Citation Nr: 18152845 Decision Date: 11/27/18 Archive Date: 11/26/18 DOCKET NO. 13-23 357 DATE: November 27, 2018 ORDER Prior to May 4, 2017, entitlement to an initial disability rating of 10 percent, but no higher, for insomnia is granted, ofsubject to the laws and regulations governing the payment of monetary benefits. Since May 4, 2017, entitlement to an initial disability rating in excess of 50 percent for insomnia is denied. Entitlement to an initial disability rating in excess of 30 percent prior to May 4, 2018, and in excess of 50 percent thereafter, for bilateral pes planus with metatarsalgia is denied. Entitlement to a compensable rating prior to April 28, 2011, and in excess of 10 percent thereafter, for a left foot bunion is denied. Entitlement to a compensable rating prior to April 28, 2011, and in excess of 10 percent thereafter, for a right foot bunion is denied. Entitlement to an effective date earlier than April 10, 2012, for the award of service connection for thoracolumbar spine degenerative disc disease with arthritis and strain is denied. Entitlement to an effective date earlier than July 14, 2016, for the award of service connection for cervical spine degenerative arthritis, stenosis and intervertebral disc syndrome is denied. Entitlement to an effective date earlier than July 14, 2016, for the award of service connection for right upper extremity radiculopathy is denied. Entitlement to an effective date earlier than July 14, 2016, for the award of service connection for left upper extremity radiculopathy is denied. Entitlement to an effective date of December 7, 2012, for the award of service connection for neurogenic urinary frequency and incontinence is granted. Entitlement to an effective date of September 12, 2014, for the award of service connection for right lower extremity radiculopathy of the femoral nerve is granted. Entitlement to an effective date of September 12, 2014, for the award of service connection for right lower extremity radiculopathy of the sciatic nerve is granted. Entitlement to an effective date of September 12, 2014, for the award of service connection for left lower extremity radiculopathy of the femoral nerve is granted. Entitlement to an effective date of September 12, 2014, for the award of service connection for left lower extremity radiculopathy of the sciatic nerve is granted. REMANDED Entitlement to service connection for bilateral hearing loss is remanded. Entitlement to service connection for a right ear disability is remanded. Entitlement to an initial compensable disability rating prior to June 10, 2016, and a rating in excess of 10 percent thereafter, for a left ankle strain is remanded. Entitlement to an initial compensable disability rating prior to June 10, 2016, and a rating in excess of 10 percent thereafter, for a right ankle strain is remanded. Entitlement to an initial disability rating in excess of 20 percent for neurogenic urinary frequency and incontinence is remanded. Entitlement to an initial disability rating in excess of 40 percent for cervical spine degenerative arthritis, stenosis and intervertebral disc syndrome is remanded. FINDINGS OF FACT 1. Prior to May 4, 2017, symptoms of the Veteran’s insomnia were being controlled with continuous medication. 2. Since May 4, 2017, symptoms of the Veteran’s insomnia were not manifested by occupational and social impairment with deficiencies in most areas or with total occupational and social impairment. 3. Prior to May 4, 2018, symptoms of the Veteran’s bilateral pes planus with metatarsalgia have been best characterized as severe without marked pronation, extreme tenderness of plantar surfaces of the feet, marked inward displacement, or severe spasm of the tendo achillis on manipulation, that are not improved by orthopedic shoes or appliances. 4. Since May 4, 2018, the Veteran has been in receipt of the highest schedular evaluation available for his bilateral pes planus with metatarsalgia. 5. Prior to April 28, 2011, symptoms of the Veteran’s bilateral foot bunions have been moderate at worst, and the bunions have not been operated upon with resection of metatarsal head. 6. Since April 28, 2011, the Veteran has been in receipt of the highest schedular evaluations available for his bilateral foot bunions. 7. The Veteran’s claim seeking entitlement to service connection for a lumbar spine disability was initially denied in a July 2002 rating decision that became final. A rating decision dated in September 2010 continued that denial. The Veteran did not appeal that decision or submit new and material evidence within one year; it became final. 8. In a July 2016 rating decision, the Veteran was granted service connection for his now service-connected thoracolumbar spine degenerative disc disease with arthritis and strain; the RO assigned the effective date for the Veteran’s disability as April 10, 2012, the date the application to reopen was received. 9. The earliest document in the claims file that may be accepted as a claim for entitlement to service connection for a cervical spine disability and associated radiculopathy of the bilateral upper extremities is an intent to file for compensation benefits received from the Veteran on July 14, 2016. 10. The earliest evidence confirming the Veteran experienced symptoms of his service-connected neurogenic urinary frequency and incontinence is dated December 7, 2012. 11. The earliest evidence confirming the Veteran experienced symptoms of his service-connected bilateral lower extremity radiculopathy is dated December 7, 2012. CONCLUSIONS OF LAW 1. Prior to May 4, 2017, the criteria for entitlement to an initial disability rating of 10 percent, but no higher, for insomnia have been satisfied. 38 U.S.C. § 1155, 5107; 38 C.F.R. § 4.130, Diagnostic Code (DC) 9413. 2. Since May 4, 2017, the criteria for entitlement to an initial disability rating in excess of 50 percent for insomnia have not been satisfied. 38 U.S.C. § 1155, 5107; 38 C.F.R. § 4.130, Diagnostic Code (DC) 9413. 3. The criteria for an initial disability rating in excess of 30 percent prior to May 4, 2018, and in excess of 50 percent thereafter, for bilateral pes planus with metatarsalgia have not been met. 38 U.S.C. § 1155, 5107; 38 C.F.R. § 3.102, 4.7, 4.10, 4.71a, Diagnostic Code (Code) 5276. 4. The criteria for entitlement to a compensable rating prior to April 28, 2011, and in excess of 10 percent thereafter, for a left foot bunion have not been met. 38 U.S.C. § 1155, 5107; 38 C.F.R. § 3.102, 4.7, 4.10, 4.71a, Diagnostic Code (Code) 5280. 5. The criteria for entitlement to a compensable rating prior to April 28, 2011, and in excess of 10 percent thereafter, for a right foot bunion have not been met. 38 U.S.C. § 1155, 5107; 38 C.F.R. § 3.102, 4.7, 4.10, 4.71a, Diagnostic Code (Code) 5280. 6. The criteria for entitlement to an earlier effective date prior to April 10, 2012, for the award of service connection for thoracolumbar spine degenerative disc disease with arthritis and strain, have not been satisfied. 38 U.S.C. §§ 5101, 5110, 7104; 38 C.F.R. §§ 3.1 (p), 3.155, 3.400. 7. The criteria for entitlement to an effective date prior to July 14, 2016, for the award of service connection for cervical spine degenerative arthritis, stenosis and intervertebral disc syndrome have not been satisfied. 38 U.S.C. §§ 5101, 5110, 7104; 38 C.F.R. §§ 3.1 (p), 3.155, 3.400. 8. The criteria for entitlement to an effective date prior to July 14, 2016, for the award of service connection for right upper extremity radiculopathy have not been satisfied. 38 U.S.C. §§ 5101, 5110, 7104; 38 C.F.R. §§ 3.1 (p), 3.155, 3.400. 9. The criteria for entitlement to an effective date prior to July 14, 2016, for the award of service connection for left upper extremity radiculopathy have not been satisfied. 38 U.S.C. §§ 5101, 5110, 7104; 38 C.F.R. §§ 3.1 (p), 3.155, 3.400. 10. The criteria for entitlement to an earlier effective date of December 7, 2012, for the award of service connection for neurogenic urinary frequency and incontinence have been satisfied. 38 U.S.C. §§ 5101, 5110, 7104; 38 C.F.R. §§ 3.1 (p), 3.155, 3.400. 11. The criteria for entitlement to an earlier effective date of September 12, 2014, for the award of service connection for right lower extremity radiculopathy of the femoral nerve have been satisfied. 38 U.S.C. §§ 5101, 5110, 7104; 38 C.F.R. §§ 3.1 (p), 3.155, 3.400. 12. The criteria for entitlement to an earlier effective date of September 12, 2014, for the award of service connection for right lower extremity radiculopathy of the sciatic nerve have been satisfied. 38 U.S.C. §§ 5101, 5110, 7104; 38 C.F.R. §§ 3.1 (p), 3.155, 3.400. 13. The criteria for entitlement to an earlier effective date of September 12, 2014, for the award of service connection for left lower extremity radiculopathy of the femoral nerve have been satisfied. 38 U.S.C. §§ 5101, 5110, 7104; 38 C.F.R. §§ 3.1 (p), 3.155, 3.400. 14. The criteria for entitlement to an earlier effective date of September 12, 2014, for the award of service connection for left lower extremity radiculopathy of the sciatic nerve have been satisfied. 38 U.S.C. §§ 5101, 5110, 7104; 38 C.F.R. §§ 3.1 (p), 3.155, 3.400 REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from November 1990 to April 1998. In October 2015 the Board denied claims for service connection for a right ear disability, to reopen a previously denied claim for bilateral hearing loss, and for entitlement to increased ratings for his service-connected bilateral pes planus and bilateral foot bunion disabilities. The Veteran appealed the denials, and in September 2016 the United States Court of Appeals for Veterans Claims (Court) granted a Joint Motion for Partial Remand relative to those issues. Following the Board’s May 2017 remand, service connection was granted in a June 2018 rating decision for bilateral hip trochanteric bursitis, left knee degenerative arthritis with strain and patellofemoral syndrome, and right knee strain and patellofemoral syndrome. As such, these issues are no longer before the Board. Increased Rating Disability evaluations are determined by comparing a veteran’s present symptoms with criteria set forth in the VA’s Schedule for Rating Disabilities (Rating Schedule), which is based on average impairment in earning capacity. 38 U.S.C. § 1155; 38 C.F.R. Part 4. Separate diagnostic codes identify the various disabilities. Where service connection has already been established and an increase in the disability rating is at issue, it is the present level of disability that is of primary concern. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). Nevertheless, where the evidence contains factual findings that show a change in the severity of symptoms during the rating period on appeal, the Board will assign staged ratings for separate periods of time. Hart v. Mansfield, 21 Vet. App. 505 (2007). 1. Entitlement to an initial compensable disability rating prior to May 4, 2017, and in excess of 50 percent thereafter, for insomnia The issue before the Board is whether an initial compensable disability rating is warranted for the period prior to May 4, 2017, and whether a rating in excess of 50 percent is warranted after that date. The Veteran contends that an increased rating is warranted as he experienced severe symptoms of insomnia. As will be discussed in more detail below, the Board concludes that the Veteran is entitled to a disability rating of 10 percent, but no higher, for the period prior to May 4, 2017. However, a disability rating in excess of 50 percent for the period since May 4, 2017, is not warranted. The Veteran’s insomnia is currently evaluated under DC 9413, in accordance with the General Rating Formula for Mental Disorders. See 38 C.F.R. § 4.130. Pursuant to these rating criteria, a noncompensable rating is warranted when a mental condition has been formally diagnosed, but symptoms are not severe enough either to interfere with occupational and social functioning or to require continuous medication. A 10 percent disability rating requires evidence of the following: Occupational and social impairment due to mild or transient symptoms which decrease work efficiency and ability to perform occupational tasks only during periods of significant stress, or; symptoms controlled by continuous medication. A 30 percent disability rating requires: Occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks (although generally functioning satisfactorily, with routine behavior, self-care, and conversation normal), due to such symptoms as: depressed mood, anxiety, suspiciousness, panic attacks (weekly or less often), chronic sleep impairment, and mild memory loss (such as forgetting names, directions, or recent events). A 50 percent disability rating requires: Occupational and social impairment with reduced reliability and productivity due to such symptoms as: flattened affect; circumstantial, circumlocutory, or stereotyped speech; panic attacks more than once a week; difficulty in understanding complex commands; impairment of short- and long-term memory (e.g., retention of only highly learned material, forgetting to complete tasks); impaired judgment; impaired abstract thinking; disturbances of motivation and mood; difficulty in establishing and maintaining effective work and social relationships. A 70 percent disability rating requires: 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 worklike setting); inability to establish and maintain effective relationships. The criteria for a 100 percent rating are: 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. 38 C.F.R. § 4.130, DC 9411. When determining the appropriate disability evaluation to assign, the Board’s primary consideration is a veteran’s symptoms, but it must also make findings as to how those symptoms impact a veteran’s occupational and social impairment. Vazquez-Claudio v. Shinseki, 713 F.3d 112 (Fed. Cir. 2013); Mauerhan v. Principi, 16 Vet. App. 436 (2002). Because the use of the term “such as” in the rating criteria demonstrates that the symptoms after that phrase are not intended to constitute an exhaustive list, the Board need not find the presence of all, most, or even some, of the enumerated symptoms to award a specific rating. Mauerhan, 16 Vet. App. at 442; see also Sellers v. Principi, 372 F.3d 1318 (Fed. Cir. 2004). Nevertheless, all ratings in the general rating formula are also associated with objectively observable symptomatology and the plain language of the regulation makes it clear that the veteran’s impairment must be “due to” those symptoms; a veteran may only qualify for a given disability by demonstrating the particular symptoms associated with that percentage, or others of similar severity, frequency, and duration. Vazquez-Claudio, 713 F.3d at 118. VA had previously adopted the American Psychiatric Association: Diagnostic and Statistical Manual for Mental Disorders, Fourth Edition (DSM-IV), for rating purposes. VA implemented DSM-5, effective August 4, 2014, and the Secretary, VA, determined that DSM-5 applies to claims certified to the Board on and after August 4, 2014. See 79 Fed. Reg. 45,093, 45,094 (Aug. 4, 2014). Effective August 4, 2014, VA also amended the regulations regarding the evaluation of mental disorders by removing outdated references to DSM-IV. The amendments replace those references with references to the recently updated DSM-5. However, according to the DSM-5, clinicians do not typically assess GAF scores. The DSM-5 introduction states that it was recommended that the GAF be dropped from DSM-5 for several reasons, including its conceptual lack of clarity (i.e., including symptoms, suicide risk, and disabilities in its descriptors) and questionable psychometrics in routine practice. Turning to the evidence of record, a September 2014 private treatment record noted the Veteran had significant difficulty sleeping due to his chronic pain, adding that the Veteran awoke at least three times during a six-hour period during the night to reposition himself because of pain and a need to constantly urinate. A November 2015 statement from a private treatment provider noted the Veteran was suffering from a sleep disturbance secondary to his service-connected low back pain. A private treatment record dated that same month noted the Veteran was having ongoing significant difficulty sleeping because of his pain symptoms, for which he was prescribed Lyrica. He reported getting from two-and-one-half to three hours of sleep with the use of the medication. A December 2016 VA neck conditions examination noted that during flare-ups of his cervical spine disability, the Veteran’s sleep was limited due to increased pain. A May 4, 2017, posttraumatic stress disorder (PTSD) disability benefits questionnaire from a private examiner noted diagnoses of PTSD and major depressive disorder. The examiner noted the Veteran experienced insomnia due to degenerative disc disease. While the examiner provided a summary of the occupational and social impairment with respect to the Veteran’s mental health diagnoses, no assessment was provided as to the level of impairment caused by the Veteran’s insomnia. In May 2018, the Veteran underwent a VA examination to evaluate the severity of his insomnia. The examiner summarized the Veteran’s level of occupational and social impairment with respect to this condition as impairment due to mild or transient symptoms which decreased work efficiency and ability to perform occupational tasks only during periods of significant stress, or symptoms controlled by medication. The examiner noted that the Veteran experienced symptoms of depressed mood, anxiety and chronic sleep impairment. Based on the evidence of record, the Board finds that a disability rating of 10 percent is warranted for the Veteran’s insomnia, as he was prescribed continuous medication to treat symptoms of his disability. However, a rating in excess of 10 percent is not warranted for this period, as the medical evidence of record does not establish that symptoms of the Veteran’s insomnia manifested in occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks. The Board also finds that since May 4, 2017, an evaluation in excess of the currently assigned 50 percent rating is not warranted, as the medical evidence does not show that symptoms of the Veteran’s insomnia ever manifested in occupational and social impairment with deficiencies in most areas or in total occupational and social impairment. While the medical evidence does include a May 2017 private examiner’s report indicating more severe symptoms, the report clearly attributes these symptoms to mental health diagnoses unrelated to the Veteran’s service-connected insomnia. In reaching this decision, the Board has considered the applicability of the benefit of the doubt doctrine. However, the preponderance of the evidence is against the Veteran’s claim of entitlement to an increased rating for this appeal period. 38 U.S.C. § 5107. 2. Entitlement to an initial disability rating in excess of 30 percent prior to May 4, 2018, and in excess of 50 percent thereafter, for bilateral pes planus with metatarsalgia The issue before the Board is whether increased disability ratings are warranted for the Veteran’s bilateral pes planus with metatarsalgia for any part of the appeal period. The Veteran contends that an increased rating is warranted as he experienced severe symptoms. As will be discussed in more detail below, the Board concludes that the Veteran is not entitled to a higher disability rating for any period on appeal on this issue. The Veteran’s bilateral pes planus is rated as 30 percent disabling prior to May 4, 2018, and 50 percent disabling since that time, under the provisions of 38 C.F.R. § 4.71a, DC 5276. Under DC 5276, a 30 percent rating is warranted for severe bilateral pes planus, with objective evidence of marked deformity (pronation, abduction, etc.), pain on manipulation and use accentuated, an indication of swelling on use, and characteristic callosities. A maximum 50 percent rating is warranted for pronounced bilateral pes planus, manifested by marked pronation, extreme tenderness of plantar surfaces of the feet, marked inward displacement, and severe spasm of the tendo Achilles on manipulation, not improved by orthopedic shoes or appliances. Initially, the Board observes that the Veteran was assigned a 50 percent rating for this disability since May 4, 2018. As such, he is in receipt of the maximum schedular evaluation available for this disability under DC 5276. Turning to the evidence of record, the September 2011 VA examination noted the Veteran’s reports of experiencing constant pain in the bilateral feet. The Veteran reported that the pain was “oppressing and sharp.” Further, the pain could be exacerbated by physical activity. At rest, the Veteran had stiffness, swelling and fatigue. While standing and walking, he experienced pain, weakness, stiffness, swelling and fatigue. Upon examination, the examiner found that palpation of the plantar surface of both feet revealed no tenderness. The Veteran did not have deformity of either foot, to include marked pronation, inward rotation of the superior portion of the os calcis, and medial tilting of the upper border of the talus. The Veteran did not require any type of support with his shoes. The examiner found that the Veteran’s bilateral pes planus was best characterized as severe. At the December 2011 VA examination, following a physical examination of the Veteran, the VA examiner found that the Veteran did not have extreme tenderness of the plantar surfaces of the feet. The Veteran did not have marked inward displacement and severe spasm of the Achilles tendon (rigid hindfoot) on manipulation. The Veteran did have marked pronation of both feet; however, the examiner determined that the Veteran’s tenderness and marked pronation of the feet were relieved by his regularly used bilateral foot orthotics. The VA examiner concluded that the Veteran’s bilateral pes planus was severe. In the September 2016 Joint Motion for Partial Remand, the parties agreed that remand was required because the Board did not discuss additional evidence in the December 2011 VA examination. Notably, the examiner noted that the Veteran worked two jobs, working 14 to 15 hours a day, and was on his feet all day. The Veteran reported that he did not wear his orthotics after about the eighth to ninth hour due to pain in the arches that was intolerable for him. He also reported having to take hourly breaks when on his feet using the orthotics due to pain in his arches. He felt like he did as well with his orthotics as without them but has noticed some relief with them more than without them at times. Further, when not wearing orthotics, the pain was localized to the bunions. The parties to the Joint Motion determined that the Veteran’s statement that the orthotics provided relief on one hand, but caused symptoms such as pain and numbness was in conflict with the examiner’s determination that the Veteran’s bilateral pes planus was improved by orthopedic shoes or appliances. The Board has considered the lay statements by the Veteran and the determination by the December 2011 VA examiner concerning whether the Veteran’s bilateral pes planus was improved by the use of orthopedic shoes or appliances. However, the Board disagrees with the determination reached by the Joint Motion that these statements are contradictory. Rather, the Veteran appears to provide a nuanced assessment of the value of his orthopedic devices to manage symptoms of his bilateral pes planus, coming to the ultimate determination that while he “feels like he does as well with his orthotics as without them” he has “noticed some relief with them more than without them at times.” The Board finds that this ultimate conclusion reached by the Veteran is consistent with the VA examiner’s determination that the Veteran’s condition was ultimately improved – although imperfectly – by the use of orthopedic shoes or appliances. Further, the relative merits of the Veteran’s use of his orthotic devices does not change the VA examiner’s medical finding that the Veteran’s bilateral pes planus was severe in nature, which is consistent with a 30 percent disability rating. In May 2018, the Veteran underwent another VA examination to assess the severity of his disability. The Veteran stated that he wore orthotics, but he could only wear them for an hour or so because his feet will become more painful. He reported experiencing pain on use and manipulation of his feet. The VA examiner found the Veteran had extreme tenderness of the plantar surfaces on both feet, as well as decreased longitudinal arch height of both feet on weight-bearing. There was no objective evidence of marked deformity of one or both feet, and no evidence of marked pronation of one or both feet. DC 5276 specifically lists pes planus; rating by analogy under any other DC is not appropriate. Copeland v. McDonald, 27 Vet. App. 333 (2015). In sum, the preponderance of the evidence is against the assignment of a disability rating in excess of 30 percent for the service-connected bilateral pes planus with metatarsalgia prior to May 4, 2018. As the Veteran is in receipt of the maximum schedular rating under DC 5276 since May 4, 2018, a higher rating for that period is denied. The preponderance of the evidence is also against the assignment of a separate disability rating at any time during the appeal period. Thus, the claim is denied. 38 U.S.C. § 5107. 3. Entitlement to a compensable rating prior to April 28, 2011, and in excess of 10 percent thereafter, for a left foot bunion 4. Entitlement to a compensable rating prior to April 28, 2011, and in excess of 10 percent thereafter, for a right foot bunion The issue before the Board is whether increased disability ratings are warranted for the Veteran’s bilateral foot bunions for any part of the appeal period. The Veteran contends that an increased rating is warranted as he experienced severe symptoms. As will be discussed in more detail below, the Board concludes that the Veteran is not entitled to higher disability ratings for any period on appeal on this issue. Prior to April 28, 2011, the Veteran is in receipt of noncompensable evaluations for his bunions of the feet under 38 C.F.R. § 4.71a, DC 5280. In a June 2018 rating decision, he was granted separate 10 percent ratings for his bunions effective April 28, 2011. DC 5280 provides ratings for unilateral hallux valgus (bunions). Unilateral hallux valgus that is severe, if equivalent to amputation of great toe, is rated 10 percent disabling. Unilateral hallux valgus that has been operated upon with resection of metatarsal head is rated 10 percent disabling. 38 C.F.R. § 4.71a. Initially, the Board observes that the Veteran was assigned the maximum schedular evaluation available for this disability effective April 28, 2011. Prior to this date, a March 2011 private treatment record documented moderate hallux abducto valgus of the Veteran’s feet following a physical examination of the Veteran and X-rays of the feet. An April 2011 private medical opinion documented the Veteran’s constant pain in his feet, but no other pertinent information related to his bunions of the feet. The evidence above establishes that the bunions of the feet have been rated as moderate by medical examiners, and have not required surgery. Thus, the Board finds that the Veteran is not entitled to higher disability ratings for his service-connected bunions of the feet prior to April 28, 2011. Here, there is no evidence of the Veteran’s bunions on each foot being operated upon with resection of metatarsal head or being severe (equivalent to amputation of great toe). 38 C.F.R. § 4.71a, DC 5280. In the September 2016 Joint Motion for Partial Remand, the parties agreed that remand was required to have the Board consider the September 2011 VA examiner’s notation that the Veteran experienced weakness while standing or walking to determine whether he was entitled to a compensable disability rating for his bunions. The parties also agreed that remand was warranted because the Board erred when it determined that entitlement to a compensable disability rating under DC 5277 was not raised by the record. Under DC 5277, bilateral weak foot, a symptomatic condition secondary to many constitutional conditions characterized by atrophy of the musculature, disturbed circulation, and weakness, is rated at a minimum of 10 percent. However, as noted above, the May 2018 VA examiner found that the Veteran did not have signs or symptoms of a foot condition that was consistent with a diagnosis of bilateral weak foot as defined in DC 5277. As such, the Veteran is not entitled to a separate evaluation under this diagnostic code. Effective Date Generally, the effective date of an evaluation and award of compensation based on an original claim will be the date of receipt of the claim or the date entitlement arose, whichever is later. 38 U.S.C. 5110 (a); 38 C.F.R. 3.400. If a claim for disability compensation, i.e., service connection, is received within one year after separation from service, the effective date of entitlement is the day following separation or the date entitlement arose. 38 C.F.R. 3.400 (b)(2)(i). A specific claim in the form prescribed by the Secretary must be filed for benefits to be paid or furnished to any individual under the laws administered by VA. 38 U.S.C. § 5101 (a); 38 C.F.R. § 3.151 (a) (2013). The term “claim” or “application” means 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). Any communication or action indicating an intent to apply for one or more benefits under the laws administered by VA, from a veteran or his representative, may be considered an informal claim. Such informal claim must identify the benefit sought. Upon receipt of an informal claim, if a formal claim has not been filed, an application form will be forwarded to the claimant for execution. If received within one year from the date it was sent to the veteran, it will be considered filed as of the date of receipt of the informal claim. 38 C.F.R. § 3.155 (2013). Regulations defining a “claim” were revised effective March 24, 2015, and apply only to claims and appeals filed after that date. See 79 Fed. Reg. 57660 (Sept. 25, 2014). The revision eliminated informal claims and required claims on specific forms. 5. Entitlement to an effective date earlier than April 10, 2012, for the award of service connection for thoracolumbar spine degenerative disc disease with arthritis and strain The Veteran seeks an earlier effective date for the award of service connection for thoracolumbar spine degenerative disc disease with arthritis and strain. Following a review of the pertinent evidence of record, the Board finds that assignment of an earlier effective date for service connection of the Veteran’s claim is not warranted. The Veteran’s initial claim seeking service connection for a lumbar spine condition was received in October 2001. In a July 2002 rating decision, the RO denied the claim. The Veteran did not appeal, or submit new and material evidence within one year of that decision and it became final. 38 U.S.C. § 7105; 38 C.F.R. § 3.156. In December 2009, the Veteran requested to reopen service connection claim, which was denied in a September 2010 rating decision. The Veteran submitted a Notice of Disagreement in September 2010. A Statement of the Case was issued in May 2011, but the Veteran did not timely perfect his appeal, and the rating decision became final. On April 10, 2012, the Veteran submitted a statement which the RO interpreted as an application to reopen a claim for compensation for a back disability. In an October 2015 Board decision, the Veteran was granted service connection for a lumbar spine disorder, which was later recharacterized in a July 2016 rating decision to thoracolumbar spine degenerative disc disease with arthritis and strain. He was assigned an effective date from April 10, 2012, the date of the letter seeking to reopen his claim for benefits. The Board finds the Veteran is already in receipt of the earliest possible effective date for this disability as the effective date assigned is the date the Veteran’s petition to reopen his service connection claim for a back disability was received. A thorough review of the claims file shows no written communication by either the Veteran or any of his representatives evidencing any intent to seek compensation disability benefits for his now service-connected thoracolumbar spine disability prior to April 10, 2012, and since the date of the September 2010 rating decision. As such, the claim must be denied. 6. Entitlement to an effective date earlier than July 14, 2016, for the award of service connection for cervical spine degenerative arthritis, stenosis and intervertebral disc syndrome 7. Entitlement to an effective date earlier than July 14, 2016, for the award of service connection for right upper extremity radiculopathy 8. Entitlement to an effective date earlier than July 14, 2016, for the award of service connection for left upper extremity radiculopathy The Veteran seeks earlier effective dates for the award of service connection for cervical spine degenerative arthritis, stenosis and intervertebral disc syndrome, as well as bilateral upper extremity radiculopathy. Following a review of the pertinent evidence of record, the Board finds that assignment of an earlier effective date for service connection of the Veteran’s claims is not warranted. The Board finds the Veteran is already in receipt of the earliest possible effective dates for the respective disabilities as the July 14, 2016, effective date assigned is the date the Veteran’s intent to file a claim for compensation benefits was received. A thorough review of the claims file shows no written communication by either the Veteran or his representative evidencing any intent to seek compensation disability benefits for his now service-connected cervical spine disability and associated radiculopathy of the bilateral upper extremities. The claims file does contain VA medical records documenting the Veteran’s cervical spine disability prior to July 14, 2016. However, the mere presence of medical evidence does not establish intent on the part of the Veteran to seek service connection for a disability. Lalonde v. West, 12 Vet. App. 377 (1999). Similarly, the mere presence of a disability does not establish intent on the part of the Veteran to seek service connection for that condition. Crawford v. Brown, 5 Vet. App. 33 (1995). Therefore, the presence of any treatment records dated before July 14, 2016, cannot serve as the basis for an earlier effective date for the award of service connection. As there is no claim of service connection prior to July 14, 2016, the preponderance of the evidence is against the claim for entitlement to an earlier effective date for these three issues. 9. Entitlement to an effective date earlier than July 14, 2016, for the award of service connection for neurogenic urinary frequency and incontinence The Veteran also seeks earlier effective dates for the grant of service connection for his neurogenic urinary frequency and incontinence. The Board notes that bladder impairment is a manifestation of his service-connected thoracolumbar spine disability. As such, this separate evaluation has been part and parcel to the current claim on appeal seeking an increased rating for the Veteran’s thoracolumbar spine disability. When the Veteran disagreed with the amount of compensation awarded for this disability, he did not limit his appeal to one manifestation but rather was seeking the highest rating or ratings available for his disability. See AB v Brown, 6 Vet. App. 35 (1993). In this case, there is a private medical record dated on December 7, 2012, showing the Veteran experienced unintentional loss of urine and an inability to empty his bladder fully at times. Thus, the Board finds that service connection for neurogenic urinary frequency and incontinence is warranted from December 7, 2012, which is the earliest ascertainable date when a private medical provider identified that the Veteran had symptoms of this condition secondary to his now service-connected thoracolumbar spine disability. 10. Entitlement to an effective date earlier than July 14, 2016, for the award of service connection for right lower extremity radiculopathy of the femoral nerve 11. Entitlement to an effective date earlier than July 14, 2016, for the award of service connection for right lower extremity radiculopathy of the sciatic nerve 12. Entitlement to an effective date earlier than July 14, 2016, for the award of service connection for left lower extremity radiculopathy of the femoral nerve 13. Entitlement to an effective date earlier than July 14, 2016, for the award of service connection for left lower extremity radiculopathy of the sciatic nerve The Veteran also seeks earlier effective dates for the grant of service connection for his radiculopathies of the bilateral lower extremities. The Board notes that radiculopathy is a manifestation of his service-connected thoracolumbar spine disability. As such, these separate evaluations have also been part and parcel to the current claim on appeal seeking an increased rating for the Veteran’s thoracolumbar spine disability. When the Veteran disagreed with the amount of compensation awarded for this disability, he did not limit his appeal to one manifestation but rather was seeking the highest rating or ratings available for his disability. In this case, a September 12, 2014 private treatment record noted that the Veteran’s complaints of low back pain with referral into the left buttock. The Veteran also experienced some numbness, tingling and weakness of both the right and left lower extremities. Affording the Veteran the benefit of the doubt, the Board finds that service connection for radiculopathy of the right and left lower extremities is warranted from September 12, 2014, which is the earliest ascertainable date when a private medical provider identified that the Veteran had symptoms of these conditions secondary to his now service-connected thoracolumbar spine disability. REASONS FOR REMAND 1. Entitlement to service connection for bilateral hearing loss is remanded. 2. Entitlement to service connection for a right ear disability is remanded. In the September 2016 Joint Motion, the parties agreed that a remand was warranted because the Board failed to discuss whether the record contained evidence of persistent or recurrent symptoms of a disability. Notably, in an April 2012 statement, the Veteran wrote that “in regard to his right ear, ‘certain sounds are piercing to my ear drum and I lose hearing temporarily in my left ear for a few minutes.’” In May 2017, the Board remanded the claims to obtain a VA examination and medical opinion to ascertain the etiology of the Veteran’s hearing loss and reported right ear intermittent complete deafness disabilities. While the Veteran was afforded a VA audiological examination in April 2018, there were no medical findings made concerning the Veteran’s reports of experiencing intermittent deafness in both ears. The examiner provided no information on whether the Veteran suffered from any diagnosed ear disabilities, apart from sensorineural hearing loss, that could be related to his complaints of right ear problems and intermittent deafness. As such, remand is needed for a new VA examination with opinion. As the examination may provide evidence relevant to the Veteran’s hearing loss claim, this issue is inextricably intertwined with the service connection claim for a right ear disability and must also be remanded. 3. Entitlement to an initial compensable disability rating prior to June 10, 2016, and a rating in excess of 10 percent thereafter, for a left ankle strain is remanded. 4. Entitlement to an initial compensable disability rating prior to June 10, 2016, and a rating in excess of 10 percent thereafter, for a right ankle strain is remanded. 5. Entitlement to an initial disability rating in excess of 40 percent for cervical spine degenerative arthritis, stenosis and intervertebral disc syndrome is remanded. While the record contains contemporaneous VA examinations regarding the Veteran’s service-connected bilateral ankle and cervical spine disabilities, neither the April 2017 nor the May 2018 examination reports comply with the requirements in Correia v. McDonald, 28 Vet. App. 158, 168 (2016). Specifically, the examination reports do not provide range of motion findings that were obtained on active versus passive motion nor range of motion findings in weight-bearing and nonweight-bearing. Regarding the April 2017 VA neck conditions examination, the examiner stated only that there was objective evidence of pain on passive range-of-motion testing, as well as testing in a nonweight-bearing position. Regarding the May 2018 VA ankle examination, the examiner stated there was no evidence of pain on either passive range of motion testing or when the joint was used in non-weight bearing. New VA examinations with complete findings for the Veteran’s ankles and cervical spine disabilities are therefore needed on remand. 6. Entitlement to an initial disability rating in excess of 20 percent for neurogenic urinary frequency and incontinence is remanded. The Veteran was last afforded a VA examination to assess the severity of his neurogenic urinary frequency and incontinence in December 2016. In a March 2017 statement, the Veteran’s attorney asserted that the Veteran experienced the need to urinate three to four times per hour, and the Veteran woke five or more times per night to void. The duty to conduct a contemporaneous examination is triggered when the evidence indicates there has been a material change in disability or that the current rating may be incorrect. Thus, as the record indicates a potential worsening of the Veteran’s disability since the last examination, a new examination should be obtained on remand. As this claim is being remanded for further development, the Veteran’s claims folder should be updated to include all outstanding VA treatment records. See 38 C.F.R. § 3.159 (c)(2); see also Bell v. Derwinski, 2 Vet. App. 611 (1992). The matters are REMANDED for the following action: 1. Obtain any outstanding VA treatment records dated from May 2018 to the present and associate those documents with the Veteran’s claims file. 2. Schedule the Veteran for an examination by an appropriate clinician to determine the nature and etiology of any diagnosed right ear disability. The examiner is asked to provide medical findings on any diagnosed disability of the right ear, apart from sensorineural hearing loss, in light of the Veteran’s reports of experiencing intermittent deafness. The examiner must opine whether any such diagnosed disability is at least as likely as not related to an in-service injury, event, or disease, including in-service acoustic trauma. 3. Schedule the Veteran for examinations of the current severity of his service-connected bilateral ankle strain. The examiner must test the Veteran’s active motion, passive motion, and pain with weight-bearing and without weight-bearing. The examiner must also attempt to elicit information regarding the severity, frequency, and duration of any flare-ups, and the degree of functional loss during flare-ups. To the extent possible, the examiner should identify any symptoms and functional impairments due to the bilateral ankle disabilities alone and discuss the effect of the Veteran’s bilateral ankle strain on any occupational functioning and activities of daily living. If it is not possible to provide a specific measurement, or an opinion regarding flare-ups, symptoms, or functional impairment without speculation, the examiner must state whether the need to speculate is due to a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts), a deficiency in the record (additional facts are required), or the examiner does not have the knowledge or training. 4. Schedule the Veteran for an examination of the current severity of his service-connected cervical spine degenerative arthritis, stenosis and intervertebral disc syndrome. The examiner must test the Veteran’s active motion, passive motion, and pain with weight-bearing and without weight-bearing. The examiner must also attempt to elicit information regarding the severity, frequency, and duration of any flare-ups, and the degree of functional loss during flare-ups. To the extent possible, the examiner should identify any symptoms and functional impairments due to the cervical spine disability alone and discuss the effect of the Veteran’s cervical spine disability on any occupational functioning and activities of daily living. If it is not possible to provide a specific measurement, or an opinion regarding flare-ups, symptoms, or functional impairment without speculation, the examiner must state whether the need to speculate is due to a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts), a deficiency in the record (additional facts are required), or the examiner does not have the knowledge or training. 5. Schedule the Veteran for an examination by an appropriate clinician to determine the current severity of his service-connected neurogenic urinary frequency and incontinence. The examiner should provide a full description of the disability and report all signs and symptoms necessary for evaluating the Veteran’s disability under the rating criteria. The examiner must attempt to elicit information regarding the severity, frequency, and duration of any flare-ups, and the degree of functional loss during flare-ups. To the extent possible, the examiner should identify any symptoms and functional impairments due to neurogenic urinary frequency and incontinence alone and discuss the effect of the Veteran’s neurogenic urinary frequency and incontinence on any occupational functioning and activities of daily living. If it is not possible to provide a specific measurement, or an opinion regarding flare-ups, symptoms, or functional impairment without speculation, the examiner must state whether the need to speculate is due to a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts), a deficiency in the record (additional facts are required), or the examiner does not have the knowledge or training. M. E. Larkin Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Jack S. Komperda, Counsel