Citation Nr: 18154757
Decision Date: 11/30/18	Archive Date: 11/30/18

DOCKET NO. 03-07 941
DATE:	November 30, 2018
ORDER
As new and material evidence has not been received, the application to reopen the claim of entitlement to service connection for bilateral hearing loss is denied.
As new and material evidence has been received, the application to reopen the claim of entitlement to service connection for tinnitus is granted.
As new and material evidence has not been received, the application to reopen the claim of entitlement to service connection for pilonidal cyst is denied.
A disability rating in excess of 10 percent for degenerative changes with cytic lesion, left hip is denied.
A disability rating in excess of 10 percent for osteoarthritis of the right hip, manifested by limitation of extension, is denied.
An earlier effective date of February 1, 2005 for the award of a 10 percent disability rating for osteoarthritis of the right hip, manifested by limitation of extension, is granted.
A disability rating in excess of 10 percent for degenerative changes, left knee is denied.
An initial disability rating in excess of 10 percent for tendonitis of the right knee manifested by limitation of motion is denied.
An earlier effective date of October 23, 2001 for the award of a separate compensable disability rating for tendinitis of the right knee manifested by laxity is granted.
From September 22, 2010 to July 18, 2016, a higher 20 percent disability rating for tendonitis of the right knee manifested by laxity is granted; prior to September 22, 2010 and from July 19, 2016 to present, a disability rating in excess of 10 percent for tendonitis of the right knee manifested by laxity is denied.
A higher initial 20 percent disability rating for degenerative disc disease of the cervical spine is granted prior to February 19, 2010; disability ratings in excess of 10 percent from February 19, 2010 to July 18, 2016 and in excess of 20 percent from July 19, 2016 to the present are denied.
An initial disability rating in excess of 50 percent for depression is denied.
An effective date prior to December 9, 1999 for the grant of service connection for small herniated disk at L4-L5 and L5-S1 and fractured acetabulum is denied.
An effective date prior to December 9, 1999 for the grant of service connection for degenerative changes with cystic lesion, left hip is denied.
An effective date prior to December 9, 1999 for the grant of service connection for degenerative changes, left knee is denied.
An effective date prior to December 9, 1999 for the award of a total disability rating based upon individual unemployability due to service-connected disability is denied.
An effective date prior to December 9, 1999 for the grant of Dependents' Educational Assistance eligibility is denied.
Eligibility for financial assistance in the purchase of one automobile or other conveyance and/or automobile adaptive equipment is denied.
Eligibility for assistance in acquiring specially adapted housing or a special home adaptation grant is denied.
The appeal concerning entitlement to an effective date prior to January 16, 2001 for the grant of service connection for depression is dismissed.
REMANDED
Entitlement to service connection for tinnitus is remanded.
Entitlement to service connection for headaches is remanded.
Entitlement to service connection for chronic pain syndrome is remanded.
Entitlement to a disability rating in excess of 10 percent for right ankle disability manifesting in limitation of motion is remanded.
Whether the June 2010 rating decision finding CUE with the effective date assigned in the January 2003 rating decision for the grant of service connection for right ankle disability manifesting in limitation of motion was proper is remanded.
Whether the June 2010 rating decision finding CUE with the effective date assigned in the January 2003 rating decision for the grant of service connection for osteoarthritis of the right hip was proper is remanded.
Whether the June 2010 rating decision finding CUE with the effective date assigned in the January 2003 rating decision for the grant of service connection for tendonitis of the right knee was proper is remanded.
Entitlement to an effective date prior to October 23, 2001 for the grant of service connection for a right ankle disability manifesting in limitation of motion is remanded.
Entitlement to an effective date prior to October 23, 2001 for the grant of service connection for osteoarthritis of the right hip is remanded. 
Entitlement to an effective date prior to October 23, 2001 for the grant of service connection for tendonitis of the right knee is remanded.
FINDINGS OF FACT
1.  An October 2004 rating decision denied the Veteran’s claims for service connection for right ear hearing loss, tinnitus, and pilonidal cyst; the Veteran did not submit a timely notice of disagreement and new and material evidence pertaining to hearing loss and a pilonidal cyst was not received within one year of the decision; records in possession of the Social Security Administration at the time of the October 2004 decision were not considered by the regional office, and are material to the Veteran’s claim concerning tinnitus. 
2.  Evidence added to the record since the October 2004 rating decision does not relate to an unestablished fact necessary to substantiate the claim for service connection for bilateral hearing loss and does not raise a reasonable possibility of substantiating the claim. 
3.  Evidence added to the record since the October 2004 rating decision relates to an unestablished fact necessary to substantiate the claim for service connection for tinnitus and raises a reasonable possibility of substantiating the claim.
4.  Evidence added to the record since the October 2004 rating decision does not relate to an unestablished fact necessary to substantiate the claim for service connection for pilonidal cyst and does not raise a reasonable possibility of substantiating the claim. 
5.  During the relevant appeal period, the Veteran’s left hip disability was shown to manifest in, at worst, flexion limited to 100 degrees and abduction limited to 25 degrees. 
6.  During the relevant appeal period, the Veteran’s right hip was shown to manifest in, at worst, flexion limited to 105 degrees and abduction limited to 25 degrees.
7.  A February 1, 2005 VA examination report documents manifestations of the Veteran’s right hip disability warranting a 10 percent disability rating; such VA examination qualified as an informal claim for an increased disability rating.
8.  During the relevant appeal period, the Veteran’s left knee was shown to manifest in, at worst, flexion limited to 120 degrees and extension limited to 10 degrees; the left knee disability did not manifest in ankylosis, impairment of the tibia and fibula, genu recurvatum, or a meniscal disorder.
9.  During the relevant appeal period, the Veteran’s right knee was shown to manifest in, at worst, flexion limited to 115 degrees, with painful motion beginning at 100 degrees, and extension limited to 10 degrees, on different dates; the right knee disability did not manifest in measurable limitation of flexion and limitation of extension simultaneously, ankylosis, impairment of the tibia and fibula, genu recurvatum, or a meniscal disorder.
10.  The Veteran’s right knee tendonitis at least as likely as not has manifested in laxity from his original date of claim.
11.  From September 22, 2010 to July 18, 2016, the Veteran’s tendonitis of the right knee has manifested in no more than moderate instability; prior to September 22, 2010 and from July 19, 2016 to present, the right knee disability manifested in no more than mild instability.
12.   The Veteran’s degenerative disc disease of the cervical spine manifested in, at worst, flexion limited to 30 degrees during the period prior to February 19, 2010 and from July 19, 2016 to the present; from February 19, 2010 to July 18, 2016, the cervical spine disability manifested in nearly full range of motion without muscle spasm or guarding severe enough to result in abnormal gait or abnormal spinal contour.
13.  Since the initial grant of service connection for depression, effective January 16, 2001, the Veteran’s depression has not manifested in symptoms of such severity as to produce functional impairment comparable to occupational and social impairment, with deficiencies in most areas, such as work, school, family relations, judgment, thinking or mood.
14.  The Veteran did not report for a VA examination scheduled in connection with his original February 1988 claim for service connection for “fractured pelvis,” nor did he contact VA to reschedule the examination within one year of receiving notice that such was required.
15.  Subsequent to the abandoned February 1988 claim for service connection for “fractured pelvis,” no formal or informal claim for entitlement to service connection for a left hip, left knee, or lumbar spine disability was received by VA until December 9, 1999. 
16.  The Veteran has no disability or disabilities for which service connection attached prior to December 9, 1999.
17.  The Veteran’s service-connected disabilities do not result in the physical loss or permanent loss of use of one or both hands or feet, permanent impairment of vision in both eyes with corrected central visual acuity of 20/200 or less in the better eye or central visual acuity of more than 20/200 with a visual field defect of a degree specified by regulation, severe burn injury, amyotrophic lateral sclerosis, or ankylosis of one or both knees or hips.
18.  The Veteran’s service-connected disabilities are not shown to have resulted in loss or loss of use of both upper extremities or loss or loss of use of one or both lower extremities, one lower extremity together with the residuals of organic disease or injury, or one lower extremity together with one upper extremity, any of which preclude locomotion without the aid of braces, crutches, canes, or a wheelchair; nor is he  shown to have amyotrophic lateral sclerosis, residuals of an inhalation injury, full thickness or subdermal burns that have resulted in contractures with limitation of motion of two or more extremities or of at least one extremity and the trunk, or loss or loss of use of one lower extremity with blindness in both eyes that results in only having light perception.
19.  In a March 2009 decision, the Board denied the Veteran’s claim of entitlement to an effective date prior to January 16, 2001 for the grant of service connection for depression; the Veteran did not appeal that decision and it is final.
CONCLUSIONS OF LAW
1.  The October 2004 rating decision denying service connection for right ear hearing loss, tinnitus, and pilonidal cyst is final.  38 U.S.C. § 7105(c); 38 C.F.R. §§ 3.104, 20.302, 20.1103.
2.  As new and material evidence has not been received since the October 2004 RO decision, the criteria for reopening the claim for service connection for right ear hearing loss are not met. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. 
3.  New and material evidence having been received since the October 2004 RO decision, the criteria for reopening the claim for service connection for tinnitus are met. 38 U.S.C. § 5108; 38 C.F.R. § 3.156.
4.  As new and material evidence has not been received since the October 2004 RO decision, the criteria for reopening the claim for service connection for pilonidal cyst are not met. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. 
5.  The criteria for entitlement to a disability rating in excess of 10 percent for degenerative changes with cystic lesion, left hip have not been met.  38 U.S.C. §§ 1155, 5103A, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes 5003, 5010, 5251, 5252.
6. The criteria for entitlement to a disability rating in excess of 10 percent for osteoarthritis of the right hip have not been met.  38 U.S.C. §§ 1155, 5103A, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes 5003, 5010, 5251, 5252.
7.  The criteria for an effective date of February 1, 2005, but no earlier, for the award of an increased 10 percent disability rating for osteoarthritis of the right hip have been met.  38 U.S.C. §§ 1155, 5101, 5103A, 5107, 5110; 38 C.F.R. §§ 3.155, 3.157, 3.400, 4.1, 4.3, 4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes 5003, 5010, 5251, 5252.
8.  The criteria for entitlement to a disability rating in excess of 10 percent for degenerative changes of the left knee have not been met.  38 U.S.C. §§ 1155, 5103A, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes 5003, 5257, 5258, 5260, 5261.
9.  The criteria for entitlement to an initial disability rating in excess of 10 percent for right knee limitation of motion have not been met. 38 U.S.C. §§ 1155, 5103A, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes 5260, 5261.
10.  The criteria for an earlier effective date of October 23, 2001 for the assignment of a separate compensable initial disability rating for tendonitis of the right knee manifesting in laxity have been met. 38 U.S.C. §§ 1155, 5103A, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5257.
11.  The criteria for a 20 percent disability rating, but no higher, for tendonitis of the right knee manifesting in laxity have been met from September 22, 2010 to July 18, 2016; the criteria for an initial disability rating in excess of 10 percent for tendonitis of the right knee manifesting in laxity prior to September 22, 2010 and from July 19, 2016 to present have not been met. 38 U.S.C. §§ 1155, 5103A, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5257.
12.  Prior to February 19, 2010, the criteria for entitlement to an initial 20 percent disability rating, but no higher, for degenerative disc disease of the cervical spine have been met; the criteria for initial disability ratings in excess of 10 percent from February 19, 2010 to July 18, 2016 and in excess of 20 percent from July 19, 2016 to the present have not been met. 38 U.S.C. §§ 1155, 5103A, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5243.
13.  Throughout the appeal period, the criteria for entitlement to an initial disability rating in excess of 50 percent for depression have not been met.  38 U.S.C. §§ 1155, 5103A, 5107; 38 C.F.R. § 4.130, Diagnostic Code 9434.
14.  The criteria for an effective date prior to December 9, 1999 for the grant of service connection for a lumbar disability have not been met. 38 U.S.C. §§ 5107, 5110; 38 C.F.R. §§ 3.102, 3.151, 3.155, 3.157, 3.158, 3.400.
15.  The criteria for an effective date prior to December 9, 1999 for the grant of service connection for degenerative changes with cystic lesion, left hip have not been met.  38 U.S.C. §§ 5107, 5110; 38 C.F.R. §§ 3.102, 3.151, 3.155, 3.157, 3.158, 3.400.
16. The criteria for an effective date prior to December 9, 1999 for the grant of service connection for degenerative changes of the left knee have not been met. 38 U.S.C. §§ 5107, 5110; 38 C.F.R. §§ 3.102, 3.151, 3.155, 3.157, 3.158, 3.400. 
17.  The criteria for an effective date prior to December 9, 1999 for the award of a total disability rating based upon individual unemployability due to service-connected disability have not been met.  38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.340, 3.341, 4.16, 4.18.
18.  The criteria for entitlement to an effective date prior to December 9, 1999 for the grant of Dependents' Educational Assistance eligibility have not been met. 38 U.S.C. §§ 3500, 3501, 3510, 3511, 3512, 5107, 5110, 5113; 38 C.F.R. §§ 3.400, 21.3041, 21.4131(d)(1).
19. The criteria for eligibility for financial assistance in the purchase of one automobile or other conveyance and/or automobile adaptive equipment have not been met. 38 U.S.C. §§ 3901, 3902, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.350, 3.808.
20. The criteria for eligibility for assistance in acquiring specially adapted housing or a special home adaptation grant are not met.  38 U.S.C. §§ 2101, 5107; 38 C.F.R. §§ 3.102, 3.809, 3.809a.
21.  The March 2009 Board decision that denied entitlement to an effective date prior to January 16, 2001 for the grant of service connection for depression is final and cannot be challenged via a freestanding claim. 38 U.S.C. §§ 7104; 38 C.F.R. §§ 3.104, 20.1104; Rudd v. Nicholson, 20 Vet. App. 296 (2006).
REASONS AND BASES FOR FINDINGS AND CONCLUSIONS
The Veteran served on active duty from October 1986 to January 1988.
These matters come before the Board of Veterans’ Appeals from a number of rating decisions by the Veteran’s local Department of Veterans Affairs (VA) Regional Office.
In November 2008, the Veteran testified at a Travel Board hearing before the undersigned Veterans Law Judge with respect to the following issues still on appeal: entitlement to a disability rating in excess of 10 percent for tendonitis of the right knee manifested by limitation of motion; entitlement to a disability rating in excess of 10 percent for tendonitis of the right knee manifested by laxity; entitlement to an effective date earlier than February 1, 2005 for the award of a 10 percent disability rating for tendonitis of the right knee manifested by laxity; and entitlement to an initial disability rating greater than 50 percent for depression.
In March 2009, the Board issued a decision denying the Veteran’s claim for an effective date prior to January 16, 2001 for the grant of service connection for depression, and remanded issues including entitlement to higher disability ratings for service-connected tendonitis of the right knee manifested by limitation of motion and laxity and entitlement to an initial disability rating in excess of 50 percent for depression for further development.
In March 2014, the Board again remanded the aforementioned claims for further development.  Additional claims for entitlement to service connection for a neck disability, entitlement to an effective date prior to October 23, 2001 for the grant of service connection for tendonitis of the right knee manifested by limitation of motion, entitlement to a compensable disability rating for osteoarthritis of the right hip, entitlement to an effective date earlier than October 23, 2001 for the award of service connection for osteoarthritis of the right hip, entitlement to service connection for chronic pain syndrome and headaches, entitlement to an effective date prior to January 16, 2001 for the award of service connection for depression, and entitlement to an effective date earlier than December 9, 1999 for the awards of a TDIU and Dependents’ Educational Assistance under 38 U.S.C. chapter 35 were remanded for issuance of a statement of the case (SOC).  Thereafter, the Veteran perfected an appeal with respect to these claims, and they were remanded in March 2017 for a Travel Board hearing.
In an October 2014 rating decision, the RO granted service connection for degenerative disc disease of the cervical spine with an initial rating of 10 percent and granted an increased 10 percent disability rating for osteoarthritis of the right hip, effective from February 19, 2010.  In an October 2014 notice of disagreement (NOD), the Veteran disagreed with the initial rating assigned for the cervical spine and the evaluation and effective date assigned for the right hip disability.  In a September 2016 rating decision, the RO then partially granted the claim for a higher initial disability rating for the cervical spine, assigning a 20 percent rating effective from July 19, 2016.  The Veteran submitted a timely substantive appeal and these issues came under the jurisdiction of the Board.  A Board hearing was originally requested, but the Veteran’s attorney subsequently indicated that a hearing was not desired for these issues.  The Board remanded these issues for further development in March 2017.
In a November 2016 rating decision, the RO denied eligibility for assistance in acquiring specially adapted housing and eligibility for financial assistance in the purchase of one automobile and/or automobile adaptive equipment.  The Veteran submitted a NOD in January 2017.  A SOC was issued by the RO in January 2017 and the Veteran perfected the appeal by submitting a VA Form 9 in January 2017.  The Board remanded these issues for further development in March 2017.
In a February 2011 rating decision, the RO denied the Veteran’s application to reopen the issues of entitlement to service connection for right ear hearing loss, tinnitus, and pilonidal cyst, and denied claims for increased disability ratings for degenerative changes of the left knee, degenerative changes with cystic lesion of the left hip, and limitation of motion of the right ankle, as well as claims for an effective date prior to December 9, 1999 for the grants of service connection for left hip, left knee, and lumbar spine disabilities and prior to October 23, 2001 for the grant of service connection for limitation of motion of the right ankle.  The Veteran submitted a NOD with these decisions in May 2011, an SOC was issued in January 2014, and the Veteran perfected his appeal to the Board in March 2014.  These issues are therefore also appropriately before the Board.
In January 2018, the Veteran’s attorney submitted a request for a Travel Board hearing concerning a number of the claims here on appeal.  In an April 2018 facsimile, the attorney requested that the scheduled Travel Board hearing be canceled, and stated that the Veteran wishes to withdraw any and all pending requests for a personal Board or Decision Review Officer Hearing and further asked that the Board proceed in making a decision based on the current evidence of record.  As a result, all requests for a Board hearing are found to have been withdrawn, and the Board may proceed with adjudication of these matters.
Finally, in a June 2010 rating decision, the RO found that the effective dates assigned in the January 2003 rating decision for the grants of service connection for right knee with limitation of motion, osteoarthritis in the right hip, and limitation of motion of the right ankle were clearly and unmistakably erroneous, and assigned each a corrected effective date of October 23, 2001.  The Veteran submitted a NOD with this decision in July 2010.  As a SOC has not yet been provided, these issues must be remanded for the issuance of such.  See Manlincon v. West, 12 Vet. App. 238 (1999).
New and Material Evidence
Whether New and Material evidence has been received sufficient to reopen the claims for service connection for right ear hearing loss, tinnitus, and pilonidal cyst.
In general, rating decisions that are not timely appealed are final and binding based on all of the evidence then of record. 38 U.S.C. § 7105; 38 C.F.R. §§ 3.104, 20.1103.  A claim which has been denied in an unappealed rating decision may not thereafter be reopened and allowed. 38 U.S.C. § 7104(c).  The exception to this rule is 38 U.S.C. § 5108, which provides that if new and material evidence is presented with respect to a claim that has been disallowed, the claim may be reopened. 38 U.S.C. § 5108; see Manio v. Derwinski, 1 Vet. App. 140, 145 (1991). 
New evidence means existing evidence not previously submitted to agency decision-makers.  Material evidence means existing evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim.  New and material evidence can be neither cumulative nor redundant of the evidence of record at the time of the last prior final denial of the claim sought to be reopened, and must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a). 
VA must review all of the evidence submitted since the last final rating decision in order to determine whether the claim may be reopened.  See Hickson v. West, 12 Vet. App. 247, 251 (1999).  For purposes of determining whether new and material evidence has been received to reopen a finally adjudicated claim, the recently submitted evidence will be presumed credible. See Kutscherousky v. West, 12 Vet. App. 369, 371 (1999) (per curium) (holding that the "presumption of credibility" doctrine continues to be precedent). 
The Court of Appeals for Veterans Claims (Court) has held that the determination of whether newly submitted evidence raises a reasonable possibility of substantiating the claim should be considered a component of the question of what is new and material evidence, rather than a separate determination to be made after the Board has found that evidence is new and material. Shade v. Shinseki, 24 Vet. App. 110 (2010).  The Court further held that new evidence would raise a reasonable possibility of substantiating the claim if, when considered with the old evidence, it would at least trigger the Secretary's duty to assist. Id.   
An October 2004 rating decision denied the Veteran’s claims for service connection for right ear hearing loss, tinnitus, and pilonidal cyst.  The evidence of record at that time included service medical records as well as a statement from the Veteran asserting that he has experienced these problems since his in-service accident.  It was held that the Veteran had not submitted any medical evidence indicating a current diagnosis of hearing loss and/or tinnitus related to service or that there is a medical nexus or link between any present pilonidal cyst and military service or service-related disorder.  Notice of the determinations and his appellate rights were issued later that same month.  No appeal was taken from the denial of service connection for hearing loss, tinnitus, or pilonidal cyst, and new and material evidence was not received with the one-year appeal period following the October 2004 rating decision denying the claims.  As such, the October 2004 rating decision is final as to the denial of the claims for service connection for right ear hearing loss, tinnitus, and pilonidal cyst.  38 U.S.C. § 7105; 38 C.F.R. §§ 3.104, 20.1103.  
Accordingly, the claims may only be reopened and considered on the merits if new and material evidence has been received since the time of the prior final adjudication.  38 U.S.C. § 5108; 38 C.F.R. § 3.156(a); Jackson v. Principi, 265 F.3d 1366 (Fed. Cir. 2001).
In an October 2006 statement, the Veteran reproduced the exact assertions made with regard to right ear hearing loss, tinnitus, and pilonidal cyst as in the previous March 2003 statement.  This identical evidence is not new.  
VA and private treatment records have been associated with the claims file since the October 2004 rating decision.  Although this evidence is new, such records do not document complaints of or treatment for right ear hearing loss or pilonidal cyst.  
With respect to the applications to reopen claims for service connection for right ear hearing loss and pilonidal cyst, the evidence added to the record is either cumulative or redundant of the evidence previously of record, or it does not relate to an unestablished fact necessary to substantiate the claims and is not sufficient to raise a reasonable possibility of substantiating the claims. 
Since the October 2004 rating decision, records have been added to the Veteran’s VA claims file which were provided by the Social Security Administration.  Among those records was a May 2002 Michigan Disability Mental Status Exam note which documented the Veteran’s report of experiencing loss of balance and intermittent ringing in his ears.  This evidence is not cumulative or redundant of the evidence previously of record and relates to an unestablished fact necessary to substantiate the claim.  The credibility of the evidence is also presumed.  Justus v. Principi, 3 Vet. App. 510, 512-513 (1992). Therefore, it is found to be new and material, and reopening the issue of entitlement to service connection for tinnitus is warranted.     
Increased Ratings
Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities, found in 38 C.F.R., Part 4.  The rating schedule is primarily a guide in the evaluation of disability resulting from all types of diseases and injuries encountered as a result of or incident to military service.  The ratings are intended to compensate, as far as can practicably be determined, the average impairment of earning capacity resulting from such diseases and injuries and their residual conditions in civilian occupations. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for that rating. 38 C.F.R. § 4.7. 
In considering the severity of a disability, it is essential to trace the medical history of the Veteran. 38 C.F.R. §§ 4.1, 4.2, 4.41.  Consideration of the whole-recorded history is necessary so that a rating may accurately reflect the elements of disability present. 38 C.F.R. § 4.2; Peyton v. Derwinski, 1 Vet. App. 282 (1991).  While the regulations require review of the recorded history of a disability by the adjudicator to ensure a more accurate evaluation, the regulations do not give past medical reports precedence over the current medical findings.  Where an increase in the disability rating is at issue, the "present level" of the Veteran's disability is the primary concern.  Francisco v. Brown, 7 Vet. App. 55, 58 (1994).  However, where VA's adjudication of an increased rating claim is lengthy, a claimant may experience multiple distinct degrees of disability that would result in different levels of compensation from the time the increased rating claim was filed until a final decision on that claim is made.  Thus, VA's determination of the "present level" of a disability may result in a conclusion that the disability has undergone varying and distinct levels of severity throughout the entire time period the increased rating claim has been pending.  Hart v. Mansfield, 21 Vet. App. 505 (2007). 
Similarly, where a Veteran appeals the initial rating assigned for a disability at the time that service connection for that disability is granted, evidence contemporaneous with the claim and with the initial rating decision granting service connection would be most probative of the degree of disability existing at the time that the initial rating was assigned and should be the evidence "used to decide whether an original rating on appeal was erroneous . . . ." Fenderson v. West, 12 Vet. App. 119, 126 (1999).  If later evidence indicates that the degree of disability increased or decreased following the assignment of the initial rating, "staged" ratings may be assigned for separate periods of time based on facts found. Id.   
The Board has reviewed all the evidence of record.  Although the Board has an obligation to provide adequate reasons and bases supporting its decisions, there is no requirement that the Board discuss every piece of evidence in the record.  See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000).  The Board will summarize the relevant evidence, as deemed appropriate, and the Board's analysis will focus on what the evidence shows, or fails to show, as to each claim.
Musculoskeletal Disabilities
Disability of the musculoskeletal system is primarily the inability, due to damage or infection in the parts of the system, to perform the normal working movements of the body with normal excursion, strength, speed, coordination, and endurance.  It is essential that the examination on which ratings are based adequately portrays the anatomical damage and the functional loss with respect to all of these elements.  In evaluating disabilities of the musculoskeletal system, it is necessary to consider, along with the schedular criteria, functional loss due to flare-ups of pain, fatigability, incoordination, pain on movement, and weakness.  DeLuca v. Brown, 8 Vet. App. 202 (1995).  The functional loss may be due to absence of part, or all, of the necessary bones, joints and muscles, or associated innervation, or other pathology and evidenced by visible behavior of the claimant undertaking the motion.  
Weakness is as important as limitation of motion, and a part that becomes painful on use must be regarded as seriously disabled.  38 C.F.R. § 4.40.  Pain on movement, swelling, deformity or atrophy of disuse as well as instability of station, disturbance of locomotion, interference with sitting, standing and weight bearing are relevant considerations for determination of joint disabilities.  38 C.F.R. § 4.45.  Painful, unstable, or malaligned joints, due to healed injury, are entitled to at least the minimum compensable rating for the joint.  38 C.F.R. § 4.59.
It is important to note that the November 2017 VA examination report complies with the holding in Correia v. McDonald, 28 Vet. App. 158 (2016).  In Correia, the Court interpreted 38 C.F.R. § 4.59 as requiring examinations to include joint testing in both active and passive motion, in weight-bearing and non-weight bearing, and, when possible, of the opposite joint. Id. at 169-70.  Such is found to substantially comply with the Board’s March 2017 remand directives.
Left and Right Hip
The Veteran’s degenerative changes with cystic lesion, left hip is rated 10 percent disabling for the entire appeal period by analogy to Diagnostic Code (DC) 5003 for degenerative arthritis.  The Veteran’s osteoarthritis of the right hip currently has a noncompensable evaluation prior to February 19, 2010 under DC 5010-5252 for arthritis and limitation of flexion and a 10 percent evaluation thereafter under DC 5010-5251 for arthritis and limitation of extension.   38 C.F.R. § 4.71a, DCs 5003, 5010, 5251, 5252.
DCs 5003 and 5010, used for evaluating degenerative and traumatic arthritis provide that the severity of degenerative arthritis, established by X-ray findings, is to be rated on the basis of limitation of motion under the appropriate diagnostic code for the specific joint or joints affected, which in this case would be DC 5251 (limitation of extension of the thigh) and DC 5252 (limitation of flexion of the thigh).  When there is arthritis with at least some limitation of motion, but to a degree which would be noncompensable under a limitation-of-motion code, a 10 percent rating will be assigned for each affected major joint or group of minor joints.  Limitation of motion must be objectively confirmed by findings such as swelling, muscle spasm, or satisfactory evidence of painful motion.  In the absence of limitation of motion, a 10 percent evaluation is to be assigned if there is X-ray evidence of involvement of 2 or more major joints or 2 or more minor joint groups and a 20 percent evaluation is to be assigned if there is X-ray evidence of involvement of 2 or more major joints or 2 or more minor joint groups and there are occasional incapacitating exacerbations.  38 C.F.R. § 4.71a, DC 5003.
DC 5251 provides that a 10 percent evaluation is warranted for limitation of extension of the thigh to 5 degrees.  Diagnostic Code 5252 provides that the following evaluations are warranted for limitation of flexion of the thigh: 10 percent for flexion limited to 45 degrees; 20 percent for flexion limited to 30 degrees; 30 percent for flexion limited to 20 degrees; and 40 percent for flexion limited to 10 degrees.  DC 5253 provides for a 10 percent evaluation for limitation of rotation of the thigh prohibiting toe-out more than 15 degrees for the affected leg, a 10 percent evaluation for limitation of adduction preventing crossing of the legs, and a 20 percent evaluation for limitation of abduction of the thigh with motion lost beyond 10 degrees.         
Normal ranges of motion of the hip are hip flexion from 0 to 125 degrees, and hip abduction from 0 to 45 degrees.  38 C.F.R. § 4.71a, Plate II.
On VA examination of the joints on February 1, 2005, active and passive motion testing of the left hip showed flexion to 120 degrees, with pain and fatiguability at the last 10 degrees and lack of endurance due to pain at the greater trochanter.  Left hip abduction was recorded to 25 degrees on active and passive motion, with pain, fatiguability, and lack of endurance with repetitive use due to pain.  Left hip external rotation was to 45 degrees with pain, fatiguability, and lack of endurance due to fatiguability.  Active and passive range of motion testing of the right hip showed flexion to 115 degrees with pain, fatiguability and lack of endurance at the last 5 degrees, abduction to 25 degrees with 30 degrees pain and fatiguability and lack of endurance with repetitive use due to pain.  External rotation for the right hip was to 40 degrees, with pain beginning at 30 degrees due to lack of endurance with repetitive use due to pain.      
On VA examination of the joints in February 2010, the Veteran described left hip pain, and reported giving way, instability, stiffness, weakness, incoordination, decreased speed of motion, weekly locking, and flare-ups of pain every one or two months lasting between three and seven days brought on by prolonged walking, standing or sitting.  He reported that when he has these flare-ups, he has to rest and take it easy.  On physical examination, the examiner noted tenderness, pain at rest, and guarding of movement.  Range of motion testing for the left hip showed flexion from 0-105 degrees, extension from 0-25 degrees, and abduction from 0-40 degrees.  Range of motion testing for the right hip showed flexion from 0-110 degrees, extension from 0-30 degrees, and abduction from 0-45 degrees.  Bilaterally, the Veteran was noted to be able to cross his legs and toe out greater than 15 degrees.  Objective evidence of pain was noted during active motion for both hips, and no additional limitation of motion was demonstrated following three repetitions of motion. 
On VA examination of the joints in September 2010, range of motion testing for the left hip showed flexion from 0-100 degrees, extension from 0-30 degrees, and abduction from 0-30 degrees.  Range of motion testing for the right hip showed flexion from 0-105 degrees, extension from 0-30 degrees, and abduction from 0-40 degrees.  Bilaterally, the Veteran was able to cross one leg over the other and be able to toe out.  Objective evidence of pain with active motion was noted for all ranges of motion.
On private examination in July 2016 recorded on a Disability Benefits Questionnaire, the Veteran was noted to have stiffness of both hips.  Range of motion testing for the left hip showed flexion to 120 degrees with objective evidence of painful motion at 120 degrees, and extension greater than 5 degrees with painful motion greater than 5 degrees.  Range of motion testing for the right hip showed flexion to 120 degrees with objective evidence of pain at 120 degrees, and extension greater than 5 degrees with painful motion at greater than five degrees.  Bilaterally, abduction was not lost beyond 10 degrees, adduction was not limited such that the Veteran could not cross his legs, and rotation was not limited to an extent to prevent the Veteran from being able to toe-out more than 15 degrees.  There was no further limitation of motion for either hip following repetitive use, though the examiner noted weakened movement and pain on movement for both hips after repetitive use testing. 
On VA examination of the joints in November 2017, the Veteran was noted to have minimal degenerative joint disease of the bilateral hips.  The Veteran reported inflammation and loss of muscle control at the hip, which he describes as his mind telling his leg to go in one direction and his leg going in another.  He described pain with walking, standing, particularly on concrete, sitting, and inclement weather.  The Veteran reported that he could realistically stand for maybe three minutes, although the examiner noted that the Veteran stood for much longer during the examination to do range of motion testing, and also was able to squat and stand back up, all with fluid movements.  Range of motion testing for both hips was noted to be normal and without objective evidence of pain demonstrated.  The examiner noted no pain with weight bearing and no evidence of localized tenderness or pain on palpation of the joints.  No additional limitation of motion was found following repetitive use testing.  The examiner noted no hip pain bilaterally with passive range of motion testing, or when the joint was used in non-weightbearing.  The examination report documents that the Veteran did not have ankylosis of either hip, or malunion or nonunion of the femur, flail hip joint, or leg length discrepancy.  The Veteran was noted to occasionally use a cane, which he reported using if walking on uneven surfaces or if the weather is inclement.
The Board finds that the preponderance of the evidence is against the Veteran’s claim for a disability rating greater than the 10 percent currently assigned for his left hip disability.  The Veteran has contended that this disability is more disabling than currently evaluated.  The evidence of record, however, does not support his assertions regarding worsening of this disability.  At the various examinations during the relevant appeal period, the Veteran’s left hip was shown, at worst to have flexion limited to 100 degrees and abduction limited to 25 degrees.  The Veteran’s left hip disability was never shown to involve impairment of the femur, limitation of extension to 5 degrees, limitation of adduction such that he could not cross his legs, limitation of rotation such that he could not toe-out more than 15 degrees, or ankylosis.  Even considering the Veteran’s reports of flare-ups and additional pain following repeated use, as well as pain, weakness, or painful movement under 38 C.F.R. §4.40 and 4.45, such is not found to result in additional functional impairment comparable to flexion limited to 30 degrees or limitation of abduction with motion lost beyond 10 degrees.  Further, while the Board notes the Veteran’s report of inflammation and loss of muscle control in his hip (not clearly specifying which hip), there is no objective evidence that the Veteran suffers from flail joint of the hip.  
Thus, the Board finds that the criteria for a disability rating greater than the 10 percent presently assigned for the left hip disability have not been met, and the claim must be denied.  
The Board also finds that the preponderance of the evidence is against the Veteran’s claim for a disability rating greater than the 10 percent currently assigned for his right hip disability.  The Veteran has contended that this disability is more disabling than currently evaluated.  The evidence of record, however, does not support his assertions regarding worsening of this disability.  At the various examinations during the relevant appeal period, the Veteran’s right hip was shown, at worst to have flexion limited to 105 degrees and abduction limited to 25 degrees.  The Veteran’s right hip disability was never shown to involve impairment of the femur, limitation of extension to 5 degrees, limitation of adduction such that he could not cross his legs, limitation of rotation such that he could not toe-out more than 15 degrees, or ankylosis.  Even considering the Veteran’s reports of flare-ups and additional pain following repeated use, as well as pain, weakness, or painful movement under 38 C.F.R. §4.40 and 4.45, such is not found to result in additional functional impairment comparable to flexion limited to 30 degrees or limitation of abduction with motion lost beyond 10 degrees.  Further, while the Board notes the Veteran’s report of inflammation and loss of muscle control in his hip (not clearly specifying which hip), there is no objective evidence that the Veteran suffers from flail joint of the hip.  
Thus, the Board finds that the criteria for a disability rating greater than the 10 percent presently assigned for the right hip disability have not been met, and the claim must be denied.
The evidence of record is found to support the award of an earlier effective date of February 1, 2005 for the award of the increased 10 percent disability rating for the right hip disability.  
A January 2003 rating decision granted the Veteran’s claim for service connection for osteoarthritis in the right hip, and assigned a noncompensable disability rating effective from February 5, 2001.  In a March 2014 decision, the Board held that a timely substantive appeal was not filed as to the January 2003 rating decision, and that finality attached to the decision.  
In a February 2011 rating decision, the RO continued the noncompensable disability rating for osteoarthritis of the right hip, and the Veteran submitted a NOD with the evaluation assigned in May 2011.  In an October 2014 rating decision, the RO found that a clear and unmistakable error was found in the February 2011 decision that failed to grant a compensable evaluation for the right hip condition, and granted a 10 percent disability rating for osteoarthritis with limitation of extension in the right hip effective from February 19, 2010.  The RO found that February 19, 2010 was the date the evidence first demonstrated entitlement to the benefit, the date of the VA examination recording painful limited motion of the right hip.  
The claims file includes a February 1, 2005 VA examination report wherein the Veteran’s right hip flexion was recorded as being limited by 10 degrees, with evidence of pain and fatiguability at the last 5 degrees.  Thus, per 38 C.F.R. §4.59, entitlement to at least the minimum compensable rating for the joint was shown from this point.  No other communication or record between January 2003 and February 1, 2005 qualifies as a formal or informal claim for an increased disability rating.
While amendments to the pertinent regulations concerning the filing of claims require that a Veteran submit claims using a standardized form, this claim predates such change.  Under the pre-amendment 38 C.F.R. § 3.157(b), once a claim for compensation has been allowed, receipt of a VA outpatient or hospital examination or admission to a VA hospital will be accepted as an informal claim for increased benefits.  See Servello v. Derwinski, 3 Vet. App. at 199.  The date on the VA outpatient or hospital examination will be accepted as the date of claim.  38 C.F.R. § 3.157(b).  
An earlier effective date of February 1, 2005 for the award of a 10 percent disability rating for the Veteran’s service-connected right hip disability is therefore found warranted.  
Left and Right Knee
The Veteran’s degenerative changes of the left knee is rated 10 percent disabling for the entire appeal period by analogy to DC 5003 for degenerative arthritis.  The Veteran’s right knee tendonitis has a 10 percent evaluation for limitation of extension under DC 5024-5261 effective from October 23, 2001 and a separate 10 percent evaluation for laxity under DC 5024-5257, used to evaluate other impairment of the knee to include recurrent subluxation or lateral instability. 
Under DC 5257, used for rating instability of the knee, a 10 percent disability rating is assigned for other impairment of the knee, where recurrent subluxation or lateral instability is slight; a 20 percent disability rating is assigned when such impairment is moderate; and a 30 percent disability rating is assigned when such impairment is severe.  38 C.F.R. § 4.71a, DC 5257.
Under DC 5258, a 10 percent disability evaluation is assigned for removal of semilunar cartilage that is symptomatic and a 20 percent disability rating is assigned for dislocated semilunar cartilage with frequent episodes of locking, pain, and effusion into the joint.  38 C.F.R. § 4.71a, DC 5258.
The words slight, moderate, and severe as used in the various diagnostic codes are not defined in the VA Schedule for Rating Disabilities.  Rather than applying a mechanical formula, the Board must evaluate all of the evidence, to the end that its decisions are equitable and just. 38 C.F.R. § 4.6.  It should also be noted that use of terminology such as severe by VA examiners and others, although an element to be considered by the Board, is not necessarily dispositive of an issue.  All evidence must be evaluated in arriving at a decision regarding an increased rating. 38 C.F.R. §§ 4.2, 4.6.
Under DC 5260, a 10 percent disability rating is assigned when flexion of the knee is limited to 45 degrees; a 20 percent disability rating is assigned when flexion is limited to 30 degrees; and a 30 percent disability rating is assigned when flexion is limited to 15 degrees.  38 C.F.R. § 4.71a, DC 5260. 
Under DC 5261, a 10 percent disability rating is assigned when extension is limited to 10 degrees; a 20 percent disability rating is assigned when extension is limited to 15 degrees; and a 30 percent disability rating is assigned when extension is limited to 20 degrees.  38 C.F.R. § 4.71a, DC 5261.
Standard range of knee motion is from 0 degrees (extension) to 140 degrees (flexion).  38 C.F.R. § 4.71, Plate II.
Separate ratings can be assigned for knee disabilities when none of the symptomatology overlaps and the separate rating is based on additional disabling symptomatology; this includes separate ratings based on limitation of flexion (DC 5260), limitation of extension (DC 5261), lateral instability or recurrent subluxation (DC 5257), and meniscal conditions (DCs 5258, 5259).  See VAOPGCPREC 23-97, 62 Fed. Reg. 63,603 (1997); VAOPGCPREC 9-98, 63 Fed. Reg. 56,703 (1998); VAOPGCPREC 9-2004; 69 Fed. Reg. 59,988 (2004); Lyles v. Shulkin, 29 Vet. App. 107 (2017).
Ratings can also be assigned for impairment of the tibia or fibula, genu recurvatum, or ankylosis of the knee.  38 C.F.R. § 4.71a, DCs 5256, 5262, 5263. 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). Ankylosis is also defined as "immobility and consolidation of a joint due to disease, injury, or surgical procedure." DORLAND'S ILLUSTRATED MEDICAL DICTIONARY 93 (30th ed. 2003). The Board notes that, in this case, the evidence does not reflect, and the Veteran does not allege, that he has tibia or fibula impairment, genu recurvatum, or ankylosis.  As such, those diagnostic codes are not for application.
On VA examination in April 2000, physical examination showed no evidence of tenderness and the Veteran displayed normal range of motion for the knees bilaterally.  The report also states that there was no swelling or loosened patellar joint.
A February 2002 VA physical medicine and rehabilitation note documented the Veteran’s statement that his right knee has given out on him at times. 
On VA examination in March 2002, the Veteran reported pain on and off for his knees, including experiencing more problems more frequently with right knee pain leading to him losing balance due to “instability on his legs due to the pain.”  Range of motion testing for the left knee demonstrated flexion from 0-135 degrees, without evidence of pain.  Range of motion testing for the right knee demonstrated flexion from 0-130 degrees, with the Veteran complaining of some aching in the knee that irradiated to his hip with that movement.  No stability findings were listed.
On VA examination of the joints in February 2005, the Veteran reported right knee pain which gets worse with walking, standing and sitting.  He also reported left knee pain, but stated that the knee does not swell but is more aching.  He reported that the left knee does not give way, but that the right knee has laxity and locks up once or twice a week.  He described difficulty going up and down stairs and stated that driving causes bilateral knee pain, particularly on the right because he has to hold his foot extended for a period of time.  Range of motion testing for the left knee showed flexion to 130 degrees with pain and crepitation evidenced from 115 to 130 degrees, and full extension.  Stability testing for the left knee was negative for instability.  Range of motion testing for the right knee showed flexion to 115 degrees, with pain and fatiguability from 100 to 115 degrees, as well as crepitation and lack of endurance due to pain; extension was full.  Stability testing for the right knee was negative except that the Veteran was shown to have grade 1 anterior-posterior laxity on the right knee.  The examiner noted an impression of ACL insufficiency of the right knee by proximation of favoritism rendered by the injury to the pelvis in service.
At the November 2008 Travel Board hearing, the Veteran testified that he experienced pain and stiffness in the right knee which interfered with his ability to climb stairs and walk distances.  He stated that increased pain and stiffness “turns to laxity.”  He reported that he had been prescribed a brace for the knee, but that he had not been to pick it up, and further stated that he had fallen because of his knees when on uneven ground and is unable to kneel or squat comfortably.
On VA examination of the joints in February 2010, the Veteran reported giving way, instability, pain, stiffness, weakness, incoordination, decreased speed, and locking several times per week.  Under the summary of general joint findings, for the right and left knee together, the examiner noted mild medial/lateral instability.  Range of motion testing of the left knee showed flexion to 140 degrees, extension limited by 10 degrees, and objective evidence of pain with active motion.  Range of motion testing of the right knee showed flexion to 140 degrees, extension limited by 10 degrees, and objective evidence of pain with active motion.  There was objective evidence of pain following repetitive motion, with flexion for the right knee limited to 130 degrees following repetitive motion.
On VA examination of the joints in September 2010, the Veteran reported giving way, instability, pain, stiffness, weakness, decreased speed of joint motion, daily or more often locking episodes, with severe flare-ups occurring weekly and lasting for hours.  The Veteran reported that when experiencing a flare-up, he has to rest and uses the jacuzzi tub to get relief.  Under the summary of joint findings, the examiner found left knee tenderness and weakness, but no instability or patellar or meniscus abnormality.  For the right knee, the examiner found tenderness, grinding, and medial/lateral instability of moderate severity.  Range of motion testing for the left knee showed flexion to 125 degrees with normal extension.  Range of motion testing for the right knee showed flexion to 140 degrees with normal extension.  There was objective evidence of painful motion on active motion and pain following repetitive motion for both knees, without additional limitation of motion after three repetitions.
On private examination of the knees in July 2016, documented on a disability benefits questionnaire, the examiner provided a diagnosis of chronic instability of the right knee.  The Veteran reported flare-ups which make it difficult to walk due to pain and instability.  Range of motion testing for the left knee showed flexion to 120 degrees with objective evidence of painful motion at 120 degrees, and full extension with evidence of painful motion at 0 degrees.  Range of motion testing for the right knee showed flexion to 120 degrees with objective evidence of painful motion at 120 degrees, and full extension with evidence of painful motion beginning at 0 degrees.  There was no further limitation of motion following repetitive use testing.  The examiner did note that following repetitive use, the Veteran experienced incoordination, impaired ability to execute skilled movements smoothly for the left knee and more movement than normal for the right knee.  Joint stability testing demonstrated no instability for the left knee, and 1+ anterior instability of the right knee.  The Veteran had no meniscal conditions.  He was noted to use a cane for stability when walking for any length of time.
On VA examination of the knees in November 2017, the Veteran reported that his right knee “locks up and won’t move and will go backwards.”  He stated that walking, bending, lifting, and kneeling increases his knee pain.  The Veteran reported being prescribed a knee brace but stated that he does not wear it.  He further stated that he uses a jacuzzi tub to help relieve his knee pain, as well as using heat.  The Veteran additionally reported flare-ups with activity, stating that he uses cruise control because his foot on the gas pedal causes inflammation.  The examiner observed that the Veteran stood at intervals during the examination, and that at one point he squatted and stood back up with fluid movements.  Range of motion testing for the left knee showed flexion to 135 degrees and extension to 0 degrees.  Range of motion testing for the right knee showed flexion to 135 degrees and extension to 0 degrees.  There was no further limitation of function for either knee following repetitive use testing.  Bilaterally, there was no objective evidence of pain, weakness, fatigability, or incoordination.  There was also no evidence of pain with passive range of motion, in non-weightbearing, or with weightbearing.  Joint stability testing was performed without joint instability shown for either knee.  Movements were fluid, gait was non-antalgic, and the Veteran was observed to have no difficulty getting on and off the examination table or in and out of the chair.  
The Board finds that the preponderance of the evidence is against the Veteran’s claim for a disability rating greater than the 10 percent currently assigned for his degenerative changes of the left knee.  The Veteran has contended that this disability is more disabling than currently evaluated.  The evidence of record, however, does not support his assertions regarding the extent of worsening of this disability.  At the various examinations during the relevant appeal period, the Veteran’s left knee was shown, at worst to have flexion limited to 120 degrees and extension limited to 10 degrees, notably at different times.  The Veteran’s left knee disability was never shown to involve both limitation of flexion and limitation of extension simultaneously as would potentially warrant separate compensable evaluations under DCs 5260 and 5261.  Additionally, while the Veteran has at times stated that his knees give away, physical examination of the Veteran has not demonstrated objective indications of instability for the left knee.  The Board notes that although the February 2010 VA examination report noted mild medial/lateral instability under general joint findings for the right and left knee together, it is not clear that testing for each knee demonstrated such instability.  A conclusion that such reported instability pertains to the right knee, rather than the left knee, is supported by the fact that the right knee had consistently been shown to display medial/lateral instability by examination before and after the February 2010 examination and that an examination report shortly thereafter in September 2010 specifically found no evidence of left knee instability.  
Even considering the Veteran’s reports of pain, stiffness, weakness, flare-ups of pain and additional pain following prolonged standing and walking, as well as painful movement, such is not found to result in additional functional impairment comparable to flexion limited to 30 degrees or extension limited to 15 degrees.  Further, while the Board notes the Veteran’s report that he experienced “locking” in his knees, there is no competent evidence that the Veteran suffers from a meniscal condition warranting a separate compensable disability rating under DC 5258.  
Thus, the Board finds that the criteria for a disability rating greater than the 10 percent presently assigned for degenerative changes of the left knee have not been met, and the claim must be denied.
The Veteran’s appeal seeking a greater initial disability rating for tendonitis of the right knee concerns the appropriateness of a greater initial disability rating based on limitation of motion and whether separate and/or greater disability ratings are warranted for limitation of flexion, limitation of extension, instability, or meniscal disorder from the date service connection became effective.
A preponderance of the evidence is found to weigh against an initial evaluation in excess of the 10 percent assigned during the relevant appeal period on the basis of limitation of motion, to include separate compensable evaluations for limitation of flexion and limitation of extension under DCs 5260 and 5261.  At the various examinations during the relevant appeal period, the Veteran’s right knee was shown at worst to have flexion limited to 115 degrees, with painful motion beginning at 100 degrees, and extension limited to 10 degrees, notably at different times.  The Veteran’s right knee disability was never shown to manifest in both measurable limitation of flexion and limitation of extension simultaneously.  While the Veteran has described flare-ups involving increased pain, stiffness, and weakness of the right knee with standing, walking, and sitting as well as painful motion, such has not been shown to result in additional functional impairment as would result in extension limited to 15 degrees, or flexion limited to 45 degrees whilst extension was limited to 10 degrees.  Thus, a disability rating in excess of the 10 percent currently assigned for tendonitis of the right knee manifesting in limitation of extension, to include a separate compensable disability rating for limited flexion of the right knee, is not found warranted at any point during the relevant appeal period.
When resolving all reasonable doubt in the Veteran’s favor, an additional initial compensable disability rating is found warranted from the beginning of the appeal period for right knee laxity.  The Veteran reported problems with losing his balance due to instability at the March 2002 VA examination, and a February 2002 VA physical medicine and rehabilitation note documented the Veteran’s report that his right knee has given out sometimes.  Although medical evidence documenting laxity of the right knee on stability testing does not appear in the record before the February 2005 VA examination report, the Veteran is competent to report his subjective perception of right knee instability.  The Board therefore finds that the evidence has at least reached the point of equipoise so as to allow for resolution of doubt in the Veteran’s favor.  An earlier effective date of October 23, 2001, the date of the claim for service connection, for the award of a separate compensable disability rating for tendinitis of the right knee manifested by laxity is therefore found warranted.  
The Board additionally finds that the evidence of record supports the award of a higher 20 percent disability rating for tendonitis of the right knee manifested by laxity from September 22, 2010 to July 18, 2016, based on the examiner’s finding at the September 2010 VA examination that the Veteran demonstrated medial-lateral that was of moderate severity.  At all points before and after these dates, stability testing of the right knee demonstrated at most instability described by the examiners as mild, or as 1+ at the July 19, 2016 private examination.  The objective medical results from stability testing are found to be the most probative evidence as to the severity of the Veteran’s right knee instability throughout the appeal period.           
Cervical Spine
The Veteran’s service-connected degenerative disc disease of the cervical spine is currently evaluated as 10 percent disabling from October 23, 2001 to July 18, 2016 and as 20 percent disabling from July 19, 2016 to present under DC 5242-5237; DC 5242 is used to evaluate degenerative arthritis of the spine and DC 5237 is used to evaluate lumbosacral or cervical strain.  The Board finds, however, that the Veteran’s degenerative disc disease, demonstrated by X-ray findings, is more appropriately rated under DC 5243, used for rating intervertebral disc syndrome.
Intervertebral disc syndrome is evaluated either under the General Rating Formula for Diseases and Injuries of the Spine (General Rating Formula) or under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes, whichever method results in the higher evaluation when all disabilities are combined under § 4.25.
Under the General Rating Formula, a 10 percent rating is warranted for forward flexion of the cervical spine greater than 30 degrees but not greater than 40 degrees; or, combined range of motion of the cervical spine greater than 170 degrees but not greater than 335 degrees; or, muscle spasm, guarding, or localized tenderness not resulting in abnormal gait or abnormal spinal contour; or, vertebral body fracture with loss of 50 percent or more of the height;
A 20 percent rating is warranted for forward flexion of the cervical spine greater than 15 degrees but not greater than 30 degrees; or, the combined range of motion of the cervical spine not greater than 170 degrees; or, muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis; 
A 30 percent rating is warranted for forward flexion of the cervical spine 15 degrees or less; or, favorable ankylosis of the entire cervical spine; 
A 40 percent rating is warranted if there is unfavorable ankylosis of the entire cervical spine; 
A 100 percent rating is warranted for ankylosis of the entire spine. Id. 
Any associated objective neurologic abnormalities, including, but not limited to bowel or bladder impairment are to be evaluated separately under an appropriate diagnostic code. Id., Note (1). 
Normal forward flexion of the cervical spine is zero to 45 degrees, extension is zero to 45 degrees, left and right lateral flexion are zero to 45 degrees, and left and right lateral rotation are zero to 80 degrees.  The combined range of motion refers to the sum of the range of forward flexion, extension, left and right lateral flexion, and left and right rotation.  The normal combined range of motion of the cervical spine is 340 degrees.  The normal ranges of motion for each component of spinal motion provided in this note are the maximum that can be used for calculation of the combined range of motion.  Note 2, General Rating Formula for Disease and Injuries of the Spine, 38 C.F.R. § 4.71a, Plate V.
Intervertebral disc syndrome may be rated under the General Rating Formula, as outlined above, or may instead be rated based on incapacitating episodes, depending on whichever method results in the higher evaluation when all service-connected disabilities are combined under 38 C.F.R. § 4.25.  The rating criteria for intervertebral disc syndrome based on incapacitating episodes provides that a 20 percent rating applies for incapacitating episodes having a total duration of at least 2 weeks but less than 4 weeks during the past 12 months.  A 40 percent rating applies where the evidence shows incapacitating episodes having a total duration of at least 4 weeks but less than 6 weeks during the past 12 months.  A 60 percent rating applies where evidence shows the incapacitating episodes have a total duration of at least 6 weeks during the past 12 months. 
Note (1) to Diagnostic Code 5243 defines an "incapacitating episode" as "a period of acute signs and symptoms due to intervertebral disc syndrome that requires bed rest prescribed by a physician and treatment by a physician."
On VA examination in March 2002, the Veteran described experiencing pain off and on in the neck.  Range of motion testing demonstrated flexion from 0-30 degrees, extension from 0-25 degrees, lateral bend from 0-40 degrees bilaterally, and lateral rotation from 0 to approximately 40 degrees bilaterally, all without objective evidence of painful motion.
At the November 2008 Travel Board hearing, the Veteran testified that he has trouble driving long distances because of his neck, and that he will have to get out of the car and stretch.
On VA examination on February 19, 2010, the Veteran endorsed all symptom choices (fatigue, decreased motion, stiffness, weakness, spasms, and pain), and described experiencing sharp moderate pain weekly to monthly lasting for 3-7 days.  He also reported severe flare-ups of the spinal conditions occurring every one or two months lasting for 3-7 days at a time brought on by too much activity and lifting.  He described alleviating factors to include rest, physical therapy, pain medications, and muscle relaxants, and described his functional impairment during flare-ups as he “has to take it easy.”  The report notes no incapacitating episodes for the cervical spine during the past 12-month period.  On physical examination, the Veteran’s head position and posture were found to be normal and symmetrical, and there was no ankylosis of the cervical spine.  The examiner found no objective abnormalities of the cervical spine such as spasm, atrophy, guarding, pain with motion, tenderness, or weakness.  Range of motion testing demonstrated flexion from 0-45 degrees, extension from 0-45 degrees, left lateral flexion from 0-45 degrees, left lateral rotation from 0-80 degrees, right lateral flexion from 0-45 degrees, and right lateral rotation from 0-75 degrees.  There was no objective evidence of pain or additional limitation of motion after repetitive use testing. 
On VA examination in September 2010, the Veteran reported severe flare-ups of neck pain on a daily basis lasting for hours.  He stated that rest, pain medication, and using the jacuzzi helps with the pain.  The Veteran again endorsed fatigue, decreased motion, stiffness, weakness, spasm, and pain.  The report indicates that the Veteran did not have any incapacitating episodes for the cervical region during the last 12-month period.  Physical inspection of the spine showed normal posture and head position with symmetrical appearance.  There was no abnormal spine curvature or ankylosis of the cervical spine.  The examiner found no objective abnormalities of the cervical spine, to include no guarding, spasm, pain with motion, or weakness.  Range of motion testing of the cervical spine showed flexion from 0-45 degrees, extension from 0-45 degrees, left lateral flexion from 0-45 degrees, left lateral rotation from 0-80 degrees; right lateral flexion from 0-45 degrees, and right lateral rotation from 0-80 degrees.  There was no objective evidence of pain or additional limitation of motion after three repetitions of range of motion. 
On private examination on July 19, 2016, the Veteran reported neck pain radiating into his shoulders and waking up daily with stiffness in his neck.  He also stated that activity makes his symptoms worse, and that during flare-ups, he has more difficulty moving his head forward, backwards, and side to side.  On range of motion testing of the cervical spine, flexion was shown from 0-45 degrees, extension from 0-35 degrees, right and left lateral flexion from 0-30 degrees, and right and left lateral rotation from 0-45 degrees.  There was no further limitation of motion after repetitive use testing.  The examiner, however, provided an opinion that pain, weakness, fatigability, and incoordination would limit all ranges of motion by an additional 5 degrees after repeated use over time.  The private physician also indicated that the Veteran experienced incapacitating episodes of at least 2 weeks but less than 4 weeks during the prior 12-month period.
A VA physical medicine rehabilitation record from August 2016 documents range of motion testing for the cervical spine showing flexion to 30 degrees, extension to 40 degrees, right lateral rotation to 55 degrees, left lateral rotation to 50 degrees, right lateral flexion to 25 degrees, and left lateral flexion to 25 degrees.  Range of motion testing performed in September 2016, a few weeks later, showed flexion to 40 degrees, extension to 45 degrees, right lateral rotation to 60 degrees, left lateral rotation to 65 degrees, right lateral flexion to 35 degrees, and left lateral flexion to 35 degrees.  Another September 2016 record from approximately one week later documented range of motion testing showing flexion to 45 degrees, extension to 50 degrees, right lateral rotation to 60 degrees, left lateral rotation to 65 degrees, and right and left lateral flexion to 35 degrees.  The physician noted that the Veteran had made progress with his neck symptoms and that the Veteran’s activity level was increasing.
On VA examination in November 2017, the Veteran reported that his neck is tight first thing in the morning, and described having to crack it all the time.  He reported flare-ups brought on by sleeping and inactivity approximately three times per day.  Range of motion testing for the cervical spine showed flexion from 0-45 degrees, extension from 0-45 degrees, bilateral lateral flexion from 0-30 degrees, and bilateral lateral rotation from 0-60 degrees.  There was no objective evidence of pain, weakness, fatigability, or incoordination with range of motion testing.  The examiner noted that the Veteran repeatedly flexed and extended his neck and attempted to “crack” his neck with right and left lateral flexion and rotation during the examination, and that these movements were fluid and without objective evidence of pain or other symptomatology. 
The Board finds that the evidence of record supports a higher initial disability rating of 20 percent, but no higher, for degenerative disc disease of the cervical spine from October 23, 2001 to February 18, 2010, but that a preponderance of the evidence weighs against the assignment of a disability rating in excess of 10 percent from February 19, 2010 to July 18, 2016, or in excess of 20 percent from July 19, 2016 to the present.  The March 2002 VA examination report showed forward flexion limited to 30 degrees, the minimum limitation of motion contemplated by a 20 percent disability rating under the General Rating Formula.  While the Veteran testified in November 2008 that he experienced difficulties with driving relating to restrictions in his ability to turn his head to look over his shoulder, this limitation is not found to describe a disability comparable to that which would qualify for a higher 30 percent disability rating, which contemplates forward flexion limited to 15 degrees or favorable ankylosis of the entire cervical spine.  
At the February 19, 2010 VA examination, the Veteran demonstrated full flexion and a combined range of motion of the cervical spine of 335 degrees.  The September 2010 VA examination demonstrated full range of motion for the cervical spine without objective evidence of pain.  The evidence additionally did not demonstrate that the Veteran’s cervical spine disability manifested in muscle spasm or guarding severe enough to result in abnormal gait or abnormal spinal contour.  A preponderance of the evidence is against a finding that the severity of the Veteran’s cervical spine disability is more-closely reflected by the criteria for a 20 percent disability rating rather than the currently-assigned 10 percent disability rating from February 19, 2010 until the July 2016 examination demonstrated more severe symptoms.       
Finally, a preponderance of the evidence is found to weigh against an award for the cervical spine in excess of the 20 percent presently assigned from July 19, 2016 to the present.  Range of motion testing during this period demonstrates at worst forward flexion of the cervical spine limited to 30 degrees and a combined range of motion of the cervical spine of 225 degrees.  The Board has additionally considered the Veteran’s description of flare-ups of pain and stiffness, both with inactivity and activity, but does not find that such describes additional functional limitation during such periods which would more-closely be described by the 30 percent criteria, which contemplates forward flexion limited to 15 degrees or favorable ankylosis of the entire cervical spine.  The VA examiners have stated that they are unable to state without speculation whether the Veteran would experience significant functional loss during flare-ups and after repeated use over time, and the fact that the Veteran’s most-significant limitation of flexion of the cervical spine puts him at the low end of the criteria contemplated by the 20 percent rating, leads the Board to conclude that the Veteran’s cervical spine disability picture during this time is most-closely reflected by the criteria of forward flexion of the cervical spine greater than 15 degrees but no greater than 30 degrees.    
The Board has additionally considered whether a higher disability rating is warranted at any time during the appeal period for degenerative disc disease of the cervical spine on the basis of incapacitating episodes, but finds that the clinical evidence of record does not demonstrate that the Veteran has ever been prescribed bedrest by a physician due to his cervical spine disability.  It is noted that the private examination report from July 2016 states that the Veteran has experienced incapacitating episodes of at least 2 weeks but less than 4 weeks during the previous 12 months period.  Even assuming without deciding that this is an accurate representation, incapacitating episodes of such duration are specifically contemplated by the 20 percent disability rating currently assigned for that period. 
In summary, a higher initial 20 percent disability rating for degenerative disc disease of the cervical spine is warranted from October 23, 2001 to February 18, 2010; and disability ratings in excess of 10 percent from February 19, 2010 to July 18, 2016 and in excess of 20 percent from July 19, 2016 to the present are not warranted.
The Board notes that the Veteran is presently in receipt of a 20 percent disability rating for right upper extremity radiculopathy and a 20 percent disability rating for left upper extremity radiculopathy, both associated with degenerative disc disease of the neck.  The Veteran filed a January 2017 NOD with the evaluation and effective date assigned for the right upper extremity radiculopathy in a September 2016 rating decision.  The Board remanded the appeal in March 2017 for issuance of an SOC, which has not yet been issued.  
Mental Disorders
Depression
The Veteran’s service-connected depression is currently rated as 50 percent disabling under DC 9434, used to evaluate major depressive disorder using the General Rating Formula for Mental Disorders.  38 C.F.R. § 4.130, General Rating Formula for Mental Disorders.
Under the General Rating Formula for Mental Disorders, a 50 percent disability rating is contemplated for 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 is contemplated for occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood, due to such symptoms as: suicidal ideation; obsessional rituals which interfere with routine activities; speech intermittently illogical, obscure, or irrelevant; near-continuous panic or depression affecting the ability to function independently, appropriately, and effectively; impaired impulse control (such as unprovoked irritability with periods of violence); spatial disorientation; neglect of personal appearance and hygiene; difficulty in adapting to stressful circumstances (including work or worklike setting); inability to establish and maintain effective relationships.
A 100 percent disability rating is contemplated for total occupational and social impairment due to such symptoms as: gross impairment in thought processes or communication; persistent delusions or hallucinations; grossly inappropriate behavior; persistent danger of hurting self or others; intermittent inability to perform activities of daily living (including maintenance of minimal personal hygiene); disorientation to time or place; memory loss for names of close relatives, own occupation, or own name.
When evaluating a mental disorder, the rating agency shall consider the frequency, severity, and duration of psychiatric symptoms, length of remissions, and the Veteran’s capacity for adjustment during periods of remission.  38 C.F.R. § 4.126(a).  The rating agency shall assign an evaluation based on all the evidence of record that bears on occupational and social impairment rather than solely on the examiner’s assessment of the level of disability at the moment of the examination. Id.  When evaluating the level of disability from a mental disorder, the rating agency will consider the extent of social impairment, but shall not assign an evaluation solely on the basis of social impairment.  38 C.F.R. § 4.126(b). 
When determining the appropriate disability evaluation to assign, the Board's primary consideration is the Veteran's symptoms, but it must also make findings as to how those symptoms impact the Veteran's occupational and social impairment. Vazquez-Claudio v. Shinseki, 713 F.3d 112, 118 (Fed. Cir. 2013); Mauerhan v. Principi, 16 Vet. App. 436, 442 (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.  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 a veteran's impairment must be "due to" those symptoms, a Veteran may only qualify for a given disability rating by demonstrating the particular symptoms associated with that percentage, or others of similar severity, frequency, and duration.  Vazquez-Claudio, 713 F.3d at 118.  If the evidence demonstrates that a claimant suffers symptoms or effects that cause occupational or social impairment equivalent to what would be caused by the symptoms listed in the diagnostic code, then the appropriate, equivalent rating will be assigned.  Mauerhan, 16 Vet. App. 436.
As noted above, although the Board has reviewed all of the extensive evidence of record, the evidence delineated below is not a comprehensive accounting of the evidence but rather is representative of the evidence of record and encompasses or is fully representative of evidence that is favorable to the Veteran’s claim.
The Veteran has consistently reported heightened levels of irritability with increased pain.  In a December 2001 statement associated with his Social Security Administration (SSA) records regarding his physical and emotional state, he wrote that when his pain and symptoms increase, he finds himself being very agitated and “entering a demented state” in which he becomes “verbally abusive” to those around him, which takes a great toll on his loved ones.  A December 2001 VA psychiatric note indicated that the Veteran’s mood was generally good and optimistic, though at times he felt that he could not surmount his problems.  It was noted that the Veteran was not suicidal, and had the energy to keep pushing to succeed at vocational rehabilitation.  
On VA examination in March 2002, the Veteran indicated that he was divorced, but that he lived with a girl who did most of the chores, but that he occasionally would help her clean the house.  He reported having no friends and stated that he occasionally goes fishing.  Of his symptoms, the Veteran reported anxiety leading him to grind his teeth and chew his fingers, although the examiner noted on the report that there was no evident indication of damage to the tissues around the Veteran’s nails.  He also stated that he slept too much and “goes off” on people.  On examination, the Veteran was observed to speak softly but coherently and with a normal rate.  His thoughts were organized and goal directed without delusions or hallucinations.  His mood was euthymic and affect was dull.  The examiner noted that there was no indication of any undue anxiety or depression.  The examiner stated that he was unable to establish an Axis I diagnosis because of a lack of subjective complaints and objective observations.
At a May 2002 state mental status examination, the Veteran reported that pain had made him mean, inpatient, frustrated, and had made him go off on people easily.  He reported having mood swings and crying a lot, and attending anger management classes following conflict with his wife leading to a domestic violence charge.  He additionally reported getting along with some neighbors but not others.  On mental status evaluation, the examiner noted that the Veteran was polite and cooperative, with normal and well-organized speech.  She found that the Veteran had persecutions: saying that he knew people were out to get him and that everybody is trying to manipulate everybody else.  The Veteran was diagnosed with dysthymic disorder.  The Veteran endorsed thoughts of suicide sometimes, but stated that he would rather try to find a way out of the mess.
At a July 2002 SSA mental residual functional capacity assessment, the evaluator noted that the Veteran’s prior mental health treatment records had noted him to be angry and tense with a flat affect, but that they also described him as polite and cooperative, with an organized thought process.  The case analyst opined that this was inconsistent with a marked rating in social functioning.
VA mental health treatment records from July 2003 through January 2004 documented anxiety and dysthymic affect but continued to find the Veteran to present as pleasant with clear and organized thought processes without suicidal or homicidal ideation.  In an August 2003 psychosocial assessment, the Veteran noted a previous history of suicidal thoughts when he had severe financial problems and was homeless, but indicated that suicidal ideation was not a problem at that time.
At an October 2004 psychosocial assessment and employment evaluation, the Veteran reported sleep problems including nightmares and night sweats, with daily intrusive thoughts.  He reported difficulty trusting others, stating that he was very distant with family and friends, and that he had been emotionally numb and void of feelings since his return from service.  He described a loss of interest in things he previously enjoyed, being hypervigilant and having bouts of irritability and anger, and experiencing decreased concentration leading him to have difficulty finishing projects.
A November 2004 VA psychology individual therapy note indicated that the Veteran reported enjoying his home, having a dog with whom he hunts squirrels, and having supportive friends and supportive family relationships.
At a January 2005 VA examination, the Veteran reported having broken up with his girlfriend but stated that he was actively trying to find another.  He noted that he was unable to work due to physical problems and ongoing mood problems, and reported struggling with chronic pain and periodically drinking alcohol.  On mental status examination, the Veteran was alert and fully oriented.  He was not suicidal or homicidal.  The Veteran reported being able to bathe daily and pay his bills.  He reported experiencing chronic pain and taking Vicodin and Flexeril frequently, as well as drinking alcohol.  He described disturbed sleep.  His mood was slightly anxious and he denied panic attacks.  The Veteran was not found to have obsessional behavior.  The examiner concluded that the Veteran’s employment difficulties appear to predominantly be from his physical, as opposed to his psychiatric, problems. 
At a December 2005 state disability determination psychiatric/psychological medical evaluation, the Veteran described being depressed, feeling unmotivated, and oversleeping.  He reported that his prior incidents of domestic violence and unlawfully discharging his shotgun occurred in the early 1990s.  For his daily functioning, the Veteran described enjoying his house and his two dogs.  He stated that he doesn’t talk to anybody because there is not anyone he knows that is like him.  He then reported talking to a VA buddy daily on the phone, and talking to his daughter by phone almost daily and seeing her twice per year.  The evaluator noted that the Veteran initially presented as odd and intense, but that he became more appropriate and comfortable as the interview progressed.  The Veteran described daily activities including taking care of his dogs, using his jacuzzi, cooking his meals, doing his own laundry and cleaning, mowing his grass with a riding mower, and gardening.  He reported attending church approximately once per month and stated that he had some good friends at church.  The examiner observed the Veteran to have adequate hygiene.  On mental status examination, the examiner found the Veteran to be in contact with reality, have good self-esteem, and to display slightly increased motor activity.  The Veteran stated that he liked his life pretty well, except for feeling lonely.  His insight was found to be poor and motivation variable.  The examiner noted that for the first hour, the Veteran went on long, tangential descriptions and often reversed himself and was not able to answer questions or put events in sequence, and swore repeatedly, but that after an hour, his response style changed and his responses became quite organized, relevant, clear, and logical, with the Veteran being able to give details of medical procedures and relate events in a clear, organized, and temporal sequence.  The Veteran denied hallucinations, delusions, persecutions, obsessions, thoughts controlled by others, and unusual powers.  Suicidal thoughts or attempt was denied, though he stated that he “pondered it” most recently three and a half years prior.
A May 2007 VA psychiatric note documents the Veteran’s reports of having anxiety attacks, sometimes around the anniversary of his in-service accident.  He reported continued back pain and chronic depression.  His attitude was noted to be cooperative, and he was found to be without mania, pressured speech, abnormal psychomotor behavior, psychosis, and without suicidal or homicidal ideation.  At a May 2008 VA psychiatric appointment, the Veteran stated that he is not very social but enjoys working around his house and spending time with his dogs.  He denied any significant depression or anxiety, suicidal or homicidal ideation, or hallucinations or paranoia.  On mental status examination, his mood was noted to be moderately anxious and his insight and judgment were noted to be limited to borderline fair.  His thought flow and content were again found to be appropriate, his attitude cooperative, and his demeanor cooperative.
At the November 2008 Travel Board hearing, the Veteran testified that he was not suicidal, but felt very detached from everybody and was depressed.  He stated that he does not follow through with things he should.  The Veteran’s father was present and testified that the Veteran is withdrawn and really does not want to speak to people and has lost interest in things he normally would enjoy.
At a January 2009 VA mental health treatment appointments, the Veteran presented as rambling, with over-elaborative, repetitive, and pressured presentation of history with notable histrionics.  On mental status evaluation, the Veteran was found to show a depressed mood, an anxious and tense affect, and to speak with much profanity.  He reported mood swings of depression and anxiety once weekly related to unresolved feelings about his military service and being owed backpay for benefits.
At a February 2009 VA psychology appointment, the Veteran was noted to have generally unimpaired attention and concentration, but he evidenced thinking and perceptions which were a bit disorganized and which were found to have a mild delusional quality.  He was noted to be unable to stop thinking and ruminating about his problems.
On VA examination in July 2009, the Veteran reported still having a lot of intrusive thoughts and flashbacks, and recurrent depression complicated by his chronic back pain.  The Veteran was single, and reported feeling alienated in relationships but did not relate that necessarily to events that happened in service.  With regard to his activities of daily living, the Veteran stated that he does not always bathe every day, and he was described as having a disheveled appearance.  The examiner found that the Veteran did not demonstrate mania, delusions or hallucinations, or suicidal or homicidal ideations, although he did report sometimes feeling hopeless, helpless and worthless because of his chronic pain.
In VA psychiatric notes from October 2010, March 2011, September 2011, and July 2012, the Veteran’s degree of depression appears to correspond to his level of pain and overall financial stress.  In October 2010, he reported that overall, he was doing well, that he tries to stay busy, and that his pain had improved through physical therapy.  He reported keeping in contact with his daughter and having contacted some old friends over social medial.  In March and September 2011, when the Veteran reported experiencing more depression and anxiety, he stated that he was stressed by bills and money problems and was upset after hearing from VA that his claim for back pay was denied.  At that time, the Veteran reported mostly staying to himself, though occasionally seeing his father and step family members.  No suicidal or homicidal ideation or hallucinations or paranoia were reported.
The record does not reflect that the Veteran was seen by VA for psychiatric care again until October 2014.  He reported seeing some friends and regularly seeing his father.  His mood was generally anxious, he was described as “chatty” and alert, and he was found to verbalize thoughts in an organized but delusional manner.  He talked about the mafia and people dealing drugs, and then stated that he stabbed a man in a bar a few years prior and that the man died from a bad liver.  An assessment of anxiety disorder and delusional disorder was rendered.    
VA psychiatry notes from December 2014 and April 2015 document somewhat more mild symptoms.  The Veteran reported doing okay and maintaining contact with his father and his step-daughter.  His mood was described as ok or good, he was found to be less anxious than previously, and he continued to deny hallucinations, paranoia, or suicidal or homicidal ideation.  
The Veteran was most-recently provided with a VA psychiatric examination in November 2017.  The examiner noted that the Veteran had diagnoses of persistent depressive disorder, in remission, other specified personality disorder v. delusional disorder, and unspecified cannabis use disorder.  The examiner stated that it was possible to differentiate which symptoms are attributable to each diagnosis, and wrote that the Veteran was presently denying any significant distress or symptoms associated with his longstanding depressive disorder.  The symptoms listed under the Clinical Findings section were noted to be largely associated with the Veteran’s underlying characterological pathology and the probable presence of primary psychotic disorder with cannabis use a potential contributing factor in his paranoid, bizarre thought processes.
With regard to his level of impairment from all his mental diagnoses, the examiner found that the Veteran had occupational and social impairment with reduced reliability and productivity, with the contributing symptoms largely not coming from his depressive disorder.  The symptoms noted include anxiety, suspiciousness, circumstantial, circumlocutory or stereotyped speech, speech intermittently illogical, obscure, or irrelevant, difficulty in establishing and maintaining effective work and social relationships, inability to establish and maintain effective relationships, and impaired impulse control, such as unprovoked irritability with periods of violence.  
The Veteran provided an updated history, describing numerous instances of perceived mistreatment and persecution over the course of his life.  He also reported that he had not seen his adopted daughter in several years, following her experiencing trauma in the military and subsequent drug use.  The Veteran reported talking to his sister periodically, and no longer seeing his father with really bad dementia due to the Veteran’s perceived issues with drug users in his town and concerns that people in his stepmother’s family were threatening him.  He then described having a few friends with whom he would hang out and talk, primarily about refurbishing John Deere tractors. 
Subjectively, the Veteran reported that he is in constant pain, but when asked about his mood, stated that it was “pleasant [and] peaceful,” denying any subjective depression except when he felt attacked psychologically.  He reported that when he gets frustrated or irritated, his mind will start going down the path toward suicidal ideation, giving an example of a time “meth heads” were messing with his car.  The Veteran denied having more than very seldom panic attacks and stated that he was sleeping pretty well.  He denied experiencing auditory or visual hallucinations.  On mental status examination, the Veteran presented as casually dressed and well-groomed.  He was alert and fully oriented, displaying no gross memory impairments or attentional difficulties, though his communication of information and timelines was at times confused due to his tangential speech.  He was again noted to be cooperative with the assessment process, interacting in a pleasant manner, punctuated by bursts of hostility directed towards the VA as an entity and various other individual with whom he takes offense.  The Veteran’s mood was variable with a euthymic baseline with underlying rage quick to arise and subside.  He was noted to have inconsistent eye contact, mild to moderate psychomotor agitation, and slightly pressured speech of normal tone until moments of extremely loud and lengthy profanity.  The examiner found his thought processes to be mildly disorganized with strong suspicion of paranoid delusions but no evidence of hallucinations or acute mania.  She stated that the Veteran displays mild difficulties with activities of daily living due to his mental health issues, but noted that he denied current suicidal or homicidal ideation or recent panic attacks. 
The November 2017 examiner concluded that the results of the current examination revealed minimal evidence of symptoms from the chronic depression the Veteran has reported in the past, with the Veteran denying subjectively dysphoric mood, suicidal ideation, severe anxiety, panic attacks, or sleep impairment.  She stated that this is likely due to masking of his persistent depressive disorder by significant characterological and likely psychotic features.
After a detailed review of the claims file, the Board finds that the preponderance of the evidence is against an initial disability rating in excess of 50 percent for service-connected depression.  The currently-assigned 50 percent evaluation contemplates functional impairment comparable to occupational and social impairment with reduced reliability and productivity due to psychiatric symptoms.  The Veteran’s symptoms of mild memory loss such as forgetting to complete tasks, occasionally circumstantial, circumlocutory, or stereotyped speech, disturbance of motivation and mood, and difficulty in establishing and maintaining effective work and social relationships are all specifically contemplated by the 50 percent criteria under the General Rating Formula for Mental Disorders.  
Throughout the lengthy appeal period, the Veteran was noted to be cooperative during his various VA examinations and mental health treatment appointments, and to largely display an organized and clear thought process free from hallucinations and suicidal or homicidal ideation.  While the Board recognizes that the Veteran reported occasional thoughts of suicide in May 2002 and stated at the November 2017 VA examination that his mind will start going down the path toward suicidal ideation when he gets frustrated or irritated with people messing with him, in August 2003 he specified that his previous history of suicidal thoughts was related to when he had severe financial problems and was homeless.  There is also no indication that such instances occurred with such frequency or rose to such a severity as to result in occupational and social impairment, with deficiencies in most areas, such as work, school, family relations, judgment, thinking or mood.
Overall, while there is evidence that the Veteran had difficulties with his social and family relationships, he regularly reported that he maintained contact with members of his family and communicated with a few friends.  In the instances where the Veteran was noted to have delusional or thinking characterized by persecutions, the medical evidence of record relates such symptoms to an underlying nonservice-connected personality or delusional disorder rather than to his service-connected depression.  Additionally, while the record indicates that the Veteran manifested more severe symptoms, including irritability with periods of violence (notably leading to a domestic violence charge), the Veteran’s reports indicate that such symptoms and occurrences took place in the early 1990s, several years prior to the beginning of the relevant appeal period.    
The Board concludes that the evidence does not show that the Veteran’s service-connected depression has manifested in symptoms of comparable severity to those presented as examples under the 70 percent criteria, such as would result in functional impairment comparable to occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood.  In this regard, the evidence is not found to demonstrate that the Veteran’s depression results in what would be considered deficiencies in the areas of family relations, judgment, and thinking; although difficulties in these areas have been noted, they have instead been linked to nonservice-connected psychiatric disorders by competent medical evidence.  Further, while the Veteran has been unemployed throughout the relevant appeal period, the weight of the evidence demonstrates that his inability to continue working is due to his physical rather than mental limitations, such that the Veteran’s depression has not been shown to manifest in such severe symptoms as would result in a “deficiency” in the area of work.   Here, the preponderance of the evidence portrays an overall disability picture more closely corresponding to that contemplated by the criteria for a 50 percent, rather than 70 percent disability rating under the General Rating Formula for Mental Disorders.  Thus, as the evidence does not more nearly approximate the next-higher available rating, an award of an initial disability rating in excess of 50 percent for depression is not found warranted.
The Board notes that other psychiatric disorders diagnosed during the appeal period, to include anxiety disorders, PTSD, and various personality/delusional disorders have not been linked to the Veteran’s service-connected depression on a secondary basis.  Such was previously adjudicated by the Board in March 2017, where it was found that entitlement to service connection for an acquired psychiatric disability other than service-connected depression, to include PTSD, was not warranted.
Effective Dates
The assignment of effective dates of awards is generally governed by 38 U.S.C. §§ 5110 and 38 C.F.R. § 3.400.  Unless specifically provided otherwise, the effective date of an award based on an original claim or a claim reopened after final adjudication shall be fixed in accordance with the facts found, but shall not be earlier than the date of receipt of application therefor. 38 U.S.C. § 5110(a).  The implementing regulation clarifies this to mean that the effective date of service connection based on an original claim or reopened claim will be the date of receipt of the claim or the date entitlement arose, whichever is later. 38 C.F.R. § 3.400. 
Effective March 24, 2015, VA amended its regulations to require that all claims governed by VA's adjudication regulations be filed on a standard form.  The amendments also, inter alia, eliminate the constructive receipt of VA reports of hospitalization or examination and other medical records as informal claims to reopen.  See 79 Fed. Reg. 57,660 (Sept. 25, 2014), codified as amended at 38 C.F.R. §§ 3.151, 3.155, 3.157 (2017).  However, the amended regulations do not apply to these appeals as they were initiated prior to March 24, 2015.
In this regard, a pre-amendment "claim" is defined broadly to include a formal or informal communication in writing requesting a determination of entitlement or evidencing a belief in entitlement to a benefit.  See 38 C.F.R. § 3.1(p); see also Brannon v. West, 12 Vet. App. 32, 34-35 (1998); Servello v. Derwinski, 3 Vet. App. 196, 199 (1992). 
A rating decision becomes final and binding if the Veteran does not timely perfect an appeal of the decision. 38 U.S.C. § 7105; 38 C.F.R. §§ 3.104(a), 3.160(d), 20.200, 20.302, 20.1103.  There is an exception to the general rule governing reopened claims.  In the limited instance in which the new and material evidence received comprises of relevant official service department records that existed and had not been associated with the claims file when VA first decided the claim, in accordance with 38 C.F.R. § 3.156(c), the former decision (representing the denial of that claim) may be reconsidered de novo on the merits.  See Shipley v. Shinseki, 24 Vet. App. 458 (2011).
Where evidence requested in connection with an original claim or claim to reopen is not furnished within one year after the date of request, the claim will be considered abandoned. 38 C.F.R. § 3.158(a); see also Hurd v. West, 13 Vet. App. 449, 452 (2000).  After one year, no further action will be taken until a new claim is received; and the effective date of any subsequent grant will not be earlier than the date of the subsequent claim. Id.  Even if an appellant is ignorant of the abandonment provisions of 38 C.F.R. § 3.158(a), VA regulations are "binding on all who seek to come within their sphere," regardless of whether an appellant has actual knowledge of what is in the regulations. See Jernigan v. Shinseki, 25 Vet. App. 220 (2012).
The Veteran has asserted that in light of Martin Army Hospital Records obtained and associated with the file in October 2004, all of his claims should be reconsidered and the effective dates revised to May 13, 1988 or the date of discharge from service where appropriate. 
The Veteran separated from active military service in January 1988.  He submitted an application for compensation or pension at separation from service in February 1988 for “broken pelvis.”  A VA Form 21-2507, Request for Physical Examination is of record which indicates that the Veteran failed to report to a scheduled original service connection exam for fractured pelvis in April 1988.  In a May 1988 Deferred or Confirmed Rating Decision, it was found that the Veteran failed to prosecute his claim, and that the evidence of record was insufficient for rating purposes.  A few days later, the RO sent the Veteran notice that his claim for disability benefits could not be granted, because he failed to report for a scheduled examination, and that no further action would be taken unless VA received notification of his willingness to report for examination.  No further contact was received from the Veteran until December 9, 1999, when the Veteran submitted an application for service connection for chronic pain in the lower back, hip, and left leg.  As the evidence requested in connection with the original claim for service connection for “broken pelvis,” that which could be obtained through a VA examination, was not furnished within 1 year after the date of request, the claim is considered abandoned.      
In an August 2000 rating decision, the RO granted service connection for degenerative arthritis with cystic lesion, left hip, effective from December 9, 1999.  In a February 2001 rating decision, the RO granted service connection for lumbar spine and left knee disabilities, both effective from December 9, 1999.  As there was no prior formal or informal claim for service connection for these disabilities, and the original claim for service connection for “broken pelvis” had been abandoned, December 9, 1999 represents the earliest possible effective date for the grants of service connection for the left hip, left knee, and lumbar disabilities.    
The Board recognizes that additional service treatment records were added to the record subsequent to these rating decisions.  However, because no prior claim had been raised or decision made with respect to entitlement to service connection for these disabilities, the mere existence of these records did not raise an earlier claim for service connection which might provide an appropriate earlier effective date.  Further, the addition of these records merely provides redundant evidence indicating that the Veteran injured his pelvis during service, a fact already sufficiently shown by service treatment records already in the file. 
In a January 2003 rating decision, the RO granted a TDIU and basic eligibility to Dependents’ Educational Assistance, both effective from December 9, 1999.  As both of these benefits require that a veteran have at least one service-connected disability, and the Veteran’s entitlement to service connection for any disability was not effective until December 9, 1999, earlier effective dates for the awards of a TDIU and basic eligibility to Dependents’ Educational Assistance are not warranted.  See 38 U.S.C. § 3510; 38 C.F.R. §§ 3.807(a), 4.16, 21.3021.
Automobile or Adaptive Equipment
Financial assistance may be provided to an “eligible person” in acquiring an automobile or other conveyance and adaptive equipment, or automotive adaptive equipment only.  38 U.S.C. § 3902(a)(b).  Eligibility for assistance to purchase a vehicle and adaptive equipment is warranted where one of the following exists as the result of injury or disease incurred or aggravated during active service: (1) loss or permanent loss of use of one or both feet; (2) loss or permanent loss of use of one or both hands; (3) permanent impairment of vision of both eyes, meaning central visual acuity of 20/200 or less in the better eye, with corrective glasses, or central visual acuity of more than 20/200 if there is a field defect in which the peripheral field has contracted to such an extent that the widest diameter of visual field subtends an angular distance no greater than 20 degrees in the better eye; (4) severe burn injury precluding effective operation of an automobile; (5) amyotrophic lateral sclerosis; or, (6) for adaptive equipment only, ankylosis of one or both knees or one or both hips.  38 C.F.R. § 3.808.  
In chapter 39 of title 38 of the U.S. Code, Congress established the program authorizing funding for automobiles and adaptive equipment for veterans with certain service-connected disabilities. 38 U.S.C. §§ 3901-04.  Pursuant to the authority established in 38 U.S.C. § 3902, the Secretary promulgated 38 C.F.R. § 3.808, which reiterates the § 3901(a) requirement that entitlement to automobile and adaptive equipment is warranted for "the loss or permanent loss of use of one or both feet." 38 C.F.R. § 3.808(b)(i).  The regulation does not further define the phrase "loss or permanent loss of use."  Under the applicable eligibility criteria for entitlement to financial assistance in the purchase of an automobile or adaptive equipment, found in statutory § 3901 and regulatory § 3.808, the appellant must show that he lost his foot or hand or permanently lost the use of his foot or hand.
It is noted that "loss of use" is used in several places in the rating schedule.  In the context of special monthly compensation under 38 C.F.R. § 3.350(a)(2)(i), loss of use of a hand or a foot will be held to exist when no effective function remains other than that which would be equally well served by an amputation stump at the site of election below elbow or knee with use of a suitable prosthetic appliance.
A less restrictive definition is written into 38 C.F.R. § 3.809 regarding specially adapted housing; that regulation specifies that “loss of use” was defined by the adjacent modifier, “such as to preclude locomotion without the aid of braces, crutches, canes, or a wheelchair.” See Jensen v. Shulkin, 29 Vet. App. 66, 78-79 (2017).
However, this modifier is noticeably absent from 38 C.F.R. § 3.808, and had VA wished for such a definition to apply to 3.809, it presumably would have been stated.  As such, loss of use under 38 C.F.R. § 3.808 will be taken to mean actual loss of functional use.
The Veteran is presently in receipt of VA service connection benefits for depression, disabilities of the lumbar and cervical spine, bilateral upper extremity radiculopathy, and disabilities affecting the right ankle and bilateral knees and hips.  The Veteran’s service-connected disabilities neither include nor involve visual impairment, burn injuries, or amyotrophic lateral sclerosis.  Eligibility for financial assistance in the purchase of an automobile or other conveyance and/or adaptive equipment is therefore unavailable on these bases.
The Veteran does have service-connected disabilities affecting his upper and lower extremities.  Such disabilities, however, are not of such severity as to result in the effective permanent loss of use of one or both hands or feet.  Per the evidence of record and the November 2017 VA neck examination, the Veteran’s upper extremity radiculopathy resulted in intense pain and prior to undergoing physical therapy, weakness sometimes leading him to drop dishes and drop his cellular phone while in use.  While such demonstrates limitation of use, such symptoms are not found to rise to the level of loss of the appendage or permanent loss of functional use of the hand.  The Veteran also has a number of disabilities involving his hips, knees, and right ankle joints; but the evidence or record demonstrates that he remains able to ambulate and retains functional use of his feet.  In so finding, the Board acknowledges the Veteran’s statements that he uses cruise control when driving because keeping his right foot on the gas pedal leads to inflammation, but the Board again finds this to describe limited use rather than permanent loss of use of the foot in light of the fact that he must still retain use of the foot at times while driving when he must use the pedal.  Finally, neither the Veteran’s service connection knee or hip disabilities has been shown to result in ankylosis of one or both knees or one or both hips as would allow for eligibility for adaptive equipment only.  The Board therefore finds that the criteria necessary for eligibility for financial assistance in the purchase of an automobile or other conveyance and/or adaptive equipment under 38 C.F.R. § 3.808 have not been met.
In reaching this conclusion, the Board recognizes the Veteran’s competent and credible lay statements pertaining to his use of cruise control and difficulties turning his neck in order to look in his blind spot while driving.  Eligibility for the benefit sought in this appeal, however, requires a veteran to meet at least one of the criteria enumerated under 38 C.F.R. § 3.808.  Even assuming all of the Veteran’s assertions to be factual, none of the six enumerated criteria have been met.  
Because the Veteran does not have service-connected disability resulting in the loss or permanent loss of use of one or both hands or feet, does not have ankylosis of his knees or hips, and does not have any of the other physical disabilities listed among the relevant criteria, he does not qualify for eligibility for financial assistance in the purchase of an automobile or other conveyance and/or adaptive equipment under 38 C.F.R. § 3.808.  As such, the claim must be denied.
Specially Adapted Housing/ Special Home Adaptation
Financial assistance in acquiring specially adapted housing is available to a veteran who has a permanent and total service-connected disability due to: (1) amyotrophic lateral sclerosis rated as 100 percent disabling under 38 C.F.R. § 4.124a, Diagnostic Code 8017; (2) blindness in both eyes, having only light perception, plus the anatomical loss or loss of use of one lower extremity; (3) full thickness or subdermal burns that have resulted in contractures with limitation of motion of two or more extremities or of at least one extremity and the trunk; or (4) the loss or loss of use of both upper extremities such as to preclude use of the arms at or above the elbows.  Specially adapted housing is also available to a veteran with a permanent and total disability that precludes locomotion due to: (5) the loss, or loss of use, of both lower extremities; (6) the loss or loss of use of one lower extremity, together with residuals of organic disease or injury which so affect the functions of balance and propulsion as to preclude locomotion; or, (7) the loss or loss of use of one lower extremity together with the loss or loss of use of one upper extremity which so affect the functions of balance or propulsion as to preclude locomotion.  38 U.S.C. § 2101(a); 38 C.F.R. § 3.809(a), (b), (d).
Specially adapted housing may also be available to a veteran who served on or after September 11, 2001, who has a permanent disability that was incurred during such service, and which results in loss or loss of use of one or more extremities which so affects the functions of balance or propulsion as to preclude ambulating without the aids of braces, crutches, canes, or a wheelchair.  See 38 U.S.C. § 2101(a)(2)(C).  
The phrase “preclude locomotion” is defined as the necessity for regular and constant use of a wheelchair, braces, crutches or canes as a normal mode of locomotion, although occasional locomotion by other methods may be possible.  38 C.F.R. § 3.809(c).
If entitlement to specially adapted housing is not established, a veteran can qualify for a grant for necessary special home adaptations if he/she has a service-connected disability that results in blindness in both eyes with 20/200 visual acuity or less in the better eye with the use of a standard correcting lens or a limitation in fields of vision such that the widest diameter of the visual field subtends an angle no greater than 20 degrees; such a disability need not be permanent and total in nature.  Additionally, a special home adaptation grant is available for a veteran that has a permanent and total disability which: (1) includes the anatomical loss or loss of use of both hands; (2) is due to deep partial thickness burns that have resulted in contracture(s) with limitation of motion of two or more extremities or of at least one extremity and the trunk; (3) is due to full thickness or subdermal burns that have resulted in contracture(s) of one or more extremities or the truck; or, (4) is due to residuals of an inhalation injury (including, but not limited to, pulmonary fibrosis, asthma, and chronic obstructive pulmonary disease (COPD)).  38 C.F.R. § 3.809a(b).  
As an initial matter, the Veteran has not asserted that his service-connected disabilities include or involve burn injuries, inhalational injuries, blindness, or amyotrophic lateral sclerosis.  Further, as explained above, the Veteran’s service-connected disabilities have not been shown to have effectively deprived him of the functional use of one, let alone both, hands.  Eligibility on these bases is therefore not warranted.
Finally, although the Veteran testified that he had been prescribed a brace for his knee, he also stated that he had not been able to pick it up from his physical therapist, allegedly due to the effects of his service-connected depression.  At the November 2017 VA examination, he additionally stated that he does not wear his prescribed right knee brace.  The VA examination report from November 2017 further documents that the Veteran reported occasionally using a cane for stability and support, if walking on uneven surfaces of it the weather is inclement.  Although the Veteran may very well benefit from the use of such ambulatory aids, the evidence does not demonstrate that his service-connected disabilities affecting the lower extremities are of such a severity as to preclude locomotion without the use of such aids.
Thus, the Veteran is not found to have service-connected disability due to loss or loss of use of one or both lower extremity, loss or permanent loss of use of both hands, or any of the other enumerated conditions under 38 C.F.R. §§ 3.809 and 3.809a.  He is therefore ineligible for specially adapted housing or a special home adaptation grant.
 
Dismissed Appeal
In a March 2009 decision, the Board denied the Veteran’s claim of entitlement to an effective date prior to January 16, 2001 for the grant of service connection for depression.  The Veteran was informed of that decision and his appeal rights, but did not appeal that decision.
In Rudd v. Nicholson, the Court held that where a decision that established an effective date becomes final, an earlier effective date can only be established by a request for a revision of that decision based on clear and unmistakable error (CUE). 20 Vet. App. 296 (2006).  In essence, the Court held that there is no "freestanding" earlier effective date claim that could be raised at any time. See Id. at 299.  
Therefore, the Board finds that the Veteran's claim for an earlier effective date for the grant of service connection for depression must be dismissed, because the Veteran raised the earlier effective date issue independently following the final Board decision. The Court has made it clear that under these circumstances, dismissal is required due to the lack of a proper claim.  See Rudd, 20 Vet. App. at 300.  Based on the procedural history of this case, the Board has no alternative but to dismiss the appeal as to this issue without prejudice. See also Sabonis v. Brown, 6 Vet. App. 426 (1994).
REASONS FOR REMAND
1. Entitlement to service connection for tinnitus is remanded.
The Board has found that new and material evidence has been received sufficient to reopen the Veteran’s claim for service connection for tinnitus.  In the February 2011 rating decision, the March 2014 SOC, and the August 2016 supplemental statement of the case, the Agency of Original Jurisdiction found that no new and material evidence had been received to reopen the claim, and did not adjudicate the underlying claim on the merits.  As such, the Board may not adjudicate the reopened claim de novo prior to RO consideration of the reopened claim. Bernard v. Brown, 4 Vet. App. 384 (1993).
2. Entitlement to service connection for headaches is remanded.
The Veteran was provided with a VA examination concerning his claimed headache disorder in September 2010.  The examiner stated an opinion that it was less likely as not that the Veteran’s headache pain was caused by or a result of an injury in service.  Part of the stated rationale was that the Veteran did not report headache pain while in service, in his service treatment records.  The Board notes, however, that on his December 1987 separation report of medical history, the Veteran endorsed experiencing frequent or severe headaches.  The examiner’s conclusion therefore relies on an inaccurate factual premise, and lacks probative value.  See Reonal v. Brown, 5 Vet. App. 458, 461 (1993).  On remand, an additional examination should be provided which addresses this evidence.
The Board notes that it denied the issue of entitlement to service connection for residuals of concussion to include sleep disturbances, headaches, memory loss, and vertigo in a March 2017 Board decision and remanded the issue of entitlement to service connection for headaches.       
3.  Entitlement to service connection for chronic pain syndrome is remanded.
The Veteran has not yet been provided with a VA examination specifically pertaining to his claim for service connection for chronic pain syndrome.  Examinations were conducted in February 2010 and September 2010 concerning fibromyalgia and chronic fatigue syndrome, but questions presented to the examiners concerning any other chronic pain syndrome or condition were not addressed.  The Board notes that a March 2010 neuropsychological test report states that the Veteran’s “current profile is highly consistent with chronic pain syndrome . . . .”  Additionally, at the November 2008 Travel Board hearing, the Veteran testified that his chronic pain condition involved overwhelming all-over pain in his face, chest, and other areas, rather than limited to particular impaired joints.
On remand, a VA examination should be provided to specifically address the nature and etiology of the Veteran’s claimed chronic pain syndrome. 
4.  Entitlement to a disability rating in excess of 10 percent for right ankle disability manifesting in limitation of motion is remanded.
While the record contains a September 2010 VA examination report regarding the Veteran’s right ankle disability, the examination is more than eight years old and further does not comply with the requirements in Correia v. McDonald that examination reports must comply with the language of 38 C.F.R.§ 4.59 by evaluating range of motion “for pain on both active and passive motion, in weight bearing and nonweight-bearing.” 28 Vet. App. 158, 168 (2016).  Consequently, the claim for an increased disability rating for the right ankle must be remanded for additional examination.
5.  Whether the June 2010 rating decision finding CUE with the effective dates assigned in the January 2003 rating decision for the grants of service connection for right ankle disability manifesting in limitation of motion, osteoarthritis of the right hip, and tendonitis of the right knee was proper is remanded.
In a June 2010 rating decision, the RO found that the effective dates assigned in a January 2003 rating decision for the grants of service connection for right knee with limitation of motion, osteoarthritis in the right hip, and limitation of motion of the right ankle were clearly and unmistakably erroneous, and assigned each a corrected effective date of October 23, 2001.  The Veteran submitted a timely NOD with this decision in July 2010.  As a SOC has not yet been provided for these issues, remand is required for the AOJ to issue a SOC.  See 38 C.F.R. §20.200; Manlincon v. West, 12 Vet. App. 238 (1999).
6.  Entitlement to effective dates prior to October 23, 2001 for the grants of service connection for right ankle disability manifesting in limitation of motion, osteoarthritis of the right hip, and tendonitis of the right knee is remanded. 
Finally, because a decision on the remanded issues of whether the June 2010 rating decision finding CUE with the effective dates assigned in the June 2003 rating decision for the grants of service connection for right ankle disability manifesting in limitation of motion, osteoarthritis of the right hip, and tendonitis of the right knee was proper could significantly impact a decision on the issues of entitlement to effective dates prior to October 23, 2001 for the grants of service connection for right ankle disability manifesting in limitation of motion, osteoarthritis of the right hip, and tendonitis of the right knee, the issues are inextricably intertwined.  A remand of the latter claims is therefore also required.
The matters are REMANDED for the following action:
1. Obtain the Veteran’s VA treatment records for the period from November 2017 to the Present.
2. Thereafter, schedule the Veteran for an examination by an appropriate clinician to determine the nature and etiology of any disability manifesting in headaches.  The examiner must opine whether it is at least as likely as not related to an in-service injury, event, or disease, including an in-service whiplash injury during a parachuting incident.  The examiner must also opine whether it is at least as likely as not that any current headache disability arose during service. (See December 1987 separation report of medical history where the Veteran endorsed frequent or severe headaches).   
If the examiner finds that the Veteran has a migraine disability, they must opine whether it at least as likely as not (1) began during active service, (2) manifested to an extent corresponding to a 10 percent disability rating under DC 8100 within one year after discharge from service, or (3) was noted during service with continuity of the same symptomatology since service. Rationale must be provided for the opinion proffered.
The examiner should further provide an opinion as to whether the disability manifesting in headaches is at least as likely as not (1) proximately due to service-connected degenerative disc disease of the cervical spine, or (2) aggravated beyond its natural progression by the service-connected cervical spine disability.  Rationale must be provided for the opinion proffered.
3.  After associating the updated VA treatment records with the claims file, schedule the Veteran for an examination by an appropriate clinician to determine the nature and etiology of any chronic pain syndrome present at any point during the relevant appeal period.  As part of the examination, the examiner should obtain a description from the Veteran of what specific symptoms he associates with his chronic pain claim, with clarification as to whether he is claiming an additional psychiatric, neurological/systemic, or some other type of disability.  
The examiner must opine whether the Veteran’s claimed chronic pain syndrome at least as likely as not arose during service and/or is related to an in-service injury, event, or disease.  Rationale must be provided for the opinion proffered.
4.  After associating the updated VA treatment records with the claims file, schedule the Veteran for an examination of the current severity of his right ankle disability.  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 right ankle disability alone and discuss its effect 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.  Send the Veteran and his representative a statement of the case that addresses the issues of whether the June 2010 rating decision finding CUE with the effective dates assigned in the January 2003 rating decision for the grants of service connection for right ankle disability manifesting in limitation of motion, osteoarthritis of the right hip, and tendonitis of the right knee and assigning corrected effective dates of October 23, 2001 was proper.  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.
6.  After completing the above, and any additional development indicated in light of the expanded record, readjudicate the reopened claim of entitlement to service connection for tinnitus de novo, and the claims of entitlement to service connection for headaches and chronic pain syndrome, entitlement to a disability rating in excess of 10 percent for the right ankle disability, and entitlement to effective dates prior to October 23, 2001 for the grants of service connection for osteoarthritis of the right hip, a right ankle disability, and tendonitis of the right knee.  If any benefit sought is not granted to the Veteran’s satisfaction, send the Veteran and his representative a Supplemental Statement of the Case and provide an opportunity to respond.  If necessary, return the case to the Board for further appellate review.

 
U. R. POWELL
Veterans Law Judge
Board of Veterans’ Appeals
ATTORNEY FOR THE BOARD	A. Solomon, Counsel