Citation Nr: 1821971 Decision Date: 04/12/18 Archive Date: 04/25/18 DOCKET NO. 14-24 323 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUES 1. Whether new and material evidence has been received in order to reopen a claim for service connection for high blood pressure. 2. Whether new and material evidence has been received to reopen a claim for service connection for a bilateral hand disorder and, if so, whether service connection is warranted. 3. Entitlement to service connection for a bilateral foot disorder. 4. Entitlement to an initial compensable rating for allergic rhinitis (rhinitis). 5. Entitlement to an initial rating in excess of 30 percent for an acquired psychiatric disability, to include posttraumatic stress disorder (PTSD) with alcohol abuse (psychiatric disability). 6. Entitlement to an initial rating in excess of 10 percent for maxillary and frontal sinusitis (sinusitis). 7. Entitlement to an initial rating in excess of 10 percent for right ankle lateral collateral ligament strain (right ankle disability). 8. Entitlement to a rating in excess of 10 percent for lumbar strain and degenerative disc disease (back disability). 9. Propriety of the assignment of a separate rating for left lower extremity (LLE) radiculopathy, evaluated as 10 percent disabling as of November 27, 2013. REPRESENTATION Veteran represented by: James J. Perciavalle, Agent WITNESSES AT HEARING ON APPEAL The Veteran and his spouse ATTORNEY FOR THE BOARD Kate Sosna, Associate Counsel INTRODUCTION The Veteran had active duty service from April 2002 to January 2007 with prior service in the Junior Reserve Officer Training Corps (ROTC) program. This matter comes to the Board of Veterans' Appeals (Board) on appeal from rating decisions issued in June 2011 (high blood pressure, bilateral hand disorder, psychiatric disability, back disability), April 2014 (LLE radiculopathy), and May 2017 (bilateral foot disorder, rhinitis, sinusitis, and right ankle disability) by a Department of Veterans Affairs (VA) Regional Office (RO). In January 2018, the Veteran and his spouse testified at a Board hearing before the undersigned Veterans Law Judge. A hearing transcript is associated with the record on appeal. This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2017). 38 U.S.C. § 7107(a)(2) (2012). The issues of entitlement to service connection for bilateral hand and foot disorders, entitlement to increased ratings for sinusitis and a back disorder, and the propriety of the assignment of a separate rating for LLE radiculopathy are addressed in the REMAND portion of the decision below and are REMANDED to the Agency of Original Jurisdiction (AOJ). FINDINGS OF FACT 1. At the January 2018 hearing, prior to the promulgation of a decision in the appeal, the Veteran withdrew his appeal as to the issues of whether new and material evidence had been received in order to reopen a previously denied claim of entitlement to service connection for high blood pressure and entitlement to an initial compensable rating for rhinitis. 2. A June 2007 rating decision denied service connection for a bilateral hand disorder; the Veteran did not file a notice of disagreement, new and material evidence was not received within one year of notice of the decision, and no relevant official service department records were subsequently associated with the record. 3. Evidence added to the record since the June 2007 denial is not cumulative or redundant of the evidence of record at the time of the decision and raises a reasonable possibility of substantiating the Veteran's claim of entitlement to service connection for a bilateral hand disorder. 4. Resolving all reasonable doubt in the Veteran's favor, for the entire appeal period his psychiatric disability resulted in occupational and social impairment with deficiencies in most areas, to include in family relations, as a result of psychiatric symptomatology, to include suicidal ideation, depressed mood, and difficulty adapting to stressful circumstances, including work or a work like setting; however, the frequency, duration, and severity of such symptomatology have not produced more severe manifestations that more nearly approximate total occupational and social impairment. 5. For the entire appeal period, the Veteran's right ankle disability is manifested by no more than moderate limited motion, even in contemplation of functional loss due to symptoms such as pain, weakness, swelling, fatigability, incoordination, or repetitive motion, or as a result of repetitive motion and/or flare-ups, and does not result in ankylosis, malunion of the os calcis or astragalus, or astragalectomy. CONCLUSIONS OF LAW 1. The criteria for withdrawal of appeal as to the issue of whether new and material evidence had been submitted to reopen a previously denied claim of entitlement to service connection for high blood pressure have been met. 38 U.S.C. § 7105 (b)(2), (d)(5) (2012); 38 C.F.R. § 20.204 (2017). 2. The criteria for withdrawal of appeal as to the issue of entitlement to an initial compensable rating for rhinitis have been met. 38 U.S.C. § 7105 (b)(2), (d)(5) (2012); 38 C.F.R. § 20.204 (2017). 3. The June 2007 rating decision that denied the claim of entitlement to service connection for a bilateral hand disorder is final. 38 U.S.C. § 7105(c) (West 2002) [(2012)]; 38 C.F.R. §§ 3.104, 3.156, 20.302, 20.1103 (2006) [(2017)]. 4. New and material evidence has been received to reopen the claim of entitlement to service connection for a bilateral hand disorder. 38 U.S.C. § 5108 (2012); 38 C.F.R. § 3.156 (2017). 5. For the entire appeal period, the criteria for an initial 70 percent rating, but no higher, for a psychiatric disability have been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.126, 4.130, Diagnostic Code (DC) 9411 (2017). 6. The criteria for a rating in excess of 10 percent for a right ankle disability have not been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.10, 4.14, 4.40, 4.45, 4.59, 4.71a, DC 5003-5271 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Preliminary Matters The Board has limited the discussion below to the relevant evidence required to support its findings of fact and conclusions of law, as well as to the specific contentions regarding the case as raised directly by the Veteran and those reasonably raised by the record. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015); Robinson v. Peake, 21 Vet. App. 545, 552 (2008); Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000); Timberlake v. Gober, 14 Vet. App. 122, 128-30 (2000); Schafrath v. Derwinski, 1 Vet. App. 589, 594 (1991). Further, neither the Veteran nor his representative has alleged any deficiency with respect to VA's duties to notify or assist. See Scott, supra (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 duty to assist argument). II. Withdrawal of Claims The Board may dismiss any appeal which fails to allege specific error of fact or law in the determination being appealed. 38 U.S.C. § 7105 (2012). An appeal may be withdrawn as to any or all issues involved in the appeal at any time before the Board promulgates a decision. 38 C.F.R. § 20.204 (2017). Withdrawal may be made by the appellant or by his or her authorized representative. 38 C.F.R. § 20.204. At the January 2018 hearing, the Veteran withdrew his appeal as to the issues of whether new and material evidence had been received in order to reopen a previously denied claim of entitlement to service connection for high blood pressure and entitlement to an initial compensable rating for rhinitis. Hence, there remains no allegation of error of fact or law for appellate consideration with regard to these issues. Accordingly, the Board does not have jurisdiction to review them and they must be dismissed. III. Application to Reopen Previously Denied Claim The RO denied the Veteran's claim for service connection for a bilateral hand disorder in a June 2007 rating decision. The Veteran was advised of the decision and his appellate rights later that month. However, no further communication regarding his claim of entitlement to service connection for a bilateral hand disorder was received until August 2008, when VA received his application to reopen such claim. Further, no new and material evidence was received within one year of the notification of the decision, and relevant service department records have not since been received. Therefore, the June 2007 decision is final. See 38 U.S.C. § 7105(c) (West 2002) [(2012)]; 38 C.F.R. §§ 3.104, 3.156, 20.302, 20.1103 (2006) [(2017)]. Generally, a claim which has been denied in an unappealed Board decision or an unappealed AOJ decision may not thereafter be reopened and allowed. 38 U.S.C. §§ 7104(b), 7105(c). The 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, the Secretary 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). The United States Court of Appeals for Veterans Claims (Court) has held that the determination of whether newly submitted evidence raises a reasonable possibility of substantiating the claim should be considered a component of the question of what is new and material evidence, rather than a separate determination to be made after the Board has found that evidence is new and material. See Shade v. Shinseki, 24 Vet. App. 110 (2010). The Court further held that new evidence would raise a reasonable possibility of substantiating the claim if, when considered with the old evidence, it would at least trigger the Secretary's duty to assist by providing a medical opinion. Id. For the purpose of establishing whether new and material evidence has been submitted, the credibility of the evidence is to be presumed. Justus v. Principi, 3 Vet. App. 510, 513 (1992). The RO denied the Veteran's claim for service connection for a bilateral hand disorder in the June 2007 rating decision on the basis that, while his service treatment records showed a positive Tinel's sign in the right elbow in June 2006 and he reported numbness or tingling of the hands or feet in September 2006, such did not show a confirmed diagnosis of the upper extremities and he failed to report to a VA examination. The evidence received since such decision includes the Veteran's testimony at the January 2018 hearing where he reported that his bilateral hand disorder was related to his in-service work as a mechanic. VA treatment records dated in November 2012 noting a diagnosis of osteoarthritis of the hands have also been associated with the record. As the newly received evidence addresses the nature of the in-service hand injury the Veteran experienced and confirms the presence of a current disability, the Board finds that such newly received evidence is not cumulative or redundant of the evidence of record at the time of the June 2007 decision and raises a reasonable possibility of substantiating the Veteran's claim of entitlement to service connection for a bilateral hand disorder. Accordingly, the Board finds that new and material evidence has been received and the Veteran's claim for service connection for a bilateral hand disorder is reopened. IV. Increased Rating Claims Disability ratings are determined by applying a schedule of ratings that is based on average impairment of earning capacity. Separate diagnostic codes identify the various disabilities. 38 U.S.C. § 1155; 38 C.F.R., Part 4. Each disability must be viewed in relation to its history and the limitation of activity imposed by the disabling condition should be emphasized. 38 C.F.R. § 4.1. Examination reports are to be interpreted in light of the whole recorded history, and each disability must be considered from the point of view of the veteran working or seeking work. 38 C.F.R. § 4.2. All reasonable doubt will be resolved in the claimant's favor. 38 C.F.R. § 4.3. Where there is a question as to which of two disability evaluations shall be applied, the higher evaluation is to be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating is to be assigned. 38 C.F.R. § 4.7. Separate ratings can be assigned for separate periods of time based on the facts found - a practice known as "staged" ratings. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). Staged ratings are appropriate whenever the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings. Id. A. Psychiatric Disability The Veteran contends that a higher rating for his psychiatric disability is warranted due to the severity of his symptoms, to include anger/irritability, nightmares, flashbacks, anxiety, hypervigilance, depression, isolation, impaired impulse control, stress, avoidance, anxiety, and impaired sleep. Such disorder has been evaluated as 30 percent disabling under the criteria of DC 9411, which provides ratings under the General Rating Formula for Mental Disorders at 38 C.F.R. § 4.130. Under such Formula, a 30 percent rating is warranted when there is occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks (although generally functioning satisfactorily, with routine behavior, self-care, and conversation normal) due to such symptoms as: depressed mood, anxiety, suspiciousness, panic attacks (weekly or less often), chronic sleep impairment, mild memory loss (such as forgetting names, directions, recent events). Id. A 50 percent rating is warranted when there is occupational and social impairment with reduced reliability and productivity due to such symptoms as: flattened affect; circumstantial, circumlocutory, or stereotyped speech; panic attacks more than once a week; difficulty understanding complex commands; impairment of short- and long-term memory (e.g., retention of only highly learned material, forgetting to complete tasks); impaired judgment, impaired abstract thinking; disturbances of motivation and mood; difficulty in establishing and maintaining effective work and social relationships. Id. A 70 percent rating is warranted where there is 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; neglect of personal appearance and hygiene; difficulty in adapting to stressful circumstances (including work or a work like setting); inability to establish and maintain effective relationships. Id. A 100 percent rating is warranted when there is total occupational and social impairment, due to such symptoms as: gross impairment in thought processes or communication, persistent delusions or hallucinations, grossly inappropriate behavior, persistent danger of hurting self or others, intermittent inability to perform activities of daily living (including maintenance of minimal personal hygiene), disorientation to time or place; memory loss for names of close relatives, own occupation, or own name. Id. The United States Court of Appeals for the Federal Circuit has held that the evaluation under 38 C.F.R. § 4.130 is "symptom-driven," meaning that "symptomatology should be the fact-finder's primary focus when deciding entitlement to a given disability rating" under that regulation. See Vazquez-Claudio v. Shinseki, 713 F.3d 112, 116-117 (Fed. Cir. 2013). The symptoms listed are not exhaustive, but rather "serve as examples of the type and degree of symptoms, or their effects, that would justify a particular rating." Mauerhan v. Principi, 16 Vet. App. 436, 442 (2002). In the context of determining whether a higher disability evaluation is warranted, the analysis requires considering "not only the presence of certain symptoms, but also that those symptoms have caused occupational and social impairment in most of the referenced areas" - i.e., "the regulation...requires an ultimate factual conclusion as to the Veteran's level of impairment in most areas." Vazquez-Claudio, 713 F.3d at 117-118; 38 C.F.R. § 4.130, DC 9411. Further, when evaluating a mental disorder, the Board must consider the "frequency, severity, and duration of psychiatric symptoms, the length of remissions, and the Veteran's capacity for adjustment during periods of remission," and must also "assign an evaluation based on all the evidence of record that bears on occupational and social impairment rather than solely on the examiner's assessment of the level of disability at the moment of the examination." 38 C.F.R. § 4.126(a). Based on the evidence of record, the Board finds that the Veteran's psychiatric disability resulted in occupational and social impairment with deficiencies in most areas since his August 2008 date of service connection, thus warranting a 70 percent rating for the entirety of the appeal period. Specifically, the evidence indicates that the Veteran's symptoms associated with his psychiatric disability resulted in 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; neglect of personal appearance and hygiene; difficulty in adapting to stressful circumstances (including work or a work like setting); inability to establish and maintain effective relationships. Regarding the Veteran's social functioning, the record indicates that he had several romantic relationships, and was eventually married in 2013. His relationships were hallmarked with strife and seldom lasted very long, except for that with his wife. Testimony provided at the January 2018 hearing suggests that their marriage is actually in danger of failing due to his psychiatric symptoms, to include anger, unpredictability, and lack of impulse control. Aside from his wife and immediate family (children and parents), the Veteran has consistently reported isolating himself and staying home as much as possible. He did participate in a monthly motorcycle club with other veterans, but such activity was described as therapeutic in nature, rather than a social outing. He also reported throughout the appeal period that he experienced discomfort in crowds and, when such was required, he made anticipatory plans with his treatment providers as to how to handle the stress and anxiety. Turning to occupational impairment, at the January 2018 hearing, the Veteran testified to having 11 different jobs during the period on appeal, none of them for more than one year. In this regard, he noted having conflict with his co-workers and with working with customers. Indeed, at the November 2013 VA examination, the Veteran reported having issues with a co-worker and had been written up for lack of performance and, in August 2012, he noted having been sent home from work due to his anger. The Board observes that, during the appeal period, the Veteran's PTSD symptoms included irritability, anxiety, avoidance, isolation, depression, tearfulness, impaired sleep, hypervigilance, suicidal ideation, and anger and, consequently, it is not reasonable to assume that these symptoms would not markedly interfere with employment, even in a position that did not involve significant interaction with others. Further, while acknowledging that VA must engage in a holistic analysis in assessing the severity, frequency, and duration of the signs and symptoms of the Veteran's service-connected psychiatric disability, the Court recently indicated that suicidal ideation alone may cause occupational and social impairment with deficiencies in most areas. See Bankhead v. Shulkin, 29 Vet. App. 10 (2017) (the language of the regulation indicates that the presence of suicidal ideation alone, that is, a veteran's thoughts of his or her own death or thoughts of engaging in suicide-related behavior, may cause occupational and social impairment with deficiencies in most areas). Here, the Veteran endorsed suicidal ideation during the November 2013 VA examination and at the January 2018 hearing. While he routinely denied suicidal ideation on direct questioning while receiving treatment, the available records indicate the Veteran persistently engaged in emotional numbing and avoidance of his emotions through the use of controlled substances. In addition to the foregoing, the Veteran and his wife both testified as to his suicidal ideation throughout the appeal period. Thus, resolving all reasonable doubt in the Veteran's favor, the Board finds that the criteria for a 70 percent rating for PTSD have been for the entire appeal period. Nevertheless, the Board finds that the criteria for a 100 percent rating under the General Rating Formula are not met at any point during the appeal period. In this regard, the evidence does not show that the Veteran had total social and occupational impairment due to such symptoms as: gross impairment in thought processes or communication, persistent delusions or hallucinations, grossly inappropriate behavior, persistent danger of hurting self or others, intermittent inability to perform activities of daily living (including maintenance of minimal personal hygiene), disorientation to time or place; memory loss for names of close relatives, own occupation, or own name. Indeed, there is no indication in the record that the Veteran experienced any symptomatology associated with a 100 percent rating. More importantly, during the appeal period, he had some form of relationship with his wife and he maintained sporadic employment. As such, he was not completely isolated or totally socially or occupationally impaired. Ultimately, the most probative evidence of record indicates the Veteran's symptoms did not result in total social and occupational impairment. The Board further notes that the evidence of record reflects that the Veteran has additional symptomatology that is not enumerated in the rating schedule, including feelings of anger and stress. See Mauerhan, supra. However, the Board finds that such symptoms do not more nearly approximate a rating in excess of 70 percent under the General Rating Formula, as they are not of such a duration, severity, or frequency to result in total occupational and social impairment. Ultimately, the Board finds that the Veteran's PTSD does not warrant a rating in excess of 70 percent. It is important to note that the VA examiners found that the Veteran's PTSD symptoms are commensurate with a lower 30 percent rating. However, the record also indicates that the Veteran is a stoic and private person who has difficulty opening up regarding his symptomatology. Indeed, as noted above, VA clinicians have routinely described the Veteran's emotional state as numb and that he engaged in extreme avoidance. Overall, it is clear to the Board that the severity of the Veteran's symptoms is not always reflected in the available treatment records given his difficulty in discussing them. Nevertheless, there is no indication in either the lay or medical evidence that the Veteran was concealing symptoms reflective of a 100 percent rating. Indeed, such would be difficult to do, given the severe and identifiable nature of such symptoms, such as the presence of delusions, hallucinations, and inability to remember one's own name. Therefore, the Board finds that an initial rating of 70 percent, but no higher, is warranted for the Veteran's psychiatric disability. B. Right Ankle Disability The Veteran contends that an initial rating in excess of 10 percent is warranted for his right ankle disability due to the instability he subjectively experiences in that joint. The basis of disability evaluation is the ability of the body as a whole, or of the psyche, or of a system or organ of the body to function under the ordinary conditions of daily life including employment. 38 C.F.R. § 4.10. Disability of the musculoskeletal system is primarily the inability, due to damage or infection in parts of the system, to perform the normal working movements of the body with normal excursion, strength, speed, coordination and endurance. Functional loss may be due to the absence or deformity of structures or other pathology, or it may be due to pain, supported by adequate pathology and evidenced by the visible behavior in undertaking the motion. Weakness is as important as limitation of motion, and a part that becomes painful on use must be regarded as seriously disabled. 38 C.F.R. § 4.40. In Mitchell v. Shinseki, 25 Vet. App. 32, 44 (2011), the Court held that, although pain may cause a functional loss, "pain itself does not rise to the level of functional loss as contemplated by VA regulations applicable to the musculoskeletal system." Rather, pain may result in functional loss, but only if it limits the ability "to perform the normal working movements of the body with normal excursion, strength, speed, coordination, or endurance." Id., quoting 38 C.F.R. § 4.40. With respect to joints, in particular, the factors of disability reside in reductions of normal excursion of movements in different planes. Inquiry will be directed to more or less than normal movement, weakened movement, excess fatigability, incoordination, pain on movement, swelling, deformity or atrophy of disuse. 38 C.F.R. § 4.45; DeLuca v. Brown, 8 Vet. App. 202 (1995). 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, even in the absence of arthritis. 38 C.F.R. § 4.59; Burton v. Shinseki, 25 Vet. App. 1, 5 (2011). In this regard, 38 C.F.R. § 4.59 requires that "[t]he joints involved should be tested for pain on both active and passive motion, in weight-bearing and nonweight-bearing and, if possible, with the range of the opposite undamaged joint." Correia v. McDonald, 28 Vet. App. 158 (2016). In the instant case, the record reflects that the Veteran's ankle disability was examined by VA in April 2017. Upon a review of the VA examination report, the Board notes that there was no evidence of pain on weight-bearing. Importantly, range of motion (ROM) testing of the Veteran's left ankle was also conducted during the examination. Further, while the examination does not reflect passive ROM testing, the evidence does not suggest, and the Veteran has not argued, that his range of ankle motion would be further limited in such capacity. Moreover, as a general matter of course, active ROM testing usually results in further limitation than passive ROM testing. See Massie v. Shinseki, 25 Vet.App. 123, 131 (2011); Robinson, supra; Scott, supra. Moreover, the Veteran denied experiencing right ankle flare-ups at the time of the examination and the examiner otherwise discussed the impact of functional loss. Sharp v. Shulkin, 29 Vet. App. 26, 33 (2017). Further, 38 C.F.R. § 4.59 is applicable to the evaluation of musculoskeletal disabilities involving actually painful, unstable or malaligned joints or periarticular regions, regardless of whether the DC under which the disability is evaluated is predicated on range of motion measurements. Southall-Norman v. McDonald, 28 Vet. App. 346 (2016). The Veteran has been assigned an initial 10 percent rating for his right ankle disability under 38 C.F.R. § 4.71a, DC 5271. Under DC 5271, moderate limitation of motion of an ankle warrants a 10 percent rating; while marked limitation of motion of an ankle warrants a 20 percent rating. For reference purposes, the normal ranges of motion in the ankle include 20 degrees of dorsiflexion and 45 degrees of plantar flexion. See 38 C.F.R. § 4.71, Plate II. Also included within 38 C.F.R. § 4.71a are multiple DCs that evaluate impairment resulting from ankle disorders, including DC 5270 (ankylosis), DC 5272 (ankylosis of the subastragalar or tarsal joint), DC 5273 (malunion of the os calcis or astragalus), and DC 5274 (astragalectomy). After reviewing the evidence of record, the Board finds that an initial rating in excess of 10 percent for the Veteran's right ankle arthritis is not warranted. As an initial matter, ankylosis is expressly not shown by the evidence as noted by the 2017 VA examiner. Further, there is no evidence of malunion of the os calcis or astragalus, or astragalectomy. Thus, the criteria of DCs 5270, 5272, 5273, and 5274 do not apply. Additionally, a higher 20 percent rating under 5271 is not warranted as there is no evidence of limitation of motion or functional loss that would equate to marked limitation of motion of the ankle. See 38 C.F.R. § 4.71a, DC 5271. Specifically, while the Veteran has reported experiencing pain on motion and limitations in prolonged walking or standing, the RO has already assigned him a 10 percent rating based on his painful motion, despite the fact that the Veteran had full range of motion of the right ankle at the time of the 2017 examination. Indeed, he was not noted to have "moderate" loss of motion as identified in VA's Adjudication Procedures Manual (Manual) during the examination. In this regard, the Manual states that moderate limitation of ankle motion is present when there is less than 15 degrees dorsiflexion or less than 30 degrees plantar flexion, while marked limitation of motion is demonstrated when there is less than 5 degrees dorsiflexion or less than 10 degrees plantar flexion. VBA Manual M21-1, III.iv.4.A.3.k. In any case, the initially assigned 10 percent rating would contemplate up to moderate limitation of motion. Finally, a higher 20 percent rating is not warranted as the right ankle does not have less than 5 degrees dorsiflexion or less than 10 degrees plantar flexion at any point during the appeal. Id. At the January 2018 hearing, the Veteran's representative argued that the Veteran should be assigned a separate rating for right ankle instability. In this regard, he noted that VA has determined that separate ratings can be assigned for limitation of motion of the knee as well as instability of the knee without violating the rule against pyramiding. 38 C.F.R. § 4.14. The Board finds, however, that two ratings for the right ankle are not warranted in this case. Initially, it is worth noting that VA's Office of General Counsel made a specific determination regarding the dual ratings available for the knee and has made no such finding in relation to the ankle. More importantly, objective testing did not reveal instability in the right ankle; in fact, all testing for such was negative. Furthermore, the Veteran has not been diagnosed with right ankle arthritis and demonstrated a full ROM on examination. Thus, the Board finds that awarding a separate rating for subjective symptoms would constitute impermissible pyramiding as the Veteran's subjective symptoms such as pain and instability are contemplated by the currently assigned 10 percent rating. In sum, as the evidence does not demonstrate marked limitation of motion, ankylosis, malunion of the os calcis or astragalus, or astragalectomy at any point during the appeal period, the criteria for a higher initial rating for the Veteran's right ankle disability is not warranted. C. Other Considerations The Board has carefully reviewed and considered the Veteran and his wife's statements regarding the severity of his service-connected disabilities. The Board also acknowledges that the Veteran, in advancing this appeal, believes that said disabilities have been more severe than the assigned disability ratings reflect. Moreover, the Veteran and his wife are competent to report his observable symptoms. Layno v. Brown, 6 Vet. App. 465 (1994). In this case, the Board has awarded an increased rating for the Veteran's psychiatric disability based in part on the lay evidence of record. Nevertheless, the competent medical evidence offering detailed specific specialized determinations pertinent to the rating criteria are the most probative evidence with regard to evaluating the pertinent symptoms for the disabilities on appeal. Thus, the lay assessments as to the severity of the symptoms and their relationship to the rating criteria are deemed less probative than the opinions of medical practitioners who have specialized knowledge and skill in excess of the Veteran and his wife. The Board has considered whether staged ratings under Fenderson, supra, and Hart, supra, are appropriate for the Veteran's service-connected disabilities; however, the Board finds that his symptomatology has been stable throughout the appeal. Therefore, assigning staged ratings is not warranted. The Veteran has not raised any other issues, nor have any other issues been reasonably raised by the record. Doucette v. Shulkin, 28 Vet. App. 366 (2017), (confirming that the Board is not required to address issues unless they are specifically raised by the claimant or reasonably raised by the evidence of record). Ultimately, the Board finds that a 70 percent rating, but no higher, for the Veteran's psychiatric disability is warranted for the entire appeal period; however, the preponderance of the evidence is against the remaining claims for increased ratings. Therefore, the benefit of the doubt doctrine is not applicable except as has been applied to the rating assigned herein, and the Veteran's claims for higher ratings are otherwise denied. 38 U.S.C. § 5107; 38 C.F.R. §§ 4.3, 4.7. ORDER The appeal as to the issue of whether new and material evidence had been received in order to reopen a previously denied claim of entitlement to service connection for high blood pressure is dismissed. The appeal as to the issue of entitlement to an initial compensable rating for rhinitis is dismissed. New and material evidence having been received, the claim of entitlement to service connection for a bilateral hand disorder is reopened; the appeal is granted to this extent only. An initial 70 percent rating, but no higher, for a psychiatric disability is granted, subject to the laws and regulations governing the payment of monetary awards. An initial rating in excess of 10 percent for a right ankle disability is denied. REMAND Although the Board regrets the additional delay, a remand is necessary to ensure that due process is followed and that there is a complete record upon which to decide the Veteran's remaining claims so that he is afforded every possible consideration. See 38 U.S.C. § 5103A; 38 C.F.R. § 3.159. Bilateral Hand and Foot Disorders Regarding the Veteran's claim for service connection for bilateral hand and foot disorders, his service treatment records indicate he had positive Tinel's sign in the right elbow in June 2006 and he reported experiencing numbness and tingling of his hands and feet in September 2006. VA treatment records reflect that the Veteran has been diagnosed with osteoarthritis of the hands (November 2012) and bilateral hallux valgus with bunions (November 2016). Accordingly, the Board finds that the low threshold of the McLendon standard has been met in this instance, and that the Veteran should be afforded a VA examination and opinion prior to adjudication of his claim. See McLendon v. Nicholson, 20 Vet. App. 79, 81 (2006). Regarding the Veteran's claim for service connection for a bilateral foot disorder, the Board notes that a July 2001 record from the Junior ROTC indicates the Veteran was suffering from painful pes planus at that time. Nevertheless, the Veteran's 2002 entrance examination is not of record, and, as such, the presumption of soundness has attached, which operates to shield the Veteran from any finding that an unnoted foot disorder preexisted service. See Gilbert v. Shinseki, 26 Vet. App. 48 (2012); see also 38 U.S.C. § 1111; 38 C.F.R. § 3.304. Importantly, the presumption has not been rebutted as there is no clear and unmistakable evidence that the Veteran's bilateral foot disorder pre-existed service and was not aggravated by service. Wagner v. Principi, 370 F.3d 1089, 1096 (Fed. Cir. 2004); Bagby v. Derwinski, 1 Vet. App. 225, 227 (1991). As such, the Board finds that the Veteran's feet are presumed to have been normal at the time of his entrance into service. Finally, it should be noted that, to the extent the Veteran has been diagnosed with a foot injury, such can also be related to his period of inactive duty for training (INACDUTRA). 38 U.S.C. § 101 (24); 38 C.F.R. § 3.6 (a). Thus, the opinion obtained on remand should specifically address whether pes planus is an injury that is related to INACDUTRA service. Sinusitis At the January 2018 Board hearing, the Veteran reported receiving treatment for his sinusitis at Care Now facilities, at which time he was prescribed antibiotics. Such records are relevant to the Veteran's claim for an increased rating, but have not been associated with the record on appeal. As such, remand is required to attempt to obtain such records. Back Disability and LLE Radiculopathy The Veteran was last afforded an examination for his service-connected back disability in November 2013. Subsequently, during his January 2018 hearing, the Veteran reported that the symptoms of his back disability had worsened since that examination. Given the fact that there are no relevant contemporaneous medical records to document the current severity of the Veteran's back, and that it has been over four years since the Veteran was last examined, the Board finds that remand for a new VA examination is warranted. Caffrey v. Brown, 6 Vet. App. 377 (1994); Snuffer v. Gober, 10 Vet. App. 400 (1997). Additionally, the 2010 and 2013 examination reports do not contain all of the findings as required by the Court. Specifically, in Correia, supra, the Court found that the final sentence of 38 C.F.R. § 4.59 requires that VA examinations include joint testing for pain on both active and passive motion, in weight-bearing and nonweight-bearing and, if possible, with range of motion measurements of the opposite undamaged joint. Id. In this case, the examinations of record do not include ROM testing on active and passive motion and in weight-bearing and nonweight-bearing. Therefore, such testing should be accomplished in connection with the examination conducted on remand. Additionally, the examiner will be requested to offer a retrospective medical opinion as to the findings included in the prior examinations conducted during the appeal period. Further, the Court recently addressed 38 C.F.R. § 4.40, which states that a VA examiner must "express an opinion on whether pain could significantly limit functional ability" and the examiner's determination in such regard "should, if feasible, be portrayed in terms of the degree of additional range-of-motion loss due to pain on use or during flare-ups." In this regard, the Court concluded that, when a VA examiner is asked to provide an opinion as to additional functional loss during flare-ups of a musculoskeletal disability, the examiner must obtain information from the Veteran regarding the severity, frequency, duration, characteristics, and/or functional loss related to such flare-ups. The Court further concluded that, if the examination was not being conducted during a flare-up, the examiner should provide an opinion based on estimates derived from the information above as to the additional loss of range of motion that may be present during a flare-up. Additionally, if the examiner cannot provide an opinion as to additional loss of motion during a flare-up without resorting to mere speculation, the examiner must make clear that s/he has considered all procurable data (i.e., the information regarding frequency, duration, characteristics, severity, and/or functional loss related to such flare-ups elicited from the Veteran), but any member of the medical community at large could not provide such an opinion without resorting to speculation. Sharp, supra. In this case, the Veteran endorsed flare-ups during the 2010 and 2013 examinations, but the 2013 examiner did not provide an opinion as to the additional loss of range of motion during a flare and it is unclear what the 2010 examiner meant by his determination that the flare-ups would cause "additional limitation of motion or functional impairment...var[ying] from 50% to 100%.". Therefore, the VA examination conducted on remand should address the functional limitations associated with flare-ups of the Veteran's back. The Board finds that the issue of the propriety of the separate 10 percent rating for LLE radiculopathy is inextricably intertwined with the increased rating claim remanded herein as the ordered development will likely provide evidence as to the current severity of the Veteran's radiculopathy. 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); Harris v. Derwinski, 1 Vet. App. 180, 183 (1991). Accordingly, the case is REMANDED for the following actions: 1. After obtaining any necessary authorization form from the Veteran, obtain records pertinent to his sinusitis from Care Now. Make at least two (2) attempts to obtain records from any identified sources. If any such records are unavailable, inform the Veteran and afford him an opportunity to submit any copies in his possession. 2. The Veteran should be afforded an appropriate VA examination to determine the nature and etiology of his bilateral hand and foot disorder(s). All indicated tests and studies should be undertaken. The claims file, including a complete copy of this remand, must be made available for review of the Veteran's pertinent medical history. Following a review of the record and examination of the Veteran, the examiner should respond to the following: (a) Identify all bilateral hand and foot disorders found to be present at any point pertinent to the Veteran's August 2008 and January 2017 claims, respectively, even if such have since resolved. (b) For each diagnosed bilateral hand disorder, is it at least as likely as not (i.e., 50 percent or greater probability) that such disorder is related to the Veteran's military service, to include his work as a mechanic, his June 2006 notation of a positive Tinel's sign in the right elbow, his July 2006 report of smashing his left pinky with a hammer, or his September 2006 report of experiencing numbness and tingling in his hands? (c) For each currently diagnosed bilateral foot disorder other than pes planus, the examiner should render an opinion as to whether it is at least as likely as not (i.e., there is a 50 percent or greater probability) that such disorder is related to any period of the Veteran's military service, to include an injury incurred during a period of INACDUTRA or his period of active duty service, to include his September 2006 report of experiencing numbness and tingling in his feet. (d) If pes planus is diagnosed, the examiner should state whether such condition constitutes a congenital or developmental defect or a disease (per VAOPGCPREC 82-90, in general, a congenital abnormality that is subject to improvement or deterioration is considered a disease). In this regard, it is essential to make a distinction, if possible, between bilateral flatfoot as a congenital versus an acquired condition. For VA purposes, the congenital condition presents with depression of the arch, but no evidence of abnormal callosities, areas of pressure, strain or demonstrable tenderness; the acquired condition is manifest by anatomical changes, as compared to normal, in the relationship of the foot and leg, particularly to the inward rotation of the superior portion of the os calcis, medial deviation of the insertion of the Achilles tendon, the medial tilting of the upper border of the astragalus. (i) If the Veteran's diagnosed pes planus is considered a defect, was there additional disability due to disease or injury superimposed upon such defect during any period of service? If so, please identify the additional disability. (ii) If the examiner finds that the Veteran's diagnosed pes planus is a disease, was it aggravated beyond the natural progression during any period of military service? Aggravation indicates a permanent worsening of the underlying condition as compared to a temporary increase in symptoms. (iii) If pes planus is not a congenital or developmental defect or disease, the examiner is asked to opine as to whether the disorder is at least as likely as not (i.e. 50 percent or greater probability) related to the Veteran's service. The examiner should specifically advise whether any currently diagnosed pes planus is considered an injury incurred during his INACDUTRA service. In offering any opinion, the examiner must consider the full record, to include the Veteran's lay statements. The rationale for any opinion offered should be provided. 3. Afford the Veteran an appropriate VA examination to determine the nature and severity of his back disability and LLE radiculopathy. The record, to include a complete copy of this remand, must be made available to the examiner, and the examination report should include discussion of the Veteran's documented medical history and assertions. All indicated tests and studies should be accomplished (with all findings made available to the requesting examiner prior to the completion of his or her report), and all clinical findings should be reported in detail. The examiner must provide all examination findings, along with a complete rationale for the conclusions reached. The examiner should identify the current nature and severity of all manifestations of the Veteran's back disability. The examiner should record the range of motion of the back observed on clinical evaluation in terms of degrees. If there is evidence of pain on motion, the examiner should indicate the degree of range of motion at which such pain begins, as well as whether such pain on movement results in any loss of range of motion. The examiner should record the results of range of motion testing for pain on both active and passive motion, on weight-bearing and nonweight-bearing. If the examiner is unable to conduct the required testing or concludes that the required testing is not necessary in this case he or she should clearly explain why that is so. The examiner is requested to review the VA examinations containing range of motion findings pertinent to the Veteran's back disability conducted in 2010 and 2013. In this regard, the examiner is requested to offer an opinion as to the range of motion findings for pain on both active and passive motion, on weight-bearing and nonweight-bearing. If the examiner is unable to do so, he or she should explain why. It is also imperative that the examiner comment on the functional limitations caused by flare-ups and repetitive use. In this regard, the examiner should indicate whether, and to what extent, the Veteran's range of motion is additionally limited during flare-ups or on repetitive use, expressed, if possible, in terms of degrees, or explain why such details cannot be feasibly provided. With specific regard to flare-ups, if the Veteran endorses experiencing them, the examiner must obtain information regarding the frequency, duration, characteristics, severity, and/or functional loss related to such flare-ups. Then, if the examination is not being conducted during a flare-up, the examiner should provide an opinion based on estimates derived from the information above as to the additional loss of range of motion that may be present during a flare-up. If the examiner cannot provide an opinion as to additional loss of motion during a flare-up without resorting to mere speculation, the examiner must make clear that s/he has considered all procurable data (i.e., the information regarding frequency, duration, characteristics, severity, and/or functional loss related to such flare-ups elicited from the Veteran), but any member of the medical community at large could not provide such an opinion without resorting to speculation. The examiner should clearly determine the severity of the Veteran's LLE radiculopathy and report whether he has any other associated neurological impairment, to specifically include right lower extremity radiculopathy, bladder incontinence, bowel incontinence, and/or erectile dysfunction, and comment on the severity of any such disorders, if any. The examiner should also state whether the Veteran has intervertebral disc syndrome and, if so, the total duration of any incapacitating episodes over the past 12 months. The examiner is advised that an "incapacitating episode" is defined as a period of acute signs and symptoms due to intervertebral disc syndrome that requires bed rest prescribed by a physician and treatment by a physician. The examiner also should comment upon the functional impairment resulting from the Veteran's back disability and associated LLE radiculopathy. All opinions expressed should be accompanied by supporting rationale. 4. After completing the above, and any other development as may be indicated by any response received as a consequence of the actions taken in the preceding paragraphs, the Veteran's claims should be readjudicated based on the entirety of the evidence. If the claims remain denied, the Veteran and his representative should be issued a supplemental statement of the case. An appropriate period of time should be allowed for response. The Veteran has the right to submit additional evidence and argument on the matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). These claims must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C. §§ 5109B, 7112 (2012). ______________________________________________ A. JAEGER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs