Citation Nr: 18157484 Decision Date: 12/12/18 Archive Date: 12/12/18 DOCKET NO. 16-48 661 DATE: December 12, 2018 ORDER The appeal seeking service connection for post-traumatic stress disorder (PTSD) is dismissed. The application to reopen the previously denied claim of service connection for a cervical spine disability is granted. Service connection for a cervical spine disability is denied. Service connection for disability manifested by numbness of both hands is denied. Service connection for disability manifested by numbness of left fingers is denied. Service connection for disability manifested by numbness of right fingers is denied. Service connection for carpal tunnel syndrome of the bilateral wrists is denied. Service connection for migraine headaches is granted. Service connection for a sleep disorder is denied. Service connection for disability manifested by fatigue is denied. Service connection for a disability manifested by chronic pain is denied. A 40 percent disability rating for Scheuermann's kyphosis of dorsolumbar spine is granted. An earlier effective date of February 4, 2011, for the award of service connection and compensation for Scheuermann’s kyphosis of dorsolumbar spine is granted. An effective date earlier than April 4, 2014, for the award of service connection for a bilateral hearing loss disability is denied. An effective date earlier than April 4, 2014, for the award of service connection and compensation for tinnitus is denied. REMANDED Total disability rating based on individual unemployability (TDIU) is remanded. FINDINGS OF FACT 1. Prior to promulgation of a decision in the appeal, the Board received notification in April 2016, that a withdrawal of the appeal for service connection for PTSD is requested. 2. In a November 1990 rating decision, the RO denied service connection for a cervical spine disability. Additional evidence submitted since the RO’s November 1990 denial relates to an unestablished fact necessary to substantiate the claim. 3. Cervical spine disability was not present during active service or within the first post-service year. Cervical spine disability is not attributable to service, and is not related (causation or aggravation) to a service-connected disease or injury. 4. Disability manifested by numbness of both hands was not present during active service or within the first post-service year; and is not attributable to service, and is not related (causation or aggravation) to a service-connected disease or injury. 5. Disability manifested by numbness of left fingers was not present during active service or within the first post-service year; and is not attributable to service, and is not related (causation or aggravation) to a service-connected disease or injury. 6. Disability manifested by numbness of right fingers was not present during active service or within the first post-service year; and is not attributable to service, and is not related (causation or aggravation) to a service-connected disease or injury. 7. Carpal tunnel syndrome of the bilateral wrists was not present during active service or within the first post-service year; and is not attributable to service, and is not related (causation or aggravation) to a service-connected disease or injury. 8. Migraine headaches are attributable to service. 9. The Veteran has not been diagnosed with any sleep disorder. 10. The Veteran has not been diagnosed with disability manifested by chronic fatigue. 11. Chronic pain syndrome was not present during active service, and is not attributable to service. 12. Throughout the rating period, the Veteran’s Scheuermann's kyphosis of dorsolumbar spine is shown to be manifested primarily by forward flexion of the thoracolumbar spine limited to 30 degrees or less. Ankylosis, incapacitating episodes, and doctor-prescribed bed rest are not shown. 13. On February 4, 2011, VA received the Veteran’s reopened claim for service connection for Scheuermann's kyphosis of the dorsolumbar spine; the claim was open and pending for the long-standing disability from that date. 14. On April 4, 2014, VA received the Veteran’s reopened claim for service connection for a bilateral hearing loss disability. There was no pending claim prior to April 4, 2014, pursuant to which service connection for a bilateral hearing loss disability could have been awarded. 15. On April 4, 2014, VA received the Veteran’s reopened claim for service connection for tinnitus. There was no pending claim prior to April 4, 2014, pursuant to which service connection for tinnitus could have been awarded. The RO assigned compensation for tinnitus, effective from the date of service connection. CONCLUSIONS OF LAW 1. The criteria for withdrawal of the appeal for service connection for PTSD have been met. 38 U.S.C. § 7105(b)(2), (d)(5) (2012); 38 C.F.R. §§ 20.202, 20.204 (2018). 2. The RO’s November 1990 decision, denying service connection for a cervical spine disability, is final. 38 U.S.C. § 7105 (2012); 38 C.F.R. § 20.1103 (2018). 3. Evidence submitted since the RO’s November 1990 denial is new and material; and the claim for service connection for a cervical spine disability is reopened. 38 U.S.C. § 5108 (2012); 38 C.F.R. § 3.156(a) (2018). 4. Cervical spine disability was not incurred in or aggravated by active service; and is not proximately due to or a result of, or aggravated by, a service-connected disease or injury. 38 U.S.C. §§ 1110, 1112, 1113, 1131, 1137, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309, 3.310 (2018). 5. Disability manifested by numbness of both hands was not incurred in or aggravated by active service; and is not proximately due to or a result of, or aggravated by, a service-connected disease or injury. 38 U.S.C. §§ 1110, 1112, 1113, 1131, 1137, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309, 3.310 (2018). 6. Disability manifested by numbness of left fingers was not incurred in or aggravated by active service; and is not proximately due to or a result of, or aggravated by, a service-connected disease or injury. 38 U.S.C. §§ 1110, 1112, 1113, 1131, 1137, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309, 3.310 (2018). 7. Disability manifested by numbness of right fingers was not incurred in or aggravated by active service; and is not proximately due to or a result of, or aggravated by, a service-connected disease or injury. 38 U.S.C. §§ 1110, 1112, 1113, 1131, 1137, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309, 3.310 (2018). 8. Carpal tunnel syndrome of bilateral wrist was not incurred in or aggravated by active service; and is not proximately due to or a result of, or aggravated by, a service-connected disease or injury. 38 U.S.C. §§ 1110, 1112, 1113, 1131, 1137, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309, 3.310 (2018). 9. Migraine headaches were incurred in peacetime service. 38 U.S.C. §§ 1131, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303 (2018). 10. A sleep disorder was not incurred in or aggravated by service; and is not proximately due to or a result of, or aggravated by, a service-connected disease or injury. 38 U.S.C. §§ 1131, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.309, 3.310 (2018). 11. Disability manifested by fatigue was not incurred in or aggravated by active service; and is not proximately due to or a result of, or aggravated by, a service-connected disease or injury. 38 U.S.C. §§ 1131, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.309, 3.310 (2018). 12. Chronic pain syndrome was not incurred in or aggravated by active service. 38 U.S.C. §§ 1131, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.309 (2018). 13. The criteria for a 40 percent disability rating for Scheuermann's kyphosis of dorsolumbar spine are met. 38 U.S.C. § 1155 (2012); 38 C.F.R. §§ 3.102, 3.159, 4.1, 4.7, 4.20, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5242 (2018). 14. The criteria for an earlier effective date of February 4, 2011, for the award of service connection for Scheuermann's kyphosis of dorsolumbar spine are met. 38 U.S.C. §§ 1131, 5110 (2012); 38 C.F.R. § 3.400 (2018). 15. The criteria for an effective date earlier than April 4, 2014, for the award of service connection are not met. 38 U.S.C. §§ 1131, 5110 (2012); 38 C.F.R. § 3.400 (2018). 16. The criteria for an effective date earlier than April 4, 2014, for the award of service connection and compensation for tinnitus are not met. 38 U.S.C. §§ 1131, 5110 (2012); 38 C.F.R. § 3.400 (2018). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the U.S. Army from April 1985 to March 1988. In March 2018, the Veteran specifically raised the matter of clear and unmistakable error (CUE) in a June 1988 rating decision which had denied service connection for Scheuermann's kyphosis of dorsolumbar spine on the basis that the disability was considered a developmental abnormality. The matter has not been adjudicated by the Agency of Original Jurisdiction (AOJ) in the first instance, and the Board does not have jurisdiction of the CUE allegation. The matter is referred to the AOJ for adjudication. The issue, decided below, for an earlier effective date for service connection and compensation for Scheuermann's kyphosis of dorsolumbar spine is not intertwined with the CUE allegation. A potential conflict is not created; and, at most, the Board’s decision of the issue below would become moot. Dismissal Under 38 U.S.C. § 7105, the Board may dismiss any appeal which fails to allege specific error of fact or law in the determination being appealed. 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 (2018). Withdrawal may be made by the Veteran or by his authorized representative. 38 C.F.R. § 20.204. In the present case, via correspondence submitted in April 2016, the Veteran seeks to withdraw the appeal for service connection for PTSD. The Board finds the request to be fully informed. There remain no allegations of errors of fact or law for appellate consideration as to that issue. Accordingly, the Board does not have jurisdiction to review the appeal for service connection for PTSD; and the claim is dismissed. Application to Reopen Claim for Service Connection VA may reopen and review a claim that have been previously denied if new and material evidence is submitted by or on behalf of the Veteran. 38 U.S.C. § 5108; 38 C.F.R. § 3.156(a). Under 38 C.F.R. § 3.156(a), “new evidence” is existing evidence not previously submitted; “material evidence” is existing evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. A June 1988 rating decision denied service connection for Scheuermann's kyphosis of dorsolumbar spine as a developmental abnormality. A September 1990 chiropractor’s report indicated that the Veteran also had a cervical spine disability, which was secondary to his low back disability. A November 1990 rating decision denied service connection for a cervical spine disability based in part on the lack of treatment or problems in active service, and based in part on the previous denial of service connection for a low back disability. Both rating decisions were not appealed and became final. 38 U.S.C. § 7105; 38 C.F.R. § 20.1103. Since those decisions were rendered, a Decision Review Officer in November 2014 awarded service connection for Scheuermann's kyphosis of dorsolumbar spine based in part on a permanent worsening of the condition in active service; and thereby raised a reasonable possibility of substantiating a claim for secondary service connection. Hence, reopening of the previously denied claim for service connection for a cervical spine disability is appropriate. Service Connection Service connection is awarded for disability that is the result of a disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131. Service connection requires competent evidence showing: (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, 1167 (Fed. Cir. 2004); see also Caluza v. Brown, 7 Vet. App. 498 (1995). Lay assertions may serve to support a claim for service connection by establishing the occurrence of observable events or the presence of disability or symptoms of disability that are subject to lay observation. 38 U.S.C. § 1153(a) (2012); 38 C.F.R. § 3.303(a) (2017); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); see also Buchanan v. Nicholson, 451 F. 3d 1331, 1336 (Fed. Cir. 2006) (addressing lay evidence as potentially competent to support presence of disability even where not corroborated by contemporaneous medical evidence). Establishing service connection on a secondary basis requires evidence sufficient to show (1) that a current disability exists and (2) that the current disability was either (a) proximately caused by or (b) proximately aggravated by a service-connected disability. When service connection is established for a secondary condition, the secondary condition shall be considered a part of the original condition. 38 C.F.R. § 3.310(a). Cervical Spine Disability Service treatment records show that, on a report of medical history completed by the Veteran in April 1985 at enlistment, he checked “no” in response to whether he ever had or now had bone or joint or other deformity. Physical Profile Board Proceedings, dated in September 1986, reveal that the Veteran had a physical defect described as “chronic back pain from childhood disease,” which was considered permanent; and that his military occupational specialty was reclassified in November 1986. A cervical spine disability neither was demonstrated in active service nor within the first post-service year. X-rays taken of the cervical spine in May 1988 revealed some reversal of the usual curvature as visualized on the lateral view, which could be positional; and the inferior aspect of C7 vertebral body was not optimally visualized. No other abnormality was seen. Here, the evidence does not show that a cervical spine disability had its onset in active service, or that arthritis of the cervical spine manifested within one year after the Veteran’s separation from active service. As such, he is not entitled to direct or presumptive service connection. Chiropractor records, dated in June 1989, reveal that the Veteran was in an auto accident and treated for neck pain; and that his car was “rear-ended” at a speed of five-to-ten miles per hour. The Veteran reported that his head was turned “left” at the time of the accident. In September 1990, the Veteran’s treating chiropractor opined that, in many cases where there is a problem existing in one part of the spine, it will later extend on up into areas that were initially unaffected. Here, the opinion does not address the facts of this specific case; and no mention is made of the intervening motor vehicle accident, and treatment begun for cervical pain. As such, the September 1990 chiropractor’s opinion is not entitled to any probative weight. X-rays taken of the cervical spine in September 2013 reveal mild degenerative disk disease and spondylitic changes involving the lower cervical spine; no instability is demonstrated with flexion and extension. In March 2014, another private physician identified the Veteran’s current assessment as chronic back pain in the mid-lumbar area; L2-L3 acute-subacute Schmorl’s node and compression fracture with Modic 1-2 changes; multilevel lumbar Schmorl’s nodes and facet effusion; multilevel degenerative changes in the thoracic spine, mild-to-moderate; and mild cervical spondylosis with no instability. The private physician reviewed the Veteran’s service treatment records, and opined that the physical trauma suffered during active service has more likely contributed to the Veteran’s current condition and chronic back pain. Here, again, the March 2014 private physician’s opinion is not entitled to any probative weight; as indicated above, the Veteran’s service treatment records reveal no physical trauma involving the cervical spine. Nor did the private physician opine that physical trauma in active service contribute to cervical pain. An October 2014 physical disability evaluation provided by the Social Security Administration reveals that X-rays taken of the cervical spine in June 2013 were normal; and that ranges of motion of the cervical spine at that time were full. This evidence is against a finding of any aggravation. Moreover, the Veteran reported a history of a motor vehicle accident and whiplash injury in 1989; and that his pain has worsened with time. The Veteran reported pain in his neck that radiated up to his skull; and reported having no arm or radicular symptoms. Private records, dated in September 2015, show that the Veteran reported that his neck pain began after a motor vehicle accident in 1989, where he sustained whiplash; and that his pain has progressed over time. The Veteran denied radicular symptoms. VA records show an assessment of chronic neck pain, with good relief with acupuncture, in September 2015. The Veteran reported ongoing problems with neck pain in April 2018. In this case, the evidence is against a finding that cervical spine disability is related (causation) to a service-connected disease or injury. No examiner has attributed the Veteran’s cervical spine disability to the service-connected Scheuermann's kyphosis of dorsolumbar spine. Likewise, aggravation is not demonstrated. The evidence of record does not support a causal relationship specifically between cervical spine disability and Scheuermann's kyphosis of dorsolumbar spine. While the Veteran contends that his cervical spine disability was caused by or had worsened due to his Scheuermann's kyphosis of dorsolumbar spine, he is not shown to have the medical expertise to offer an opinion on such a complex medical question. The disability at issue involves the mechanics of the spine, and determining any relationship to other disabilities requires more than lay observation. He is not shown to be competent to render an opinion as to the nature of his underlying disability, or to identify that cervical spine disability is related to active service or due to or aggravated by his service-connected Scheuermann's kyphosis of dorsolumbar spine. In essence, the Veteran’s lay contentions cannot support an award of service connection for this claim. In short, for reasons and bases set forth above, the Board concludes that the preponderance of the evidence is against granting service connection for cervical spine disability, to include as secondary to Scheuermann's kyphosis of dorsolumbar spine. On this matter, the benefit-of-the-doubt rule does not apply, and the claim must be denied. 38 U.S.C. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). Numbness of Both Hands, Left Fingers, and Right Fingers Service treatment records do not reflect any findings or complaints of numbness or injury or disease of both hands, left fingers, or right fingers. The Veteran underwent no treatment for disabilities of both hands, left fingers, or right fingers in active service. He was first diagnosed with peripheral neuropathy many years after his separation from active service. Hence, direct service connection for disabilities manifested by numbness of both hands, left fingers, and right fingers is not warranted because there is no competent evidence linking his current disabilities to any disease or injury in active service. Here, the evidence does not show that disabilities of both hands, left fingers, or right fingers had their onset in active service, or that a chronic disease (to include organic diseases of the nervous system) manifested within one year after the Veteran’s separation from active service. As such, he is not entitled to direct or presumptive service connection. A VA examiner in December 2014 found no associated pertinent physical findings, complications, conditions, signs, or symptoms related to the Veteran’s Scheuermann's kyphosis of dorsolumbar spine. A December 2015 VA examination report includes findings of numbness in both hands, and decreased sensation for light touch of hands and fingers. Specific nerves affected and the severity of incomplete paralysis are shown as median nerve, bilaterally, described as moderate; and lower radicular group, bilaterally, described as mild. Other pertinent physical findings include cervical radiculopathy. An April 2018 VA examination report includes a diagnosis of peripheral neuropathy NOT due to back condition. The examiner explained that the electromyograph and nerve conduction studies completed in May 2014 revealed a diagnosis of large fiber sensorimotor peripheral neuropathy, which is a disease of the major large fiber nerves in the body. The examiner explained that the Veteran’s service-connected Scheuermann's kyphosis of dorsolumbar spine has the potential to cause radiculopathy, which is disease of the radicular nerve roots as they exit the back; and has a very different etiology, and quite different findings on electromyograph and nerve conduction studies. In this regard, there is no anatomical or electrodiagnostic evidence for a nexus between the Veteran’s Scheuermann's kyphosis of dorsolumbar spine and his peripheral neuropathy. The examiner also indicated that the MRI scans of lumbar spine conducted in September 2013 reveal evidence of neither spinal canal stenosis nor nerve root compression. Significantly, the awards of service connection for peripheral neuropathy of each foot appear to have been made in error; however, those issues currently are not before the Board. Here, the evidence is against finding that disabilities manifested by numbness of both hands, left fingers, or right fingers are related (causation) to a service-connected disease or injury. No examiner has attributed the Veteran’s disabilities manifested by numbness of both hands, left fingers, or right fingers to the service-connected Scheuermann’s kyphosis of dorsolumbar spine. Again, the evidence of record does not support a causal relationship specifically between peripheral neuropathy and Scheuermann’s kyphosis of dorsolumbar spine. The April 2018 examiner’s opinion, together with the December 2014 findings, are broad enough to encompass aggravation. Lastly, service connection has not been established for cervical spine disability. Hence, secondary service connection for cervical radiculopathy is not applicable. The Board is within its province to decide as to whether the evidence supports a finding of service incurrence. See Barr v. Nicholson, 21 Vet. App. 303, 307 (2007). Here, the first credible showing of pertinent disabilities is many years after service with no competent evidence that the disabilities are in any way related to active service or to a service-connected disability. In short, for the reasons and bases set forth above, the Board concludes that the preponderance of the evidence is against granting service connection for disabilities manifested by numbness of either hand, left fingers, or right fingers. On this matter, the benefit-of-the-doubt rule does not apply, and each of these claims must be denied. 38 U.S.C. § 5107(b); Gilbert, 1 Vet. App. at 53-56. Carpal Tunnel Syndrome of Bilateral Wrist Service treatment records do not reflect any findings or complaints of pain, numbness, or tingling, or of injury or disease, of both wrists. The Veteran underwent no treatment for carpal tunnel syndrome in active service. He was first diagnosed with carpal tunnel syndrome many years after his separation from active service. Hence, direct service connection for carpal tunnel syndrome of bilateral wrist is not warranted because there is no competent evidence linking his current disability to any disease or injury in active service. Here, the evidence does not show that carpal tunnel syndrome of bilateral wrist had its onset in active service, or that a chronic disease (to include organic diseases of the nervous system) manifested within one year after the Veteran’s separation from active service. As such, he is not entitled to direct or presumptive service connection. Private treatment records show that the Veteran first was diagnosed with carpal tunnel syndrome of bilateral wrist in May 2014, based on electrodiagnostic evidence of “large fiber sensory and motor median neuropathy at wrist (moderate carpal tunnel syndrome) bilaterally.” These findings are shown as consistent with a demyelinating disease process, which affects each of the Veteran’s extremities. As noted above, an April 2018 examiner found no anatomical or electrodiagnostic evidence for a nexus between the Veteran’s Scheuermann’s kyphosis of dorsolumbar spine and his peripheral neuropathy. Here, again, the evidence is against finding that carpal tunnel syndrome of bilateral wrist is related (causation or aggravation) to a service-connected disease or injury. No examiner has attributed the Veteran’s disability to the service-connected Scheuermann’s kyphosis of dorsolumbar spine, and no examiner has found evidence of aggravation. The first credible showing of pertinent disability is many years after service with no competent evidence that the disability is in any way related to active service or to a service-connected disability. Migraine Headaches Service treatment records do not reflect any findings or complaints of headaches. VA neurologic examination in May 1988 is entirely normal. In September 1990, the Veteran’s treating chiropractor indicated that the Veteran first presented in March 1989 with complaints of severe neck and lower back pain with headaches; and that the Veteran’s condition likely was permanent to some degree. Private records show a diagnosis of ocular migraine in October 2007. The Veteran reported having headaches approximately three days per month, and that precipitating factors were stress. He reported that his headaches over the last six months have gradually worsened. In September 2014, the Veteran described flare-ups of his service-connected Scheuermann's kyphosis of dorsolumbar spine as including migraines; and reported no signs or symptoms due to radiculopathy. An October 2014 physical disability evaluation provided by the Social Security Administration reveals a history of migraines, and that the Veteran occasionally had ocular migraines manifested by blurred vision. He was not undergoing any treatment presently for migraines. Following evaluation, the impression was migraines. Private records show that the Veteran reported pain radiating into his head in January 2015, which was described as a sharp, stabbing, numbness, burning, and throbbing sensation. He described the pattern of his headaches as pain in entire head, pain in head and neck, pain in back of head, pain in temples, and pain in and around the eyes. The frequency of his headaches was daily. The Veteran reported that the migraine headaches began about three-to-four years ago, and that he was prescribed medication; and that he discontinued the medications on his own. He reported having daily headaches, and reported having migraines about one-to-two times per week. In May 2015, the Veteran reported having headaches during active service. He is competent to testify on factual matters of which he has first-hand knowledge. Washington v. Nicholson, 19 Vet. App. 362 (2005). Private records, dated in July 2015, show cervical pain associated with headaches; and that headaches occurred every two-to-three days, and were typically relieved almost immediately with essential oils. Records also show flare-ups of headache pain in September 2015. A December 2015 VA examination report reflects that the Veteran visited an Emergency Room in April 2014 for back and neck pain, and for a 72-hour migraine. Following examination, the examiner opined that the Veteran’s migraine and other headache disorders are from cervical disc disease, cervical radiculopathy, cervicalgia, and numbness in hands and feet. In this regard, the examiner explained that the Veteran’s diagnosed conditions stem from his many neurological disorders related to his central and peripheral nervous system. Another VA examiner in December 2015 noted that the Veteran first was diagnosed with frequent headaches in active service; and that he received treatment for headache, cluster headache, and tension headache since 1985. The examiner opined that the Veteran’s headaches are related to his back and neck conditions; and that they occur very frequently, and are completely prostrating and prolonged. The examiner also indicated that the Veteran first was diagnosed with ocular migraines and visual disturbances in 2006; and opined that it is more likely than not that the Veteran’s headaches and migraines are associated with active service, and aggravated by and contributed to by his ongoing back and neck conditions. In this case, there are conflicting medical opinions. One examiner in December 2015 found that the Veteran’s migraine and other headache disorders primarily are from cervical disc disease and radiculopathy, which are not service-connected. Based on this same evidence, another examiner in December 2015 opined that it is more likely than not that the Veteran’s headaches and migraines are associated with active service, and aggravated by ongoing back and neck conditions. At worst, the record is in equipoise. Accordingly, service connection is warranted for migraine headaches. In reaching this decision, the Board has extended the benefit of the doubt to the Veteran. 38 U.S.C. § 5107. Sleep Disorder and Fatigue The evidence does not show that any disability manifested by sleep disturbance or by fatigue had its onset in active service. No examiner has found objective evidence or pathology which would support a diagnosis of sleep disorder or chronic fatigue syndrome. The Board has considered the Veteran’s statements regarding sleep disturbance and fatigue as being among his current disabilities. However, there is no formal diagnosis of any sleep disorder or of chronic fatigue syndrome. While the Veteran is competent to report symptoms, he is not competent to provide an etiology opinion linking current sleep disturbance and fatigue to active service, as this is beyond the capacity of a lay person to observe. Service treatment records do not reflect any findings or complaints of sleep disturbance or fatigue. At best, doctors have identified trouble sleeping or fatigue as a symptom of another condition, and not as a free-standing, service-connectable disability. In September 1990, the Veteran’s treating chiropractor associated trouble sleeping with back and neck pain. The Veteran reported fatigue, anxiety, and sleeping problems in January 2015. He again complained of chronic low back pain with ongoing fatigue in June 2015, though at a December 2015 VA examination he did not cite back pain as a factor in sleep or fatigability. He has also at time cited sleep difficulties and fatigue as symptoms of a psychiatric problem, but doctors have found he does not meet the criteria for such a diagnosis. In short, the evidence weighs against granting service connection for disability manifested by sleep disturbance or fatigue, to include as secondary to service-connected disease or injury. The benefit-of-the-doubt rule does not apply, and each of the claims must be denied. 38 U.S.C. § 5107(b); Gilbert, 1 Vet. App. at 53-56. Chronic Pain Syndrome Service treatment records do not reflect any findings or complaints of chronic pain syndrome. Here, the evidence does not show that chronic pain syndrome had its onset in active service. In March 2014, the Veteran contended that his painful joints were caused by his cervical spine disability. In June 2015, he contended that his joint pains were caused by his left knee disability. Service connection has not been established for either cervical spine disability or left knee disability. Hence, secondary service connection for painful joints or joint pains is not applicable in this regard. Post-service records show that the Veteran first was treated for chronic pain syndrome in 2015. In April 2015, he reported ocular migraine flare-ups, carpal tunnel syndrome, ongoing cervical pain, and back pain; follow-up was with a pain clinic, as needed. The Veteran described his pain as constant. His current functioning was assessed in June 2015; and treatment recommendations were formulated, including the role of psychology. Self-management, coping skills, quality of life, and approach towards medications were discussed. While VA recognizes that pain which causes functional impairment is a disability, here the Veteran’s complaints of various pains and impairments are subsumed by other diagnoses and disabilities, to include his upper extremity neurological conditions, his nonservice-connected cervical spine disability, his service-connected low back disability, and his headache disorder. Significantly, the anti-pyramiding provision of 38 C.F.R. § 4.14 directs that the evaluation of the ‘same disability’ or, more appropriately in this case, the ‘same manifestation’ under various diagnoses is to be avoided. As such, service connection for chronic pain syndrome involving both service-connected disabilities and nonservice-connected disabilities is neither warranted nor appropriate. For reasons and bases set forth above, the evidence is against granting service connection for chronic pain syndrome. The benefit-of-the-doubt rule does not apply, and the claim must be denied. 38 U.S.C. § 5107(b); Gilbert, 1 Vet. App. at 53-56. Rating Scheuermann's Kyphosis of Dorsolumbar Spine Disability ratings are determined by applying the criteria set forth in VA’s Schedule for Rating Disabilities, which is based on average impairment in earning capacity. Separate diagnostic codes identify the various disabilities. 38 U.S.C. § 1155 (2012); 38 C.F.R. § 4.1 (2018). Separate ratings may be assigned for separate periods of time based on the facts found. This practice is known as “staged” ratings.” Fenderson v. West, 12 Vet. App. 119, 126-127 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). VA regulations set forth at 38 C.F.R. §§ 4.40, 4.45, and 4.59 provide for consideration of functional impairment due to pain on motion when evaluating the severity of a musculoskeletal disability. If feasible, these determinations are to be expressed in terms of the degree of additional range-of-motion loss due to any weakened movement, excess fatigability, incoordination, or pain. DeLuca v. Brown, 8 Vet. App. 202 (1995); see also Johnston v. Brown, 10 Vet. App. 80, 84-5 (1997); 38 C.F.R. § 4.59 (2016). The service-connected Scheuermann's kyphosis of dorsolumbar spine is assigned a 20 percent rating under Diagnostic Code 5242. Spinal disabilities are primarily evaluated under a general rating formula (which provides the criteria for rating orthopedic disability, and authorizes separate evaluations of its chronic neurologic manifestations). The current 20 percent evaluation contemplates pain on motion. Also, it is consistent with forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees; or, the combined range of motion of the thoracolumbar spine not greater than 120 degrees; or, muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis. A higher evaluation of 40 percent may be assigned if there is the functional equivalent of forward flexion of the thoracolumbar spine limited to 30 degrees or less; or, favorable ankylosis of the entire thoracolumbar spine. A 50 percent disability evaluation is assigned for unfavorable ankylosis of the entire thoracolumbar spine. A 100 percent disability evaluation is assigned for unfavorable ankylosis of entire spine. 38 C.F.R. § 4.71a, Diagnostic Codes 5235-5243 (2018). Alternatively, intervertebral disc syndrome is evaluated (preoperatively or postoperatively) either based on incapacitating episodes over the past 12 months, or under the general rating formula for spinal disabilities—whichever method results in the higher evaluation when all disabilities are combined under 38 C.F.R. § 4.25. A higher evaluation of 40 percent rating may be assigned if there are incapacitating episodes having a total duration of at least four weeks, but less than six weeks, during the past 12 months. A maximum, 60 percent rating is warranted for incapacitating episodes having a total duration of at least six weeks during the past 12 months. 38 C.F.R. § 4.71a, Diagnostic Code 5243. 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. 38 C.F.R. § 4.71a, Diagnostic Code 5243 (Note 1). In general, the rating criteria for spinal disabilities take into account pain and other symptoms. Pain is often the primary factor limiting motion and is almost always present when there is muscle spasm. Therefore, an evaluation based on pain alone would not be appropriate, unless there is specific nerve root pain, for example, that could be evaluated under the neurological sections of the rating schedule. Schedule for Rating Disabilities; The Spine, 68 Fed. Reg. 51,454 (Aug. 27, 2003) (See also 38 C.F.R. § 4.71a, Diagnostic Codes 5235-5243). Diagnostic imaging in June 2013 identified no acute lumbar spine pathology. MRI scans conducted in September 2013 revealed mild multi-level degenerative disk disease and facet joint hypertrophy of the lumbar spine without spinal canal stenosis or nerve root compression. Private records show that the Veteran underwent a physical functional evaluation in March 2014. Ranges of motion of the lumbar spine were decreased, as follows: Flexion to 5 degrees, extension to 5 degrees; bending right to 10 degrees; and bending left to 15 degrees. The physician opined that the Veteran could lift ten pounds maximum, and could frequently lift or carry lightweight articles. He could walk or stand only for brief periods. Assessments in March 2014 included chronic back pain in the mid-lumbar area; L2-L3 anterior acute/subacute Schmorl’s node and compression fracture with Modic 1-2 changes; multi-level lumbar Schmorl’s nodes and facet effusion; multi-level degenerative changes in the thoracic spine, mild to moderate; and mild cervical spondylosis with no instability. The September 2014 VA examination report reveals that the Veteran reported extreme pain in the lumbar spine, and reported flare-ups. Ranges of motion of the thoracolumbar spine were to 40 degrees on flexion; to 10 degrees on extension; to 15 degrees on bending to the right; to 10 degrees on bending to the left; to 10 degrees on rotation to the right; and to 20 degrees on rotation to the left. Pain was noted at the extremes of motion. There was no additional decrease in ranges of motion following repetitive-use testing. Contributing factors of disability included less movement than normal, and pain on movement. The examiner estimated that the degree of ranges of motion loss during pain on use or flare-ups was approximately 5 degrees in all directions. Muscle strength testing was normal, and there was no atrophy. Deep tendon reflexes and sensory examination were normal. Straight leg raising test was negative. The Veteran did not have radicular pain or other signs or symptoms due to radiculopathy. An October 2014 physical disability evaluation conducted for the Social Security Administration reveals that the Veteran complained of pain in his lower back with gentle axial compression of the shoulders, and with pseudo en bloc rotation. He was noted to have mild mid-thoracic kyphosis. The Veteran had a negative straight leg raising test from a sitting position, and there was no palpable spasm. Ranges of motion of the thoracolumbar spine were to 10 degrees on flexion; to 7 degrees on extension; to 5 degrees on bending to the right; to 15 degrees on bending to the left; to 20 degrees on rotation to the right; and to 20 degrees on rotation to the left. The July 2015 VA examination report reveals that the Veteran’s Scheuermann's kyphosis of dorsolumbar spine has stayed the same since last examined. The Veteran reported feeling a constant burning pain, which increased to sharp and momentarily stabbing; and that he took medication, as needed. Ranges of motion of the thoracolumbar spine were to 60 degrees on flexion; to 30 degrees on extension; to 30 degrees on bending to the right; to 30 degrees on bending to the left; to 30 degrees on rotation to the right; and to 30 degrees on rotation to the left. Pain was noted at the extremes of flexion and extension. There was no additional decrease in ranges of motion following repetitive-use testing. Contributing factors of disability included less movement than normal, and pain on movement. Muscle strength testing was normal, and there was no atrophy. Deep tendon reflexes and sensory examination were normal. Straight leg raising test was negative. The Veteran did not have radicular pain or other signs or symptoms due to radiculopathy. The examiner noted that the Veteran did not have intervertebral disc syndrome of the thoracolumbar spine, and he reported no incapacitating episodes over the past twelve months due to intervertebral disc syndrome. The December 2015 VA examination report reveals complaints of severe daily discomfort and limited activity, as well as pain in the lumbar spine. The Veteran reportedly was unable to sit or stand for more than one hour at a time, and he lay in bed most days. He was unable to walk more than a half mile without needing to rest or experiencing severe pain. Ranges of motion of the thoracolumbar spine were to 40 degrees on flexion; to 10 degrees on extension; to 10 degrees on bending to the right; to 15 degrees on bending to the left; to 10 degrees on rotation to the right; and to 20 degrees on rotation to the left. Pain was noted in weight-bearing. There was no additional decrease in ranges of motion following repetitive-use testing. Contributing factors of disability included less movement than normal, weakened movement, pain on movement, swelling, deformity, interference with sitting, and interference with standing. There was localized tenderness of the soft tissue, and joint pain in the thoracolumbar spine. Muscle strength testing was normal, and there was no atrophy. Deep tendon reflexes were normal. Sensory examination in December 2015 was normal for bilateral thigh, bilateral knee, bilateral lower leg, and bilateral ankle; and was decreased for bilateral foot and toes. Straight leg raising test was positive. The Veteran did have radicular pain or other signs or symptoms due to radiculopathy in bilateral lower extremity, including intermittent pain and dull pain described as moderate; paresthesias, described as moderate; and numbness, described as severe. The examiner noted that the Veteran experienced numbness in his feet, and burning sensations in his mid-to-low back. The level of severity of radiculopathy was noted as severe. The examiner noted involvement of the femoral nerve and sciatic nerve. The examiner also indicated that the Veteran does have intervertebral disc syndrome of the thoracolumbar spine, and that he experienced a duration of at least four weeks but less than six weeks of incapacitating episodes over the past twelve months. The examiner explained that the Veteran experienced incapacitating episodes frequently—that is, one-to-two times a week. Lastly, the December 2015 examiner found that the Veteran had unfavorable ankylosis of the entire thoracolumbar spine. As noted above, an April 2018 VA examiner subsequently clarified and explained that the Veteran’s peripheral neuropathy was not due to the service-connected Scheuermann’s kyphosis of dorsolumbar spine. The Veteran’s radiculopathy affecting bilateral foot also has been separately evaluated. In addition, the December 2015 examiner’s findings appear internally inconsistent—that is, noting degrees of ranges of motion of the thoracolumbar spine, and noting unfavorable ankylosis of the thoracolumbar spine without explanation. In this regard, VA treatment records show that the Veteran easily performed a functional “pick-up/squat” test with no increased pain behavior in June 2016. Under these circumstances, ankylosis—favorable or unfavorable—has not been demonstrated; and the December 2015 examiner’s findings are not entitled to any probative weight. The Veteran was afforded another VA examination in September 2017, which revealed a diagnosis of degenerative disk disease of lumbar spine. Ranges of motion of the thoracolumbar spine were to 15 degrees on flexion; to 5 degrees on extension; to 10 degrees on bending to the right; to 10 degrees on bending to the left; to 10 degrees on rotation to the right; and to 10 degrees on rotation to the left. Pain was noted on examination and with weight-bearing, and caused functional loss. Functional loss was described as difficulty bending and lifting and carrying a load. Muscle strength testing was normal, and there was no atrophy. Straight leg raising test was positive, and moderate radiculopathy was noted in bilateral lower extremity. There was no finding of ankylosis. The examiner indicated that there was guarding or muscle spasm of the thoracolumbar spine, resulting in abnormal gait or abnormal spine contour. The examiner also indicated that the Veteran has intervertebral disc syndrome; and that during the past twelve months, the Veteran reported that he experienced episodes of bed rest having a total duration of at least six weeks. In this regard, no documentation was provided; and the examiner’s finding was based on a medical history provided by the Veteran in which he indicated that he self-limited activity due to spasm and pain. In this case, throughout the rating period, the most probative evidence shows that the Veteran can flex his thoracolumbar spine to 30 degrees. While greater degrees of flexion have been demonstrated at times, the evidence also reflects additional functional loss. Here, the September 2014 examiner estimated a 5-degree change in ranges of motion in all directions due to pain on use and during flare-ups. Pain and limited motion are shown as the primary factors impairing the Veteran’s function. There is no ankylosis of the thoracolumbar spine. Given examiners’ findings of flexion primarily limited to 30 degrees or less, and demonstrated functional loss, the Board finds that the evidence meets the criteria for a 40 percent, but no higher, disability rating under the general rating formula. 38 U.S.C. § 5107(b); 38 C.F.R. §§ 4.7, 4.21 (2018). The evidence is against the award of a disability rating greater than 40 percent at any time, based on orthopedic findings. Here, the Board has awarded the maximum evaluation based upon limited motion and functional impairment. A 40 percent evaluation contemplates motion that is 30 degrees or less, to include no motion. See, e.g., Johnston, 10 Vet. App. at 84-5. Hence, any additional examinations to comply with the requirements of 38 C.F.R. § 4.59 for proper measurement of painful motion are not warranted. Credible evidence of unfavorable ankylosis of the entire thoracolumbar spine, or incapacitating episodes having for a total duration of at least six weeks during a 12-month period have not been demonstrated. While the Veteran reported incapacitating episodes occurring weekly, no physician has prescribed bed rest. Effective Date of Service Connection The effective date for a grant of service connection is the day following the date of separation from active service or the date entitlement arose, if the claim is received within one year after separation from service. Otherwise, it is the date of receipt of claim, or the date entitlement arose, whichever is later. 38 U.S.C. § 5110(a), (b); 38 C.F.R. § 3.400(b). The effective date of service connection based on a reopened claim is the date of receipt of the new claim or date entitlement arose, whichever is later. 38 C.F.R. § 3.400(r). In cases involving new and material evidence, where evidence other than service department records is received within the relevant appeal period or prior to the issuance of the appellate decision, the effective date will be as though the former decision had not been rendered. 38 C.F.R. § 3.400(q)(1). In cases where the evidence is received after the final disallowance, the effective date is the date of receipt of the new claim or the date entitlement arose, whichever is later. 38 C.F.R. § 3.400(q)(2). There is no basis for a freestanding earlier effective date claim from matters addressed in a final rating decision. See Rudd v. Nicholson, 20 Vet. App. 296 (2006). Generally, the effective date of service connection based on a reopened claim is the date of receipt of the new claim or date entitlement arose, whichever is later. 38 C.F.R. § 3.400(r). Scheuermann’s Kyphosis of Dorsolumbar Spine Here, the Veteran first filed a formal claim for service connection for a low back disability on March 30, 1988. In a June 1988 decision, the RO denied service connection for Scheuermann's kyphosis of dorsolumbar spine. In a November 1990 decision, the RO again denied service connection. In an August 2008 rating decision, the RO confirmed and continued the previous denial of service connection for Scheuermann's kyphosis of dorsolumbar spine. On February 4, 2011, the Veteran again filed to reopen a claim for service connection for Scheuermann's kyphosis of dorsolumbar spine. In a March 2011 rating decision, the RO declined to reopen the claim; and the Veteran timely initiated and perfected an appeal. Subsequently, in November 2014, a Decision Review Officer (DRO) granted service connection for Scheuermann's kyphosis of dorsolumbar spine, effective April 29, 2014. The Veteran appealed for an earlier effective date. It appears the DRO set the effective date based on receipt of the evidence found sufficient to reopen the claim. Presumably this was considered the date entitlement arose under the regulation. However, regardless of when that evidence was received, it is considered submitted in conjunction with the reopened claim of February 4, 2011. 38 C.F.R. § 3.156(a). As the low back disability has been extant for many years, it is the receipt of the reopened claim which is the later here, and therefore an earlier effective date of service connection of February 4, 2011, is warranted. As is noted above, the Veteran has filed a claim for CUE in the earliest 1988 and 1990 denials of service connection for his low back disability. Those claims are referred to the RO, and are not intertwined with the Board’s determination here. Bilateral Hearing Loss Disability, and Tinnitus Here, the Veteran first filed a claim for service connection for a hearing loss disability and for tinnitus on October 9, 2007. In an August 2008 decision, the RO denied service connection. On April 4, 2014, the Veteran filed to reopen those claims. Subsequently, in June 2015, the RO granted service connection for a bilateral hearing loss disability and for tinnitus, effective April 4, 2014. The Veteran appealed for an earlier effective date. Between August 2008 and April 2014, no formal or informal claim, or other evidence or other communication which might be construed as an attempt to file a claim, with regard to hearing loss or tinnitus, was received by VA. The effective date for an award of service connection on a reopened claim is the date of receipt of the claim or the date entitlement is shown, whichever is later. Here, the date of the reopened claim controls. REASONS FOR REMAND TDIU VA treatment records have raised the issue of TDIU as part and parcel of the claims for increased rating; the Veteran has submitted several records indicating findings by VA that he is not employable at present due to his service-connected disabilities. This claim has not yet been adjudicated, and further, in light of grants of service connection and increased rating herein, required additional development. The matter is REMANDED for the following action: 1. Take necessary action to implement the grant of service connection for headaches and the award of increased rating and earlier effective date for a dorsolumbar spine disability, as above. 2. Contact the Veteran and request a properly executed VA Form 21-8940, Veteran’s Application for Increased Compensation Based on Unemployability. 3. After completion of the above, adjudicate the issue of entitlement to TDIU. If the benefit sought remains denied, furnish a supplemental statement of the case and then return the appeal to the Board, if otherwise in order. WILLIAM H. DONNELLY Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Mary C. Suffoletta