Citation Nr: 18150049 Decision Date: 11/14/18 Archive Date: 11/14/18 DOCKET NO. 14-09 549 DATE: November 14, 2018 ORDER Service connection for a right foot disability is denied. Service connection for a left foot disability is denied. Service connection for sleep apnea is denied. Service connection for an acquired psychiatric disorder, manifested by insomnia is denied. An initial rating in excess of 20 percent prior to February 22, 2014 for thoracolumbar spine disability is denied. An initial rating in excess of 10 percent prior to June 2, 2015 and in excess of 20 percent therefrom for cervical spine disability is denied. An initial compensable rating prior to February 22, 2014 and in excess of 10 percent therefrom for bilateral hearing loss disability is denied. An initial rating in excess of 10 percent for tinnitus is denied. An effective date prior to November 29, 2011 for the grant of service connection for thoracolumbar spine disability is denied. An effective date prior to November 29, 2011 for the grant of service connection for cervical spine disability is denied. An effective date prior to November 17, 2015 for the grant of service connection for right knee disability is denied. An effective date prior to November 17, 2015 for the grant of service connection for left knee disability is denied. An effective date prior to November 17, 2015 for the grant of service connection for right ankle disability is denied. An effective date prior to November 17, 2015 for the grant of service connection for left ankle disability is denied. An effective date prior to November 29, 2011 for the grant of service connection for a bilateral hearing loss disability is denied. An effective date prior to November 29, 2011 for the grant of service connection for tinnitus is denied. REMANDED Entitlement to a rating in excess of 40 percent from February 22, 2014, for thoracolumbar spine disability including intervertebral disc syndrome (IVDS) is remanded. Entitlement to an initial rating in excess of 10 percent for right knee disability from February 22, 2014 is remanded. Entitlement to an initial rating in excess of 10 percent for left knee disability from February 22, 2014 is remanded. Entitlement to an initial rating in excess of 10 percent for right ankle disability from February 22, 2014 is remanded. Entitlement to an initial rating in excess of 10 percent for left ankle disability from February 22, 2014 is remanded. Entitlement to an initial rating in excess of 40 percent for right upper extremity (RUE) radiculopathy is remanded. Entitlement to an initial rating in excess of 30 percent for left upper extremity (LUE) radiculopathy is remanded. Entitlement to an effective date prior to February 8, 2018 for service connection for RUE radiculopathy is remanded. Entitlement to an effective date prior to February 8, 2018 for service connection for LUE radiculopathy is remanded. Entitlement to a total rating due to unemployability caused by service-connected disabilities (TDIU) is remanded. REFERRED A review of the record raises the issue of whether the appellant is entitled to special monthly compensation due to the need for the regular aid and attendance of another person. That claim has not been certified to the Board on appeal nor has it otherwise been developed for appellate purposes. Therefore, the Board has no jurisdiction over that claim and it will not be considered below. 38 U.S.C. § 7104(a); 38 C.F.R. § 20.101. It is referred to the Agency of Original Jurisdiction (AOJ) for appropriate action. FINDINGS OF FACT 1. A right foot disability, diagnosed as plantar fasciitis, was first manifested many years after service, and the preponderance of the evidence is against a finding that it is in any way related to service. 2. The presence of a chronic, identifiable left foot disability has not been established. 3. The presence of sleep apnea has not been established. 4. The presence of a chronic, identifiable psychiatric disorder, manifested by insomnia has not been established. 5. Prior to February 22, 2014, the appellant’s thoracolumbar spine disability was manifested primarily by tenderness to palpation, flexion to at least 60 degrees, and a combined range of motion of at least 150 degrees. 6. Prior to June 2, 2015, the appellant’s cervical spine disability was manifested primarily by tenderness to palpation, forward flexion to no worse than 35 degrees with objective evidence of pain, and a combined range of cervical spine motion no worse than 205 degrees with objective evidence of pain. 7. Since June 2, 2015, the appellant’s cervical spine disability has been manifested primarily by tenderness to palpation, hypoactive reflexes, muscle spasms on the left associated with an abnormal gait or spinal contour, forward flexion no worse than 30 degrees with objective evidence of pain, and a combined range of cervical spine motion no worse than 200 degrees with objective evidence of pain. 8. Prior to February 23, 2014, the appellant’s hearing loss disability has been manifested by no worse than Level II hearing impairment in his right ear and no worse than Level I hearing impairment in his left ear. 9. Since February 23, 2014, the appellant’s bilateral hearing loss disability, has been manifested by no worse than Level V hearing impairment in his right ear and no worse than Level II hearing impairment in his left ear. 10. The appellant currently receives the highest schedular rating assignable for tinnitus. 11. The preponderance of the evidence is against a finding that the appellant filed a claim of entitlement to service connection for a lumbar spine disability prior to November 29, 2011. 12. The preponderance of the evidence is against a finding that the appellant filed a claim of entitlement to service connection for a cervical spine disability prior to November 29, 2011. 13. The preponderance of the evidence is against a finding that the appellant filed a claim of entitlement to service connection for a right knee disability prior to November 17, 2015. 14. The preponderance of the evidence is against a finding that the appellant filed a claim of entitlement to service connection for a left knee disability prior to November 17, 2015. 15. The preponderance of the evidence is against a finding that the appellant filed a claim of entitlement to service connection for a right ankle disability prior to November 17, 2015. 16. The preponderance of the evidence is against a finding that the appellant filed a claim of entitlement to service connection for a left ankle disability prior to November 17, 2015. 17. The preponderance of the evidence is against a finding that the appellant filed a claim of entitlement to service connection for a hearing loss disability prior to November 29, 2011. 18. The preponderance of the evidence is against a finding that the appellant filed a claim of entitlement to service connection for tinnitus prior to November 29, 2011. CONCLUSIONS OF LAW 1. The criteria for service connection for a right foot disability have not been met. 38 U.S.C. § 1131; 38 C.F.R. § 3.303. 2. The criteria for service connection for the claimed left foot disability have not been met. 38 U.S.C. § 1131; 38 C.F.R. § 3.303. 3. The criteria for the claimed sleep apnea have not been met. 38 U.S.C. § 1131; 38 C.F.R. § 3.303. 4. The criteria for service connection for the claimed psychiatric disorder, manifested by insomnia have not been met. 38 U.S.C. § 1131; 38 C.F.R. § 3.303. 5. Prior to February 22, 2014, the criteria for an initial rating in excess of 20 percent for the thoracolumbar spine disability were not met. 38 U.S.C. § 1155; 38 C.F.R. §§ 4.1, 4.7, 4.40, 4.45, 4.71a, Diagnostic Code 5010-5235. 6. Prior to June 2, 2015, the criteria for an initial rating in excess of 10 percent prior to June 2, 2015 for cervical spine disability were not met. 38 U.S.C. § 1155; 38 C.F.R. §§ 4.1, 4.7, 4.40, 4.45, 4.71a, Diagnostic Code 5010-5242. 7. Since June 2, 2015, the criteria for a rating in excess of 20 percent for cervical spine disability have not been met. 38 U.S.C. § 1155; 38 C.F.R. §§ 4.1, 4.7, 4.40, 4.45, 4.71a, Diagnostic Code 5243. 8. Prior to February 22, 2014, the criteria for an initial compensable rating for a bilateral hearing loss disability were not met. 38 U.S.C. § 1155; 38 C.F.R. §§ 4.1, 4.85, Diagnostic Code 6100. 9. Since February 22, 2014, the criteria for a rating in excess of 10 percent for a bilateral hearing loss disability have not been met. 38 U.S.C. § 1155; 38 C.F.R. §§ 4.1, 4.85, Diagnostic Code 6100. 10. The criteria for an initial rating in excess of 10 percent for tinnitus have not been met. 38 U.S.C. § 1155; 38 C.F.R. §§ 4.1, 4.87, Diagnostic Code 6260. 11. The criteria for an effective date prior to November 29, 2011, for service connection for thoracolumbar spine disability have not been met. 38 U.S.C. § 5110 (a)-(b)(1); 38 C.F.R. § 3.400 (b)(2). 12. The criteria for an effective date prior to November 29, 2011, for service connection for cervical spine disability have not been met. 38 U.S.C. § 5110 (a)-(b)(1); 38 C.F.R. § 3.400 (b)(2). 13. The criteria for an effective date prior to November 17, 2015, for service connection for right knee disability have not been met. 38 U.S.C. § 5110 (a)-(b)(1); 38 C.F.R. § 3.400 (b)(2). 14. The criteria for an effective date prior to November 17, 2015, for service connection for left knee disability have not been met. 38 U.S.C. § 5110 (a)-(b)(1); 38 C.F.R. § 3.400 (b)(2). 15. The criteria for an effective date prior to November 17, 2015, for service connection for a right ankle disability have not been met. 38 U.S.C. § 5110 (a)-(b)(1); 38 C.F.R. § 3.400 (b)(2). 16. The criteria for an effective date prior to November 17, 2015, for service connection for left ankle disability have not been met. 38 U.S.C. § 5110 (a)-(b)(1); 38 C.F.R. § 3.400 (b)(2). 17. The criteria for an effective date prior to November 29, 2011, for service connection for a bilateral hearing loss disability have not been met. 38 U.S.C. § 5110 (a)-(b)(1); 38 C.F.R. § 3.400 (b)(2). 18. The criteria for an effective date prior to November 29, 2011, for service connection for tinnitus have not been met. 38 U.S.C. § 5110 (a)-(b)(1); 38 C.F.R. § 3.400 (b)(2). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The appellant served on active duty from November 1984 to December 1988. In December 2015, the Board of Veterans’ Appeals (Board) remanded the appellant’s claims for increased ratings and earlier effective dates for service connection for his service-connected thoracolumbar spine disability, cervical spine disability, hearing loss disability, and tinnitus. Following the requested development, the originating agency raised the appellant’s rating to 20 percent for his cervical spine disability, effective June 2, 2015. Otherwise, the AOJ confirmed and continued the ratings and effective dates then in effect. Thereafter, the case was returned to the Board for further appellate action. The Service Connection Claims The appellant seeks service connection for bilateral foot disabilities, sleep apnea, and a psychiatric disorder with insomnia. Service connection connotes many factors but basically it means that the facts, shown by evidence, establish that a particular injury or disease resulting in disability was incurred coincident with service in the Armed Forces, or if preexisting such service, was aggravated therein. 38 U.S.C. § 1131; 38 C.F.R. § 3.303. Generally, the evidence must show (1) the existence of a current disability; (2) the existence of the disease or injury in service, and; (3) a relationship or nexus between the current disability and any injury or disease during service. Cuevas v. Principi, 3 Vet. App. 542 (1992). 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, as distinguished from merely isolated findings or a diagnosis including the word chronic. When the fact of chronicity in service is not adequately supported, then a showing of continuity after discharge is required to support the claim. 38 C.F.R. § 3.303. In addition, service connection may be granted for any disease that is initially diagnosed after service when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. Id. The appellant’s service medical records, including the reports of his November 1984 service entrance examination and his August 1988 service separation examination, are negative for any complaints or clinical findings of a chronic, identifiable disability of either foot, sleep apnea, or a psychiatric disorder. Indeed, at the time of the appellant’s separation from service, his feet and psychiatric processes were found to be normal. The Feet The post-service records, including the report of a December 2015 VA foot examination, are also negative for any complaints or clinical findings of a left foot disability of any kind. Absent the presence of a chronic, identifiable left foot disability in or after service, the appellant does not meet the criteria for service connection. Accordingly, service connection is not warranted. A chronic, identifiable right foot disability, diagnosed as plantar fasciitis, was not reported until a December 2015 VA foot examination. The appellant stated that he had first noticed the symptoms of that disorder in 2012. The normal medical findings at the time of separation from service, as well as the absence of any medical records of a diagnosis or treatment for many years after service is probative evidence against the claim. Maxson v. Gober, 230 F.3d 1330 (Fed. Cir. 2000). Moreover, due to the appellant’s lack of complaints or clinical findings in service, the VA examiner opined that it was less likely than not that the right plantar fasciitis was related to service. Absent evidence of a chronic identifiable right foot disability in service or competent, credible evidence of a nexus between the current right foot disability and service, the appellant does not meet the criteria for service connection. Therefore, that portion of the appeal is also denied. Sleep Apnea The appellant’s post-service medical records are also negative for any complaints or clinical findings of sleep apnea. Although he occasionally reported fatigue, such as he did during VA treatment in October 2010, the examiner noted that it was not likely due to obstructive sleep apnea, because the appellant denied snoring. Absent competent, credible evidence of sleep apnea in or after service, the appellant does not meet the criteria for service connection. Therefore, that issue on appeal is also denied. The Psychiatric Disorder Manifested by Insomnia VA treatment records, such as those dated in February 2014, noted that the appellant was taking medication for his nonservice-connected HIV which sometimes caused nightmares and insomnia. However, his post-service medical records are completely negative for any complaints or clinical findings of a psychiatric disorder of any kind. Indeed, multiple VA depression screens and suicide assessments since service have been negative, and the appellant has not required VA or non-VA mental health services. Absent competent, credible evidence of a chronic, identifiable psychiatric disability, manifested by insomnia in or after service, the appellant does not meet the criteria for service connection. Therefore, that portion of the appeal is also denied. Additional Considerations In arriving at the foregoing decisions, the Board has considered the doctrine of reasonable doubt. However, that doctrine is only invoked where there is an approximate balance of evidence which neither proves nor disproves a claim. In this case, the preponderance of the evidence is against the appellant’s service connection claims. Therefore, the doctrine of reasonable doubt is not applicable. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. The Increased Rating Claims The appellant seeks increased ratings for multiple service-connected disabilities. Disability evaluations are determined by comparing the manifestations of a particular disability with the criteria set forth in the Diagnostic Codes of the VA Schedule for Rating Disabilities. 38 U.S.C. § 1155, 38 C.F.R. Part 4. The percentage ratings represent, as far as can practicably be determined, the average impairment in earning capacity (in civilian occupations) resulting from service-connected disability. 38 C.F.R. § 4.1. 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. During the course of an appeal, a veteran may experience multiple distinct degrees of disability that might result in different levels of compensation from the time the increased rating claim was filed until a final decision is made. Hart v. Mansfield, 21 Vet. App. 505 (2007). Similarly, when service connection is granted and an initial rating award is at issue, separate ratings can be assigned for separate periods from the time service connection became effective. Fenderson v. West, 12 Vet. App. 119 (1999). Therefore, the following analysis is undertaken with consideration of the possibility that different ratings may be warranted for different time periods. The Thoracolumbar Spine prior to February 22, 2014 In June 2013, the AOJ granted the appellant’s claim for service connection for thoraco-lumbar strain; spondylosis at T11 and T12; and a mild anterior compression fracture at T12. The AOJ assigned an initial 20 percent rating, effective November 29, 2011. In a December 2014 rating action, that disability was amended to include IVDS, and the AOJ increased the disability rating to 40 percent, effective February 22, 2014. The appellant now contends that the 20 percent rating effective prior to February 22, 2014 did not adequately reflect the level of impairment caused by that disorder. He states that it impaired his ability to work by restricting the length of time, he could sit, stand, or walk, as well as his ability to perform repetitive bending and heavy lifting. Therefore, he maintains that a higher initial evaluation was warranted. However, after reviewing the record the Board finds that the preponderance of the competent, credible evidence of record is against that claim. From November 29, 2011 through February 21, 2014, the appellant’s thoraco-lumbar spine disability was rated on the basis of the General Rating Formula for Diseases and Injuries of the Spine. 38 C.F.R. § 4.71a, Diagnostic Code 5010-5235. A 20 percent rating was warranted when forward flexion of the thoracolumbar spine was greater than 30 degrees but not greater than 60 degrees; or, when the combined range of motion of the thoracolumbar spine was not greater than 120 degrees; or, when there was muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis. A 40 percent rating was warranted when forward flexion of the thoracolumbar spine was accomplished to 30 degrees or less; or, when there was favorable ankylosis of the entire thoracolumbar spine. Any associated objective neurologic abnormalities, including, but not limited to, bowel or bladder impairment, were to be evaluated separately, under an appropriate Diagnostic Code. 38 C.F.R. § 4.71a, General Rating Formula for Diseases and Injuries of the Spine, Note 1. For VA compensation purposes, unfavorable ankylosis is a condition in which the entire cervical spine, the entire thoracolumbar spine, or the entire spine is fixed in flexion or extension, and the ankylosis results in one or more of the following: difficulty walking because of a limited line of vision; restricted opening of the mouth and chewing; breathing limited to diaphragmatic respiration; gastrointestinal symptoms due to pressure of the costal margin on the abdomen; dyspnea or dysphagia; atlantoaxial or cervical subluxation or dislocation; or neurologic symptoms due to nerve root stretching. Fixation of a spinal segment in neutral position (zero degrees) always represents favorable ankylosis. 38 C.F.R. § 4.71a, General Rating Formula for Diseases and Injuries of the Spine, Note 5. In determining the adequacy of assigned disability ratings, consideration is given to factors affecting functional loss. DeLuca v. Brown, 8 Vet. App. 202 (1995). Such factors include a lack of normal endurance and functional loss due to pain and pain on use, specifically limitation of motion due to pain on use including that experienced during flare ups. 38 C.F.R. § 4.40. Consideration is also given to weakened movement, excess fatigability, and incoordination, as well as the effects of the disability on a veteran’s ordinary activity. 38 C.F.R. § 4.10, 4.45. In June 2011, the Social Security Administration awarded the appellant disability benefits, in part due to his discogenic and degenerative disorders of the back. VA medical records, dated prior to February 22, 2014, show that the appellant was treated for his back disorder and that he underwent a VA examination in April 2013 to determine the severity of his back disability. During that treatment and examination, his back disability was manifested primarily by painful flare-ups, tenderness to palpation, hypoactive reflexes in his lower extremities, and limitation of motion. It was noted that he wore a back brace, regularly and that his back pain limited the length of time he could sit, stand, or walk, or perform heavy lifting or repetitive bending. Although he had objective evidence of pain on motion, there was no evidence of ankylosis. He was able to flex his spine to at least 60 degrees, and he demonstrated a combined range of motion of at least 150 degrees. In addition, the strength in his lower extremities was full, and his sensation was intact. He walked with a slow but steady gait, and there was no atrophy, asymmetry, deformity, or erythema associated with his low back disorder. Moreover, he denied any numbness or tingling or bowel or bladder incontinence, and there were no findings of any identifiable neurologic disorder. Taken together, such findings do not meet or more nearly approximate the criteria for a rating in excess of 20 percent under the General Rating Formula. The VA examiners did state that the appellant’s thoracolumbar spine disability would have a functional impact on his work. He also contends that the percentage ratings do not adequately reflect the impact on his ability to work, because it impairs his ability to work by restricting the length of time, he could sit, stand, or walk, as well as his ability to perform repetitive bending and heavy lifting. In this regard, it should be noted that disability ratings contemplate the average impairment in earning capacity in civilian occupations associated with the symptoms at the various percentage ratings. 38 C.F.R. § 4.1. Accordingly, the 20 percent rating in effect for the appellant’s thoracolumbar spine disability prior to February 22, 2014 is confirmed and continued. The Cervical Spine before and after June 2, 2015 The appellant seeks a rating in excess of 10 percent for his cervical spine disability prior to June 2, 2015 and for a rating in excess of 20 percent effective that date. He contends that his neck condition impacts his ability to work by limiting repetitive forceful pushing, pulling, heavy lifting, and carrying and that increased ratings are, therefore, warranted. However, after evaluating the record, the Board finds the preponderance of the evidence against those claims. From November 29, 2011 (when service connection became effective), through June 1, 2015, the appellant’s cervical spine disability was rated as arthritis under the General Rating Formula for Diseases and Injuries of the Spine noted above. 38 C.F.R. § 4.71a, Diagnostic Code 5242. Then, as now, arthritis was rated on the basis of limitation of motion under the appropriate diagnostic codes for the specific joints involved. 38 C.F.R. § 4.71a, Diagnostic Code 5003. A 10 percent rating was warranted when forward flexion of the cervical spine was greater than 30 degrees but not greater than 40 degrees; or, when there was a combined range of cervical spine motion greater than 170 degrees but not greater than 335 degrees; or, when there was muscle spasm, guarding, or localized tenderness not resulting in an abnormal gait or abnormal spinal contour; or, when there was a vertebral body fracture of the cervical spine with a loss of 50 percent or more of the height. A 20 percent rating was warranted when forward flexion of the cervical spine was greater than 15 degrees but not greater than 30 degrees; or, when the combined range of motion of the cervical spine was not greater than 170 degrees; or, when there was 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 30 percent rating was warranted when forward flexion of the cervical spine was accomplished to 15 degrees or less; or, when there was favorable ankylosis of the entire cervical spine.VA treatment records, dated through September 2014, show that the appellant’s neck was supple. During an April 2013 VA examination, the appellant reported flare-ups of his cervical spine disability which impaired his ability to repetitively turn his neck, push or pull forcefully, or perform heavy lifting and carrying. On examination, there was no evidence of ankylosis and the appellant demonstrated the following range of cervical spine motion: forward flexion to 45 degrees or greater with objective evidence of pain at 35 degrees; extension to 45 degrees or greater with objective evidence of pain at 35 degrees; lateral flexion to 45 degrees or greater with objective evidence of pain at 35 degrees, bilaterally; and rotation to 80 degrees or greater with objective evidence of pain at 65 degrees, bilaterally. The appellant was able to perform repetitive testing but his range of motion was limited to those ranges where he experienced objective evidence of pain. However, even taking the appellant’s range of motion at the point he felt objective evidence of pain, his range of cervical spine flexion was no worse than 35 degrees, and his combined range of cervical spine motion was no worse than 205 degrees. On further examination, the appellant demonstrated no evidence of any chronic identifiable neurologic problems, including a bowel or bladder disorder or radiculopathy. Although he had mild tenderness to palpation of the cervical spine, there was no evidence of muscle spasm or guarding, and there was no evidence of any abnormal spinal contour, such as scoliosis, reversed lordosis, or abnormal kyphosis. Indeed, his posture and gait were normal. It was noted that his cervical spine disability would impair work functions involving repetitive forceful pushing, pulling, heavy lifting, and carrying. However, on balance, the appellant’s complaints, foregoing clinical reports, and examination findings did not meet or more nearly approximate the schedular criteria for a rating in excess of 10 percent for appellant’s cervical spine disorder prior to June 2, 2015. Since June 2, 2015, there has been a finding of cervical intervertebral disc syndrome as well as arthritis, degenerative disc disease, and strain in his cervical spine. Therefore, in addition to rating the appellant’s cervical spine disability under the General Rating Formula, it may be rated based on the frequency and duration of any incapacitating episodes attributable to intervertebral disc syndrome. A 20 percent rating is warranted when there are incapacitating episodes having a total duration of at least 2 weeks but less than 4 weeks during the previous 12 months. A 40 percent rating is warranted when there are incapacitating episodes having a total duration of at least 4 weeks but less than 6 weeks during the previous 12 months. 38 C.F.R. § 4.71a, Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes. Evidence added to the record includes VA outpatient records reflecting the appellant’s treatment through February 2018 and reports of VA examinations in December 2015 and February 2018. The VA outpatient records are negative for any ongoing treatment of the cervical spine. During the VA examinations, the appellant complained that his cervical spine disorder had gotten worse and that he couldn’t sleep and was always in pain. He also reported flare-ups of his cervical spine which occurred with physical activity and decreased his range of motion. On examination, the appellant’s cervical spine was tender to palpation, and there was evidence of hypoactive reflexes and muscle spasm on the left associated with an abnormal gait or spinal contour. However, there was no evidence of ankylosis, and he was able to forward flex his cervical spine from 0 to 30 degrees. Although repetitive testing and reported flare-ups revealed additional functional loss in other vectors due to pain and a lack of endurance, the combined range of cervical spine motion was accomplished to at least 200 degrees. He had radiculopathy emanating from the cervical spine down each upper extremity (disabilities for which separate ratings have been assigned and will be discussed in the REMAND section below) but demonstrated no other neurologic abnormalities. In addition, there was no evidence of guarding or other abnormalities contributing to the appellant’s cervical spine disability, e.g., swelling, weakness, atrophy of disuse, or impaired sensation. Finally, it was noted that the appellant had not had any incapacitating episodes during the previous year due to his IVDS. It was recommended that the appellant avoid excess bending, extending, or twisting of the cervical spine, overhead lifting, and prolonged walks or runs without rest. As above, however, the disability ratings contemplate the average impairment in earning capacity in civilian occupations associated with the symptoms at the various percentage ratings. 38 C.F.R. § 4.1. Accordingly, the 10 percent rating in effect for the appellant’s cervical spine disability prior to February 22, 2014 and the 20 percent rating in effect thereafter are confirmed and continued. The Hearing Loss Disability before and after February 22, 2014 Disability ratings for hearing impairment are derived by a mechanical application of the rating schedule. Lendenmann v. Principi, 3 Vet. App. 345 (1992). For VA purposes, the severity of hearing impairment is determined by comparing audiometric test results in the conversational voice range (1000, 2000, 3000, and 4000 hertz) with the criteria set forth in 38 C.F.R. §§ 4.85 and 4.86. Those codes establish eleven levels of auditory acuity, from Level I for lesser degrees of hearing impairment through Level XI for greater degrees of hearing impairment. A level of auditory acuity is determined for each ear, and then those levels are combined to give an overall level of hearing impairment. 38 C.F.R. § 4.85. From the time service connection became effective November 29, 2011 through February 21, 2014, the appellant had a noncompensable rating for his service-connected hearing loss disability. During an April 2013, VA audiologic examination, the appellant demonstrated an average puretone threshold at the applicable frequencies of 39 decibels in the right ear and 36 decibels in the left ear (after rounding). His speech discrimination scores were 84 percent on the right and 98 percent on the left, and the examiner stated that it would be appropriate to use the speech discrimination scores for the appellant. Such findings translated to Level II hearing loss disability in the right ear and Level I hearing loss disability in the left ear. 38 C.F.R. § 4.85, Table VI. When the numeric designations of II and I were combined, the overall level of hearing impairment was commensurate with the noncompensable rating currently in effect under 38 C.F.R. § 4.85, Table VII. Thus, the appellant did not meet the schedular criteria for compensable rating for his service-connected hearing disability prior to February 22, 2014. Therefore, an initial compensable rating is not warranted. Effective February 22, 2014, the appellant’s rating for his bilateral hearing loss disability was raised to 10 percent. During VA audiologic examinations in July 2014, December 2015, and August 2016, it was noted that the appellant’s hearing loss disability impacted his life by causing hearing difficulty hearing at times, by needing to ask people to repeat themselves, and by needing to look at speaker to get a better idea of what is being said. It was noted that his hearing loss disability would hinder his ability to accurately acquire information from an auditory only modality. He would not be able to work in a noisy environment or where his responsibilities were linked to hearing auditory information accurately. For example, he should not work at a noisy restaurant or office jobs requiring the use of the telephone. During his December 2015 VA examination, the appellant requested hearing aids. During his VA examinations, the appellant demonstrated pure tone threshold averages no worse than 46 decibels in the right ear, and 36 decibels in the left ear (after rounding) at the applicable frequencies. His valid speech discrimination scores were no worse than 62 percent on the right and 90 percent on the left. Such findings translated to a Level V hearing loss disability in the right ear and a Level II hearing loss disability in the left ear. 38 C.F.R. § 4.85, Table VI. When the numeric designations of V and II are combined, the overall level of hearing impairment is commensurate with the 10 percent rating which became effective February 22, 2014. 38 C.F.R. § 4.85, Table VII. Again, the disability ratings contemplate the average impairment in earning capacity due to the appellant’s hearing loss disability, e.g., having to ask people to repeat themselves, having to face someone to understand what they are saying, or having to increase the volume on a telephone. 38 C.F.R. § 4.1; see Doucette v. Shulkin, 28 Vet. App. 366 (2017). Accordingly, the 10 percent rating, effective February 22, 2014 is confirmed and continued.   Tinnitus The evidence shows that since service connection became effective November 29, 2011, the appellant has had the highest schedular rating (10 percent) assignable for tinnitus. Although he claims of humming in his ears, that symptom is contemplated by his schedular evaluation. Neither he nor his representative has raised any other issues, nor have any other issues been reasonably raised by the record. Doucette (confirming that the Board is not required to address issues unless they are specifically raised by the claimant or reasonably raised by the evidence of record). Accordingly, the 10 percent rating is confirmed and continued. The Effective Date Claims The appellant seeks earlier effective dates for service connection for his thoracolumbar spine disorder, cervical spine disorder, knee disabilities, ankle disabilities, hearing loss disability, and tinnitus. Generally, the effective date of an award of service connection will be the date of the receipt of the claim, or the date entitlement arose, whichever is later. 38 U.S.C. § 5110(a)-(b)(1); 38 C.F.R. § 3.400(b)(2)(1). A specific claim in the form prescribed by the VA must be filed in order for benefits to be paid to any individual under the laws administered by the VA. 38 U.S.C. § 5101(a); 38 C.F.R. § 3.151(a). Any communication or action, indicating an intent to apply for one or more benefits under the laws administered by the VA from a veteran, his or her duly authorized representative, a Member of Congress, or some person acting as next friend of a veteran who is not sui juris may be considered an informal claim. Such informal claim must identify the benefit sought. VA regulations pertaining to informal claims, were revised during the course of the appeal. Standard Claims and Appeals Forms, 79 Fed. Reg. 57660 (Sept. 25, 2014) (codified as revised at 38 C.F.R. § 3.155). However, for purposes of this appeal, a “claim” or “application” is 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). 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 a veteran, it will be considered filed as of the date of receipt of the informal claim. 38 C.F.R. § 3.155. The Thoracolumbar Spine, the Cervical Spine, the Hearing Loss Disability, and Tinnitus The appellant’s initial claim of entitlement to service connection for a back disability was received by VA on March 25, 2002. In a letter, dated April 23, 2002, VA informed the appellant and his representative that it had received his claim and requested that he complete and return a formal claim on VA Form 21-526. However, he did not do so within one year, and the claim was considered abandoned. 38 C.F.R. § 3.158. Further action could not be taken unless a new claim was received. Id. If the right to benefits was ultimately established, compensation was not to commence earlier than the date of the filing of the new claim. Id. On May 17, 2010, VA received the appellant’s second informal claim for a back disability and his initial claims for a bilateral hearing loss disability and tinnitus. In a letter dated June 11, 2010, VA informed the appellant that it had received his claim and requested that he complete and return a formal claim on VA Form 21-526. Again, however, he did not do so within one year, and the claim was considered abandoned. 38 C.F.R. § 3.158. On November 29, 2011, VA received the appellant’s third informal claim for a back disability and his second informal claim for a hearing loss disability. Unlike his earlier informal claims, he did follow up with a timely formal claim for each benefit. In June 2013, the AOJ granted entitlement to compensation for each of those disabilities, and the effective date was the date of the new claim, November 29, 2011. There is no evidence that VA received any communication from the appellant between June 11, 2011 (when his second claim was abandoned) and November 29, 2011, which could even be construed as an informal claim for service connection for a back disability or a hearing loss disability. Although those disorders may have been manifested prior to November 29, 2011, the date of the receipt of the claim controls, as it occurred later than the date entitlement arose. Thus, there is simply no legal basis for an effective date prior to November 29, 2011 for a grant of service connection for the appellant’s thoracolumbar spine disability or hearing loss disability. The law is dispositive of the issue; and, therefore, the appeal must be denied. Sabonis v. Brown, 6 Vet. App. 426 (1994). The appellant did not file a claim for service connection for a cervical spine disability or tinnitus. However, during the development of the claims for service connection for a low back disability and a hearing loss disability, it was determined that the appellant also had a cervical spine disability and tinnitus. Service connection was established for those disabilities and the AOJ incorporated November 29, 2011, as the effective date of those claims. Absent any earlier active claim for either of those disabilities, there is no basis for an effective date prior to November 29, 2011. The Knees and Ankles The appellant’s initial claim of entitlement to service connection for knee and ankle disabilities (VA Form 21-526EZ) was received by VA on November 17, 2015. There is no evidence that VA received any communication from the appellant prior to that date which could even be construed as an informal claim for service connection for knee or ankle disabilities. As above, those disorders may have been manifested prior to November 17, 2015; however, the date of the receipt of the claim controls, as it occurred later than the date entitlement arose. Thus, there is simply no legal basis for an effective date prior to November 17, 2015 for service connection for the appellant’s knee or ankle disabilities. As above, the law is dispositive of the issue; and, therefore, the appeal must be denied. Sabonis. REASONS FOR REMAND The Increased Rating Claims The Thoraclumbar Spine in excess of 40 percent effective February 22, 2014; The Knees; The Ankles The appellant seeks an increased rating for his service-connected thoracolumbar spine disorder, rated as 40 percent disabling, effective February 22, 2014. He also seeks initial ratings in excess of 10 percent for each knee and ankle, effective November 17, 2015. During VA treatment in January and April 2016, the appellant reported increased pain in his back, knees, and ankles; and during VA treatment in February 2016, the VA prosthetics service requested hinged knee supports and ankle sleeves for both of his knees and ankles. In April 2016, he requested a hard brace for his back, noting that he already had a soft brace. The appellant has not been examined by VA to determine the severity of his back, knee, or ankle disabilities since December 2015. Inasmuch as he has received treatment since that time, and inasmuch as his most recent VA examination is almost three years old, an additional examination is warranted. Radiculopathy of the Upper Extremities In May 2018, the AOJ granted the appellant’s claim of service connection for radiculopathy of the right and left upper extremities. The AOJ assigned ratings of 40 percent and 30 percent, respectively, each effective February 8, 2018. In May 2017, the appellant disagreed with those ratings and the assigned effective dates. To date, however, the AOJ has not had an opportunity to issue the appellant a statement of the case (SOC) with respect to those issues. TDIU In May 2017, the appellant also contended that his service-connected disabilities prevented him from working and that he was, therefore, entitled to a TDIU. That claim is inextricably intertwined with the issues of entitlement to increased ratings for the appellant’s service-connected disabilities. Holland v. Brown, 6 Vet. App. 443 (1994). In light of the foregoing discussion, the noted matters are REMANDED for the following action: 1. Issue an SOC concerning the appellant’s claims of entitlement to increased ratings and earlier effective dates for radiculopathy of his upper extremities. 2. Schedule the appellant for orthopedic and neurologic examinations to determine the severity of his service-connected thoracolumbar strain, spondylosis at T11, T12, mild anterior compression T12, and IVDS. During the orthopedic examination, examine the appellant to determine the severity of his service-connected bilateral knee and ankle disorders. The appellant’s VBMS and Virtual VA/Legacy files, and a copy of this remand must be made available to the examiner for review in conjunction with the examination, and the examiner must acknowledge receipt and review of these materials in any report generated as a result of this remand. 3. Issue a decision with respect to the appellant’s claim of entitlement to a TDIU. By this remand, the Board intimates no opinion as to the final disposition of any unresolved issue The appellant need take no action unless he is notified to do so. However, he is advised that he has the right to submit any additional evidence and/or argument on the matters the Board has remanded to the AOJ. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans’ Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. 38 U.S.C. §§ 5109B, 7112. C.A. SKOW Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Harold A. Beach, Counsel