Citation Nr: 18149883 Decision Date: 11/14/18 Archive Date: 11/13/18 DOCKET NO. 16-55 074 DATE: November 14, 2018 ORDER New and material evidence having been received, the application to reopen the previously denied claim of entitlement to service connection for left hip disability is granted. New and material evidence having been received, the application to reopen the previously denied claim of entitlement to service connection for a right hip disability is granted. Entitlement to service connection for status post cervical spine fusion for degenerative disc disease is denied. Entitlement to service connection for right knee arthritis is denied. Entitlement to service connection for a right hip disability is denied. Entitlement to service connection for erectile dysfunction is denied. Entitlement to a rating in excess of 40 percent for degenerative disc disease of the lumbar spine is denied. Entitlement to a rating in excess of 20 percent for radiculopathy of the left lower extremity is denied. Entitlement to nonservice-connected pension is denied. REMANDED Entitlement to service connection for a left hip disability is remanded. Entitlement to service connection for a psychiatric disability, to include posttraumatic stress disorder (PTSD) and depressive disorder is remanded. Entitlement to a total rating based on individual unemployability by reason of service-connected disability (TDIU) is remanded. FINDINGS OF FACT 1. In a June 2002 rating decision, the RO denied service connection for a left hip disability. Although the Veteran was notified of the decision and his appellate rights in a July 2002 letter, he did not perfect an appeal within the applicable time period, nor was new and material evidence received within one year of the decision. 2. The evidence received since the final June 2002 rating decision denying service connection for a left hip disability includes evidence which relates to an unestablished fact necessary to substantiate the claim and raises a reasonable possibility of substantiating the claim of service connection for a left hip disability. 3. In a January 2012 rating decision, the RO denied service connection for a right hip disability (claimed as a bilateral hip disability). Although the Veteran was notified of the decision and his appellate rights in a January 2012 letter, he did not perfect an appeal within the applicable time period, nor was new and material evidence received within one year of the decision. 4. The evidence received since the final January 2012 rating decision denying service connection for a right hip disability includes evidence which relates to an unestablished fact necessary to substantiate the claim and raises a reasonable possibility of substantiating the claim of service connection for a right hip disability. 5. A cervical spine disorder was not present during the Veteran’s active service, arthritis of the cervical spine was not shown to have been manifested to a compensable degree within one year of service separation, and the most probative evidence establishes that the Veteran’s current cervical spine disability is not causally related to his active service or any incident therein. 6. A right knee disability was not present during the Veteran’s active service, arthritis of the right knee was not shown to have been manifested to a compensable degree within one year of service separation, and the most probative evidence establishes that the Veteran’s current right knee disability is not causally related to his active service or any incident therein. 7. A right hip disability was not present during the Veteran’s active service, arthritis of the right hip was not shown to have been manifested to a compensable degree within one year of service separation, and the most probative evidence establishes that the Veteran’s current right hip disability is not causally related to his active service or any incident therein. 8. Erectile dysfunction was not present during active service and the record contains no indication that any current claimed erectile dysfunction is causally related to the Veteran’s active service or any incident therein. 9. Throughout the rating period on appeal, the Veteran’s lumbar spine disability has been manifested by decreased range of motion with pain, but there has been no evidence of unfavorable ankylosis of the thoracolumbar spine. At no time has the service-connected lumbar spine disability been manifested by incapacitating episodes having a total duration of at least 6 weeks in any 12-month period. 10. Throughout the rating period on appeal, the Veteran’s radiculopathy of the left lower extremity was manifested by moderate to severe symptoms; the overall disability picture is shown to be no more than moderate in nature. 11. The Veteran’s countable annual income exceeds the maximum annual pension rate limit set by law for payment of VA nonservice-connected pension benefits. CONCLUSIONS OF LAW 1. The June 2002 rating decision denying the claim of service connection for a left hip disability is final. 38 U.S.C. § 4004(b) (2002); 38 C.F.R. § 19.104 (2002). 2. New and material evidence has been received to warrant reopening of the claim of service connection for a left hip disability. 38 U.S.C. §§ 5107, 5108 (2014); 38 C.F.R. § 3.156 (2017). 3. The January 2012 rating decision denying the claim of service connection for a right hip disability is final. 38 U.S.C. § 4004(b) (2002); 38 C.F.R. § 19.104 (2012). 4. New and material evidence has been received to warrant reopening of the claim of service connection for a right hip disability. 38 U.S.C. §§ 5107, 5108 (2014); 38 C.F.R. § 3.156 (2017). 5. The criteria for service connection for status post cervical spine fusion for degenerative disc disease have not been met. 38 U.S.C. §§ 101, 1131, 5107 (2014); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2017). 6. The criteria for service connection for right knee arthritis have not been met. 38 U.S.C. §§ 101, 1131, 5107 (2014); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2017). 7. The criteria for service connection for right hip disability have not been met. 38 U.S.C. §§ 101, 1131, 5107 (2014); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2017). 8. The criteria for service connection for erectile dysfunction have not been met. 38 U.S.C. §§ 1110, 5107 (2014); 38 C.F.R. § 3.303 (2017). 9. The criteria for a rating in excess of 40 percent for degenerative disc disease of the lumbar spine have not been met. 38 U.S.C. §§ 1155, 5107 (2014); 38 C.F.R. § 4.71a, Diagnostic Code 5242 (2017). 10. The criteria for a rating in excess of 20 percent for radiculopathy of the left lower extremity have not been met. 38 U.S.C. §§ 1155, 5107 (2014); 38 C.F.R. §§ 4.120, 4.123, 4.124a, Diagnostic Code 8520 (2017). 11. The criteria for nonservice-connected pension benefits have not been met. 38 U.S.C. §§ 1503, 1521 (2014); 38 C.F.R. §§ 3.23, 3.271, 3.272 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active military service from January 1989 to April 1991. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from March 2009, August 2014, November 2016, and March 2017 rating decisions and an August 2014 determination issued by the Department of Veterans Affairs (VA) Regional Office (RO). Jurisdiction of appeal is with the RO in Columbia, South Carolina. In the appellant’s October 2009 substantive appeal (VA Form 9), he requested a Board hearing, which was subsequently scheduled in July 2016. In correspondence received in June 2016, the appellant requested that his appeal be continued without a hearing. In light of the forgoing, the hearing request is considered withdrawn. 38 C.F.R. § 20.704(e) (2017). The Board acknowledges that the psychiatric disability issue on appeal was characterized by the RO as entitlement to service connection for PTSD. In light of the evidence of record reflecting additional psychiatric diagnoses, the Board has recharacterized the issue more broadly in order to clarify the nature of the benefit sought. See Clemons v. Shinseki, 23 Vet. App. 1, 5-6, 8 (2009) (holding that the scope of a mental health disability claim includes any mental disability that may reasonably be encompassed by a claimant’s description of the claim, reported symptoms, and the other information of record). The Veteran is not prejudiced by the recharacterization of the issue, as the matter is being remanded for additional evidentiary development with subsequent reconsideration by the RO. See Bernard v. Brown, 4 Vet. App. 384 (1993). Petitions to Reopen In general, decisions of the RO and the Board that are not appealed in the prescribed time period are final. 38 U.S.C. 7104, 7105 (2014); 38 C.F.R. 20.1100, 20.1103 (2017). Pursuant to 38 U.S.C. 5108, a finally disallowed claim may be reopened when new and material evidence is presented or secured with respect to that claim. New evidence means existing evidence not previously submitted to agency decision makers. Material evidence means existing evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. New and material evidence can be neither cumulative nor redundant of the evidence of record at the time of the last prior final denial of the claim sought to be reopened, and must raise a reasonable possibility of substantiating the claim. 38 C.F.R. 3.156 (2017). To reopen a previously disallowed claim, new and material evidence must be presented or secured since the last final disallowance of the claim on any basis, including on the basis that there was no new and material evidence to reopen the claim since a prior final disallowance. See Evans v. Brown, 9 Vet. App. 273, 285 (1996). For purposes of reopening a claim, the credibility of newly submitted evidence is generally presumed. See Justus v. Principi, 3 Vet. App. 510, 513 (1992). The threshold for determining whether new and material evidence raises a reasonable possibility of substantiating a claim is low. See Shade v. Shinseki, 24 Vet. App. 110, 117 (2010). Furthermore, in determining whether this low threshold is met, VA should not limit its consideration to whether the newly submitted evidence relates specifically to the reason why the claim was last denied, but instead should ask whether the evidence could reasonably substantiate the claim were the claim to be reopened, to include by triggering the Secretary’s duty to assist. Id. at 118. 1. Whether new and material evidence has been received to reopen the previously denied claim of entitlement to service connection for a left hip disability The Veteran’s claim of service connection for a left hip disability was initially denied in a June 2002 rating decision because, although service treatment records showed that the appellant hurt his hip during military service, the injury resolved. Further, there was no evidence that the appellant received medical treatment for a left hip disability since discharge from military service in 1991. The Veteran was notified of the decision and his appellate rights in a July 2002 letter. He did not appeal the RO’s determination and no new and material evidence was received within a year of the issuance of the rating decision. Thus, the RO’s June 2002 rating decision is final and not subject to revision on the same factual basis. See 38 U.S.C. § 7105(c) (2002); 38 C.F.R. §§ 3.104, 20.1103 (2002). The Veteran now seeks to reopen the previously denied claim of service connection for a left hip disability. As noted above, despite the finality of a prior adverse decision, a claim will be reopened and the former disposition reviewed if new and material evidence is presented or secured with respect to the claim which has been disallowed. 38 U.S.C. § 5108 (2014); 38 C.F.R. § 3.156 (2017). The evidence of record at the time of the June 2002 rating decision included service treatment records and the report of a May 2002 VA examination in which there was no finding of a left hip disability. The additional evidence received since the final January 2002 rating decision includes post-service medical records demonstrating treatment for hip pain and x-ray findings of degenerative changes. Also of record are lay statements from the appellant in which he asserts that his left hip pain has persisted since military service. The Board has carefully considered the record, with particular attention to the additional evidence received since the final June 2002 rating decision. After considering this additional evidence, the Board concludes that it is new and material warranting reopening of the claim of service connection a left hip disability. In this regard, the previous claim was denied because the Veteran’s in-service left hip disability had resolved and there was no evidence showing that the Veteran had been treated for a chronic left hip disability following separation from military service. As detailed herein, the evidence subsequent to the June 2002 rating decision includes medical records showing treatment for left hip pain and degenerative changes. The evidence also includes lay evidence suggesting that symptoms associated with the claimed disability have persisted since military service. The Board finds that this evidence, when presumed credible, relates to unestablished facts necessary to substantiate the claim and would trigger VA’s duty to provide a medical examination to determine if the appellant’s current left hip disability is causally related to military service. 38 C.F.R. § 3.159 (c)(4) (2014); McLendon v. Nicholson, 20 Vet. App. 79 (2006). Under these circumstances, the Board finds that new and material evidence has been presented. Shade v. Shinseki, 24 Vet. App. 110, 117-18 (2010). Accordingly, the Board finds that the Veteran’s previously denied claim of service connection for a left hip disability is reopened. 38 U.S.C. § 5108 (2014); 38 C.F.R. § 3.156 (2017). Although the record is sufficient to warrant reopening of the claim, it is not sufficient to allow the grant of the benefits sought. For reasons explained below, additional development is necessary before the Board may proceed with a decision on the merits. 2. Whether new and material evidence has been received to reopen the previously denied claim of entitlement to service connection for a right hip disability The Veteran’s claim of service connection for a right hip disability (claimed as a bilateral hip disability) was initially denied in a January 2012 rating decision because there was no evidence showing that a hip disease or injury had been clinically diagnosed. The Veteran was notified of the decision and his appellate rights in a January 2012 letter. He did not appeal the RO’s determination and no new and material evidence was received within a year of the issuance of the rating decision. Thus, the RO’s January 2012 rating decision is final and not subject to revision on the same factual basis. See 38 U.S.C. § 7105(c) (2002); 38 C.F.R. §§ 3.104, 20.1103 (2012). The Veteran now seeks to reopen the previously denied claim of service connection for a right hip disability. As noted above, despite the finality of a prior adverse decision, a claim will be reopened and the former disposition reviewed if new and material evidence is presented or secured with respect to the claim which has been disallowed. 38 U.S.C. § 5108 (2014); 38 C.F.R. § 3.156 (2017). The evidence of record at the time of the January 2012 rating decision included service treatment records and post-service VA treatment records. The additional evidence received since the final January 2012 rating decision includes additional post-service medical records demonstrating treatment for hip pain and x-ray findings of degenerative and arthritic changes. Records from the Social Security Administration (SSA) have also been associated with the claims file. Such records include the report of a June 2013 private comprehensive orthopedic disability medical examination in which the physician indicated that x-ray findings did not show arthritis. However, right hip bursitis was assessed. The Board has carefully considered the record, with particular attention to the additional evidence received since the final January 2012 rating decision. After considering this additional evidence, the Board concludes that it is new and material warranting reopening of the claim of service connection a right hip disability. In this regard, the previous claim was denied because there was no evidence of a right hip disability. As detailed herein, the evidence subsequent to the January 2012 rating decision includes evidence of a diagnosed right hip disability. Under these circumstances, the Board finds that new and material evidence has been presented. Shade v. Shinseki, 24 Vet. App. 110, 117-18 (2010). Accordingly, the Board finds that the Veteran’s previously denied claim of service connection for a right hip is reopened. 38 U.S.C. § 5108 (2014); 38 C.F.R. § 3.156 (2017). Service Connection—Laws and Analysis Service connection may be granted for disability resulting from personal injury suffered or disease contracted in the line of duty or for aggravation of a pre-existing injury or disease in the line of duty. 38 U.S.C. §§ 1110, 1131 (2012); 38 C.F.R. §§ 3.303, 3.304, 3.306 (2017). Service connection may also be granted for any injury or disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease or injury was incurred in service. 38 C.F.R. § 3.303(d) (2017). Service connection for certain chronic diseases may also be established on a presumptive basis by showing that such a disease manifested itself to a degree of 10 percent or more within one year from the date of separation from service. 38 U.S.C. §§ 1101, 1112, 1137 (2014); 38 C.F.R. §§ 3.307 (a)(3), 3.309(a) (2017). In such cases, the disease is presumed under the law to have had its onset in service even though there is no evidence of such disease during the period of service. 38 C.F.R. § 3.307 (a) (2017); see also Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). For the showing of chronic disease in service, there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time. If chronicity in service is not established, a showing of continuity of symptoms after discharge is required to support the claim. 38 C.F.R. § 3.303(b). A claimant can establish continuity of symptomatology with competent evidence showing: (1) that a condition was noted during service; (2) post-service continuity of the same symptomatology; and (3) a nexus between a current disability and the post-service symptomatology. Savage v. Gober, 10 Vet. App. 488, 495-96 (1997); 38 C.F.R. § 3.303 (b). The standard of proof to be applied in decisions on claims for VA benefits is set forth in 38 U.S.C. § 5107(b). Under that provision, VA 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 a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107(b) (2014); see also Gilbert v. Derwinski, 1 Vet. App. 49 (1990). 3. Entitlement to service connection for status post cervical spine fusion for degenerative disc disease The Veteran asserts that service connection is warranted for a cervical spine disability. Neither the appellant nor his representative have provided any argument in support of this contention. Service treatment records are negative for treatment for or a diagnosis of a cervical spine injury or disability. Notably, at the time of the March 1991 military separation examination, clinical evaluation of the neck was normal. In the accompanying report of medical history, there was no documentation of a neck injury and the appellant indicated that he was in good health. Records provided by SSA show that the appellant suffered a neck injury following military service. Specifically, in private emergency room records dated in August 2008, it was noted that the Veteran had neck and back pain when he fell off a bed on August 2, 2008. The Veteran indicated that his neck pain started at that time. A subsequent March 2009 private physical therapy note further details that the Veteran was involved in a motor vehicle accident where he fell in the cab of the truck he was driving and suddenly experienced neck and low back pain. In a March 2010 private progress note, the physician indicated that the problems with the appellant’s neck seemed to be related to more recent injuries of being ejected from a sleeper on a truck. A March 2012 opinion from the Workers Compensation Commission detailed that on August 2, 2008, the Veteran contended that while he was engaged in work for his employer, he sustained injuries to his back, neck, and left leg a result of falling from the sleeper bed in the sleeper berth of the truck when the truck suddenly stopped. VA x-ray findings revealed mild central stenosis C5-C6, neural foraminal narrowing and subtle osteophyte C6-C7, and multilevel osteoarthritis. After a review of the evidence, the Board finds that the preponderance of the evidence is against the claim of service connection for a cervical spine disability. At the outset, the evidence demonstrates that arthritis of the cervical spine has been assessed. As such, service connection may be warranted on the basis of continuity of symptoms or on a presumptive basis. However, neither the Veteran nor the contemporaneous evidence shows that the Veteran’s neck disability had its onset during miliary service and has continued since that time. As set forth above, service treatment records corresponding to the Veteran’s period of active duty are entirely negative for complaints or findings of a neck disability, including cervical spine arthritis. Further, the most probative evidence indicates that symptoms associated with the appellant’s neck disability did not persist on a continuous basis after service. In this regard, neck pain was first noted following an August 2008 work related injury. Thus, the Board finds that the most probative evidence establishes that a chronic neck disability was not present during active service and that continuity of symptomatology has not been established by the record. Additionally, the record contains no indication, lay or clinical, that the appellant’s cervical spine disability manifested to a compensable degree within one year of separation from active service in April 1991. As detailed above, the most probative evidence establishes that neck symptoms were not present during the first post-service year. Post-service medical evidence first notes neck pain following in August 2008. The Veteran has not contended otherwise. As such, service connection for a neck disability on a presumptive basis is also not warranted. Although the most probative evidence establishes that a cervical spine disability was not present during the appellant’s period of active service or manifested to a compensable degree within one year of separation from such service, service connection may nonetheless 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). In this case, however, the record preponderates against finding that the Veteran’s current cervical spine disability is causally related to his active service. While medical evidence demonstrates that the Veteran has been diagnosed with a cervical spine disability, there is no evidence to suggest that the disability had its onset during active service. Instead, the available evidence indicates that the cervical spine disability did not develop until many years after active service separation. The Veteran has not contended otherwise. The Board observes that in the Veteran’s application for VA benefits, he provided no information regarding the date of onset of the claimed condition. However, private treatment records demonstrate that the Veteran’s neck pain started in August 2008 following a work-related injury. Moreover, the record on appeal contains no indication that any medical professional has related the Veteran’s diagnosed cervical spine disability to his active service or any incident therein. As noted above, a private physician determined that the claimed condition seemed to be do the motor vehicle accident. In summary, the Board finds that the most probative evidence shows that the Veteran’s current cervical spine disability did not have its onset during active service, did not manifest to a compensable degree within one year of service separation, and is not causally related to his active service or any incident therein. For these reasons, the preponderance of the evidence is against the service connection claim. 38 U.S.C. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). 4. Entitlement to service connection for right knee arthritis The Veteran asserts that service connection is warranted for right knee arthritis. Neither the appellant nor his representative have provided any argument in support of this contention. Service treatment records are negative for treatment for or a diagnosis of a right knee injury or disability, to include arthritis. Notably, at the time of the March 1991 military separation examination, clinical evaluation of the lower extremities was normal. In the accompanying report of medical history, the Veteran denied arthritis, rheumatism, or bursitis and there was no complaint of any right knee disability or symptoms thereof. Post-service-records note complaints of knee pain. Notably, in a December 2015 VA primary care note, the Veteran presented with complaints of multiple joint pain, to include pain in the knees. Multiple joint pain was assessed. Arthritis was also diagnosed; however, the physician did not indicate whether such diagnosis included the Veteran’s reported knee pain. After a review of the evidence, the Board finds that the preponderance of the evidence is against the claim of service connection for a right knee disability. At the outset, the evidence demonstrates that arthritis of the right knee has been assessed. As noted above, in a December 2015 VA treatment record, it was noted that the Veteran presented with joint pain, which included complaints of knee pain. The physician made a general diagnosis of arthritis, but did not specify whether such diagnosis was for a specific joint. Thus, the Board presumes that such assessment includes the appellant’s right knee. As such, service connection may be warranted on the basis of continuity of symptoms or on a presumptive basis. However, neither the Veteran nor the contemporaneous evidence shows that the appellant’s right knee disability had its onset during miliary service and has continued since that time. As such, service connection based on continuity of symptomatology is not warranted. Further, the record contains no indication, lay or clinical, that the Veteran’s claimed disability manifested to a compensable degree within one year of separation from active service in April 1991. Thus, service connection for on a presumptive basis is also not warranted. Notwithstanding, the Board has considered whether service connection on a direct basis is warranted. 38 C.F.R. § 3.303(d). In this case, however, there is no evidence to suggest that the right knee disability had its onset during active service. Instead, the available evidence indicates that the claimed disability did not develop until many years after active service separation. The Veteran has not contended otherwise. The Board observes that in the Veteran’s application for VA benefits, he provided no information regarding the date of onset of the claimed condition. Moreover, the record on appeal contains no indication that any medical professional has related the Veteran’s diagnosed right knee disability to his active service or any incident therein. As such, direct service connection is not warranted. In summary, the Board finds that the most probative evidence shows that the Veteran’s current right knee disability did not have its onset during active service, did not manifest to a compensable degree within one year of service separation, and is not causally related to his active service or any incident therein. For these reasons, the preponderance of the evidence is against the service connection claim. 38 U.S.C. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). 5. Entitlement to service connection for a right hip disability The Veteran asserts that service connection is warranted for right hip arthritis. Neither the appellant nor his representative have provided any argument in support of this contention. Service treatment records are negative for treatment for or a diagnosis of a right hip injury or disability. While the records show complaints of left hip pain, such complaints were not documented for the right hip. The lower extremities were clinically normal on evaluation at the time of the March 1991 military separation examination. In the accompanying report of medical history, the Veteran denied arthritis, rheumatism, or bursitis and there was no documentation of any right hip disability or symptoms thereof. Post-service-records note complaints of right hip pain. In a clinical record dated in September 2012 provided by the SSA, it was noted that the Veteran was involved in a motorcycle accident. In part, the Veteran reported hip pain following the accident. In a June 2013 comprehensive orthopedic disability medical examination, the physician reported that x-ray findings were consistent with bursitis. A December 2015 VA x-ray report noted degenerative changes to the right hip. A subsequent VA record noted a diagnosis of arthritis following complaints of joint pain. After a review of the evidence, the Board finds that the preponderance of the evidence is against the claim of service connection for a right hip disability. At the outset, the evidence demonstrates that arthritis of the right hip has been assessed. As such, service connection may be warranted on the basis of continuity of symptoms or on a presumptive basis. However, neither the Veteran nor the contemporaneous evidence shows that the appellant’s right hip disability had its onset during miliary service and has continued since that time. As such, service connection based on continuity of symptomatology is not warranted. Furthermore, the record contains no indication, lay or clinical, that the Veteran’s claimed disability manifested to a compensable degree within one year of separation from active service April 1991. Thus, service connection for on a presumptive basis is also not warranted. Notwithstanding, the Board has considered whether service connection on a direct basis is warranted. 38 C.F.R. § 3.303(d). In this case, however, there is no evidence to suggest that the right hip disability had its onset during active service. Instead, the available evidence indicates that the claimed disability did not develop until many years after active service separation. The Veteran has not contended otherwise. The Board observes that in the Veteran’s application for VA benefits, he provided no information regarding the date of onset of the claimed condition. Moreover, the record on appeal contains no indication that any medical professional has related the Veteran’s diagnosed right hip disabilities to his active service or any incident therein. As such, direct service connection is not warranted. In summary, the Board finds that the most probative evidence shows that the Veteran’s current right hip disability did not have its onset during active service, did not manifest to a compensable degree within one year of service separation, and is not causally related to his active service or any incident therein. For these reasons, the preponderance of the evidence is against the service connection claim. 38 U.S.C. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). 6. Entitlement to service connection for erectile dysfunction The Veteran asserts that service connection for erectile dysfunction is warranted. Neither the appellant nor his representative have provided any argument in support of this contention. Service treatment records are negative for treatment for or a diagnosis of erectile dysfunction. Notably, at the time of the March 1991 military separation examination, clinical evaluation of the genitourinary system was normal. In the accompanying report of medical history here was no documentation of a genitourinary system disability, to include erectile dysfunction. Post-service clinical records confirm a diagnosis of erectile dysfunction. After a review of the evidence, the Board finds that the preponderance of the evidence is against the claim of service connection erectile dysfunction. As set forth above, the medical evidence demonstrate that the Veteran has been diagnosed with erectile dysfunction. However, there is no evidence to suggest that the disability had its onset during active service. Instead, the available evidence indicates that the claimed disability did not develop until many years after active service separation. The Veteran nor his representative have not contended otherwise. The Board observes that in the Veteran’s application for VA benefits, he provided no information regarding the date of onset of his erectile dysfunction. Moreover, the record on appeal contains no indication that any medical professional has related the Veteran’s diagnosed disabilities to his active service or any incident therein. In summary, the Board finds that the most probative evidence shows that the Veteran’s erectile dysfunction did not have its inception during active service or for many years thereafter and is not otherwise causally related to the Veteran’s active service or any incident therein. For these reasons, the preponderance of the evidence is against the claim of service connection. 38 U.S.C. § 5107 (b); Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). Increased Rating Claims Disability evaluations are determined by comparing a Veteran’s present symptomatology with criteria set forth in VA’s Schedule for Rating Disabilities (Rating Schedule), which is based on average impairment in earning capacity. 38 U.S.C. § 1155; 38 C.F.R. Part 4. In considering the severity of a disability, it is essential to trace the medical history of the Veteran. 38 C.F.R. §§ 4.1, 4.2, 4.41. Consideration of the whole-recorded history is necessary so that a rating may accurately reflect the elements of disability present. 38 C.F.R. § 4.2; Peyton v. Derwinski, 1 Vet. App. 282 (1991). While the Veteran’s entire history is reviewed when assigning a disability rating, 38 C.F.R. § 4.1, where service connection has already been established and an increase in the disability rating is at issue, it is the present level of disability that is of primary concern. Francisco v. Brown, 7 Vet. App. 55 (1994). Further, the Board must evaluate the medical evidence of record since the filing of the claim for increased rating and consider the appropriateness of a “staged rating” (i.e., assignment of different rating for distinct periods of time, based on the facts). See Hart v. Mansfield, 21 Vet. App. 505 (2007). When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the appellant prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case, the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). 7. Entitlement to a rating in excess of 40 percent for degenerative disc disease of the lumbar spine The Veteran’s service-connected lumbar disability has been evaluated under Diagnostic Code 5242 for degenerative arthritis of the spine. Under the General Rating Formula, a 40 percent rating is assigned for forward flexion of the thoracolumbar spine to 30 degrees or less; or, favorable ankylosis of the entire thoracolumbar spine. 38 C.F.R. § 4.71a, Diagnostic Codes 5242. Unfavorable ankylosis of the entire thoracolumbar spine warrants a 50 percent rating. Id. With or without symptoms such as pain (whether or not it radiates), stiffness, or aching in the area of the spine affected by residuals of injury or disease, unfavorable ankylosis of the entire spine warrants a 100 percent rating. Id. Several notes to the General Rating Formula for Diseases and Injuries of the Spine provide additional guidance. Under Note (1): Evaluate any associated objective neurologic abnormalities, including, but not limited to, bowel or bladder impairment, separately, under an appropriate diagnostic code. Unfavorable ankylosis is a condition in which the entire thoracolumbar spine, or the entire spine is fixed in flexion or extension, and the ankylosis results in one or more of the following: difficulty walking because of a limited line of vision; restricted opening of the mouth and chewing; breathing limited to diaphragmatic respiration; gastrointestinal symptoms due to pressure of the costal margin on the abdomen; dyspnea or dysphagia; atlantoaxial or cervical subluxation or dislocation; or neurologic symptoms due to nerve root stretching. Fixation of a spinal segment in neutral position (zero degrees) always represents favorable ankylosis. 38 C.F.R. § 4.71a, General Rating Formula for Diseases and Injuries of the Spine, Note (5). For disabilities evaluated on the basis of limitation of motion, VA is required to apply the provisions of 38 C.F.R. §§ 4. 40, 4.45, pertaining to functional impairment. The Court 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, to 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); 38 C.F.R. § 4.59 (2017). Pain without accompanying functional limitation cannot serve as the basis for a higher rating. Mitchell v. Shinseki, 25 Vet. App. 32, 33, 43 (2011). It is, however, VA’s policy to grant at least the minimal compensable rating for actually painful motion. 38 C.F.R. § 4.59. In addition to the General Rating Formula for Diseases and Injuries of the Spine, intervertebral disc syndrome may be evaluated under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes, whichever method results in the higher evaluation. See 38 C.F.R. § 4.71a, Diagnostic Code 5243 (2017). The Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes provides that when intervertebral disc syndrome is productive of incapacitating episodes having a total duration of at least four weeks but less than six weeks during the past twelve months, a 40 percent rating is assigned. When incapacitating episodes have a total duration of at least six weeks during the past 12 months, a maximum 60 percent rating is assigned. Note (1) following 38 C.F.R. § 4.71a, Diagnostic Code 5423 (2017) provides that 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. The Veteran was provided a VA examination in July 2014. At that time, he reported constant moderate pain and decreased range of motion. He also reported severe flare-ups which impacted the function of his thoracolumbar spine. On range of motion testing, the Veteran had forward flexion to 30 degrees, with objective evidence of painful at 0 degrees; extension to 10 degrees with objective evidence of painful motion at 0 degrees; right lateral flexion to 20 degrees, with objective evidence of painful motion at 0 degrees; left lateral flexion to 30 degrees, with objective evidence of painful motion at 0 degrees; and right and left lateral rotation to 30 degrees, with objective evidence of painful motion at 0 degrees. Following repetitive use testing, the Veteran had flexion to 20 degrees. The examiner noted that pain on movement contributed to functional loss or impairment on repetitive use. The examiner opined that the range of motion would be reduced by an additional 10 degrees during flare-ups and following repeated use over time. On physical examination, it was noted that the spine was tender throughout and the Veteran had muscle spasms of the thoracolumbar spine resulting in abnormal gait or abnormal spinal contour. There was also guarding of the thoracolumbar spine resulting in abnormal gait or abnormal spinal contour. Muscle strength testing was normal on hip flexion, knee extension, right ankle plantar flexion, right ankle dorsiflexion, and right great toe extension. There was active movement against some resistance on left ankle plantar flexion, left ankle dorsiflexion, and left great toe extension. Muscle atrophy was noted. Reflex examination was normal on the right and hypoactive on the left. Sensory examination was normal on the right and decreased on the left lower leg/ankle and foot/toes. Straight leg raising testing was negative. Moderate radiculopathy was assessed in the left lower extremity. There was no evidence of ankylosis. Intervertebral disc syndrome was present, but the Veteran had not had any incapacitating episodes over the past 12 months. It was noted that the appellant used braces, handrails for stairs, and TENS units as assistive devices. Additionally, the Veteran had a scar, however, it was not painful and/or unstable and the total area of the scar was not greater than 39 square centimeters. Post-service clinical records during the appeal period reveals complaint of and treatment for back pain. Applying the criteria set forth above to the facts in this case, the Board finds that the preponderance of the evidence is against assignment of a rating in excess of 40 percent for the Veteran’s lumbar spine disability. In this regard, the Veteran’s lumbar spine disability has been manifested by decreased range of motion of the lumbar spine and significant pain. As noted herein, however, in order to warrant a rating in excess of 40 percent under the applicable rating criteria, the Veteran’s disability must be manifested by unfavorable ankylosis of the entire thoracolumbar spine. The clinical evidence, however, establishes that the Veteran has retained motion in his spine, although with noted complaints of pain. He has not contended otherwise. By definition, the fact that the appellant’s spine manifests some range of motion is evidence of the absence of unfavorable ankylosis. See Lewis v. Derwinski, 3 Vet. App. 259 (1992) (ankylosis is defined as “immobility and consolidation of a joint due to disease, injury, surgical procedure”). The evidence further reflects that he exhibits none of the indicia of ankylosis as set forth in 38 C.F.R. § 4.71a, General Rating Formula for Diseases and Injuries of the Spine, Note (5), such as a limited line of vision, restricting opening of the mouth, etc. Absent a finding of unfavorable ankylosis, which has not been shown by the evidence of record, a rating in excess of 40 percent is not warranted. See 38 C.F.R. § 4.71a, Diagnostic Codes 5242. Additionally, the Board has considered whether a higher rating is warranted based on incapacitating episodes. However, the clinical records contain no indication that the appellant has been prescribed bed rest by any physician for his lumbar spine disability. As such a rating in excess of 40 percent is not warranted for incapacitating episodes. The Board has considered additional limitation of function per 38 C.F.R. §§ 4. 40, 4.45, 4.59 and DeLuca v. Brown, 8 Vet. App. 202, 206-07 (1995). In this regard, the record is clear that the Veteran experiences significant pain. Pain itself does not constitute functional loss. Rather, the pain must produce functional loss which results in disability which more nearly approximates the next higher rating in order to warrant a higher rating. After reviewing the record, the Board concludes that the objective evidence does not reflect the functional equivalent of symptoms, supported by adequate pathology, required for the assignment of a rating in excess of those assigned herein based on functional loss, including due to pain. The Board has considered all potentially applicable diagnostic codes in accordance with Schafrath v. Derwinski, 1 Vet. App. 589 (1991), but the Veteran’s lumbar spine disability could not receive a higher rating under an analogous diagnostic code. See 38 C.F.R. § 4.115(b). The Board has also considered that the Rating Schedule specifically provides that neurological symptoms are to be rated separately under the appropriate diagnostic code. In this case, service connection has been awarded for radiculopathy of the left lower extremity, which is further discussed below. The available evidence does not demonstrate diagnoses of any other neurological conditions related to the appellant’s lumbar spine disability. Thus, a separate evaluation for additional neurological disability is not warranted. The Board observes that in the report of the July 2014 VA examination, it was noted that the Veteran has a scar associated with his lumbar spine disability. However, the scar was not found to be painful or unstable and did not cover an area or areas of at least 6 square inches. See 38 C.F.R. § 4.118, Diagnostic Code 7801. Therefore, a separate rating for a scar is not warranted. Accordingly, the Board finds that the preponderance of the evidence is against the assignment of a disability rating in excess of 40 percent for the Veteran’s service-connected lumbar spine disability, and the claim must be denied. Gilbert v. Derwinski, 1 Vet. App. 49 (1990); 38 U.S.C. § 5107 (2014); 38 C.F.R. § 3.102 (2017). 8. Entitlement to a rating in excess of 20 percent for radiculopathy of the left lower extremity The Veteran’s radiculopathy of the left lower extremities has been evaluated under Diagnostic Code 8520 for paralysis the sciatic nerve. Under these rating criteria, a 20 percent rating is warranted for moderate incomplete paralysis. A 40 percent rating is warranted for moderately severe incomplete paralysis. A 60 percent rating is warranted for severe incomplete paralysis with marked muscular atrophy. An 80 percent rating is warranted for complete paralysis resulting in the foot dangling and dropping, no possible active movement of muscles below the knee, and weakened or (very rarely) lost flexion of the knee. 38 C.F.R. § 4.124a, Diagnostic Code 8520. The words “mild,” “moderate,” and “severe” are not defined in the VA Schedule for Ratings 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 (2017). It should also be noted that use of such terminology 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 (2017). Turing to the evidence of record, VA clinical records show complaints of back pain radiating into the left lower extremity. As detailed above, the Veteran was provided a VA examination in July 2014 for his service-connected lumbar spine disability. At that time, the examiner indicated that the appellant had radicular signs or symptoms due to radiculopathy. Specifically, he had moderate constant pain, paresthesia and/or dysesthesias, and moderate numbness involving the sciatic nerve. The examiner concluded that the radiculopathy of the left lower extremity was moderate in severity. The Veteran was also provided a peripheral nerve condition examination in July 2014. Noted radicular symptoms of the left lower extremity included moderate constant pain, severe paresthesias and/or dysesthesias, and severe numbness. Muscle strength testing revealed normal strength in the left knee and active movement against some resistance in left ankle plantar flexion and left ankle dorsiflexion. Muscle atrophy was noted. Reflex examination revealed hypoactivity in the left knee and ankle. Sensory examination yielded normal results in the left knee/thigh and decreased sensation in the left lower leg/ankle and left foot/toes. There were no tropic changes. The examiner concluded that there was moderate incomplete paralysis of the left lower extremity. Applying the criteria set forth above to the facts in this case, the Board finds that the preponderance of the evidence is against assignment of a rating in excess of 20 percent for the Veteran’s radiculopathy of the left lower extremity. As detailed herein, the Veteran’s radiculopathy of the left lower extremity has been manifested by symptoms which were found to cause no more than moderate incomplete paralysis. The radiculopathy of the left lower extremity has not been shown to cause moderately severe incomplete paralysis, severe incomplete paralysis, or complete paralysis of the lower left extremity. As detailed above, radicular symptoms of the left lower extremity have included moderate constant pain, severe paresthesias and/or dysesthesias, and severe numbness. The Board observes that the VA examiner noted severe symptoms involving the lower left extremity and muscle atrophy. While such symptoms were noted, the examiner concluded that the Veteran’s radiculopathy of the left lower extremity was best characterized as moderate in nature. The Board observes that no medical professional has characterized the Veteran’s disability as more than moderate in severity. Neither the Veteran nor his representative has pointed to any evidence which would support a rating in excess of 20 percent. As such, the next-higher 40 percent rating is not warranted. 38 C.F.R. § 4.124a, Diagnostic Code 8520. The Board has considered all potentially applicable diagnostic codes in accordance with Schafrath v. Derwinski, 1 Vet. App. 589 (1991), but the Veteran’s radiculopathy of the left lower extremity could not receive a higher rating under an analogous diagnostic code. See 38 C.F.R. § 4.115(b). Accordingly, the Board finds that the preponderance of the evidence is against the assignment of a rating in excess of 20 percent for the Veteran’s service-connected radiculopathy of the left lower extremity and the claim must be denied. Gilbert v. Derwinski,1 Vet. App. 49 (1990); 38 U.S.C. § 5107 (2014); 38 C.F.R. § 3.102 (2017). 9. Entitlement to nonservice-connected pension Pursuant to 38 U.S.C. § 1521(a), pension is payable to a Veteran of a period of war who is permanently and totally disabled from nonservice-connected disability not the result of his or her own willful misconduct. Basic entitlement exists if, among other things, such Veteran’s income is not in excess of the applicable maximum annual pension rate specified in 38 C.F.R. § 3.23. See 38 U.S.C. §§ 1503, 1521 (2014); 38 C.F.R. §§ 3.3, 3.23 (2017). Payments of VA nonservice-connected pension benefits are made at the specified maximum annual rate, reduced on a dollar-for-dollar basis by annualized countable family income. Payments of any kind, from any source, shall be counted as income during the 12-month annualization period in which received, unless specifically excluded. 38 C.F.R. §§ 3.271, 3.272 (2017). Unreimbursed medical expenses, which were paid within the twelve-month annualization period regardless of when incurred, are excluded from annual countable income to the extent that the amount paid exceeds 5 percent of the regular maximum annual rate payable to a single veteran (excluding increased pension because of the need for aid and attendance). 38 C.F.R. § 3.272 (2017). The rates of pension are published in tabular form in Appendix B of the Veterans Benefits Administration Manual M21-1, and are given the same force and effect as if published in the Code of Federal Regulations. The maximum annual pension rate is adjusted from year to year. 38 C.F.R. § 3.21 (2017). Effective December 1, 2013, the maximum annual pension rate for a Veteran with one dependent was $16,569. See M21-1, Part I, Appendix B. Factual Background The record shows that the Veteran’s application for pension was received in April 2014. At that time, he reported that his gross salary and wages was $7,200 per year and his wife’s gross annual salary was $40,000 per year. The appellant documented that he did not have any medical, legal, or other unreimbursed expenses. After a review of the evidence, the Board finds that the Veteran’s countable income exceeds the maximum annual rate permissible for a Veteran with one dependent, thus, nonservice-connected pension is not warranted. As noted above, in the April 2014 application for pension, the appellant reported a combined household income of $47,000, which exceeds the allowable income for an award of nonservice-connected pension. The Veteran did not identify any non-reimbursed medical expenses to reduce his income. He has not reported any change in income. In sum, based on the information available, the Veteran’s countable income exceeds the maximum annual pension rate, thereby rendering him ineligible for nonservice-connected pension. The appellant is advised that, if there is a change in his financial status in the future, he may reapply for pension at that time. REASONS FOR REMAND 1. Entitlement to service connection for a left hip disability is remanded. The Veteran contends that service connection for a left hip disability is warranted. In correspondence received in October 2009, he asserted that he injured his left hip during military service and has lived with left hip pain “off and on” since that time. Service treatment records show that in November 1990, the appellant presented for treatment with complaints of left hip pain that had persisted for one week. Radiologic findings revealed probable avulsion fracture. At the time of the March 1991 military separation examination, it was noted that the Veteran had a history of left hip pain. However, a left hip disability was not assessed. In the accompanying report of medical history, the Veteran did not report left hip pain and indicated that he was in good health. As detailed above, post-service medical records reveal degenerative/arthritic changes of the left hip. As the evidence demonstrates that the Veteran complained of left hip pain during service, has reported that left hip pain has persisted since miliary service, and post-service record demonstrating degenerative/arthritic changes in the left hip, the Board finds that a VA examination should be provided on remand. McLendon v. Nicholson, 20 Vet. App. 79 (2006). 2. Entitlement to service connection for a psychiatric disability, to include PTSD and depressive disorder is remanded. The Veteran asserts that service connection for a psychiatric disability is warranted. In his initial claim of service connection for a psychiatric disability, he requested service connection for PTSD. He asserted that the claimed condition was due to the death of his father and the pain he endures due to his service-connected disabilities. In November 2016, the Veteran provided the report of a mental disorders disability benefits questionnaire, which was completed by a private physician in June 2015. The physician diagnosed depressive disorder due to another medical condition with depressed features. The physician opined that based on a review of the Veteran’s claims file, his service-connected lumbar spine disability and radiculopathy more likely than not aggravated his psychiatric disability. While she cited medical articles detailing a connection between medical issues and psychiatric disorder, she did not provide a rationale to support her conclusion, rendering it of little probative value. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). Moreover, she did not provide a baseline level of severity prior to the reported aggravation. Thus, the opinion is insufficient to determine the service connection claim. The Board observes that the Veteran has not been provided a VA examination in conjunction with his psychiatric disability claim. However, as the evidence demonstrates that the Veteran has been diagnosed with a psychiatric disability during the period on appeal and suggests that it is secondary to his service-connected disabilities, the Board finds that a VA examination should be provided on remand. McLendon v. Nicholson, 20 Vet. App. 79 (2006) 3. Entitlement to a TDIU is remanded. The Board finds that the issue of entitlement to a TDIU is inextricably intertwined with the issues being remanded, and thus the Board will defer consideration of the appeal with regard to entitlement to a TDIU. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991) (noting that two issues are “inextricably intertwined” when they are so closely tied together that a final Board decision on one issue cannot be rendered until the other issue has been considered). The matters are REMANDED for the following actions: 1. Schedule the Veteran for an appropriate VA examination to determine the nature and etiology of his left hip disability. Access to records in the Veteran’s electronic claims file should be made available to the examiner for review in connection with his or her opinion. The examiner should address the following: (a.) List all current diagnoses pertaining to the left hip. (b.) For each diagnosis, state whether it is at least as likely as not (i.e., a 50 percent or greater probability) that the Veteran’s left hip disability was incurred in service or is otherwise causally related to his active service or any incident therein, to include the left hip injury treated during military service. (c.) The examiner should provide a rationale for all opinions rendered, including reference to the pertinent evidence of record. (NOTE: In rendering the requested opinion, the examiner must discuss the lay statements regarding the onset of the Veteran’s left hip symptoms and the continuity of such symptoms). 2. Schedule the Veteran for a VA examination to determine the nature and etiology of his psychiatric disability. Access to records in the Veteran’s electronic claims file should be made available to the examiner for review in connection with his or her opinion. The examiner should address the following: (a.) List all psychiatric diagnoses pertaining to the Veteran. (b.) If PTSD is diagnosed, the examiner must specify the stressor(s) upon which the diagnosis was based. (c.) For each diagnosis, state whether it is at least as likely as not (i.e., a 50 percent or greater probability) that the Veteran’s psychiatric disability was incurred in service or is otherwise causally related to the Veteran’s active service. (d.) State whether it at least as likely as not (i.e., a 50 percent or greater probability) that the Veteran’s psychiatric disability was caused or aggravated by his service-connected lumbar spine disability or radiculopathy of the left lower extremity. (e.) The examiner should provide a rationale for all opinions rendered, including reference to the pertinent evidence of record. (NOTE: In rendering the requested opinions, the examiner must discuss the June 2015 mental disorders disability benefits questionnaire and accompanying medical opinion). 3. Thereafter, readjudicate the claims on appeal. ROMINA CASADEI Acting Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD C. Jones, Counsel