Citation Nr: 18150688 Decision Date: 11/15/18 Archive Date: 11/15/18 DOCKET NO. 16-16 777 DATE: November 15, 2018 ORDER New and material evidence being submitted, the claim of entitlement to service connection for right ankle condition is reopened. New and material evidence being submitted, the claim of entitlement to service connection for left hand condition is reopened. Service connection for right ear hearing loss is denied. Service connection for left ear hearing loss is granted. Service connection for obstructive sleep apnea (OSA) is granted. Service connection for hypertension is granted. Service connection for a left hand disability, diagnosed as tunnel syndrome, is denied. A compensable disability rating for residuals of fractured right distal metacarpal is denied. An increased rating of 20 percent, but no higher, for status post fracture, left fifth metatarsal is granted. An initial disability rating greater than 10 percent for tinnitus is denied. An increased rating greater than 70 percent for posttraumatic stress disorder (PTSD) is denied. An effective date earlier than April 7, 2014 for the increased rating of 70 percent for PTSD is denied. An effective date earlier than April 7, 2014 for the increased rating of 20 percent for status post fracture, left fifth metatarsal is denied. An effective date earlier than April 7, 2014 for the award of service connection for tinnitus is denied. Entitlement to TDIU is granted. REMANDED Entitlement to service connection for right ankle condition is remanded. Entitlement to service connection for complex regional pain syndrome is remanded. FINDINGS OF FACT 1. A November 2007 rating decision denied service connection for right ankle and left hand condition. The Veteran did not appeal. 2. At the time of the November 2007 rating decision, the record did not contain evidence showing a right ankle disability. Subsequent to that decision, the Veteran submitted a medical document showing right subtalar fusion after calcaneal fracture. This diagnosis is new and material and raises a reasonable possibility of substantiating the claim. 3. At the time of the November 2007 rating decision, the record did not contain evidence showing a left hand disability. Subsequent to that decision, the Veteran submitted a medical document showing bilateral tunnel syndrome. This diagnosis is new and material and raises a reasonable possibility of substantiating the claim. 4. The preponderance of the competent and credible evidence weighs against finding that the Veteran has right ear hearing loss for VA purposes. 5. The Veteran’s left ear hearing loss is etiologically related to service. 6. The Veteran’s OSA is proximately due to his service-connected PTSD. 7. The Veteran’s hypertension is proximately due to his service-connected PTSD and OSA. 8. The preponderance of the competent and credible evidence weighs against finding that the Veteran’s left hand tunnel syndrome is etiologically related to his time in active service. 9. The Veteran’s residuals of fractured right distal metacarpal have not been manifested by ankylosis or loss of use of the finger or hand. 10. The Veteran’s left foot symptoms are moderately severe. His left foot symptoms are not severe and do not exhibit actual loss of use of the foot. 11. The current 10 percent disability rating assigned for tinnitus is the maximum evaluation under the VA rating schedule. 12. The Veteran’s PTSD was not manifested by total social and occupational impairment. 13. It is not factually ascertainable that the Veteran’s PTSD symptoms increased in severity to warrant a 70 percent disability rating within a year of April 7, 2014. 14. It is not factually ascertainable that the Veteran’s left foot symptoms increased in severity to warrant a 20 percent disability rating within a year of April 7, 2014. 15. The Veteran initially filed a service connection claim for tinnitus on April 7, 2014, and service connection was awarded in the decision on appeal from April 7, 2014, the date of claim. 16. The Veteran was not able to obtain or retain substantially gainful employment due to his service-connected disabilities. CONCLUSIONS OF LAW 1. New and material evidence has been received to reopen the claim of entitlement to service connection for right ankle and left hand condition. 38 U.S.C. § 7105 (2012); 38 C.F.R. §§ 3.104, 3.156, 20.302 (2017). 2. The criteria to establish service connection for right ear hearing loss have not been met. 38 U.S.C. §§ 1110, 1131, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309 (2017). 3. The criteria to establish service connection for left ear hearing loss have been met. 38 U.S.C. §§ 1110, 1131, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309 (2017). 4. The criteria to establish service connection for OSA have been met. 38 U.S.C. §§ 1110, 1131, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.310 (2017). 5. The criteria to establish service connection for hypertension have been met. 38 U.S.C. §§ 1110, 1131, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.310 (2017). 6. The criteria to establish service connection for left hand tunnel syndrome have not been met. 38 U.S.C. §§ 1110, 1131, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309 (2017). 7. The criteria for a compensable rating for residuals of fractured right distal metacarpal have not been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 4.1, 4.3, 4.7, 4.10, 4.27, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5230 (2017). 8. The criteria for a 20 percent rating, but no higher, for status post fracture, left fifth metatarsal, have been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 4.1, 4.3, 4.7, 4.10, 4.27, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5284 (2017). 9. There is no legal basis for an increased schedular rating greater than 10 percent for tinnitus. 38 U.S.C. § 1155 (2012); 38 C.F.R. § 4.87, Diagnostic Code 6260 (2017); Smith v. Nicholson, 451 F.3d. 1344 (Fed. Cir. 2006). 10. The criteria for an increased rating greater than 70 percent for PTSD have not been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 4.1, 4.3, 4.7, 4.126, 4.130, Diagnostic Code 9411 (2017). 11. The criteria for an effective date earlier than April 7, 2014 for an increased rating of 70 percent for PTSD have not been met. 38 U.S.C. § 5107, 5110 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.400 (2017). 12. The criteria for an effective date earlier than April 7, 2014 for an increased rating of 20 percent for status post fracture, left fifth metatarsal, have not been met. 38 U.S.C. § 5107, 5110 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.400 (2017). 13. The criteria for an effective date earlier than April 7, 2014 for the award of service connection for tinnitus have not been met. 38 U.S.C. §§ 5107, 5110 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.400 (2017). 14. The criteria for entitlement to TDIU are met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.340, 3.341, 4.3, 4.16 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from September 1984 to July 1987 and December 1987 to December 1991. He earned a Combat Action Ribbon. The Veteran appeals December 2014 and January 2015 rating decisions by the Agency of Original Jurisdiction (AOJ) denying service connection for bilateral hearing loss, complex regional pain syndrome (also claimed as neuropathy), OSA, and hypertension. The AOJ also reopened but denied service connection for a left hand condition, and did not reopen service connection for a right ankle condition. The December 2014 rating decision also granted service connection for tinnitus with a 10 percent disability rating effective April 7, 2014, increased PTSD to 70 percent effective April 7, 2014, and increased status post fracture left fifth metatarsal to 10 percent effective April 7, 2014. The Veteran appealed both the effective dates and rating evaluations as to those decisions. Further, the AOJ continued a non-compensable disability rating for fractured right distal metacarpal, and the Veteran appealed. When, as here, a Veteran seeks an increased evaluation, it will generally be presumed that the maximum benefit allowed by law and regulation is sought, and it follows that such a claim remains in controversy where less than the maximum benefit available is awarded. See AB v. Brown, 6 Vet. App. 35, 38 (1993). REFERRED A July 2014 letter acknowledged the Veteran’s petitions to reopen service connection claims for left hand, right ankle, and residuals of left ankle sprain. See July 2014 VA development letter. However, while the AOJ addressed the left hand and right ankle claims in the December 2014 rating decision, it did not decide whether to reopen the Veteran’s left ankle sprain claim. The Board notes that the Veteran submitted an opinion stating the “left ankle arthrosis resulted from repeated instability episodes that started years ago when he was in the military.” See February 2014 Dr. A.F. medical record. Thus, the left ankle sprain issue is referred to the AOJ for adjudication. Service Connection A Veteran is entitled to VA disability compensation if there is a disability resulting from personal injury suffered or disease contracted in the line of duty in active service, or for aggravation of a preexisting injury suffered or disease contracted in the line of duty in active service. 38 U.S.C. §§ 1110, 1131. Generally, to establish a right to compensation for a present disability, a veteran must show: (1) a present disability; (2) an 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, the so-called “nexus” requirement. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Service connection may be granted for any disease diagnosed after discharge, when all of the evidence, including that pertinent to service, establishes that a disease was incurred in service. 38 C.F.R. § 3.303(d). Under section 3.310(a) of VA regulations, service connection may be established on a secondary basis for a disability which is proximately due to or the result of service-connected disease or injury. 38 C.F.R. § 3.310(a). Establishing service connection on a secondary basis requires evidence sufficient to show: (1) a current disability; (2) a service-connected disability; and (3) a nexus between the current disability and the service-connected disability. See Wallin v. West, 11 Vet. App. 509, 512 (1988). As to the third Wallin element, the current disability may be either (a) proximately caused by or (b) proximately aggravated by a service-connected disability. Allen v. Brown, 7 Vet. App. 439, 448 (1995) (en banc). In the absence of proof of a present disability, there can be no valid claim. Degmetich v. Brown, 104 F.3d 1328, 1332 (1997); Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). The requirement for service connection that a current disability be present is satisfied when a Veteran has a disability at the time a claim for VA disability compensation is filed or during the pendency of that claim even though the disability resolves prior to the Secretary’s adjudication of the claim. See McClain v. Nicholson, 21 Vet. App. 319, 322-23 (2007). In the case of any Veteran who engaged in combat with the enemy in active service during a period of war, the Secretary shall accept as sufficient proof of service connection of any disease or injury alleged to have been incurred in or aggravated by such service satisfactory lay or other evidence of service incurrence or aggravation of such injury or disease, if consistent with the circumstances, conditions, or hardships of such service, notwithstanding the fact that there is no official record of such incurrence or aggravation in such service, and, to that end, shall resolve every reasonable doubt in favor of the Veteran. Service connection of such injury or disease may be rebutted by clear and convincing evidence to the contrary. 38 U.S.C. § 1154(b). See Collette v. Brown, 82 F.3d 389, 392 (Fed. Cir. 1996) (under 38 U.S.C. § 1154(b), the evidentiary burden is reduced for the in-service element). 1. Hearing Loss Service connection for impaired hearing shall only be established when hearing status as determined by audiometric testing meets specified pure tone and speech recognition criteria. Audiometric testing measures threshold hearing levels (in decibels) over a range of frequencies (in Hertz). See Hensley v. Brown, 5 Vet. App. 155, 158 (1993). For the purposes of applying the laws administered by VA, impaired hearing will be considered to be a disability when the auditory threshold in any of the frequencies 500, 1000, 2000, 3000, or 4000 Hertz is 40 decibels or greater; or when the auditory thresholds for at least three of the frequencies 500, 1000, 2000, 3000, or 4000 Hertz are 26 decibels or greater; or when speech recognition scores using the Maryland CNC Test are less than 94 percent. 38 C.F.R. § 3.385. The Veteran underwent VA examination in November 2014 to determine whether he had bilateral hearing loss for VA purposes. At that examination, the Veteran did not register audiometric testing results exhibiting hearing loss for VA purposes. Specifically, pure tone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 15 15 15 20 20 LEFT 35 35 25 25 25 Speech audiometry revealed speech recognition ability of 100 percent in the right ear and of 96 in the left ear. See November 2014 VA examination report. The Veteran also submitted a private audiology examination. See March 2014 private audiology examination. There, pure tone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 15 10 15 20 25 LEFT 30 30 35 30 30 Speech audiometry revealed speech recognition ability of 92 percent in the right ear and of 92 in the left ear. However, the clinician used the W-22 list instead of the Maryland CNC; hence, the word recognition scores do not show hearing loss for VA purposes. A. Right Ear The Veteran does not have right ear hearing loss for VA purposes. He is competent to testify as to facts he personally observed or described; this includes recalling what he personally felt, saw, smelled, heard, or tasted. See Layno v. Brown, 6 Vet. App. 465, 469 (1994). However, he is not competent to offer opinions on complex medical matters. Whether the Veteran has right ear hearing loss for VA purposes cannot be determined by mere observation alone. This requires specialized training. The Board finds that determining the etiology of the Veteran’s hearing symptoms is not within the realm of knowledge of a non-expert, and concludes that his opinion in this regard is not competent evidence and therefore not probative of whether he has right ear hearing loss for VA purposes. Therefore, following a review of all available evidence, the record does not reflect a current diagnosis of right ear hearing loss for VA purposes. To that end, the Board notes that the existence of a current disability is the cornerstone of a claim for VA disability compensation. Degmetich v. Brown, 104 F.3d 1328, 1332 (Fed. Cir. 1997). As such, without a current disability, the Veteran lacks the evidence necessary to substantiate his claim for service connection. In the absence of proof of a present disability, there can be no valid claim. Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). Thus, the Board denies the Veteran’s claim of entitlement to service connection for right ear hearing loss because the evidence of record is not in equipoise. See 38 U.S.C. § 5107(b); 38 C.F.R. §§ 4.3, 4.7; Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). B. Left Ear The first Shedden element is met. The Veteran has left ear hearing loss for VA purposes. See March 2014 private audiometry examination report. The second Shedden element is also met. The Veteran served as a rifleman in service and earned a Combat Action Ribbon. Thus, the Board finds that the Veteran engaged in combat with the enemy, and loud noise exposure in service is conceded. 38 U.S.C. § 1154(b). As such, the crux of this case centers on whether the Veteran’s left ear hearing loss is related to his loud noise exposure in service. A VA clinician opined that it was, and the “[h]igh frequency sensory loss is likely noise related, and military noise exposure is conceded as his MOS was a rifleman.” See November 2014 VA examination report. As the evidence for and the evidence against the Veteran’s claim is in relative equipoise, the Board affords the Veteran the benefit of the doubt, and finds there is expert evidence of record establishing a link between the Veteran’s left ear hearing loss and loud noise exposure in service. Accordingly, the Board grants service connection for left ear hearing loss. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. 2. OSA The first and second Wallin elements are met and not in dispute. The evidentiary record contains a diagnosis of OSA. See March 2016 Dr. H.S. DBQ (disability benefits questionnaire). Further, the Veteran is service-connected for PTSD. As such, the crux of this case centers on whether there is an etiological relationship between the Veteran’s OSA and his service-connected PTSD. In a March 2016 opinion, Dr. H.S. opined that the Veteran’s OSA is at least as likely as not caused and permanently aggravated by his PTSD. According to Dr. H.S., research has shown that PTSD and other psychiatric disorders are commonly associated with OSA. Specifically, a recent study found an arousal-based mechanism initiated by PTSD that promotes the development of OSA in trauma survivors. Further, another study found that with “CPAP treatment, both OSA and PTSD symptoms decreased providing further evidence of the co-morbidity of these conditions.” Id. As the evidence for and the evidence against the Veteran’s claim is in relative equipoise, the Board affords the Veteran the benefit of the doubt, and finds there is expert evidence of record establishing a link between the Veteran’s OSA and his service-connected PTSD. Accordingly, the Board grants service connection for OSA. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. 3. Hypertension The first and second Wallin elements are met and not in dispute. The evidentiary record contains a diagnosis of hypertension. See April 2014 Dr. K.A. DBQ. Further, the Veteran is service-connected for PTSD. Pursuant to the Order above, the Veteran is service-connected for OSA. As such, the crux of this case centers on whether there is an etiological relationship between the Veteran’s hypertension and his service-connected PTSD and OSA. Dr. K.A. opined that emotional stress and anger cause elevations in blood pressure. See April 2014 Dr. K.A. DBQ. Further, a clinician opined that the Veteran’s hypertension is at least as likely as not due to weigh gain and sleep apnea resulting from his inability to maintain healthy weight. See April 2014 medical opinion. As the evidence for and the evidence against the Veteran’s claim is in relative equipoise, the Board affords the Veteran the benefit of the doubt, and finds there is expert evidence of record establishing a link between the Veteran’s hypertension and his service-connected PTSD and OSA. Accordingly, the Board grants service connection for hypertension. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. 4. Left Hand The Veteran has left hand tunnel syndrome. See February 2014 Dr. D.S. treatment record. However, the Veteran has not identified any disease, injury, or event in-service that may have caused or aggravated left hand tunnel syndrome. Here, as the Veteran has not alleged, nor does the evidentiary record identify, any in service disease, injury, or event suggestive of left hand tunnel syndrome, a VA examination is not needed. See Waters v. Shinseki, 601 F.3d 1274, 1277-88 (Fed. Cir. 2010). Thus, the Board denies entitlement to service connection for left hand tunnel syndrome because the preponderance of the evidence weighs against the claim. See 38 U.S.C. § 5107(b); 38 C.F.R. §§ 4.3, 4.7; Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). Increased Rating Disability ratings are determined by applying a schedule of ratings that is based on average impairment of earning capacity. Separate diagnostic codes identify the various disabilities. 38 U.S.C. § 1155; 38 C.F.R., Part 4. Each disability must be viewed in relation to its history and the limitation of activity imposed by the disabling condition should be emphasized. 38 C.F.R. § 4.1. Where the question for consideration is the propriety of the initial evaluation assigned, consideration of the medical evidence since the effective date of the award of service connection is required. See Fenderson v. West, 12 Vet. App. 199, 125-26 (1999). Where entitlement to compensation already has been established and an increase in the disability rating is at issue, it is the present level of disability that is of primary concern. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994). The Board will consider whether separate ratings may be assigned for separate periods of time based on facts found, a practice known as “staged ratings,” whether it is an initial rating case or not. See Hart v. Mansfield, 21 Vet. App. 505, 509-10 (2007). 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. Importantly, the evaluation of the same disability under various diagnoses is to be avoided. 38 C.F.R. § 4.14. However, when it is not possible to separate the effects of the service-connected disability from a nonservice-connected condition, such signs and symptoms must be attributed to the service-connected disability. Mittleider v. West, 11 Vet. App. 181, 182 (1998); 38 C.F.R. § 3.102. A. Musculoskeletal Claims When evaluating joint disabilities rated on the basis of limitation of motion, VA must consider granting a higher rating in cases in which functional loss due to pain, weakness, excess fatigability, or incoordination is demonstrated, and those factors are not contemplated in the relevant rating criteria. See DeLuca v. Brown, 8 Vet. App. 202, 204-07 (1995); see also 38 C.F.R. §§ 4.40, 4.45, 4.59 (2017). The Court of Appeals for Veterans Claims (Court) clarified that although pain may be a cause or manifestation of functional loss, limitation of motion due to pain is not necessarily rated at the same level as functional loss where motion is impeded. See Mitchell v. Shinseki, 25 Vet. App. 32, 42-43 (2011). Instead, the Court in Mitchell explained that pursuant to 38 C.F.R. §§ 4.40 and 4.45, the possible manifestations of functional loss include decreased or abnormal excursion, strength, speed, coordination, or endurance, as well as less or more movement than is normal, weakened movement, excess fatigability, and pain on movement (as well as swelling, deformity, and atrophy) that affects stability, standing, and weight-bearing. See 38 C.F.R. §§ 4.40, 4.45 (2017). Thus, functional loss caused by pain must be rated at the same level as if the functional loss were caused by any of the other factors cited above. Therefore, in evaluating the severity of a joint disability, VA must determine the overall functional impairment due to these factors. 1. Residuals of Fractured Right Distal Metacarpal The Veteran is assigned a non-compensable evaluation for residuals of fractured right distal metacarpal under Diagnostic Code 5230, governing limitation of motion of the ring or little finger. 38 C.F.R. § 4.71a, Diagnostic Code 5230. Under that Diagnostic Code, the maximum allowable rating for limitation of motion of the little finger is a non-compensable rating. Id. As the Veteran is already in receipt of the maximum schedular evaluation under Diagnostic Code 5230, an increased rating greater the current non-compensable rating is not warranted. While as a general matter when painful motion is present the minimum compensable rating for the joint should be assigned, in this case there is no level of disability that warrants a compensable rating under Diagnostic Code 5230. Sowers v. McDonald, 27 Vet. App. 472, 479-81 (2016). Therefore, a compensable rating for painful motion is not warranted in this case. Id.; 38 C.F.R. § 4.59. No increased or additional ratings are warranted under other Diagnostic Codes. The October 2014 clinician indicated that there was no loss of use of the finger such that the Veteran would be equally served by amputation. 38 C.F.R. § 4.71a, Diagnostic Code 5156. In evaluating the Veteran’s current level of disability, functional loss was considered. 38 C.F.R. §§ 4.40, 4.45. The Veteran has reported that he experiences pain. However, the October 2014 VA clinician specifically noted such statements and found that the Veteran’s disability does not result in loss of use of the finger such that the Veteran would be equally served by amputation. As such, the Board finds that the Veteran’s statements concerning further limitation of function due to additional factors are outweighed by the objective observation of the VA clinician. 38 C.F.R. §§ 4.40, 4.45. All potentially applicable Diagnostic Codes have been considered. See Schafrath v. Derwinski, 1 Vet. App. 589, 593 (1991). The preponderance of the evidence is against a compensable rating for the Veteran’s residuals of fractured right distal metacarpal. The Board finds the evidence of record more closely approximates the criteria for a non-compensable rating. See 38 U.S.C. § 5107(b); 38 C.F.R. §§ 4.3, 4.7; Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). 2. Status Post Fracture, Left Fifth Metatarsal (Left Foot) The Veteran’s left foot disability is evaluated under the criteria for other foot injuries, 38 C.F.R. § 4.71a, Diagnostic Code 5284. Under Diagnostic Code 5284, a moderate disability warrants a 10 percent evaluation, a moderately severe disability warrants a 20 percent evaluation, and a severe disability warrants a 30 percent evaluation. Actual loss of use of foot is rated at 40 percent. Diagnostic Code 5284, Note. The words “moderate,” “moderately severe,” 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” under 38 C.F.R. § 4.6. The Veteran’s suffers from moderately severe left foot symptoms; specifically, he has daily left lateral foot pain (deep bone pain) dull, aching, and constant. His pain worsens at night and with walking. See October 2014 VA examination report. Upon functional assessment, the Veteran can only stand two to four hours and walk less than two hours of a normal eight-hour workday. See November 2017 Dr. K.A. residual functional capacity evaluation. This is further supported by his pain on weight-bearing. See October 2014 VA examination report. However, as he can still walk and stand, the symptoms are not severe. Further, there is no functional impairment of an extremity such that no effective function remains other than that which would be equally well served by an amputation with prosthesis. See October 2014 VA examination report. Further, upon examination, the Veteran was not found to have flatfoot, weak foot, claw foot, Morton’s disease, hallux valgus, hallux rigidus, hammer toe, or malunion/nonunion tarsal or metatarsal bones. All potentially applicable Diagnostic Codes have been considered. See Schafrath v. Derwinski, 1 Vet. App. 589, 593 (1991). The Board finds the evidence of record more closely approximates the criteria for a 20 percent rating for the service-connected left foot disability. See 38 U.S.C. § 5107(b); 38 C.F.R. §§ 4.3, 4.7; Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). 3. Tinnitus The Veteran contends that his tinnitus is more severe than his assigned disability rating would indicate. He filed his claim in April 2014. Under Diagnostic Code 6260, a single evaluation is to be assigned for recurrent tinnitus whether it is present in one or both ears. 38 C.F.R. § 4.87, Diagnostic Code 6260, Note (2). Neither Diagnostic Code 6260, nor any other diagnostic code, allows the assignment of a schedular evaluation greater than 10 percent for tinnitus affecting both ears. See also Smith v. Nicholson, 451 F.3d 1344 (Fed. Cir. 2006). Here, the Veteran’s service-connected tinnitus has been assigned the maximum schedular rating available for that disability. 38 C.F.R. § 4.87, Diagnostic Code 6260. Neither the Veteran nor the record suggests that an exceptional disability picture exists so as to warrant an extraschedular evaluation. As there is no basis upon which to award an initial disability rating in excess of 10 percent, or separate schedular evaluations for tinnitus in each ear, the Veteran’s appeal is denied. 4. PTSD Here, the Veteran contends that his PTSD is more severe than his current disability rating would indicate. He filed his claim in April 2014. The Veteran’s PTSD mental health disorder is rated under 38 C.F.R. §4.130, Diagnostic Code 9411. A 70 percent rating is warranted for occupational and social impairment, with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood, due to such symptoms as: suicidal ideation; obsessional rituals which interfere with routine activities; speech intermittently illogical, obscure, or irrelevant; near-continuous panic or depression affecting the ability to function independently, appropriately and effectively; impaired impulse control (such as unprovoked irritability with periods of violence); spatial disorientation; neglect of personal appearance and hygiene; difficulty in adapting to stressful circumstances (including work or a work-like setting); inability to establish and maintain effective relationships. Id. A 100 percent rating is warranted for total occupational and social impairment, due to such symptoms as: gross impairment in thought processes or communication; persistent delusions or hallucinations; grossly inappropriate behavior; persistent danger of hurting self or others; intermittent inability to perform activities of daily living (including maintenance of minimal personal hygiene); disorientation to time or place; memory loss for names of close relatives, own occupation, or own name. Id. When evaluating a mental disorder, the rating agency shall consider the frequency, severity, and duration of psychiatric symptoms, the length of remissions, and the Veteran’s capacity for adjustment during periods of remission. The rating agency shall assign an evaluation based on all the evidence of record that bears on occupational and social impairment, rather than solely on the examiner’s assessment of the level of disability at the moment of the examination. When evaluating the level of disability from a mental disorder, the rating agency will consider the extent of social impairment, but shall not assign an evaluation solely on the basis of social impairment. 38 C.F.R. § 4.126. Although the Veteran’s symptomatology is the primary consideration, the Veteran’s level of impairment must be in “most areas” applicable to the relevant percentage rating criteria. Vazquez-Claudio v. Shinseki, 713 F.3d 112, 116-19 (Fed. Cir. 2013). Taking into account all relevant evidence, the Board finds that a disability rating of 100 percent for the Veteran’s service-connected PTSD is not warranted. Upon examination in January 2016, the Veteran was deemed to have occupational and social impairment in most areas. Specifically, the Veteran was found to have the following symptoms: depression, anxiety, suspiciousness, panic attacks, chronic sleep impairment, mild memory loss, flattened affect, disturbances of motivation and mood, difficulty in adopting to stressful circumstances, including work or a work like setting, passive suicidal ideation, and an inability to establish and maintain effective relationships. See January 2016 Dr. H.H.G. DBQ. Importantly, Dr. H.H.G. opined that the severity of the Veteran’s symptom complex relates back to his original claim date of April 2014. Dr. H.H.G. also notes that the “symptoms have been in existence since [the Veteran’s] return from military service and have continued through the date of filing for benefits.” Id. Dr. H.H.G. further opined that the Veteran cannot sustain the stress from a competitive work environment or be expected to engage in gainful activity due to PTSD. See January 2016 Dr. H.H.G. medical opinion. Nevertheless, the Veteran has not exhibited total social impairment. The Veteran has been married for 22 years and turns to his wife for emotional support. Id. Though he is socially isolated and withdrawn, he does not have persistent delusions or hallucinations. Further, the Veteran has stated in multiple mental health visits that he is not a persistent danger of hurting himself or others; he also remembers his own name. While the Veteran does exhibit some symptoms contemplated in total occupational and social impairment, the symptomatology is not of sufficient severity, frequency, and duration to result in a higher rating. Hence, the criteria for a finding of a 100 percent evaluation are not met. Based upon Hart v. Mansfield, 21 Vet. App. 505, 509-10 (2007), the Board has also considered whether staged ratings are appropriate. Since, however, the Veteran’s symptoms have remained constant at 70 percent levels for his PTSD, staged ratings are not warranted. Thus, the Board finds that the criteria for an increased disability rating of 100 are not met. See Gilbert v. Derwinski, 1 Vet. App 49, 55-57 (1990); 38 C.F.R. § 3.102. Effective Date Except as otherwise provided, the effective date of an evaluation and award of compensation based on a claim for service connection or increase will be on the date of receipt of the claim or the date entitlement arose, whichever is the later. 38 U.S.C. § 5110(a) (2012); 38 C.F.R. § 3.400(o)(1) (2017). However, the effective date of an award of increased compensation shall be the earliest date as of which it is factually ascertainable based on all evidence of record that an increase in disability had occurred, if an application for increase in compensation is received within one year from such date. 38 C.F.R. § 3.400(o)(2). During the pendency of the appeal, the definition of what constitutes a valid claim has changed. For the purposes of this case, 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). The date of receipt shall be the date on which a claim, information or evidence was received by VA. 38 C.F.R. § 3.1(r). 1. PTSD Here, as stated above, a November 2007 rating decision granted service connection for PTSD at 50 percent disabling from January 12, 2006. The Veteran did not submit a notice of disagreement (NOD) or new and material evidence within a year of the mailing date. Hence, the November 2007 rating decision became final. The Veteran’s representative argues that the Veteran’s symptoms warranted a 70 percent rating because of the impairment expressed in an August 2007 VA examination report. See November 2017 representative statement. However, the November 2007 rating decision considered this evidence when it adjudicated the claim and assigned the effective date for service connection. Further, the November 2007 rating decision became final, and the Veteran did not file a formal or informal claim for increase until April 7, 2014. Importantly, the Veteran does not allege CUE in the November 2007 rating decision. Hence, the date of claim for the PTSD increased rating claim on appeal is April 7, 2014. Therefore, the crux of this case is determining whether it was factually ascertainable that the Veteran’s PTSD symptoms warranted an increase from 50 percent to 70 percent within a year of April 7, 2014. As stated above, PTSD is rated under 38 C.F.R. §4.130, Diagnostic Code 9411. A 50 percent rating is warranted for occupational and social impairment with reduced reliability, while a 70 percent rating is warranted for occupational and social impairment with deficiencies is most areas. 38 C.F.R. §4.130, Diagnostic Code 9411. As stated above, the Veteran’s medical expert explained that his symptoms have manifested in occupational and social impairment with deficiencies in most areas since April 7, 2014. Neither Dr. H.H.G. nor the evidentiary record suggest that it was factually ascertainable that the Veteran’s psychiatric symptoms increased to 70 percent from 50 percent disabling within a year of April 7, 2014. Therefore, the Board finds the criteria for an effective date earlier than April 7, 2014 for a 70 percent PTSD disability rating is not warranted. See Gilbert v. Derwinski, 1 Vet. App 49, 55-57 (1990); 38 C.F.R. § 3.102. 2. Left Foot In a November 2007 rating decision, the AOJ continued the Veteran’s non-compensable disability rating. The Veteran did not submit a notice of disagreement (NOD) or new and material evidence within a year of the mailing date. Hence, the November 2007 rating decision became final. Since the November 2007 rating decision became final, the Veteran did not file a formal or informal claim for increase until April 7, 2014. Importantly, the Veteran does not allege CUE in the November 2007 rating decision. Hence, the date of claim for the left foot increased rating claim on appeal is April 7, 2014. Therefore, the crux of this case is determining whether it was factually ascertainable that the Veteran’s left foot symptoms warranted an increase from non-compensable to 20 percent within a year of April 7, 2014. Under Diagnostic Code 5284, a moderate disability warrants a 10 percent evaluation, and a moderately severe disability warrants a 20 percent evaluation. Diagnostic Code 5284. Here, the Veteran admits his foot pain first began to affect his activities in 2004. See March 2012 SSA questionnaire. Specifically, he says “walking, standing, stairs, [and] being on [his] feet” brings on the pain. Id. Thus, it is not factually ascertainable that the increase in symptom severity occurred within a year of April 7, 2014. Therefore, the Board finds the criteria for an effective date earlier than April 7, 2014 for a 20 percent left foot disability rating is not warranted. See Gilbert v. Derwinski, 1 Vet. App 49, 55-57 (1990); 38 C.F.R. § 3.102. 3. Tinnitus The Veteran seeks an effective date earlier than April 7, 2014 for the grant of service connection for tinnitus. Here, a review of the claim file shows that the Veteran did not file a formal or informal application for service connection for tinnitus prior to the claim received on April 7, 2014. As such, the AOJ has assigned the earliest possible effective date provided by law and an earlier effective date is not warranted. TDIU The issue of entitlement to TDIU has been raised in this case and will be considered by the Board. See Rice v. Shinseki, 22 Vet. App. 447, 453-55 (2009). Total disability will be considered to exist where there is present any impairment of mind and body that is sufficient to render it impossible for the average person to follow a substantially gainful occupation. 38 C.F.R. § 3.340. Total disability ratings for compensation may be assigned, where the schedular rating is less than total, when the disabled person is unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities, provided that the Veteran meets the schedular requirements. Specifically, if there is only one such disability, this disability shall be ratable at 60 percent or more; if there are two or more disabilities, there shall be at least one disability that is ratable at 40 percent or more and sufficient additional disability to bring the combined rating to 70 percent or more. 38 C.F.R. §§ 3.340, 3.341, 4.16(a). For the stated purpose of one 60 percent disability, or one 40 percent disability in combination, the following will be considered as one disability: (1) disabilities of one or both upper extremities, or of one or both lower extremities, including the bilateral factor, if applicable; and (2) disabilities resulting from common etiology or a single accident. 38 C.F.R. § 4.16(a). “Substantially gainful employment” is that employment “which is ordinarily followed by the nondisabled to earn their livelihood with earnings common to the particular occupation in the community where the veteran resides.” Moore v. Derwinski, 1 Vet. App. 356, 358 (1991). “Marginal employment shall not be considered substantially gainful employment.” 38 C.F.R. § 4.16(a) (2017). In determining whether unemployability exists, consideration may be given to the Veteran’s level of education, special training, and previous work experience, but not to his age or to any impairment caused by nonservice-connected disabilities. 38 C.F.R. §§ 3.341, 4.16, 4.19. The Veteran has alleged that he cannot work because of his service-connected PTSD. The Veteran has not worked since 2009 and has received Social Security Disability for his vocational impairment. See January 2016 Dr. H.H.G. DBQ. The Veteran has met the threshold requirement for entitlement to TDIU on a schedular basis. The Veteran’s PTSD is rated at 70 percent disabling throughout the appeal period. See 38 C.F.R. § 4.16(a). Thus, the narrow issue before the Board is whether the Veteran has been unable to secure or follow a substantially gainful occupation because of his service-connected disabilities. Recently, a psychologist opined that the Veteran’s service-connected psychiatric disorder prevents him from maintaining substantially gainful employment. See January 2016 Dr. H.H.G. medical opinion. She methodically explained how the Veteran’s symptoms would prevent gainful employment. For example, Dr. H.H.G. stated that the Veteran cannot sustain the stress from a competitive work environment or expected to engage in gainful activities. She related symptoms to specific impairments, noting: With poor interpersonal skills and workplace trust issues, the Veteran would have an increase in paranoia and would struggle with appropriate work interaction. Additional, suicidal ideation causes problems within the workplace through a manifestation of fatigue and lack of concentration. Employers note higher distractibility, absenteeism and emotional turmoil as inappropriate in the workplace. Id. Ultimately, Dr. H.H.G. relates the Veteran’s difficulty in maintaining effective relationships with severe impairment. Id. The Veteran also would have significant absentee and behavioral problems at work. He would miss three or more days of work per month due to mental problems. See January 2016 Dr. H.H.G. residual functional capacity evaluation. Similarly, the Veteran would need to leave early from the workplace because of mental problems three or more days a month. He would also not be able to stay focused for at least seven out of eight hours more than three days per month. Id. Further, more than once a month the Veteran would respond in an angry manner but would not become violent. As to his service-connected left foot, the Veteran would only be able to consistently stand two to four hours and walk less than two hours. See November 2017 Dr. K.A. residual functional capacity evaluation. As a result, Dr. K.A. opines that the Veteran would not be able to maintain substantially gainful employment. Id. Further, a vocational expert, after thoroughly reviewing the file and discussing the Veteran’s medical history, opined that the Veteran is “totally and permanently precluded from performing work at a substantial gainful level due to the severity of his service connected PTSD, [left foot], tinnitus, and [right hand,] and the record supports this finding as far back as the date of filing.” See November 2017 Dr. S.B. vocational opinion. The responsibility for making the ultimate TDIU determination is placed on the adjudicator and not a medical examiner. See Geib v. Shinseki, 733 F.3d 1350, 1354 (Fed. Cir. 2013). A medical examiner’s role is limited to describing the effects of disability upon the person’s ordinary activity. See Floore v. Shinseki, 26 Vet. App. 376, 381 (2013). The Veteran is competent to testify as to facts he personally observed or described; this includes recalling what he personally felt, saw, smelled, heard, or tasted. See Layno v. Brown, 6 Vet. App. 465, 469 (1994). Here, the psychological symptoms make him unable to establish work relationships, cause concentration lapses, hinder his ability to effectively complete tasks, and would cause frequent absences and work disruptions. His physical symptoms make it difficult to stand and walk for prolonged periods during the workday. As such, the Board finds the Veteran and his medical treatment providers credible as to his functional limitations attributable to his service-connected disabilities. Therefore, the Board finds that the Veteran’s service-connected disabilities at least as likely as not prevent him from obtaining and maintaining gainful employment throughout the appellate period. Accordingly, resolving all doubt in his favor, the criteria for TDIU have been met, and the claim is granted. See 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 9, 55-57 (1990). REASONS FOR REMAND 1. Right Ankle The Veteran has a right subtalar fusion after calcaneal fracture. See February 2014 Dr. E.M. treatment record. Servicemember B.M. testified that the Veteran was the platoon commander’s radio operator of their unit and “while running to the helicopter fell several times injuring both of his ankles.” See March 2007 B.M. statement. Consistent with VA’s duty to assist, VA must provide a medical examination when there is evidence of (1) a current disability; (2) an in-service injury; (3) some indication that the claimed disability may be associated with the established injury; and (4) insufficient competent evidence of record for VA to make a decision. See McClendon v. Nicholson, 20 Vet. App. 79, 84 (2006). The third prong, which requires evidence that the claimed disability or symptoms “may be” associated with the established event, has a low evidentiary threshold. See 20 Vet. App. at 83. The Veteran earned the Combat Action Ribbon. He posits that his right ankle injuries in service caused his current right ankle disability. Further, even though Dr. E.M. said the right-sided calcaneal fracture happened following a fall from a ladder, the Veteran “continues with compensatory ankle and hindfoot arthrosis on the right and posttraumatic ankle arthrosis on the left.” See February 2014 Dr. E.M. treatment record (emphasis added). Thus, Dr. E.M.’s statement raises the question of whether the Veteran overcompensated with his right ankle after injuries to his service-connected left foot in-service. Therefore, the low evidentiary standard is met, and a VA examination is necessary to determine if the Veteran’s current right ankle disability is related or attributable to his time on active duty or to a service-connected disability. 2. Neuropathy and Complex Regional Pain Syndrome The evidentiary record contains a diagnosis of neuropathy and complex regional pain syndrome. See July 2014 Dr. L.V. DBQ. The Veteran posits, and the evidentiary record suggests, that this disability developed after multiple ankle surgeries to both ankles. Id. Hence, this issue is inextricably intertwined with the referred left ankle and remanded right ankle issues. Accordingly, the Board will defer adjudication on the matter. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991). The matter is REMANDED for the following action: 1. Obtain any outstanding VA treatment records relevant to treatment the Veteran received for his right ankle symptoms that are not already of record. All obtained records should be associated with the evidentiary record. If any identified records are not obtainable (or none exist), the Veteran and his representative should be notified and the record clearly documented. 2. Schedule the Veteran for an examination to determine the nature and etiology of his right ankle disability. The evidentiary record, including a copy of this remand, must be made available to and reviewed by the clinician. The examination must include a notation that this record review took place. After the record review and examination of the Veteran, the clinician should identify all right ankle disabilities. For each identified disability, the clinician is asked to respond to the following inquiries: A. Is it at least as likely as not that the Veteran’s right ankle disability was incurred in, or is otherwise related, to his time in active service, to include the right ankle injuries the Veteran suffered in active service? B. Is it at least as likely as not that the Veteran’s right ankle disability was (a.) caused or (b.) aggravated by his service-connected disabilities? In rendering these opinions, the clinician is advised that the Veteran is competent to report his symptoms and history. Such reports must be acknowledged and considered in formulating any opinion. If the clinician rejects the Veteran’s reports, he or she must provide an explanation for such rejection. The clinician is not to improperly discount the Veteran’s lay statements or mistakenly rely on an absence of medical evidence in the record to support his or her conclusions. The clinician is to discuss whether the Veterans’ right ankle injuries in service relate to his current right ankle disability, and whether overcompensation due to his service-connected left foot disability caused or aggravated his right ankle disability. For the purposes of this opinion, the clinician is to assume the Veteran and his fellow soldier are credible as to the facts surrounding his right ankle injury in service. The complete rationale for all opinions should be set forth and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. If an opinion cannot be provided without resorting to mere speculation, the examiner must provide a complete explanation for why an opinion cannot be rendered. In so doing, the clinician must explain whether the inability to provide a more definitive opinion is the result of a need for additional information, or that he or she has exhausted the limits of current medical knowledge in providing an answer to that particular question. 3. After the above has been completed to the extent possible, readjudicate the claims. If any benefit sought remains denied, provide the Veteran and his representative with a supplemental statement of the case (SSOC), and return the case to the Board. DONNIE R. HACHEY Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD M. Salazar, Associate Counsel