Citation Nr: 18159753 Decision Date: 12/20/18 Archive Date: 12/19/18 DOCKET NO. 16-41 335 DATE: December 20, 2018 ORDER Entitlement to service connection for obstructive sleep apnea is denied. Entitlement to service connection for clinical peripheral radiculopathy, left upper extremity is denied. Entitlement to service connection for clinical peripheral radiculopathy, right upper extremity is denied. Entitlement to an initial evaluation in excess of 10 percent for residuals of a right wrist fracture, degenerative arthritis (hereinafter “right wrist disability”) is denied. Entitlement to an initial evaluation in excess of 20 percent for lumbar facet spondylosis, degenerative arthritis of the spine, (hereinafter “lumbar spine disability”) is denied. Entitlement to an initial evaluation in excess of 20 percent for cervical spondylosis, degenerative arthritis of the spine (hereinafter cervical spine disability”) is denied. Entitlement to an initial compensable evaluation for right eyebrow scar is denied. Entitlement to an initial rating in excess of 10 percent for tinnitus is denied. REMANDED Entitlement to service connection for osteoarthritis of the bilateral knees is remanded. Entitlement to service connection for an acquired psychiatric disorder, to include depressive disorder, to include as secondary to service-connected disabilities. Entitlement to service connection for tension headaches is remanded. FINDINGS OF FACT 1. Currently diagnosed obstructive sleep apnea was not first manifested on active duty service, and is not otherwise shown to be related to military service. 2. There is no competent evidence of record showing the Veteran has a current diagnosis of clinical peripheral radiculopathy of the left upper extremity. 3. There is no competent evidence of record showing the Veteran has a current diagnosis of clinical peripheral radiculopathy of the right upper extremity. 4. Service connected right wrist disorder is manifested by no worse than dorsiflexion to 70 degrees, with symptoms such as objective evidence of pain on motion. 5. Service connected lumbar spine disorder is manifested by no worse than limitation of flexion to 35 degrees, with such symptoms as objective evidence of painful motion. 6. Service connected cervical spine disorder is manifested by no worse than limitation of flexion to 35 degrees, with such symptoms as objective evidence of painful motion. 7. Throughout the period on appeal, the Veteran’s right eyebrow scar has been asymptomatic. 8. The current 10 percent initial disability evaluation for tinnitus is the maximum schedular rating. CONCLUSIONS OF LAW 1. The criteria for service connection of obstructive sleep apnea have not been met. 38 U.S.C. §§ 1131, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303 (2018). 2. The criteria for service connection for clinical peripheral radiculopathy, left upper extremity, have not been met. 38 U.S.C. §§ 1131, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303 (2018). 3. The criteria for service connection for clinical peripheral radiculopathy, right upper extremity, have not been met. 38 U.S.C. §§ 1131, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303 (2018). 4. The criteria for an initial evaluation in excess of 10 percent for right wrist disorder are not met. 38 U.S.C. §§ 1155, 5107 (2012), 38 C.F.R. §§ 4.1 – 4.7, 4.21, 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes 5003, 5215 (2018). 5. The criteria for an initial evaluation in excess of 20 percent for lumbar spine disorder have not been met. 38 U.S.C. §§ 1155, 5107 (2012), 38 C.F.R. §§ 4.1 – 4.7, 4.21, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5242 (2018). 6. The criteria for an initial evaluation in excess of 20 percent for cervical spine disorder have not been met. 38 U.S.C. §§ 1155, 5107 (2012), 38 C.F.R. §§ 4.1 – 4.7, 4.21, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5242 (2018). 7. The criteria for an initial compensable evaluation for right eyebrow scar have not been met. 38 U.S.C. §§ 1155, 5107 (2012), 38 C.F.R. §§ 4.1 – 4.7, 4.21, 4.118, Diagnostic Code 7800 (2018). 8. The claim for an initial evaluation in excess of 10 percent for tinnitus is without legal merit. 38 U.S.C. § 1155 (2012); 38 C.F.R. § 4.87, Diagnostic Code 6260 (2018). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the Army from October 1983 to September 1988. These matters come before the Board of Veterans’ Appeals (Board) on appeal from March 2014, January 2015, and September 2016 rating decisions by the San Juan, Commonwealth of Puerto Rico Regional Office (RO) of the United States Department of Veterans Affairs. The Veteran’s claim of entitlement to service connection for depression has been recharacterized to broadly reflect that the scope of the claim includes any acquired psychiatric disorder, pursuant to Clemons v. Shinseki, 23 Vet. App. 1, 5 (2009). Service Connection Service connection may be established for disability resulting from personal injury suffered or disease contracted in the line of duty, or for aggravation of a preexisting injury suffered or disease contracted in line of duty, in the active military, naval, or air service. 38 U.S.C. §§ 1110, 1131. Service connection may also be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). In order to establish service connection on a direct basis, the record requires competent evidence showing: (1) the existence of a present disability; (2) in service incurrence or aggravation of an injury or disease; 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). In the absence of proof of a present disability there can be no valid claim. Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). Competent medical evidence is evidence provided by a person who is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions. Competent medical evidence may also include statements conveying sound medical principles found in medical treatises. It also includes statements contained in authoritative writings, such as medical and scientific articles and research reports or analyses. 38 C.F.R. § 3.159(a)(1). Competent lay evidence is any evidence not requiring that the proponent have specialized education, training, or experience. Lay evidence is competent if it is provided by a person who has knowledge of facts or circumstances and conveys matters that can be observed and described by a lay person. 38 C.F.R. § 3.159(a)(2). This may include some medical matters, such as describing symptoms or relating a contemporaneous medical diagnosis. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011). A layperson is generally not capable of opining on matters requiring medical knowledge. Routen v. Brown, 10 Vet. App. 183, 186 (1997). See also Bostain v. West, 11 Vet. App. 124, 127 (1998). 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 veteran 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. Service connection for obstructive sleep apnea The Veteran is seeking service connection for obstructive sleep apnea which he contends is related to his active service. He has not, however, put forth, any specific theory, allegation, or evidence in support of his general claim of service connection for obstructive sleep apnea. The service treatment records (STRs) are negative for treatment for symptoms of obstructive sleep apnea in service. The earliest evidence of obstructive sleep apnea is in a January 2014 sleep study, approximately 26 years after the Veteran’s separation from active duty service. A private provider diagnosed the condition and prescribed a CPAP machine, but did not comment on the etiology of the diagnosed apnea. No health care professional is on record as opining that the Veteran current experiences obstructive sleep apnea as a result of his active duty service. Simply put, there is no evidence regarding the nexus element of service connection outside the Veteran’s bare assertion. In the absence of evidence, there cannot be even equipoise, and there can be no resolution of doubt. The Veteran still ultimately bears some burden of production. 38 U.S.C. § 5107(a); Cromer v. Nicholson, 455 F.3d 1346 (Fed. Cir. 2006). As there is no evidence to support any finding of a nexus between service and currently diagnosed obstructive sleep apnea, entitlement to the benefit sought is not warranted. Service connection for peripheral radiculopathy of the left and right upper extremities The existence of a current disability is the cornerstone of a claim for VA disability compensation. In the absence of proof of a present disability there can be no valid claim. Brammer, 3 Vet. App. at 225 (1992). While the Veteran has made the allegation of the presence of neurological problems of the upper extremities, a September 2016 VA examiner specified that there were no objective signs of any such on examination. Muscle strength, sensorium, and reflexes were all normal. VA treatment records do show use of gabapentin for neuropathic pain, but doctors state such is related to nonservice-connected fibromyalgia. There is no diagnosis of radiculopathy, Accordingly, without a current disability, the claims must be denied. Increased Rating Disability evaluations are determined by the application of the facts presented to VA’s Schedule for Rating Disabilities (Rating Schedule) at 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 the residual conditions in civilian occupations. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.321(a), 4.1. In evaluating the severity of a particular disability, it is essential to consider its history. 38 C.F.R. § 4.1; Peyton v. Derwinski, 1 Vet. App. 282 (1991). Where entitlement to compensation has already been established and an increase in the disability rating is at issue, the present level of disability is of primary importance. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). Separate ratings may be assigned for separate periods of time based on the facts found, however. This practice is known as “staged” ratings.” Fenderson v. West, 12 Vet. App. 119, 126 127 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). If the evidence for and against a claim is in equipoise, the claim will be granted. A claim will be denied only if the preponderance of the evidence is against the claim. See 38 U.S.C. § 5107 (West 2002); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 56 (1990). Any reasonable doubt regarding the degree of disability should be resolved in favor of the claimant. 38 C.F.R. § 4.3. Where there is a question as to which of two evaluations shall be applied, the higher rating will be assigned if the disability picture more nearly approximates the criteria required for that evaluation. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. It should also be noted that, when evaluating disabilities of the musculoskeletal system, 38 C.F.R. § 4.40 allows for consideration of functional loss due to pain and weakness causing additional disability beyond that reflected on range of motion measurements. DeLuca v. Brown, 8 Vet. App. 202 (1995). Further, 38 C.F.R. § 4.45 provides that consideration also be given to decreased movement, weakened movement, excess fatigability, incoordination, and pain on movement, swelling, and deformity or atrophy of disuse. The intent of the rating schedule is to recognize actually painful, unstable, or malaligned joints, due to healed injury, as entitled to at least the minimum compensable rating for the joint. 38 C.F.R. § 4.59. Painful motion is considered limited motion at the point that pain actually sets in. See VAOPGCPREC 9-98. Competent medical evidence is evidence provided by a person who is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions. Competent medical evidence may also include statements conveying sound medical principles found in medical treatises. It also includes statements contained in authoritative writings, such as medical and scientific articles and research reports or analyses. 38 C.F.R. § 3.159(a)(1). Competent lay evidence is any evidence not requiring that the proponent have specialized education, training, or experience. Lay evidence is competent if it is provided by a person who has knowledge of facts or circumstances and conveys matters that can be observed and described by a lay person. 38 C.F.R. § 3.159(a)(2). This may include some medical matters, such as describing symptoms or relating a contemporaneous medical diagnosis. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011). A layperson is generally not capable of opining on matters requiring medical knowledge. Increased initial evaluation, right wrist disability The Veteran is seeking an increased initial evaluation in excess of 10 percent for his right wrist disability. The Veteran’s right wrist disability has been assigned a rating under 38 C.F.R. § 4.71a, Diagnostic Code (DC) 5215-5003. 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. § 4.27. The rating criteria associated with DC 5003, for degenerative arthritis, provides that degenerative arthritis that is established by x-ray finding will be rated on limitation of motion under the appropriate diagnostic codes for the specific joint or joints involved. The wrist is considered a major joint. 38 C.F.R. § 4.45(f). For VA purposes, normal range of wrist is from 0 degrees to 70 degrees for dorsiflexion (extension); palmar flexion from 0 to 80 degrees; ulnar deviation from 0 to 45 degrees; and radial deviation from 0 to 20 degrees. 38 C.F.R. § 4.71, Plate I (2018). Under DC 5215, a 10 percent rating is assigned for wrist motion limited to palmar flexion in line with forearm, or dorsiflexion less than 15 degrees. The same evaluations apply to the major and minor extremity. This is the highest evaluation available pursuant to this diagnostic code. DC 5214 assigns evaluations for ankylosis of the wrist. Under Code 5214, a 20 percent rating is assigned for favorable ankylosis of the wrist in 20 degrees to 30 degrees dorsiflexion of the minor extremity (non-dominant side). A 30 percent rating is assigned for favorable ankylosis of the wrist in 20 degrees to 30 degrees dorsiflexion of the major extremity (dominant side) or any other position, except favorable of the minor extremity. A 40 percent rating is assigned for any other position, except favorable of the major extremity or unfavorable ankylosis of the wrist in any degree of palmar flexion, or with ulnar or radial deviation of the minor extremity. A 50 percent rating is assigned for unfavorable ankylosis of the wrist in any degree of palmar flexion, or with ulnar or radial deviation of the major extremity. Ankylosis is the immobility and consolidation of a joint due to disease, injury or surgical procedure. See Lewis v. Derwinski, 3 Vet. App. 259 (1992) (citing Saunders Encyclopedia and Dictionary of Medicine, Nursing, and Allied Health at 68 (4th ed. 1987)). The Veteran underwent a VA wrist examination in March 2014. The Veteran reported experiencing a right wrist fracture in 1985 and that he is right-handed. Subjective complaints included experiencing flare-ups which consist of pain on repetitive motion of his wrist. Physical examination revealed palmar flexion to 70 degrees, with objective evidence of painful motion at 5 degrees; dorsiflexion to 65 degrees, with objective evidence of painful motion at 5 degrees. Left wrist range of motion was normal. Repetitive use testing resulted in no change in range of motion of the right wrist. Additional limitation of motion in the right wrist, including less movement than normal, weakened movement and pain on movement was documented. Localized tenderness and/or pain on palpation of the right wrist was observed. The Veteran has not had surgery on his right wrist. X-rays confirmed the diagnosis of degenerative arthritis of the right wrist. The Veteran underwent a second VA wrist examination in September 2016. Subjective complaints included constant wrist pain, which worsened with cold or rainy weather, which resulted in increased pain and stiffness; frequent swelling of the right wrist; aggravation of right wrist pain due to repetitive activities; flare-ups due to repetitive activities and activities requiring strength, such as opening a jar or grasping something heavy. Physical examination revealed range of motion as follows: palmar flexion to 30 degrees; dorsiflexion to 35 degrees; ulnar deviation to 20 degrees; and radial deviation to 10 degrees. Pain was noted on examination in all ranges of motion, but did not result in functional loss. Tenderness to palpation at radial styloid process and ulnar styloid process was noted. The Veteran could perform repetitive use testing with no additional loss of function or range of motion after three repetitions. The examiner documented that there was no ankylosis of the Veteran’s right wrist. VA treatment records reflect the Veteran’s history of a right wrist fracture but are negative for treatment for symptoms and/or complaints of right wrist pain. The Board has carefully considered all the evidence and potentially applicable diagnostic codes, including the DeLuca factors, and finds that the disability picture of the Veteran’s right wrist does not more nearly approximate the rating criteria for a rating in excess of 10 percent. The evidence does not show that the Veteran’s symptoms meet the criteria for a 30 percent rating pursuant to DC 5214 because the Veteran does not have ankylosis of his right wrist. The Board notes that the VA examinations addressed the DeLuca factors, to include symptoms described by the Veteran in competent and credible statements, and that even with consideration of the DeLuca factors, the Veteran’s right wrist is not ankylosed. Therefore, the currently assigned 10 percent disability rating contemplates the Veteran’s functional limitations and compensates him for such. See DeLuca. Accordingly, entitlement to a rating in excess of 10 percent for right wrist disability is not warranted. In addition, the Board has considered the doctrine of reasonable doubt but has determined that it is not applicable because the preponderance of the evidence is against the claim for a higher rating. 38 C.F.R. §§ 4.7, 4.21. Increased initial evaluations of the lumbar spine disability and cervical spine disability The Veteran is seeking an initial evaluation in excess of 20 percent for his lumbar spine disability, and an initial evaluation in excess of 20 percent for his cervical spine disability. Both disabilities are evaluated under 38 C.F.R. § 4.71a, Diagnostic Code 5242, which pertains to degenerative arthritis of the spine. DC 5242 directs the evaluation of lumbar and cervical spine disabilities to be rated under the General Rating Formula for Diseases and injuries of the Spine. Pursuant to the general rating criteria for diseases and injuries of the spine, a 10 percent evaluation is warranted for forward flexion of the thoracolumbar spine greater than 60 degrees but not greater than 85 degrees; or, forward flexion of the cervical spine greater than 30 degrees but not greater than 40 degree; or for a combined range of motion of the thoracolumbar spine greater than 120 degrees but not greater than 235 degrees; or, combined range of motion of the cervical spine greater than 170 degrees but not greater than 335 degrees; or, muscle spasm, guarding, or localized tenderness not resulting in abnormal gait, or abnormal contour; or vertebral body fracture with loss of 50 percent or more of the height. A 20 percent evaluation is warranted for forward flexion of the thoracolumbar spine greater than 30 degrees, but not greater than 60 degrees; or, forward flexion of the cervical spine greater than 15 degrees but not greater than 30 degrees; or the combined range of motion of the thoracolumbar spine not greater than 120 degrees; or, the combined range of motion of the cervical spine not greater than 170 degrees; or, muscle spasm or guarding severe enough to result in an abnormal gait or in abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis. A 30 percent evaluation is warranted for forward flexion of the cervical spine 15 degrees or less; or favorable ankylosis of the entire cervical spine. A 40 percent evaluation is warranted for unfavorable ankylosis of the entire cervical spine; or, forward flexion of the thoracolumbar spine 30 degrees or less; or favorable ankylosis of the entire thoracolumbar spine. A higher evaluation of 50 percent is warranted for unfavorable ankylosis of the entire thoracolumbar spine. The highest evaluation of 100 percent is warranted for unfavorable ankylosis of the entire spine. The spine codes permit evaluation under either the General Rating Formula for Diseases and Injuries of the Spine or under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes, whichever results in the higher evaluation when all disabilities are combined. 38 C.F.R. § 4.71a, DC 5243 (2018). The following ratings apply to intervertebral disc syndrome based on incapacitating episodes: 60 percent: Incapacitating episodes having a total duration of at least 6 weeks during the past 12 months; 40 percent: Incapacitating episodes having a total duration of at least 4 weeks but less than 6 weeks during the past 12 months; 20 percent: Incapacitating episodes having a total duration of at least 2 weeks but less than 4 weeks during the past 12 months; 10 percent: Incapacitating episodes having a total duration of at least one week but less than 2 weeks during the past 12 months. 38 C.F.R. § 4.71a, DC 5243 (2018). An “incapacitating episode” is a period of acute signs and symptoms due to intervertebral disc syndrome that requires bed rest prescribed by a physician and treatment by a physician. 38 C.F.R. § 4.71a, DC 5243, Note 1. VA regulations define normal range of motion of the lumbar spine as flexion to 90 degrees, extension to 30 degrees, lateral flexion to 30 degrees, and rotation to 30 degrees. Normal range of motion of the cervical spine is flexion to 45 degrees, extension to 45 degrees, lateral flexion to 45 degrees, and rotation to 80 degrees. 38 C.F.R. § 4.71a, Plate V. Increased initial evaluation, lumbar spine disability The Veteran is seeking an initial evaluation in excess of 20 percent for his lumbar spine disability, which is evaluated pursuant to the criteria associated with Code 5242. The Veteran underwent a VA back examination in March 2014. The examiner noted that the Veteran was diagnosed with lumbar facet hypertrophy and lumbar strain in 1985. Subjective complaints included experiencing flare-ups that impacted the function of the back and pain on stooping, prolonged standing and ambulation. Physical examination revealed range of motion as follows: forward flexion to 35 degrees, with objective evidence of pain at 5 degrees; extension to 20 degrees, with objective evidence of pain at 5 degrees; bilateral lateral flexion to 20 degrees, with objective evidence of pain at 5 degrees, bilaterally; bilateral lateral rotation to 20 degrees, with objective evidence of pain at 5 degrees, bilaterally. The Veteran could perform repetitive-use testing with no change in range of motion. The examiner noted that the Veteran experienced functional loss and/or functional limitation of the back manifested as less movement than normal and pain on movement. Localized tenderness or pain to palpation at the lumbosacral paravertebrals was noted. No evidence of weakness, fatigability or incoordination was present. Guarding and/or muscle spasm was present, but did not result in abnormal gait or spinal contour. No intervertebral disc syndrome of the thoracolumbar spine was noted. The examiner stated that pain at the lumbar spine could significantly limit functional ability during flare-ups or when the joint is used over a period of time. VA treatment records reflect the Veteran’s history of back pain but are negative for treatment for symptoms and/or complaints of back pain. The Veteran underwent a second VA back examination in in September 2016. Subjective complaints included severe low back pain; flare-ups manifested as severe low back pain; and functional loss manifested as difficulty bending over. Physical examination revealed range of motion as follows: forward flexion to 40 degrees; extension to 10 degrees; bilateral lateral flexion to 10 degrees; bilateral lateral rotation to 10 degrees. Pain was noted on examination in all ranges of motion, but it did not result in or cause functional loss. Localized tenderness or pain to palpation of the thoracolumbar spine was noted as paravertebral muscle tenderness. The Veteran could perform repetitive-use testing with no change in range of motion. Pain was noted to significantly limit functional ability with repeated use over a period of time. No evidence of weakness, fatigability or incoordination was present. Guarding and/or muscle spasm was present, but did not result in abnormal gait or spinal contour. The examiner documented that the Veteran does not have intervertebral disc syndrome of the thoracolumbar spine. Based on the findings of these examinations, the Veteran was assigned an initial evaluation of 20 percent in a March 2014 rating decision. The Board has carefully considered all the evidence and potentially applicable diagnostic codes, including the DeLuca factors, and finds that the disability picture of the Veteran’s lumbar spine disability does not more nearly approximate the rating criteria of a higher disability level. Motion is, at worst, limited to forward flexion to 35 degrees, warranting the currently assigned 20 percent rating, even upon consideration of the functional impact of pain with use and on flare-ups. Limitation is not reduced to 30 degrees or less, there is no favorable ankylosis of the entire thoracolumbar spine, nor has the Veteran experienced incapacitating episodes having a total duration of at least 4 weeks but less than 6 weeks during the past 12 months to warrant assignment of a yet higher rating. Increased initial evaluation, cervical spine disability The Veteran is seeking an initial evaluation in excess of 20 percent for his cervical spine disability, which is evaluated pursuant to the criteria associated with Code 5242. The Veteran underwent a VA neck examination in March 2014. The examiner noted that the Veteran was diagnosed with cervical strain in 1985 and cervical spondylosis in 2013. Subjective complaints included flare-ups upon performing overhead activities, which exacerbates his pain. Physical examination revealed range of motion as follows: forward flexion to 35 degrees, with objective evidence of pain at 5 degrees; extension to 35 degrees, with objective evidence of pain at 5 degrees; bilateral lateral flexion to 30 degrees, with objective evidence of pain at 5 degrees, bilaterally; bilateral lateral rotation to 45 degrees, with objective evidence of pain at 5 degrees, bilaterally. The Veteran could perform repetitive-use testing with forward flexion to 30 degrees, extension to 30 degrees, right lateral flexion to 30 degrees, left lateral flexion to 35 degrees, right lateral rotation to 40 degrees and left lateral rotation to 45 degrees. The examiner noted that the Veteran experienced functional loss and/or functional limitation of the neck manifested as less movement than normal and pain on movement. Localized tenderness or pain to palpation of the cervical spine was noted. Guarding and/or muscle spasm was present, but did not result in abnormal gait or spinal contour. No ankylosis nor intervertebral disc syndrome of the cervical spine was present. VA treatment records reflect the Veteran’s history of neck pain but are negative for treatment for symptoms and/or complaints of neck pain. The Veteran underwent a second VA neck examination in in September 2016. Subjective complaints included increase in neck pain; stiffness and crepitation of the neck condition associated with movements of the head; flare-ups manifested as decreased endurance to idle sitting, standing and walking. Physical examination revealed range of motion as follows: forward flexion to 30 degrees; extension to 20 degrees; bilateral lateral flexion to 25 degrees; bilateral lateral rotation to 40 degrees. Pain was noted on examination in all ranges of motion, but it did not result in or cause functional loss. The Veteran could perform repetitive-use testing with no change in range of motion. Pain and lack of endurance was noted to significantly limit functional ability with repeated use over a period of time. No guarding, localized tenderness or muscle spasm of the cervical spine was present. The examiner documented that the Veteran does not have ankylosis or intervertebral disc syndrome of the cervical spine. Based on the findings of these examinations, the Veteran was assigned an initial disability evaluation of 20 percent in a March 2014 rating decision. The Board has carefully considered all the evidence and potentially applicable diagnostic codes, including the DeLuca factors, and finds that the disability picture of the Veteran’s cervical spine disability does not more nearly approximate the rating criteria of a higher disability level. Motion is, at worst, limited to forward flexion to 30 degrees, warranting the currently assigned 20 percent rating, even upon consideration of the functional impact of pain with use and on flare-ups. Limitation is not reduced to 15 degrees or less, there is no favorable ankylosis of the entire cervical spine, nor has the Veteran experienced incapacitating episodes having a total duration of at least 4 weeks but less than 6 weeks during the past 12 months to warrant assignment of a yet higher rating. Compensable initial evaluation for right eyebrow scar The Veteran is seeking an initial compensable evaluation for his right eyebrow scar. The Veteran’s right eyebrow scar has been rated under 38 C.F.R. § 4.118, Diagnostic Code 7800. Under Code 7800, a 10 percent rating is warranted for scar(s) of the head, face, or neck, or other disfigurement of the head, face, or neck, with one characteristic of disfigurement. The 8 characteristics of disfigurement are: scar 5 or more inches (13 or more centimeters (cm)) in length; scar at least one-quarter inch (0.6 cm) wide at widest part; surface contour of scar elevated or depressed on palpation; scar adherent to underlying tissue; skin hypo- or hyper-pigmented in an area exceeding 6 square inches (39 squared cm.); skin texture abnormal (irregular, atrophic, shiny, scaly, etc.) in an area exceeding 6 square inches (39 sq. cm.); underlying soft tissue missing in an area exceeding six square inches (39 sq. cm.); and skin indurated and inflexible in an area exceeding six square inches (39 sq. cm.). Id., Note (1). Diagnostic Code 7804 assigns a 10 percent rating for one or two scars that are unstable or painful. An unstable scar is one where, for any reason, there is frequent loss of covering of skin over the scar. Id., Note (1). If one or more scars are both unstable and painful, 10 percent is to be added to the evaluation that is based on the total number of unstable or painful scars. Id., Note (2). Scars evaluated under Diagnostic Codes 7800, 7801, 7802, or 7805 may also receive an additional rating under Diagnostic Code 7804, when applicable. Id., Note (3). Diagnostic Code 7805 provides that any disabling effects of other scars (including linear scars), and other effects of scars rated under Diagnostic Codes 7800, 7801, 7802, and 7804 not considered in a rating provided under Diagnostic Codes 7800-7804 are to be rated under an appropriate diagnostic code. 38 C.F.R. § 4.118, Diagnostic Code 7805. The Veteran was provided a VA scars examination on September 2016. The examiner noted a healed scar above the Veteran’s right eyebrow measuring 4 cm x 0.1 cm. Physical examination revealed the scar was not painful nor unstable. No elevation, depression, adherence to underlying tissue, missing underlying soft tissue, abnormal pigmentation of the face or distortion of facial features was noted. The Veteran’s right eyebrow scar does not meet the criteria for a compensable evaluation under Diagnostic Code 7800. Specifically, the medical evidence does not show a characteristic of disfigurement as described in the rating criteria, or result in significant asymmetry of the face As such, a compensable rating pursuant to Code 7800 is not warranted. The Board notes consideration has been given to rating the Veteran’s scar under Codes 7804 and 7805. However, the evidence does not show the Veteran’s scar is unstable, painful, or results in functional impairment. In reaching this decision, the Board has duly considered the benefit of the doubt doctrine, but has determined the doctrine is inapplicable because a preponderance of the evidence weighs against the Veteran’s claim. Increased initial evaluation for tinnitus Service connection has been established for tinnitus, effective September 23, 2014. The Veteran was granted an initial 10 percent evaluation pursuant to 38 C.F.R. § 4.87, Diagnostic Code 6260, the maximum evaluation assignable under that diagnostic code. A single evaluation is assigned for recurrent tinnitus whether it is present in one or both ears. 38 C.F.R. § 4.87, Diagnostic Code 6260, Note (2) (2018). Neither Diagnostic Code 6260, nor any other Diagnostic Code allows the assignment of a schedular evaluation in excess of 10 percent for tinnitus affecting both ears. Therefore, the claim for a higher initial schedular evaluation for tinnitus must be denied as a matter of law. Smith v. Nicholson, 451 F.3d 1344 (Fed. Cir. 2006). REASONS FOR REMAND Service connection for bilateral knee osteoarthritis The Veteran was afforded a VA knee examination in January 2015. The examiner determined that it was less likely than not that the Veteran’s bilateral knee condition is caused by or a result of service because although he injured his right knee in service, he did not receive treatment within two years of his discharge from service. The Board finds that this opinion is inadequate because the examiner relied upon the lack of treatment immediately following service to form the basis of his opinion, and did not discuss the Veteran’s statements regarding the continuity of his symptoms since service. Therefore, on remand, an addendum opinion regarding the nature and etiology of the Veteran’s bilateral knee osteoarthritis.   Service connection for an acquired psychiatric disorder The Veteran was afforded a mental disorder examination in September 2016. The examiner determined that because the Veteran did not seek psychiatric care until 2011, approximately 26 years after his service connected back and cervical spine injuries, and that there is no relation between these injuries and his diagnosed unspecified depressive disorder. The Board finds that this opinion is inadequate because the examiner relied upon the lack of treatment to form the basis of his opinion and did not discuss the VA mental health records which indicate his back and neck conditions may be contributing factors to his depression. Therefore, on remand, an addendum opinion regarding the nature and etiology of the Veteran’s unspecified depressive disorder should be obtained. Service connection for tension headaches The nature of the diagnosed headache disorder gives rise to the possibility of a nexus between it and an acquired psychiatric disorder. As the two matters are inextricably intertwined, remand of one requires remand of the other. The matters are REMANDED for the following action: 1. Return the file to the VA examiner who provided the January 2015 knee examination and opinion. If that examiner is not available, the file should be provided to an appropriate medical professional to render the requested opinion. If the examiner determines that another VA examination is necessary, one should be scheduled. The examiner must opine as to whether it is at least as likely as not that any diagnosed knee disability is caused or aggravated by service or a service-connected disability, to include the Veteran’s lumbar spine disability. 2. Return the file to the VA examiner who provided the September 2016 mental disorders examination and opinion. If that examiner is not available, the file should be provided to an appropriate medical professional to render the requested opinion. If the examiner determines that another VA examination is necessary, one should be scheduled. The examiner must provide an opinion as to whether it is at least as likely as not that any diagnosed acquired psychiatric disorder is caused or aggravated by service or a service-connected disability, to include lumbar spine and cervical spine disabilities. The examiner should opine as to whether diagnosed tension headaches are at least as likely as not a symptom of an acquired psychiatric disorder. WILLIAM H. DONNELLY Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD M. M. Lunger, Associate Counsel