Citation Nr: 18153167 Decision Date: 11/27/18 Archive Date: 11/27/18 DOCKET NO. 15-12 461 DATE: November 27, 2018 ORDER New and material evidence not having been received, the claim for entitlement to service connection for a left knee condition is not reopened. New and material evidence not having been received, the claim for entitlement to service connection for a right knee condition is not reopened. New and material evidence not having been received, the claim for entitlement to service connection for a right ankle disability is not reopened. New and material evidence having been received, the claim for entitlement to service connection for insomnia is reopened. Entitlement to service connection for hypertension is denied. Entitlement to service connection for sleep disturbances is granted. Entitlement to a total disability rating based on individual unemployability (TDIU) is granted.   REMANDED Entitlement to service connection for headaches is remanded. Entitlement to increased ratings for degenerative joint disease of the lumbar spine, currently rated at 20 percent prior to April 8, 2012; 10 percent from April 8, 2012, to November 3, 2014; and 20 percent from November 4, 2014, to include whether the reduction from 20 percent from April 8, 2014, was proper and whether a reduction from 40 percent from November 4, 2014, was proper, is remanded. Entitlement to an initial rating in excess of 10 percent for left recurrent medial tibial stress syndrome is remanded. Entitlement to an initial rating in excess of 10 percent for right recurrent medial tibial stress syndrome is remanded. Entitlement to a compensable rating for left ankle tendonitis is remanded. Entitlement to increased ratings for bilateral pes planus with bilateral plantar fasciitis, currently rated at 10 percent prior to April 8, 2014, and 50 percent from that date, is remanded. Entitlement to a compensable rating for bilateral hearing loss is remanded. Entitlement to a rating in excess of 10 percent for tinnitus is remanded. Entitlement to an initial rating in excess of 50 percent for major depressive disorder with anxious distress, recurrent and moderate, is remanded. Entitlement to an effective date earlier than October 15, 2014, for the grant of entitlement to service connection for left recurrent medial tibial stress syndrome is remanded. Entitlement to an effective date earlier than October 15, 2014, for the grant of entitlement to service connection for right recurrent medial tibial stress syndrome is remanded. Entitlement to an effective date earlier than October 15, 2014, for the grant of entitlement to service connection for major depressive disorder with anxious distress, recurrent and moderate, is remanded. FINDINGS OF FACT 1. A May 2008 rating decision denied the Veteran’s original claim for entitlement to service connection for a bilateral knee condition; the Veteran did not timely appeal the denial; and new and material evidence was not received as to that issue within the one-year appeal period following issuance of the May 2008 rating decision. 2. A March 2012 rating decision denied the Veteran’s original claim for entitlement to service connection for a right ankle disability, and his petition to reopen the previously denied claim for entitlement to service connection for a bilateral knee condition; the Veteran did not timely appeal the denial; and new and material evidence was not received as to those issues within the one-year appeal period following issuance of the March 2012 rating decision. 3. A May 2012 rating decision denied the Veteran’s original claim for entitlement to service connection for insomnia; the Veteran did not timely appeal the denial; and new and material evidence was not received as to that issue within the one-year appeal period following issuance of the May 2012 rating decision. 4. Evidence received since the March 2012 rating decision does not raise a reasonable possibility of substantiating the claim for entitlement to service connection for left knee condition. 5. Evidence received since the March 2012 rating decision does not raise a reasonable possibility of substantiating the claim for entitlement to service connection for a right knee condition. 6. Evidence received since the March 2012 rating decision does not raise a reasonable possibility of substantiating the claim for entitlement to service connection for a right ankle disability. 7. Evidence received since the May 2012 rating decision is new and raises a reasonable possibility of substantiating the claim for entitlement to service connection for insomnia. 8. The Veteran’s hypertension was not present during his active service or within one year of his separation from his active service, and is not shown by competent evidence to be etiologically related to his active service. 9. The probative evidence of record indicates that the Veteran’s sleep disturbances are caused by or a symptom of his service-connected major depressive disorder. 10. The evidence reflects that the Veteran is unable to secure or follow a substantially gainful occupation due to his service-connected disabilities. CONCLUSIONS OF LAW 1. The May 2008 rating decision is final. 38 U.S.C. § 7105; 38 C.F.R. §§ 3.104, 3.156, 20.200, 20.201, 20.302, 20.1103. 2. The March 2012 rating decision is final. 38 U.S.C. § 7105; 38 C.F.R. §§ 3.104, 3.156, 20.200, 20.201, 20.302, 20.1103. 3. The May 2012 rating decision is final. 38 U.S.C. § 7105; 38 C.F.R. §§ 3.104, 3.156, 20.200, 20.201, 20.302, 20.1103. 4. New and material evidence not having been received, the claim for entitlement to service connection for a left knee condition is not reopened. 38 U.S.C. §§ 1110, 5108; 38 C.F.R. § 3.303. 5. New and material evidence not having been received, the claim for entitlement to service connection for a right knee condition is not reopened. 38 U.S.C. §§ 1110, 5108; 38 C.F.R. § 3.303. 6. New and material evidence not having been received, the claim for entitlement to service connection for a right ankle disability is not reopened. 38 U.S.C. §§ 1110, 5108; 38 C.F.R. § 3.303. 7. New and material evidence having been received, the claim for entitlement to service connection for insomnia is reopened. 38 U.S.C. §§ 1110, 5108; 38 C.F.R. § 3.303. 8. The criteria for entitlement to service connection for hypertension have not been met. 38 U.S.C. §§ 1110, 5103, 5107A; 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309. 9. The criteria for entitlement to service connection for sleep disturbance, have been met. 38 U.S.C. §§ 1110, 5103, 5107A; 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.310. 10. The criteria for entitlement to a TDIU have been met. 38 U.S.C. §§ 1155, 5103A, 5107; 38 C.F.R. §§ 3.340, 3.341, 4.16. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service from January 1998 to February 2002. The Veteran, through his representative, has argued that the service-connected disabilities for which he seeks increased ratings prevent him from securing or following a substantially gainful occupation. Therefore, the issue of entitlement to a TDIU has been raised as part of the increased ratings issues on appeal and is properly before the Board at this time. See Rice v. Shinseki, 22 Vet. App. 447 (2009). In this decision, the Board grants entitlement to a TDIU. The Agency of Original Jurisdiction (AOJ) will set an effective date for the grant of entitlement to a TDIU after determining the date on which the Veteran became unable to secure or follow a substantially gainful occupation due to his service-connected disabilities and, thus, became permanently and totally disabled due to service-connected disabilities. This preserves the Veteran’s right to appeal the effective date awarded by the AOJ. See DAV v. Secretary of Veterans Affairs, 327 F.3d. 1339 (Fed. Cir. 2003). Neither the Veteran nor his representative has raised any issues with regard to the duty to notify or duty to assist as they pertain to the issues decided herein. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that “the Board’s obligation to read filings in a liberal manner does not require the Board . . . to search the record and address procedural arguments when the veteran fails to raise them before the Board.”); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to a duty to assist argument). In that regard, the Board notes that the development directed in the Remand section below pertains to the issues remanded herein, and there is no indication that evidence developed as part of those actions may be relevant to the issues decided herein. There is no indication that the Veteran’s Social Security Administration records may include evidence linking the Veteran’s hypertension or a current left knee, right knee, or right ankle disability to the Veteran’s active service. The analysis in this decision focuses on the most relevant evidence and on what the evidence shows or does not show with respect to the issues decided herein. The Veteran should not assume that evidence that is not explicitly discussed herein has been overlooked. See Timberlake v. Gober, 14 Vet. App. 122 (2000) (noting that the law requires only that reasons for rejecting evidence favorable to the claimant be addressed). Reopening issues 1. Previously denied claims The Veteran seeks to reopen his claims for entitlement to service connection for a left knee condition and a right knee condition, which were previously denied in the May 2008 and March 2012 rating decisions. He also seeks to reopen his claims for entitlement to service connection for a right ankle disability, which was previously denied in the March 2012 rating decision, and for entitlement to service connection for insomnia, which was previously denied in the May 2012 rating decision. In general, rating decisions that are not timely appealed are final. See 38 U.S.C. § 7105; 38 C.F.R. § 20.1103. Under 38 U.S.C. § 5108, if new and material evidence is presented or secured with respect to a claim that has been disallowed, the Secretary shall reopen the claim and review the former disposition of the claim. New evidence is existing evidence not previously considered by VA. Material evidence is existing evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. New and material evidence can be neither cumulative nor redundant of the evidence of record at the time of the last prior final denial of the claim sought to be reopened, and must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a). In determining whether evidence is new and material, the credibility of the evidence is generally presumed. Justus v. Principi, 3 Vet. App. 510, 512-13 (1992). In Elkins v. West, 12 Vet. App. 209 (1999), the United States Court of Appeals for Veterans Claims (Court) held that the Board must first determine whether the appellant has presented new and material evidence under 38 C.F.R. § 3.156(a) to have a finally denied claim reopened under 38 U.S.C. § 5108. The Court has also held that the law should be interpreted as enabling reopening of a claim, rather than to precluding it. See Shade v. Shinseki, 24 Vet. App. 110 (2010). The focus is not exclusively on whether evidence remedies the principal reason for denial in the last prior final decision, but on whether the evidence, taken together, could at least trigger the duty to assist or consideration of a new theory of entitlement. Id. at 118. In general, service connection may be established for a disability resulting from disease or injury incurred in or aggravated by active military service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303. In this case, the Veteran submitted an original claim for entitlement to service connection for a bilateral knee disability in February 2008. The AOJ denied the Veteran’s claim in the May 2008 rating decision. In so doing, the AOJ explained that the Veteran’s service treatment records showed complaints of left knee pain in August 2001. There was no evidence of trauma and no diagnosis was given at that time. The AOJ further explained that there was no indication of permanent residual or chronic disability of the left or right knee subject to service connection shown in the service treatment records or demonstrated by evidence following service. The letter informing the Veteran of the May 2008 rating decision explained to the Veteran his right to appeal the decision and was enclosed with a VA Form 4107, Your Rights to Appeal Our Decision, which provided further guidance on appealing the decision. The Veteran did not submit a timely notice of disagreement as to the May 2008 rating decision, and new and material evidence as to the issue was not received within the one-year appeal period following issuance of the May 2008 rating decision. As such, the Veteran did not complete a timely appeal of the May 2008 rating decision, and the decision is final. See 38 U.S.C. § 7105; 38 C.F.R. §§ 3.156(b), 20.201, 20.302,20.1103. In January 2011, the Veteran submitted a petition to reopen the claim for entitlement to service connection for a bilateral knee disability and original claims for entitlement to service connection for a right ankle disability and insomnia. The AOJ denied the petition to reopen the previously denied claims and the original claim for entitlement to service connection for a right ankle disability in the March 2012 rating decision, explaining that the evidence did not show a currently diagnosed left knee, right knee, or right ankle disability; that new and material evidence had not been received as to the issue of entitlement to service connection for a bilateral knee disability since the May 2008 rating decision; and that the evidence did not show a link between a current right ankle disability and the Veteran’s active service. The letter informing the Veteran of the March 2012 rating decision explained to the Veteran his right to appeal the decision and was enclosed with a VA Form 4107. The Veteran did not submit a timely notice of disagreement as to the March 2012 rating decision. In May 2012, within the one-year appeal period of the March 2012 rating decision, the Veteran submitted three VA Forms 21-4142, Authorization and Consent to Release Information to VA, identifying treatment at three VA medical facilities. Because those VA records were sufficiently identified and VA was informed of their existence, they are considered to have been in VA’s constructive possession in May 2012. See Turner v. Shulkin, 29 Vet. App. 207 (2018). VA did not immediately obtain the records identified in the May 2012 VA Forms 21-4142, but the records have since been obtained and associated with the record. The Board has reviewed those records, and concludes that they do not constitute new and material evidence such that the January 2011 petition to reopen the previously denied claims and original claim for entitlement to service connection for a right ankle disability remained pending. Specifically, the records reflect continued treatment for various conditions, but do not show a current left knee, right knee, or right ankle disability; or provide a link between any such disability and the Veteran’s active service. Furthermore, none of the other evidence received within the one-year appeal period following issuance of the March 2012 rating decision provides such information. As such, the Veteran did not complete a timely appeal of the March 2012 rating decision, and the decision is final. See 38 U.S.C. § 7105; 38 C.F.R. §§ 3.156(b), 20.201, 20.302,20.1103. Later in May 2012, the AOJ denied the Veteran’s claim for entitlement to service connection for insomnia. In so doing, the AOJ explained that the evidence did not show that the Veteran had insomnia that was causally related to an event, disease, or injury in service. The letter informing the Veteran of the May 2012 rating decision explained to the Veteran his right to appeal the decision and was enclosed with a VA Form 4107. The Veteran did not submit a timely notice of disagreement as to the May 2012 rating decision, and new and material evidence as to the issue was not received within the one-year appeal period following issuance of the May 2012 rating decision. As such, the Veteran did not complete a timely appeal of the May 2012 rating decision, and the decision is final. See 38 U.S.C. § 7105; 38 C.F.R. §§ 3.156(b), 20.201, 20.302,20.1103. 2. Whether new and material evidence has been received to reopen the previously denied claims for entitlement to service connection for a left knee condition, a right knee condition, and a right ankle disability The evidence associated with the record since issuance of the final March 2012 rating decision relevant to the petition to reopen the previously denied claims for entitlement to service connection for a left knee condition, a right knee condition, and a right ankle disability includes the petition, the Veteran’s notice of disagreement as to a February 2015 rating decision that denied that petition, and the Veteran’s substantive appeal as to the petition; additional VA treatment records; and reports for VA examinations conducted in December 2014 and January 2015. The petition, notice of disagreement, and substantive appeal do not include any specific contentions or assertions as to why service connection should be granted for a left knee, right knee, or right ankle condition. Additionally, the additional VA treatment records reflect continued treatment for various conditions, but do not show a current left knee, right knee, or right ankle disability; or provide a link between any such disability and the Veteran’s active service. Therefore, the petition, notice of disagreement, substantive appeal, and additional VA treatment records are not new and material evidence sufficient to reopen the previously denied claims. The December 2014 VA ankle conditions examination report does not include a diagnosis for a right ankle condition and reflects that the Veteran had full strength and full range of motion without objective evidence of painful motion upon testing of the right ankle. The January 2015 VA knee and lower leg conditions examination report does not include a diagnosis for a left or right knee disability other than the already service-connected recurrent medial tibial stress syndrome of the bilateral legs. Therefore, the December 2014 and January 2015 VA examination reports are not new and material evidence sufficient to reopen the previously denied claims, as they also do not show that the Veteran currently has a right ankle disability or a left or right knee disability other than the already service-connected recurrent medial tibial stress syndrome of the bilateral legs. In summary, the Veteran was denied entitlement to service connection for left and right knee disabilities in the May 2008 rating decision because although the evidence showed that he complained of left knee pain during his active service, the evidence did not show that he had permanent residual or chronic disability of the left or right knee subject to service connection. The March 2012 rating decision denied reopening of the previously denied claim and denied entitlement to service connection for a right ankle disability because the evidence did not show a currently diagnosed left knee, right knee, or right ankle disability, and the evidence did not show a link between a current right ankle disability and the Veteran’s active service. Evidence received since the March 2012 rating decision is cumulative of evidence already considered by VA, does not relate to an unestablished fact necessary to substantiate the previously denied claims, and/or does not raise a reasonable possibility of substantiating the previously denied claim. 38 C.F.R. § 3.156. The evidence of record continues to be absent for an indication that the Veteran has a current right ankle disability or a current left or right knee disability other than the already service-connected recurrent medial tibial stress syndrome of the bilateral legs that is related to his active service. Accordingly, new and material evidence to reopen the finally denied claims for entitlement to service connection for a left knee disability, a right knee disability, and a right ankle disability has not been received, the benefit-of-the-doubt doctrine is not for application, and the claims for entitlement to service connection for a left knee disability, a right knee disability, and a right ankle disability are not reopened. Gilbert v. Derwinski, 1 Vet. App. 49 (1990); 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. 3. Whether new and material evidence has been received to reopen the previously denied claim for entitlement to service connection for insomnia The evidence associated with the record since issuance of the final May 2012 rating decision includes a January 2015 VA mental disorders examination indicating that the Veteran’s chronic sleep disturbances are a symptom of the Veteran’s service-connected psychiatric disability. The January 2015 VA examination report provides medical evidence that the Veteran’s sleep disturbances may be secondary to his service-connected psychiatric disability. The Board finds that the examination report is new because it was not previously considered by VA. It is also material because it puts forth new information that raises a reasonable possibility of substantiating the claim for entitlement to service connection for insomnia. See Shade, 24 Vet. App. 110. Therefore, the Board concludes that new and material evidence has been received to reopen the Veteran’s claim for entitlement to service connection for insomnia, and the claim is reopened. 38 C.F.R. § 3.156(a). Service Connection Issues Service connection will be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred in or aggravated by active service, even if the disability was initially diagnosed after service. 38 U.S.C. §§ 1110; 38 C.F.R. § 3.303. Certain chronic diseases, including hypertension, will be presumed related to service if they were noted as chronic in service; or, if they manifested to a compensable degree within a presumptive period following separation from service; or, if continuity of the same symptomatology has existed since service, with no intervening cause. 38 U.S.C. §§ 1101, 1112, 1113, 1137; Walker v. Shinseki, 708 F.3d 1331, 1338 (Fed. Cir. 2012); Fountain v. McDonald, 27 Vet. App. 258 (2015); 38 C.F.R. §§ 3.303(b), 3.307, 3.309(a). 4. Entitlement to service connection for hypertension The Veteran seeks entitlement to service connection for hypertension. He has not presented any particular arguments as to why service connection is warranted for that disability. Under VA regulations, hypertension must be confirmed by readings taken two or more times on at least three different days. 38 C.F.R. § 4.104, Diagnostic Code 7101, Note (1). Hypertension is defined as meaning that the diastolic blood pressure is predominantly 90 mm or greater, and isolated systolic hypertension means that the systolic blood pressure is predominantly 160 mm or greater with a diastolic blood pressure of less than 90 mm. In addition, medical authorities have suggested various thresholds ranging from 140 mm Hg systolic and from 90 mm Hg diastolic to as high as 200 mm Hg systolic and 110 mm Hg diastolic as reflective of hypertension. See Dorland’s Illustrated Medical Dictionary, 896 (32nd ed. 2012). The Veteran’s service treatment records do not reflect that he was formally diagnosed with hypertension during his active service. He had a blood pressure reading of 149/84 in September 2001, but otherwise had no blood pressure readings in the hypertensive range, as defined in Diagnostic Code 7101 or according to the medical authorities refenced in Dorland’s Illustrated Medical Dictionary. The VA treatment records dated within one year of the Veteran’s separation from active service do not reflect that he was formally diagnosed with hypertension or that he had blood pressure readings in the hypertensive range. In March 2012, a decade after his separation from active service, he had blood pressure readings of 132/99 and 125/93. He was encouraged to reduce his smoking and caffeine intake, and was prescribed a low dose of lisinopril to treat hypertension. In May 2012, he had blood pressure readings of 130/100 and 138/100, and admitted that he was not taking the lisinopril because it made him jittery and flush. Accordingly, the record does not reflect that the Veteran’s hypertension was incurred during his active service, as the service treatment records do not show that he was formally diagnosed with hypertension or that he had blood pressure readings consistent with a diagnosis of hypertension under 38 C.F.R. § 4.104, Diagnostic Code 7101, Note (1). The record also does not reflect that the Veteran’s hypertension manifested as a chronic disease within a year following his separation from active service, or for several years after his discharge from active service in 2002. The passage of many years between discharge from active service and the continuity of symptomatology or medical documentation of a claimed disability are factors that tend to weigh against a claim for service connection. Mense v. Derwinski, 1 Vet. App. 354, 356 (1991). To the extent that the Veteran’s claim itself reflects a belief that his hypertension is etiologically related to his active service, his statements are not considered to be competent evidence of such an etiological link. Determining the likely cause of a particular disability involves complex medical principles and requires medical knowledge and expertise the Veteran has not been shown to possess. See Kahana v. Shinseki, 24 Vet. App. 428 (2011); Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). Thus, although lay persons are competent to provide opinions on some medical issues, the etiology of the Veteran’s claimed disorder falls outside the realm of common knowledge of a lay person. His statements therefore do not constitute competent evidence that his hypertension is related to his active service. Accordingly, entitlement service connection for hypertension is not warranted. The evidence of record does not establish that the Veteran’s hypertension was present in service, was manifested to a compensable degree within one year following his separation from active service, or is otherwise etiologically related to his active service. In view of the foregoing, the Board concludes that the preponderance of the evidence is against the claim for entitlement to service connection for hypertension. Because the preponderance of the evidence is against the claim, the benefit-of-the-doubt doctrine is not for application, and the claim must be denied. 38 U.S.C. § 5107(b); see also Gilbert, 1 Vet. App. 49 (1990). 5. Entitlement to service connection for sleep disturbances The Veteran seeks entitlement to service connection for sleep disturbances. As discussed above, the January 2015 VA mental disorders examiner determined that the Veteran’s chronic sleep disturbances are a symptom of his now service-connected major depressive disorder with anxious distress, recurrent and moderate. The Board finds the January 2015 VA examiner’s statement to be probative evidence that the Veteran’s sleep disturbances are caused by his service-connected psychiatric disability. There is no probative evidence to the contrary. Accordingly, the Board finds that the evidence is at least in relative equipoise as to whether the Veteran’s sleep disturbances are proximately due to his service-connected major depressive disorder with anxious distress, recurrent and moderate. See 38 C.F.R. § 3.310. The benefit of the doubt is resolved in the Veteran’s favor, and the Board therefore concludes that entitlement to service connection for sleep disturbances must be granted. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. TDIU 6. Entitlement to a TDIU A TDIU may be granted where a Veteran is unable to secure or follow a substantially gainful occupation as a result of a single service-connected disability ratable at 60 percent or higher, or as a result of two or more disabilities, provided at least one disability is ratable at 40 percent or higher, and there is sufficient additional service-connected disability to bring the combined rating to 70 percent or higher. 38 C.F.R. §§ 3.340, 3.341, 4.16(a). In determining whether a TDIU is warranted, consideration may be given to a Veteran’s level of education, special training, and previous work experience, but not to his age or to impairment caused by nonservice-connected disabilities. See 38 C.F.R. §§ 3.341, 4.16, 4.19. The determination of whether the Veteran is unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities is a factual determination rather than a medical question. Therefore, responsibility for the ultimate determination of whether a veteran is capable of securing or following a substantially gainful occupation is placed on VA, not a medical examiner. Geib v. Shinseki, 733 F.3d 1350, 1354 (Fed. Cir. 2013); see also 38 C.F.R. § 4.16; Floore v. Shinseki, 26 Vet. App. 376, 381 (2013). The Veteran is service-connected for bilateral pes planus with bilateral plantar fasciitis, rated at 10 percent prior to April 8, 2014, and at 50 percent since that date; for major depressive disorder with anxious distress, recurrent and moderate, rated at 50 percent from October 15, 2014; for degenerative joint disease of the lumbar spine, rated at 20 percent prior to April 8, 2014, 10 percent from April 8, 2014, to November 3, 2014, and 20 percent from November 4, 2014; for right lower extremity radiculopathy, rated at 20 percent from November 4, 2014; for tinnitus, rated at 10 percent; for left recurrent medial tibial stress syndrome, rated at 10 percent from October 15, 2014; for right recurrent medial tibial stress syndrome, rated at 10 percent disabling from October 15, 2014; for bilateral hearing loss, rated as noncompensable; and for left ankle tendonitis, rated as noncompensable. He had a combined rating of 40 percent prior to April 8, 2014; 60 percent from April 8, 2014, to October 14, 2014; and 90 percent from October 15, 2014. For the period from April 8, 2014, to October 14, 2014, the ratings for the service-connected pes planus and degenerative joint disease of the lumbar spine, as disabilities affecting the same body symptoms, are combined under 38 C.F.R. § 4.16(a) such that the Veteran had a single service-connected disability rated at 60 percent or higher from April 8, 2014. Therefore, the Veteran has met the schedular percentage requirements for a TDIU since April 8, 2014. He did not meet the percentage requirements prior to that date because he did not have a single service-connected disability rated at 60 percent or a combined rating of 70 percent. Nevertheless, consideration will be given to whether the Veteran is entitled to a TDIU on an extra-schedular basis during that period under the provisions of 38 C.F.R. § 4.16(b). Turning to the relevant evidence of record, a July 2015 psychiatric examination indicates that the Veteran has earned a bachelor’s degree and two master’s degrees. He most recently worked as a childcare director, a forklift driver, and as assistant director of a utility company. He has not worked since February 2015. A February 2014 VA examiner opined that the Veteran cannot stand for long periods of time due to his service-connected pes planus and degenerative joint disease of the lumbar spine. A November 2014 VA examiner opined that the Veteran’s service-connected degenerative joint disease of the lumbar spine prevents him from prolonged sitting, standing, bending, and lifting. A December 2014 VA examiner opined that the Veteran’s service-connected left ankle disability prevents him from prolonged walking and from walking on uneven surfaces. The Veteran informed a December 2014 VA examiner that his tinnitus causes difficulties with hearing and concentration. The January 2015 VA mental disorders examination report indicates that the Veteran’s service-connected major depressive disorder causes depressed mood, anxiety, mild memory loss, disturbances in motivation and mood, and impaired impulse control. The Veteran informed a January 2015 VA examiner that he cannot bear weight whenever his service-connected bilateral medial tibial stress syndrome flares up, which occurs twice per week and lasts 20 minutes each time. Upon review of the record the Board concludes that the Veteran has a narrow vocational profile due to his service-connected disabilities such that he is unable to secure or follow a substantially gainful occupation due to those factors. His service-connected disabilities of the lumbar spine and bilateral tibias limit him to work that is performed mostly in a sitting position and with minimal standing and walking. His service-connected psychiatric disability would limit him to solitary work that is simple and repetitive in nature. He has unpredictable flare-ups in his pain symptoms that would prevent him from essentially all work for 20 minutes at a time twice per week. He has difficulty hearing and concentrating due to his service-connected tinnitus and bilateral hearing loss. As such, the Board concludes that, in view of his service-connected disabilities, the Veteran would require a somewhat sheltered environment within a narrow occupational range to accommodate his substantial service-connected limitations. Such work constitutes marginal employment, which cannot be considered substantially gainful employment. See 38 C.F.R. § 4.16. Accordingly, the probative evidence of record demonstrates that the Veteran is unable to secure or follow a substantially gainful occupation due solely to his service-connected disabilities. As such, the evidence is at least in equipoise as to whether the Veteran is entitled to a TDIU. Therefore, entitlement to a TDIU is warranted. 38 U.S.C. § 5107(b); see also Gilbert v. Derwinski, 1 Vet. App. 49 (1990). The Board again notes that the AOJ will set an effective date for the award of a TDIU. This preserves the Veteran’s right to appeal the effective date awarded by the AOJ. See DAV v. Secretary of Veterans Affairs, 327 F.3d. 1339 (Fed. Cir. 2003). REASONS FOR REMAND 1. Entitlement to service connection for headaches is remanded. The Veteran seeks entitlement to service connection for headaches. The Veteran’s VA treatment records show that he has been diagnosed with migraine headaches. The Veteran’s service treatment records indicate that he complained of headaches with prolonged reading in September 2000. He endorsed having frequent or severe headaches, usually in the morning, on an August 2001 report of medical history for separation from active service. The Board cannot make a fully-informed decision on the issue of entitlement to service connection for headaches because no VA examiner has opined whether the Veteran’s current headaches may be related to his active service, to include the headaches he reported in September 2000 and on the August 2001 report of medical history. 2. Entitlement to increased ratings for degenerative joint disease of the lumbar spine, left and right recurrent medial tibial stress syndrome, and left ankle tendonitis are remanded. Although the record contains contemporaneous VA examinations regarding the Veteran’s degenerative joint disease of the lumbar spine, left and right recurrent medial tibial stress syndrome, and left ankle tendonitis, the examinations do not comply with the requirements in Correia v. McDonald, 28 Vet. App. 158, 168 (2016). The examinations do not contain passive range of motion measurements or testing for pain on weight-bearing. 3. Entitlement to an initial rating in excess of 50 percent for major depressive disorder with anxious distress, recurrent and moderate, is remanded. The Veteran was most recently provided an examination as to his service-connected psychiatric disability in January 2015. The Veteran has submitted a VA Form 21-0960P-2, Mental Disorders (other than PTSD and eating disorders) Disability Benefits Questionnaire, completed in November 2016 by a private physician. The Board notes that much of the information included on the November 2016 VA Form 21-0960P-2 is not supported by explanation and is inconsistent with information contained in an accompanying narrative report. Nevertheless, the Board finds that the November 2016 VA Form 21-0960P-2 and the accompanying narrative report indicate that the Veteran’s service-connected psychiatric disability may have worsened since the January 2015 VA examination such that that examination no longer accurately reflects the current severity of the disability. Accordingly, a new VA examination is required so that the current severity of the disability may be determined. See 38 U.S.C. § 5103A; 38 C.F.R. § 3.159; see also Green v. Derwinski, 1 Vet. App. 121, 124 (1991); Weggenmann v. Brown, 5 Vet. App. 281 (1993) (VA has a duty to provide an examination when there is evidence that the disability has worsened since the previous examination). 4. Entitlement to increased ratings for bilateral pes planus with bilateral plantar fasciitis; bilateral hearing loss; and tinnitus are remanded. A July 2017 statement indicates that the Veteran is in receipt of Social Security Administration disability benefits. A remand is required to allow VA to request records pertaining to those benefits. 5. Entitlement to an effective date earlier than October 15, 2014, for the grant of entitlement to service connection for left recurrent medial tibial stress syndrome; right recurrent medial tibial stress syndrome; and major depressive disorder with anxious distress, recurrent and moderate, are remanded. The Veteran seeks entitlement to an effective date earlier than October 15, 2014, for the grant of entitlement to service connection for left recurrent medial tibial stress syndrome; right recurrent medial tibial stress syndrome; and major depressive disorder with anxious distress, recurrent and moderate. He submitted a timely notice of disagreement following the February 2015 rating decision that established the effective date for the grant of entitlement to service connection for those disabilities. However, the Veteran has not been issued a corresponding statement of the case for the issues. As a timely notice of disagreement as to the issues has been received, and the Veteran has not otherwise withdrawn the issues in writing, the Board is required to remand the issues for the issuance of a statement of the case. Manlincon v. West, 12 Vet. App. 238 (1999). The matters are REMANDED for the following action: 1. Send the Veteran and his representative a statement of the case that addresses the issues of entitlement to an effective date earlier than October 15, 2014, for the grant entitlement to service connection for left recurrent medial tibial stress syndrome; right recurrent medial tibial stress syndrome; and major depressive disorder with anxious distress, recurrent and moderate. If the Veteran perfects an appeal by submitting a timely VA Form 9, the issues should be returned to the Board for further appellate consideration. 2. Obtain the Veteran’s federal records from the Social Security Administration. Document all requests for information as well as all responses in the record. 3. Schedule the Veteran for an examination by an appropriate clinician to determine the nature and etiology of his headaches. The examiner must opine whether it is at least as likely as not (50 percent probability or greater) that the Veteran’s current headaches are related to an in-service injury, event, or disease, including the headaches he reported in September 2000 and on the August 2001 report of medical history. 4. Schedule the Veteran for examinations as to the current severity of his degenerative joint disease of the lumbar spine, left and right recurrent medial tibial stress syndrome, and left ankle tendonitis. 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 degenerative joint disease of the lumbar spine, left and right recurrent medial tibial stress syndrome, and left ankle tendonitis alone and discuss the effect of the disabilities 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 major depressive disorder with anxious distress, recurrent and moderate. 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 symptoms. To the extent possible, the examiner should identify any   symptoms and social and occupational impairment due to the Veteran’s major depressive disorder with anxious distress, recurrent and moderate, alone. MICHAEL MARTIN Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD T. J. Anthony, Counsel