Citation Nr: 18132425 Decision Date: 09/06/18 Archive Date: 09/06/18 DOCKET NO. 15-20 871 DATE: September 6, 2018 ORDER New and material evidence has been received to reopen the claim of entitlement to service connection for a low back disability; the appeal to reopen the previously denied claim is granted. Entitlement to service connection for a low back disability is denied. New and material evidence has not been received to reopen the claim of entitlement to service connection for diabetes mellitus; the appeal to reopen the previously denied claim is denied. Entitlement to service connection for an eye disability is denied. Entitlement to service connection for depression, to include as secondary to service-connected disabilities is granted. Entitlement to a compensable rating for sinusitis and status post polypectomy is denied. Entitlement to a compensable rating for scars of the left and right axilla is denied. REMANDED Entitlement to a rating in excess of 20 percent for a right knee disability is remanded. Entitlement to a rating in excess of 10 percent for a left knee disability is remanded. Entitlement to a compensable rating for a right finger disability is remanded. Entitlement to a rating in excess of 50 percent for sleep apnea is remanded. Entitlement to a compensable rating for recurrent cysts is remanded. Entitlement to a rating in excess of 10 percent for tension headaches is remanded. Entitlement to a total disability rating based on individual unemployability (TDIU) is remanded. FINDINGS OF FACT 1. In an unappealed rating decision dated October 2005, service connection for a low back disability was denied. 2. New and material evidence has been received to reopen the claim of entitlement to service connection for a low back disability. 3. In an unappealed rating decision dated March 2000, service connection for diabetes mellitus was denied. 4. The evidence received since the last decision denying service connection for diabetes, is not new and material in that it does not raise a reasonable possibility of substantiating the claim. 5. Resolving reasonable doubt in the Veteran’s favor, the evidence is sufficient to show that the Veteran’s depression is caused by his service-connected disabilities. 6. The evidence is insufficient to show that the Veteran’s cataracts had their onset in service or are otherwise related to service. 7. The evidence is insufficient to show that the Veteran’s sinusitis manifested in incapacitating episodes required prolonged antibiotic treatment or non-incapacitating episodes of sinusitis characterized by headaches, pain, and purulent discharge or crusting. 8. The evidence is insufficient to show that the Veteran’s scars of the left and right axilla are painful or unstable. CONCLUSIONS OF LAW 1. The criteria for whether new and material evidence has been received to reopen the claim of entitlement to service connection for a low back disability have been met. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. 2. The criteria for service connection for a low back disability have not been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.303, 3.307, 3.309. 3. New and material evidence has not been received to reopen the claim of entitlement to service connection for diabetes mellitus. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. 4. The criteria for entitlement to service connection for an eye disability have not been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. § 3.303. 5. The criteria for entitlement to service connection for an eye disability have not been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.303, 3.310. 6. The criteria for a compensable rating in excess of for sinusitis and status post polypectomy have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.159, 4.3, 4.7, 4.97, Diagnostic Code (DC) 6511. 7. The criteria for a compensable rating for scars of the left and right axilla have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.159, 4.3, 4.7, 4.97, 4.118, DCs 7802, 7804, 7805. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from March 1974 to August 1981. The Veteran retired from Reserve service in August 1998. Service Connection Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110; 1131 38 C.F.R. § 3.303. To establish service connection for a disability, the evidence must show: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service. Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004). Service connection may also be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d) (2017). For certain chronic disorders, including arthritis, service connection may be granted if the disease becomes manifest to a compensable degree within one year following separation from service. See 38 U.S.C. §§ 1101, 1112, 1113, 1131, 1137; 38 C.F.R. §§ 3.307, 3.309. When a disease listed at 38 C.F.R. § 3.309(a) is not shown to be chronic during service or the one-year presumptive period, service connection may also be established by showing continuity of symptomatology after service. See 38 C.F.R. § 3.303(b). However, the use of continuity of symptoms to establish service connection is limited only to those diseases listed at 38 C.F.R. § 3.309(a) and does not apply to other disabilities which might be considered chronic from a medical standpoint. See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Service connection may also be established on a secondary basis for a disability which is shown to be proximately due to or the result of a service-connected disease or injury. 38 C.F.R. § 3.310(a). Establishing service connection on a secondary basis requires evidence sufficient to show that a current disability exists and that the current disability was either caused by or aggravated by a service-connected disability. 38 C.F.R. § 3.310; Allen v. Brown, 7 Vet. App. 439 (1995). Active duty for training (ACDUTRA) is full time duty for training purposes performed by Reservists and members of the National Guard pursuant to 38 U.S.C. §§ 316, 502, 503, 504, or 505. 38 U.S.C. § 101(22); 38 C.F.R. § 3.6(c). Inactive duty for training (INACDUTRA) includes duty, other than full-time duty, performed for training purposes by Reservists and members of the National Guard pursuant to 38 U.S.C. §§ 316, 502, 503, 504, or 505. 38 U.S.C. § 101(23); 38 C.F.R. § 3.6(d). Service connection may be granted for disability resulting from disease or injury incurred during ACDUTRA or injuries incurred during INACDUTRA, or from an acute myocardial infarction (heart attack), a cardiac arrest or a cerebrovascular accident (stroke), which occurred during such training. See 38 U.S.C. §§ 101(24), 106; 38 C.F.R. § 3.6(a). Service connection is not legally merited when the disability results from a disease process during INACDUTRA. See, e.g., Brooks v. Brown, 5 Vet. App. 484, 487 (1993). 1. Whether new and material evidence has been received to reopen the claim of entitlement to service connection for a low back disability. The Veteran’s claim of entitlement to a service connection for a lumbar back disability was originally denied in an October 2005 rating decision. The Veteran did not appeal this decision and it became final. 38 U.S.C. § 7105; 38 C.F.R. §§ 3.156(a), (b). In a March 2014 rating decision, the RO reopened the claim and denied it on the merits. Despite the determination reached by the RO with respect to the reopening of the Veteran’s claim, the Board must find new and material evidence to establish its jurisdiction to review the merits of previously denied claim. See Barnett v. Brown, 83 F.3d 1380 (Fed. Cir. 1996); Jackson v. Principi, 265 F. 3d 1366 (Fed. Cir. 2001). A previously denied claim may be reopened by the submission of new and material evidence. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. Evidence is new if it has not been previously submitted to agency decision makers. 38 U.S.C. § 5108; 38 C.F.R. § 3.156(a). Evidence is material if it, either by itself or considered in conjunction with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. Id. New and material evidence cannot be cumulative or 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. Id. An October 2005 rating decision denied service connection for a low back based on a finding that there is no evidence to show that the Veteran had a low back condition that had its onset in service or was otherwise related to service. Evidence received since the Veteran’s request to reopen his claim includes a March 2014 VA examination report. The evidence is new in that it was not previously considered. It is also material insofar as it addresses whether the Veteran’s lumbar spine disability is related to service. See Shade, 24 Vet. App. at 117-18. Thus, the Board finds that the additional evidence is both new and material, and the claim for entitlement to service connection for a low back disability is reopened. The Board now turned to the merits of the claim and finds that preponderance of the evidence is against a grant of service connection. The Veteran has a current diagnosis of mild degenerative changes. See VA Treatment Records. The issue that remains disputed is whether the Veteran’s current lumbar spine disability had its onset in service, manifested to a compensable degree within one year of separation, or is otherwise related to service. Notably, a June 1979 service treatment note indicates the Veteran reported low back pain after playing pool. He denied trauma to the back. The diagnostic impression was lumbar muscle spasm. A July 1980 service treatment note indicates the Veteran complained low back pain. The diagnostic assessment was slight over use. The Veteran showed no limitation in back motion. The Veteran’s reserve service treatment records show the Veteran also reported low back pain in July 1989. He had a diagnosis of lumbar strain. A July 1993 report of medical history showed the Veteran had a normal spine. During the July 1993 report of medical history, the Veteran also denied recurrent back pain. Private treatment records show that in August 1996, the Veteran was treated for low back strain that occurred at work. He was treated conservatively. The Veteran was afforded a VA examination in March 2014. The examiner opined that the Veteran’s claimed condition was less likely than not incurred service or caused by an in-service injury, event, or illness. In support of his conclusion, the examiner noted the Veteran’s lumbar spine history including his in-service low back treatment. The examiner reported that records do not reflect any chronic low back condition at the time of discharge from service or shortly thereafter. There were isolated short-term incidents of low back strain that healed without any apparent documented residual. There were also several subsequent injuries of his low back after his service interval which include: a fall in 2002 which led to spine films, a motor vehicle accident in 2001, and an injury in 2006 that is still being litigated through the California Workman’s compensation system. The Veteran’s in-service treatment was for transient and resolved lumbar strains. The Board finds the August 2014 VA examination and opinion probative to the question at hand. The examiner considered an accurate history, to include the Veteran’s contentions regarding the onset of his lumbar spine symptoms. The opinion was definitive and supported by a rationale that considered the lay and medical evidence. Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). Significantly, the Veteran has not presented or identified any contrary medical opinion that supports the claim for service connection. VA adjudicators are not free to ignore or disregard the medical conclusions of a VA physician, and are not permitted to substitute their own judgment on a medical matter. Colvin v. Derwinski, 1 Vet. App. 171 (1991); Willis v. Derwinski, 1 Vet. App. 66 (1991). The Board finds that the most persuasive evidence of record shows that the current gastrointestinal disability did not have its onset in service and is not related to Gulf War service. The Veteran is competent to testify to facts or circumstances that can be observed and described by a lay person. 38 C.F.R. § 3.159(a)(2); Kahana v. Shinseki, 24 Vet. App. 428, 438 (2011). It is also well established that lay persons without medical training, such as the Veteran, are not competent to provide medical opinions on matters requiring medical expertise. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007) (noting general competence to testify as to symptoms but not to provide medical diagnosis). Whether the Veteran’s current lumbar spine disability is related to service requires medical expertise to determine. Therefore, the Board finds that the most probative evidence of record shows that the Veteran’s lumbar spine disability is not related to service. The Board has also considered whether service connection is warranted on a presumptive basis. See 38 C.F.R. §3.307, 3.09. However, the evidence does not show that the Veteran’s degenerative changes of the lumbar spine manifested to a compensable degree within one year of separation. Accordingly, entitlement to service connection for a lumbar spine disability is not warranted. In reaching this conclusion, the Board has considered the applicability of the benefit of the doubt doctrine. However, as the preponderance of the evidence is against the Veteran’s claim, that doctrine is not applicable. See 38 U.S.C. § 5107(b); Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001); Gilbert v. Derwinski, 1 Vet. App. 49, 55-57 (1990). 2. Whether new and material evidence has been received to reopen the claim of entitlement to service connection for diabetes mellitus. The Veteran’s claim for entitlement to service connection for diabetes mellitus was originally denied in a March 2000 rating decision. In February 2003, October 2005, February 2012, and March 2014 rating decisions, the RO declined to reopen the claim because the evidence submitted was not new and material. The Veteran’s claim was denied because service personnel records show that the Veteran’s diabetes mellitus was diagnosed in October 1994 during a period of Reserve INACDUTRA. Service connection is not legally merited when the disability results from a disease process during INACDUTRA. The evidence received since the denial of service connection for diabetes mellitus includes the Veteran’s statements that his diabetes mellitus began in 1994 and that he did not have diabetes mellitus prior to service. The Veteran also presented medical treatment records showing a diagnosis of diabetes mellitus. The evidence is not new as the Veteran’s statements and medical records had already been considered by adjudicators. As such, the Board finds that there is not new evidence that relates to an unestablished fact necessary to substantiate the claim for service connection for diabetes mellitus. See Shade, 24 Vet. App. at 117-18. The request to reopen the claim of entitlement to service connection for diabetes mellitus is denied. 3. Entitlement to service connection for an eye condition, to include bilateral cataracts. The Veteran asserts entitlement to service connection for an eye condition, to include bilateral cataracts. Refractive errors, include astigmatism, myopia, hyperopia, and presbyopia, are considered congenital defects. See M21-1MR, Part III, Subpart iv, 4.B.10.d. Generally, congenital defects are not diseases for VA compensation purposes. 38 C.F.R. § 3.303(c); see also 38 C.F.R. § 4.9; Winn v. Brown, 8 Vet. App. 510, 516 (1996). In the absence of a superimposed disease or injury, service connection may not be allowed for congenital defects or refractive errors of the eyes, even if visual acuity decreased in service, as these are not diseases or injuries within the meaning of applicable legislation relating to service connection. Id. Thus, VA regulations specifically prohibit service connection for either a congenital defect or a refractive error of the eye unless such a defect was subjected to a superimposed disease or injury that created additional disability. See VAOPGCPREC 82-90, 55 Fed. Reg. 45711 (July 18, 1990) (service connection may not be granted for defects of congenital, developmental or familial origin, unless the defect was subject to a superimposed disease or injury). The medical evidence shows diagnoses of astigmatism, myopia, presbyopia, and cataracts. See February 2014 VA Examination Report. As astigmatism, myopia, and presbyopia are congenital defects not eligible for service connection, the issue that remains disputed is whether there was a superimposed injury or the Veteran’s cataracts their onset in service or is otherwise related to service. To this end, the preponderance of the evidence is against the Veteran’s claim. The Veteran’s active duty and reserve service records are silent for an eye injury or a diagnosis of cataracts. An April 1997 eye examination showed the Veteran did not have a diagnosis of cataracts. During the February 2014 VA examination, the examiner opined that the Veteran’s eye problems did not did not cause any lasting problems in the Veteran’s eye or vision. He is correctable to 20/20 in each eye. The examiner noted that the Veteran had cataract surgery in 2012 but that he reviewed the Veteran’s eye treatment records prior to the surgery. The examiner concluded that, “Based on the Veteran’s age and type of cataracts, it is less likely than not that his [congenital] eye problems while in service caused or accelerated their growth beyond normal. His cataracts were normal age-related cataracts.” The Board finds the February 2014 VA examination and opinion probative to the question at hand. The examiner considered an accurate history, to include the Veteran’s contentions. The opinion was definitive and supported by a rationale that considered the lay and medical evidence. Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). The only evidence supporting a connection between the Veteran’s cataracts and service are his statements. The Veteran is not competent to provide medical opinion on matters requiring medical expertise. 38 C.F.R. § 3.159(a)(2); Kahana, 24 Vet. App. at 438; Jandreau, 492 F.3d at 1376-77. In addition, VA adjudicators are not free to ignore or disregard the medical conclusions of a VA physician, and are not permitted to substitute their own judgment on a medical matter. Colvin v. Derwinski, 1 Vet. App. 171 (1991); Willis v. Derwinski, 1 Vet. App. 66 (1991). Therefore, the Board finds that the most probative evidence of record shows that the Veteran’s cataracts are not related to service. Thus, service connection is not warranted. In reaching the above decision, the Board considered the doctrine of reasonable doubt; however, as the preponderance of the evidence is against the Veteran’s claim, the doctrine does not apply. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). 4. Entitlement to service connection for depression, to include as secondary to service-connected disabilities is granted. The Veteran asserts that his depression is related to service or is secondary to a service-connected disability. The evidence is conflicting as the whether the Veteran has a current diagnosis of depression that is related to service. A February 2014 VA examination report indicates the Veteran did not have a mental health diagnosis. The Veteran reported depressed mood, anxiety, memory impairment, disturbances of motivation and mood, and inability to establish and maintain effective relationships. The examiner reported that the Veteran the Veteran’s tone throughout the interview was hostile and angry but rapport was established. The Veteran had a narcissistic edge to him, rationalized and minimized his behaviour rarely accepting blame or fault. There was no thought disorder. The examiner concluded that the Veteran is most likely to have personality traits that govern how he thinks and behave but no mental disorder was diagnosed. Also of record is a September 2015 private mental health assessment from Dr. H.H. See October 2015 Correspondence. The Veteran showed a diagnosis of depressive disorder. Dr. H.H. reported that the Veteran’s depressive disorder secondary to medical condition and social impairment were emotionally debilitating. She further noted that the Veteran struggles with debilitating sleep apnea, bilateral knee degenerative arthritis, and tension headaches. Dr H.H. cited to the Veteran’s medical treatment records and medical articles and concluded that, “[The Veteran] did indeed struggle with a clinical form of depression requiring treatment. Due to the Veteran’s admitted fear of mental health medication side effects he is not currently prescribed medication; however, this does not minimize his debilitating symptom pattern. He endorses criteria within the DSM 5 for depression secondary to medical conditions . . . It is the belief of this examiner, based on interview and the C-file that [the Veteran’s] sleep apnea, right knee strain with degenerative arthritis, left knee strain with mild degenerative joint disease, and tension headaches are more likely than not causing his depressive disorder due to another medical condition and preventing him from maintaining substantially gainful employment.” When reviewing conflicting medical opinions, the Board may appropriately favor the opinion of one competent medical authority over another. See Owens v. Brown, 7 Vet. App. 429, 433 (1995). However, the Board may not reject medical opinions based on its own medical judgment. Obert v. Brown, 5 Vet. App. 30 (1993); see also Colvin v. Derwinski, 1 Vet. App. 171 (1991). The probative value of a medical opinion is generally based on the scope of the examination or review, as well as the relative merits of the expert’s qualifications and analytical findings, and the probative weight of a medical opinion may be reduced if the examiner fails to explain the basis for an opinion. Sklar v. Brown, 5 Vet. App. 140 (1993). Here, both the VA examiner and Dr. H.H. were equally qualified to render an opinion and both assessments were based on the Veteran’s medical treatment records and self-reports. As such, the Board finds that the evidence is in relative equipoise as the whether the Veteran has a diagnosis of depression that is related to service or a service-connected disability. Resolving reasonable doubt in the Veteran’s favor, the service connection for depression is granted. Increased Rating Disability evaluations are determined by the application of the VA’s Schedule for Rating Disabilities (Rating Schedule), 38 C.F.R. Part 4. The percentage ratings in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and their residual conditions in civil occupations. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. The assignment of a particular Diagnostic Code (DC) depends wholly on the facts of the particular case. Butts v. Brown, 5 Vet. App. 532, 538 (1993). The Veteran is presumed to be seeking the maximum possible evaluation. AB v. Brown, 6 Vet. App. 35 (1993). When a question arises as to which of two ratings applies under a particular code, the higher rating is assigned if the disability more closely approximates the criteria for the higher rating. 38 C.F.R. § 4.7. At the time of an initial rating, 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). The evaluation of the same disability under various diagnoses, known as “pyramiding,” is to be avoided. 38 C.F.R. § 4.14. 5. Entitlement to a compensable rating for sinusitis and status post polypectomy. The Veteran asserts that his sinusitis is more disabling than reflected in his current noncompensable rating. The Veteran’s sinusitis is rated under Diagnostic Code 6511 (sinusitis, ethmoid, chronic). Sinusitis is rated zero percent when detected by x-ray only. A 10 percent rating requires one or two incapacitating episodes per year characterized by headaches, pain, and purulent discharge or crusting. A 30 percent rating requires three or more incapacitating episodes per year requiring prolonged (lasting from four to six weeks) antibiotic treatment; or, more than six non-incapacitating episodes per year characterized by headaches, pain, and purulent discharge or crusting. A maximum 50 percent rating requires chronic osteomyelitis following radical surgery, or; near constant sinusitis characterized by headaches, pain, and tenderness of affected sinus, and purulent discharge or crusting after repeated surgeries. An incapacitating episode means one that requires bed rest and treatment by a physician. 38 C.F.R. 4.97, DC 6511. The Veteran was afforded a VA examination in March 2014. The examination showed a diagnosis of chronic sinusitis and noted that the Veteran had a polypectomy in 1980. There had been no significant recurrent sinusitis after surgery. The examiner noted that since the Veteran’s last rating evaluation his sinus condition had been stable. The Veteran has not had further surgery or diagnostic procedures, and has not had any significant infections or required any prolonged antibiotic use. A physical examination indicated the Veteran did not have any findings, signs or symptoms attributable to chronic sinusitis. The Veteran denied non-incapacitating episodes of sinusitis characterized by headaches, pain and purulent discharge or crusting in the past 12 months. The Veteran also denied incapacitating episodes of sinusitis requiring prolonged use of antibiotics treatment in the past 12 months. The Veteran was afforded an additional VA examination in June 2017. On physical examination, the Veteran did not have any sinuses affected by his chronic sinusitis diagnosis. He did not have any additional findings, signs, or symptoms attributable to chronic sinusitis. The Veteran again denied non-incapacitating episodes of sinusitis characterized by headaches, pain and purulent discharge or crusting in the past 12 months. The Veteran also denied incapacitating episodes of sinusitis requiring prolonged use of antibiotics treatment in the past 12 months. Based on the evidence, the Board finds that the Veteran’s chronic sinusitis more nearly approximates the criteria for a noncompensable rating. The Veteran consistently denied incapacitating episodes requiring prolonged requiring antibiotic treatment or non- incapacitating characterized by headaches, pain, and purulent discharge or crusting. Thus, the evidence is insufficient to support a higher disability rating for the Veteran’s sinusitis. A compensable rating for sinusitis is not warranted. 6. Entitlement to a compensable rating for scars of the left and right axilla. The Veteran asserts that his scars of the right and left axilla are more disabling than reflected in his current noncompensable rating. The Veteran’s scars are currently rated under DC 7805. DC 7805 applies to other scars (including linear scars) and other effects of scars evaluated under DC 7800, 7801, 7802 and 7804. Any disabling effects not considered in a rating provided under DC 7800 through 7804 should be evaluated under an appropriate diagnostic code. 38 C.F.R. 4.118, DC 7805. Diagnostic Code 7802 applies to burn scars or scars due to other causes, not of the head, face, or neck that are superficial and nonlinear. Under this provision, a maximum schedular evaluation of 10 percent is warranted for scars with an area or areas of 144 square inches (929 sq. cm.) or greater. Note (1) provides that a superficial scar is one not associated with underlying soft tissue damage. Under DC 7804, a 10 percent rating is assigned for one or two scars that are unstable or painful. A 20 percent rating is assigned for three or four scars that are unstable or painful. A 30 percent rating is assigned for five or more scars that are unstable or painful. 38 C.F.R. 4.118, DC 7804. An unstable scar is one where, for any reason, there is frequent loss of covering of skin over the scar. Id. at Note (1). If one or more scars are both unstable and painful, add 10 percent to the evaluation that is based on the total number of unstable or painful scars. Id. at Note (2). Scars evaluated under diagnostic codes 7800, 7801, 7802, or 7805 may also receive an evaluation under this diagnostic code, when applicable. Id. at Note (3). The Veteran’s March 2014 skin examination noted a 1 cm scar under both axilla which was healed and nontender from prior lancing. The preponderance of the evidence shows the Veteran’s scars of the left and right axilla more nearly approximate the criteria for a noncompensable rating. There is no evidence to show that the Veteran’s scar is 144 square inches or greater to warrant a 10 percent rating under Diagnostic Code 7802. The Board has also considered if a compensable rating would be warranted under Diagnostic Code 7804. However, the evidence does not show that the Veteran’s scars of the left and right axilla are unstable or painful. Thus, a compensable rating is not warranted. In reaching this conclusion, the Board has considered the applicability of the benefit of the doubt doctrine. However, as the preponderance of the evidence is against the Veteran’s claim, that doctrine is not applicable. See 38 U.S.C. § 5107(b); Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001); Gilbert v. Derwinski, 1 Vet. App. 49, 55-57 (1990). REASONS FOR REMAND 1. Entitlement to a rating in excess of 20 percent for a right knee disability is remanded. The claims file includes VA treatment records through June 2017. On remand, any outstanding private and VA treatment records should be associated with the record. VA has a duty, when appropriate, to conduct a thorough and contemporaneous examination of the Veteran that considers records of prior examinations and treatment. See Green v. Derwinski, 1 Vet. App. 121 (1991). A review of the claims file reveals that the Veteran was afforded a VA examination for his right knee in March 2014 – over 4 years ago. As such, a current examination is necessary. See Caffrey v. Brown, 6 Vet. App. 377, 381 (1995) (VA was required to afford a contemporaneous medical examination where examination report was approximately two years old). In addition, the Court of Appeals for Veterans Claims (Court) has determined in Correia v. McDonald, 28 Vet. App. 158 (2016), that the final sentence of 38 C.F.R. § 4.59 requires VA examinations to include range of motion 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. The March 2014 examination was not compliant with Correia. Thus, a new examination is required. As part of the examination ordered below, the examiner must render an opinion, based on information gathered from the claims file, as to the extent, frequency, and severity of the reported flare-ups, before determining that an estimate of motion loss in terms of degrees could not be given. See Sharp v. Shulkin, 29 Vet. App. 26 (2017). 2. Entitlement to a rating in excess of 10 percent for a left knee disability is remanded. As the Veteran’s most recent left knee examination was in March 2014, a contemporaneous examination that is compliant with Correia and Sharp is needed. 3. Entitlement to a compensable rating for a right finger disability is remanded. As the Veteran’s most recent right finger examination was in March 2014, a contemporaneous examination that is compliant with Correia and Sharp is needed. 4. Entitlement to a rating in excess of 50 percent for sleep apnea is remanded. As the Veteran’s most recent sleep apnea examination was in August 2014, a contemporaneous examination is needed. 5. Entitlement to a compensable rating for recurrent cysts is remanded. The Veteran was last afforded a VA examination for his cysts in March 2014. VA treatment records shows the Veteran was treated for cysts on the shoulder and groin areas in August 2015 suggesting a worsening in symptoms. As such, a contemporaneous examination is warranted. 6. Entitlement to a rating in excess of 10 percent for tension headaches is remanded. As the Veteran’s most recent VA headache examination was in August 2014, a contemporaneous examination is needed. 7. Entitlement to TDIU. The Veteran reported has consistently reported that he is unemployed due to his service-connected disabilities. See October 2015 Correspondence. As such a claim for a total disability rating based on individual unemployability (TDIU) has been raised by the record. See Rice v. Shinseki, 22 Vet. App. 447 (2009) (holding that a TDIU claim is part of an increased rating claim when it is expressly raised by the Veteran or reasonably raised by the record). The matters are REMANDED for the following action: 1. Provide the Veteran with appropriate notice regarding the TDIU claim and request that she complete a VA Form 21-8940, Veteran’s Application for Increased Compensation Based on Unemployability. Explain what is needed to establish entitlement to TDIU due to his service-connected disabilities. Ask the Veteran to submit any additional evidence in support of a TDIU claim, to specifically include information on her work history, salary, and educational history. 2. Contact the Veteran and ask that he provide a release for VA to secure records of treatment he received from any private medical treatment providers not already associated with the record. The Veteran is to be notified of any unsuccessful efforts in this regard, to allow him the opportunity to obtain and submit those records for VA review 3. Obtain the Veteran’s VA treatment records from June 2017 to present. 4. Afford the Veteran a VA examination by an examiner with sufficient expertise to fully assess the severity of the Veteran’s bilateral knees and right finger disabilities. 5. Arrange for the Veteran to undergo VA examinations to determine the current severity of his sleep apnea, recurrent cysts, and tension headaches. (Continued on the next page)   6. Readjudicate the appeal. R. FEINBERG Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD J.A. Williams, Associate Counsel