Citation Nr: 18123710 Decision Date: 08/02/18 Archive Date: 08/02/18 DOCKET NO. 14-43 346 DATE: August 2, 2018 ORDER Entitlement to service connection for mood disorder, not otherwise specified (NOS) is dismissed. From November 18, 2014 and prior to April 11, 2016, entitlement to a 10 percent rating, but no higher, for gastroesophageal reflux disease (GERD) is granted. From April 11, 2016, entitlement to a 30 percent disability rating, but no higher for GERD is granted. From April 26, 2012, entitlement to a 50 percent rating, but no higher rating for anxiety neurosis is granted. REMANDED Entitlement to service connection for obstructive sleep apnea is remanded. Entitlement to service connection for diabetes mellitus is remanded. Entitlement to service connection for a right knee disability is remanded. Entitlement to service connection for vertigo is remanded. Entitlement to service connection for erectile dysfunction is remanded. Entitlement to an initial rating in excess of 10 percent for a right ankle disability is remanded. Entitlement to an initial disability rating in excess of 10 percent for a lumbar spine disorder is remanded. Entitlement to an initial rating in excess of 10 percent for right lower extremity radiculopathy is remanded. Entitlement to an initial rating in excess of 10 percent for left lower extremity radiculopathy is remanded. Entitlement to a total disability rating based on individual unemployability (TDIU) from April 26, 2012 and prior to January 25, 2016 is remanded. FINDINGS OF FACT 1. In sworn hearing testimony provided in March 2015, prior to the promulgation of a decision in the appeal, the Veteran stated that he wished to withdraw his appeal as to the claim of entitlement to service connection for mood disorder, NOS. 2. For the appeal period from November 18, 2014 and prior to April 11, 2016, the Veteran’s GERD has been manifested by pyrosis and reflux. 3. For the appeal period from April 11, 2016, the Veteran’s GERD had been manifested by persistently recurrent epigastric distress, pyrosis, reflux, regurgitation, substernal pain, and four or more episodes of nausea and vomiting per year lasting less than one day. 4. During the pendency of the entire period under consideration (from April 26, 2012), the Veteran’s anxiety neurosis is manifested by occupational and social impairment with reduced reliability and productivity. CONCLUSIONS OF LAW 1. The criteria for withdrawal of the substantive appeal by the appellant have been met as to the claim of entitlement to service connection for mood disorder, NOS on the record in hearing testimony. 38 U.S.C. § 7105(d)(5) (2012); 38 C.F.R. § 20.204 (2018). 2. From November 18, 2014 and prior to April 11, 2016, the criteria for an initial 10 percent rating for GERD, and no higher, are met. 38 U.S.C. § 1155 (West 2012); 38 C.F.R. § 4.114, Diagnostic Code 7346 (2018). 3. From April 11, 2016, the criteria for an initial 30 percent rating for GERD, and no higher, are met. 38 U.S.C. § 1155 (West 2012); 38 C.F.R. § 4.114, Diagnostic Code 7346 (2018). 4. From April 26, 2012, the criteria a 50 percent disability rating for anxiety neurosis are met. 38 U.S.C. § 1155 (2012); 38 C.F.R. § 4.130, Diagnostic Code 9400 (2018). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from August 1972 to August 1974 and from January 1994 to June 1994 with additional service in the Unites States Army Reserve. The Veteran testified before the undersigned Veterans Law Judge during a March 2015 hearing. Regarding the issue for entitlement to service connection for diabetes mellitus, in May 2018, the Veteran canceled his request for a hearing before a Decision Review Officer (DRO), and instead requested an informal conference. A May 2018 DRO conference report has been associated with the claims file. This matter is on appeal from multiple rating decisions. In a rating decision issued in March 2013, the RO granted service connection for right ankle, lumbar spine, radiculopathy of the bilateral lower extremities, and anxiety neurosis disabilities. Except for the noncompensable rating assigned for anxiety neurosis, the RO assigned each disability a 10 percent rating, effective April 26, 2012. The RO also denied service connection for a right knee condition, vertigo, and a mood disorder. In an October 2014 rating decision, the RO continued to rate the right ankle disability as 10 percent disabling. In a February 2015 rating decision, the RO granted service connection for GERD and assigned a noncompensable disability rating effective November 18, 2014 and denied service connection for erectile dysfunction. In an April 2016 rating decision, the RO increased the rating assigned for GERD to 10 percent disabling, effective April 11, 2016. In a September 2016 rating decision, the RO denied entitlement to service connection for obstructive sleep apnea and entitlement to a TDIU. In a February 2017 rating decision, the RO granted entitlement to a TDIU, effective January 25, 2016. In a May 2017 rating decision, the RO denied entitlement to service connection for diabetes mellitus. Service Connection Entitlement to service connection for mood disorder, NOS In hearing testimony provided in March 2015 and recorded in the written transcript of that hearing, prior to the promulgation of a decision in the appeal, the Veteran expressed his desire to withdraw his appeal for the issue concerning service connection for mood disorder, NOS, which had been certified to the Board in January 2015. See March 2013 notification letter, March 2013 notice of disagreement, November 2014 statement of the case, November 2014 Form 9, and January 2015 Form 8. VA regulations provide for the withdrawal of an appeal to the Board by the submission of a written request at any time before the Board issues a final decision on the merits. See 38 C.F.R. § 20.204 (2018). After an appeal is transferred to the Board, an appeal withdrawal is effective the date it is received by the Board. Id. Appeal withdrawals must be in writing and must include the name of the Veteran, the Veteran’s claim number, and a statement that the appeal is withdrawn. Id. The Veteran’s testimony containing his request to withdraw the issue on appeal concerning service connection for mood disorder, NOS has been recorded in the written transcript. The Board has not yet issued a decision concerning this claim, thus the criteria are met for withdrawal of the claim. When a pending appeal is withdrawn, there is no longer an allegation of factual or legal error with respect to the issue that had been previously appealed. In such an instance, dismissal of the pending appeal is appropriate. See 38 U.S.C. § 7105 (d) (2012). Accordingly, further action by the Board on this issue is not appropriate and the appeal should be dismissed. Id. Increased Rating 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 the 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 (2015). In evaluating a disability, the Board considers the current examination reports in light of the whole recorded history to ensure that the current rating accurately reflects the severity of the condition. The Board has a duty to acknowledge and consider all regulations that are potentially applicable. Schafrath v. Derwinski, 1 Vet. App. 589 (1991). The medical as well as industrial history is to be considered, and a full description of the effects of the disability upon ordinary activity is also required. 38 C.F.R. §§ 4.1, 4.2, 4.10. Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. See 38 C.F.R. § 4.7. Reasonable doubt regarding the degree of disability will be resolved in a veteran’s favor. 38 C.F.R. § 4.3. Staged ratings are appropriate when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings. See Hart v. Mansfield, 21 Vet. App. 505 (2007); see also Fenderson v. West, 12 Vet. App. 119 (1999). 1. Entitlement to an increased initial rating for GERD, currently rated as noncompensable from November 18, 2014 and prior to April 11, 2016, and 10 percent disabling from April 11, 2016. The Veteran contends that symptoms of his GERD warrant a disability rating higher than his currently assigned ratings. The RO evaluated the Veteran’s GERD pursuant to Diagnostic Codes 7399-7346. GERD is not specifically listed in the rating schedule but is evaluated as analogous to hiatal hernia. See 38 C.F.R. § 4.20 (when an unlisted condition is encountered it will be permissible to rate under a closely related disease or injury in which not only the functions affected, but the anatomical localization and symptomatology are closely analogous). Under Diagnostic Code 7346, symptoms of pain, vomiting, material weight loss and hematemesis or melena with moderate anemia; or other symptom combinations productive of severe impairment of health (60 percent); persistently recurrent epigastric distress with dysphagia, pyrosis, and regurgitation, accompanied by substernal or arm or shoulder pain, productive of considerable impairment of health (30 percent); and with two or more of the symptoms for the 30 percent evaluation of less severity (10 percent). Based on review of the evidence of record, the Board finds that the Veteran’s main complaints as to his diagnosed GERD appear to pertain to reflux symptoms and on review, the predominant disability picture is reflected under Diagnostic Code 7346. A. From November 18, 2014 and prior to April 11, 2016 VA treatment records reflect ongoing treatment for GERD. On a February 2015 VA esophageal Conditions DBQ, the Veteran reported experiencing stomach pain and acid reflux for many years and had been using omeprazole on a continuous basis to treat his GERD. He exhibited pyrosis and reflux. He did not have an esophageal stricture, spasm of esophagus (cardiospasm or achalasia), an acquired diverticulum of the esophagus, or other related pertinent physical findings, complications, conditions, signe or symptoms. The Board initially finds that for the appeal period from November 18, 2014 to April 11, 2016, a 10 percent disability rating is warranted for the Veteran’s GERD. As discussed above, a 10 percent rating is warranted under Diagnostic Code 7346 when 2 or more of the symptoms for the 30 percent evaluation of less severity are demonstrated. Pertinently, prior to April 11, 2016, the Veteran reported symptoms associated with his service-connected disability to include stomach pains, pyrosis and reflux. The Veteran is competent to report these symptoms. See Layno v. Brown, 6 Vet. App. 465 (1994) (a Veteran is competent to report on that of which he has personal knowledge). As such, considering the overall evidence the Board will concede that prior to April 11, 2016, the Veteran had epigastric distress with pyrosis and reflux. Moreover, although the record demonstrates that the Veteran continuously took medication to treat his condition, the Board acknowledges that the Court has held that, where the effects of medication are not specifically contemplated by the rating criteria, a higher rating may not be denied simply because symptoms are relieved by medication. Jones v. Shinseki, 26 Vet. App. 56, 61-63 (2012). In light of the foregoing, without consideration of the effects of medication on the Veteran’s disability, the Board will resolve the benefit of the doubt in the Veteran’s favor and find that prior to April 11, 2016, a 10 percent evaluation is warranted for the GERD. The Board further finds that a disability rating in excess of 10 percent is not warranted for the appeal period from November 18, 2014 and prior to April 11, 2016. In this regard, as discussed above, a 30 percent rating is warranted when the evidence shows persistently recurrent epigastric distress with dysphagia, pyrosis, and regurgitation, accompanied by substernal or arm or shoulder pain, productive of considerable impairment of health. Crucially, the only symptoms noted by the Veteran during the period under consideration involve epigastric distress with stomach pains, pyrosis, and reflux. As such, the Board finds that a 30 percent disability rating for the Veteran’s GERD is not warranted. The Board further finds that a 60 percent rating is not warranted under Diagnostic Code 7346 as the evidence during the period under consideration does not show symptoms of pain, vomiting, material weight loss and hematemesis or melena with moderate anemia; or other symptom combinations productive of severe impairment of health. B. From April 11, 2016 VA treatment records show ongoing treatment for the Veteran’s GERD. On April 2016 VA esophageal conditions DBQ, the Veteran reported that he experienced inflammation in the epigastric area after having meals. He continuously took medication, omeprazole 20 mg, for treatment. He reported that one tab of omeprazole did not improve his condition and that he believed that he would need more pills a day. His symptoms were comprised of persistently recurrent epigastric distress, pyrosis, reflux, regurgitation, substernal pain, and four or more episodes of nausea and vomiting per year lasting less than one day. He did not have an esophageal stricture, spasm of esophagus (cardiospasm or achalasia), an acquired diverticulum of the esophagus, or other related pertinent physical findings, complications, conditions, signs or symptoms. Laboratory findings from February 2016 did not reveal other significant diagnostic test findings and/or results. For the appeal period from April 11, 2016, the Veteran’s GERD has been manifested by persistently recurrent epigastric distress, pyrosis, reflux, regurgitation, substernal pain, and four or more episodes of nausea and vomiting per year lasting less than one day. It is not clear, given the evidence, if the Veteran’s GERD symptoms were productive of considerable impairment of health; however, affording the Veteran any benefit of the doubt, the Board finds that a 30 percent rating, and no more, under 38 C.F.R. § 4.114, DC 7346 is appropriate as the preponderance of the evidence shows that the disability is not productive of symptoms of pain, vomiting, material weight loss and hematemesis or melena with moderate anemia; or other symptom combinations productive of severe impairment of health. 2. Entitlement to a compensable rating for anxiety neurosis. The Veteran contends that his symptoms meet the criteria for a higher rating for the service-connected anxiety neurosis. The Veteran’s anxiety neurosis is rated under 38 C.F.R. § 4.130, Diagnostic Code 9400 (generalized anxiety disorder), which is rated under the General Rating Formula for Mental Disorders. Under that formula, a 100 percent rating requires 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; or memory loss for names of close relatives, own occupation, or own name. A 70 percent rating requires 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 circumstances (including work or a work-like setting); or inability to establish and maintain effective relationships. A 50 percent rating requires 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 in 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; or difficulty in establishing effective work and social relationships. A 30 percent rating requires occupational and social impairment with an occasional decrease in work efficiency and intermittent periods of an 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; and mild memory loss (such as forgetting names, directions, or recent events). In applying the above criteria, when it is not possible to separate the effects of the service-connected disability from a nonservice-connected disability, such signs and symptoms shall be attributed to the service-connected disability. See 38 C.F.R. § 3.102; Mittleider v. West, 11 Vet. App. 181 (1998) citing Mitchem v. Brown, 9 Vet. App. 136, 140 (1996) (the Board is precluded from differentiating between symptomatology attributed to a nonservice-connected disability and a service-connected disability in the absence of medical evidence which does so). The Veteran was afforded a VA mental disorder DBQ in November 2012. The Veteran was diagnosed with an unspecified mood disorder, in which the examiner determined that the symptoms were not severe enough to interfere with occupational and social functioning or to require medication. The Veteran described the relationship with his three siblings as “good” and relationship with his half-sisters as poor as he did not know them. He worked at the postal office and visited his church on Saturdays and Sundays. He reported that he had poor tolerance to frustration, problems at his job due to administrative processes, felt irritable at home, reported difficulty with concentrating, and had problems with sleeping and vivid nightmares. He denied feelings of guilt and hopelessness, suicidal and homicidal ideas, as well as hallucinations or delusions. VA treatment records reflect ongoing treatment for the Veteran’s psychiatric disorder. On July, October and December 2012 mental status examinations, he had adequate hygiene, was appropriately dressed and cooperative. His motor activity was normal. His thought process was coherent and logical. His mood was irritable and affect was constricted. There were no abnormalities of perception. He was oriented in all spheres. His memory was intact and his judgment and insight were intact. A December 2012 mental health note showed that the Veteran exhibited abnormal sleep pattern, poor concentration, irritability, and poor tolerance to frustration. A December 2012 behavioral nursing screening revealed thought content as normal; thought process as coherent, relevant, and logical; immediate memory as poor; judgment and insight as fair; positive findings for hallucinations; and no current suicidal ideations or plan. A psychiatry note dated the same day in December 2012, noted that the Veteran continued to feel down and unmotivated. He denied suicidal and homicidal ideas as well as hallucinations or delusions. Psychiatric notes dated in January, April, and December 2015 as well as in February 2017 show that that the Veteran denied suicidal and homicidal ideas and frank hallucinations or delusions. On associated mental status examinations, he had adequate hygiene, was appropriately dressed and cooperative. His motor activity was normal. His thought process was coherent and logical. His mood was irritable and affect was constricted. There were no abnormalities of perception. He was oriented in all spheres. His memory was intact and his judgment and insight were intact. The records included a diagnosis of an unspecified mood disorder. The January 2015 treatment record noted that the Veteran continued to see figures and shadows, but he specifically denied hallucinating or having delusions at the time of treatment and on metal status examination, there were no abnormalities with perception (auditory, visual, tactile and command auditory hallucinations, conversing voice, and illusions). In January and April 2015, the Veteran reported his recent memory as poor. The February 2017 record noted that he continued to have nightmares. On an October 2014 VA mental disorders DBQ, the Veteran reported that he retired a year ago as he was eligible by duration of work. His symptoms were comprised of depressed mood, anxiety, and difficulty in establishing and maintaining effective work and social relationships. He also had trouble sleeping and nightmares and exhibited apprehensiveness, sexual dysfunction, irritability and episodes of crying bouts. He was tense, socially withdrawn, and preferred to be by himself. He was diagnosed with generalized anxiety disorder, which caused occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks, although generally functioning satisfactorily, with normal routine behavior, self-care and conversation. On April 2016 VA mental disorders DBQ, the Veteran reported that he has been married to the same wife since 1977 and lives in the same house together; however, they are separated due to his social isolation and mood swings. He described his family relations as dysfunctional. He retired from the post office in 2012. He reported that his symptoms were the same since his last VA examination. He sometimes felt more anxious. He denied suicidal and homicidal ideas, and frank hallucinations or delusions. On mental status examination, he had adequate hygiene, was appropriately dressed and cooperative. His motor activity was normal. His thought process was coherent and logical. His mood was irritable and affect was constricted. There were no abnormalities of perception. He was oriented in all spheres. His memory was intact and his judgment and insight were intact. His symptoms were comprised of depressed mood, anxiety, chronic sleep impairment, flattened affect, and disturbances in motivation and mood. The examiner diagnosed the Veteran with generalized anxiety disorder, which caused occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks, although generally functioning satisfactorily, with normal routine behavior, self-care, and conversation. In addition to his service-connected anxiety neurosis, the Veteran has also been diagnosed with an unspecified mood disorder. See November 2012 VA mental disorders DBQ and VA treatment records. The evidence of record does not sufficiently distinguish the symptoms of these disorders from his service-connected PTSD. Thus, the Board’s instant discussion attributes all of the Veteran’s mental health symptoms to his service-connected PTSD. Mittleider v. West, 11 Vet. App. 181, 182 (1998). Based on the foregoing, the Board finds that a 50 percent rating is warranted for the Veteran’s service-connected psychiatric disorder throughout the appeal period from April 26, 2012. In this regard, the Board finds that the impact of the Veteran’s anxiety neurosis on his social and industrial functioning is sufficient to approximate the degree of impairment contemplated by a 50 percent rating. See 38 C.F.R. § 4.7 (2017). Criteria for the assignment of a 50 percent rating, which have arguably been met or approximated, include impairment of short term memory, impaired abstract thinking, disturbances in motivation and mood, difficulty in establishing and maintaining effective work and social relationships. The Board also finds that the evidence as a whole indicates that the Veteran’s anxiety neurosis traits also include sleep impairment, nightmares, periodic hallucinations, poor tolerance to frustration, apprehensiveness, episodes of crying bouts, and social isolation. In consideration of these symptoms with the Veteran’s other psychiatric symptoms, the Board finds that these criteria approximate a 50 percent disability rating throughout the appeal period. As such, given the actual psychiatric symptoms shown in this case, the Board finds that level of overall psychiatric impairment is shown to be consistent with a 50 percent rating. However, the Board finds that during the period under consideration (from April 26, 2012), the Veteran is not entitled to a higher 70 percent disability rating for his anxiety neurosis. In this regard, the Board notes that the Court of Appeals for the Federal Circuit (Federal Circuit) held in Vazquez-Claudio v. Shinseki, 713 F.3d 112 (Fed. Cir. 2013) that “in the context of a 70 percent rating, § 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.” The evidence indicates that the Veteran has not demonstrated symptoms such as suicidal ideations; 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; spatial disorientation; neglect of personal appearance and hygiene, or other symptoms on a par with the level of severity exemplified in these manifestations. On the contrary, the VA examination reports and VA treatment records in particular indicate that the Veteran’s he had adequate hygiene, was appropriately dressed and cooperative, his thought process was coherent and logical, and he has not endorsed obsessional rituals which interfered with routine activities. He was oriented during examinations and VA treatment. Additionally, although the Veteran reported that he and his wife were separated, he still lived with her. Although he described his family relationship as dysfunctional on his April 2016 VA examination, he previously reported on his November 2012 VA examination that he had a “good” relationship with his three siblings. While the Board acknowledges the Veteran’s social impairment, the evidence does not indicate an inability to establish and maintain effective relationships. The record reflects that the Veteran previously had problems with his job related to the administrative processes and the Board acknowledges that the Veteran may have difficulty in adapting to stressful circumstances. In light of the foregoing, the Board concludes that, while the Veteran demonstrates some of the criteria listed for a 70 percent disability rating, the evidence of record does not show that his overall level of severity more closely approximates the criteria for a 70 percent disability rating under 38 C.F.R. § 4.130. Moreover, there are no other factors which would lead the Board to conclude that a 70 percent disability rating is warranted. See Mauerhan, supra [the specified factors for each incremental rating are examples rather than requirements for a particular rating; analysis should not be limited solely to whether the claimant exhibited the symptoms listed in the rating scheme]. Rather, his level of functioning is greater than that contemplated by the 70 percent rating category. Further, as discussed above, the Veteran’s anxiety neurosis traits also include sleep impairment, nightmares, periodic hallucinations, poor tolerance to frustration, apprehensiveness, episodes of crying bouts, and social isolation. In consideration of these symptoms with the Veteran’s other anxiety neurosis symptoms, the Board finds that these criteria do not approximate a 70 percent disability rating or higher as they are not of such a severity or frequency to result in occupational and social impairment with deficiencies in most areas or total occupational and social impairment. In sum, the Board finds that the record reflects the Veteran’s symptomatology overall largely correlates with a disability rating of no more than 50 percent. REASONS FOR REMAND At the outset, the claims file includes evidence written in Spanish with no accompanying certified English translation, specifically, what appears to be medical records from Dr. M. Maldonado, received by VA in April and July 2012; and Dr. J. A. Rodriquez and Advance Chiropractic received in July 2012. On remand, the RO should take the opportunity to review the Veteran’s claims file and translate these documents as well as any additional documents from Spanish into English in order to facilitate review of the record by the Board. 1. Entitlement to service connection for a sleep apnea is remanded. In September 2016 correspondence, the Veteran indicated that his sleep problems during active duty were the same sleep problems that he exhibited when he was diagnosed with sleep apnea. Notably, the Veteran’s service treatment records include a July 1974 separation report of medical history, which noted that the Veteran had “trouble sleeping-1973-1974.” A September 1973 treatment record noted complaints of low back pain, headaches, and insomnia while the Veteran was diagnosed with depression and anxiety. VA treatment records dating back to June 1975 show reported of sleep impairment in conjunction with treatment for a psychiatric disorder. In January 2014 correspondence, the Veteran indicated that his sleep apnea was secondary to a service connected disability. A May 2011 neurology sleep nurse screening revealed that the Veteran exhibited signs and symptoms of sleep apnea and a June 2011 VA treatment record documented abnormal sleep patterns along with the Veteran’s psychiatric symptoms, for which he was sent for a sleep study to rule out sleep apnea. A September 2012 record documented the Veteran’s reports of never receiving the results of the sleep study and it does not appear to have been associated with the claims file; therefore, the record should be obtained on remand. AVA sleep apnea disability benefits questionnaire (DBQ) notes a diagnosis of obstructive sleep apnea (diagnosed in August 2011). The examiner found that the Veteran’s sleep apnea was not directly related to service, as his service treatment records did not show a diagnosis, treatments, or specific signs to suggest a chronic disability pattern related to obstructive sleep apnea during active military service or within a year after separation form service. However, it does not appear that the examiner considered the Veteran’s contentions indicating that he experienced the same symptoms of a sleep impairment in service as he did when he was finally diagnosed with sleep apnea. Additionally, the examiner did not provide an opinion on a secondary basis. Therefore, a new VA opinion is necessary to determine the nature and etiology of the Veteran’s sleep apnea. 2. Entitlement to service connection for a right knee disability is remanded. In a May 2014 statement, the Veteran reported that the claimed condition was incurred during active duty or in the alternative, was secondary to his service-connected conditions. During his March 2015 hearing, the Veteran reported that he injured his right knee during his first period of active duty when he fell down a mountain in Korea. Service treatment records include a September 1973 record that documented low back pain down the right leg and into the knee. The records show that the Veteran was initially seen for his right ankle in March 1973. July and August 1974 records noted a history of the Veteran spraining his ankle a year ago in Korea and included a diagnosed of chronic ankle sprain. The Veteran has since been service-connected for right ankle sprain and lumbar strain with radiculopathy in the right and left lower extremities. On April 2015 VA Form 21-0960M-9, knee and lower leg DBQ. The examiner noted a history provided by the Veteran of low back, right ankle, and right knee pain since 1973 after falling down a cliff while in military service. However, the examiner did not provide an opinion as to whether or not the Veteran’s current right knee disability is related to his service, including any injury therein, or a service-connected disability. Therefore, a VA opinion is necessary to determine the nature and etiology of the Veteran’s right knee disability. 3. Entitlement to service connection for diabetes mellitus is remanded. In September 2016 correspondence, the Veteran specifically reported that he has had diabetes mellitus since active duty service in 1973. In March 2018 correspondence, he also indicated that it was secondary to his service-connected disabilities. His claim for service connection was denied by the RO for lack of a nexus to service and he did not qualify for service connection on a presumptive basis as the record did not show that the disease developed to a compensable degree within the specified time period after his discharge or show that he operated in the Korean DMZ during the qualifying time period of April 1, 1968, to August 31, 1971. To date, there has been no medical opinion which addresses the link, if any, between the Veteran’s service-connected disabilities and his diagnosed diabetes mellitus or addresses whether or not his diabetes mellitus is directly related to his service. Thus, on remand, such an opinion should be obtained. 4. Entitlement to service connection for vertigo is remanded. During his hearing, the Veteran reported that he first experienced vertigo in 1988 while he was on active duty. He described and incident of being exposed to continuous fire at the firing range without ear plugs in which he became dizzy. He reported that he was diagnosed with tinnitus at the time. See hearing transcript, p. 22. An April 1988 statement of medical examination and duty status shows that the Veteran was injured in the line of duty and experienced tinnitus in the left ear from active firing exercises with his M-16 riffle. An August 1988 consultation sheet noted the Veteran’s history of noise exposure (M-16 rifle shooting) and his report of an episode of vertigo for two weeks in April. During his hearing, he added that when he became dizzy, he also lost control of his eye movement and heard a high-pitched noise. He also had pain with bending and experienced a loss of balance, dizziness, and vertigo. See hearing transcript, pgs. 21-23. To the extent that the Veteran has claimed that his vertigo is related to his service-connected disabilities and medications used to treat those service-connected disabilities, the theory of entitlement on a secondary basis has not been addressed by the AOJ. Id. Thus, the Veteran has not been afforded a duty-to-assist notice letter addressing secondary service connection or a VA examination addressing this theory or a direct theory of entitlement. Based on the evidence suggesting a current diagnosis and an in-service incurrence, a remand is warranted for the issuance of a VCAA notice letter and for a VA examination and medical opinion to be obtained. See 38 U.S.C. § 5103A; 38 C.F.R. § 3.159; McLendon v. Nicholson, 20 Vet. App. 79, 83 (2006). 5. Entitlement to service connection for erectile dysfunction, including as secondary to medications used to treat service-connected conditions is remanded. The Veteran contends that his erectile dysfunction is related to his service, or alternatively to his service-connected disabilities, including medications used to treat his service-connected disabilities. Although the February 2015 VA examiner found that there was no evidence of erectile dysfunction as an adverse effect from medication taken for a service-connected condition, the examiner did not appear to consider the Veteran’s complaints of sexual dysfunction with the use of fluoxetine. See April 2015 VA treatment records. Also, on October 2014 VA mental disorders DBQ, the Veteran also indicated that he had sexual dysfunction as a symptom of his service-connected psychiatric disorder. The examiner did not address whether or not the Veteran’s erectile dysfunction was directly related to service or caused or aggravated by the Veteran’s service-connected disabilities themselves. Therefore, a new VA opinion is necessary. 6. Entitlement to initial increased ratings for right ankle and lumbar spine disabilities, as well as radiculopathy of the bilateral lower extremities, is remanded. During his hearing, regarding his back, the Veteran described constant pain that increased in severity with twisting movement. There were functional limitations with lifting his hands and the continuous movement of picking up clothes and putting them down when doing chores. Sometimes, he was unable to move from his bed in the morning. See hearing transcript, p. 9. Regarding his right ankle, at the time of the hearing, the Veteran indicated that his right ankle was currently swollen and that there was further limitation in his range of motion. See hearing transcript, p. 13. With respect to the Veteran’s increased rating claim for the lumbar spine and right ankle disabilities, in Sharp v. Shulkin, 29 Vet. App. 26, 33 (2017), the Court recently held that when a VA examiner is asked to opine as to additional functional loss during flare-ups of a musculoskeletal disability, and the examiner states that he or she is unable to offer such an opinion without resorting to speculation, such opinion must be based on all procurable and assembled medical evidence, to include eliciting relevant information from the veteran as to the flare-i.e. the frequency, duration, characteristics, severity, or functional loss, and such opinion cannot be based on the insufficient knowledge of the specific examiner. In this case, the April 2016 VA examination report does not provide the necessary information regarding flare-ups, as specified above. During the examinations, the Veteran reported that bending, lifting heavy objects, and twisting exacerbated his lumbar spine condition and prolonged standing and walking exacerbated the right ankle condition. The examiner found that pain could significantly limit functional ability during flare-ups or when the joint was used repeatedly over a period of time. However, the examiner added that an opinion considering additional range of motion loss during flare-ups was not feasible, since in order to provide an additional limitation due to pain, weakness or incoordination (if present) the evaluation must be done in a present of a flare-up. In this regard, although the examination was not performed during a flare-up, it is not apparent why the examiner could not estimate additional functional loss based on the Veteran's statements describing the flare-ups, or why the available information in the file was not sufficient to permit such an estimate. In light of the Sharp decision, the Board finds that a new VA examination should be provided addressing the Veteran’s lumbar spine disability and related radiculopathy of the right and left lower extremities. Id; see also Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). 7. Entitlement to TDIU prior to January 25, 2016 is remanded. Concerning the Veteran’s entitlement to a TDIU, regardless of when the Veteran filed a formal claim for TDIU, the Veteran has alleged that his unemployability is due to his service-connected disabilities and, during his March 2015 Board hearing, the Veteran indicated that his service-connected disabilities forced him into retirement. On his VA Form 21-8940, Veteran’s Application for Increased Compensation Based on Unemployability, he reported that he last worked full time on December 11, 2011. Hence, the Board has construed the appeal as also encompassing the matter of the Veteran’s entitlement to a TDIU due to the disabilities for which higher ratings are sought, consistent with Rice v. Shinseki, 22 Vet. App. 447 (2009). Moreover, although a TDIU has been granted from January 25, 2016, the matter of the Veteran’s entitlement to a TDIU due to service-connected disabilities on appeal from April 26, 2012 to January 25, 2016, remains on appeal. Id. The matter of TDIU is inextricably intertwined with the currently remanded claims for service connection and increased evaluations. Harris v. Derwinski, 1 Vet. App. 180 (1991). Remand of the inextricably intertwined TDIU claim is therefore required as well. The matters are REMANDED for the following action: 1. Send a VCAA notice letter to the Veteran and his representative notifying them of the information and evidence necessary to substantiate entitlement to service connection for vertigo on a theory of secondary service connection. 2. Contact the Veteran and request that he identify any and all outstanding relevant VA and private treatment records. After obtaining the necessary authorization forms from the Veteran, obtain any pertinent records and associate them with the claims file, to specifically include VA treatment records dated since April 2017 as well as any records associated with a sleep study between 2011 and 2012 diagnosing the Veteran with sleep apnea. Any negative responses should be in writing and associated with the claims file. 3. Translate all Spanish documents in the claims folder to include any new treatment records associated with the file as well as treatment records from Dr. M. Maldonado, received by VA in April and July 2012; and Dr. J. A. Rodriquez and Advance Chiropractic received in July 2012. All Spanish language documents MUST be translated before any claims are returned to the Board. 4. Schedule a VA examination to address the Veteran’s claimed sleep apnea. The entire claims file, to include a copy of this Remand, must be made available to the examiner. The report of examination should include discussion of the Veteran’s documented history and assertions. All indicated tests and studies should be accomplished (with all results made available to the examiner prior to the completion of his or her report), and all clinical findings should be reported in detail. (a) The examiner should opine whether it is at least as likely as not (50 percent probability or greater) that the Veteran’s sleep apnea was caused, or alternatively, aggravated by his service-connected disabilities (including service-connected anxiety neurosis); or had its clinical onset during active service or is related to any in-service disease, event, or injury, including documented reports of sleep problems in September 1973 and on July 1974 separation report of medical history. (b) The examiner should address the Veteran’s contentions that he had the same sleep problems during his first period of active duty service as he did when he was diagnosed with sleep apnea. The examiner should also consider various treatment records documenting sleep problems and sleep apnea in conjunction with treatment for the Veteran’s psychiatric disorder. The examiner should include the underlying reasons for the opinions expressed. 5. Schedule a VA examination to address the Veteran’s claimed right knee disability. The entire claims file, to include a copy of this Remand, must be made available to the examiner. The report of examination should include discussion of the Veteran’s documented history and assertions. All indicated tests and studies should be accomplished (with all results made available to the examiner prior to the completion of his or her report), and all clinical findings should be reported in detail. (a) The examiner should opine whether it is at least as likely as not (50 percent probability or greater) that the Veteran’s right knee disability was caused, or alternatively, aggravated by his service-connected disabilities (including his ankle and back with radiculopathy); or had its clinical onset during active service or is related to any in-service disease, event, or injury, including documented reports of pain into his right knee in September 1973 and references to a right ankle injury in May 1973 as well as July and August 1974. (b) The examiner should address the Veteran’s contentions that he injured his right knee while he injured his right ankle and lumbar spine in service from falling down a mountain in Korea. The examiner should include the underlying reasons for the opinions expressed. 6. Schedule a VA examination to address the Veteran’s claimed diabetes mellitus. The entire claims file, to include a copy of this Remand, must be made available to the examiner. The report of examination should include discussion of the Veteran’s documented history and assertions. All indicated tests and studies should be accomplished (with all results made available to the examiner prior to the completion of his or her report), and all clinical findings should be reported in detail. (a) The examiner should opine whether it is at least as likely as not (50 percent probability or greater) that the Veteran’s diabetes mellitus was caused, or alternatively, aggravated by his service-connected disabilities; or had its clinical onset during active service or is related to any in-service disease, event, or injury. (b) The examiner should address the Veteran’s contentions that he has had diabetes mellitus since 1973 as well as his contentions that his diabetes mellitus is secondary to his service-connected disabilities. The examiner should include the underlying reasons for the opinions expressed. 7. Schedule a VA examination to address the Veteran’s claimed vertigo. The entire claims file, to include a copy of this Remand, must be made available to the examiner. The report of examination should include discussion of the Veteran’s documented history and assertions. All indicated tests and studies should be accomplished (with all results made available to the examiner prior to the completion of his or her report), and all clinical findings should be reported in detail. (a) The examiner should opine whether it is at least as likely as not (50 percent probability or greater) that the Veteran’s vertigo was caused, or alternatively, aggravated by his service-connected disabilities, including medication used to treat his service-connected disabilities; or had its clinical onset during active service or is related to any in-service disease, event, or injury, including presumed exposure to acoustic trauma in service. (b) The examiner should address the Veteran’s contentions that he first experienced vertigo in 1988 while he was on active duty as a result of being exposed to continuous gun fire without ear protection along with the April 1988 statement of medical examination and duty status documenting an in-service injury to the left ear form firing an M-16 riffle. An August 1988 consultation sheet noted an episode of vertigo for two weeks in April. The Veteran has also reported that his dizziness has been accompanied with loss of eye control and hearing a high pitch noise. He becomes dizzy from pain while bending over as well as from medications used to treat his service connected conditions. A complete rationale should be given for all opinions and conclusions expressed. 8. Schedule a VA examination to address the Veteran’s claimed erectile dysfunction. The entire claims file, to include a copy of this Remand, must be made available to the examiner. The report of examination should include discussion of the Veteran’s documented history and assertions. All indicated tests and studies should be accomplished (with all results made available to the examiner prior to the completion of his or her report), and all clinical findings should be reported in detail. (a) The examiner should opine whether it is at least as likely as not (50 percent probability or greater) that the Veteran’s erectile dysfunction was caused, or alternatively, aggravated by his service-connected disabilities, including medication used to treat his service connected disabilities; or had its clinical onset during active service or is related to any in-service disease, event, or injury. (b) The examiner should address the October 2014 VA mental disorders DBQ and VA treatment records, which indicated that the Veteran’s sexual dysfunction was a symptom of his service-connected psychiatric disorder and April 2015 VA treatment records documenting the Veteran’s complaints of sexual dysfunction with the use of fluoxetine. A complete rationale should be given for all opinions and conclusions expressed. 9. Schedule the Veteran for a VA examination with an appropriate professional to determine the extent and severity of his service-connected lumbar spine and right ankle disabilities. (a) All indicated tests should be performed, including range of motion findings expressed in degrees and in relation to normal range of motion; (b) The examination must include testing results of the lumbar spine as well as the right ankle for pain on both active and passive motion, and for the ankle, in weight-bearing and nonweight-bearing. The examiner should assess where pain begins on the Veteran’s initial range of motion and upon repetitive testing. Further, the examiner should also describe any pain, weakened movement, excess fatigability, and incoordination present; (c) The examiner must estimate any functional loss in terms of additional degrees of limited motion of the thoracolumbar spine experienced during flare-ups and repetitive use over time. If the examiner cannot provide the above-requested opinion without resorting to speculation, he or she should state whether all procurable medical evidence had been considered, to specifically include the Veteran’s description as to the severity, frequency, duration of the flare-ups and his description as to the extent of functional loss during a flare-up and after repetitive use over time; whether the inability is due to the limits of medical community or the limits of the examiner’s medical knowledge; and whether there is additional evidence, which if obtained, would permit the opinion to be provided. See Sharp v. Shulkin, 29 Vet. App. 26, 33 (2017). (d) The examiner must report whether the Veteran experiences incapacitating episodes (physician-prescribed bed rest) of the service-connected lumbar spine disability and the frequency and total duration of such episodes over the course of a year; (e) The examiner should also identify all neurologic manifestations of the Veteran’s service-connected lumbar spine disability, to include sensory loss, radiculopathy, or bowel, bladder, or erectile dysfunction. For any neurological impairment found to be associated with the service-connected lumbar spine disability, the examiner is asked, to the extent possible, to identify the date of onset and the severity thereof.   10. Thereafter, readjudicate the issues on appeal, including entitlement to a TDIU for the appeal period from April 26, 2012 to January 25, 2016. If the benefits sought on appeal are not granted, the Veteran and his representative should be provided with a supplemental statement of the case and afforded the appropriate opportunity to respond. Thereafter, the appeal should be returned to the Board for further appellate consideration, if otherwise in order. BETHANY L. BUCK Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD L. Crohe