Citation Nr: 18155435 Decision Date: 12/04/18 Archive Date: 12/04/18 DOCKET NO. 16-17 440 DATE: December 4, 2018 ORDER New and material evidence has been received, and the appeal to reopen a claim of service connection for a low back disability is granted. Service connection for a low back disability is granted. Service connection for fatigue is denied. Service connection for a sleep disability is denied. Service connection for erectile dysfunction is denied. An evaluation of 20 percent, but not in excess thereof, for a cervical spine disability, for the entirety of the period on appeal, is granted, subject to the laws and regulations governing the payment of VA benefits. An initial evaluation of 30 percent, but neither in excess thereof nor earlier than March 21, 2016, for radiculopathy of the upper left extremity is granted, subject to the laws and regulations governing the payment of VA benefits. A separate evaluation of 20 percent, but not in excess thereof, for a right knee meniscal tear, is granted, subject to the laws and regulations governing the payment of VA benefits. An evaluation in excess of 10 percent for left knee osteoarthritis is denied. An evaluation in excess of 10 percent for right knee osteoarthritis is denied. An initial evaluation in excess of 30 percent for migraine headaches is denied. An effective date earlier than July 17, 2015, for an award of service connection for an acquired psychiatric disability, to include major depressive disorder, is denied. REMANDED Entitlement to service connection for hypertension. Entitlement to a total disability rating based on individual unemployability as a result of service-connected disabilities (TDIU). FINDINGS OF FACT 1. Evidence received since a final April 2006 rating decision relates to an unestablished fact, is not cumulative or redundant of the evidence previously of record, and is sufficient to raise a reasonable possibility of substantiating the claim of service connection for a low back disability. 2. The Veteran’s low back disability was aggravated by his service-connected knee disabilities. 3. The Veteran does not have a current disability of fatigue. 4. The Veteran does not have a current sleep disability. 5. Erectile dysfunction is not related to service.\ 6. For the entirety of the period on appeal, the Veteran’s cervical spine disability was productive of the functional equivalent of forward flexion limited to 30 degrees or less, but not productive of forward flexion limited to 15 degrees or less, incapacitating episodes, ankylosis, or the functional equivalent thereof. 7. For the period from March 21, 2016, the Veteran’s nondominant upper left extremity disability was productive of the equivalent of moderate incomplete paralysis of the upper radicular nerve group. 8. The Veteran’s right knee meniscal tear is productive of the functional equivalent of dislocation of semilunar cartilage with frequent episodes of “locking” pain and effusion into the joint. 9. The Veteran’s left knee disability is not productive of ankylosis, recurrent subluxation or lateral instability, symptomatic removal of the semilunar cartilage, extension limited to 10 degrees or more, flexion limited to 10 degrees or less, malunion or nonunion of the tibia and fibula, genu recurvatum, or the functional equivalent thereof. 10. The Veteran’s right knee disability is not productive of ankylosis, recurrent subluxation or lateral instability, symptomatic removal of the semilunar cartilage, extension limited to 10 degrees or more, flexion limited to 10 degrees or less, malunion or nonunion of the tibia and fibula, genu recurvatum, or the functional equivalent thereof. 11. The Veteran’s migraine headaches are not productive of very frequent completely prostrating and prolonged attacks productive of severe economic inadaptability. 12. Subsequent to a February 2014 final rating decision, the Veteran’s first communication to VA conveying an intent to file a claim for a mental health disability was received on July 17, 2015. CONCLUSIONS OF LAW 1. Evidence received since a final April 2006 rating decision is new and material; therefore, the Veteran’s claim of entitlement to service connection for a low back disability is reopened. 38 U.S.C. §§ 5108, 7105(c) (2012); 38 C.F.R. §§ 3.156(a), 20.1103 (2017). 2. The criteria for service connection for a low back disability have been met. 38 U.S.C. §§ 1101, 1110, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.310 (2017). 3. The criteria for service connection for fatigue have not been met. 38 U.S.C. §§ 1101, 1110, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303 (2017). 4. The criteria for service connection for a sleep disability have not been met. 38 U.S.C. §§ 1101, 1110, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303 (2017). 5. The criteria for service connection for erectile dysfunction have not been met. 38 U.S.C. §§ 1101, 1110, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303 (2017). 6. The criteria for an evaluation of 20 percent, but not in excess thereof, for a cervical spine disability, for the entirety of the period on appeal, have been met. 38 U.S.C. § 1155 (2012); 38 C.F.R. § 4.71a, Diagnostic Code 5243 (2017). 7. The criteria for an initial evaluation of 30 percent, but not in excess thereof, for radiculopathy of the upper left extremity, for the period from March 21, 2016, have been met. 38 U.S.C. § 1155 (2012); 38 C.F.R. § 4.124a, Diagnostic Code 8710 (2017). 8. The criteria for a separate evaluation of 20 percent, but not in excess thereof, for a right knee meniscal tear have been met. 38 U.S.C. § 1155 (2012); 38 C.F.R. § 4.71a, Diagnostic Code 5258 (2017). 9. The criteria for an evaluation in excess of 10 percent for left knee osteoarthritis have not been met. 38 U.S.C. § 1155 (2012); 38 C.F.R. § 4.71a, Diagnostic Code 5260 (2017). 10. The criteria for an evaluation in excess of 10 percent for right knee osteoarthritis have not been met. 38 U.S.C. § 1155 (2012); 38 C.F.R. § 4.71a, Diagnostic Code 5260 (2017). 11. The criteria for an initial evaluation in excess of 30 percent for migraine headaches have not been met. 38 U.S.C. § 1155 (2012); 38 C.F.R. § 4.124a, Diagnostic Code 8100 (2017). 12. The criteria for an effective date prior to July 17, 2015, for an award of service connection for an acquired psychiatric disability, to include major depressive disorder, have not been met. 38 U.S.C.A §§ 5107, 5110 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.400 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from August 1971 to December 1972. This appeal is before the Board of Veterans’ Appeals (Board) from February 2014, December 2015, and August 2017 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in New York, New York. Service Connection Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Service connection requires: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); see also Caluza v. Brown, 7 Vet. App. 498 (1995). Service connection may also be granted for any disease diagnosed after discharge when the evidence establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Service connection is also warranted for a disability which is proximately due to or the result of a service-connected disease or injury. 38 C.F.R. § 3.310(a). Such secondary service connection is warranted for any increase in severity of a nonservice-connected disability that is proximately due to or the result of a service-connected disability. 38 C.F.R. § 3.310(b). For certain chronic diseases, such as arthritis and hypertension, a presumption of service connection arises if the disease is manifested to a degree of 10 percent within one year following discharge from service. 38 C.F.R. §§ 3.307(a)(3), 3.309(a). When a chronic disease is not shown to have manifested to a compensable degree within one year after service, under 38 C.F.R. § 3.303(b) for the showing of chronic disease in service, there is required a combination of manifestations sufficient to identify the disease entity and sufficient observation to establish chronicity at the time. When the fact of chronicity in service is not adequately supported, a showing of continuity after discharge is required to support a claim for such diseases; however, such continuity of symptomatology may only support a claim for those chronic diseases listed under 38 C.F.R. § 3.309(a). 38 C.F.R. § 3.303(b); see Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). In determining whether service connection is warranted for a disability, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the claimant prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. 38 U.S.C. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination, the benefit of the doubt is afforded the claimant. 1. Whether new and material evidence has been received to reopen a claim of service connection for a low back disability The Veteran seeks to reopen his claim of service connection for a low back disability. VA may reopen a claim that has been previously denied if new and material evidence is submitted by or on behalf of a veteran. 38 U.S.C. § 5108; 38 C.F.R. § 3.156(a). “New” evidence is evidence not previously submitted to agency decision makers and “material” evidence is 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 final denial of the claim sought to be reopened, and must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a). In determining whether the evidence presented or secured since the prior final disallowance of the claim is new and material, the credibility of the evidence is generally presumed. Cox v. Brown, 5 Vet. App. 95, 98 (1993); Justus v. Principi, 3 Vet. App. 510, 513 (1992). VA is required to review for newness and materiality only the evidence submitted by a claimant since the last final disallowance of the claim on any basis, whether a decision on the underlying merits or, a petition to reopen. Evans v. Brown, 9 Vet. App. 273, 283 (1996). In Shade v. Shinseki, 24 Vet. App. 100 (2010), the United States Court of Appeals for Veterans Claims (Court) held that § 3.159(c)(4) does not require new and material evidence as to each previously unproven element of a claim for the claim to be reopened and the duty to provide an examination triggered. In a fact pattern where a prior denial was based on lack of current disability and nexus, the Court found that newly submitted evidence of a current disability was, in concert with evidence already of record establishing an injury in service, new and material and sufficient to reopen the claim and obtain an examination. Regardless of any RO determinations that new and material evidence has been submitted to reopen service connection, the Board must still determine whether new and material evidence has been submitted in this matter. Jackson v. Principi, 265 F.3d 1366, 1369 (Fed. Cir. 2001). Service connection for a low back disability was initially denied in a September 2002 rating decision. The Veteran subsequently filed a claim to reopen. In an April 2006 rating decision, service connection was denied based on a finding that there was no back injury in service and the disability was otherwise unrelated to service. The Veteran filed a notice of disagreement and a substantive appeal, but before the issue could be decided by the Board he withdrew his appeal via a December 2006 statement. No new and material evidence was received during the remainder of the one-year appeal period. The April 2006 rating decision therefore became final. Among other evidence, the Veteran has since submitted a September 2017 private evaluation in which a physician opined that his degenerative disc disease of the lumbosacral spine has more likely than not been aggravated by his service-connected knee disabilities, described in further detail below. The Board finds that this evidence relates to an unestablished fact, is not cumulative or redundant of the evidence previously of record, and is sufficient to raise a reasonable possibility of substantiating the claim of service connection for a low back disability. The Veteran’s claim is therefore reopened, and addressed on the merits below. 2. Entitlement to service connection for a low back disability The Veteran claims service connection for a low back disability. Service treatment records do not reflect any symptoms of or treatment for a low back disability. In a June 1978 statement the Veteran reported that his back had been bothering him for the past three years. Private treatment records reflect that in February 1986 the Veteran reported low back pain after a fall. In January 1992 he again reported low back pain. In February 1992 he reported pain from the right shoulder to the lower back. He was diagnosed with chronic lumbosacral pain. VA treatment records reflect that in October 1994 the Veteran was diagnosed with chronic arthritis of the lumbosacral spine. Private treatment records include a March 1995 MRI of the lumbar spine which showed straightening of the normal curvature, posterior bulging disc, and mild desiccation of disc space. A February 1996 x-ray of the lumbosacral spine was normal. A March 1996 MRI of the lumbosacral spine was normal. VA treatment records reflect that in April 1997 the Veteran reported low back pain and was diagnosed with chronic low back pain. In March 1998 his physician stated that he needed a cane and medication for his back pain. He received treatment for low back pain in May 1998 and September 1998 after suffering an injury in April 1998. Private treatment records include a June 1998 letter in which the Veteran’s treating physician diagnosed an exacerbation of a lumbosacral sprain/strain with lumbosacral radiculopathy after the April 1998 workplace fall. On another occasion he reported that he was unable to work due to pain in his cervical spine, lumbosacral spine, and knees, due to injuries from 7 car accidents. His physician found symptoms consistent with discogenic disorder of the lumbosacral spine. A June 1998 x-ray showed minimal positional change secondary to pain and/or spasm. In August 1998 the Veteran reported back pain after dancing the prior night. He was diagnosed with muscle spasms caused by overactivity. An October 1998 letter from the Veteran’s treating orthopedist noted that the Veteran reported a history of four motor vehicle accidents involving trauma to the low back. He reported current back pain radiating to his right hip. VA treatment records reflect that in October 1998 the Veteran was referred to physical therapy for low back pain due to multiple injuries. In January 1999 he was diagnosed with chronic low back pain with bilateral radicular symptoms. He reported chronic back pain again in February 1999. At a June 1999 VA examination for his joints, the Veteran reported that he experienced low back pain during basic training in 1971. (The Board finds the examination report’s reference to basic training in 1941 to be an obvious typographical error.) He reported that he hurt his back subsequently in automobile accidents in 1987, 1992, 1994, 1995, and 1997. He reported current back pain. The examiner diagnosed disabilities of the knees but did not diagnose a low back disability. VA treatment records include a July 1999 MRI of the cervical, thoracic, and lumbar spine that was unremarkable outside of the cervical region. In August 1999 the Veteran reported worsening of back pain after being hit by a revolving door. An x-ray was normal. In September 1999 he reported an exacerbation of his back pain. At a March 1999 hearing in connection with his claim for disability benefits from the Social Security Administration (SSA), the Veteran stated that he first began to have pain in his low back in 1981 when he had a workplace injury. He reported worsening pain due to additional injuries since that time. Private treatment records reflect that in February 2000 the Veteran’s private physician reported that over the span of the last two decades the Veteran had multiple workplace incidents causing injury to his low back, among other areas. In a March 2000 statement in connection with his SSA claim, the Veteran reported that he had not ever had back pain prior to 1987. A March 2000 orthopedic examination ordered by SSA was normal and found no deficits in the lumbosacral spine. VA treatment records reflect that in March 2000 the Veteran’s treating physician stated that his low back pain could not be explained by anatomy and physiology. He was again referred to physical therapy, where he reported a history of low back pain for several years secondary to multiple injuries on the job. He reported back pain in August 2000. Private treatment records reflect that the Veteran reported to the emergency room with low back pain in September and October 2000. He was prescribed medication and discharged. In February 2001 the Veteran’s private treating physician submitted a questionnaire to SSA. The physician diagnosed lumbar disc displacement with radiculopathy. In a separate letter, the physician attributed this pathology to a motor vehicle accident that the Veteran experienced in January 1995. The Veteran underwent a VA examination in September 2001. He reported that in 1998 while working on a train for the transit authority, his back snapped. He reported that his back still hurts. He stated that his disability was exacerbated when he was hit by a car in December 2000. No low back disability was diagnosed. In a November 2001 statement the Veteran reported that he was no longer able to work due to the multiple disabilities of his low back and knees. The Veteran underwent another VA examination in July 2002. He reported that while in service at airborne school jumping from the tower he developed a knee problem, and that several weeks later he began back pain. He reported that in April 1998 his back locked and he was unable to walk. He reported current pain and muscle spasm in his neck. The examiner opined that the Veteran’s back complaints are as likely as not due to his service-connected knee condition. No lumbar spine disability was diagnosed, however, and the Board thus construes the examiner’s use of “back complaints” as relating to his diagnosed mild degenerative disc disease of the cervical spine at C6-C7. VA treatment records reflect that in September 2002 the Veteran reported low back pain. He was diagnosed with subjective chronic low back pain. In October 2002 the Veteran reported that his back pain began with an on-the-job injury in 1973 which led to multiple litigations. In April 2003 he reported continued lower back pain. In July 2003 he reported that his pain increased with physical therapy. He reported worsening pain in August 2003. He was diagnosed with degenerative joint disease. In September 2004 he reported pain on the right side of the back after being mugged and struck with a bat. He was diagnosed with musculoskeletal pain/hematoma after trauma. He reported increased low back pain in November 2004. His physician noted that the initial injury was a traumatic injury while working for the transit authority. In an August 2005 claim to reopen, the Veteran reported that his low back disability began in September 1980. He stated that his injuries were occurred during the 20 years he worked for the transit authority. VA treatment records reflect that in October 2005 the Veteran began physical therapy, in part for his lumbar spine. The Veteran underwent another VA examination in February 2006. He reported a history of low back pain problems since 1971 in service due to jumping from airplanes. He stated that he was treated conservatively in service. He was diagnosed with mild degenerative disc disease of the lumbosacral spine. VA treatment records reflect that in July 2006 the Veteran reported increased back pain. In September 2008 and in December 2008 he again reported back pain. He was diagnosed with myofascial pain syndrome. In January 2009 he reported increasing back pain. In May 2010 he requested a lumbar corset. In June 2010 he presented to the emergency room with chronic low back pain. He was diagnosed with low back pain and discharged as it improved later that day. In a June 2010 statement the Veteran reported that he injured his knees and lower back while working, but these injuries were also related to service. VA treatment records reflect that in October 2010 the Veteran reported continued back pain. He continued to receive treatment. A December 2011 MRI showed degenerative changes of the lumbar spine. In January 2012 he reported continued pain, but his physician noted that no pathology to explain his pain was noted on his lumbar MRI. A June 2014 MRI showed lumbar spondylosis and degenerative disc disease. In September 2015 he reported increased pain. In January 2016 he reported low back pain radiating to his legs. In February 2016 his neurologist noted that he had chronic low back pain with a history of a train accident in 2003 with pain since. The Veteran underwent a VA examination in July 2017. He reported low back pain in 1975, and multiple low back injuries in service as a paratrooper. He was diagnosed with degenerative disc disease of the thoracolumbar spine. The examiner opined that the disability was less likely as not proximately due to or the result of his service-connected bilateral knee disabilities. This opinion was based on the rationale that osteoarthritis of the bilateral knees is not one of the causes of degenerative disc disease. In a September 2017 opinion, a private physician evaluated the Veteran’s records and opined that his degenerative disc disease of the lumbosacral spine has more likely than not been aggravated by his service-connected knee disabilities. This opinion was based on the rationale that limping can cause and aggravate back injuries and pain. The physician cited orthopedic research in support of this opinion, as well as plentiful treatment records indicating that the Veteran has had an antalgic gait since at least 1998. The Board finds that the evidence is at least in equipoise as to whether the Veteran’s low back disability has been aggravated by his service-connected knee disabilities. The only VA medical opinion that addresses aggravation is that of the July 2017 examiner, who declared that osteoarthritis of the bilateral knees is not one of the causes of degenerative disc disease. The credibility of this opinion is undermined by the September 2017 private opinion finding aggravation, which cited medical research showing that limping can cause or aggravate degenerative change in the lumbar spine. The opinion cited the ample evidence of long-term limping due to the Veteran’s knee disabilities. Furthermore, in stating is not possible for knee osteoarthritis to cause degenerative disc disease, the July 2017 VA opinion fails to address the opinion of the July 2002 VA examiner who found that the Veteran’s cervical degenerative disc disease – referred to only as “back pain” – was caused by his knee disabilities. For these reasons, the Board finds that the evidence is at least in equipoise as to whether the Veteran’s low back disability has been aggravated by his service-connected knee disabilities. Service connection is therefore granted. 3. Entitlement to service connection for fatigue The Veteran claims service connection for fatigue. Service treatment records do not reflect any symptoms of or treatment for fatigue. In his March 2016 notice of disagreement, the Veteran reported that he jumped out of airplanes in service and twisted his spleen in his back leading to arthritis. It is unclear how this is related to fatigue. The Board finds that the evidence weighs against a finding of a current disability of fatigue. The Veteran has not been diagnosed with chronic fatigue syndrome or any other fatigue-related diagnosis. Despite voluminous treatment records in the claims file, there is no evidence of a diagnosis of a disability that can be referred to as fatigue. The Veteran has not provided any statements clarifying his claim, explaining how his fatigue affects him, or when and where he is treated for it. Where the evidence does not support a finding of current disability upon which to predicate a grant of service connection, there can be no valid claim for that benefit. See Gilpin v. West, 155 F.3d 1353 (Fed. Cir. 1998); Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). As such, the Board finds that the evidence weighs against a finding of a current disability and service connection must therefore be denied. 4. Entitlement to service connection for a sleep disability The Veteran claims service connection for a sleep disability. Service treatment records do not reflect any symptoms of or treatment for a sleep disability. In his March 2016 notice of disagreement, the Veteran reported that he cannot sleep due to all the pain he suffers. The Board finds that the evidence weighs against a finding of a current sleep disability. There is no evidence of a diagnosis of insomnia or sleep apnea. While the Veteran states that pain from his service-connected disabilities prevents him from sleeping, his voluminous treatment records do not reflect such symptoms. He has not been prescribed any medication to help him sleep. To the extent that he claims that he experiences sleep difficulties related to his major depressive disorder, he is already compensated for such symptoms as the rating criteria for mental health disabilities explicitly contemplate sleep disturbances. Where the evidence does not support a finding of current disability upon which to predicate a grant of service connection, there can be no valid claim for that benefit. See Gilpin v. West, 155 F.3d 1353 (Fed. Cir. 1998); Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). As such, the Board finds that the evidence weighs against a finding of a current disability and service connection must therefore be denied. 5. Entitlement to service connection for erectile dysfunction The Veteran claims service connection for erectile dysfunction. Service treatment records do not reflect any symptoms of or treatment for erectile dysfunction. In his March 2016 notice of disagreement, the Veteran reported that he cannot produce like he used to. The Board finds that the evidence weighs against a finding that erectile dysfunction is related to service. There is no indication in the record of any relationship between the Veteran’s current erectile dysfunction and service. There is, in fact, no evidence of erectile dysfunction at all outside of the Veteran’s claim, notice of disagreement, and substantive appeal. The Veteran has not explained why he believes his erectile dysfunction is related to service, and there is no medical evidence to support such a relationship. For these reasons, the Board finds that the evidence weighs against a finding that erectile dysfunction is related to service. Service connection is therefore denied. Increased Rating Disability evaluations are determined by application of the criteria set forth in the VA’s Schedule for Rating Disabilities, which is based on average impairment in earning capacity. 38 U.S.C. § 1155; 38 C.F.R. Part 4. An evaluation of the level of disability present must also include consideration of the functional impairment of the Veteran’s ability to engage in ordinary activities, including employment. 38 C.F.R. § 4.10. When evaluating musculoskeletal disabilities based on limitation of motion, 38 C.F.R. § 4.40 requires consideration of functional loss caused by pain or other factors listed in that section that could occur during flare-ups or after repeated use and, therefore, not be reflected on range-of-motion testing. Consideration must also be given to less movement than normal, more movement than normal, weakened movement, excess fatigability, incoordination, and pain on movement. See DeLuca v. Brown, 8 Vet. App. 202 (1995); see also Mitchell v. Shinseki, 25 Vet. App. 32, 44 (2011). Nonetheless, even when the background factors listed in § 4.40 or 4.45 are relevant when evaluating a disability, the rating is assigned based on the extent to which motion is limited, pursuant to 38 C.F.R. § 4.71a (musculoskeletal system) or § 4.73 (muscle injury); a separate or higher rating under § 4.40 or 4.45 itself is not appropriate. See Thompson v. McDonald, 815 F.3d 781, 785 (Fed. Cir. 2016) (“[I]t is clear that the guidance of § 4.40 is intended to be used in understanding the nature of the veteran’s disability, after which a rating is determined based on the § 4.71a [or 4.73] criteria.”). When a question arises as to which of two ratings apply under a particular diagnostic code, the higher evaluation is assigned if the disability more closely approximates the criteria for the higher rating. 38 C.F.R. § 4.7. After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the Veteran. 38 C.F.R. § 4.3. The Veteran’s entire history is to be considered when making disability evaluations. See generally 38 C.F.R. § 4.1; Schafrath v. Derwinski, 1 Vet. App. 589 (1995). 6. Entitlement to an increased evaluation for a cervical spine disability, in excess of 20 percent for the period on appeal prior to August 1, 2014, and in excess of 10 percent thereafter 7. Entitlement to an initial evaluation in excess of 20 percent for radiculopathy of the upper left extremity, effective March 21, 2016 The Veteran seeks an increased rating for his cervical spine disability. The Board notes that in an April 2014 rating decision, the RO reduced the Veteran’s evaluation from 20 percent to 10 percent. The RO did not construe his notice of disagreement ot reflect the propriety of the reduction, and thus the issue has only been certified to the Board as an increased rating claim. The notice of disagreement for an increased rating was filed within one year of the April 2014 rating decision, however, and makes explicit reference to the fact that the rating was reduced. Nevertheless, because the Board finds below that a 20 percent evaluation is warranted based on the rating criteria analysis appropriate to an increased rating appeal, the issue of the procedural propriety of the reduction is moot and need not be considered further. The Veteran is currently in receipt of a 10 percent disability rating for his service-connected cervical spine disability as a cervical strain with degenerative disc disease under 38 C.F.R. § 4.71a, Diagnostic Code 5243. This code is evaluated either upon application of the General Rating Formula for Diseases and Injuries of the Spine (“General Formula”), or as intervertebral disc syndrome (IVDS) under the Formula for Rating IVDS Based on Incapacitating Episodes (“IVDS Formula”), whichever method results in the higher evaluation when all disabilities are combined under 38 C.F.R. § 4.25. See VBA Training Letter 02-04 (October 24, 2002). Under the General Formula, a 10 percent rating is assigned for forward flexion of the cervical spine greater than 30 degrees but not greater than 40 degrees; combined range of motion of the cervical spine greater than 170 degrees but not greater than 335 degrees; muscle spasm, guarding, or localized tenderness not severe enough to result in an abnormal gait or abnormal spinal contour; or vertebral body fracture with loss of 50 percent or more of the height. The next higher rating of 20 percent rating is assigned for forward flexion of the cervical spine greater than 15 degrees but not greater than 30 degrees; 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. A 30 percent rating is assignable for forward flexion of the cervical spine limited to 15 degrees or less, or favorable ankylosis of the entire cervical spine. A 40 percent rating is warranted for unfavorable ankylosis of the entire cervical spine, and a 100 percent rating is warranted for unfavorable ankylosis of the entire spine. Also under the General Formula, any associated objective neurologic abnormalities are to be evaluated separately under an appropriate diagnostic code. The Veteran is currently in receipt of a 20 percent rating for radiculopathy of the (nondominant) upper left extremity, manifested by neuralgia of the upper radicular group, evaluated under 38 C.F.R. § 4.124a, Diagnostic Code 8710. This evaluation is for the period from March 21, 2016. Under this code as applicable to the nondominant extremity, the Veteran’s current evaluation of 20 percent is warranted for mild incomplete paralysis, an evaluation of 30 percent is warranted for moderate incomplete paralysis, an evaluation of 40 percent is warranted for severe incomplete paralysis, and an evaluation of 60 percent is warranted for complete paralysis. Complete paralysis of the upper radicular group is productive of all shoulder and elbow movements lost or severely affected but hand and wrist movements not affected. In rating the peripheral nerve injuries and their residuals, attention should be given to the site and character of the injury, the relative impairment in motor function, trophic changes, or sensory disturbances. 38 C.F.R. § 4.120. Under the IVDS Formula, ratings are based on evidence of incapacitating episodes, defined as periods of acute signs and symptoms that require bed rest prescribed by a physician and treatment by a physician. Taking the Veteran’s lumbar spine disability together with his associated radiculopathy ratings, the Veteran is currently in receipt of a combined rating of 30 percent. The next higher rating of 40 percent is warranted for incapacitating episodes having a total duration of at least 4 weeks but less than 6 weeks during the past 12 months. A maximum rating of 60 percent is warranted for incapacitating episodes having a total duration of at least 6 weeks during the past 12 months. VA treatment records reflect routine care and physical therapy for the Veteran’s cervical spine disability throughout the appeal period. The Veteran underwent a VA examination in July 2012. The claims file was not reviewed by the examiner. He reported steady constant posterior neck pain with crepitus and stiffness. He rated his pain at 9/10 with flares to 10/10. During flare-ups, he reported that he was unable to get up or walk. He denied radicular pain in the upper extremities. Forward flexion was limited to 25 degrees with pain thereat. Extension was limited to 15 degrees with pain thereat. Right and left lateral flexion were limited to 15 degrees with pain thereat. Right and left lateral rotation were limited to 70 degrees with pain thereat. The examiner found functional loss with a contributing factor of pain on movement. There was no further functional loss or loss of range on repetitive testing. Guarding and muscle spasm were present, but did not result in an abnormal gait or contour. Muscle strength was normal without atrophy. Reflexes and sensory examinations were normal. There was no sign of radicular pain or other symptoms of radiculopathy. There were no signs of neurologic abnormalities. The examiner found IVDS but no incapacitating episodes. X-rays confirmed arthritis but no vertebral fracture. The examiner diagnosed osteoarthritis and degenerative disc disease of the cervical spine. The examiner found that the disability impacted the Veteran’s ability to work in that he should avoid heavy lifting. VA treatment records include a November 2012 MRI showing mild spondylosis and multilevel degenerative changes of the cervical spine. Private treatment records reflect that in June 2013 the Veteran reported neck pain radiating down his upper right extremity. His physician observed moderately severe tenderness to palpation with myospasms. Forward flexion was limited to 40/50 degrees. Extension was limited to 40/60 degrees. Bilateral rotation was limited to 50/80 degrees. Bilateral rotation was limited to 25/45 degrees. Reflexes were normal and strength and sensation were intact. He was diagnosed with cervical radiculitis. VA treatment records include an October 2013 MRI showing mild spondylolisthesis and multilevel degenerative change. The Veteran underwent another VA examination in January 2014. He reported chronic neck pain rated at 10/10. He denied flare-ups. Forward flexion was limited to 40 degrees with pain thereat. Extension was limited to 30 degrees with pain thereat. Lateral flexion was limited bilaterally to 15 degrees with pain thereat. Bilateral rotation was limited to 70 degrees with pain thereat. The examiner found functional loss with contributing factors of less movement than normal, incoordination, and pain on movement. There was no further functional loss or loss of range on repetitive testing. There was localized tenderness and pain to palpation. There was no muscle spasm or guarding. Muscle strength was full without atrophy. Reflexes and sensory examinations were normal. There was no sign of radicular pain or other symptoms of radiculopathy. There were no signs of neurologic abnormalities. There was no ankylosis. The examiner found IVDS but no incapacitating episodes. X-rays confirmed arthritis but no vertebral fracture. He was diagnosed with a cervical strain with degenerative arthritis. The examiner found that the disability impacted the Veteran’s ability to work in that he should avoid bending or lifting. The Veteran underwent another VA examination on March 21, 2016. He reported pain from where he had had a cyst removed in his neck. He rated his pain at 9/10, radiating down his left arm to the forearm without numbness, tingling, or burning. He reported flare-ups consisting of increased pain when bending over. Forward flexion was limited to 40 degrees. Extension was limited to 20 degrees. Lateral flexion was limited bilaterally to 30 degrees. Right lateral rotation was limited to 70 degrees. Left lateral rotation was limited to 60 degrees. Range of motion contributed to functional loss via pain on movement in extension, lateral flexion, and rotation. Repetitive testing reduced extension to 15 degrees, lateral flexion to 25 degrees bilaterally, and right lateral rotation to 60 degrees. Additional functional loss was caused by pain. The Veteran was examined immediately after repeated use over time. The examination was medically consistent with the Veteran’s statements describing functional loss during flare-ups. The examiner was unable to say what factors limited ability during flare-ups without mere speculation. There was no ankylosis. There was evidence of pain with weight-bearing. There was objective evidence of tenderness in the posterior neck. Muscle spasm and tenderness did not result in an abnormal gait or contour. There was no guarding. Muscle strength was full without atrophy. Reflexes were absent. Light touch sense was decreased in the bilateral hands and fingers. The examiner found severe intermittent pain indicative of radiculopathy in the left upper extremity and diagnosed severe radiculopathy involving the upper radicular group. There were no signs of other neurologic abnormalities. There was no IVDS. He was diagnosed with a cervical strain with degenerative arthritis. The examiner found that the disability impacted the Veteran’s ability to work in that he should avoid bending to pick up things. The examiner estimated that current severity of the neck was moderate. In an October 2017 brief, the Veteran’s representative argued that radiculopathy of the left upper extremity should be rated as severe per the March 2016 VA examination. The representative further argued that radiculopathy should be compensated effective the date of the Veteran’s informal claim on April 23, 2013. The Board finds that an evaluation of 20 percent is warranted for the entirety of the appeal period. Such a rating is warranted for the functional equivalent of forward flexion limited to more than 15 degrees but no more than 30 degrees. At his July 2012 VA examination, forward flexion was limited to 25 degrees. Subsequent VA examinations measured forward flexion limited to 40 degrees. Given, however, that the March 2016 VA examiner was unable to determine the effect of flare-ups without speculation, and that VA treatment records are not indicative of any improvement in the disability from a treatment perspective, the Board finds that the fluctuations in forward flexion do not reflect an improvement of the disability but rather reflect the range of limitation as it fluctuates day-to-day. As such, the Board finds that the evaluation of 20 percent is warranted for the entirety of the appeal period. The Board further finds that an evaluation in excess of 20 percent is not warranted for the Veteran’s cervical spine disability. Higher ratings are available for incapacitating episodes, ankylosis, forward flexion limited to 15 degrees or less, or the functional equivalent thereof. The evidence weighs against such manifestations. There is no evidence in the record of incapacitating episodes or ankylosis. At no time was his forward flexio21n measured as limited to less than 25 degrees. The fact that forward flexion has on multiple occasions been measured as limited to only 40 degrees suggests that the 25-degree measurement was during an exacerbation, weighing against a finding of functional equivalence of a higher rating due to flare-ups or repetitive use over time. For these reasons, the Board finds that an evaluation in excess of 20 percent is not warranted for the Veteran’s cervical spine disability. As to his radiculopathy, the Board finds that a 30 percent evaluation is warranted for radiculopathy of the upper left extremity. The Veteran’s current 20 percent rating is warranted for the equivalent of mild incomplete paralysis. The March 2016 VA examiner, however, rated his symptoms as severe. While severe incomplete paralysis warrants a 40 percent evaluation, there is no indication that his symptoms are not wholly sensory, and as such are to be rated no higher than moderate under the rating criteria. The Board thus finds that radiculopathy of the upper left extremity is productive of the equivalent of moderate incomplete paralysis, and a 30 percent rating is warranted. As to the effective date of the radiculopathy, the Veteran’s representative argues for the date of the claim of increase for a cervical spine disability. The evidence, however, weighs against a finding of radiculopathy symptoms prior to March 21, 2016. Specifically, the July 2012 VA examiner found that there was no sign of radicular pain or other symptoms of radiculopathy, June 2013 private treatment records reflect that reflexes were normal and strength and sensation were intact, and the January 2014 VA examiner found that was no sign of radicular pain or other symptoms of radiculopathy. For these reasons, the Board finds that an evaluation for radiculopathy is not warranted prior to March 21, 2016. 8. Entitlement to a separate evaluation for a right knee meniscal tear 9. Entitlement to an evaluation in excess of 10 percent for left knee osteoarthritis 10. Entitlement to an evaluation in excess of 10 percent for right knee osteoarthritis The Veteran seeks increases to his ratings for his knee disabilities. The Veteran’s knee disabilities are currently rated under 38 C.F.R. § 4.71a, Diagnostic Code 5260. Under this code, flexion of the leg is rated noncompensable when limited to 60 degrees, 10 percent when limited to 45 degrees, 20 percent when limited to 30 degrees, and 30 percent when limited to 15 degrees. Alternative and additional Diagnostic Codes for the leg and the knee are available under 38 C.F.R. § 4.71a, as follows: Under 38 C.F.R. § 4.71a, Diagnostic Code 5003, degenerative arthritis is rated on the basis of limitation of motion of the specific joint involved. When limitation of motion is noncompensable, a 10 percent rating is for application for each major joint. In the absence of limitation of motion, a maximum schedular 20 percent rating is assigned for degenerative arthritis of two or more major joints or two or more minor joint groups, with occasional incapacitating episodes. Under 38 C.F.R. § 4.71a, Diagnostic Code 5256, ankylosis of the knee with a favorable angle in full extension, or in slight flexion between 0 and 10 degrees, is rated at 30 percent; ankylosis in flexion between 10 and 20 degrees is rated at 40 percent; ankylosis in flexion between 20 and 45 degrees is rated at 50 percent; and extremely unfavorable ankylosis, in flexion at an angle of 45 degrees or more, is rated at 60 percent. Under 38 C.F.R. § 4.71a, Diagnostic Code 5257, recurrent subluxation or lateral instability is rated at 10 percent for slight instability, 20 percent for moderate instability, and 30 percent for severe instability. Under 38 C.F.R. § 4.71a, Diagnostic Code 5258, dislocation of semilunar cartilage with frequent episodes of “locking” pain and effusion into the joint is rated at 20 percent. Under 38 C.F.R. § 4.71a, Diagnostic Code 5259, symptomatic removal of the semilunar cartilage is rated at 10 percent. Under 38 C.F.R. § 4.71a, Diagnostic Code 5261, extension of the leg is rated noncompensable when limited to 5 degrees, 10 percent when limited to 10 degrees, 20 percent when limited to 15 degrees, 30 percent when limited to 20 degrees, 40 percent when limited to 30 degrees, and 50 percent when limited to 45 degrees. Under 38 C.F.R. § 4.71a, Diagnostic Code 5262, malunion of the tibia and fibula is rated at 10 percent with slight disability, 20 percent with moderate disability, and 30 percent with marked disability. Nonunion of the tibia and fibula, with loose motion and requiring a brace, is rated at 40 percent. Under 38 C.F.R. § 4.71a, Diagnostic Code 5263, acquired traumatic genu recurvatum, with objectively demonstrated weakness and insecurity in weight-bearing is rated at 10 percent. VA treatment records reflect routine care and physical therapy for the Veteran’s knee disabilities throughout the appeal period. In April 2013 MRIs showed a mild tear of the anterior horn of the lateral meniscus and mild to moderate degenerative arthritis of the right knee, as well as mild degenerative arthritis of the left knee. At a May 2013 orthopedic consultation, the Veteran reported pain on climbing stairs and raising from a chair. He was diagnosed with bilateral patellofemoral syndrome and referred for physical therapy. The Veteran underwent a VA examination in January 2014. He reported pain rated at 9/10 with bucking and clicking. He reported regular use of knees braces and a cane. He denied flare-ups. Gait was antalgic. In the right knee, flexion was limited to 130 degrees with pain thereat and extension was full without pain. In the left knee, flexion was limited to 120 degrees with pain thereat and extension was full without pain. The examiner found functional loss with bilateral contributing factors of less movement than normal, pain on movement, disturbance of locomotion, and interference with sitting, standing, and weight-bearing, as well as weakened movement in the left knee. There was no additional functional loss or loss of range with repetitive testing. There was bilateral tenderness and pain to palpation. Muscle strength was normal in the right knee but reduced to active movement against some resistance in left knee extension. Stability tests were normal. There was no evidence or history of recurrent patellar subluxation or dislocation. He was diagnosed with bilateral osteoarthritis, meniscal tears, and patella tendinopathy, as well as a ligament tear of the left knee. The examiner found functional impact that limited his ability to run, jump, squat, stoop, and kneel. VA treatment records reflect that October 2014 MRIs showed a lateral meniscus tear in the right knee with moderate articular cartilaginous thinning, but no meniscal tear in the left knee. The Veteran underwent another VA examination in March 2016. He reported a hard time walking and using stairs. Pain was rated at greater than 9/10. He reported difficulty bending to get dressed and pick up things, and stated that he could not stand too long. He reported occasional use of braces and a cane. He reported flare-ups when bending or walking too much, which manifested as increased pain. Flexion was limited to 120 degrees bilaterally with pain on movement. Extension was full to 0 degrees bilaterally without pain. Repetitive testing reduced flexion to 110 degrees in the right knee and 115 degrees in the left knee and caused additional functional loss with bilateral contributing factors of pain. The Veteran was examined immediately after repeated use over time. There was evidence of localized tenderness and pain with weight-bearing. There was no evidence of crepitus. Muscle strength was full without atrophy. There was no ankylosis. There was no history of recurrent subluxation, lateral instability, or recurrent effusion. Stability tests were negative. There was no history or evidence of shin splints, recurrent dislocation, stress fractures, or chronic exertional compartment syndrome. A right-knee meniscal tear was noted on an MRI. He was diagnosed with a right knee meniscal tear, left knee tendinopathy, and bilateral degenerative arthritis. The examiner found that the levels of severity of the disabilities were moderate in the right knee and mild to moderate in the left knee. The Veteran underwent another VA examination in July 2017. He reported sharp, intermittent bilateral knee pain rated at 9/10. He reported that it lasts for hours and is worse with walking for long periods of time. He reported flare-ups 5 times per week lasting for hours, during which he cannot sit or stand for long periods of time. He reported regular use of a cane. Flexion was limited to 60 degrees with pain bilaterally. Extension was full to 0 degrees without pain bilaterally. There was no additional functional loss or loss of range with repetitive testing. The examination was neither medically consistent nor inconsistent with the Veteran’s statements describing functional loss with flare-ups or repetitive use over time, and the examiner was unable to describe such functional loss without mere speculation. There was bilateral evidence of pain with weight-bearing, mild tenderness to palpation, and crepitus. Muscle strength was full without atrophy. There was no ankylosis. There was no history of recurrent subluxation, lateral instability, or recurrent effusion. Stability tests were normal. There was no history or evidence of shin splints, recurrent dislocation, stress fractures, or chronic exertional compartment syndrome. He was diagnosed with a right knee meniscal tear, left knee tendinopathy, and bilateral degenerative arthritis. The examiner noted that there was no evidence of the prior diagnosed left knee meniscal tear in the October 2014 MRI. The Board finds that an additional 20 percent rating under Diagnostic Code 5258 is warranted for the Veteran’s right knee meniscal tear. Such a rating is warranted for dislocation of semilunar cartilage with frequent episodes of “locking” pain and effusion into the joint. The MRI evidence of a meniscal tear supports such a rating, and it is consistent with the Veteran’s reports of bucking and clicking, his use of a cane and knee brace, and the March 2016 VA examiner’s evaluation of the right knee as moderately disabled, as opposed to the left knee which was only mild to moderate. This symptomatology is distinct from the painful motion underlying his current 10 percent rating, and a separate rating is therefore warranted. A 20 percent rating is the maximum schedular rating under Diagnostic Code 5258, and a higher rating is therefore not warranted. While the January 2014 VA examiner diagnosed bilateral meniscal tears, subsequent MRIs were clear that the meniscal tear only existed in the right knee. The evidence therefore weighs against a separate rating under this code in the left knee. The Board further finds that, aside from the abovementioned additional evaluation in the right knee, evaluations in excess of 10 percent are not warranted for the Veteran’s bilateral knee disabilities. Separate or higher ratings are available for ankylosis, recurrent subluxation or lateral instability, symptomatic removal of the semilunar cartilage, extension limited to 10 degrees or more, flexion limited to 10 degrees or less, malunion or nonunion of the tibia and fibula, genu recurvatum, or the functional equivalent thereof. The evidence weighs against such manifestations. There is no evidence in the record of ankylosis, genu recurvatum, or malunion or nonunion of the tibia and fibula. While the Veteran uses a cane for support and wears knee braces, he has not reported falls or other indications of lack of stability, and objective instability tests have been consistently negative. There is no evidence of limitation of extension, and flexion has not been measured as limited to less than 60 degrees and on multiple cases was limited to well over 100 degrees. The Board does not find evidence of functional equivalence of higher ratings, and the Veteran’s use of a cane and knee braces is consistent with his 20 percent rating for a meniscal tear. For these reasons, the Board finds that further increased evaluations are not warranted for the Veteran’s knee disabilities. 11. Entitlement to an initial evaluation in excess of 30 percent for migraine headaches The Veteran seeks an increased rating for migraine headaches. The Veteran’s migraine headaches are rated under 38 C.F.R. § 4.124a, Diagnostic Code 8100. His current 30 percent rating is warranted for characteristic prostrating attacks occurring on an average once a month over the last several months. A maximum 50 percent rating is warranted for very frequent completely prostrating and prolonged attacks productive of severe economic inadaptability. The Veteran underwent a VA examination in October 2015. He reported pulsating or throbbing pain on both sides of his head, worsening with physical activity. He reported associated nausea, numbness, and sensitivity to light and sound. Duration of his typical head pain was more than 2 days. He reported characteristic prostrating attacks of migraine pain more frequently than once per month. He was diagnosed with migraine headaches. The Veteran underwent another VA examination in July 2017. He reported pulsing or throbbing headache pain with associated sensitivity to light and sound, lasting typically about two hours. He reported characteristic prostrating attacks once per month. He reported very prostrating and prolonged attacks productive of severe economic inadaptability. He was diagnosed with migraine headaches. In a September 2017 opinion, a private physician based on an interview with the Veteran and a review of his records stated that he experiences prostrating headaches 2-3 times per week lasting up to 12 hours in duration. The physician stated that the headaches are associated with severe vomiting and reduced power of concentration, rendering the Veteran incapacitated and forced to lie down in a dark environment for hours at a time. The physician agreed with the July 2017 VA examiner that the headaches are productive of severe economic inadaptability, and are debilitating and impact his daily life. The Board finds that an evaluation in excess of 30 percent is not warranted for the Veteran’s headaches. Higher ratings are available for very frequent completely prostrating and prolonged attacks productive of severe economic inadaptability. The evidence weighs against such manifestations. While at his VA examinations and September 2017 private evaluation the Veteran has reported headaches of a severity that warrant a 50 percent evaluation, these reports are not consistent with or supported by the voluminous VA treatment records in the claims file. While he regularly seeks treatment for his pain caused by his musculoskeletal disabilities, there is little indication of such persistent treatment for his headache pain. The Board finds that the Veteran’s relatively low priority of treatment for his headache pain is indicative of pain that is not severe to the point of being productive of severe economic inadaptability. For these reasons, the Board finds that an evaluation in excess of 30 percent is not warranted for the Veteran’s headaches. 12. Entitlement to an effective date earlier than July 17, 2015, for an award of service connection for an acquired psychiatric disability, to include major depressive disorder The Veteran seeks an effective date earlier than July 17, 2015, for an award of service connection for major depressive disorder. The Board notes that the Veteran’s November 2017 substantive appeal and an October 2017 brief filed by his representative argues for an increased rating for major depressive disorder. Such an issue was not included in any statement of the case, and the Veteran’s September 2017 notice of disagreement specifically only appealed the issue as to effective date. The Board therefore does not have jurisdiction over the issue of an increased rating and it is outside the scope of this decision. Only the appeal for an earlier effective date will be addressed further. Generally, the effective date of an award of a service connection claim, including a claim reopened after a final disallowance, is the date of receipt of a claim or the date entitlement arose, whichever is later. 38 U.S.C.A § 5110(a); 38 C.F.R. § 3.400. Under regulations applicable prior to March 24, 2015, any communication or action indicating an intent to apply for one or more benefits under the laws administered by VA from a claimant may be considered an informal claim. An informal claim must identify the benefit sought. 38 C.F.R. § 3.155(a) (2014). A reopened claim is any application for a benefit received after final disallowance of an earlier claim. 38 C.F.R. § 3.160(e). The effective date of an award of disability compensation based on a reopened claim under the provisions of 38 C.F.R. §§ 3.109, 3.156, 3.157, and 3.160(e) shall be the date of receipt of the claim or the date entitlement arose, whichever is later. 38 C.F.R. § 3.400(r). The Veteran initially filed an informal claim for a mental health condition that was received in April 2013. The claim was denied in a February 2014 rating decision. In August 2014 he filed a notice of disagreement with respect to other issued addressed by the rating decision, but did not appeal the denial of a mental health disability. He did not submit any new and material evidence within the one-year appeal period. The decision therefore became final. The next communication submitted by the Veteran regarding his mental health was his claim received on July 21, 2015. In an October 2017 brief, the Veteran’s representative argued that service connection should be effective the date of the Veteran’s April 2013 informal claim. The Board finds that, since the February 2014 final denial, the Veteran’s first communication to VA conveying an intent to file a claim for a mental health disability was received on July 17, 2015, the current effective date. Neither the Veteran nor his representative has explained why the February 2014 rating decision should not be considered final, or why an earlier effective date is otherwise warranted. The appeal for an earlier effective date is therefore denied. REASONS FOR REMAND 1. Entitlement to service connection for hypertension The Veteran claims service connection for hypertension. Service treatment records do not reflect any symptoms of or treatment for hypertension. VA regulations require that hypertension or isolated systolic hypertension be confirmed by readings taken two or more times on at least three different days. For compensation purposes, hypertension means that the diastolic blood pressure is predominantly 90mm or greater, and isolated systolic hypertension means that the systolic blood pressure is predominantly 160mm or greater with a diastolic blood pressure of less than 90mm. 38 C.F.R. § 4.104, Diagnostic Code 7101. VA treatment records reflect that in January 2009 the Veteran’s blood pressure was measured at 132/97, with a repeat measurement of 118/58. His physician diagnosed hypertension possibly related to pain. In July 2009 his blood pressure was measured at 136/95, with a repeat measurement of 124/84. In December 2009 his blood pressure was measured at 133/84. In January 2010 his blood pressure was measured at 118/62. At a March 2010 vision consultation it was 129/87, but when he presented to the emergency room with a finger injury it was 164/98. The next day it fell to 147/97, and the day after that it fell to 108/78. In May 2010 blood pressure was measured at 140/90, and his physician noted to monitor blood pressure. At a subsequent emergency room visit it was measured at 163/93. At a June 2010 emergency room visit his blood pressure was 158/106. In October 2010, his physician noted an initial elevated blood pressure of 140/90 with a repeat measurement of 134/80. In April 2011 his blood pressure was 134/80 and 128/82, both measured on the same day. Later that month it was measured at 141/92 with a repeat measurement of 136/84. In July 2011 it was measured at 136/94 with a repeat measurement of 125/80. In October 2011 it was 128/74. In January 2012 it was 122/70. In May 2012 it was measured at 138/100 with a repeat measurement of 138/72. In August 2012 his blood pressure was 135/75. His physician noted that it was slightly elevated due to pain, and if it remains high consistently he would be started on blood pressure medication. In November 2012 his blood pressure was 142/94. He told his physician that his blood pressure was normal at home, and he was advised to keep track of his home measurements. In February 2013 his blood pressure was measured at 152/88. He was diagnosed with new-onset hypertension and prescribed medication. He continued medication thereafter. In his March 2016 notice of disagreement, the Veteran reported that he goes to the VA emergency room in pain sitting for hours. It is unclear how this is related to his hypertension. The Board finds that remand is necessary for a VA examination. On two occasions, in January 2009 and August 2012, the Veteran’s VA treating physicians indicated the possibility that his hypertension might be associated with his pain. A VA examination is necessary to determine the probability of such a relationship. 2. Entitlement to a TDIU The Veteran seeks a TDIU. He contends that his service-connected disabilities, when considered in combination, render him unemployable. Total disability means that there is present any impairment of mind or body sufficient to render it impossible for the average person to follow a substantially gainful occupation. 38 C.F.R. §§ 3.340, 4.15. A substantially gainful occupation has been defined as “an occupation that provides an annual income that exceeds the poverty threshold for one person, irrespective of the number of hours or days that the Veteran actually works and without regard to the Veteran’s earned annual income.” Faust v. West, 13 Vet. App. 342 (2000). A veteran is totally disabled if his service-connected disability or combination of service-connected disabilities is rated at 100 percent pursuant to the Schedule for Rating Disabilities. 38 C.F.R. § 3.340(a)(2). Even if a veteran is less than 100 percent disabled, he still is deemed totally disabled under the Schedule for Rating Disabilities if he satisfies two requirements. 38 C.F.R. § 4.16(a). First, the veteran must meet a minimum percent evaluation. If he has one service-connected disability, it must be evaluated at 60 percent or more. If he has two or more service-connected disabilities, at least one disability must be evaluated at 40 percent or more and the combined evaluation of all the disabilities must be 70 percent or more. The following will be considered as one disability with respect to the minimum percent evaluation: (1) disabilities of one or both upper extremities or of one or both lower extremities, including the bilateral factor, if applicable, (2) disabilities resulting from common etiology or a single accident, (3) disabilities affecting a single body system (e.g., orthopedic, digestive, respiratory, cardiovascular-renal, neuropsychiatric), (4) multiple injuries incurred in action, or (5) multiple disabilities incurred as a prisoner of war. Second, the veteran must be found to be unable to secure and follow a substantially gainful occupation as a result of his service-connected disability or disabilities. Id. Where the veteran does not meet the percentage evaluation requirements under 4.16(a), he still may be deemed totally disabled on an extraschedular basis under 38 C.F.R. § 4.16(b) when the evidence nonetheless indicates that the veteran is unemployable by reason of his service-connected disabilities. Under such circumstance the matter is referred to the Director of the Compensation and Pension Service (“Director”) for consideration. Id.; see also Bagwell v. Brown, 9 Vet. App. 337 (1996); Floyd v. Brown, 9 Vet. App. 88 (1996); Shipwash v. Brown, 8 Vet. App. 218 (1995). Extraschedular TDIU consideration requires contemplation of the following factors: severity of the Veteran’s service-connected disabilities, employment history, educational and vocational attainment, and all other factors having a bearing on the issue. 38 C.F.R. § 4.16(b). Although the Board does not have the authority to award an extraschedular TDIU prior to referral to the Director, the Board has jurisdiction to review and award extraschedular ratings in claims that have been denied by the Director. See Kuppamala v. McDonald, 27 Vet. App. 447 (2015). The fact that a veteran is in receipt of a combined schedular rating of 100 percent does not preclude the availability of a TDIU. Although no additional disability compensation may be paid when a total schedular rating is already in effect, a separate award of a TDIU predicated on a single disability may form the basis for an award of special monthly compensation, and thus must be considered by the Board. Bradley v. Peake, 22 Vet. App. 280, 293-94 (2008). Adjusting for the increased ratings granted in this decision, for the period on appeal prior to July 17, 2015, the Veteran is in receipt of a combined rating of no more than 50 percent for his cervical spine disability and his bilateral knee disabilities. Effective July 17, 2015, he is in receipt of a combined rating of 90 percent for these disabilities with the addition of his major depressive disorder and his migraine headaches, as well as his radiculopathy effective March 21, 2016. As such, it appears that the Veteran currently only meets the criteria for a schedular TDIU under 38 C.F.R. § 4.16(a) for the period from July 17, 2015. This period, however, may expand when the Veteran is evaluated for his lumbar spine disability granted in this decision. Currently, the Veteran’s combined rating of 50 percent renders him ineligible for a schedular TDIU under 38 C.F.R. § 4.16(a) for the period prior to July 17, 2015. His eligibility could change, however, after he is assigned a rating for the low back disability for which service connection is granted herein, or if service connection for hypertension is granted on remand. Furthermore, the rating assigned for a low back disability, or hypertension if applicable, could elevate him to a combined schedular rating of 100 percent for part of the appeal period. The relevant question for any such period would then be whether a single service-connected disability renders him unemployable, as opposed to his service-connected disabilities in combination. For these reasons, the Board finds that as the issue of entitlement to TDIU is inextricably intertwined with the rating to be assigned for the Veteran’s low back disability, for which service connection is granted herein, and with his claim for service connection for hypertension. Remand is therefore necessary. See Ephraim v. Brown, 5 Vet. App. 549, 550 (1993) (inextricably intertwined claims should be remanded together). The matters are REMANDED for the following action: 1. Implement the Board’s decision above to awarding service connection for a low back disability. 2. Obtain and associate with the claims file any additional medical evidence that may have come into existence but has not been associated with the record. Schedule the Veteran for a VA examination for his hypertension. The claims file must be reviewed by the examiner. Following a review of the claims file and any clinical examination results, the examiner should offer an opinion as to whether it is at least as likely as not (i.e. 50 percent probability or more) that hypertension is related to pain from the Veteran’s service-connected disabilities, with specific reference to the comments of his VA physicians relating to such in January 2009 and August 2012. All opinions are to be accompanied by a rationale consistent with the evidence of record. A discussion of the pertinent evidence, relevant medical treatises, and generally accepted medical principles is requested. If the examiner cannot provide an opinion without resorting to speculation, he or she shall provide complete explanations stating why this is so. In so doing, the examiner shall explain whether any inability to provide a more definitive opinion is the result of a need for additional information, or that he or she has exhausted the limits of current medical knowledge in providing an answer to that particular question. 3. After completing the above, and any other development deemed necessary, readjudicate the appeal. JONATHAN B. KRAMER Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD J. Gallagher, Counsel