Citation Nr: 18152509 Decision Date: 11/27/18 Archive Date: 11/23/18 DOCKET NO. 15-41 227 DATE: November 27, 2018 ORDER New and material evidence having been received, the claim of service connection for somatization disorder is reopened and to that extent the appeal is granted. New and material evidence having been received, the claim for service connection for bilateral hearing loss is reopened and to that extent the appeal is granted. New and material evidence having been received, the claim for service connection for a seizure disorder is reopened and to that extent the appeal is granted. Service connection for a depressive disorder is granted. Service connection for frostbite of both feet is denied. An initial evaluation in excess of 10 percent for tinnitus is denied. The reduction in evaluation for gastroesophageal reflux disease (GERD) with irritable bowel syndrome (IBS) was not proper; restoration of the 30 percent evaluation, effective March 1, 2013, is granted. An initial evaluation in excess of 30 percent for GERD with IBS is denied. An initial 20 percent for right ankle instability throughout the appeal period is granted. An initial compensable rating for hemorrhoids status post hemorrhoidectomy is denied. REMANDED Entitlement to service connection for bilateral hearing loss is remanded. Entitlement to service connection for residuals of a traumatic brain injury (TBI) is remanded. Entitlement to service connection for headaches is remanded. Entitlement to service connection for a seizure disorder is remanded. Entitlement to service connection for a psychiatric disorder other than depressive disorder, to include posttraumatic stress disorder (PTSD) and somatization disorder (claimed as Gulf War syndrome, chronic pain syndrome, fibromyalgia, and fatigue), is remanded. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) is remanded. FINDINGS OF FACT 1. In an October 2011 rating decision, service connection for somatization disorder and bilateral hearing loss was denied; that decision is final. 2. The evidence received since the October 2011 rating decision relates to an unestablished fact necessary to substantiate the claims of service connection for somatization disorder and bilateral hearing loss. 3. In a January 2009 rating decision, service connection for a seizure disorder was denied; that decision is final. 4. The evidence received since the January 2009 rating decision relates to an unestablished fact necessary to substantiate a claim of service connection for a seizure disorder. 5. The Veteran’s depressive disorder is shown to be due to his service-connected disabilities. 6. The Veteran does not have a current frostbite of his feet disability. 7. The Veteran is currently assigned a 10 percent evaluation for his tinnitus under Diagnostic Code 6260. 8. The evidence does not show that at the time of the reduction there was actual improvement of the Veteran’s GERD with IBS to include in the ability to function in the ordinary conditions of life and work. 9. Throughout the appeal period, the Veteran’s GERD with IBS has been manifested by diarrhea, constipation, and abdominal pain; it has not been manifested by persistently recurrent epigastric distress with symptoms of dysphagia, regurgitation, sleep disturbance, and substernal pain, productive of considerable impairment of health. 10. The Veteran’s right ankle instability is manifested by no more than marked limitation of ankle motion; his right ankle is not shown to be ankylosed at any time during the appeal period. 11. The Veteran’s hemorrhoids are not manifested by large or thrombotic hemorrhoids, which are irreducible, with excessive redundant tissue, evidencing frequent recurrences, or by persistent bleeding and secondary anemia, or by fissures. CONCLUSIONS OF LAW 1. The October 2011 rating decision that denied service connection for bilateral hearing loss and somatization disorder is final. 38 U.S.C. § 7105(c); 38 C.F.R. § 20.1103. 2. The criteria for reopening service connection for bilateral hearing loss and somatization disorder are met. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. 3. The January 2009 rating decision that denied service connection for a seizure disorder is final. 38 U.S.C. § 7105(c); 38 C.F.R. § 20.1103. 4. The criteria for reopening service connection for a seizure disorder are met. 38 U.S.C. § 5108; 38 C.F.R. § 3.156(a). 5. The criteria for service connection for a depressive disorder are met. 38 U.S.C. §§ 1110, 1154, 5107; 38 C.F.R. §§ 3.102, 3.310. 6. The criteria for service connection for frostbite of both feet are not met. 38 U.S.C. §§ 1110, 1154, 5107; 38 C.F.R. §§ 3.102, 3.303. 7. The criteria establishing an initial evaluation in excess of 10 percent for tinnitus are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. § 4.87, Diagnostic Code (DC) 6260. 8. The reduction in rating from 30 percent to 10 percent, effective March 1, 2013, for the Veteran’s GERD with IBS is void ab initio. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. § 3.344 (2017). 9. The criteria for an initial evaluation in excess of 10 percent for GERD with IBS are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.10, 4.114, DC 7346. 10. The criteria for an initial 20 percent evaluation, but no higher, for right ankle instability throughout the appeal period are met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.10, 4.40, 4.45, 4.59, 4.71a, DC 5271-5010. 11. The criteria for an initial compensable rating for hemorrhoids status post hemorrhoidectomy are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.10 4.114, DC 7336. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from December 1978 to November 1981 and from February 1989 to August 1992, to include service in Southwest Asia. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from August 2013 and May 2014 rating decisions by a Department of Veterans Affairs (VA) Regional Office (RO). Reopening Service Connection Generally, a claim which has been denied in an unappealed AOJ decision is final and may not thereafter be reopened and allowed. 38 U.S.C. § 7105(c); 38 C.F.R. §20.1100. Once the AOJ makes a determination as to a claim, it must mail to the claimant, and his or her representative if there is one, proper notice of the decision, including notice of the claimant’s procedural due process and appellate rights. 38 U.S.C. § 7105(b)(1); 38 C.F.R. §§ 3.103(b)(1), 19.25, 20.1103. An appeal of an AOJ decision to the Board is initiated by the filing of a notice of disagreement (NOD) with the decision. 38 U.S.C. § 7105(a); 38 C.F.R. § 20.200. Except in the case of simultaneously contested claims (which this is not) the NOD must be filed within one year from the date of mailing of result of the initial determination. See 38 U.S.C. § 7105(b)(1); see also 38 C.F.R. §§ 20.200, 20.201, 20.302. If a timely NOD is not filed, the determination becomes final and the claim will not thereafter be reopened or allowed, except as may otherwise be provided by regulations not inconsistent with Title 38 of the U.S. Code. 38 U.S.C. § 7105(c). The exception to this rule of not reviewing the merits of a finally denied claim is 38 U.S.C. § 5108, which provides that 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. The regulation that implements 38 U.S.C. § 5108 defines “new and material evidence” as evidence not previously submitted to agency decision makers which is neither cumulative nor redundant of evidence previously of record, and which by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim, and which raises a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a). New evidence means existing evidence not previously submitted to agency decision makers. 38 C.F.R. § 3.156(a). 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. Id. New and material evidence can be neither cumulative nor redundant of the evidence already of record and must raise a reasonable possibility of substantiating the claim. Id. Of note, under 38 C.F.R. § 3.156(b), “new and material” evidence received prior to the expiration of the appeal period will be considered as having been filed in connection with the claim which was pending at the beginning of the appeal period. If VA receives new evidence within the appeal period of an AOJ decision, it must make a determination as to whether the evidence is new and material and if it does not do so then the claim does not become final but rather it remains pending. See Beraud v. McDonald, 766 F.3d 1402, 1406-07 (Fed. Cir. 2014). In determining whether evidence is “new and material,” the credibility of the evidence in question must be presumed. Justus v. Principi, 3 Vet. App. 510, 513 (1992). New and material evidence is required to reopen a final claim. See 38 U.S.C. § 5108; Jackson v. Principi, 265 F.3d 1366 (Fed. Cir. 2001); 38 C.F.R. § 3.156. The Board has a jurisdictional responsibility to consider whether it was proper for a claim to be reopened, regardless of whether the RO granted or denied an application to reopen. See Jackson, 265 F.3d 1366, 1369. Somatization Disorder In the October 2011 rating decision, the AOJ denied service connection for somatization disorder, claimed as Gulf War syndrome, chronic pain syndrome, fibromyalgia and fatigue. It indicates that the AOJ denied service connection because the disability was determined to result from a known clinical diagnosis of somatization which neither occurred in, nor was caused or aggravated by service. The Veteran was notified of this decision on October 21, 2011. The Veteran submitted a statement requesting reconsideration of his denied claim, received October 29, 2012. However, the statement was received over one year after notification. Thus, the Veteran did not timely appeal the decision, and it became final. See 38 U.S.C. § 7105(c); 38 C.F.R. § 3.156(b). In the August 2013 rating decision, the AOJ denied the Veteran’s claim for service connection for somatization disorder because the evidence submitted was not new and material. The Veteran timely appealed the August 2013 rating decision in a May 2014 NOD. The AOJ issued an SOC, and the Veteran perfected the appeal in September 2015. Evidence received since October 2011 includes VA treatment records, a March 2015 VA examination, and a private medical examination and opinion. This is sufficient to reopen the claim. Bilateral Hearing Loss In the October 2011 rating decision, the AOJ denied service connection for hearing loss. The Veteran did not timely appeal this decision within a year of notification, and it became final. See 38 U.S.C. § 7105(c); 38 C.F.R. § 3.156(b). In an August 2013 rating decision, the AOJ denied reopening the Veteran’s claim for service connection for hearing loss because the evidence submitted was not new and material. The Veteran timely appealed the August 2013 rating decision in a May 2014 NOD. In the SOC issued in August 2015, the AOJ indicated that the evidence does not show that his hearing loss is due to service. The Veteran perfected the appeal in September 2015. Evidence received since October 2011 includes VA treatment records and a March 2014 VA examination. This is sufficient to reopen the claim. Seizure Disorder In a January 2009 rating decision, the AOJ denied service connection for seizure disorder as due to undiagnosed illness. The Veteran did not timely appeal this decision, and it became final. See 38 U.S.C. § 7105(c); 38 C.F.R. § 3.156(b). In an August 2013 rating decision, the AOJ denied the Veteran’s claim for service connection for seizure disorder because the evidence submitted was not new and material. The Veteran timely appealed the August 2013 rating decision in a May 2014 NOD. In August 2015, the AOJ issued an SOC indicating that “there lacks evidence showing a seizure disorder was incurred in or aggravated by your period of active military service” and that “there lacks evidence showing your seizure disorder to be a qualifying chronic disability associated with your service in Southwest Asia. Rather the evidence suggests that your seizure disorder developed around the time of your reported traumatic brain injury from a parachute accident in 1993.” The Veteran perfected the appeal in September 2015, and the issue was certified to the Board in April 2016. Evidence received since January 2009 includes VA treatment records, a July 2011 VA general medical examination, and a July 2016 private examination and opinion. This is sufficient to reopen the claim. Service Connection Claims Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active service. See 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). “To establish a right to compensation for a present disability, a Veteran must show: “(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”- the so-called “nexus” requirement.” Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2010) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Service connection for certain chronic diseases, including sensorineural hearing loss (an organic disease of the nervous system), may also be established based upon a legal “presumption” by showing that the disease manifested to a degree of 10 percent or more within one year from the date of separation from service. 38 U.S.C. §§ 1112, 1137; 38 C.F.R. §§ 3.307, 3.309. In addition, service connection may be granted for any disease diagnosed after service when all the evidence establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Here, the record does not indicate that the Veteran was diagnosed with hearing loss within a year of service, and thus, service connection may not be presumed based on this presumption. Secondary service connection may be granted for a disability that is proximately due to, or aggravated by, a service-connected condition. 38 C.F.R. § 3.310. Finally, the Board reflects that the Veteran has generally asserted that he has several chronic undiagnosed illnesses that are related to his military service. A Persian Gulf veteran who exhibits objective indications of a qualifying chronic disability may be service-connected, provided such disability became manifest either during active military, naval, or air service in the Southwest Asia theater of operations during the Persian Gulf War, or to a degree of 10 percent or more not later than December 31, 2021, and by history, physical examination, and laboratory tests cannot be attributed to any known clinical diagnosis. 38 U.S.C. § 1117; 38 C.F.R. § 3.317(a)(1). A “qualifying chronic disability” means a chronic disability resulting from an undiagnosed illness and/or a medically unexplained chronic multi-symptom illness that is defined by a cluster of signs or symptoms (such as chronic fatigue syndrome (CFS), fibromyalgia, or functional gastrointestinal disorders). 38 C.F.R. § 3.317(a)(2)(i). The term “medically unexplained chronic multi-symptom illness” means a diagnosed illness without conclusive pathophysiology or etiology 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 will not be considered medically unexplained. 38 C.F.R. § 3.317(a)(2)(ii). “Objective indications of chronic disability” include both “signs,” in the medical sense of objective evidence perceptible to an examining physician, and other, non-medical indicators that are capable of independent verification. 38 C.F.R. § 3.317(a)(3). Disabilities that have existed for six months or more and disabilities that exhibit intermittent episodes of improvement and worsening over a six-month period will be considered chronic. The six-month period of chronicity is measured from the earliest date on which the pertinent evidence establishes the signs or symptoms of the disability first became manifest. 38 C.F.R. § 3.317(a)(4). Signs or symptoms that may be a manifestation of an undiagnosed illness or a medically unexplained chronic multi-symptom illness include, but are not limited to the following: fatigue; signs or symptoms involving the skin; headache; muscle pain; joint pain; neurologic signs or symptoms; neuropsychological signs or symptoms; signs or symptoms involving the respiratory system (upper or lower); sleep disturbances; gastrointestinal signs or symptoms; cardiovascular signs or symptoms; abnormal weight loss; and menstrual disorders. 38 C.F.R. § 3.317(b). If signs or symptoms have been medically attributed to a diagnosed (rather than undiagnosed) illness, the Persian Gulf War presumption of service connection does not apply. VAOPGCPREC 8-98. In the case of claims based on undiagnosed illness or a medically unexplained chronic multi-symptom illness under 38 U.S.C. § 1117; 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. See Gutierrez v. Principi, 19 Vet. App. 1, 8-9 (2004). Further, lay persons are competent to report objective signs and/or symptoms of the claimed disability. Id. To determine whether the qualifying chronic disability is manifested to a degree of 10 percent or more the condition must be rated by analogy to a disease or injury in which the functions affected, anatomical location or symptomatology are similar. See 38 C.F.R. § 3.317(a)(5); see also Stankevich v. Nicholson, 19 Vet. App. 470 (2006). Depressive Disorder The Veteran contends that his psychiatric condition is directly related to his active service, or alternatively is due to his service-connected disabilities. The AOJ previously characterized the issue on appeal as entitlement to service connection for PTSD, also claimed as depression. A claim for service connection for a psychiatric disability is deemed to encompass all psychiatric diagnoses reasonably presented in the record. See Clemons v. Shinseki, 23 Vet. App. 1 (2009). As an initial matter, the Board is aware that the issue of entitlement to service connection for PTSD was previously noted as requiring new and material evidence. The AOJ previously determined that a January 2009 rating decision was not timely appealed; however, upon review, the Board finds that an NOD was, in fact, received within a year of notification of the decision. An SOC in response to that NOD was never issued. Thus, the January 2009 rating decision never became final. See 38 U.S.C. § 7105(c); 38 C.F.R. § 3.156(b). The appeal stems from that rating decision. VA treatment records received in January 2009 indicate a diagnosis of major depressive disorder (single episode). VA treatment records received in October 2009 indicate that based on the Veteran’s report and observed behavior during this interview for major depressive disorder. In a May 2015 private mental disorders DBQ received in September 2015, the private examiner indicated that the Veteran had a diagnosis of depressive disorder due to another medical condition with depressed features. The examiner opined that based on interview and the file, the Veteran’s “GERD, right ankle instability, and tinnitus are more likely than not aggravating his depressive disorder due to another medical condition.” The Board notes that the May 2015 DBQ indicates that the Veteran’s diagnosed depressive disorder due to another medical condition with depressed features is more likely than not aggravated by his service-connected GERD, right ankle instability, and tinnitus. There is no medical opinion to the contrary. After a review of all the evidence, the Board finds that service connection for a depressive disorder is warranted on a secondary basis. The claim is granted. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.310. Frostbite of the Feet The Veteran contends that his frostbite of both feet is directly related to service. The question for the Board is whether the Veteran has a current disability that began during service or is at least as likely as not related to an in-service injury, event, or disease. Initially, the Board reflects that the Veteran’s service personnel records demonstrate that he had service in Germany; accordingly, the Board does find that he has exposure to cold weather during military service. However, his STRs do not indicate complaints, symptoms, treatment, or diagnosis related to frostbite of both feet. Likewise, post-service treatment records do not indicate a diagnosis or treatment for frostbite of both feet. In a July 2011 VA examination for the joints, it indicates that the Veteran complains of left foot pain and numbness and tingling but that diagnostic testing revealed that the Veteran’s left foot was normal and that the Veteran’s right foot was unremarkable except for his ankle. The Board notes that the Veteran is service-connected for an ankle condition. The report indicates that the Veteran reported flare-ups, and having pain and functional limitation. The examiner stated that it is conceivable that the pain could further limit function but that it is not feasible to attempt to express any of this in terms of additional limitation of motion as these matters cannot be determined with any degree of medical certainty. The examiner opined that he “does not have any clinical findings in any way consistent with the history given.” The Board acknowledges that the Veteran reported pain of his left foot; however as noted above, there is no official diagnosis of a foot disorder. The Board acknowledges the Veteran’s reports of pain; however, the evidence does not reflect that his reported symptoms related to his feet amount to functional impairment. See Saunders v. Wilkie No. 17- 1466 2018 U.S. Court of Appeals for the Federal Circuit LEXIS (Fed. Cir. April 3, 2018). In this regard, the Veteran has not reported specific functional impairments due to his foot condition, and there is no indication or evidence that this condition has impacted his ability to work and/or his earning capacity. Therefore, a current disability has not been shown. Although the Veteran had exposure to cold weather during service, there is no evidence that the Veteran was ever treated for frostbite during military service. Likewise, the current evidence does not demonstrate that the Veteran has any current residual cold injuries of his feet. Although the Veteran is competent to state the symptoms that he suffers, he lacks the medical expertise to render a diagnosis with respect to cold injury residuals of the feet in this case. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007) (noting general competence to testify as to symptoms but not to provide medical diagnosis); see also Jones v. West, 12 Vet. App. 383, 385 (1999) (where the determinative issue is one of medical causation or a diagnosis, only those with specialized medical knowledge, training, or experience are competent to provide evidence on the issue). In this respect, the most competent and probative evidence with regard to a current disability due to cold injury is the July 2011 VA examiner. He did not find such an injury existed at that time, and no other evidence demonstrates that such an injury has been present at any time during the appeal period. Accordingly, service connection for residuals of frostbite of the feet must be denied at this time based on the evidence of record. See 38 C.F.R. §§ 3.102, 3.303; McClain v. Nicholson, 21 Vet. App. 319 (2007) (the requirement that a current disability be present is satisfied “when a claimant 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.”); Brammer v. Derwinski, 3 Vet. App. 223 (1995) (Congress specifically limited entitlement for service-connected disease or injury to cases where such incidents had resulted in a disability). Increased Rating Claims Disability ratings are determined by applying the criteria set forth in the VA’s Schedule for Rating Disabilities, which is based on the average impairment of earning capacity. Individual disabilities are assigned separate diagnostic codes. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. The basis of disability evaluations is the ability of the body as a whole, or of the psyche, or of a system or organ of the body to function under the ordinary conditions of daily life including employment. 38 C.F.R. § 4.10. In determining the severity of a disability, the Board is required to consider the potential application of various other provisions of the regulations governing VA benefits, whether or not they were raised by the Veteran, as well as the entire history of the Veteran’s disability. 38 C.F.R. §§ 4.1, 4.2; Schafrath v. Derwinski, 1 Vet. App. 589, 595 (1991). If the disability more closely approximates the criteria for the higher of two ratings, the higher rating will be assigned; otherwise, the lower rating is assigned. 38 C.F.R. § 4.7. It is not expected that all cases will show all the findings specified; however, findings sufficiently characteristic to identify the disease and the disability therefrom and coordination of rating with impairment of function will be expected in all instances. 38 C.F.R. § 4.21. In deciding this appeal, the Board has considered whether separate ratings for different periods of time, based on the facts found, are warranted, a practice of assigning ratings referred to as “staging the ratings.” See Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2008). Tinnitus On appeal, the Veteran asserts that he should have an increased evaluation for his service-connected tinnitus. The Veteran’s tinnitus has been assigned a 10 percent evaluation under Diagnostic Code 6260 throughout the appeal period. In Smith v. Nicholson, 19 Vet. App. 63, 78, (2005), the Court held that the pre-1999 and pre-June 13, 2003, versions of Diagnostic Code 6260 required the assignment of dual ratings for bilateral tinnitus. VA appealed this decision to the U.S. Court of Appeals for the Federal Circuit (Federal Circuit). In Smith v. Nicholson, 451 F.3d 1344 (Fed. Cir. 2006), the Federal Circuit concluded that the Court erred in not deferring to VA’s interpretation of its own regulations, 38 C.F.R. § 4.25 and Diagnostic Code 6260, which limit a veteran to a single disability rating for tinnitus, regardless of whether the tinnitus is unilateral or bilateral. The Veteran’s service-connected tinnitus is currently evaluated as 10 percent disabling, which is the maximum evaluation available under Diagnostic Code 6260. See 38 C.F.R. § 4.87; see also Smith v. Nicholson, 451 F.3d 1344 (Fed. Cir. 2006) (VA’s interpretation of its own regulations, 38 C.F.R. § 4.25(b) and Diagnostic Code 6260, limits a Veteran to a single disability rating for tinnitus, regardless of whether the tinnitus is unilateral or bilateral); VAOPGCPREC 2-2003 (Diagnostic Code 6260 authorizes a single schedular 10 percent disability rating for tinnitus, regardless of whether the tinnitus is perceived as unilateral or bilateral). Where, as here, there is a lack of entitlement under the law, the claim for a schedular evaluation in excess of 10 percent for tinnitus, to include separate bilateral schedular ratings, is denied. See Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). GERD In a March 2010 rating decision, service connection for GERD with IBS was granted and assigned a with a 30 percent evaluation, effective August 18, 2009—the date of receipt of his claim for service connection. The AOJ reduced the Veteran’s GERD with IBS disability evaluation to 10 percent disabling, effective March 1, 2013, during the pendency of the appeal. The evaluations have been assigned under DC 7399-7346. First, the Board will address the propriety of that reduction. A Veteran’s disability rating shall not be reduced unless an improvement in the disability is shown to have occurred. 38 C.F.R. § 3.344. The United States Court of Appeals for Veterans Claims (Court) has consistently held that when a disability rating is reduced without following the applicable regulations, the reduction is void ab initio. See Greyzck v. West, 12 Vet. App. 288, 292 (1999). Prior to reducing a Veteran’s disability rating, VA is required to comply with several regulations applicable to all rating-reduction cases, regardless of the rating level or the length of time that the rating has been in effect. See 38 C.F.R. §§ 4.1, 4.2, 4.10, 4.13; see Brown v. Brown, 5 Vet. App. 413, 420 (1993). These provisions impose a clear requirement that VA rating reductions be based upon review of the entire history of a Veteran’s disability. See Schafrath v. Derwinski, 1 Vet. App. 589, 594 (1991). Such review requires VA to ascertain, based upon review of the entire recorded history of the condition, whether the evidence reflects an actual change in the disability and whether the examination reports reflecting such change are based upon thorough examinations. Thus, in any rating-reduction case, not only must it be determined that an improvement in a disability has actually occurred but also that that improvement actually reflects an improvement in the Veteran’s ability to function under the ordinary conditions of life and work. See Faust v. West, 13 Vet. App. 342, 350 (2000). In certain rating reduction cases, VA benefits recipients are to be afforded greater protections, set forth in 38 C.F.R. § 3.344(a) and (b). These provisions provide that rating agencies will handle cases affected by change of medical findings so as to produce the greatest degree of stability of disability ratings consistent with the laws and VA regulations governing disability compensation and pension. The provisions of 38 C.F.R. § 3.344(c) specify that these considerations are required for ratings that have continued for long periods at the same level (five years or more), and that they do not apply to disabilities which have not become stabilized and are likely to improve. Reexaminations disclosing improvement in these disabilities will warrant a reduction in rating. As an initial matter, 38 C.F.R. § 3.344(a) and (b) are not applicable in the case at bar as the Veteran’s 30 percent rating for his GERD with IBS as that rating was not in effect for greater than 5 years. Where a rating reduction was made without observance of law, the reduction must be vacated and the prior rating restored. Schafrath, 1 Vet. App. at 595. In considering the propriety of a reduction, the Board must focus on the evidence available to the RO at the time the reduction was effectuated (although post-reduction medical evidence may be considered in the context of considering whether actual improvement was demonstrated). Dofflemyer v. Derwinski, 2 Vet. App. 277, 281-82 (1992). The Veteran need not demonstrate that he is entitled to retain the higher rating; rather, it must be shown by a preponderance of the evidence that the RO’s reduction was warranted. See Kitchens v. Brown, 7 Vet. App. 320 (1995); Brown v. Brown, 5 Vet. App. 413, 419 (1993). In the August 2012 rating decision, the AOJ found that the August 2012 VA examination for esophageal conditions demonstrated an improvement in the Veteran’s condition; specifically, it was noted that the examination showed improvement with the Veteran’s symptoms of pyrosis and vomiting. Based on a review of the history of the Veteran’s GERD with IBS, and the August 2012 VA examination, the AOJ found that there is no evidence to support his 30 percent evaluation under 7399-7346. Although the AOJ found that there was an improvement in the Veteran’s GERD, the AOJ did not analyze whether there was an actual improvement “in the Veteran’s ability to function under the ordinary conditions of life and work.” Because the AOJ in this case failed to make the appropriate findings with regard to whether actual improvement was found with respect to the Veteran’s GERD with IBS during the appeal period, the Board must find that the reduction is void ab initio in this case; the 30 percent evaluation is therefore restored throughout the appeal period at this time. See 38 C.F.R. § 3.344; Dofflemyer, supra. Right Ankle Disability In determining the appropriate evaluation for musculoskeletal disabilities, particular attention is focused on functional loss of use of the affected part. Under 38 C.F.R. § 4.40, functional loss may be due to pain, supported by adequate pathology and evidenced by visible behavior on motion. Weakness is as important as limitation of motion, and a part that becomes painful on use must be regarded as seriously disabled. Under 38 C.F.R. § 4.45, factors of joint disability include increased or limited motion, weakness, fatigability, or painful movement, swelling, deformity or disuse atrophy. Under 38 C.F.R. § 4.59, painful motion is an important factor of joint disability and actually painful joints are entitled to at least the minimum compensable rating for the joint. Where functional loss is alleged due to pain upon motion, the provisions of 38 C.F.R. § 4.40 and § 4.45 must be considered. DeLuca v. Brown, 8 Vet. App. 202, 207-08 (1995). Within this context, a finding of functional loss due to pain must be supported by adequate pathology, and evidenced by the visible behavior of the claimant. Johnston v. Brown, 10 Vet. App. 80, 85 (1997). Pain itself does not rise to the level of functional loss as contemplated by § 4.40 and § 4.45, but may result in functional loss only if it limits the ability to perform the normal working movements of the body with normal excursion, strength, coordination or endurance. Mitchell v. Shinseki, 25 Vet. App. 32, 43 (2011). Ankylosis is stiffening or fixation of a joint as the result of a disease process, with fibrous or bony union across the joint. Dinsay v. Brown, 9 Vet. App. 79, 81 (1996). The Veteran’s ankle disability was awarded service connection beginning August 18, 2009, and has been assigned a 10 percent evaluation under DC 5271-5010 throughout the appeal period. Degenerative or traumatic arthritis, established by X-ray findings, is rated on the basis of limitation of motion under the appropriate diagnostic code for the specific joint or joints involved. When, however, the limitation of motion of the specific joint or joints involved is noncompensable under the appropriate diagnostic codes, a rating of 10 percent is for application for each such major joint affected by limitation of motion. 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, DC 5003 (degenerative arthritis) and DC 5010 (traumatic arthritis). For the purpose of rating disability from arthritis, the ankle is considered a major joint. 38 C.F.R. § 4.45. Under DC 5271, for limitation of motion of the ankle, a 10 percent rating is assigned for moderate limitation of motion, and a 20 percent rating for marked limitation of motion. 38 C.F.R. § 4.71A, DC 5271. Normal ankle motion is dorsiflexion to 20 degrees, and plantar flexion to 45 degrees. 38 C.F.R. § 4.71a, Plate II. In a January 2010 VA examination for joints, the report indicates that the Veteran complained of right ankle pain. He stated that he is able to walk 1-2 blocks and has flare-ups approximately once a week, usually caused by standing or twisting his ankle. He stated that he is a disabled epileptic, so he does not work and this does not affect his job. Diagnostic testing of his right ankle was normal, and examination of the right ankle shows tenderness to palpation over the lateral ligamentous complex. The report indicates that the Veteran’s ankle has 15 degrees of dorsiflexion and 30 degrees of plantar flexion, and that after repetitive range of motion, neither his pain nor range of motion changed. In a July 2011 VA examination for the joints, it indicates that the Veteran describes the pain as a 10 out of 10. He reported occasional locking and catching of his ankle as well as some giving way. He can only ambulate 15 minutes or one to two blocks without difficulty, and he does not wear a brace or us an assistive device. He reports flare-ups where the pain increases. The Veteran reported that the pain affects his activities of daily living and his ability to perform his job as a carpenter. The report indicates that his ankle has 20 degrees dorsiflexion, 45 degrees plantar flexion, and no varus/valgus malalignment of the calcaneus. The examiner stated that there was pain on examination of all the joints, and that it was conceivable that the pain could further limit function, but that it is not feasible to attempt to express the limitation in terms of additional limitation of motion “as these matters cannot be determined with any degree of medical certainty.” In a January 2013 ankle conditions DBQ, it indicates that the Veteran reported current pain as 8 out of 10 in the lateral aspect of ankle and reported symptoms of swelling, popping, and episodes of instability. He reported flare-ups, occurring 1-2 times a week, caused by cold, stress, and stairs, lasting 6 to 7 days. The report indicates right ankle plantar flexion to 35 and dorsiflexion (extension) to 10. The report indicates that the Veteran was able to perform repetitive use testing with 3 repetitions, and there was no additional limitation in ROM of the ankle. It indicates that the Veteran has functional loss and/or functional impairment of the right ankle, noting less movement than normal, incoordination, impaired ability to execute skilled movements smoothly, and pain on movement. The report indicates no ankylosis. The report indicates that the Veteran’s ankle condition decreases the ability to perform prolonged standing and walking activities. In an August 2015 VA examination note addendum to the January 2013 VA examination, it indicates that the Veteran reported having flare-ups but that the report did not indicate if there would be any additional limitation of motion during a flare-up. The examiner indicates that he has reviewed the Veteran’s “virtual files and recent examination” and that he “cannot report further loss of ROM due to pain on use, repeated use over a period of time, or flare-ups of these conditions without resorting to mere speculation as this would require an examination of the Veteran during flare-ups.” The Veteran first reported pain and flare-ups at the January 2010 VA examination, at his first examination after filing his claim. He has continued to report flare-ups, resulting in increased pain. Considering the Veteran’s credible reports of pain and resulting functional limitations, the Board finds that his right ankle condition has been manifested by marked limitation of motion for the entire appeal period. As such, the Veteran’s right ankle disability most closely approximates the 20 percent rating criteria for the entire appeal period. The Board recognizes that these examinations do not comply with Correia, as they do not indicate testing on both active and passive motion and on weight and non-weight-bearing or of the Veteran’s left ankle. Here, however, the Board is granting a 20 percent rating for limitation of motion and an evaluation in excess of 20 percent is not available due to more severe symptoms during a flare-up or limited range of motion, as such a rating would require a finding of ankylosis. As the outcome could not change due to this lack of explanation or specific testing by the examiners, no further development is necessary. Furthermore, a rating in excess of 20 percent is not warranted because a higher evaluation for the ankle would require ankylosis of the ankle under DC 5270. The Veteran’s right ankle is not shown to be ankylosed at any time during the appeal period, as noted by the VA examinations demonstrating that his ankle has some range of motion. Based on the foregoing evidence, the Board finds that a 20 percent evaluation for the Veteran’s ankle condition is warranted for the entire appeal period. See 38 C.F.R. §§ 4.7, 4.71a, DC 5271. Hemorrhoids The Veteran’s ankle disability was awarded service connection beginning August 18, 2009, and has been assigned a noncompensable evaluation under DC 7736 throughout the appeal period. DC 7336 provides ratings for internal or external hemorrhoids. Mild or moderate hemorrhoids are rated as noncompensable. Large or thrombotic hemorrhoids, irreducible, with excessive redundant tissue, evidencing frequent recurrences, are rated 10 percent disabling. Hemorrhoids with persistent bleeding and with secondary anemia, or with fissures, are rated 20 percent disabling. 38 C.F.R. § 4.114. In the January 2013 DBQ for rectum and anus conditions (including hemorrhoids), the report indicates that the Veteran uses over-the-counter cream twice a week to treat his hemorrhoids. His hemorrhoids are described as mild or moderate external hemorrhoids in the perianal rim. The examiner remarked that, as mentioned on his August examination, there was a suspicion of malingering and overexaggerating of symptoms and that he carries diagnosis of histrionic personality. Based on the above, the Veteran’s hemorrhoids are mild to moderate, which is consistent with the current noncompensable rating. See 38 C.F.R. § 4.114, DC 7336. There is no evidence of large or thrombotic hemorrhoids, irreducible, with excessive redundant tissue, persistent bleeding, secondary anemias, or fissures as required for a higher rating. Thus, the record does not show symptoms warranting a compensable rating and the Veteran’s claim must be denied at this time based on the evidence of record. See 38 C.F.R. §§ 4.7, 4.114, DC 7336. In so reaching the above conclusions, the Board has appropriately applied the benefit of the doubt doctrine in this case. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. REASONS FOR REMAND With regards to the Veteran’s bilateral hearing loss, the Board reflects that the Veteran is shown to have a bilateral hearing loss disability under 38 C.F.R. § 3.385. The Board reflects that Veteran initially was noted in an April 2010 VA examination to have normal hearing, although in a September 2011 VA examination he had a bilateral hearing loss disability; the September 2011 VA examiner opined that it would be mere speculation as to whether the Veteran’s hearing loss was related to his noise exposure in service. This opinion is inadequate and a remand is necessary in order to obtain another VA examination that adequately addresses whether the Veteran’s bilateral hearing loss is related to military service. See Barr v. Nicholson, 21 Vet. App. 303, 311 (2007); Kowalski v. Nicholson, 19 Vet. App. 171, 179 (2005) (a VA examination must be based on an accurate factual premise). With respect to the Veteran’s TBI claim, the Board reflects that no VA examination has been afforded the Veteran with respect to his claimed TBI. The Veteran has reported in his VA treatment records that he suffered a TBI during military service in a parachute accident; the Veteran’s Form DD-214 documents that he has a Parachutist Badge. Based on the foregoing evidence, the Board finds that the low threshold for obtaining a VA examination regarding the Veteran’s TBI claim have been met in this case and a remand is necessary in order for such to be accomplished. See 38 U.S.C. § 5103A(d); McLendon v. Nicholson, 20 Vet. App. 79, 81 (2006). Regarding the Veteran’s GERD with IBS, in a July 2016 statement from the Veteran’s attorney, he states that the Veteran reported that his GERD was getting worse and impacts him leaving the house. He stated that he wears Depends but still does not want to go out. Based on this statement, the Board finds that a remand is necessary of the GERD claim in order to obtain another VA examination that adequately addresses the current severity of that disability. See Palczewski v. Nicholson, 21 Vet. App 174, 181-82 (2007); Snuffer v. Gober, 10 Vet. App. 400, 403 (1997); see also Bolton v. Brown, 8 Vet. App. 185, 191 (1995) (VA must provide a new examination where a veteran claims the disability is worse than when originally rated and the available evidence is too old to adequately evaluate the current severity); Caffrey v. Brown, 6 Vet. App. 377, 381 (1995). The Board reflects that the Veteran’s noted claimed psychiatric—to include PTSD and somatization disorders—headaches and seizure disorders are inextricably intertwined with the remanded TBI claim, and are also remanded at this time. See Henderson v. West, 12 Vet. App. 11, 20 (1998); Harris v. Derwinski, 1 Vet. App. 180, 183 (1991). Additionally, the Veteran’s TDIU claim is also intertwined with the above and is also remanded at this time. See Id. However, on remand, the AOJ should additionally complete all necessary development, to include requesting a VA Form 21-8940 from the Veteran. Finally, on remand, the Board also finds that any outstanding VA treatment records should also be obtained. See 38 U.S.C. § 5103A(b), (c); 38 C.F.R. § 3.159(b); see also Sullivan v. McDonald, 815 F.3d 786 (Fed. Cir. 2016) (where the Veteran “sufficiently identifies” other VA medical records that he or she desires to be obtained, VA must also seek those records even if they do not appear potentially relevant based upon the available information); Bell v. Derwinski, 2 Vet. App. 611 (1992). The matter is REMANDED for the following action: 1. Obtain any and all VA treatment records not already associated with the claims file from the Memphis VA Medical Center, or any other VA medical facility that may have treated the Veteran and associate those documents with the claims file. 2. Ensure that the Veteran is scheduled for a VA audiology examination. The claims folder must be made available to and be reviewed by the examiner. All tests deemed necessary should be conducted and the results reported in detail. The examiner should obtain information regarding the Veteran’s noise exposure during and after military service. Following audiometric testing, the examiner should indicate whether the Veteran has any hearing loss disability under 38 C.F.R. § 3.385, bilaterally. Then, the examiner should opine whether any bilateral hearing loss at least as likely as not (50 percent or greater probability) began in or is otherwise related to military service, to include any noise exposure therein. Specifically, the examiner needs to address whether the Veteran’s hearing loss is related to his noise exposure during military service, regardless of whether such was noted until many years after military service. The examiner must also additionally discuss any hearing threshold shifts noted during service and whether such are demonstrable of a hearing loss that began during military service. Next, the examiner should also opine whether the Veteran’s hearing loss at least as likely as not is (a) caused by; or, (b) aggravated (i.e., chronically worsened) by his service-connected tinnitus. The examiner is reminded that he or she must address both prongs (a) and (b) above. The examiner should consider the Veteran’s statements regarding onset of symptomatology and continuity of symptomatology since discharge from service, as well as any other pertinent evidence, as appropriate. The examiner should also consider any other pertinent evidence of record, as appropriate. All findings should be reported in detail and all opinions must be accompanied by a clear rationale. 3. Ensure that the Veteran is scheduled for a VA examination with an appropriate TBI specialist in order to determine whether the Veteran’s claimed residuals of a TBI, including any headache, seizure, or psychiatric disorders, are related to his military service. The claims folder must be made available to and be reviewed by the examiner. All tests deemed necessary should be conducted and the results reported in detail. Following examination of the Veteran and review of the claims file, the examiner must specifically state whether the Veteran has any residuals of a TBI. In so discussing, the examiner should also address whether his claimed headaches, seizures and/or psychiatric disorders are a separate and distinct disorders or whether such are complications of a TBI. With regards to the Veteran’s somatization disorder, a separate psychiatric examination should be accomplished is deemed appropriate with an appropriate examiner. The examiner should additionally indicate whether there is any diagnosis of PTSD under the DSM-V and if so should indicate the stressor on which that diagnosis is based. The examiner should additionally address whether the Veteran’s diagnosis of somatization disorder (claimed as a pain syndrome, fatigue, etc.) is appropriate. The examiner should additionally address any such somatic symptoms present are features of a chronic undiagnosed multi-symptom illness under 38 C.F.R. § 3.317 related to his service in Saudi Arabia and/or whether such are manifestations of subjective symptoms of a TBI. Then, for residuals of a TBI and/or separate and distinct headache, seizure, or psychiatric disorder that is found not to be a residual of a TBI in service, the examiner must opine whether it is at least as likely as not (50 percent or greater probability), began in or are otherwise etiologically related to his period of active service, to include any parachute accident in 1993 during military service. Next, the examiner should also opine whether any separate and distinct psychiatric disorder, including somatization disorder, at least as likely as not is (a) caused by; or, (b) aggravated (i.e., chronically worsened) by his service-connected depressive disorder. The examiner is reminded that he or she must address both prongs (a) and (b) above. The examiner must consider the Veteran’s lay statements regarding onset of symptomatology and any continuity of symptomatology since onset and/or since discharge from service. The examiner should also consider any other pertinent evidence of record, as appropriate. All findings should be reported in detail and all opinions must be accompanied by a clear rationale. 4. Ensure that the Veteran is scheduled for a VA examination in order to determine the current severity of his service-connected GERD and IBS. The claims file must be made available to and be reviewed by the examiner in conjunction with the examination. Specifically, the examiner should complete the two appropriate GERD and IBS Disability Benefits Questionnaires (DBQs) for those disabilities, and should indicate any and all symptomatology present for the Veteran’s GERD with IBS disability. The examiner should additionally address the Veteran’s lay statements regarding symptomatology that he suffers, including wearing Depends. All findings should be reported in detail and all opinions must be accompanied by a clear rationale. 5. Complete proper development of the claim for TDIU, to include sending the Veteran proper notice and an Application for TDIU, VA Form 21-8940, and request that he submit that completed VA Form as well as any other information regarding his education and employment history since his discharge from military service. Inform him that a failure to provide additional evidence respecting his TDIU claim, including an accurate VA Form 21-8940, may result in his TDIU claim being denied. MARTIN B. PETERS Acting Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD A. Labi, Associate Counsel