board finds that service connection for depressive disorder, on a secondary basis, is warranted. See 38 U.S.C. § 5107 (b); 38 C.F.R. §§ 3.102, 3.310.
Earlier Effective Date Claims
Generally, the effective date of a rating and award of pension, compensation or dependency and indemnity compensation based on an original claim, a claim reopened after final disallowance, or a claim for increase is the day following separation from active service or the date entitlement arose if the claim is received within one year after separation from service; otherwise it will be the date of receipt of the claim or the date entitlement arose, whichever is the later. 38 U.S.C. § 5110 (a) (2012); 38 C.F.R. § 3.400 (2018).
A specific claim in the form prescribed by VA must be filed in order for benefits to be paid to any individual under the laws administered by VA. 38 U.S.C. § 5101 (a) (2012); 38 C.F.R. § 3.151 (a) (2018). 
The date of receipt of a claim is the date on which a claim, information, or evidence is received by VA. 38 C.F.R. § 3.1 (r) (2018). A claim is defined broadly to include a formal or informal communication in writing requesting a determination of entitlement or evidencing a belief in entitlement to a benefit. 38 C.F.R. § 3.1 (p) (2018); Brannon v. West, 12 Vet. App. 32 (1998); Servello v. Derwinski, 3 Vet. App. 196 (1992).
Any communication or action indicating an intent to apply for one or more benefits under the laws administered by VA, from a Veteran or representative, may be considered an informal claim. An informal claim must identify the benefit sought. Upon receipt of an informal claim, if a formal claim has not been filed, an application form will be forwarded to the claimant for execution. If received within one year from the date it was sent to the Veteran, it will be considered filed as of the date of receipt of the informal claim. 38 C.F.R. § 3.155 (2018).
A report of examination or hospitalization which meets certain requirements of will be accepted as an informal claim for benefits if the report relates to a disability which may establish entitlement. Once a formal claim for pension or compensation has been allowed or a formal claim for compensation has been disallowed for the reason that the service-connected disability is not compensable in degree, receipt of a report of examination or hospitalization by VA or the uniformed services will be accepted as an informal claim for benefits. The date of outpatient or hospital examination or date of admission to a VA or uniformed services hospital will be accepted as the date of receipt of a claim. Those provisions apply only when the reports relate to examination or treatment of a disability for which service-connection has previously been established or when a claim specifying the benefit sought is received within one year from the date of the examination, treatment or hospital admission. 38 C.F.R. § 3.157 (2018). 
Evidence from a private physician or lay man will also be accepted as an informal claim for increased benefits, effective from the date received by VA. 38 C.F.R. § 3.157 (b)(2). 
Medical records cannot constitute an initial claim for service connection; rather there must be a record showing some intent by the claimant to apply for the benefit. Criswell v. Nicholson, 20 Vet. App. 501 (2006); Brannon v. West, 12 Vet. App. 32, 35 (1998). 
When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the VA shall resolve reasonable doubt in favor of the claimant. 38 U.S.C. § 5107 (b) (2012); 38 C.F.R. § 3.102 (2018).
4. Entitlement to an effective date earlier than June 13, 2014 for the grant of service connection for a left ankle sprain
On June 13, 2014, VA received the Veteran's initial claim for service connection for a left ankle disability.
A July 2016 rating decision granted service connection for a left ankle sprain, effective June 13, 2014, the date of receipt of the claim for service connection.
The Veteran has not indicated why he disagrees with the effective date assigned for the grant of service connection for a left ankle sprain. However, the applicable law and regulations provide that unless a claim is filed within one year of service, the effective date is the latter of the date entitlement arose or the claim was received. 38 U.S.C. § 5110 (a), (b)(1) (2012); 38 C.F.R. § 3.400 (b)(2) (2018).
There has been no contention or evidence that there was a claim for service connection for a left ankle sprain prior to June 13, 2014, and the Board cannot construe any document of record prior to June 13, 2014, to constitute a claim, formal or informal, for service connection for a left ankle sprain. In this regard, the Board notes that the Veteran’s June 2012 claim for a right ankle disability specifically requested service connection for the right ankle only.  The left ankle was not mentioned. See June 2012 supplemental claim for right ankle disability. There is no evidence in this case that entitlement arose prior to the date of claim. However, to the extent that the Veteran may argue that it did, because the date of claim is later, that date controls the effective date of service connection. As the Veteran did not submit a claim for service connection for a left ankle disability prior to June 13, 2014, and there is no prior communication in the record that could be considered an informal claim for VA compensation for a left ankle disability, that is the earliest possible effective date. 38 U.S.C. § 5110 (a) (2012); 38 C.F.R. § 3.400 (2018). Therefore, the Board finds that there is no basis upon which to grant an effective date earlier than June 13, 2014, for entitlement to service connection for a left ankle sprain.
The Board finds that the preponderance of the evidence is against the claim for an earlier effective date and that claim must be denied. 38 U.S.C. § 5107 (b) (2012); Gilbert v. Derwinski, 1 Vet. App. 49 (1990).
5. Entitlement to an effective date earlier than January 27, 2016, for the grant of service connection for left lower extremity radiculopathy
The Veteran initially filed an informal claim for service connection for a spine disability on August 19, 2008. He did not specifically claim radiculopathy of the left lower extremity at that time. However, the Board notes that the scope of the Veteran's claim for a spine disability includes any disability that reasonably may be encompassed by the claimant's description of the claim, reported symptoms, and the other information of record. Clemons v. Shinseki, 23 Vet. App. 1 (2009) (per curiam). Regardless of whether a claimant identifies a particular disorder upon filing the claim, the scope of the claim is not limited to that condition, but is considered a claim for any disability that reasonably may be encompassed by several factors - including his description of the claim, the symptoms he describes, and the information he submits or that VA obtains in support of his claim. See Clemons, supra. 
The Board observes that when the Veteran filed his original service connection claim for a lumbar spine disability, the record contained treatment records showing complaints of radicular pain into the left leg. Thus, under Clemons, the Board finds that the Veteran's initial claim for service connection for a lumbar spine disability reasonably encompassed any related neurologic impairment in the left lower extremity. Notwithstanding the Veteran’s complaints though, there was no evidence in the record of a diagnosis of left lower extremity radiculopathy until he was diagnosed during the January 2016 VA examination. In this regard, VA examinations in April 2009 and September 2014 found that no radiculopathy related to the Veteran's lower extremities was present. The Board therefore finds that January 27, 2016 is the earliest date upon which there is evidence that his left lower extremity radiculopathy was present. Consequently, January 27, 2016 is the earliest date that entitlement arose.
Based on the foregoing, the Board concludes that the evidence does not support granting an effective date earlier than January 27, 2016 for the left lower extremity radiculopathy. The claim was received in August 2008, but entitlement arose on January 27, 2016, as this is the later of the two dates, it is the appropriate effective date. 38 U.S.C. § 5110 (a) (2012); 38 C.F.R. § 3.400 (2018); 38 U.S.C. § 5107 (b) (2012); Gilbert v. Derwinski, 1 Vet. App. 49 (1990).
Increased Rating Claims
Disability evaluations are determined by the application of VA's Schedule for Rating Disabilities (Rating Schedule), 38 C.F.R. Part 4 (2018). The percentage ratings contained in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and the residual conditions in civil occupations. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.321 (a), 4.1. 
Traumatic arthritis is rated as degenerative arthritis. 38 C.F.R. § 4.71a, Diagnostic Code (DC) 5010. Pursuant to DC 5003, degenerative arthritis established by X-ray findings will be rated on the basis of limitation of motion under the appropriate diagnostic codes for the specific joint or joints involved. When, however, the limitation of motion of the specific joint or joints involved is noncompensable under the appropriate diagnostic codes, a rating of 10 percent is for application for each such major joint or group of minor joints affected by limitation of motion, to be combined, not added under diagnostic code 5003. Limitation of motion must be objectively confirmed by findings such as swelling, muscle spasm, or satisfactory evidence of painful motion. In the absence of limitation of motion, the disability is to be rated as follows: with x-ray evidence of involvement of 2 or more major joints or 2 or more minor joint groups, with occasional incapacitating exacerbations, 20 percent; with x-ray evidence of involvement of 2 or more major joints or 2 or more minor joint groups, 10 percent. 38 C.F.R. § 4.71a.
For disabilities evaluated on the basis of limitation of motion, VA is required to apply the provisions of 38 C.F.R. §§ 4.40 and 4.45, pertaining to functional impairment. The United States Court of Appeals for Veterans Claims has instructed that in applying these regulations VA should obtain examinations in which the examiner determined whether the disability was manifested by weakened movement, excess fatigability, incoordination, or pain. Such inquiry is not to be limited to muscles or nerves. These determinations are, if feasible, be expressed in terms of the degree of additional range-of-motion loss due to any weakened movement, excess fatigability, incoordination, flare-ups, or pain. DeLuca v. Brown, 8 Vet. App. 202 (1995); see also Johnston v. Brown, 10 Vet. App. 80, 84-85 (1997); 38 C.F.R. § 4.59 (2018).
Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7 (2018). 
In both initial rating claims and normal increased rating claims, the Board must discuss whether any "staged ratings" are warranted, and if not, why not. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). 
When there is an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the veteran. See 38 U.S.C. § 5107; 38 C.F.R. § 3.102.
6. Entitlement to an increased rating for a lumbar spine disability, evaluated as 10 percent disabling prior to January 27, 2016, and as 20 percent disabling thereafter, including whether an effective date earlier than January 27, 2016 is warranted for the grant of a 20 percent rating for the lumbar spine disability is warranted
Under the General Rating Formula for Diseases and Injuries of the Spine, with or without symptoms such as pain, whether or not it radiates, stiffness, or aching in the area of the spine affected by the residuals of injury or disease, a 10 percent evaluation is warranted when there is forward flexion of the thoracolumbar spine greater than 60 degrees but not greater than 85 degrees; or, combined range of motion of the thoracolumbar spine greater than 120 degrees but not greater than 235 degrees; or, muscle spasm, guarding, or localized tenderness not resulting in abnormal gait or abnormal spinal contour; or, vertebral body fracture with loss of 50 percent or more of the height. 
A 20 percent evaluation is warranted when there is forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees; or, the combined range of motion of the thoracolumbar spine not greater than 120 degrees; or, muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis. 
A 40 percent evaluation is warranted when there is forward flexion of the thoracolumbar spine to 30 degrees or less, or favorable ankylosis of the entire thoracolumbar spine. 
Unfavorable ankylosis of the entire thoracolumbar spine is evaluated as 50 percent disabling, and unfavorable ankylosis of the entire spine is evaluated as 100 percent disabling. 38 C.F.R. § 4.71a, Diagnostic Codes 5235-5237 (2018).
Note (1) permits the evaluation of any associated objective neurologic abnormalities, including, but not limited to, bowel or bladder impairment, separately, under an appropriate diagnostic code.
For VA compensation purposes, normal forward flexion of the thoracolumbar spine is 0 to 90 degrees, extension is 0 to 30 degrees, left and right lateral flexion are 0 to 30 degrees, and left and right lateral rotation are 0 to 30 degrees. The combined range of motion refers to the sum of the range of forward flexion, extension, left and right lateral flexion, and left and right rotation. The normal combined range of motion of the thoracolumbar spine is 240 degrees. The normal ranges of motion for each component of spinal motion provided in this note are the maximum that can be used for calculation of the combined range of motion. Each range of motion measurement should be rounded to the nearest five degrees. See Plate V, 38 C.F.R. § 4.71 and 38 C.F.R. § 4.71a, Notes (2) and (4).
In exceptional cases, an examiner may state that because of age, body habitus, neurologic disease, or other factors not the result of disease or injury of the spine, the range of motion of the spine in a particular individual should be considered normal for that individual, even though it does not conform to the normal range of motion stated in Note (2). Provided that the examiner supplies an explanation, the examiner's assessment that the range of motion is normal for that individual will be accepted. 38 C.F.R. § 4.71a, Note (3).
For VA compensation purposes, unfavorable ankylosis is a condition in which the entire cervical spine, the entire thoracolumbar spine, or the entire spine is fixed in flexion or extension, and the ankylosis results in one or more of the following: difficulty walking because of a limited line of vision; restricted opening of the mouth and chewing; breathing limited to diaphragmatic respiration; gastrointestinal symptoms due to pressure of the costal margin on the abdomen; dyspnea or dysphasia; atlantoaxial or cervical subluxation or dislocation; or neurologic symptoms due to nerve root stretching. Fixation of a spinal segment in neutral position (zero degrees) always represents favorable ankylosis. 38 C.F.R. § 4.71a, Note (5).
Diagnostic Code 5243 for intervertebral disc syndrome is rated either under the General Rating Formula for Diseases and Injuries of the Spine or under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes, whichever method results in the higher evaluation when all disabilities are combined under 38 C.F.R. § 4.25. 
Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes. A 10 percent rating for intervertebral disc syndrome requires incapacitating episodes having a total duration of one week but less than 2 weeks during the past 12 months. The 20 percent rating for intervertebral disc syndrome, requires incapacitating episodes of at least 2 weeks but less than 4 weeks during the past 12 months. With incapacitating episodes having a total duration of 4 weeks but less than 6 weeks during the past 12 months, a 40 percent rating is warranted. Finally, with incapacitating episodes having a total duration of at least 6 weeks during the past 12 months, a 60 percent rating is warranted. 38 C.F.R. § 4.71a, Diagnostic Code 5243.
An incapacitating episode is a period of acute signs and symptoms due to intervertebral disc syndrome that requires bed rest prescribed by a physician and treatment by a physician.
In a July 2009 rating decision, the Veteran was granted service connection for degenerative arthritis of the lumbar spine. A 10 percent rating was assigned, effective August 19, 2008.  He filed a claim for an increased rating for his lumbar spine disability in June 2014.  In July 2016, the RO granted an increased rating of 20 percent for the lumbar spine disability, effective January 27, 2016, based on the results of a January 2016 VA examination, discussed further below.
Period Prior to January 27, 2016
In response to his claim for an increased rating, the Veteran was afforded a VA examination in September 2014. Range of motion testing showed forward flexion of 80 degrees, with pain at 70 degrees; extension to 30 degrees with pain at 20 degrees; right and left lateral flexion to 30 degrees even with pain; and right and left lateral rotation to 30 degrees even with pain. There was no additional loss of motion following repetitive use testing. There was functional impairment of the lumbar spine noted, including less movement than normal, pain on movement, disturbance of locomotion, and interference with sitting, standing and/or weight-bearing. There was also localized tenderness to palpation of the paralumbar spine noted, but no guarding or muscle spasm of the lumbar spine. There was no radiculopathy of the lower extremities found and no intervertebral disc syndrome (IVDS) or reports of incapacitating episodes due to the lumbar spine disability.
The evidence shows that during this period, the Veteran demonstrated forward flexion of the thoracolumbar spine well beyond 60 degrees and that he had a combined range of motion in excess of 120 degrees for the thoracolumbar spine, even with consideration of pain and functional impairment. In this regard, the functional impairment of the lumbar spine noted on examination in September 2014, which included less movement than normal, pain on movement, disturbance of locomotion, and interference with sitting, standing and/or weight-bearing, was noted and accounted for in the ROM findings. Furthermore, there was no evidence on examination in September 2014 of muscle spasm or guarding, resulting in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis of the lumbar spine, nor was there evidence of any neurological deficits, other than absent DTRs, which the examiner noted were related to the Veteran’s history of diabetes and his right total knee arthroplasty. Accordingly, the Board finds that the evidence required for a 20 percent or higher evaluation for the lumbar spine disability under the general rating formula is not shown for this period. 
Period Beginning January 27, 2016
The Veteran is currently in receipt of a 20 percent rating for his lumbar spine disability beginning January 27, 2016. The Veteran asserts that he is entitled to a 20 percent rating for his lumbar spine disability prior to January 27, 2016. As noted above, the criteria for a 20 percent rating or higher are not met prior to January 27, 2016. Therefore, the Board finds that no further discussion of the issue of entitlement to an effective date earlier than January 27, 2016 for the grant of a 20 percent rating for the lumbar spine disability is necessary.
The Board also finds that a rating in excess of 20 percent is not warranted for the period beginning January 27, 2016. In this regard, on VA examination in January 2016, range of motion testing showed forward flexion of 50 degrees with pain; extension to 20 degrees with pain; right and left lateral flexion to 20 degrees with pain; and right and left lateral rotation to 20 degrees with pain. There was no additional loss of motion following repetitive use testing. There was functional impairment of the lumbar spine noted, including pain, weakness and lack of endurance. There was also localized tenderness to palpation of the paralumbar spine noted, but no guarding or muscle spasm of the lumbar spine. Mild radiculopathy of the left lower extremity was noted, as well as IVDS. However, there were no reports or evidence of incapacitating episodes or bedrest prescribed by a physician due to the lumbar spine disability.
The evidence shows that during this period, the Veteran demonstrated forward flexion of the thoracolumbar spine well beyond 30 degrees, even with consideration of pain and functional impairment. In this regard, the only functional impairment of the lumbar spine noted on examination in January 2016 was pain, weakness and lack of endurance, noted and accounted for in the ROM findings. Furthermore, there was no evidence on examination in January 2016 of ankylosis of the thoracolumbar spine, nor was there evidence of any neurological deficits, other than radiculopathy of the left lower extremity, which the Veteran is already being compensated for. See July 2016 rating decision. Accordingly, the Board finds that the evidence required for a 40 percent or higher evaluation for the lumbar spine disability under the general rating formula is not shown for this period.
The Board also finds that a higher rating is not available under the formula for rating intervertebral disc syndrome based on incapacitating episodes at any time during the appeal. In this regard, although IVDS was noted on examination in January 2016, the Veteran denied any incapacitating episodes due to back pain on VA examination in 2014 and 2016, and there is no documentary evidence of any incapacitating episodes or physician-prescribed bed rest for the Veteran's lumbar spine disability at any time during the appeal period. Therefore, a rating in excess of 10 or 20 percent under Diagnostic Code 5243 based on incapacitating episodes is not warranted for the lumbar spine disability.
The Board also finds that a higher rating is not warranted for the lumbar spine disability at any time during the appeal under DeLuca. The Veteran has complained of flare-ups of back pain, which cause decreased range of motion. The September 2014 and January 2016 VA examiners noted that there was functional impairment due to back pain in the form of pain on movement, weakness, lack of endurance and less movement than normal, as noted above. They also noted that the Veteran used a back brace on a regular basis. Nevertheless, there was no additional loss of motion found following repetitive use testing for the lumbar spine during either examination. The September 2014 examiner noted that he could not give an opinion on additional functional limitations of the back during flare-ups because the Veteran was not experiencing flare-ups at the time of the examination. Likewise, the January 2016 examiner did not discuss the additional functional limitations of the back during flare-ups. However, the Veteran himself reported in 2014 that he was unable to move during flare-ups and in 2016 that his back hurt really bad during flare-ups and he was required to “take it real easy.” The Board notes that there is no evidence of ankylosis and the complaints of pain and less movement than normal are already accounted for in the disability ratings assigned for decreased range of motion. Painful motion can equate to limitation of motion. Lichtenfels v. Derwinski, 1 Vet. App. 484, 488 (1991). However, pain alone does not constitute a functional loss under VA regulations that evaluate disability based upon range-of-motion loss. Mitchell v. Shinseki, 25 Vet. App. 32 (2011). The Board notes that it is evident that the Veteran's functional impairment was already considered with the assignment of the current 10 and 20 percent ratings, which were essentially assigned for painful and limited motion. The Board also notes that although the Veteran has reported regularly using a back brace, he has not reported incapacitating episodes due to back pain. There is no other evidence of functional impairment due to the Veteran's lumbar spine disability at any time during the appeal. A higher rating would therefore not be warranted on the basis of functional impairment at any time during the appeal. Cf. DeLuca, 38 C.F.R. §§ 4.40, 4.45.
The Veteran is competent to report the symptoms of his lumbar spine disability. His complaints are credible. The Veteran's complaints have been considered in the above noted evidence; however, evaluations for VA purposes have not shown the severity required for higher schedular ratings, as discussed above. To the extent that the Veteran argues or suggests that the clinical data supports increased disability ratings or that the rating criteria should not be employed, he is not competent to make such an assertion. See Espiritu v. Derwinski, 2 Vet. App. at 494. VA must only consider the factors as enumerated in the rating criteria discussed above, which in part involve the examination of clinical data gathered by competent medical professionals. See Massey v. Brown, 7 Vet. App. at 208.
After examining all the evidence, the Board concludes that the weight of the evidence is against a rating in excess of 10 percent prior to January 27, 2016, and in excess of 20 percent beginning January 27, 2016 for the lumbar spine disability. 38 U.S.C. § 5107 (b) (2012); 38 C.F.R. § 4.71a, Diagnostic Codes 5235-5237 (2018).
Consideration under 38 C.F.R. § 3.321 (b)(1) has not been specifically sought by the Veteran or reasonably raised by the facts found by the Board. As such, there is no basis for extraschedular discussion in this case. See Yancy v. McDonald, 27 Vet. App. 484, 494 (2016).
7. Entitlement to a rating in excess of 20 percent for a right ankle internal derangement, to include entitlement to an effective date earlier than June 14, 2014 for the grant of a 20 percent rating 
Limited motion of the ankle is rated under Diagnostic Code 5271. A 10 percent rating is warranted for moderate limitation of motion and a 20 percent rating for marked limitation of motion. 38 C.F.R. § 4.71a, Diagnostic Code 5271. Normal range of motion of the ankle is measured as 0-20 degrees of dorsiflexion and 0-45 degrees of plantar flexion. 38 C.F.R. § 4.71, Plate II (2018).
Ankylosis of an ankle warrants a 20 percent evaluation if it is in plantar flexion, at less than 30 degrees. A 30 percent evaluation is warranted if the ankylosis is in plantar flexion, between 30 and 40 degrees, or in dorsiflexion, between 0 and 10 degrees. A 40 percent evaluation is warranted if the ankylosis is in plantar flexion at more than 40 degrees, or in dorsiflexion at more than 10 degrees or with abduction, adduction, inversion or eversion deformity. 38 C.F.R. § 4.71a, Diagnostic Code 5270.
In August 2012, the Veteran filed his initial claim for service connection for a right ankle disability. In a September 2013 rating decision, the RO granted service connection for internal derangement of the right ankle. A 10 percent evaluation was assigned, effective August 9, 2012. In June 2014, the Veteran filed a claim for an increased rating for the right ankle disability.
The Board finds that a 20 percent rating is warranted for the right ankle disability for the entire period on appeal.
On VA examination on August 1, 2013, right ankle plantar flexion was 30 degrees even with pain and right ankle dorsiflexion was 20 degrees even with pain. After repetitive use testing, plantar flexion was reduced to 25 degrees and dorsiflexion was reduced to 15 degrees. No ankylosis was shown.
On VA examination in September 2014, right ankle plantar flexion was 25 degrees even with pain and right ankle dorsiflexion was 0 degrees, with pain. There was no reduction in range of motion after repetitive use testing. No ankylosis was shown.
On VA examination in February 2016, plantar flexion was to 40 degrees and dorsiflexion was to 10 degrees. No ankylosis was shown.
As normal range of motion for the ankle is 20 degrees of dorsiflexion and 45 degrees of plantar flexion, resolving reasonable doubt in the Veteran’s favor, the Board finds that the findings of 25 degrees of plantar flexion following repetitive testing on VA examination in August 2013, as well as 0 degrees of dorsiflexion on VA examination in September 2014 and February 2016 are indicative of marked limitation of motion in the right ankle, and a 20 percent rating is warranted under Diagnostic Code 5271. The Board also finds that as the August 2013 examination was the first examination the Veteran was afforded prior to the September 2013 rating decision, the findings noted in the August 2013 examination were likely present at the time the Veteran filed his initial claim in August 2012. As such, a 20 percent rating is warranted from August 9, 2012.
The Veteran's right ankle disability is currently evaluated as 20 percent disabling under DC 5271 on the basis of marked limitation of motion of the ankle. 38 C.F.R. § 4.71a, DC 5271. This is the highest evaluation available under DC 5271 governing limitation of motion. 
The rating schedule does not provide for a higher rating for an ankle disability, absent a showing of ankylosis, which is not present in this case. See August 2013, September 2014 and February 2016 VA examinations. Therefore, a higher disability rating under Diagnostic Code 5270 is not warranted. As this is the only provision that would allow for a rating greater than 20 percent, a rating in excess of 20 percent is denied.
The Board also notes that the provisions of 38 C.F.R. §§ 4.40, 4.45 are not for consideration where the Veteran is in receipt of the highest rating based on limitation of motion and a higher rating requires ankylosis. Johnston v. Brown, 10 Vet. App. 80, 84-5 (1997).
Consideration under 38 C.F.R. § 3.321 (b)(1) has not been specifically sought by the Veteran or reasonably raised by the facts found by the Board. As such, there is no basis for extraschedular discussion in this case. See Yancy v. McDonald, 27 Vet. App. 484, 494 (2016).
The Board also notes that, as the Veteran is being granted a 20 percent rating for the right ankle disability beginning August 9, 2012, the effective date of service connection for the right ankle internal derangement, the issue of entitlement to an effective date prior to June 14, 2014 for the grant of a 20 percent rating for the right ankle disability is moot.
8. Entitlement to an initial rating in excess of 10 percent for a left ankle sprain
In June 2014, the Veteran filed his initial claim for service connection for a left ankle disability. In a July 2016 rating decision, the RO granted service connection for a left ankle sprain. A 10 percent evaluation was assigned, effective June 13, 2014. The Veteran has appealed this initial rating.
The Board finds that a 20 percent rating is warranted for the left ankle disability for the entire period on appeal.
In this regard, on VA examination in September 2014, left ankle plantar flexion was 25 degrees with no pain and dorsiflexion was 0 degrees with no pain. There was no reduction in range of motion after repetitive use testing. No ankylosis was shown. On VA examination in January 2016, left ankle plantar flexion was slightly reduced to 40 degrees and dorsiflexion was reduced to 10 degrees. However, the examiner noted that there was pain on range of motion, which caused functional impairment.
As normal range of motion for the ankle is 20 degrees of dorsiflexion and 45 degrees of plantar flexion, resolving reasonable doubt in the Veteran’s favor, the Board finds that the findings of 25 degrees of plantar flexion and 0 degrees of dorsiflexion on VA examination in September 2014, as well as the reduced range of motion causing functional impairment on examination in January2016, is indicative of marked limitation of motion in the left ankle, and a 20 percent rating is warranted under Diagnostic Code 5271. The Board also finds that as the September 2014 examination was the first examination the Veteran was afforded prior to the July 2016 rating decision, the findings noted in the September 2014 examination were likely present at the time the Veteran filed his initial claim for the left ankle in June 2014. As such, a 20 percent rating is warranted from June 13, 2014.
The Veteran's left ankle disability is currently evaluated as 20 percent disabling under DC 5271 on the basis of marked limitation of motion of the ankle. 38 C.F.R. § 4.71a, DC 5271. This is the highest evaluation available under DC 5271 governing limitation of motion. 
The rating schedule does not provide for a higher rating for an ankle disability, absent a showing of ankylosis, which is not present in this case. See September 2014 and February 2016 VA examinations. Therefore, a higher disability rating under Diagnostic Code 5270 is not warranted. As this is the only provision that would allow for a rating greater than 20 percent, a rating in excess of 20 percent is denied.
The Board also notes that the provisions of 38 C.F.R. §§ 4.40, 4.45 are not for consideration where the Veteran is in receipt of the highest rating based on limitation of motion and a higher rating requires ankylosis. Johnston v. Brown, 10 Vet. App. 80, 84-5 (1997).
Consideration under 38 C.F.R. § 3.321 (b)(1) has not been specifically sought by the Veteran or reasonably raised by the facts found by the Board. As such, there is no basis for extraschedular discussion in this case. See Yancy v. McDonald, 27 Vet. App. 484, 494 (2016).
9. Entitlement to an initial rating in excess of 10 percent for left lower extremity radiculopathy
Diagnostic Code 8721, concerning neuralgia, is subject to rating provisions of Diagnostic Code 8521, which provides that mild incomplete paralysis is rated as 10 percent disabling; moderate incomplete paralysis is rated 20 percent disabling; and severe incomplete paralysis is rated 30 percent disabling. 38 C.F.R. §§ 4.124a. Complete paralysis of the external popliteal nerve (common peroneal), involving foot drop and slight droop of first phalanges of all toes, cannot dorsiflex the foot, extension (dorsal flexion) of proximal phalanges of toes lost; abduction of foot lost, adduction weakened; anesthesia covers entire dorsum of foot and toes, is rated 40 percent disabling. Id.  When the involvement is wholly sensory, the rating should be for the mild, or at most the moderate degree. Id; Miller v. Shulkin, 28 Vet. App. 376 (2017) (finding that the plain language of the note to § 4.124a contains no mention of non-sensory manifestations and declining to read into the regulation a corresponding minimum disability rating for non-sensory manifestations).
The term "incomplete paralysis," with these and other peripheral nerve injuries, indicates a degree of lost or impaired function substantially less than the type picture for complete paralysis given with each nerve, whether due to varied level of the nerve lesion or to partial regeneration. When the involvement is wholly sensory, the rating should be for the mild, or at most, the moderate degree. The ratings for the peripheral nerves are for unilateral involvement; when bilateral, combine with application of the bilateral factor. 38 C.F.R. § 4.124a.
In rating peripheral nerve injuries and their residuals, attention should be given to the site and character of the injury, the relative impairment and motor function, trophic changes, or sensory disturbances. 38 C.F.R. § 4.120. Under 38 C.F.R. § 4.124a, disability from neurological disorders is rated from 10 to 100 percent in proportion to the impairment of motor, sensory, or mental function. With partial loss of use of one or more extremities from neurological lesions, rating is to be by comparison with mild, moderate, severe, or complete paralysis of the peripheral nerves. 
In rating peripheral nerve disability, neuritis-characterized by loss of reflexes, muscle atrophy, sensory disturbances, and constant pain, at times excruciating-is to be rated on the scale provided for injury of the nerve involved, with a maximum equal to severe, incomplete paralysis. The maximum rating to be assigned for neuritis not characterized by organic changes referred to in this section will be that for moderate incomplete paralysis, or with sciatic nerve involvement, for moderately severe incomplete paralysis. 38 C.F.R. § 4.123.
The words "slight," "moderate," and "severe" as used in the various diagnostic codes are not defined in the VA Schedule for Rating Disabilities. Rather than applying a mechanical formula, the Board must evaluate all of the evidence, to the end that its decisions are "equitable and just." 38 C.F.R. § 4.6. 
It should also be noted that use of terminology such as "severe" by VA examiners and others, although an element of evidence to be considered by the Board, is not dispositive of an issue. All evidence must be evaluated in arriving at a decision regarding an increased rating. 38 C.F.R. §§ 4.2, 4.6.
The Veteran's left lower extremity radiculopathy is rated as 10 percent disabling under Diagnostic Code 8721. The radiculopathy portion of the January 2016 VA examination report reflects complaints, which are mostly sensory and range in nature from mild to severe, including severe intermittent pain (usually dull), moderate paresthesias and/or dysesthesias, and mild numbness of the left lower extremity. Furthermore, there have been no objective findings of muscle dystrophy or trophic changes. Likewise, the January 2016 VA examiner characterized his left sciatic nerve condition as mild in nature. Based on the complaints and objective findings, the Veteran's radiculopathy affecting the sciatic nerve, left lower extremity, is mostly sensory, and the findings do not meet or nearly approximate the criteria for a disability rating in excess of 10 percent. See 38 C.F.R. § 4.124a, Diagnostic Code 8521. The examiner concluded that there was mild radiculopathy of the left lower extremity. 
10. Entitlement to a rating in excess of 40 percent for bilateral hearing loss
Ratings of defective hearing are based on organic impairment of hearing acuity as measured by the results of controlled speech discrimination testing together with the average hearing threshold level as measured by pure tone audiometry tests in the frequencies 1000, 2000, 3000 and 4000 Hertz. To rate the degree of disability from defective hearing, the revised rating schedule establishes eleven auditory acuity levels from Level I for essentially normal acuity through Level XI for profound deafness.
Under 38 C.F.R. § 4.85, Table VI, Numeric Designation of Hearing Impairment Based on Puretone Threshold Average and Speech Discrimination, is used to determine a Roman numeral designation (I through XI) for hearing impairment based on a combination of the percent of speech discrimination and the puretone threshold average. The Roman numeral designation is located at the point where the percentage of speech discrimination and puretone average intersect. 38 C.F.R. § 4.85 (b) (2018). The puretone threshold average is the sum of the puretone thresholds at 1000, 2000, 3000, and 4000 Hertz, divided by 4. That average is used in all cases to determine the Roman numeral designation for hearing impairment. 38 C.F.R. § 4.85 (d) (2018). Table VII, Percentage Evaluations for Hearing Impairment, is used to determine the rating by combining the Roman numeral designations for hearing impairment of each ear. The horizontal rows represent the ear having the better hearing and the vertical columns the ear having the poor hearing. The disability rating is located at the point where the row and column intersect. 38 C.F.R. § 4.85 (e) (2018). 
When the pure tone threshold at each of the four specified frequencies of 1000, 2000, 3000 and 4000 Hertz is 55 decibels or more, the rating specialist will determine the Roman Numeral designation for hearing impairment from either Table VI or Table VIA, whichever results in the higher numeral. Each ear will be evaluated separately. When the pure tone threshold is 30 decibels or less at 1000 Hertz, and 70 decibels or more at 2000 Hertz, the rating specialist will determine the Roman numeral designation for hearing impairment from either Table VI or Table VIA, whichever results in the higher numeral. That numeral will then be elevated to the higher Roman numeral. Each ear will be evaluated separately. 38 C.F.R. § 4.86 (2018).
In cases where the evaluation of hearing loss is at issue, an examination for VA purposes must be conducted by a state-licensed audiologist and must include a controlled Maryland CNC speech discrimination test and a puretone audiometry test. Examinations will be conducted without the use of hearing aids. 38 C.F.R. § 4.85 (a).
In a July 2009 rating decision, the RO granted service connection for bilateral hearing loss. A 40 percent rating was assigned, effective August 19, 2008. In June 2014, the Veteran filed a claim for an increased rating for his service-connected bilateral hearing loss. 
The Veteran was afforded a VA audiological examination in September 2014. The following audiometric findings were reported: 
Hertz (Hz):	1000	2000	3000	4000	Average
Right (db):	60	60	50	50	55 
Left (db):	70	60	65	45	60
Speech audiometry results revealed speech recognition ability of 96 percent in the right ear and 94 percent in the left ear. 
These values do not meet the criteria of 38 C.F.R. § 4.86 (a) or (b) for an exceptional pattern of hearing impairment. Applying these values to the rating criteria results in a numeric designation of level I in the right ear and level II in the left ear. See 38 C.F.R. § 4.85, Table VI (2018). Application of the level of hearing impairment in each ear to Table VII at 38 C.F.R. § 4.85 produces a rating of 0 percent.
The Veteran was afforded another VA examination in February 2016. The following audiometric findings were reported: 
Hertz (Hz):	1000	2000	3000	4000	Average
Right (db):	60	65	50	50	56 
Left (db):	65	65	55	60	61
Speech audiometry results revealed speech recognition ability of 96 percent in the right ear and 94 percent in the left ear.
These values meet the criteria of 38 C.F.R. § 4.86 (a) for an exceptional pattern of hearing impairment in the left ear. Applying these values to the rating criteria results in a numeric designation of level I in the right ear and level IV in the left ear. See 38 C.F.R. § 4.85, Table VI and Table VIA (2018). Application of the level of hearing impairment in each ear to Table VII at 38 C.F.R. § 4.85 produces a rating of 0 percent.
The Veteran was afforded his most recent VA examination in December 2016. The following audiometric findings were reported: 
Hertz (Hz):	1000	2000	3000	4000	Average
Right (db):	70	65	55	55	61 
Left (db):	75	70	60	50	64
Speech audiometry results revealed speech recognition ability of 94 percent in the right ear and 94 percent in the left ear. 
These values meet the criteria of 38 C.F.R. § 4.86 (a) for an exceptional pattern of hearing impairment in the right ear. Applying these values to the rating criteria results in a numeric designation of level IV in the right ear and level II in the left ear. See 38 C.F.R. § 4.85, Table VI and Table VIA (2018). Application of the level of hearing impairment in each ear to Table VII at 38 C.F.R. § 4.85 produces a rating of 0 percent.
Accordingly, the Board finds that, even with consideration of the functional impairment noted on VA examination in 2014 and 2016, there has been no point during the appeal period when the Veteran's hearing loss disability met or approximated the criteria for a rating in excess of 40 percent. The Board has considered whether a "staged" rating is appropriate. See Fenderson v. West, 12 Vet. App. 119, 126 (1999). The record, however, does not support assigning different percentage disability ratings during the period in question. 38 U.S.C. § 5107 (b) (2012); 38 C.F.R. § 4.7, 4.21 (2018).
Neither the Veteran nor his representative has raised any other issues, nor have any other issues been reasonably raised by the record. See Yancy v. McDonald, 27 Vet. App. 484, 495 (2016); Doucette v. Shulkin, 38 Vet. App. 366, 369-70 (2017).
11. Entitlement to an initial rating in excess of 10 percent for tinnitus
Historically, a July 2009 rating decision granted the Veteran service connection for tinnitus and assigned a 10 percent rating, effective August 19, 2008. The appellant asserts that a higher rating is warranted for the service-connected tinnitus. 
In Smith v. Nicholson, 19 Vet. App. 63, 78, (2005) the Court of Appeals for Veterans Claims (Court) held that the pre-1999 and pre-June 13, 2003, versions of Diagnostic Code 6260 required the assignment of dual ratings for bilateral tinnitus. VA appealed this decision to the Federal Circuit. 
In Smith v. Nicholson, 451 F.3d 1344 (Fed. Cir. 2006), the Federal Circuit concluded that the Court erred in not deferring to the VA's interpretation of its own regulations, 38 C.F.R. § 4.25 (b) and Diagnostic Code 6260, which limit a veteran to a single disability rating for tinnitus, regardless whether the tinnitus is unilateral or bilateral. 
The current version of Diagnostic Code 6260 explicitly prohibits a schedular rating in excess of 10 percent for tinnitus whether perceived in one ear or both. 
Thus, the claim for a schedular rating in excess of 10 percent for tinnitus, including based on assignment of separate 10 percent ratings for each ear, must be denied as lacking legal merit. Sabonis v. Brown, 6 Vet. App. 426 (1994). The claim for an increased rating for tinnitus is denied.
 
REASONS FOR REMAND
1. Entitlement to service connection for a sleep condition is remanded.
Service treatment records are negative for any evidence of a sleep disorder during active duty or at discharge. VA treatment records are also negative for any evidence of a diagnosed sleep disorder.
In support of his claim, the Veteran has submitted a private medical opinion, diagnosing him with chronic sleep impairment, including insomnia and broken sleep, as well as a January 2018 sleep study where he was diagnosed with obstructive sleep apnea.  The Veteran has also submitted a medical journal article detailing the connection between sleep apnea and psychiatric conditions. The Board finds that this evidence suggests that the Veteran has a currently diagnosed sleep condition that may be related to his currently diagnosed depressive disorder, which he is being granted service connection for in this decision. 
There is no VA medical opinion of record addressing whether the Veteran's currently diagnosed sleep disorder was caused or aggravated by his now service-connected depressive disorder. The Board is required to consider all theories of entitlement to service connection. See Szemraj v. Principi, 357 F.3d 1370, 1371 (Fed. Cir. 2004), and Roberson v. Principi, 251 F.3d 1378, 1384 (Fed. Cir. 2001) (explaining that the Board must consider all potential theories of entitlement raised by the evidence). 
As such, the Board finds that a remand for a new examination and medical opinion as to the etiology of any currently diagnosed sleep disorder is necessary. See 38 C.F.R. § 4.2 (2018).
2. Whether new and material evidence has been received to reopen a claim of entitlement to service connection for a left knee disability, to include as secondary to service-connected lumbar spine disability is remanded.
3. Whether new and material evidence has been received to reopen a claim of entitlement to service connection for a right disability, to include as secondary to service-connected lumbar spine disability is remanded.
The Veteran contends that his currently diagnosed left and right knee disabilities are related to service or his service-connected lumbar spine disability.
In a February 2010 rating decision, the RO denied service connection for degenerative arthritis of the left and right knee joints, based on a finding that the evidence did not show the left or right knee arthritis was caused during military service, that it manifested to a compensable degree within one year of the Veteran’s discharge, or that it was related to his service-connected lumbar spine degenerative arthritis. The Veteran did not file an appeal and the decision became final. In June 2014, the Veteran filed a petition to reopen his claim for service connection for a bilateral knee condition.
Service treatment records are negative for any evidence of a left or right knee disability during service or at discharge. The post-service medical evidence of record shows that the Veteran has been diagnosed with degenerative arthritis of the left and right knee joints.
The Veteran was afforded a VA examination in January 2010.  The examiner concluded that there was no supporting evidence to correlate the left or right knee disabilities with service and opined that the bilateral knee disability could not be considered to have its etiology in service. The examiner provided no further explanation for this opinion. As such, this portion of the opinion is incomplete and therefore, inadequate for evaluation purposes. In response to the question of whether the right or left knee disabilities were caused or aggravated by the service-connected lumbar spine disability, the examiner stated “n/a.” The Board finds that the examiner’s response is not responsive to the question, and therefore, it is incomplete and inadequate for evaluation purposes. Once VA undertakes to provide an examination it is obligated to ensure that the examination is adequate. Barr v. Nicholson, 21 Vet. App. 303 (2007). As such, the Board finds that a remand for a new examination and medical opinion as to the etiology of the Veteran's current right and left knee disabilities is necessary. See 38 C.F.R. § 4.2 (2018).
The matter is REMANDED for the following action:
1. Updated treatment records should be obtained and associated with the claims file/e-folder.
2. Following completion of the above, afford the Veteran an appropriate VA examination to determine the nature and etiology of any currently diagnosed right and left knee disability, including degenerative arthritis of the right and left knee. The claims folder should be made available to the examiner for review in connection with the examination and the examiner should acknowledge such review in the examination report or in an addendum. Any indicated studies should be performed. 
The examiner should provide an opinion as to whether it is at least as likely as not (50 percent probability or more) that a current right or left knee disability originated while the Veteran was serving on active duty or is otherwise related to a disease or injury in service.
The examiner should also provide an opinion as to whether it is at least as likely as not (50 percent probability or greater) that any current right knee disability was caused or aggravated by the service-connected right lumbar spine disability.
The examiner is advised that the Veteran is competent to report injuries and symptoms and that his reports must be considered in formulating the requested opinions. 
A complete rationale should be given for all opinions and conclusions expressed. 
If the examiner cannot provide an opinion without resort to speculation, the examiner should provide an explanation as to why this is so and whether there is additional evidence that would permit the opinion to be provided.
3. Afford the Veteran an appropriate VA examination to determine the nature and etiology of any currently diagnosed sleep disorder, including obstructive sleep apnea. The claims folder should be made available to the examiner for review in connection with the examination and the examiner should acknowledge such review in the examination report or in an addendum. Any indicated studies should be performed. 
The examiner should provide an opinion as to whether it is at least as likely as not (50 percent probability or greater) that a current sleep disorder originated while the Veteran was serving on active duty or is otherwise related to a disease or injury in service.
The examiner should also provide an opinion as to whether it is at least as likely as not (50 percent probability or more) that any current sleep disorder was caused or aggravated by the service-connected depressive disorder.
The examiner is advised that the Veteran is competent to report injuries and symptoms and that his reports must be considered in formulating the requested opinions. 
A complete rationale should be given for all opinions and conclusions expressed. 
If the examiner cannot provide an opinion without resort to speculation, the examiner should provide an explanation as to why this is so and whether there is additional evidence that would permit the opinion to be provided.
4. After completing the above, and any other development deemed necessary, readjudicate the Veteran's remaining claims, based on the entirety of the evidence. If any benefit sought on appeal is not granted to the Veteran's satisfaction, he and his representative should be provided with a supplemental statement of the case. An appropriate period of time should be allowed for response. The case should then be returned to the Board, if otherwise in order.

 
KELLI A. KORDICH
Veterans Law Judge
Board of Veterans’ Appeals
ATTORNEY FOR THE BOARD	F. Yankey, Counsel