Citation Nr: 18159294 Decision Date: 12/18/18 Archive Date: 12/18/18 DOCKET NO. 16-05 019 DATE: December 18, 2018 ORDER New and material evidence has not been submitted to reopen the claim of entitlement to service connection for a left hand disability. New and material evidence has not been submitted to reopen the claim of entitlement to service connection for a right hand disability. Entitlement to an initial rating in excess of 70 percent for depressive disorder is denied. Entitlement to an effective date earlier than March 27, 2015 for the grant of service connection for depressive disorder is denied. Entitlement to a rating in excess of 10 percent for tinnitus is denied. Entitlement to service connection for a right leg disability is denied. Entitlement to service connection for amyotrophic lateral sclerosis is denied. Entitlement to service connection for muscle pain is dismissed. Entitlement to service connection for sleep apnea is denied. Entitlement to service connection for a right hip disability is denied. Entitlement to service connection for a left hip disability is denied. REMANDED Entitlement to a total disability rating based on individual unemployability (TDIU) is remanded. Entitlement to a rating in excess of 20 percent for scoliosis of the lumbosacral spine with degenerative disc disease at L5-S1 (hereinafter “back disability”) is remanded. Entitlement to an effective date earlier than May 13, 2015 for the grant of 20 percent for a back disability is remanded. Entitlement to a compensable rating for left lower extremity radiculopathy is remanded. Entitlement to an effective date earlier than August 1, 2015 for a noncompensable rating for radiculopathy of the left lower extremity is remanded. FINDINGS OF FACT 1. In an October 2010 rating decision, the RO denied service connection for right and left hand disabilities. The Veteran did not timely appeal this decision, nor did he submit new and material evidence within one year of the decision. 2. Additional evidence has not been received since the October 2010 rating decision that relates to an unestablished fact that is necessary to substantiate the claim for service connection for right and left hand disabilities. 3. The Veteran’s psychiatric condition has been productive of occupational and social impairment, with deficiencies in most areas, such as work, family relations, judgment, thinking, and mood; total occupational and social impairment due to a psychiatric condition has not been shown. 4. The Veteran filed a claim for entitlement to service connection for major depressive disorder in March 2015. There is no evidence of any communication in the claims file prior to the March 2015 claim indicating intent to file a claim for this disability. 5. The Veteran’s service-connected tinnitus is assigned a 10 percent rating, which is the maximum rating authorized under Diagnostic Code 6260. 6. The Veteran does not have a diagnosed right leg disability. 7. The Veteran does not have ALS. 8. The Veteran has not made a specific allegation of fact or law concerning his claim for service connection for muscle pain. 9. The Veteran does not have sleep apnea. 10. The Veteran’s right hip disability is not related to service or to any service-connected disabilities. 11. The Veteran’s left hip disability is not related to service or to any service-connected disabilities. CONCLUSIONS OF LAW 1. The October 2010 rating decision that denied service connection for right and left hand disabilities is final. 38 U.S.C. § 7105; 38 C.F.R. § 20.1103. 2. New and material evidence to reopen the claim for service connection for right and left hand disabilities has not been received. 38 U.S.C. § 5108; 38 C.F.R. § 3.156(a). 3. The criteria for a rating in excess of 70 percent for major depressive disorder have not been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 3.159, 3.321, 4.1, 4.3, 4.10, 4.130, Diagnostic Code 9411. 4. The criteria for an effective date earlier than March 27, 2015 for the grant of service connection for sinusitis have not been met. 38 U.S.C. §§ 1155, 5107, 5110; 38 C.F.R. §§ 3.155, 3.157, 3.400. 5. The criteria for an initial rating in excess of 10 percent for tinnitus have not been met. 38 U.S.C. § 1155 (2012); 38 C.F.R. § 4.87, Diagnostic Code 6260 (2017). 6. The criteria for service connection for a right leg disability are not met. 38 U.S.C. §§ 1110, 5107(b); 38 C.F.R. §§ 3.102, 3.303(a). 7. The criteria for service connection for ALS are not met. 38 U.S.C. §§ 1110, 5107(b); 38 C.F.R. §§ 3.102, 3.303(a). 8. As the Veteran has not made a specific allegation concerning his claim for service connection for muscle pain, there is no further error of fact or law at issue. 38 U.S.C. § 7105(d)(5). 9. The criteria for service connection for ALS are not met. 38 U.S.C. §§ 1110, 5107(b); 38 C.F.R. §§ 3.102, 3.303(a). 10. The criteria for service connection for a right hip disability are not met. 38 U.S.C. §§ 1110, 5107(b); 38 C.F.R. §§ 3.102, 3.303(a). 11. The criteria for service connection for a left hip disability are not met. 38 U.S.C. §§ 1110, 5107(b); 38 C.F.R. §§ 3.102, 3.303(a). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from May 1980 to August 1981. These appeals arose to the Board of Veterans’ Appeals (Board) from a May 2015 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Paul, Minnesota. Pursuant to the Veterans Claims Assistance Act (VCAA), VA has duties to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C. §§ 5102, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 (2017). Neither the Veteran nor his representative has raised any issues with the duty to notify or duty to assist. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that “the Board’s obligation to read filings in a liberal manner does not require the Board... to search the record and address procedural arguments when the veteran fails to raise them before the Board.”); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to a duty to assist argument). 1. Whether new and material evidence has been submitted to reopen the claim of entitlement to service connection for left and right hand disabilities The Veteran seeks entitlement to service connection for right and left hand disabilities. Implicit in these claims is the contention that new and material evidence has been received which is sufficient to reopen a previously disallowed claim. Generally, a claim that has been denied in a final unappealed rating decision may not thereafter be reopened and allowed. 38 U.S.C. § 7105(c). An exception to this rule is 38 U.S.C. § 5108, which provides that if new and material evidence is presented or secured with respect to a claim which has been disallowed, VA shall reopen the claim and review the former disposition of the claim. New evidence means existing evidence not previously submitted to agency decisionmakers. Material evidence means existing evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. New and material evidence can be neither cumulative nor redundant of the evidence of record at the time of the last prior final denial of the claim sought to be reopened, and must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a). An adjudicator must follow a two-step process in evaluating a previously denied claim. First, the adjudicator must determine whether the evidence added to the record since the last final denial is new and material. If new and material evidence is presented or secured with respect to a claim that has been finally denied, the claim will be reopened and decided upon the merits. Once it has been determined that a claimant has produced new and material evidence, the adjudicator must evaluate the merits of the claim in light of all the evidence, both new and old, after ensuring that the VA’s statutory duty to assist the appellant in the development of his claim has been fulfilled. See 38 U.S.C. § 5108; Elkins v. West, 12 Vet. App. 209 (1999); Vargas-Gonzalez v. West, 12 Vet. App. 321, 328 (1999). The threshold for determining whether new and material evidence raises a reasonable possibility of substantiating a claim is “low.” See Shade v. Shinseki, 24 Vet. App. 110, 117 (2010). Furthermore, in determining whether this low threshold is met, VA should not limit its consideration to whether the newly submitted evidence relates specifically to the reason why the claim was last denied, but instead should ask whether the evidence could reasonably substantiate the claim were the claim to be reopened, either by triggering the VA Secretary’s duty to assist or through consideration of an alternative theory of entitlement. Id. at 118. Evidence is presumed to be credible for the purpose of determining whether the case should be reopened; once the case is reopened, the presumption as to the credibility no longer applies. Justus v. Principi, 3 Vet. App. 510, 513 (1992). The evidence must be both new and material; if the evidence is new, but not material, the inquiry ends and the claim cannot be reopened. Smith v. West, 12 Vet. App. 312 (1999). The Veteran previously filed a claim for service connection for right and left hand disabilities, and following an August 2010 C&P examination, the claim was denied in an October 2010 rating decision, as the evidence did not show that the Veteran suffered any injury to his hands in service, nor that his hand disabilities were related to any service-connected disabilities, specifically the Veteran’s service-connected scoliosis. The Veteran was notified but did not appeal the decision. Accordingly, the rating decision is final. See 38 U.S.C. § 7105(c); 38 C.F.R. § 20.1103. Subsequently, the Veteran filed the instant application to reopen his claim. For the following reasons, the Board finds that new and material evidence has not been received to reopen the claim for a bilateral hand disability. At the time of the October 2010 rating decision for a bilateral hand disabilities, relevant evidence of record included the Veteran’s service treatment records, contemporary medical records, statements from the Veteran, and an August 2010 C&P examination. Notably, his service treatment records showed no evidence of complaints, treatment, or diagnosis for his claimed condition of a bilateral hand disability. After reviewing the above evidence, RO adjudicators determined that the evidence of record did not show that the Veteran’s claimed disability was incurred in or related to service or related to the Veteran’s service-connected scoliosis disability. As a result, service connection was denied. Relevant evidence received since the October 2010 rating decision includes VA treatment notes documenting treatment for a range of disabilities and additional Veteran statements. However, there is no new, credible evidence demonstrating that the Veteran’s numbness in his hands is in any way related to his active service, or to any service-connected disability. The only new evidence that tends to support reopening of the claim for a right and left hand disability are the Veteran’s statements. However, as noted above, the RO previously denied the Veteran’s claims because there was no evidence that the Veteran suffered from any injury to his hands in service, nor that there was any evidence of chronicity since his time in service, and that there was no evidence linking his disability to any service-connected disability. See Anglin v. West, 203 F.3d 1343, 1347 (2000) (evidence that is merely cumulative of other evidence in the record cannot be new and material even if that evidence had not been previously presented to the Board). Put another way, the RO had already weighed—and rejected—the Veteran’s lay assertions. See 38 U.S.C. §§ 1110, 1130; 38 C.F.R. § 3.303 (establishing service connection generally requires medical or, in certain circumstances, lay evidence of (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a link between the claimed in-service disease or injury and the present disability). In sum, the Veteran has not submitted any additional lay or medical evidence demonstrating that he suffers from a hand disability that is related to service or to any service-connected disabilities. Accordingly, as the Veteran has submitted no new and material evidence relating to a previously unestablished fact, the application to reopen this claim must be denied. 2. Entitlement to a rating in excess of 70 percent for major depressive disorder The Veteran contends that his psychiatric condition warrants a total, 100 percent rating. For the forthcoming reasons, the Board finds an increase not warranted. Disability ratings are determined by evaluating the extent to which a Veteran’s service-connected disability adversely affects his ability to function under the ordinary conditions of daily life, including employment, by comparing his symptomatology with the criteria set forth in the Schedule for Rating Disabilities (Rating Schedule). 38 U.S.C. § 1155; 38 C.F.R. §§ 4.1, 4.2, 4.10. If two evaluations are potentially applicable, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that evaluation; otherwise, the lower evaluation will be assigned. 38 C.F.R. § 4.7. 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). The Veteran is in receipt of a 70 percent rating for a psychiatric condition from May 2015, pursuant to 38 C.F.R. § 4.130, Diagnostic Code 9411. All psychiatric disabilities are evaluated under a general rating formula for mental disorders. Under the general rating formula, a 70 percent evaluation is warranted for occupational and social impairment, with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood, due to such symptoms as: suicidal ideation; obsessional rituals which interfere with routine activities; speech intermittently illogical, obscure, or irrelevant; near-continuous panic or depression affecting the ability to function independently, appropriately, and effectively; impaired impulse control (such as unprovoked irritability with periods of violence); spatial disorientation; neglect of personal appearance and hygiene; difficulty in adapting to stressful situations (including work or a worklike setting); and inability to establish and maintain effective relationships. Id. Finally, a total schedular rating of 100 percent is warranted when the disorder results in total occupational and social impairment, due to such symptoms as: gross impairment in thought processes or communication; persistent delusions or hallucinations; grossly inappropriate behavior; persistent danger of hurting self or others; intermittent inability to perform activities of daily living (including maintenance of mental and personal hygiene); disorientation to time or place; memory loss for names of close relatives, own occupation, or own name. Id. The symptoms listed in the rating schedule are not intended to constitute an exhaustive list, but rather serve as examples of the type and degree of the symptoms, or their effects, that would justify a particular rating. See Mauerhan v. Principi, 16 Vet. App. 436 (2002). Nevertheless, all ratings in the general rating formula are associated with objectively observable symptomatology, and in Vazquez-Claudio v. Shinseki, 713 F.3d 112, 117 (Fed. Cir. 2013), the Federal Circuit stated that “a veteran may only qualify for a given disability rating under § 4.130 by demonstrating the particular symptoms associated with that percentage, or others of similar severity, frequency, and duration.” The Federal Circuit further noted that “§ 4.130 requires not only the presence of certain symptoms but also that those symptoms have caused occupational and social impairment in most of the referenced areas.” Id. Thus, “[a]lthough the veteran’s symptomatology is the primary consideration, the regulation also requires an ultimate factual conclusion as to the veteran’s level of impairment in ‘most areas.’” Id. at 118. As such, the Board will consider both the Veteran’s specific symptomatology as well as the occupational and social impairment associated with the Diagnostic Code to determine whether an increased evaluation is warranted. As with all claims for VA disability compensation, the Board must assess the credibility and weigh all the evidence, including lay and medical evidence, to determine its probative value, accounting for evidence which it finds to be persuasive or unpersuasive, and providing reasons for rejecting any evidence favorable to the claimant. Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997), cert denied, 523 U.S. 1046 (1998). After reviewing all the evidence, the Board finds that the overall social and occupational impairment caused by the Veteran’s condition most nearly approximates impairment warranting the currently assigned 70 percent rating In May 2015, the Veteran received a C&P examination in which the examiner determined the Veteran suffered from occupational and social impairment with occasional decreases in work efficiency and intermittent periods of inability to perform occupational tasks. Socially, the Veteran had been married five times and, at the time of the examination, lived with his father and several of his siblings. Occupationally, the Veteran was unable to maintain employment, as he could not keep up with the day-to-day pace of the job. Symptomatically, the Veteran suffered from a depressed mood, chronic sleep impairment, flattened affect, impaired abstract thinking, disturbances of motivation and mood, suicidal ideation, and neglect of personal appearance and hygiene. Mentally, the Veteran’s thinking was logical and linear and within normal limits. The Veteran’s memory and focus were intact, and his insight and judgment were adequate. The Veteran did not suffer from delusions or hallucinations. In August 2016, the Veteran received an additional examination. The examiner determined the Veteran suffered from occupational and social impairment with deficiencies in most areas. Socially, the Veteran reported no changes since his last examination. Symptomatically, the Veteran suffered from a depressed mood; anxiety; near-continuous panic or depression affecting the ability to function independently, appropriately and effectively; chronic sleep impairment; mild memory loss; flattened affect; impaired abstract thinking; disturbances of motivation and mood; difficulty in adapting to stressful circumstances. Mentally, the Veteran suffered from a low mood and motivation; constant depression; difficulty interacting with others, and poor sleep. He was fully oriented, logical, liner, and had no sign of a form thought disorder, hallucinations, delusions, loss of reality contact, or suicidal or homicidal ideations. The Veteran’s insight and judgment were adequate. His memory, focus, attention, and cognition were within the normal limits. In May 2017, the Veteran received an examination from a private practitioner. She determined the Veteran suffered from occupational and social impairment with deficiencies in most areas. Socially, the Veteran relied on his sister for emotional support. Occupationally, the Veteran did not work, but Veteran handled all of his own finances; completed the grocery shopping; cooked the food; and maintained the household and completed the household chores. Symptomatically, the Veteran suffered from depressed mood; anxiety; suspiciousness; near-continuous panic or depression; chronic sleep impairment; mild memory loss; impairment of short or long-term memory; flattened affect; disturbances of motivation and mood; difficulty maintaining and establishing effective work and social relationships; difficulty adapting to stressful circumstances; neglect of personal appearance and hygiene; intermittent ability to perform activities of daily living. Mentally, the Veteran believed his anti-depressant medication worked. The Veteran sought medical care from his doctor two to three times a year but did not receive any mental health treatment. The Veteran’s speech flow and attention were normal, and he did not suffer from hallucinations or delusions. The Veteran complained of increased trouble with short-term memory. In the aggregate, the Veteran’s C&P examinations and private assessments demonstrate that the Veteran continues to maintain social relationships with family and perform household chores. Thus, the Veteran does not demonstrate total social impairment, the necessary criterion for the higher 100 percent rating. As noted above, the Veteran continues to maintain relationships with his sister and maintain the household. Furthermore, the Veteran did not suffer from persistent delusions or hallucinations, and suicidal ideation, gross impairment in thought processes or communication; persistent delusions or hallucinations; grossly inappropriate behavior; persistent danger of hurting self or others; intermittent inability to perform activities of daily living (including maintenance of mental and personal hygiene); disorientation to time or place; memory loss for names of close relatives, own occupation, or own name. Accordingly, the Board finds that the Veteran’s psychiatric symptoms, considered in isolation from his other service-connected disabilities, do not demonstrate total impairment, as illustrated by the criteria for a 100 percent rating. In sum, the evidence demonstrates that the overall impairment caused by the Veteran’s major depressive disorder more nearly approximates occupational and social impairment with reduced reliability and productivity, for the entire appeal period. Total occupational and social impairment due solely to psychiatric symptomatology has not been established. 3. Entitlement to an effective date earlier than March 27, 2015 for the grant of service connection for major depressive disorder The Veteran seeks entitlement to an effective date earlier than March 27, 2015 for the grant of service connection for major depressive disorder. For the following reasons, the Board finds earlier effective dates are not warranted. The assignment of an effective date for an award of service connection is generally governed by 38 U.S.C. § 5110 and 38 C.F.R. § 3.400. Unless specifically provided otherwise, the effective date of an award based on an original claim, a claim reopened after final adjudication, or a claim for increased compensation shall be fixed in accordance with the facts found, but shall not be earlier than the date of receipt of application therefore. 38 U.S.C. § 5110(a); 38 C.F.R. § 3.400. Effective March 24, 2015, VA amended its regulations to require that all claims governed by VA’s adjudication regulations be filed on a standard form. Prior to March 24, 2015, VA recognized formal and informal claims. The amendments also, inter alia, eliminated the constructive receipt of VA reports of hospitalization or examination and other medical records as informal claims to reopen. See 79 Fed. Reg. 57,660 (Sept. 25, 2014), codified as amended at 38 C.F.R. §§ 3.151, 3.155 (2016). The amended regulations, however, apply only to claims filed on or after March 24, 2015. In this case, the Veteran filed an application for entitlement to service connection received on March 27, 2015. Service connection for major depressive disorder was subsequently granted, and an effective date of March 27, 2015, was assigned for major depressive disorder, based on the date VA received the claim. The Board has carefully reviewed the record to determine whether any communications by or on behalf of the Veteran were submitted prior to his current effective date that could be construed as a claim for service connection. See 38 C.F.R. § 3.1(p) (2014). The Board finds that there are no communications of record that could serve as the basis for an earlier effective date under 38 U.S.C. § 5110(a). The Board acknowledges that the record shows the Veteran suffered from major depressive disorder prior to the March 27, 2015 effective date. Notwithstanding, while clinical records were previously recognized, in some instances, as informal claims under 38 C.F.R. § 3.157(b) (2014), this applied only if the evidence pertained to examination or treatment of a disability for which service connection had been previously established, or when a claim specifying the benefit sought was received within one year from the date of such examination, treatment or hospital admission. The Veteran does not assert, and the evidence of record does not reflect, that either situation applies here. In sum, having reviewed all communications in the claims file, the Board finds that there is no probative evidence that the Veteran submitted any formal or informal communications with respect to his major depressive disorder, prior to his March 2015 claim. See 38 C.F.R. § 3.1(p) (2014). Thus, there is no legal basis for awarding an effective date earlier than March 27, 2015. 4. Entitlement to a rating in excess of 10 percent for tinnitus The Veteran seeks an initial rating in excess of 10 percent for tinnitus, which is rated under Diagnostic Code 6260. Disability ratings are determined by application of the criteria set forth in VA’s Schedule for Rating Disabilities, which is based on average impairment of earning capacity. 38 U.S.C. § 1155; 38 C.F.R. Part 4. When a question arises as to which of two ratings applies under a particular Diagnostic Code, the higher rating is assigned if the disability more closely approximates the criteria for the higher rating. Otherwise, the lower rating applies. 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 RO rated the Veteran’s tinnitus under Diagnostic Code (DC) 6260 of 38 C.F.R. § 4.87. This DC provides a maximum rating of 10 percent. In Smith v. Nicholson, 19 Vet. App. 63, 78 (2005) the U.S. Court of Appeals for Veterans Claims (CAVC) held that earlier versions of DC 6260 required the assignment of dual ratings for bilateral tinnitus. VA appealed this decision to the U.S. Court of Appeals for the Federal Circuit (Federal Circuit). In Smith v. Nicholson, 451 F.3d. 1344 (Fed. Cir. 2006), the Federal Circuit concluded that the CAVC erred in not deferring to VA’s interpretation of its own regulations, 38 C.F.R. § 4.25 (b) and DC 6260, which limit a veteran to a single disability rating for tinnitus, regardless of whether the tinnitus is unilateral or bilateral. The Veteran’s service-connected tinnitus has been assigned the maximum schedular rating available for the disorder. 38 C.F.R. § 4.87, Diagnostic Code 6260. As there is no legal basis upon which to award a higher schedular evaluation for tinnitus (or a separate evaluation for each ear), the Veteran’s appeal must be denied. Sabonis v. Brown, 6 Vet. App. 426 (1994). 5. Entitlement to service connection for a right leg disability The Veteran claims that he is entitled to service connection for a right leg disability. 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). Establishing service connection generally requires medical or, in certain circumstances, lay evidence of (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a link between the claimed in-service disease or injury and the present disability. Service connection may also be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability was incurred in service. 38 C.F.R. § 3.303(d). In addition, for veterans who have served 90 days or more of active service after December 31, 1946, there is a presumption of service connection for certain chronic diseases if the disability is manifest to a compensable degree within one year of discharge from service. 38 U.S.C. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309. 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, as distinguished from merely isolated findings or a diagnosis including the word “chronic.” Continuity of symptomatology after discharge is required where the condition noted during service is not, in fact, shown to be chronic or where the diagnosis of chronicity may be legitimately questioned. 38 C.F.R. § 3.303(b); see Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013) (the theory of continuity of symptomatology can be used only in cases involving those conditions explicitly recognized as chronic as per 38 C.F.R. § 3.309(a)). The Veteran’s service treatment records do not demonstrate that the Veteran received any treatment for a right leg disability while in service. Post-service medical records reflect that the Veteran has received no diagnosis for right leg pain. The Veteran occasionally complained of pain in the fall of 2016 but, but his medical records reflect no complaints of pain or treatment for pain since that time. At the Veteran’s August 2016 C&P examination for a back disability, the examiner examined the Veteran’s knee and found no diagnosable condition; the examiner observed that the pain was likely a referred pain. The Board acknowledges that pain alone, even without an underlying diagnosis, can still constitute a current disability, for VA compensation purposes, if it reaches the level of functional impairment of earning capacity. See Saunders v. Wilkie, 886 F.3d 1356, 1367-68 (Fed. Cir. 2018). However, in this instance, the Veteran has not complained of pain to his medical professionals since the fall of 2016, and there is no probative evidence that any pain has been productive of the type of impairment contemplated under Saunders. Congress has specifically limited entitlement to service-connected benefits to cases where there is a current disability. In the absence of proof of a present disability, there can be no valid claim. Brammer v. Derwinski, 3 Vet. App. 223 (1992). In light of the absence of any probative evidence of a right leg disability at any point during the pendency of the Veteran’s appeal, the claims must be denied. In reaching this decision, the Board has considered the benefit-of-the-doubt doctrine; however, as the preponderance of the evidence is against each claim, the doctrine is inapplicable. 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). 6. Entitlement to service connection for ALS and sleep apnea The Veteran contends that he has ALS and sleep apnea. For the following reasons, the Board finds that service connection is not warranted. The Veteran’s service treatment records do not demonstrate that the Veteran received any treatment for ALS or sleep apnea while in service. Post-service medical records reflect that the Veteran has not received any treatment for a ALS or sleep apnea. Indeed, there is no indication in the record that the Veteran has suffered from ALS or sleep apnea during the pendency of his appeal or proximate thereto. McClain v. Nicholson, 21 Vet. App. 319 (2007); Romanowsky v. Shinseki, 26 Vet. App. 289 (2013). The Board notes that although the Veteran has generally asserted that he is entitled to service connection for ALS or sleep apnea, he has never specifically stated that he suffers from ALS or sleep apnea and has done so since service. See Layno v. Brown, 6 Vet. App. 465, 469-70 (1994). He has likewise never reported being treated for ALS or sleep apnea symptoms during the pendency of his appeal. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). In May 2015, the Veteran received C&P examinations for the claimed disabilities; in both instances, the examiners determined that the Veteran did not suffer from either of the claimed for conditions. Congress has specifically limited entitlement to service-connected benefits to cases where there is a current disability. In the absence of proof of a present disability, there can be no valid claim. Brammer v. Derwinski, 3 Vet. App. 223 (1992). In light of the absence of any probative evidence of a ALS or sleep apnea at any point during the pendency of the Veteran’s appeal, the claims must be denied. In reaching this decision, the Board has considered the benefit-of-the-doubt doctrine; however, as the preponderance of the evidence is against each claim, the doctrine is inapplicable. 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). 7. Entitlement to service connection for muscle pain The Veteran contends that he is entitled to service connection for muscle pain. As noted above, however, the Board has addressed his claims for service connection for specific joint problems, including a right leg disability, a bilateral hip disability, and a bilateral hand disability. The Veteran has made no specific allegation explaining why his muscle pain, as a stand-alone disorder, has resulted in an impairment of earning capacity apart from the specific claims mentioned above. See Allen v. Brown, 7 Vet. App. 439, 448 (1995) (noting that the term “disability,” as used for VA purposes, refers to a condition resulting in an impairment of earning capacity). The Board has addressed his specific contentions, to include as, they may, muscle pain. Thus, the separate claim of entitlement to service connection for muscle pain must therefore be dismissed. See 38 U.S.C. § 7105(d)(5) (the Board may dismiss any appeal which fails to allege specific error of fact or law in the determination being appealed). 8. Entitlement to service connection for a right and left hip disability The Veteran states that his bilateral hip pain is related to his service-connected back disability. The Veteran explained that his hip pain began after back surgery in 2009 but was asymptomatic until 2013. After carefully reviewing the record, the Board finds that the preponderance of the evidence is against the Veteran’s claim for service connection. As noted above, there is no evidence that the Veteran developed hip pain in service. At the Veteran’s June 2015 examination, the Veteran stated he had not received treatment or care for his disability, and he had never been evaluated for it. At the examination, the examiner determined it was less likely than not that the Veteran’s hip pain was related to service or to his service-connected back disability, as there was no specific incident or etiological nexus to relate the hip pain to the back disability. Instead, it was far more likely that the mild degenerative changes were related to age and occupational history. As such, the only positive evidence indicating that his symptomatology is related to his service-connected back disability are lay statements to that effect. In this regard, the Board acknowledges that the Veteran is competent to relate symptoms within the realm of his personal knowledge, just as he is competent to relate what he has been told by an examiner. Layno v. Brown, 6 Vet. App. 465, 469-70 (1994); Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). However, the question of whether his current mild degenerative changes in the hips are related to his back disability is a complex medical question, not capable of lay observation. See Jandreau, 492 F.3d at 1376 (noting that lay witness capable of diagnosing dislocated shoulder); Barr v. Nicholson, 21 Vet. App. 308 -09 (2007) (finding that lay testimony is competent to establish the presence of varicose veins). Because the evidence does not indicate that the Veteran has the appropriate training, experience, or expertise to provide a medical opinion concerning the etiology of his hip disability, he is not competent to comment on its etiology. The Board acknowledges the Veteran’s claims that his condition stems from his service-connected back disability. Unfortunately, he is not competent to substantiate this claim, and there is no other credible evidence substantiating the claim. In sum, the Board finds that the most probative evidence demonstrates that the Veteran’s degenerative changes in the hips was not caused by or aggravated by his back disability. There is no competent evidence establishing that he had characteristic manifestations of chronic disease in service with continuous symptoms thereafter or that his back disability caused or aggravated his hip disability. For these reasons, service connection must be denied. REASONS FOR REMAND 1. Entitlement to a total disability rating based on individual unemployability (TDIU) is remanded. During the pendency of the appeal, the Veteran has raised the issue of entitlement to a TDIU. See Rice v. Shinseki, 22 Vet. App. 447 (2009). However, as this matter is inextricably intertwined with the remanded claims discussed above, it must be remanded as well. See Tyrues v. Shinseki, 23 Vet. App. 166, 177 (2009) (en banc) (explaining that claims are inextricably intertwined where the adjudication of one claim could have a significant impact on the adjudication of another claim). 2. Entitlement to a rating in excess of 20 percent for a back disability, as well as entitlement to an effective date earlier than May 13, 2015 for the grant of 20 percent for a back disability is remanded. At the Veteran’s February 2015 examination, the examiner failed to measure the Veteran’s range of motion with weight-bearing or in passive situations or provide an explanation of why he could not do so. Without such measurements, the Board cannot adequately assess the Veteran’s bilateral knee impairment. Correia v. McDonald, 28 Vet. App. 158, 168 (2016) (holding that additional requirements must be met prior to finding that a VA examination is adequate). Moreover, in May 2017, the Veteran’s lawyer submitted additional evidence pertaining to the Veteran’s back. Unfortunately, the submitted evidence is illegible. Without legible evidence, the Board cannot accurately assess the Veteran’s disability. As such, upon remand, the Veteran’s lawyer is asked to re-submit a cleaner copy of the evidence submitted in support of the Veteran’s claim for an increased rating for his back disability. Furthermore, because the claim for an increased rating is being remanded for further development, the Board finds that the inextricably intertwined claim for an earlier effective date for the grant of an increased 20 percent rating must also be remanded. Upon remand, the VA is asked to correspond with the Veteran’s lawyer and inquire as to what date the Veteran is seeking for an earlier effective date. See Tyrues, 23 Vet. App. at 177. 3. Entitlement to a compensable rating for left lower extremity radiculopathy, as well as entitlement to an effective date for the non-compensable rating, is remanded. Because the claim for an increased rating for the Veteran’s lumbar strain is being remanded for an updated examination, the Board finds that his claims for secondary radiculopathy, as well as entitlement to an earlier effective date, must be remanded as well. See id. Additionally, upon remand, the VA is asked to correspond with the Veteran’s lawyer and inquire as to what date the Veteran is seeking for an earlier effective date. The matters are REMANDED for the following action: 1. Schedule the Veteran for an examination of the current severity of his service-connected scoliosis back disability. The examiner must attempt to elicit information regarding the severity, frequency, and duration of any flare-ups, and the degree of functional loss during flare-ups. To the extent possible, the examiner should identify any symptoms and functional impairments due to these disabilities, and discuss the effect of these disabilities on any occupational functioning and activities of daily living. If it is not possible to provide a specific measurement, or an opinion regarding flare-ups, symptoms, or functional impairment without speculation, the examiner must state whether the need to speculate is due to a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts), a deficiency in the record (additional facts are required), or the examiner (does not have the knowledge or training). 2. Obtain legible copies of all evidence concerning the Veteran’s back from the Veteran’s lawyer, and ask the lawyer to clarify which dates he is specifically requesting for his earlier effective date claims. 3. Schedule the Veteran for an examination to determine the nature and severity of his left lower extremity radiculopathy. 4. Following the Veteran’s examinations for his right knee and lumbar spine disabilities, and re-adjudication of those claims, re-adjudicate the Veteran’s claims for an earlier effective date for the grants of increased ratings for those disabilities. 5. After the above development, and any additionally indicated development, has been completed, readjudicate the issues remaining on appeal, to include the issue of entitlement to a TDIU. If the benefits sought are not granted to the Veteran’s satisfaction, send the Veteran and his representative a Supplemental Statement of the Case and provide an opportunity to respond. If necessary, return the case to the Board for further appellate review. LESLEY A. REIN Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Department of Veterans Affairs