Citation Nr: 18156991 Decision Date: 12/11/18 Archive Date: 12/11/18 DOCKET NO. 17-59 032 DATE: December 11, 2018 ORDER New and material evidence having been submitted, the claim of entitlement to service connection for an acquired psychiatric disorder is reopened. Entitlement to service connection for an acquired psychiatric disorder, diagnosed as bipolar II disorder and unspecified anxiety disorder, is granted. Entitlement to service connection for headaches is granted. Entitlement to service connection for a left shoulder condition is denied. Entitlement to service connection for a right shoulder condition is denied. Entitlement to service connection for a left hip condition is denied. Entitlement to service connection for a right hip condition is denied. Entitlement to service connection for bilateral hearing loss is denied. Entitlement to service connection for tinnitus is denied. Entitlement to service connection for diabetes mellitus, type II, is denied. Entitlement to service connection for neuropathy is denied. Entitlement to an increased rating in excess of 10 percent for right leg shin splint is denied. Entitlement to an increased rating in excess of 10 percent for a right ankle disability is denied. Entitlement to a compensable rating for a left ankle disability is denied. REMANDED Entitlement to service connection for a back disability is remanded. Entitlement to service connection for obstructive sleep apnea is remanded. Entitlement to service connection for a heart disability is denied. Entitlement to special monthly compensation (SMC) based on the need for aid and attendance is remanded. FINDINGS OF FACT 1. An unappealed June 2015 rating decision denied entitlement to service connection for a psychiatric disability. 2. New and material evidence received since the June 2015 rating decision relates to unestablished facts necessary to substantiate the Veteran’s claim of entitlement to service connection for a psychiatric disability. 3. Resolving reasonable doubt in the Veteran’s favor, his acquired psychiatric disability, diagnosed as bipolar II disorder and unspecified anxiety disorder, began during active service. 4. Resolving reasonable doubt in the Veteran’s favor, his headaches are secondary to his service-connected acquired psychiatric disability. 5. The preponderance of the evidence is against finding that the Veteran's left shoulder disability began during active service, or is otherwise related to an in-service injury, event, or disease. 6. The preponderance of the evidence is against finding that the Veteran’s right shoulder disability began during active service, or is otherwise related to an in-service injury, event, or disease. 7. The preponderance of the evidence of record is against finding that the Veteran has, or has had at any time during the appeal, a current diagnosis of a right hip disability. 8. The preponderance of the evidence of record is against finding that the Veteran has, or has had at any time during the appeal, a left hip disability. 9. The preponderance of the evidence of record is against finding that the Veteran has, or has had at any time during the appeal, bilateral hearing loss. 10. The preponderance of the evidence is against finding that the Veteran's tinnitus began during active service, or is otherwise related to an in-service injury, event, or disease. 11. The preponderance of the evidence is against finding that the Veteran's diabetes mellitus, type II, began during active service, or is otherwise related to an in-service injury, event, or disease. 12. The preponderance of the evidence is against finding that the Veteran’s neuropathy began during active service, or is otherwise related to an in-service injury, event, or disease. 13. The Veteran's right leg shin splints have not been manifest by a moderate knee or ankle disability. 14. The Veteran's right ankle disability has not been manifest by marked limitation of motion. 15. The Veteran’s left ankle disability has not been manifest by moderate limitation of motion. CONCLUSIONS OF LAW 1. The June 2015 rating decision, which denied the Veteran’s claim of entitlement to service connection for an acquired psychiatric disorder, is final. 38 U.S.C. § 7105(c) (2012); 38 C.F.R. §§ 3.104, 3.156, 20.201, 20.302, 20.1103 (2017). 2. Additional evidence received since the June 2015 rating decision is new and material, and the claim of entitlement to service connection for an acquired psychiatric disorder is reopened. 38 U.S.C. § 5108 (2012); 38 C.F.R. § 3.156 (2017). 3. The criteria for service connection for an acquired psychiatric disorder, diagnosed as bipolar II disorder and unspecified anxiety disorder, are met. 38 U.S.C. §§ 1110, 1131, 5107(b); 38 C.F.R. §§ 3.102, 3.303(a). 4. The criteria for service connection for headaches are met. 38 U.S.C. §§ 1110, 1131, 5107(b); 38 C.F.R. §§ 3.102, 3.303(a). 5. The criteria for service connection for a left shoulder disability are not met. 38 U.S.C. §§ 1110, 1131, 5107(b); 38 C.F.R. §§ 3.102, 3.303(a). 6. The criteria for service connection for a right shoulder disability are not met. 38 U.S.C. §§ 1110, 1131, 5107(b); 38 C.F.R. §§ 3.102, 3.303(a). 7. The criteria for service connection for a left hip disability are not met. 38 U.S.C. §§ 1110, 1131, 5107(b); 38 C.F.R. §§ 3.102, 3.303(a). 8. The criteria for service connection for a right hip disability are not met. 38 U.S.C. §§ 1110, 1131, 5107(b); 38 C.F.R. §§ 3.102, 3.303(a). 9. The criteria for service connection for bilateral hearing loss are not met. 38 U.S.C. §§ 1110, 1131, 5107(b); 38 C.F.R. §§ 3.102, 3.303(a). 10. The criteria for service connection for tinnitus are not met. 38 U.S.C. §§ 1110, 1131, 5107(b); 38 C.F.R. §§ 3.102, 3.303(a). 11. The criteria for service connection for diabetes mellitus, type II, are not met. 38 U.S.C. §§ 1110, 1131, 5107(b); 38 C.F.R. §§ 3.102, 3.303(a). 12. The criteria for service connection for neuropathy are not met. 38 U.S.C. §§ 1110, 1131, 5107(b); 38 C.F.R. §§ 3.102, 3.303(a). 13. The criteria for a disability rating in excess of 10 percent for right leg shin splints are not met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 4.3, 4.71a, Diagnostic Code 5262 (2017). 14. The criteria for a disability rating in excess of 10 percent for a right ankle disability are not met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 4.3, 4.71a, Diagnostic Code 5271 (2017). 15. The criteria for a compensable rating for a left ankle disability are not met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 4.3, 4.71a, Diagnostic Code 5271-5010 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from August 1983 to June 1987 and October 1990 to November 1992. A claim for service connection for any psychiatric disorder may encompass a claim for service connection for all diagnosed psychiatric disorders. Clemons v. Shinseki, 23 Vet. App. 1, 5 (2009). The record indicates psychiatric diagnoses including anxiety, depressive disorder, bipolar disorder, and posttraumatic stress disorder (PTSD). Accordingly, the Board has recharacterized the issue on appeal. Before addressing the substance of the Veteran's appeals, the Board recognizes that the Veteran has not been provided with VA examinations for his claimed shoulder disabilities, hip disabilities, bilateral hearing loss, tinnitus, diabetes mellitus, or neuropathy. However, VA need not conduct examinations with respect to the claims on appeal, as information and evidence of record contains sufficient competent medical evidence to decide the claim. See 38 C.F.R. § 3.159 (c)(4). Under McLendon v. Nicholson, 20 Vet. App. 79 (2006), in disability compensation claims, VA must provide a VA medical examination when there is (1) competent evidence of a current disability or persistent or recurrent symptoms of a disability, (2) evidence establishing that an event, injury, or disease occurred in service or establishing certain diseases manifesting during an applicable presumptive period for which the claimant qualifies, and (3) an indication that the disability or persistent or recurrent symptoms of a disability may be associated with the Veteran’s service or with another service-connected disability, but (4) insufficient competent medical evidence on file for the VA to make a decision on the claim. The standards of McLendon are not met in this case. While the Veteran has diagnoses of bilateral shoulder disabilities, tinnitus, diabetes mellitus, and neuropathy, there is no evidence establishing an in-service event or injury, or any indication that the diagnoses are otherwise related to service. As to his claimed bilateral hip disabilities, the evidence of record does not show a diagnosed hip disability, or evidence of any functional loss resulting from pain. Thus, remand for VA examinations regarding these claims is not necessary. New and Material Evidence 1. Claim to Reopen Acquired Psychiatric Disorder To reopen a claim that has been denied by a final decision, the claimant must present new and material evidence with respect to the claim. 38 U.S.C. § 5108. “New evidence” means existing evidence not previously submitted to VA. 38 C.F.R. § 3.156 (a). “New evidence” means existing evidence not previously submitted to VA. 38 C.F.R. § 3.156 (a). “Material evidence” means existing evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. Id. New and material evidence can be neither cumulative nor redundant of the evidence of record at the time of the last prior final denial of the claim, and it must raise a reasonable possibility of substantiating the claim. Id. For purposes of reopening a claim, the credibility of newly submitted evidence is generally presumed. See Justus v. Principi, 3 Vet. App. 510, 513 (1992). The language of 38 C.F.R. § 3.156 (a) creates a low threshold for finding new and material evidence, and views the phrase “raises a reasonable possibility of substantiating the claim” as “enabling rather than precluding reopening.” Evidence “raises a reasonable possibility of substantiating the claim,” if it would trigger VA’s duty to provide an examination in adjudicating a non-final claim. Shade v. Shinseki, 24 Vet. App. 110 (2010). The agency of original jurisdiction (AOJ) most recently denied the Veteran’s claim for service connection for an acquired psychiatric disorder in a June 2015 rating decision. In June 2016, the Veteran disagreed with the rating decision. The AOJ readjudicated the Veteran’s claim in an October 2016 statement of the case (SOC), confirming the denial. The Veteran did not perfect a timely substantive appeal. As such, the June 2015 rating decision became final. See 38 U.S.C. § 7105; 38 C.F.R. §§ 3.104, 3.156, 20.1103; see also Bond v. Shinseki, 659 F.3d 1362, 1367-68 (Fed. Cir. 2011). Since the June 2015 rating decision, new and material evidence has been received in the form of VA treatment records and the opinion of a private examiners. Therefore, to this extent only, the benefit sought on appeal is granted. Service Connection Service connection will be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred in or aggravated by active service, even if the disability was initially diagnosed after service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. 2. Acquired Psychiatric Disorder The Veteran asserts that he is entitled to service connection for an acquired psychiatric disorder. Considering the whole of the evidence in the record, the Board concludes that the Veteran has a current diagnosis of bipolar II disorder and unspecified anxiety disorder that is related to his active duty service. 38 U.S.C. §§ 1110, 1131, 5107(b); Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009); 38 C.F.R. § 3.303(a). The Veteran reported that in 1991, while in the Coast Guard, he responded as a rescue swimmer to a call reporting a young girl in the water under a pier. Initially, his unit was given the wrong directions, and when they finally arrived, the Veteran dove in after the girl. After many attempts he pulled girl out of the water; however, she later died. The Veteran later learned it was her ninth birthday. He reported that he had a hard time sleeping after this but was offered no counseling. See Veteran's stressor statement provided in January 2015. A June 1991 military personnel record confirmed the Coast Guard unit’s involvement with the drowning of a young girl, as reported by the Veteran. The Veteran's report was also confirmed in a January 2015 statement by J.P. who reported he had read the case file and discussed the incident with the Veteran after it occurred. An August 2016 VA examiner determined that the Veteran did not meet the full criteria for a diagnosis of PTSD consistent with the DSM-5, and the overall diagnosis was an anxiety disorder. The examiner opined that that it was less likely than not that anxiety disorder was related to his reported in-service stressor or event. However, the examiner’s negative opinion was predicated on events that occurred while the Veteran was in-service, and incorrectly noted that the Veteran only sought treatment once in 1992 after leaving service, but failed to discuss the Veteran’s Vet Center treatment in 2009. As such, the examiner’s opinion was inadequate. In statements dated in April 2018, the Veteran’s two brothers reported that since leaving the Army the Veteran became aggressive and quick to anger, and after leaving the Coast Guard, the Veteran's symptoms had worsened. In a June 2018 private opinion, Dr. H.H.-G. diagnosed the Veteran with bipolar II disorder and unspecified anxiety disorder. Dr. H.H.-G. opined that the Veteran's psychiatric disabilities more likely than not began in military service, continued uninterrupted to the present, and were aggravated by his service-connected right leg shin splint and right ankle sprain. The examiner noted that the Veteran’s 1986 service treatment records showed treatment for sleep deprivation, anxiety, absence like episodes, and panic attacks, and the Veteran had stress, mood, and performance issues from 1991 to 1992. She explained that his symptoms were characteristic of a bipolar pattern. She further explained that the Veteran’s condition was aggravated by his child’s hearing disability, being away from his family due to service, and witnessing the drowning of a girl the same age as his daughter while in the Coast Guard. The Board finds Dr. H.H.-G.’s opinion, when considered alongside the April 2018 lay opinions of the Veteran’s brothers, persuasive. Thus, the Veteran is entitled to service connection for his acquired psychiatric disorder, specifically bipolar II disorder and unspecified anxiety disorder. 3. Headaches In a July 2018 private treatment record, Dr. H.S. gave the Veteran a diagnosis of migraine headaches and opined that it is at least as likely as not that the Veteran’s headaches were the result of, and were aggravated beyond their natural progress by, his bipolar disorder and anxiety disorder, which are service connected as of this decision. The examiner cited medical literature in support of the opinion. In statements dated in April 2018, the Veteran's mother and brother reported that the Veteran did not have headaches prior to entering service, but began having headaches in service, which had continued to the present day. The Board finds Dr. H.S.’s opinion, when considered alongside the April 2018 lay opinions of the Veteran’s mother and brother, persuasive. Thus, the Veteran is entitled to service connection headaches. 4. Left and Right Shoulder Disabilities The Veteran asserts that he is entitled to service connection for left and right shoulder disabilities. The question for the Board is whether the Veteran has a current disability that began during service or is at least as likely as not related to an in-service injury, event, or disease. The Board concludes that, while the Veteran has noted diagnoses of frozen shoulder in both his left and right shoulder, the preponderance of the evidence is against finding that it began during active service, or is otherwise related to an in-service injury, event, or disease. 38 U.S.C. §§ 1110, 1131, 5107(b); Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009); 38 C.F.R. § 3.303(a), (d). The Veteran's VA treatment records include reports of pain in both of his shoulders, a history of bilateral “frozen shoulder,” and an indication that he had arthritis pain in his right shoulder. See, e.g., VA treatment records dated in April 2015, August 2016, and July 2017. However, the Veteran's service treatment records are silent for any complaints, treatment or diagnosis related to his shoulders. The Board acknowledges the Veteran’s opinion that his shoulder disabilities are related to his active duty service; however, he has not been shown to be competent to provide a nexus opinion in this case. Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007). Upon careful review and weighing of the evidence, with reasoning as detailed above, the Board finds that the preponderance of the evidence is against the claim for service connection for left and right shoulder disabilities, and the benefit of the doubt doctrine is not for application. See generally Gilbert v. Derwinski, 1 Vet. App. 49 (1990); Ortiz v. Principi, 274 F.3d 1361 (Fed Cir. 2001). The appeal must therefore be denied. 5. Left and Right Hip Disabilities The Veteran contends that he is entitled to service connection for bilateral hip disabilities. The question for the Board is whether the Veteran has a current disability that began during service or is at least as likely as not related to an in-service injury, event, or disease. The Board concludes that the Veteran does not have a current left or right hip disability and has not had one at any time during the pendency of the claim or recent to the filing of the claim. 38 U.S.C. §§ 1110, 1131, 5107(b); Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009); Romanowsky v. Shinseki, 26 Vet. App. 289, 294 (2013); McClain v. Nicholson, 21 Vet. App. 319, 321 (2007); 38 C.F.R. § 3.303(a), (d). The weight of the medical evidence fails to show that the Veteran has a currently diagnosed left or right hip disability, or that any such diagnosis has existed at any time during the appeal period. Additionally, post-service treatment records are silent for complaints of any functional loss due to pain related to his right or left hip. Because the medical evidence associated with the Veteran’s claims file does not establish that the Veteran has complained of pain leading to functional loss or has been given a diagnosis of any condition related to his right or left hips at any time during the pendency of the claim. Therefore, the Board finds that service connection must be denied. See Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992); see also Degmetich v. Brown, 104 F.3d 1328 (1997). 6. Bilateral Hearing Loss The Veteran asserts that he is entitled to service connection for bilateral hearing loss. The question for the Board is whether the Veteran has a current disability that began during service or is at least as likely as not related to an in-service injury, event, or disease. The Board concludes that the Veteran does not have bilateral hearing loss for VA purposes and has not had bilateral hearing loss for VA purposes at any time during the pendency of the claim or recent to the filing of the claim. 38 U.S.C. §§ 1110, 1131, 5107(b); Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009); Romanowsky v. Shinseki, 26 Vet. App. 289, 294 (2013); McClain v. Nicholson, 21 Vet. App. 319, 321 (2007); 38 C.F.R. § 3.303(a), (d). The Veteran’s in-service audiograms did not indicate any in-service hearing loss. See Service treatment records dated in May 1987; October 1990; November 1992. The Veteran's November 1992 discharge examination specifically noted that the Veteran had not had a significant threshold shift in his hearing since his entrance examination. Since leaving service, although he reported being hard of hearing in June and July 2017 VA treatment records, he has not been given a diagnosis of hearing loss. While the Veteran believes he has a current diagnosis of bilateral hearing loss, he has not been shown to be competent to render a medical diagnosis. Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). Because the medical evidence associated with the Veteran’s claims file does not establish that the Veteran a diagnosis of bilateral hearing loss, the Board finds that service connection must be denied. See Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992); see also Degmetich v. Brown, 104 F.3d 1328 (1997). 7. Tinnitus The Veteran contends that VA compensation is warranted for tinnitus. The question for the Board is whether the Veteran has a current tinnitus disability that began during service or within the initial post separation year, or is at least as likely as not related to an in-service injury, event, or disease. The Board concludes that, while the Veteran has a current tinnitus disability, the preponderance of the evidence weighs against finding that tinnitus began during service or within the initial post separation year, or is otherwise related to an in-service injury, event, or disease. 38 U.S.C. §§ 1110, 1131, 5107(b); Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009); 38 C.F.R. §§ 3.303(a), (d), 3.307, 3.309. The Veteran is competent to describe symptoms observable to his senses, such as ringing in his ears, and as such, he is competent to diagnose tinnitus. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); see also Charles v. Principi, 16 Vet. App. 370, 374 (2003). However, there is no documented complaint of tinnitus until the Veteran’s January 2017 claim, when he asserted entitlement to tinnitus, decades after leaving service. The Veteran has not directly asserted that his tinnitus is related to in-service noise exposure. And even if in-service noise exposure were established, the Veteran has not been shown to be competent to opine that his symptoms are related to an in-service injury, event, or disease. The cause of delayed onset tinnitus is not susceptible to lay observation and is a medically complex matter that requires medical knowledge and expertise of the audiological mechanisms of the ear. Jandreau, 492 F.3d 1372, 1376-77. Therefore, the Veteran’s opinion has no probative value. Upon careful review and weighing of the evidence, with reasoning as detailed above, the Board finds that the preponderance of the evidence is against the claim for service connection for tinnitus, and the benefit of the doubt doctrine is not for application. See generally Gilbert v. Derwinski, 1 Vet. App. 49 (1990); Ortiz v. Principi, 274 F.3d 1361 (Fed Cir. 2001). The appeal must therefore be denied. 8. Diabetes Mellitus The Veteran contends that he is entitled to service connection for diabetes mellitus, though he has made no specific assertions as to how he believes the disability is related to his active duty service. The Board concludes that, while the Veteran has a current diagnosis of diabetes mellitus, type II, which is a chronic disease under 38 C.F.R. § 3.309(a), it did not manifest to a compensable degree in service or within the one-year presumptive period, and continuity of symptomatology is not established. 38 U.S.C. §§ 1101(3), 1112, 1113, 1137; Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013), 708 F.3d 1331; 38 C.F.R. §§ 3.303(b), 3.307, 3.309(a). The Veteran’s service treatment records do not contain any complaints or notations of high blood sugar, or diagnosis of diabetes mellitus. The first evidence of record indicating a diagnosis diabetes is a May 2014 VA treatment record, more than one year after the Veteran left active duty service. Accordingly, the Board finds the preponderance of competent and credible evidence weighs against finding that the Veteran’s diabetes mellitus was incurred in service, or manifested within one year following his separation from service. Therefore, service connection cannot be established on a presumptive basis, or a direct basis as incurred during service. See 38 C.F.R. §§ 3.303(a); 3.307. Next, the Board finds the preponderance of the evidence is against finding that a medical nexus exists between the Veteran’s current diabetes mellitus and an in-service injury, event or disease to establish service connection on a direct basis. 38 U.S.C. § 1110; Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009); 38 C.F.R. § 3.303(d). The Veteran’s VA treatment records do not indicate a relationship between the Veteran’s military service and his current diabetes mellitus. The Board acknowledges the Veteran’s opinion that his diabetes is related to his active duty service; however, he has not been shown to be competent to provide a nexus opinion. Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007). Upon careful review and weighing of the evidence, with reasoning as detailed above, the Board finds that the preponderance of the evidence is against the claim for service connection of his diabetes mellitus, and the benefit of the doubt doctrine is not for application. See generally Gilbert v. Derwinski, 1 Vet. App. 49 (1990); Ortiz v. Principi, 274 F.3d 1361 (Fed Cir. 2001). The appeal must therefore be denied. 9. Neuropathy The Veteran contends that he is entitled to service connection for nephropathy. The question for the Board is whether the Veteran has a current disability that began during service or is at least as likely as not related to an in-service injury, event; or is proximately due to or the result of, or was aggravated beyond its natural progress by a service-connected disability. A July 2017 VA treatment record included a diagnosis diabetic neuropathy. However, the Veteran is not service-connected for diabetes mellitus, type II. Thus, the Board concludes that, while the Veteran has a current diagnosis of nephropathy, the preponderance of the evidence is against finding that the Veteran’s nephropathy is proximately due to or the result of, or aggravated beyond its natural progression by any service-connected disability. 38 U.S.C. §§ 1110, 1131; Allen v. Brown, 7 Vet. App. 439 (1995) (en banc); 38 C.F.R. § 3.310(a). Service connection may also be granted on a direct basis; however, the Veteran has not provided any evidence in support of direct service connection. Nor does the record otherwise demonstrate that his nephropathy is directly related to service. The Veteran’s service treatment records are silent for complaints, treatment or diagnosis of neuropathy. The Veteran was not given a diagnosis of nephropathy for many years after he left active duty service. And the record contains no medical evidence establishing a medical nexus between the Veteran’s nephropathy and his active duty service. Thus, the preponderance of the evidence is also against finding that the Veteran’s nephropathy is related to an in-service injury, event, or disease. 38 U.S.C. §§ 1110, 1131; Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009); 38 C.F.R. § 3.303(a), (d). Therefore, as the preponderance of the evidence does not show that nephropathy was incurred in service, or that a medical nexus exists between the Veteran’s service and his presently diagnosed nephropathy, service connection cannot be granted on a direct basis. In sum, upon careful review and weighing of the evidence, with reasoning as detailed above, the Board finds that the preponderance of the evidence is against the claim for service connection for nephropathy and the benefit of the doubt doctrine is not for application. See generally Gilbert v. Derwinski, 1 Vet. App. 49 (1990); Ortiz v. Principi, 274 F.3d 1361 (Fed Cir. 2001). The appeal must therefore be denied. Increased Rating A disability rating is determined by the application of VA’s Schedule for Rating Disabilities (Rating Schedule), 38 C.F.R. Part 4. The percentage ratings contained in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and their residual conditions in civil occupations. Separate diagnostic codes identify the various disabilities. 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. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. The Board will consider whether separate ratings may be assigned for separate periods of time based on facts found, a practice known as “staged ratings,” whether it is an initial rating case or not. Fenderson v. West, 12 Vet. App. 119, 126-27 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). 10. Right Leg Shin Splints The Veteran’s right leg shin splints are currently rated as 10 percent disabling under DC 5262. For the reasons set forth below, the Board finds that the Veteran is not entitled to an increased disability rating for his right leg shin splints. Under Diagnostic Code 5262, pertaining to impairment of the tibia and fibula, a 10 percent disability rating is assigned for malunion with slight knee or ankle disability, and a 20 percent disability rating is warranted for malunion with moderate knee or ankle disability. A 40 percent disability rating is appropriate where there is nonunion of the tibia and fibula with loose motion requiring a brace. 38 C.F.R. § 4.71a, Diagnostic Code 5262. The terms “moderate” and “marked” are not defined in the rating schedule; rather than applying a mechanical formula, VA must evaluate all the evidence to the end that its decisions are “equitable and just.” 38 C.F.R. § 4.6. In determining the degree of limitation of motion, the provisions of 38 C.F.R. §§ 4.10, 4.40 and 4.45 are for consideration. See DeLuca v. Brown, 8 Vet. App. 202 (1995). The Veteran’s right ankle disability is already separately rated under Diagnostic Code 5271. As such, his ankle disability has not been considered as a part of his claim for an increased rating for his right leg shin disability because such an evaluation would violate the prohibition against pyramiding. See 38 C.F.R. § 4.14; Esteban v. Brown, 6 Vet. App. at 261-62. During a May 2017 VA examination, the Veteran reported episodic pain in his right shin. He stated that his job kept him on his feet for several hours at a time, and denied any specific limitations at work due to his shin condition. He further reported he experienced flare-ups that resulted in additional pain, which required rest, but did not assert that the pain resulted in any additional functional loss. The Veteran's right knee had normal range of motion and no pain was noted during the physical examination. Knee stability testing was normal and no meniscal conditions were noted. The Veteran did not have pain on weightbearing and had no pain on passive range of motion testing. The examiner opined that the Veteran's shin splints were asymptomatic. Therefore, the Board finds that the Veteran is not entitled to a higher disability rating as the Veteran’s disability has been no more than slight during the period on appeal. There is no indication that the Veteran's knee has any functional loss, and the Veteran himself reported that his pain was only episodic and had no impact on his ability to work. As such, the Veteran's disability does not more nearly approximate the criteria for the 20 percent evaluation for the period on appeal. Accordingly, the Board finds than an evaluation in excess of 10 percent is not warranted. 11. Right Ankle Disability The Veteran asserts that he is entitled to a rating in excess of 10 percent for his right ankle disability, which is rated under Diagnostic Code 5271. Diagnostic Code 5271 provides a 10 percent evaluation for “moderate” limitation of motion of the ankle and a 20 percent evaluation for “marked” limitation of motion of the ankle. Normal ranges of motion of the ankle are as follows: Dorsiflexion from 0 to 20 degrees and plantar flexion from 0 to 45 degrees. 38 C.F.R. § 4.71a, Plate II. The terms “moderate” and “marked” are not defined in the rating schedule; rather than applying a mechanical formula, VA must evaluate all the evidence to the end that its decisions are “equitable and just.” 38 C.F.R. § 4.6. In determining the degree of limitation of motion, the provisions of 38 C.F.R. §§ 4.10, 4.40 and 4.45 are for consideration. See DeLuca v. Brown, 8 Vet. App. 202 (1995). In a November 2016 VA treatment record, the Veteran was noted to have right ankle pain and instability, and he was issued a right ankle brace. During a February 2017 VA examination, the Veteran reported chronic daily right ankle pain, which flared with prolonged sitting, standing, or walking. He reported that he wore a brace and used a cane. He stated that he could sit, stand, and walk for intervals of about an hour and his disability was not a problem for him at work. He reported flare-ups that resulted in pain that required resting or stretching, but did not describe additional functional loss or lost range of motion. On examination, the Veteran’s right ankle had full range of motion, but he had pain on weight bearing that resulted in functional loss. Stability testing showed laxity and talar tilt positive compared to the Veteran's left ankle. There was no evidence of arthritis in the Veteran's right ankle. The Veteran has primarily described the functional impact as chronic daily pain and instability requiring a brace. However, the Board finds that neither the lay nor the medical evidence more nearly reflects “marked” limitation of ankle motion at any time during this appeal. The Veteran had full range of motion during the February 2017 VA examination. Additionally, there is no basis to award an evaluation in excess of 10 percent as there is no contention or medical evidence showing ankylosis, malunion of the os calcis or astragalus, or astragalectomy. See 38 C.F.R. § 4.71a, Diagnostic Codes 5270-5274. To warrant a higher evaluation, there must be the functional equivalent of “marked” limitation of motion. The Board is sympathetic to the Veteran’s report of ankle pain; however, this symptom is not uncompensated. Further, although the Veteran’s right ankle is unstable, the Veteran himself has reported that his disability is not a problem for him at work, and there is no indication that instability has led to any additional limitation of ankle motion. As such, the currently assigned 10 percent evaluation contemplates the Veteran’s pain, increased pain during flare-ups, and instability consistent with 38 C.F.R. § 4.59 and DeLuca. 12. Left Ankle Disability The Veteran asserts that he is entitled to a compensable rating for his left ankle disability, which is rated under Diagnostic Code 5271-5010. Diagnostic Code 5271 provides a 10 percent evaluation for “moderate” limitation of motion of the ankle and a 20 percent evaluation for “marked” limitation of motion of the ankle. Normal ranges of motion of the ankle are as follows: Dorsiflexion from 0 to 20 degrees and plantar flexion from 0 to 45 degrees. 38 C.F.R. § 4.71a, Plate II. The terms “moderate” and “marked” are not defined in the rating schedule; rather than applying a mechanical formula, VA must evaluate all the evidence to the end that its decisions are “equitable and just.” 38 C.F.R. § 4.6. In determining the degree of limitation of motion, the provisions of 38 C.F.R. §§ 4.10, 4.40 and 4.45 are for consideration. See DeLuca v. Brown, 8 Vet. App. 202 (1995). Hyphenated diagnostic codes are used when a rating under one diagnostic code requires use of an additional diagnostic code to identify the basis for the evaluation assigned; the additional code is shown after the hyphen. 38 C.F.R. § 4.29. Under Diagnostic Code 5010 arthritis due to trauma is rated according to Diagnostic Code 5003. Diagnostic Code 5003 provides that degenerative arthritis established by x-ray findings will be rated on the basis of limitation of motion under the appropriate diagnostic codes for the specific joint or joints involved. 38 C.F.R. § 4.71a, Diagnostic Code 5003. When, however, the limitation of motion of the specific joint or joints involved is non-compensable under the appropriate diagnostic codes, a rating of 10 percent is for application for each such major joint or group of minor joints affected by limitation of motion, to be combined, not added under Diagnostic Code 5003. Id. Limitation of motion must be objectively confirmed by findings such as swelling, muscle spasm, or satisfactory evidence of painful motion. Id. In the absence of limitation of motion, a 10 percent rating is assigned where there is x-ray evidence of involvement of two or more major joints, or two or more minor joint groups; and a 20 percent evaluation is assigned where there is x-ray evidence of involvement of two or more major joints or two or more minor joint groups and occasional incapacitating exacerbations. 38 C.F.R. § 4.71a, Diagnostic Code 5003. During a February 2017 VA examination, the Veteran reported infrequent episodes of mild lateral left ankle pain. He stated that he could sit, stand, and walk for intervals of about an hour and his disability was not a problem for him at work. He reported no additional functional loss due to flare-ups or after repetitive use over time. On examination, the Veteran’s left ankle had full range of motion and he had no pain. Stability testing was normal. The examiner confirmed that there was x-ray evidence of arthritis in the Veteran's left ankle. The Veteran has primarily described the functional impact as infrequent episodes of mild lateral left ankle pain. However, the Board finds that there is no indication of any limitation of ankle motion at any time during this appeal. The Veteran had full range of motion during the February 2017 VA examination and reported no additional lost range of motion during a flare-up or after repetitive use. As there is no indication that the Veteran’s left ankle disability has resulted in any lost range of motion, including any subjective report by the Veteran, there is no basis to award a compensable evaluation for “moderate” limitation of motion. Nor is there a contention or medical evidence showing ankylosis, “marked” limitation of motion, malunion of the os calcis or astragalus, or astragalectomy. See 38 C.F.R. § 4.71a, Diagnostic Codes 5270-5274. To warrant a higher evaluation, there must be the functional equivalent of “marked” limitation of motion. The Board is sympathetic to the Veteran’s report of ankle pain; however, this symptom has not resulted in any functional loss. infrequent episodes of mild lateral left ankle pain 38 C.F.R. § 4.59 and DeLuca. Additionally, as there is no indication of limitation to flexion or extension in the evidence of record for the applicable period on appeal, although the Veteran has a confirmed diagnosis of left ankle arthritis, he is not entitled to a compensable rating pursuant to DC 5010. REASONS FOR REMAND 1. Back Condition The Veteran provided a July 2018 private etiological opinion in which Dr. H.S. provided an opinion based on a review of the Veteran's records and an interview with the Veteran. It was the examiners opinion that the Veteran had been given a diagnosis of lumbar strain with radiculopathy in March 1992 that had continued uninterrupted until the present. However, the examiner’s opinion is inadequate. First, Dr. H.S. noted, but failed to adequately address, a November 1992 in service x-ray, which showed an essentially negative lumbar spine. Further, since the Veteran left active duty service, there is only a single report of back pain in a March 2017 VA treatment record, at which time the Veteran made no report that the pain was productive of any functional loss. Although it was Dr. H.S.’s opinion that the Veteran's back disability had continued uninterrupted since March 1992, the examiner failed to discuss the lack of treatment for a back disability for the 30-year period from 1992 until 2017. Moreover, the examiner cited no recent medical treatment record demonstrating a current back disability, and did not physically examine the Veteran to determine if a current back disability existed. Therefore, because the examiner did not provide adequate supporting data or a reasoned medical explanation connecting the evidence to his conclusion, Dr. H.S.’s opinion is inadequate. Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). As the Veteran has not been afforded a VA examination for his claimed back disability and there is insufficient competent medical evidence upon which to decide claim, the claim must be remanded for a VA examination. See 38 U.S.C. § 5103A (d)(2); 38 C.F.R. § 3.159 (c)(4)(i); McLendon v. Nicholson, 20 Vet. App. 79 (2006). 2. Obstructive Sleep Apnea The Veteran provided a July 2018 private etiological opinion in which Dr. H.S. noted that the Veteran had been given a diagnosis of obstructive sleep apnea in 2000. Dr. H.S. opined that the Veteran's bipolar disorder and anxiety disorder aided in the development of and permanently aggravated the Veteran's obstructive sleep apnea. Dr. H.S. cited medical literature in support of the opinion. However, while the cited medical literature found that there was a strong co-morbidity between obstructive sleep apnea and psychiatric disabilities, the study concluded that a diagnosis of obstructive sleep apnea was associated with a higher prevalence of psychiatric disabilities, not the other way around, as suggested by Dr. H.S. As such, the Board finds Dr. H. S.’s opinion inadequate. As the Veteran has not been afforded a VA examination for his claimed obstructive sleep apnea and there is insufficient competent medical evidence upon which to decide claim, the claim must be remanded for a VA examination. See 38 U.S.C. § 5103A (d)(2); 38 C.F.R. § 3.159 (c)(4)(i); McLendon v. Nicholson, 20 Vet. App. 79 (2006). 3. Heart Disability The Veteran has not been afforded a VA examination for his claimed heart disability. July 2017 VA treatment records show that the Veteran has been given a diagnosis of coronary artery disease. The Veteran’s service treatment records indicate he complained of chest pain and heart palpitations. See Service treatment records dated in February 1986, May 1987, and October 1990. As such, the Veteran’s appeal must be remanded for a VA examination. See 38 U.S.C. § 5103A (d)(2); 38 C.F.R. § 3.159 (c)(4)(i); McLendon v. Nicholson, 20 Vet. App. 79 (2006). 4. Entitlement to SMC based on Aid and Attendance Finally, because a decision on the remanded issues, as well as the now service-connected but unrated psychiatric disability, could significantly impact a decision on the Veteran's claim for SMC, the issues are inextricably intertwined, a remand of the claims is required. The matters are REMANDED for the following action: 1. Contact the Veteran, and, with his assistance, identify any outstanding records of pertinent medical treatment from private or VA health care providers and associate them with the claims file. 2. Schedule the Veteran for an examination by an appropriate clinician to determine the nature and etiology of any back disability or functional loss associated with back pain. The examiner must opine whether it is at least as likely not (50 percent or greater probability) that any diagnosed back disability or functional loss associated with back pain is related to an in-service injury, event, or disease, including the Veteran’s documented in-service reports of back pain. The examiner must specifically address the July 2018 opinion of Dr. H.S. 3. Schedule the Veteran for an examination by an appropriate clinician to determine the nature and etiology of the Veteran's obstructive sleep apnea. The examiner must opine whether it is at least as likely as not (i.e. 50 percent or greater probability) that any identified disability is related to an in-service injury, event, or disease. The examiner must specifically address the July 2018 opinion of Dr. H.S. 4. Schedule the Veteran for an examination by an appropriate clinician to determine the nature and etiology of any heart disability. The examiner must opine whether it is at least as likely as not (i.e. 50 percent or greater probability) that any identified disability is related to an in-service injury, event, or disease, including the Veteran’s reported heart palpitations while in service. 5. Assign a rating for the Veteran's service-connected acquired psychiatric disability. 6. Then readjudicate the claims. If any benefit sought is not granted, the Veteran and his representative should be furnished an SSOC and given the requisite opportunity to respond before the case is returned to the Board. DONNIE R. HACHEY Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD E. Mine, Associate Counsel