Citation Nr: 18150283
Decision Date: 11/14/18	Archive Date: 11/14/18

DOCKET NO. 15-43 758
DATE:	November 14, 2018
ORDER
New and material evidence has been received, and the claim for entitlement to service connection for post-exertional fatigue is reopened.  To that extent only, the appeal is granted.
New and material evidence has been received, and the claim for entitlement to service connection for a skin disorder, to include folliculitis, is reopened. To that extent only, the appeal is granted.
New and material evidence has been received, and the claim for entitlement to service connection for an acquired psychiatric disorder, to include posttraumatic stress disorder (PTSD), depression, and sleep disturbances, is reopened.  To that extent only, the appeal is granted.
Entitlement to service connection for post exertional fatigue, to include as due to a Gulf War illness, is denied.
Entitlement to service connection for PTSD is denied.
Entitlement to service connection for sleep disturbances is denied.  
Entitlement to service connection for depressive disorder due to service connected disabilities is granted.
Entitlement to an effective date earlier than June 9, 2009 for the award of the grant of service connection for lumbar spondylosis is denied.
Entitlement to an effective date earlier than June 9, 2009 for the award of the grant of service connection for left lower extremity (LLE) radiculopathy is denied.
Entitlement to an effective date earlier than June 9, 2009 for the award of the grant of service connection for right lower extremity (RLE) radiculopathy is denied.
Entitlement to an effective date earlier than June 9, 2009 for the award of the grant of service connection for degenerative joint disease (DJD) of the left knee is denied.
Entitlement to an effective date earlier than June 9, 2009 for the award of the grant of service connection for DJD of the right knee is denied.
Entitlement to an effective date earlier than September 20, 2013 for the award of the grant of service connection for surgical scars of the right knee, status post arthroscopy, is denied.
Entitlement to an effective date earlier than June 9, 2009 for the award of the grant of service connection for left ankle strain is denied.
Entitlement to an effective date earlier than June 9, 2009 for the award of the grant of service connection for right ankle strain is denied.
Entitlement to an initial evaluation in excess of 20 percent for lumbar spondylosis is denied.
Entitlement to an initial evaluation in excess of 10 percent for LLE radiculopathy from June 9, 2009 to May 11, 2017 is denied.
Entitlement to an initial evaluation in excess of 10 percent for RLE radiculopathy from June 9, 2009 to May 11, 2017 is denied.
Entitlement to an initial 20 percent evaluation for LLE radiculopathy from May 12, 2017 is granted.
Entitlement to an initial 20 percent evaluation for RLE radiculopathy from May 12, 2017 is granted.
Entitlement to an initial evaluation in excess of 10 percent for DJD of the left knee is denied.
Entitlement to an initial evaluation in excess of 10 percent for DJD of the right knee from June 9, 2009 to August 19, 2013 is denied.
Entitlement to an initial 20 percent evaluation for DJD of right knee from August 20, 2013 is granted.
Entitlement to an initial evaluation in excess of 10 percent from September 20, 2013 to May 11, 2017, and an initial evaluation in excess of 20 percent from May 12, 2017, for surgical scars of the right knee, status post arthroscopy, is denied.
Entitlement to an initial evaluation in excess of 10 percent for left ankle strain is denied.
Entitlement to an initial evaluation in excess of 10 percent for right ankle strain is denied.
Entitlement to a temporary total evaluation because of hospitalization in excess of 21 days for a service-connected disability is denied.
Entitlement to a total disability evaluation based on individual unemployability due to service-connected disabilities (TDIU) is granted.
REMANDED
Entitlement to service connection for a skin disorder, to include folliculitis, and to include as due to a Gulf War illness, is remanded.
FINDINGS OF FACT
1. In a March 2009 rating decision, the RO denied the Veteran’s petition to reopen a claim for service connection for chronic fatigue; the Veteran did not submit a Notice of Disagreement (NOD), no new and material evidence was received within one year of the decision, and the decision became final.
2. The evidence received since the March 2009 rating decision is not cumulative or redundant of the evidence of record, does relate to an unestablished fact, and does raise a reasonable possibility of substantiating the Veteran’s claim of entitlement to service connection for post-exertional fatigue.  
3. In a March 2009 rating decision, the RO denied the Veteran’s petition to reopen a claim for service connection for skin rashes; the Veteran did not submit a NOD, no new and material evidence was received within one year of the decision, and the decision became final.
4. The evidence received since the March 2009 rating decision is not cumulative or redundant of the evidence of record, does relate to an unestablished fact, and does raise a reasonable possibility of substantiating the Veteran’s claim of entitlement to service connection for a skin disorder, to include folliculitis.  
5. In a May 2007 rating decision, the RO denied the Veteran’s claim for service connection for PTSD and depression; the Veteran did not submit a NOD, no new and material evidence was received within one year of the decision, and the decision became final.
6. The evidence received since the May 2007 rating decision is not cumulative or redundant of the evidence of record, does relate to an unestablished fact, and does raise a reasonable possibility of substantiating the Veteran’s claim of entitlement to service connection for an acquired psychiatric disorder, to include PTSD, depression, and sleep disturbances.  
7. The Veteran does not have an undiagnosed illness or medically unexplained chronic multi-symptom illness manifested by fatigue; nor does the evidence demonstrate that the Veteran’s post-exertional fatigue had its onset during active duty service, or is otherwise etiologically related to service.  
8. The preponderance of the evidence demonstrates that the Veteran’s in-service stressor is adequate to support a diagnosis for PTSD; but, the stressor is not related to a fear of hostile military or terrorist activity.
9. The competent and credible evidence demonstrates that the Veteran’s sleep disturbances are a symptom of his currently diagnosed depressive disorder due to another medical condition.  
10. Resolving all reasonable doubt in favor of the Veteran, the evidence demonstrates that his currently diagnosed depressive disorder is caused by his service-connected disabilities.  
11. On June 9, 2009, the RO received a claim for entitlement to service connection for a lower back disability; there was no communication prior to June 9, 2009 that could be construed as a formal or informal claim of entitlement to service connection for a lower back disability.
12. The evidence demonstrates that June 9, 2009 is the earliest date entitlement arose for LLE radiculopathy.
13. The evidence demonstrates that June 9, 2009 is the earliest date entitlement arose for RLE radiculopathy.
14. On June 9, 2009, the RO received a claim for entitlement to service connection for a left knee disability; there was no communication prior to June 9, 2009 that could be construed as a formal or informal claim of entitlement to service connection for a left knee disability.
15. On June 9, 2009, the RO received a claim for entitlement to service connection for a right knee disability; there was no communication prior to June 9, 2009 that could be construed as a formal or informal claim of entitlement to service connection for a right knee disability.
16. The evidence demonstrates that September 20, 2013 is the earliest date entitlement arose for surgical scars of the right knee, status post arthroscopy.
17. On June 9, 2009, the RO received a claim for entitlement to service connection for a left ankle disability; there was no communication prior to June 9, 2009 that could be construed as a formal or informal claim for entitlement to service connection for a left ankle disability.
18. On June 9, 2009, the RO received a claim for entitlement to service connection for a right ankle disability; there was no communication prior to June 9, 2009 that could be construed as a formal or informal claim for entitlement to service connection for a right ankle disability.
19. Throughout the appeal period, the Veteran’s lumbar spondylosis does not more closely approximate forward flexion of the thoracolumbar spine at 30 degrees or less; or favorable ankylosis of the entire thoracolumbar spine; nor does the Veteran’s intervertebral disc syndrome (IVDS) manifest incapacitating episodes having a total duration of at least 4 weeks but less than 6 weeks during the past 12 months.  
20. From June 9, 2009 to May 11, 2017, the Veteran’s LLE radiculopathy is most approximately characterized as mild incomplete paralysis of the sciatic nerve.  
21. From June 9, 2009 to May 11, 2017, the Veteran’s RLE radiculopathy is most appropriately characterized as mild incomplete paralysis of the sciatic nerve.
22. From May 12, 2017, the Veteran’s LLE radiculopathy is most appropriately characterized as moderate incomplete paralysis of the sciatic nerve.  
23. From May 12, 2017, the Veteran’s RLE radiculopathy is most appropriately characterized as moderate incomplete paralysis of the sciatic nerve.  
24. Throughout the appeal period, the Veteran’s DJD of the left knee does not more closely approximate flexion limited to 30 degrees or extension limited to 15 degrees.  
25. From June 9, 2009 to August 19, 2013, the Veteran’s DJD of the right knee does not more closely approximate flexion limited to 30 degrees or extension limited to 15 degrees.  
26. From August 20, 2013, the Veteran’s DJD of right knee manifests frequent episodes of locking and pain.  
27. From September 20, 2013 to May 11, 2017, the Veteran’s has two superficial, non-linear, painful right knee surgical scars that do not have a total area of 929 square centimeters (cm.) or greater. 
28. From May 12, 2017, the Veteran has four linear, painful scars.
29. Throughout the appeal period, the Veteran’s left ankle strain does not more closely approximate marked limited motion of the ankle.
30. Throughout the appeal period, the Veteran’s right ankle strain does not more closely approximate marked limited motion of the ankle.
31. The evidence does not show that the Veteran required hospital treatment or observation for a period in excess of 21 days for a service-connected disability. 
32. Resolving all reasonable doubt in favor of the Veteran, the evidence demonstrates that his service-connected disabilities preclude him from securing and following any substantially gainful employment.
CONCLUSIONS OF LAW
1. The March 2009 rating decision that denied the petition to reopen a claim for entitlement to service connection for chronic fatigue is final.  38 U.S.C. § 7105; 38 C.F.R. §§ 20.302, 20.1103.
2. New and material evidence has been received to reopen the claim of entitlement to service connection for post-exertional fatigue.  38 U.S.C. § 5108; 38 C.F.R. § 3.156.
3. The March 2009 rating decision that denied the petition reopen a claim for entitlement to service connection for skin rashes is final.  38 U.S.C. § 7105; 38 C.F.R. §§ 20.302, 20.1103.
4. New and material evidence has been received to reopen the claim of entitlement to service connection for a skin disorder, to include folliculitis.  38 U.S.C. § 5108; 38 C.F.R. § 3.156.
5. The May 2007 rating decision that denied the claim for entitlement to service connection for PTSD and depression is final.  38 U.S.C. § 7105; 38 C.F.R. §§ 20.302, 20.1103.
6. New and material evidence has been received to reopen the claim of entitlement to service connection for an acquired psychiatric disorder, to include PTSD, depression, and sleep disturbances.  38 U.S.C. § 5108; 38 C.F.R. § 3.156.
7. The criteria for entitlement to service connection for post exertional fatigue, to include as due to a Gulf War illness, have not been met.  38 U.S.C. §§ 1110, 1117, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.317.
8. The criteria for entitlement to service connection for PTSD have not been met.  38 U.S.C. §§ 1110, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304.
9. The criteria for entitlement to service connection for sleep disturbances have not been met.  38 U.S.C. §§ 1110, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.303.
10. The criteria for entitlement to service connection for depressive disorder have been met.  38 U.S.C. §§ 1110, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.310.
11. The criteria for entitlement to an effective date earlier than June 9, 2009 for the award of the grant of service connection for lumbar spondylosis have not been met.  38 U.S.C. §§ 5103, 5103A, 5107, 5110; 38 C.F.R. §§ 3.102, 3.159, 3.400.
12. The criteria for entitlement to an effective date earlier than June 9, 2009 for the award of the grant of service connection for LLE radiculopathy have not been met.  38 U.S.C. §§ 5103, 5103A, 5107, 5110; 38 C.F.R. §§ 3.102, 3.159, 3.400.
13. The criteria for entitlement to an effective date earlier than June 9, 2009 for the award of the grant of service connection for RLE radiculopathy have not been met.  38 U.S.C. §§ 5103, 5103A, 5107, 5110; 38 C.F.R. §§ 3.102, 3.159, 3.400.
14. The criteria for entitlement to an effective date earlier than June 9, 2009 for the award of the grant of service connection for DJD of the left knee have not been met.  38 U.S.C. §§ 5103, 5103A, 5107, 5110; 38 C.F.R. §§ 3.102, 3.159, 3.400.
15. The criteria for entitlement to an effective date earlier than June 9, 2009 for the award of the grant of service connection for DJD of the right knee have not been met.  38 U.S.C. §§ 5103, 5103A, 5107, 5110; 38 C.F.R. §§ 3.102, 3.159, 3.400.
16. The criteria for entitlement to an effective date earlier than September 20, 2013 for the award of the grant of service connection for surgical scars of the right knee, status post arthroscopy, have not been met.  38 U.S.C. §§ 5103, 5103A, 5107, 5110; 38 C.F.R. §§ 3.102, 3.159, 3.400.
17. The criteria for entitlement to an effective date earlier than June 9, 2009 for the award of the grant of service connection for left ankle strain have not been met.  38 U.S.C. §§ 5103, 5103A, 5107, 5110; 38 C.F.R. §§ 3.102, 3.159, 3.400.
18. The criteria for entitlement to an effective date earlier than June 9, 2009 for the award of the grant of service connection for right ankle strain have not been met.  38 U.S.C. §§ 5103, 5103A, 5107, 5110; 38 C.F.R. §§ 3.102, 3.159, 3.400.
19. The criteria for entitlement to an initial evaluation in excess of 20 percent for lumbar spondylosis have not been met.  38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 4.1, 4.2, 4.3, 4.6, 4.7, 4.10, 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes 5237, 5243.
20. From June 9, 2009 to May 11, 2017, the criteria for entitlement to an initial evaluation in excess of 10 percent for LLE radiculopathy have not been met.  38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 4.1, 4.2, 4.3, 4.6, 4.7, 4.124a, Diagnostic Code 8520.
21. From June 9, 2009 to May 11, 2017, the criteria for entitlement to an initial evaluation in excess of 10 percent for RLE radiculopathy have not been met.  38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 4.1, 4.2, 4.3, 4.6, 4.7, 4.124a, Diagnostic Code 8520.
22. From May 12, 2017, the criteria for entitlement to an initial 20 percent evaluation for LLE radiculopathy have been met.  38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 4.1, 4.2, 4.3, 4.6, 4.7, 4.124a, Diagnostic Code 8520.
23. From May 12, 2017, the criteria for entitlement to an initial 20 percent evaluation for RLE radiculopathy have been met.  38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 4.1, 4.2, 4.3, 4.6, 4.7, 4.124a, Diagnostic Code 8520.
24. The criteria for entitlement to an initial evaluation in excess of 10 percent for DJD of the left knee have not been met.  38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 4.1, 4.2, 4.3, 4.6, 4.7, 4.10, 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes 5260, 5261.
25. From June 9, 2009 to August 19, 2013, the criteria for entitlement to an initial evaluation in excess of 10 percent for DJD of the right knee have not been met.  38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 4.1, 4.2, 4.3, 4.6, 4.7, 4.10, 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes 5260, 5261.
26. From August 20, 2013, the criteria for entitlement to an initial 20 percent evaluation for DJD of right knee have been met.  38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 4.1, 4.2, 4.3, 4.6, 4.7, 4.10, 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes 5258, 5260, 5261.
27. From September 20, 2013 to May 11, 2017, the criteria for entitlement to an initial evaluation in excess of 10 percent for surgical scars of the right knee, status post arthroscopy, have not been met.  38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 4.1, 4.2, 4.3, 4.6, 4.7, 4.118, Diagnostic Code 7804.
28. From May 12, 2017, the criteria for entitlement to an initial evaluation in excess of 20 percent for surgical scars of the right knee, status post arthroscopy, have not been met.  38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 4.1, 4.2, 4.3, 4.6, 4.7, 4.118, Diagnostic Code 7804.
29. The criteria for entitlement to an initial evaluation in excess of 10 percent for left ankle strain have not been met.  38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 4.1, 4.2, 4.3, 4.6, 4.7, 4.10, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5271.
30. The criteria for entitlement to an initial evaluation in excess of 10 percent for right ankle strain have not been met.  38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 4.1, 4.2, 4.3, 4.6, 4.7, 4.10, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5271.
31. The criteria for entitlement to a temporary total evaluation because of hospitalization in excess of 21 days for a service-connected disability have not been met.  38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. § 4.29.
32. The criteria for entitlement to a TDIU have been met.  38 U.S.C. §§ 1155, 5103, 5103A; 38 C.F.R. §§ 3.340, 3.341, 4.16.
REASONS AND BASES FOR FINDINGS AND CONCLUSIONS
The Veteran served on active duty in the U.S. Navy from February 1990 to February 1993.  
These matters come before the Board of Veterans’ Appeals (Board) on appeal from rating decisions in August 2013, November 2013, and March 2015 by the Department of Veterans Affairs (VA) Regional Office (RO).  
In the August 2013 rating decision, the RO reopened the claims for service connection for PTSD, folliculitis, and post-exertional fatigue; denied service connection for PTSD, folliculitis, post-exertional fatigue, and sleep disturbances; and denied a temporary total evaluation because of hospital treatment in excess of 21 days for a service-connected disability.  The Veteran appealed that decision.  
Despite the RO’s action in reopening the claims for service connection for PTSD, folliculitis, and post-exertional fatigue, the Board must perform its own de novo review of whether new and material evidence has been received to reopen the claim of entitlement to service connection for PTSD, folliculitis, and post-exertional fatigue before addressing the claims on their merits.  See 38 U.S.C. § 7104; see also Barnett v. Brown, 83 F.3d 1380 (Fed. Cir. 1996).  
In the November 2013 rating decision, the RO granted service connection for lumbar spondylosis and assigned a 20 percent evaluation, effective June 9, 2009; granted service connection for RLE radiculopathy and assigned a 10 percent evaluation, effective June 9, 2009; granted service connection for LLE radiculopathy and assigned a 10 percent evaluation, effective June 9, 2009; granted service connection for DJD of the right knee and assigned a 10 percent evaluation, effective June 9, 2009; granted service connection for DJD of the left knee and assigned a 10 percent evaluation, effective June 9, 2009; and granted service connection for scar of the right knee, status post arthroscopy, and assigned a 10 percent evaluation, effective September 20, 2013.  The Veteran appealed for earlier effective dates for the award of the grant of service and higher initial evaluations.  
In the March 2015 rating decision, the RO granted service connection for right ankle strain and assigned a noncompensable evaluation, effective June 9, 2009, and a 10 percent evaluation, effective August 20, 2013; and granted service connection for left ankle strain and assigned a noncompensable evaluation, effective June 9, 2009, and a 10 percent evaluation, effective August 20, 2013.  The Veteran appealed for earlier effective dates for the award of the grant of service connection and higher initial evaluations.  
During the pendency of the appeal, the RO issued a September 2017 rating decision granting a 10 percent evaluation for left ankle strain, effective June 9, 2009; granting a 10 percent evaluation for right ankle strain, effective June 9, 2009; and granting a 20 percent evaluation for surgical scars of the right knee, status post arthroscopy, effective May 12, 2017.  The Veteran continued to appeal for higher initial evaluations for left ankle strain, right ankle strain, and surgical scars of the right knee, status post arthroscopy.  AB v. Brown, 6 Vet. App. 35 (1993) (holding that a claimant is presumed to be seeking the maximum rating).  
Although the issue certified to the Board was for folliculitis, in light of Clemons v. Shinseki, 23 Vet. App. 1 (2009), the issue has been recharacterized as above to comport with the record.
In March 2018, the Veteran submitted additional evidence in support of his appeal along with a signed waiver of RO consideration of evidence.  The Board accepts this evidence for inclusion in the record.  See 38 C.F.R. § 20.1304.  
Duties to Notify and Assist
Pursuant to the Veterans Claims Assistance Act (VCAA), VA has duties to notify and assist claimants in substantiating a claim for VA benefits.  38 U.S.C. §§ 5102, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.156(a), 3.159.
Neither the Veteran nor his representative has raised any issues with the duty to notify or duty to assist.  See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that “the Board’s obligation to read filings in a liberal manner does not require the Board . . . to search the record and address procedural arguments when the veteran fails to raise them before the Board.”); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to a duty to assist argument).
New and Material Evidence
Rating actions are final and binding based on evidence on file at the time the claimant is notified of the decision and may not be revised on the same factual basis except by a duly constituted appellate authority.  38 C.F.R. § 3.104(a).  The claimant has one year from notification of an RO decision to initiate an appeal by filing a NOD with the decision, and the decision becomes final if an appeal is not perfected within the allowed time period.  38 U.S.C. § 7105(b) and (c); 38 C.F.R. §§ 3.160(d), 20.200, 20.201, 20.202, 20.302(a).  
If new and material evidence is presented or secured with respect to a claim which has been disallowed, the Secretary shall reopen the claim and review the former disposition of the claim. 
New evidence means existing evidence not previously submitted to agency decisionmakers.  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(a).
Additionally, 38 C.F.R. § 3.156(b) provides that, when new and material evidence is received prior to the expiration of the appeal period, it will be considered as having been filed in connection with the claim which was pending at the beginning of the appeal.  See also Bond v. Shinseki, 659 F.3d. 1362, 1367 (Fed. Cir. 2011); Roebuck v. Nicholson, 20 Vet. App. 307, 316 (2006); Muehl v. West, 13 Vet. App. 159, 161-162 (1999).  
The United States Court of Appeals for Veterans Claims (Court) has held that the determination of whether newly submitted evidence raises a reasonable possibility of substantiating the claim should be considered a component of the question of what is new and material evidence, rather than a separate determination to be made after the Board has found that evidence is new and material.  See Shade v. Shinseki, 24 Vet. App. 110 (2010).  The Court further held that new evidence would raise a reasonable possibility of substantiating the claim if, when considered with the old evidence, it would at least trigger the Secretary’s duty to assist by providing a medical opinion.  Id. 
For the purpose of establishing whether new and material evidence has been submitted, the credibility of the evidence is to be presumed.  Justus v. Principi, 3 Vet. App. 510, 513 (1992).
1. Whether new and material evidence has been received to reopen a claim for entitlement to service connection for post-exertional fatigue 
In a May 2007 rating decision, the RO denied the Veteran’s original claim for service connection for chronic fatigue, because there was no evidence of fatigue symptoms during service, no evidence of a current clinically diagnosed disability, or any evidence of chronic fatigue persisting for a period of six months.  That decision is final.
In a March 2009 rating decision, the RO denied the Veteran’s petition to reopen a claim for service connection for chronic fatigue, because there was no new and material evidence.  That decision is final.  
Since the Veteran’s last prior final denial in March 2009, the record includes a June 2013 VA examination reflecting a diagnosis for post-exertional fatigue.  The Board finds that this evidence is new as it was not previously of record and tends to relate to a previously unestablished fact necessary to substantiate the underlying claim of service connection.  The June 2013 VA examination will be presumed credible for the purpose of reopening the claim.  Consequently, the claim of entitlement to service connection for post-exertional fatigue is reopened. 
2. Whether new and material evidence has been received to reopen a claim for entitlement to service connection for a skin disorder, to include folliculitis
In a May 2007 rating decision, the RO denied the Veteran’s original claim for service connection for skin rashes, because there was no evidence of skin rashes during service, no evidence of a current disability, or any evidence of chronic skin rashes persisting for a period of six months.  That decision is final.  
In a March 2009 rating decision, the RO denied the Veteran’s petition to reopen a claim for service connection for skin rashes, because there was no new and material evidence.  The Veteran did not file a NOD; however, the Board must address whether new and material evidence was received, in the form of a February 2010 VA treatment record, within one year of the rating decision.  See 38 C.F.R. § 3.156(b).
The Board notes that in a recent case by the Court, Turner v. Shulkin, 29 Vet. App. 207 (2018), the Court held that for the purpose of whether new and material evidence is received within one year of a prior adjudication under 38 C.F.R. § 3.156(b) such that the prior decision does not become final, VA treatment records may be constructively received; actual receipt of the records is not required.  However, to establish constructive receipt, VA adjudicators must have sufficient knowledge of the existence of the records within the one-year appeal period, even if they did not know the contents of such records.  In this case, the record shows that in a subsequent March 2010 rating decision, among the evidence reviewed was VA treatment records from August 2008 to January 2010.  There is no indication in the record that VA was informed or made reasonably aware that the Veteran had received treatment at a VA facility in February 2010.  See Turner v. Shulkin, 29 Vet. App. At 218-219.  Accordingly, under these circumstances, the constructive receipt of VA treatment records is not applicable.  Thus, the March 2009 rating decision is final.  
Since the Veteran’s last prior final denial in March 2009, the record includes a February 2010 VA treatment record reflecting a diagnosis for folliculitis.  The Board finds that this evidence is new as it was not previously of record and tends to relate to a previously unestablished fact necessary to substantiate the underlying claim of service connection.  The February 2010 VA treatment record will be presumed credible for the purpose of reopening the claim.  Consequently, the claim of entitlement to service connection for a skin disorder, to include folliculitis, is reopened.  
3. Whether new and material evidence has been received to reopen a claim for entitlement to service connection for an acquired psychiatric disorder, to include PTSD, depression, and sleep disturbances
In a May 2007 rating decision, the RO denied the Veteran’s claim for service connection for PTSD and depression, because there was no evidence linking the Veteran’s current PTSD to a verified stressor.  That decision is final.
Since the Veteran’s last prior final denial in May 2007, the record includes a January 2011 VA treatment record reflecting a diagnosis of major depressive disorder.  The Board finds that this evidence is new as it was not previously of record and tends to relate to a previously unestablished fact necessary to substantiate the underlying claim of service connection.  The January 2011 VA treatment record will be presumed credible for the purpose of reopening the claim.  Consequently, the claim of entitlement to service connection for an acquired psychiatric disorder, to include PTSD, depression, and sleep disturbances, is reopened.  
Service Connection
Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service.  38 U.S.C. § 1110; 38 C.F.R. § 3.303(a).  Generally, service connection requires: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service.  See Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004); see also Caluza v. Brown, 7 Vet. App. 498 (1995).  Service connection may also be granted for any disease diagnosed after discharge when the evidence establishes that the disease was incurred in service.  38 C.F.R. § 3.303(d).
In addition, service connection may be established on a secondary basis for a disability which is shown to be proximately due to or the result of a service-connected disease or injury.  38 C.F.R. § 3.310.  Establishing service connection on a secondary basis requires evidence sufficient to show that a current disability exists and that the current disability was either caused by or aggravated by a service-connected disability.  38 C.F.R. § 3.310; Allen v. Brown, 7 Vet. App. 439 (1995).
Service connection for PTSD requires medical evidence diagnosing the condition; a link, established by medical evidence, between current symptoms and an in-service stressor; and credible supporting evidence that the claimed in-service stressor occurred.  38 C.F.R. § 3.304(f).  A diagnosis of PTSD must be established in accordance with 38 C.F.R. § 4.125(a), which provides that all psychiatric diagnoses must conform to the fifth edition of the American Psychiatric Association 's Diagnostic and Statistical Manual for Mental Disorders (DSM-5).  See 38 C.F.R. § 3.304(f).
If a stressor claimed by a veteran is related to the veteran's fear of hostile military or terrorist activity and a VA psychiatrist or psychologist, or a psychiatrist or psychologist with whom VA has contracted, confirms that the claimed stressor is adequate to support a diagnosis of PTSD and that the veteran's symptoms are related to the claimed stressor, in the absence of clear and convincing evidence to the contrary, and provided the claimed stressor is consistent with the places, types, and circumstances of the veteran's service, the veteran's lay testimony alone may establish the occurrence of the claimed in-service stressor.  38 C.F.R. § 3.304(f)(3).
For purposes of 38 C.F.R. § 3.304(f)(3), "fear of hostile military or terrorist activity" means that a veteran experienced, witnessed, or was confronted with an event or circumstance that involved actual or threatened death or serious injury, or a threat to the physical integrity of the veteran or others, such as from an actual or potential improvised explosive device; vehicle-imbedded explosive device; incoming artillery, rocket, or mortar fire; grenade; small arms fire, including suspected sniper fire; or attack upon friendly military aircraft, and the veteran's response to the event or circumstance involved a psychological or psycho-physiological state of fear, helplessness, or horror.  Id.
Further, because the Veteran served in the Southwest Asia in 1991, service connection may also be established on a presumptive basis for a Persian Gulf War Veteran who exhibits objective indications of a qualifying chronic disability resulting from an undiagnosed illness that became manifest either during active service in the Southwest Asia theater of operations during the Persian Gulf War, or to a degree of 10 percent or more no later than December 31, 2021, and cannot be attributed to any known clinical diagnosis by history, physical examination, or laboratory tests.  38 U.S.C. § 1117; 38 C.F.R. § 3.317(a)(1); see also DD Form 214. 
The term "Persian Gulf Veteran" means a veteran who served on active military, naval, or air service in the Southwest Asia theater of operations during the Persian Gulf War.  38 C.F.R. § 3.317(e)(1).  The "Southwest Asia theater of operations" refers to Iraq, Kuwait, Saudi Arabia, Bahrain, Qatar, the United Arab Emirates, Oman, the Gulf of Aden, the Gulf of Oman, the Persian Gulf, the Arabian Sea, the Red Sea, and the airspace above these locations.  38 C.F.R. § 3.317 (e)(2).  The Persian Gulf War means the period beginning on August 2, 1990, and ending on the date thereafter prescribed by Presidential proclamation or by law.  38 U.S.C. § 101 (33); 38 C.F.R. § 3.3 (i).  On that basis, the Board finds that the Veteran qualifies as a Persian Gulf War Veteran within the meaning of the applicable statute and regulation.
A qualifying chronic disability means a chronic disability resulting from any of the following (or any combination of the following): (A) An undiagnosed illness; (B) The following medically unexplained chronic multi-symptom illnesses that are defined by a cluster of signs or symptoms: (1) Chronic fatigue syndrome; (2) Fibromyalgia; (3) Irritable bowel syndrome; or (4) Any other illness that the Secretary determines meets the criteria for a medically unexplained chronic multi-symptom illness; or (C) Any diagnosed illness that the Secretary determines warrants a presumption of service connection.  38 C.F.R. § 3.317(a)(2)(i). 
Disabilities that have existed for six months or more and disabilities that exhibit intermittent episodes of improvement and worsening over a six-month period are considered chronic.  The six-month period of chronicity is measured from the earliest date on which the pertinent evidence establishes that the signs or symptoms of the disability first became manifest.  38 C.F.R. § 3.317(a)(4).
Signs or symptoms that may be manifestations of an undiagnosed illness or medically unexplained chronic multi-symptom illness include, but are not limited to, the following: (1) fatigue; (2) signs or symptoms involving skin; (3) headache; (4) muscle pain; (5) joint pain; (6) neurologic signs or symptoms; (7) neuropsychological signs or symptoms; (8) signs or symptoms involving the respiratory system (upper or lower); (9) sleep disturbances; (10) gastrointestinal signs or symptoms; (11) cardiovascular signs or symptoms; (12) abnormal weight loss; and (13) menstrual disorders.  38 C.F.R. § 3.317(b). 
For purposes of this presumption, the term "medically unexplained chronic multi-symptom illness" means a diagnosed illness without conclusive pathophysiology or etiology, that is characterized by overlapping symptoms and signs and has features such as fatigue, pain, disability out of proportion to physical findings, and inconsistent demonstration of laboratory abnormalities.  Chronic multi-symptom illnesses of partially understood etiology and pathophysiology, such as diabetes and multiple sclerosis, will not be considered "medically unexplained."  38 C.F.R. § 3.317(a)(2)(ii).
In the case of claims based on an undiagnosed illness under 38 U.S.C. § 1117 and 38 C.F.R. § 3.317, unlike those for "direct service connection," there is no requirement that there be competent evidence of a nexus between the claimed illness and service.  Gutierrez v. Principi, 19 Vet. App. 1, 8-9 (2004).  Further, lay persons are considered competent to report objective signs of illness.  Id.
Compensation shall not be paid under 38 C.F.R. § 3.317 for a chronic disability: (1) if there is affirmative evidence that the disability was not incurred during active military, naval, or air service in the Southwest Asia theater of operations; or (2) if there is affirmative evidence that the disability was caused by a supervening condition or event that occurred between the Veteran's most recent departure from active duty in the Southwest Asia theater of operations and the onset of the disability; or (3) if there is affirmative evidence that the disability is the result of the Veteran's own willful misconduct or the abuse of alcohol or drugs.  38 C.F.R. § 3.317(a)(7).
Notwithstanding the provisions relating to presumptive service connection, a Veteran may establish service connection for a disability with proof of actual direct causation.  Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994).
4. Entitlement to service connection for post exertional fatigue 
The Veteran generally asserts that his fatigue developed due to his Persian Gulf War service.  
The question before the Board is whether the Veteran’s post-exertional fatigue is etiologically related to his active duty service.  Based on a careful review of all the subjective and clinical evidence, the preponderance of the evidence weighs against finding service connection for post-exertional fatigue, to include as due to Gulf War illness, is warranted on a direct or presumptive basis.  
The Veteran’s service treatment records do not document any findings related to any complaints, treatment, or diagnosis related to fatigue problems.  
At his June 2013 VA examination, the Veteran was diagnosed with post-exertional fatigue.  The Veteran reported that his fatigue, low energy and daytime sleepiness began six or seven years earlier.  His symptoms occurred after he participated in activities that required mild to moderate exertion, such as household chores, yard work or walking for prolonged periods of time.  
VA treatment records from 2001 to 2017 do not reflect any complaints or treatment related to the Veteran’s reported post-exertional fatigue symptomatology.  
Initially, the Board notes that post-exertional fatigue does not qualify as an undiagnosed illness or medically unexplained chronic multi-symptom illness under 38 C.F.R. § 3.317.  Therefore, presumptive service connection for post-exertional fatigue is not warranted.  Nevertheless, the Board must consider whether the Veteran’s post-exertional fatigue is etiologically related to his active duty service on a direct basis.  
In that regard, the Board finds that the June 2013 VA examiner’s opinion provides the most probative evidence as to the etiology of the Veteran’s post-exertional fatigue.  The June 2013 VA examiner opined that the Veteran’s post-exertional fatigue was not caused by or occurred secondary to exposure to environmental hazards during his Gulf War deployment.  On that basis, the June 2013 VA examiner relied on the finding that the Veteran’s post-exertional fatigue developed more than 15 years after his Gulf War deployment.  
The only evidence presented in support of the Veteran’s contentions are his own lay assertions.  Certainly, the Veteran is competent to report his history of fatigue symptoms.  Layno v. Brown, 6 Vet. App. 465, 470 (1994).  Notably, the Veteran reported that his symptoms did not begin until 2006 or 2007.  His deployment to the Gulf was in 1991.  The Veteran has not presented any competent and credible evidence that is post-exertional fatigue was etiologically related to his active duty service.  Accordingly, the Board finds that service connection for post-exertional fatigue, to include as due to a Gulf War illness, on a direct basis is not warranted.  
In summary, the preponderance of the evidence weighs against finding in favor of the Veteran’s service connection claim for post-exertional fatigue, to include as due to a Gulf War illness.  Therefore, the benefit-of-the-doubt rule does not apply, and the service connection claim must be denied.  38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990).
5. Entitlement to service connection for PTSD
6. Entitlement to service connection for sleep disturbances
7. Entitlement to service connection for depressive disorder due to another medical condition with mixed features
The Veteran asserts that his current psychiatric problems developed due to in-service military trauma.  While serving aboard the U.S.S. Nimitz in 1991, the Veteran described how he witnessed a F-18 jet crashing on the flight deck.  He saw injured crew members and people who were trying to disarm the missile that was onboard the jet.  He was afraid that the missile would explode, and he would be killed.  He described how he had to help fight the fire as part of the response team, and he heard people yelling that the missile was going to explode.  After the incident, the Veteran said he had nightmares about the jet crash.  See December 2006 VA Form 21-0871 and June 2013 VA examination.  
The question before the Board is whether the Veteran has a current psychiatric disorder that is etiologically related to his active duty service or his service-connected disabilities.  Based on a careful review of all the subjective and clinical evidence, the Board finds that the preponderance of the evidence weighs against finding service connection for PTSD and sleep disturbances is warranted.  However, resolving all reasonable doubt in favor of the Veteran, the Board finds that the Veteran’s currently diagnosed depressive disorder due to another medical condition with mixed features is caused by his service-connected disabilities. 
As a preliminary matter, the Board will address whether the Veteran’s currently diagnosed PTSD is related to an in-service stressor.  In that regard, there is no dispute that the Veteran has a current PTSD diagnosis.  Further, the evidence establishes that the Veteran’s reported in-service stressor witnessing the jet crash was adequate to support the diagnosis of PTSD.  See June 2013 VA examination.  However, at his June 2013 VA examination, the VA examiner found that the Veteran’s stressor was not related to the Veteran’s fear of hostile military or terrorist activity as it was not an enemy attack, but a serious military aircraft accident.  
Based on the circumstances of the Veteran’s active duty service, his reported in-service stressor would have to qualify as a sufficient PTSD stressor for fear of hostile military or terrorist activity under 38 C.F.R. § 3.304(f)(3).  However, the overwhelming evidence of record shows that the Veteran’s in-service stressor does not qualify under VA regulations as a fear of hostile military or terrorist activity.  Although the June 2013 VA examiner found that the Veteran had PTSD due his military experiences, his claimed stressor was not related to enemy actions, but an accident.  Therefore, the Board finds that the veteran does not have a PTSD stressor that qualifies under 38 C.F.R. § 3.304(f)(3) as fear of hostile military or terrorist activity.  Accordingly, service connection for PTSD is not warranted.  
With regard to whether the Veteran is entitled to service connection for a psychiatric disorder other than PTSD, the Board concludes that service connection is warranted.  On that basis, although the Veteran did not specifically assert service connection on a secondary basis, the record includes evidence that the Veteran has a current psychiatric disorder caused by his service-connected disabilities.  
The record includes a January 2015 Mental Disorders Disability Benefits Questionnaire (DBQ), which was conducted and prepared by a private psychologist, Dr. H.G.  Following an interview of the Veteran, review of his claims file, including a statement from his mother attesting to his changed behavior both during and after service, and research of current medical literature, Dr. H.G. diagnosed the Veteran with depressive disorder due to another medical condition with mixed features.  Dr. H.G. explained that the Veteran’s service-connected bilateral pes planus with plantar fasciitis with mechanical neuritis, lumbar spondylosis, DJD of the bilateral knees, right knee scars, and bilateral lower extremity radiculopathy manifested as a depressive disorder.  Citing medical literature, Dr. H.G. explained that there was a connection between medical issues, such as the Veteran’s, and psychiatric disorder, similar to his depressive disorder complaints.  Overall, Dr. H.G. opined that although it was impossible to contribute just one cause to the Veteran’s depressive disorder, it was more likely than not that his service-connected disabilities caused his depressive disorder.  Because Dr. H.G.’s opinion took into consideration the Veteran’s reported symptomatology and his complete medical history and was based on a thoroughly reasoned analysis, the Board finds that Dr. H.G.’s opinion provides the most probative evidence as to the diagnosis and etiology of the Veteran’s depressive disorder due to another medical condition with mixed features.  
Finally, the Board has considered whether service connection for sleep disturbances is warranted.  In that regard, the Board notes that the Veteran did not express any assertions that his sleep disturbances were caused by another incident separate from the military trauma he experienced during service.  Further, although the Veteran’s VA treatment records include reports of sleep problems, those complaints were generally associated with his overall mental health symptomatology.  Notably, at neither his June 2013 VA examination, nor his January 2015 Mental Disorder DBQ, did the mental health professionals identify a separate diagnosis to account for his sleep disturbances.  Rather, the Veteran’s sleep problems were found to be a symptom of his diagnosed PTSD and depressive disorder.  Therefore, the Board finds that service connection for sleep disturbances is not warranted.  
In summary, the preponderance of the evidence weighs against finding in favor of the Veteran’s service connection claims for PTSD and sleep disturbances.  Therefore, the benefit-of-the-doubt rule does not apply, and the service connection claims must be denied.  However, resolving all reasonable doubt in favor of the Veteran, the evidence is at least in equipoise that his depressive disorder due to another medical condition with mixed features is caused by his service-connected disabilities.  Accordingly, the Veteran’s service connection claim for an acquired psychiatric disorder, diagnosed as depressive disorder due to another medical condition with mixed features, must be granted.  See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990).
Effective Date
Generally, the effective date for the grant of service connection will be the day following separation from active service or the date entitlement arose, if the claim is received within one year after discharge from service.  Otherwise, for an award based on an original claim, claim reopened after a final disallowance, or claim for an increased rating, the effective date is the date of receipt of the claim or the date entitlement arose, whichever is the later.  38 U.S.C. § 5110 (a); 38 C.F.R. § 3.400.  
A finally adjudicated claim is an application, formal or informal, which has been allowed or disallowed by the agency of original jurisdiction and the action having become final by the expiration of 1 year after the date of notice of the disallowance, or by denial on appellate review, whichever is the earlier.  38 C.F.R. § 3.160(d) (2014).  A reopened claim is any application for a benefit received after final disallowance of an earlier claim.  38 C.F.R. § 3.160(e) (2014).
VA has amended the regulations concerning the filing of claims, including no longer recognizing informal claims and eliminating the provisions of 38 C.F.R § 3.157.  See 38 C.F.R. § 3.155; Fed. Reg. 57,660, 57,695 (Sept. 25. 2014).  The amendments, however, are only effective for claims and appeals filed on or after March 24, 2015.  As the claims at issue in the appeal were filed before these amendments, the prior regulatory provisions apply.  
The date of receipt of a claim is the date on which a claim, information, or evidence is received by VA.  38 C.F.R. § 3.1(r) (2014).  A claim 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) (2014); 3.155 (2014).  The regulation which governs informal claims, 38 C.F.R. § 3.155, provides that any communication or action, indicating an intent to apply for one or more benefits under the laws administered by [VA], from a claimant...may be considered an informal claim.  Such informal claim must identify the benefit sought.  Id.  When a claim has been filed that meets the requirements of 38 C.F.R. § 3.151 or 3.152, an informal request for increase or reopening will be accepted as a claim.
8. Entitlement to an effective date earlier than June 9, 2009 for the award of the grant of service connection for lumbar spondylosis
The Veteran generally asserts that he warrants an effective date earlier than June 9, 2009 for the award of the grant of service connection for lumbar spondylosis.  
On June 9, 2009, the Veteran filed an informal claim for service connection for a lower back disability.  In a November 2013 rating decision, the RO granted service connection for lumbar spondylosis, effective June 9, 2009.  The Veteran disagreed with the decision and filed for an earlier effective date.  
There was no communication, either formal or informal, prior to June 9, 2009 that constitutes as a claim for service connection for a lower back disability, and the Veteran has not otherwise established that there exists any such claim.  According to the applicable regulation, the effective date of the grant of the service connection can be no earlier than June 9, 2009, the date of the receipt of the claim, which was the date VA first received any communication indicating an intent to apply for service connection for a lower back disability.  38 C.F.R. § 3.400(b)(2)(i).
The pertinent legal authority governing effective dates is clear and specific, and the Board is bound by that authority.  The preponderance of the evidence is against the assignment of an effective date for the award of the grant of service connection for lumbar spondylosis earlier than June 9, 2009.  Thus, since the Board finds no legal basis for assignment of any earlier effective date, the claim must be denied.  38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990).
9. Entitlement to an effective date earlier than June 9, 2009 for the award of the grant of service connection for LLE radiculopathy
10. Entitlement to an effective date earlier than June 9, 2009 for the award of the grant of service connection for RLE radiculopathy
The Veteran generally asserts that he warrants an effective date earlier than June 9, 2009 for the award of the grant of service connection for LLE radiculopathy and RLE radiculopathy.  
Here, the record does not indicate that the Veteran filed an explicit claim for service connection for LLE radiculopathy and RLE radiculopathy.  Instead, service connection was awarded in a November 2013 rating decision based on the findings of an August 2013 VA examination, which was conducted in connection with the Veteran’s service connection claim for a lower back disability.  The Veteran’s service connection claim for his lower back disability was received on June 9, 2009.  The Veteran was awarded service connection for LLE radiculopathy and RLE radiculopathy on June 9, 2009, the date of the service connection claim for a lower back disability.  
Given that no explicit service connection claim for radiculopathy of the bilateral lower extremities was filed, and that the Veteran’s entitlement to radiculopathy of the bilateral lower extremities arose out of his service connection claim for a lower back disability, the Board finds that June 9, 2009 is the earliest date entitlement arose for LLE radiculopathy and RLE radiculopathy.  
The pertinent legal authority governing effective dates is clear and specific, and the Board is bound by that authority.  The preponderance of the evidence is against the assignment of an effective date for the award of the grant of service connection for LLE radiculopathy and RLE radiculopathy earlier than June 9, 2009.  Thus, since the Board finds no legal basis for assignment of any earlier effective date, the claims must be denied.  38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990).
11. Entitlement to an effective date earlier than June 9, 2009 for the award of the grant of service connection for DJD of the left knee
12. Entitlement to an effective date earlier than June 9, 2009 for the award of the grant of service connection for DJD of the right knee
The Veteran generally asserts that he warrants an effective date earlier than June 9, 2009 for the award of the grant of service connection for DJD of the left knee and DJD of the right knee.  
On June 9, 2009, the Veteran filed an informal claim for service connection for a bilateral knee disability.  In a November 2013 rating decision, the RO granted service connection for DJD of the left knee, effective June 9, 2009; and granted service connection for DJD of the right knee, effective June 9, 2009.  The Veteran disagreed with that decision and filed for an earlier effective date.  
There was no communication, either formal or informal, prior to June 9, 2009 that constitutes as a claim for service connection for a right or left knee disability, and the Veteran has not otherwise established that there exists any such claim.  According to applicable regulation, the effective date of the grant of service connection for DJD of the left knee and DJD of the right knee can be no earlier than June 9, 2009, the date of the receipt of the claim, which was the date VA first received any communication indicating an intent to apply for service connection for a bilateral knee disability.  38 C.F.R. § 3.400(b)(2)(i).
The pertinent legal authority governing effective dates is clear and specific, and the Board is bound by that authority.  The Board finds that the preponderance of the evidence is against the assignment of an effective date for the award of the grant of service connection for DJD of the left knee and DJD of the right knee earlier than June 9, 2009.  Thus, since the Board finds no legal basis for assignment of any earlier effective date, the claims must be denied.  38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990).
13. Entitlement to an effective date earlier than September 20, 2013 for the award of the grant of service connection for surgical scars of the right knee, status post arthroscopy
The Veteran generally asserts that he warrants an effective date earlier than September 20, 2013 for the award of the grant of service connection for surgical scars of the right knee, status post arthroscopy.  
Here, the record does not indicate that the Veteran filed an explicit claim for service connection for right knee scars.  Instead, service connection was awarded in a November 2013 rating decision based on the findings in an October 2013 VA examination, which was conducted in connection with a service connection claim for a right knee disability.  The RO found that the Veteran had undergone right knee arthroscopic surgery on September 20, 2013 and had residual surgical scars.  The Veteran was awarded service connection for surgical scars of the right knee, status post arthroscopy, effective September 20, 2013, the date of his right knee surgery.  
Given that no explicit service connection claim for right knee scars was filed, and that the Veteran’s entitlement to right knee scars arose out of his right knee surgery, the Board finds that September 20, 2013 is the earliest date entitlement arose for surgical scars of the right knee, status post arthroscopy.  
The pertinent legal authority governing effective dates is clear and specific, and the Board is bound by that authority.  The Board finds that the preponderance of the evidence is against the assignment of an effective date for the award of the grant of service connection for surgical scars of the right knee, status post arthroscopy, earlier than September 20, 2013.  Thus, since the Board finds no legal basis for assignment of any earlier effective date, the claim must be denied.  38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990).
14. Entitlement to an effective date earlier than June 9, 2009 for the award of the grant of service connection for left ankle strain
15. Entitlement to an effective date earlier than June 9, 2009 for the award of the grant of service connection for right ankle strain
The Veteran generally asserts that he warrants an effective date earlier than June 9, 2009 for the award of the grant of service connection for left ankle strain and right ankle strain.  
On June 9, 2009, the Veteran filed an informal claim for service connection for a bilateral ankle disability.  In a March 2015 rating decision, the RO granted service connection for left ankle strain, effective June 9, 2009; and granted service connection for right ankle strain, effective June 9, 2009.  The Veteran disagreed with the decision and filed for an earlier effective date.  
There was no communication, either formal or informal, prior to June 9, 2009 that constitutes as a claim for service connection for a left or right ankle disability, and the Veteran has not otherwise established that there exists any such claim.  According to the applicable regulation, the effective date for the award of the grant of service connection for a left or right ankle disability can be no earlier than June 9, 2009, the date of the receipt of the claim, which was the date VA first received any communication indicating an intent to apply for service connection for a left or right ankle disability.  38 C.F.R. § 3.400(b)(2)(i).  
The pertinent legal authority governing effective dates is clear and specific, and the Board is bound by that authority.  The Board finds that the preponderance of the evidence is against the assignment of an effective date for the award of the grant of service connection for left ankle strain and right ankle strain earlier than June 9, 2009.  Thus, since the Board finds no legal basis for assignment of any earlier effective date, the claims must be denied.  38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990).
Increased Rating
Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities, found in 38 C.F.R., Part 4.  The rating schedule is primarily a guide in the evaluation of disability resulting from all types of diseases and injuries encountered as a result of, or incident to, military service.  The ratings are intended to compensate, as far as can practicably be determined, the average impairment of earning capacity resulting from such diseases and injuries and their residual conditions in civilian occupations.  38 U.S.C. § 1155; 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 for that rating.  Otherwise the lower rating will be assigned.  38 C.F.R. § 4.7.  
Because the level of disability may have varied over the course of the claim, the rating may be "staged" higher or lower for segments of time during the period under review in accordance with such variations.  Hart v. Mansfield, 21 Vet. App. 505, 509-10 (2007); Fenderson v. West, 12 Vet. App. 119, 126 (1999).  In initial-rating cases, where the appeal stems from a granted claim of service connection with respect to the initial evaluation assigned, VA assesses the level of disability from the effective date of service connection.  See Fenderson, 12 Vet. App. at 125; 38 U.S.C. § 5110; 38 C.F.R. § 3.400.
It should also be noted that, when evaluating disabilities of the musculoskeletal system, 38 C.F.R. § 4.40 allows for consideration of functional loss due to pain and weakness causing additional disability beyond that reflected on range of motion measurements.  DeLuca v. Brown, 8 Vet. App. 202 (1995).  Further, 38 C.F.R. § 4.45 provides that consideration also be given to decreased movement, weakened movement, excess fatigability, incoordination, and pain on movement, swelling, and deformity or atrophy of disuse.
Disability of the musculoskeletal system is primarily the inability, due to damage or infection in the parts of the system, to perform the normal working movements of the body with normal excursion, strength, speed, coordination, and endurance.  38 C.F.R. § 4.40; DeLuca, 8 Vet. App. at 205.  It is essential that the examination on which ratings are based adequately portray the anatomical damage, and the functional loss, with respect to all these elements.  The functional loss may be due to absence of part, or all, of the necessary bones, joints and muscles, or associated structures, or to deformity, adhesions, defective innervation, or other pathology, or it may be due to pain, supported by adequate pathology or evidenced by visible behavior of the claimant undertaking the motion.  Id.  Weakness is as important as limitation of motion, and a part that becomes painful on use must be regarded as seriously disabled.  Id.  The factors involved in evaluating, and rating disabilities of the joints include weakness; fatigability; incoordination; restricted or excess movement of the joint, or pain on movement.  38 C.F.R. § 4.45.
The intent of the rating schedule is to recognize painful motion with joint or periarticular pathology as productive of disability.  It is the intention to recognize actually painful, unstable, or malaligned joints, due to healed injury, as entitled to at least the minimum compensable rating for the joint.  38 C.F.R. § 4.59.  Painful motion is considered limited motion at the point that pain actually sets in.  See VAOPGCPREC 9-98.
Separate disability ratings may be assigned for distinct disabilities resulting from the same injury so long as the symptomatology for one condition was not "duplicative of or overlapping with the symptomatology" of the other condition.  See Esteban v. Brown, 6 Vet. App. 259, 262 (1994).  However, pyramiding, that is the evaluation of the same disability, or the same manifestation of a disability, under different diagnostic codes, is to be avoided when evaluating a Veteran's service-connected disability.  38 C.F.R. § 4.14.
16. Entitlement to an initial evaluation in excess of 20 percent for lumbar spondylosis
The Veteran generally asserts that his lumbar spondylosis is worse than his current evaluation reflects.  
The Veteran’s service-connected lumbar spondylosis has been currently evaluated as 20 percent disabling, effective June 9, 2009, under 38 C.F.R. § 4.71a, Diagnostic Code 5237.  
Diagnostic Code 5237 is evaluated under the General Rating Formula for Diseases and Injuries of the Spine, with or without symptoms such as pain, stiffness or aching in the area of the spine affected by residuals of injury or disease, the following ratings will apply: 
A 20 percent evaluation is appropriate where there is forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees; or, the combined range of motion of the thoracolumbar spine not greater than 120 degrees; or, muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis. 
A 40 percent evaluation is appropriate for forward flexion of the thoracolumbar spine of 30 degrees or less; or, favorable ankylosis of the entire thoracolumbar spine. 
A higher 50 percent evaluation is assigned for unfavorable ankylosis of the entire thoracolumbar spine. 
A 100 percent evaluation is assigned for unfavorable ankylosis of the entire spine.
For VA compensation purposes, normal forward flexion of the thoracolumbar spine is zero to 90 degrees; extension is zero to 30 degrees; left and right lateral flexion are zero to 30 degrees; and left and right lateral rotation are zero to 30 degrees.  See General Rating Formula for Diseases and Injuries of the Spine, Note 2.
Evaluate any associated objective neurologic abnormalities, including, but not limited to, bowel or bladder impairment, separately, under an appropriate diagnostic code.  See 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 neurological symptoms due to nerve root stretching.  Fixation of a spinal segment in neutral position (zero degrees) always represents favorable ankylosis.  See General Rating Formula for Diseases and Injuries of the Spine, Note 5.
Under the applicable criteria, intervertebral disc syndrome (preoperatively or postoperatively) is to be evaluated either under the general rating for disease and injuries of the spine (outlined above) or under the formula for rating intervertebral disc syndrome based on incapacitating episodes, whichever method results in the higher evaluation when all disabilities are combined under 38 C.F.R. § 4.25. 
Under Diagnostic Code 5243 (Intervertebral Disc Syndrome), a 20 percent evaluation is assigned with incapacitating episodes having a total duration of at least 2 weeks but less than 4 weeks during the past 12 months; a 40 percent evaluation is assigned with incapacitating episodes having a total duration of at least 4 weeks but less than 6 weeks during the past 12 months; and a maximum 60 percent evaluation is assigned with incapacitating episodes having a total duration of at least 6 weeks during the past 12 months.  38 C.F.R. § 4.71a.
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.  38 C.F.R. § 4.71a, Diagnostic Code 5243, Note 1.
Based on a careful review of all the subjective and clinical evidence, the Board finds that throughout the appeal period, the evidence does not demonstrate that the Veteran’s lumbar spondylosis warrants a higher 40 percent evaluation under the General Rating Formula for Diseases and Injuries of the Spine.  In other words, at no time during the appeal period does the evidence demonstrate that the Veteran’s thoracolumbar spine manifests forward flexion at 30 degrees or less, or, favorable ankylosis of the entire thoracolumbar spine.  Indeed, at his August 2013 VA examination, his thoracolumbar spine manifested flexion at no less than 60 degrees, which occurred following repetitive use testing.  At his May 2017 VA examination, his range of motion showed significant improvement as his thoracolumbar spine manifested flexion at no less 90 degrees.  There was no additional loss in range of motion following repetitive use testing.  Accordingly, the Board finds that there is no basis upon which to award a higher 40 percent evaluation under the General Rating Formula for Diseases and Injuries of the Spine.  
Furthermore, viewing the evidence in the light most favorable to the Veteran, the Board finds that a higher than 20 percent evaluation for lumbar spondylosis is also not warranted based on functional loss due to repetitive use.  See DeLuca v. Brown, 8 Vet. App. 202, 206 (1995); see also 38 C.F.R. §§ 4.40, 4.45.  Although the August 2013 VA examination findings showed that the Veteran’s thoracolumbar spine exhibited a decrease in range of motion upon repetitive use testing (flexion from 70 to 60 degrees and extension from 20 to 10 degrees), the evidence does not demonstrate that such loss is equivalent to the 40 percent evaluation under the General Rating Formula for Diseases and Injuries of the Spine.  Rather, the Board finds that the August 2013 VA examination findings are more consistent with a 20 percent evaluation under the General Rating Formula for Diseases and Injuries of the Spine.  
Finally, the Board has considered whether the Veteran warrants a higher 40 percent evaluation under Diagnostic Code 5243, as his May 2017 VA examination findings showed that he had IVDS.  The VA examiner also noted that the Veteran had no episodes of acute signs and symptoms due to IVDS that required bed rest prescribed by a physician in the past 12 months.  Therefore, the Board concludes that there is no basis upon which to award a higher 40 percent evaluation under Diagnostic Code 5243.  Accordingly, throughout the appeal period, the Veteran’s lumbar spondylosis is no more than 20 percent disabling.  
In summary, the preponderance of the evidence weighs against finding in favor of the Veteran’s claim for a higher than 20 percent initial evaluation claim for lumbar spondylosis.  Therefore, the benefit-of-the-doubt rule does not apply, and the higher initial evaluation claim must be denied.  38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990).
17. Entitlement to an initial evaluation in excess of 10 percent for LLE radiculopathy from June 9, 2009 to May 11, 2017
18. Entitlement to an initial evaluation in excess of 10 percent for RLE radiculopathy from June 9, 2009 to May 11, 2017
19. Entitlement to an initial 20 percent evaluation for LLE radiculopathy from May 12, 2017
20. Entitlement to an initial 20 percent evaluation for RLE radiculopathy from May 12, 2017
The Veteran generally asserts that his bilateral lower extremity radiculopathy is worse than his current evaluations reflect.
The Veteran’s LLE radiculopathy has been currently evaluated as 10 percent disabling, effective June 9, 2009, under 38 C.F.R. § 4.124a, Diagnostic Code 8520.  The Veteran’s RLE radiculopathy has been currently evaluated as 10 percent disabling, effective June 9, 2009, under 38 C.F.R. § 4.124a, Diagnostic Code 8520.  
Diagnostic Code 8520 provides the rating criteria for paralysis of the sciatic nerve, and therefore, neuritis and neuralgia of that nerve.  38 U.S.C. § 4.124a, Diagnostic Code 8520.  Disability ratings of 10 percent, 20 percent and 40 percent are assignable for incomplete paralysis which is mild, moderate or moderately severe in degree, respectively.  A 60 percent rating is warranted for severe incomplete paralysis with marked muscular atrophy.  Complete paralysis of the sciatic nerve, which is rated as 80 percent disabling, contemplates foot dangling and dropping, no active movement possible of muscles below the knee, and flexion of the knee weakened or (very rarely) lost. 
Words such as “mild,” “moderate,” and “severe” are not defined in the Rating Schedule.  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.  Additionally, the term “incomplete paralysis,” with this and other peripheral nerve injuries, indicates a degree of lost or impaired function substantially less than the type picture for complete paralysis given with each nerve, whether due to varied level of the nerve lesion or to partial regeneration.  38 C.F.R. § 4.124a, Note at Diseases of the Peripheral Nerves.  When the involvement is wholly sensory, the rating should be for the mild, or at most, the moderate degree.  Id.  The ratings for the peripheral nerves are for unilateral involvement; when bilateral, the ratings combine with application of the bilateral factor.  Id.
Based on a careful review of all the subjective and clinical evidence, from June 9, 2009 to May 11, 2017, the Board finds that the Veteran’s LLE and RLE radiculopathy do not warrant a higher 20 percent evaluation under Diagnostic Code 8520.  In other words, during this appeal period, the evidence does not demonstrate that the Veteran’s LLE and RLE radiculopathy symptoms are more appropriately characterized as moderate incomplete paralysis of the sciatic nerve.  On that basis, the Board finds that the clinical findings at the Veteran’s August 2013 VA examination provide the most persuasive evidence.  At his August 2013 VA examination, the VA examiner found that the Veteran had normal muscle strength testing and sensory examination results.  Straight leg raising test was positive on the right and negative on the left.  Although the VA examiner noted that the Veteran had severe radiculopathy located at the sciatic nerve bilaterally, the examiner also concluded that the present objective physical examination, and previous test results, did not support the severity of disability suggested by the Veteran’s subjective complaints.  Based on these findings coupled with complaints made at July 2012 and October 2015 VA clinic visits of radiating pain down his legs, but no suggestion that his symptoms were significantly debilitating, the Board concludes that the evidence during this appeal period does not support finding that the Veteran’s LLE and RLE radiculopathy demonstrate more than mild incomplete paralysis of the sciatic nerve.  Therefore, the Board finds that from June 9, 2009 to May 11, 2017, there is no basis upon which to award a 20 percent evaluation for LLE and RLE radiculopathy under Diagnostic Code 8520.  Accordingly, from June 9, 2009 to May 11, 2017, the Veteran’s LLE and RLE radiculopathy are each no more than 10 percent disabling.  
However, resolving all reasonable doubt in favor of the Veteran, the Board finds that from May 12, 2017, the evidence demonstrates that the Veteran’s LLE and RLE radiculopathy warrant a higher 20 percent evaluation under Diagnostic Code 8520.  In other words, the evidence demonstrates that the Veteran’s LLE and RLE radiculopathy symptoms are most appropriately characterized as moderate incomplete paralysis of the sciatic nerve.  On that basis, the Board finds that the clinical findings at the Veteran’s May 2017 VA examination provide the most favorable evidence.  At his May 2017 VA examination, the VA examiner found that the Veteran’s bilateral lower extremity radiculopathy was moderate.  The VA examiner noted that the Veteran had a decreased ability to stand and walk, instability of station and disturbance of locomotion.  Although these functional impairments were attributed to both his lumbar spondylosis and bilateral lower extremity radiculopathy, the Board finds that these findings are still illustrative of the impact his bilateral lower extremity radiculopathy has on the Veteran’s ability to function, and thus the severity of his disability.  Notably, unlike at his August 2013 VA examination, the May 2017 VA examiner did not indicate that the Veteran’s subjective reports were inconsistent with the underlying objective findings.  Overall, the Board finds that the evidence is at least in equipoise that higher 20 percent evaluations for LLE and RLE radiculopathy under Diagnostic Code 8520 are warranted.  However, higher 40 percent evaluations for LLE and RLE radiculopathy under Diagnostic Code 8520 are not warranted, because the evidence does not demonstrate that the radiculopathy signs and symptoms more closely approximate moderately severe incomplete paralysis of the sciatic nerve.  Therefore, the Board finds that, from May 12, 2017, the Veteran’s LLE and RLE radiculopathy are each no more than 20 percent disabling.  
In summary, the preponderance of the evidence weighs against finding in favor of the Veteran’s claim for a higher than 10 percent initial evaluation for LLE radiculopathy and RLE radiculopathy from June 9, 2009 to May 11, 2017.  However, resolving all reasonable doubt in favor of the Veteran, from May 12, 2017, higher 20 percent initial evaluations, but no higher, for LLE radiculopathy and RLE radiculopathy are granted.  38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990).
21. Entitlement to an initial evaluation in excess of 10 percent for DJD of the left knee
22. Entitlement to an initial evaluation in excess of 10 percent for DJD of the right knee from June 9, 2009 to August 19, 2013
23. Entitlement to an initial 20 percent evaluation for DJD of right knee from August 20, 2013
The Veteran generally asserts that his DJD of the left knee and DJD of the right knee are worse than his current evaluations reflect.  
The Veteran's DJD of the left knee has been currently evaluated as 10 percent disabling, effective June 9, 2009, under 38 C.F.R. § 4.71a, Diagnostic Code 5260.  The Veteran’s DJD of the right knee has been currently evaluated as 10 percent disabling, effective June 9, 2009, under 38 C.F.R. § 4.71a, Diagnostic Code 5260.
VA is required to evaluate the Veteran’s disability under the most appropriate rating criteria that will provide the most benefit to the Veteran.  The assignment of a particular diagnostic code is “completely dependent on the facts of a particular case.”  Butts v. Brown, 5 Vet. App. 532, 538 (1993).  One diagnostic code may be more appropriate than another based on such factors as an individual’s relevant medical history, diagnosis, and demonstrated symptomatology.  Any change in diagnostic code by a VA adjudicator must be specifically explained.  See Pernorio v. Derwinski, 2 Vet. App. 625, 629 (1992).
With respect to disabilities of the knee, 38 C.F.R. § 4.71a, Diagnostic Codes 5256 through 5263 set forth the relevant provisions.  However, in this case, the evidence does not demonstrate ankylosis of the knee (Diagnostic Code 5256), recurrent subluxation or lateral instability (Diagnostic Code 5257), symptomatic removal of semilunar cartilage (Diagnostic Code 5259), impairment of the tibia and fibula (Diagnostic Code 5262); thus, the Diagnostic Codes pertaining to such impairments are not applicable.
Diagnostic Code 5258 provides for a 20 percent evaluation on the basis of dislocated semilunar cartilage with frequent episodes of "locking," pain, and effusion into the joint.  38 C.F.R. § 4.71a, Diagnostic Code 5258.  This is the only available evaluation under this diagnostic code.
Diagnostic Codes 5260 and 5261 provide for ratings for limitation of motion of the knee.  Limitation of flexion of the leg to 60, 45, 30, or 15 degrees are evaluated as 0, 10, 20, or 30 percent, respectively.  Limitation of extension of the leg to 5, 10, 15, 20, 30, or 45 degrees are evaluated as 0, 10, 20, 30, 40, or 50 percent, respectively. 
Normal range of motion of the knee is to zero degrees extension and to 140 degrees flexion.  See 38 C.F.R. § 4.71a, Plate II.
Based on a careful review of all the subjective and clinical evidence, throughout the appeal period, the Board finds that the Veteran’s DJD of the left knee does not warrant a higher 20 percent initial evaluation under Diagnostic Codes 5260 or 5261.  In other words, the evidence does not demonstrate that the Veteran’s DJD of the left knee manifests flexion limited to 30 degrees or extension limited to 15 degrees.  Rather, at his February 2010, August 2013, October 2013, and May 2017 VA examinations, the Veteran’s left knee flexion manifested no less than 110 degrees with pain and normal extension.  Following repetitive use testing, there was no additional limitation in range of motion.  The Veteran used a knee brace and cane for assistance.    
Viewing the evidence in the light most favorable to the Veteran, including on the basis of the Deluca factors for functional loss, his DJD of the left knee does not exhibit symptoms equivalent to a 20 percent evaluation for limitation of motion based on flexion or extension.  DeLuca v. Brown, 8 Vet. App. 202, 205 (1995).  Therefore, throughout the appeal period, the Board finds that there is no basis upon which to award a higher 20 percent evaluation for the Veteran’s DJD of the left knee under Diagnostic Codes 5260 and 5261.  Accordingly, the Veteran’s DJD of the left knee is no more than 10 percent disabling.
Based on a careful review of all the subjective and clinical evidence, from June 9, 2009 to August 19, 2013, the Board finds that the evidence demonstrates that the Veteran’s DJD of the right knee does not warrant a higher 20 percent initial evaluation under Diagnostic Codes 5260 or 5261.  In other words, the Veteran’s DJD of the right knee does not manifest flexion limited to 30 degrees or extension limited to 15 degrees.  Rather, at a February 2010 VA examination, the VA examiner found that the Veteran’s right knee range of motion revealed flexion at 135 degrees with pain.  Following repetitive use testing, there was no additional limitation in range of motion.  No assistive device was used.  
Viewing the evidence in the light most favorable to the Veteran, including on the basis of the Deluca factors for functional loss, from June 9, 2009 to August 19, 2012, his DJD of the right knee does not exhibit symptoms equivalent to a 20 percent evaluation for limitation of motion based on flexion or extension.  See Deluca v. Brown, 8 Vet. App. 202, 206 (1995); see also 38 C.F.R. §§ 4.40, 4.45.  Therefore, the Board finds that from June 9, 2009 to August 19, 2013, there is no basis upon which to award a higher 20 percent initial evaluation under Diagnostic Codes 5260 and 5261.  Accordingly, the Board concludes that from June 9, 2009 to August 19, 2013, the Veteran’s DJD of the right knee is no more than 10 percent disabling.  
However, resolving all reasonable doubt in favor of the Veteran, the Board finds that from August 20, 2013, his DJD of the right knee warrants a higher 20 percent initial evaluation under Diagnostic Code 5258 for semilunar dislocated cartilage with frequent episodes of "locking," pain and effusion into the joint.  On that basis, the Board finds that the most favorable evidence during this appeal period is reflected in the clinical findings at an August 2013 VA examination, which demonstrates that the Veteran had a right knee meniscal tear with frequent episodes of locking and pain.  Although the VA examiner made no finding as to whether the Veteran also experienced effusion in his right knee, the Board finds that the available evidence is sufficient to establish that the Veteran’s DJD of the right knee more closely approximates the rating criteria under Diagnostic Code 5258.  Accordingly, the Board finds that from August 20, 2013, the date of the VA examination, the Veteran’s DJD of the right knee warrants a higher 20 percent initial evaluation.  
However, from August 20, 2013, the evidence does not demonstrate that the Veteran’s DJD of the right knee warrants a higher 30 percent evaluation under Diagnostic Codes 5260 or 5261.  In other words, the Veteran’s DJD of the right knee does not manifest flexion limited to 15 degrees or extension limited to 20 degrees.  Rather, at his August 2013, October 2013, and May 2017 VA examinations, the VA examiners found that the Veteran’s range of motion testing revealed right knee flexion at no less than 90 degrees and normal extension.  Therefore, the Board finds that there is no basis upon which to award a higher than 20 percent evaluation for the Veteran’s DJD of the right knee under Diagnostic Codes 5260 or 5261.  Accordingly, the Board concludes that the Veteran’s DJD of the right knee is no more than 20 percent disabling.  
As the evidence of record reflects that the Veteran’s DJD of the right knee has not been manifested by compensable limitation of flexion or extension, the Board does not need to address whether a separate evaluation under Diagnostic Codes 5260 or 5261 applies.  
In summary, the preponderance of the evidence weighs against finding in favor of the Veteran’s higher than 10 percent initial evaluation claim for DJD of the left knee.  Additionally, the preponderance of the evidence weighs against finding in favor of the Veteran’s higher than 10 percent initial evaluation claim for DJD of the right knee from June 9, 2009 to August 19, 2013.  Therefore, the benefit-of-the-doubt rule does not apply, and the higher initial evaluation claims must be denied.  However, resolving all reasonable doubt in favor of the Veteran, from August 20, 2013, a higher 20 percent initial evaluation, but no higher, for DJD of the right knee is granted.  38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990).
24. Entitlement to an initial evaluation in excess of 10 percent from September 20, 2013 to May 11, 2017, and an initial evaluation in excess of 20 percent from May 12, 2017, for surgical scars of the right knee, status post arthroscopy
The Veteran generally asserts that his surgical scars of the right knee are worse than his current evaluations reflect. 
The Veteran’s surgical scars of the right knee, status post arthroscopy, have been currently evaluated as 10 percent disabling, effective September 20, 2013, and as 20 percent disabling, effective May 12, 2017, under 38 C.F.R. § 4.118, Diagnostic Code 7804.  
With respect to evaluating scars, 38 C.F.R. § 4.118, Diagnostic Codes 7800 to 7805 set forth the relevant provisions.  However, in this case, the evidence does not demonstrate burn scars of the head, face, or neck; scars of the head, face or neck due to other causes; or other disfigurement of the head, face, or neck (Diagnostic Code 7800), burn scars or scars due to other causes, not of the head, face or neck, that are deep and nonlinear (Diagnostic Code 7801), burn scars due to other causes, not of the head, face, or neck, that are superficial and nonlinear (Diagnostic Code 7802), and scars that are unstable or painful (Diagnostic Code 7804), thus the Diagnostic Codes pertaining to such impairments are not applicable.
For scars, other (including linear scars) and other effects of scars evaluated under diagnostic codes 7800, 7801, 7802, and 7804, any disabling effect(s) not considered in a rating provided under diagnostic codes 7800-04 are to be evaluated under an appropriate diagnostic code.  38 C.F.R. § 4.118, Diagnostic Code 7805.
Under Diagnostic Code 7804, a 10 percent evaluation may be assigned where there are one or two scars that are unstable or painful; a 20 percent rating may be assigned where there are three or four scars that are unstable or painful; and a 30 percent rating may be assigned where there are five or more scars that are unstable or painful.  38 C.F.R. § 4.118, Diagnostic Code 7804.  Note (1) to Diagnostic Code 7804 provides that an unstable scar is one where, for any reason, there is frequent loss of covering of skin.  Note (2) to Diagnostic Code 7804 provides that if one or more scars are both unstable and painful, then 10 percent is added to the evaluation that is based on the total number of unstable or painful scars.  Note (3) to Diagnostic Code 7804 provides that scars evaluated under Diagnostic Code 7800, 7801, 7802, or 7805 may also receive an evaluation under this diagnostic code when applicable.
Based on a careful review of all the subjective and clinical evidence, from September 20, 2013 to May 11, 2017, the Board finds that the evidence does not demonstrate that the Veteran’s surgical scars of the right knee, status post arthroscopy, warrant a higher 20 percent initial evaluation under Diagnostic Code 7804.  In other words, the Veteran’s surgical scars of the right knee, status post arthroscopy, are not characterized by three or four scars that are unstable or painful.  Rather, at an October 2013 VA examination, the VA examiner found that the Veteran had two superficial, non-linear, painful right knee surgical scars that did not have a total area of 929 square cm. or greater.  Therefore, the Board concludes that there is no basis upon which to award a higher 20 percent evaluation for the Veteran’s surgical scars of the right knee, status post arthroscopy, under Diagnostic Code 7804.  Accordingly, from September 20, 2013 to May 11, 2017, the Board finds that the Veteran’s surgical scars of the right knee, status post arthroscopy, are no more than 10 percent disabling.  
Based on a careful review of all the subjective and clinical evidence, from May 12, 2017, the Board finds that the evidence does not demonstrate that the Veteran’s surgical scars of the right knee, status post arthroscopy, warrant a higher 30 percent initial evaluation under Diagnostic Code 7804.  In other words, the Veteran’s surgical scars of the right knee, status post arthroscopy, are not characterized by five or more scars that are unstable or painful.  Rather, at a May 2017 VA examination, the VA examiner found that the Veteran had four linear, painful scars.  Therefore, the Board concludes that there is no basis upon which to award a higher 30 percent evaluation for the Veteran’s surgical scars of the right knee, status post arthroscopy, under Diagnostic Code 7804.  Accordingly, from May 12, 2017, the Board finds that the Veteran’s surgical scars of the right knee, status post arthroscopy, are not more than 20 percent disabling.  
In summary, the preponderance of the evidence weighs against finding in favor of the Veteran’s higher than 10 percent initial evaluation claim from August 20, 2013 to May 11, 2017, and higher than 20 percent initial evaluation claim from May 12, 2017, for surgical scars of the right knee, status post arthroscopy.  Therefore, the benefit-of-the-doubt rule does not apply, and the higher initial evaluation claims must be denied.  38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990).
25. Entitlement to an initial evaluation in excess of 10 percent for left ankle strain
26. Entitlement to an initial evaluation in excess of 10 percent for right ankle strain
The Veteran generally asserts that his left ankle strain and right ankle strain are worse that his current evaluations reflect. 
The Veteran’s left ankle strain has been currently evaluated as 10 percent disabling, effective June 9, 2009, under 38 C.F.R. § 4.71a, Diagnostic Code 5271.  The Veteran’s right ankle strain has been currently evaluated as 10 percent disabling, effective June 9, 2009, under 38 C.F.R. § 4.71a, Diagnostic Codes 5003-5271.  
Hyphenated diagnostic codes are used when a rating under one diagnostic code requires use of an additional diagnostic code to identify the basis for the evaluation assigned.  In the selection of code numbers assigned to disabilities, injuries will generally be represented by the number assigned to the residual condition on the basis of which the rating is determined.  With injuries and diseases, preference is to be given to the number assigned to the injury or disease itself; if the rating is determined on the basis of residual conditions, the number appropriate to the residual condition will be added, preceded by a hyphen.  38 C.F.R. § 4.27.
With respect to disabilities of the ankle, 38 C.F.R. § 4.71a, Diagnostic Codes 5262 and 5270 through 5274 set forth the relevant provisions.  However, in this case, the evidence does not demonstrate malunion of the tibia and fibula with marked knee or ankle disability (Diagnostic Code 5262), ankylosis of the ankle (Diagnostic Codes 5270 and 5272), malunion of the os calcis or astragalus (Diagnostic Code 5273), or astragalectomy (Diagnostic Code 5274); therefore, the diagnostic codes pertaining to such impairments are not applicable.
Diagnostic Code 5003, as degenerative arthritis, established by X-ray findings will be rated based on limitation of motion under the appropriate diagnostic code(s) for the specific joint(s) involved.  When, however, the limitation of motion of the specific joint(s) involved is noncompensable under the appropriate diagnostic code(s), a 10 percent rating is for application for each such major joint or group of minor joints affected by limitation of motion, to be combined, not added under Diagnostic Code 5003.  Limitation of motion must be objectively confirmed by findings such as swelling, muscle spasm, or satisfactory evidence of painful motion.  In the absence of limitation of motion, a 10 percent evaluation is warranted if there is X-ray evidence of involvement of two or more major joints or two or more minor joint groups and a 20 percent evaluation is authorized if there is X-ray evidence of involvement of two or more major joints or two or more minor joint groups and there are occasional incapacitating exacerbations.  Id., Diagnostic Code 5003.
Note 1 provides that the 20 percent and 10 percent ratings based on X-ray findings, above, will not be combined with ratings based on limitation of motion. 
Diagnostic Code 5271 applies when there is limited motion of the ankle.  A 10 percent evaluation is assigned where the limitation of motion is "moderate."  A 20 percent evaluation is assigned where the limitation of motion is "marked."  A 20 percent disability rating is the highest possible schedular rating under Diagnostic Code 5271.  Limitation of motion must be objectively confirmed by findings such as swelling, muscle spasm, or satisfactory evidence of painful motion.  38 C.F.R. § 4.71a, Diagnostic Code 5271. 
The words "slight," "moderate," and "severe" are not defined in the rating schedule.  Use of terminology by VA examiners and others, although evidence to be considered by the Board, is not dispositive of an issue.  All evidence must be evaluated in arriving at a decision regarding an increased rating.  38 C.F.R. §§ 4.2, 4.6.
The normal range of motion of the ankle is 20 degrees of dorsiflexion and 45 degrees of plantar flexion.  38 C.F.R. § 4.71a, Plate II.
Based on a careful review of all the subjective and clinical evidence, throughout the appeal period, the Board finds that the evidence does not demonstrate that the Veteran’s left ankle strain and right ankle strain warrants a higher 20 percent initial evaluation under Diagnostic Codes 5003 or 5271.  In other words, the Veteran’s left ankle strain and right ankle strain is not more appropriately characterized as marked limitation of motion or x-ray evidence of involvement of two or more major joints or two or more minor joint groups and occasional incapacitating exacerbations.  Rather, at a February 2010 VA examination, the VA examiner found that the Veteran’s range of motion testing revealed a left ankle with normal plantar flexion (dorsiflexion was not recorded).  His right ankle plantar flexion was at 35 degrees without pain and dorsiflexion was normal.  Following repetitive use testing, there was no additional limitation in range of motion.  Both ankles were noted to be stable.  Other than corrective shoes, which were not worn to his February 2010 VA examination, the Veteran did not use any assistive devices for his ankles.  At an August 2013 VA examination, the VA examiner found that the Veteran’s range of motion testing revealed left ankle plantar flexion at 40 degrees with pain and dorsiflexion at 10 degrees with pain.  His right ankle plantar flexion was at 40 degrees without pain and dorsiflexion at 10 degrees with pain.  Following repetitive use testing, there was no additional limitation in range of motion.  Diagnostic testing results for his bilateral ankles were negative.  The Veteran used ankle braces and orthopedic shoes for assistance.  At a February 2015 VA examination, the VA examiner found that the Veteran’s range of motion testing revealed left ankle plantar flexion at 20 degrees with pain and dorsiflexion at 10 degrees with pain.  His right ankle plantar flexion was at 20 degrees with pain and dorsiflexion at 10 degrees with pain.  Following repetitive use testing, there was no additional limitation in range of motion.  Flare-ups reportedly occurred once every six weeks, lasted one to two weeks and were characterized as moderately severe.  The VA examiner found that the Veteran had functional loss due to repetitive use and flare-ups, however, there was no additional loss in range of motion.  Diagnostic testing revealed no degenerative arthritis of his bilateral ankles.  Although the Veteran used a cane constantly for instability of his ankles, the VA examiner found no objective evidence of ankle instability or dislocation.  The VA examiner noted that the Veteran was unable to stand for prolonged periods of time and had to rest for 20 to 30 minutes.  Overall, the clinical findings at each VA examination noted that the Veteran’s left ankle strain and right ankle strain showed decreased motion, but no additional limitation in range of motion with repetitive use or flare-ups.  Accordingly, throughout the appeal period, the Board concludes that the Veteran’s left ankle strain and right ankle strain are each no more than 10 percent disabling.  
Viewing the evidence in the light most favorable to the Veteran, including on the basis of the Deluca factors for functional loss, his left ankle strain and right ankle strain do not exhibit symptoms equivalent to a 20 percent evaluation for marked limitation of motion.  See Deluca v. Brown, 8 Vet. App. 202, 206 (1995); see also 38 C.F.R. §§ 4.40, 4.45.  Despite the findings of functional loss due to flare-ups and repetitive use at his February 2015 VA examination, the Veteran’s left ankle strain and right ankle strain did not exhibit any additional loss in range of motion.  Therefore, the Board finds that throughout the appeal period, there is no basis upon which to award a higher 20 percent initial evaluation for left ankle strain and right ankle strain under Diagnostic Code 5271.  
Given the lack of any abnormal diagnostic findings for the Veteran’s bilateral ankles, the Board also finds no basis upon which to award a higher 20 percent initial evaluation for left ankle strain and right ankle strain under Diagnostic 5003.
In summary, the preponderance of the evidence weighs against finding in favor of the Veteran’s claim for a higher than 10 percent initial evaluation for left ankle strain and a higher than 10 percent initial evaluation for right ankle strain.  Therefore, the benefit-of-the-doubt rule does not apply, and the higher initial evaluation claims must be denied.  38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990).
Temporary Total Evaluation
27. Entitlement to a temporary total evaluation because of hospitalization in excess of 21 days for a service-connected disability
The Veteran asserts that he warrants a temporary total evaluation based on his inpatient treatment at a VA facility for his PTSD.  
A total disability rating (100 percent) will be assigned without regard to other provisions of the Rating Schedule when it is established that a service-connected disability has required hospital treatment in a VA or an approved hospital for a period in excess of 21 days, or that hospital observation at VA expense is required for a service-connected disability for a period in excess of 21 days.  38 C.F.R. § 4.29.
Based on a careful review of all the subjective and clinical evidence, the Board finds that a temporary total evaluation because of hospitalization in excess of 21 days for PTSD is not warranted.  
The record shows that the Veteran was admitted into the Mental Health Residential Rehabilitation Treatment Program for his PTSD at the Carl Vinson VA Medical Center on January 22, 2013.  He was discharged from the PTSD Program on March 11, 2013.  
In this case, the Board finds that, because the Veteran was not hospitalized for a service-connected disability, VA may not award benefits under 38 C.F.R. § 4.29.  
The Board is bound by the law and is without authority to grant benefits on an equitable basis.  The legal authority pertaining to awards of temporary total ratings under 38 C.F.R. § 4.29 is prescribed by Congress and implemented via regulations enacted by VA.  Neither the Agency of Original Jurisdiction nor the Board is free to disregard laws and regulations enacted for the administration of VA programs.  38 U.S.C. § 7104(c); 38 C.F.R. § 20.101(a).  Significantly, VA can only pay benefits that are authorized by law. See Harvey v. Brown, 6 Vet. App. 416, 424 (1994) (the remedy for breach of an alleged obligation cannot involve payment of benefits where the statutory eligibility requirements for those benefits are not met); McTighe v. Brown, 7 Vet. App. 29, 30 (1994).
Where, as here, the law is dispositive, the matter on appeal must be terminated or denied as without legal merit.  See Sabonis v. Brown, 6 Vet. App. 426, 430 (1994).  Therefore, the claim for a temporary total evaluation because of hospitalization in excess of 21 days must be denied. 38 C.F.R. § 4.29.
TDIU
28. Entitlement to a total disability evaluation based on individual unemployability due to service-connected disabilities (TDIU)
The Veteran contends that his service-connected disabilities prevent him from securing and following any substantially gainful employment.  The Board agrees. 
Total disability means that there is present any impairment of mind or body sufficient to render it impossible for the average person to follow a substantially gainful occupation.  38 C.F.R. §§ 3.340, 4.15.  A substantially gainful occupation has been defined as "an occupation that provides an annual income that exceeds the poverty threshold for one person, irrespective of the number of hours or days that the Veteran actually works and without regard to the Veteran's earned annual income."  Faust v. West, 13 Vet. App. 342 (2000).  Marginal employment shall not be considered substantially gainful employment.  Substantially gainful employment is defined as work that is more than marginal, which permits the individual to earn a "living wage."  Id.  Marginal employment is defined as an amount of earned annual income that does not exceed the poverty threshold determined by the Census Bureau.  38 C.F.R. § 4.16(a). 
When jobs are not realistically within his physical and mental capabilities, a veteran is determined unable to engage in a substantially gainful occupation.  Moore v. Derwinski, 1 Vet. App. 356 (1991).  In making this determination, consideration may be given to factors such as the veteran's level of education, special training, and previous work experience, but not to age or impairment caused by non-service-connected disabilities.  38 C.F.R. §§ 3.341, 4.16, 4.19; Van Hoose v. Brown, 4 Vet. App. 361 (1993).
Total disability ratings for compensation may be assigned, where the schedular rating is less than total, when the disabled person is, in the judgment of the rating agency, unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities provided that if there is only one such disability, this disability shall be ratable at 60 percent or more, and that, if there are two or more such disabilities, there shall be at least one disability ratable at 40 percent or more, and sufficient additional disability to bring the combined rating to 70 percent or more.  For the purpose of one 60 percent or one 40 percent disability in combination, disabilities resulting from a common etiology or a single accident will be considered as one disability.  38 C.F.R. § 4.16(a).
The Board notes that the ultimate question of whether a Veteran is capable of substantially gainful employment is not a medical one; that determination is for the adjudicator.  Geib v. Shinseki, 733 F.3d 1350, 1354 (Fed. Cir. 2013).  Thus, the VA examiners' conclusions are not dispositive.  However, the observations of the examiners regarding functional impairment due to the service-connected disability go to the question of physical or mental limitations that may impact his ability to obtain and maintain employment.
As a preliminary matter, in a March 2018 statement, the Veteran, through his representative, asserted his TDIU claim in connection with his initial rating claims for lumbar spondylosis, bilateral lower extremity radiculopathy, bilateral knee DJD, bilateral ankle strain, and surgical right knee scars.  In Rice v. Shinseki, the Court held that a TDIU rating is part of an initial or increased rating claim when such issue is raised by the record.  Rice v. Shinseki, 22 Vet. App. 447 (2009).  Therefore, the issue of a TDIU is raised by the record, is part and parcel of the initial rating claims, and is properly before the Board.  Id.  Thus, the TDIU claim is reflected on the title page.
From June 9, 2009, the Veteran’s service-connected disabilities (bilateral pes planus with plantar fasciitis with mechanical neuritis; lumbar spondylosis; surgical scars of the right knee, status post arthroscopy; left ankle strain; right ankle strain; DJD of the left knee; DJD of the right knee; LLE radiculopathy; and RLE radiculopathy) render him eligible for a TDIU under the schedular percentage requirements contemplated by VA regulation.  See 38 C.F.R. §§ 3.340, 3.341, 4.16(a).  The Veteran’s combined evaluation is 80 percent, and thus, the schedular criteria has been satisfied.  See 38 C.F.R. § 4.16(a).
The Board notes that as of this decision, the Veteran has also been service-connected for depressive disorder due to another medical condition with mixed features.  Even though the Veteran’s depressive disorder has not yet been assigned an evaluation, it will be considered when discussing whether the Veteran meets the substantive requirements for establishing entitlement to a TDIU.  
A careful review of the record shows that the Veteran completed high school and attended almost one year at a technical school, where he was seeking an Associate’s degree in forestry.  In around 2012, he left school after failing course work, because of his difficulty with memory and concentration.  After his military separation, the Veteran worked as a delivery driver for a pharmacy, a security officer, a poultry farm production operator, laborer, and forklift operator.  His last full-time position was as a forklift driver or machine operator at a poultry plant in 2008.  The Veteran explained that the job lasted only three weeks, because he was fired for being medically unable to perform his job duties.  Records in 2013 show that the Veteran was self-employed and maintained a part-time lawn care business, where he worked for five hours a week and was physically able to ride a riding lawn mower for up to 25 minutes.  At a more recent private evaluation in 2017, the Veteran indicated that he was still self-employed.  In May 2015, the Veteran was awarded Social Security Administration (SSA) disability benefits.  See May 2006 VA treatment record, June 2013 VA examination, October 2013 VA examination, May 2014 VA treatment record, January 2015 Mental Disorders DBQ, May 2015 SSA decision, November 2015 VA treatment record, and November 2017 Vocational Opinion.  
The Board finds that the following evidence is the most probative in support of the Veteran’s claim for a TDIU.  In particular, the Board places significant weight upon: (1) findings from the Veteran’s VA treating podiatrist in a February 2013 statement that the Veteran’s severe flatfeet, chronic back problems, and right knee with torn meniscus all inhibit his ability to work; (2) a determination by the August 2013 VA examiner that due to the Veteran’s lumbar spondylosis, DJD of the left knee, and DJD of the right knee, he would have a limited ability to perform physical activities based on subjective findings of pain, weakness, and limited range of motion as well as objective findings noted during the examination; (3) conclusions made in an October 2014 Medical Opinion that due to his service-connected orthopedic disabilities, including bilateral lower extremity radiculopathy, the Veteran was able to consistently stand and walk for less than two hours in a normal eight-hour workday; he was able to consistently sit for two to four hours in a normal eight-hour workday; he was able to consistently lift and carry 10 to 20 pounds throughout the entire workday; he would miss work or need to leave early due to his medical problems for two days per month; in excess of a morning break, lunch break and afternoon break during a normal workday, he would need more than one extra break per day to lie down due to his medical problems; and he would be unable to stay focused to complete simple repetitive types of tasks about one to two days per month for at least seven hours of an eight-hour workday; (4) a January 2015 opinion from an independent psychologist who opined that the Veteran could not sustain the stress from a competitive work environment or be expected to engage in gainful activity due to his depressive disorder secondary to medical condition; (5) conclusions made in a January 2015 opinion by Dr. H.G. that the Veteran would miss three or more days of work per month due to mental problems; he would need to leave early three or more days per month from the workplace because of mental problems; he would not be able to stay focused to complete simple repetitive tasks for more than three days per month for at least seven hours of an eight-hour workday; and subjected to the normal pressures and constructive criticisms of a job, he would respond in an angry manner more than once per month but would not actually become violent; (6) a May 2015 SSA decision which found that the Veteran should be allowed to use an assistive device for ambulation; his position should allow performance either sitting or standing at will; he could have non-intensive interaction with co-workers and supervisors; he should avoid working with the public; he needed a low stress work environment; and the medical evidence established that the combination of the Veteran’s impairments prevent him from performing his past work, or any other gainful work, on a regular and sustained basis; (7) a conclusion in a November 2017 opinion by an independent physician that the it was at least as likely as not that the combination of pain and limitations caused by the Veteran’s service-connected impairments prevent him from being able to work substantial gainful activity without any considerable accommodations; and (8) determination in a November 2017 Vocational Opinion that the Veteran was totally and permanently precluded from performing work at a substantially gainful level due to the severity of his service-connected orthopedic disabilities, including his bilateral lower extremity radiculopathy.  
To the extent that the Veteran is still considered to be employed based on his self-employment running a lawn care business, the Board finds that the evidence tends to support that such employment is no more than marginal.  Based on the number of hours worked (five hours per week), type of work performed (riding on a riding lawn mower), and how long he could ride the lawn mower (25 minutes), the Board finds that the evidence does not support that the Veteran’s lawn care business qualifies as substantially gainful employment.  Therefore, to the extent the Veteran continues to maintain his lawn care business, it does not impact the determination that he is unable to secure and follow any substantially gainful employment due to the combined effect of his service-connected disabilities.  
Based on the foregoing, the Board finds that resolving all reasonable doubt in favor of the Veteran, the evidence is at least in equipoise that his service-connected disabilities preclude him from securing and following any substantially gainful employment.  Therefore, the Veteran’s claim for a TDIU is granted. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990).
REASONS FOR REMAND
1. Entitlement to service connection for a skin disorder, to include folliculitis, and to include as due to a Gulf War illness is remanded.
At a June 2013 VA examination, the VA examiner opined that the Veteran’s currently diagnosed folliculitis was not caused by or occurred secondary to exposure to environmental hazards during his Gulf War deployment.  In that regard, the VA examiner relied on the finding that the Veteran’s folliculitis developed more than 15 years after his Gulf War deployment.  However, VA treatment records in 2001 and 2003 reflect that the Veteran was receiving treatment for skin lesions and skin tags on his feet, neck and right axilla.  Subsequent VA treatment records from 2009 to 2013 also document treatment for hyperpigmented lesions on the Veteran’s chest, right leg, scalp, back, trunk, and face.  Given that the June 2013 VA examiner’s opinion was based on an inaccurate factual premise and failed to fully address the Veteran’s complete medical history with regard to his documented skin problems, the Board finds that this opinion is inadequate.  See Reonal v. Brown, 5 Vet. App. 458, 461 (1993).  A remand is required to obtain a supplemental VA opinion that takes into consideration the Veteran's complete medical history.
The matter is REMANDED for the following actions:
1. Obtain all the Veteran’s treatment records for his skin disorder that are not currently of record.
2. Obtain an addendum opinion from an appropriate clinician regarding whether the Veteran’s skin disorder is at least as likely as not related to his active duty service, to include his Gulf War service.  
In providing the opinion, the examiner should consider the Veteran’s complete and relevant medical history, including his history of skin problems on various parts of his body, which is documented as early as 2001.  
A complete rationale with discussion of medical literature for any opinion expressed must be provided.  If an opinion cannot be expressed without resort to speculation, discuss why this is the case.  

 
LESLEY A. REIN
Veterans Law Judge
Board of Veterans’ Appeals
ATTORNEY FOR THE BOARD	Journet Shaw