Citation Nr: 19133131 Decision Date: 04/29/19 Archive Date: 04/29/19 DOCKET NO. 18-09 089 DATE: April 29, 2019 ORDER New and material evidence has not been received, and the request to reopen the finally disallowed claim for service connection for a bilateral hearing loss disability is denied. New and material evidence has been received, and the request to reopen the finally disallowed claim of entitlement to service connection for intervertebral disc syndrome (IVDS) of the thoracolumbar spine (hereinafter “low back disability) is granted. New and material evidence has been received, and the request to reopen the finally disallowed a claim of entitlement to service connection for a respiratory condition is granted. New and material evidence has been received, and the request to reopen the finally disallowed claim of entitlement to service connection for a heart condition is granted. New and material evidence has been received, and the request to reopen the finally disallowed claim of entitlement to service connection for a skin lesion of the left cheek is granted. Entitlement to service connection for a low back disability is granted. Entitlement to service connection for right 3rd digit deformity is denied. Entitlement to an evaluation in excess of 10 percent for tinnitus is denied. Entitlement to an evaluation in excess of 10 percent for hypertension is denied. Entitlement to a compensable evaluation for a linear scar of the left posterior knee is denied. REMANDED Entitlement to service connection for pes planus is remanded. Entitlement to service connection for sleep apnea, to include as due to an undiagnosed illness or medically unexplained chronic multisymptom illness or environmental exposures (burn pits) in Southwest Asia, is remanded Entitlement to service connection for a heart condition, to include as due to an undiagnosed illness or medically unexplained chronic multisymptom illness or environmental exposures (burn pits) in Southwest Asia, is remanded. Entitlement to service connection for a respiratory condition, to include as due to an undiagnosed illness or medically unexplained chronic multisymptom illness or environmental exposures (burn pits) in Southwest Asia, is remanded. Entitlement to service connection for a skin lesion, left cheek, to include as due to an undiagnosed illness or medically unexplained chronic multisymptom illness or environmental exposures (burn pits) in Southwest Asia, is remanded. Entitlement to service connection for left leg numbness, to include as due to an undiagnosed illness or medically unexplained chronic multisymptom illness or environmental exposures (burn pits) in Southwest Asia, is remanded. Entitlement to an evaluation in excess of 30 percent for posttraumatic stress disorder (PTSD) with major depressive disorder and generalized anxiety disorder is remanded. Entitlement to an initial evaluation in excess of 30 percent for temporomandibular joint (TMJ) with bruxism is remanded. Entitlement to a total disability based on individual unemployability (TDIU) is remanded. FINDINGS OF FACT 1. An unappealed August 2006 rating decision denied the claims of entitlement to service connection for bilateral hearing loss, a low back disability, a respiratory condition, a skin lesion of the left cheek. 2. The evidence received since the August 2006 rating decision is new to the record but does not raise a reasonable possibility of substantiating the claim of entitlement to service connection for bilateral hearing loss. 3. The evidence received since the August 2006 rating decision is neither cumulative nor redundant and raises a reasonable possibility of substantiating the claims of entitlement to service connection for a respiratory condition and a skin lesion of the left cheek. 4. An unappealed August 2008 rating decision declined to reopen the claim of entitlement to service connection for a low back disability. 5. The evidence received since the August 2008 rating decision is neither cumulative nor redundant and raises a reasonable possibility of substantiating the claim of entitlement to service connection for a low back disability. 6. An unappealed December 2011 rating decision denied the claim of entitlement to service connection for a heart condition. 7. The evidence received since the December 2011 rating decision is neither cumulative nor redundant and raises a reasonable possibility of substantiating the claim of entitlement to service connection for a heart condition. 8. The Veteran’s right 3rd digit deformity is not etiologically related to an injury, event, or disease during active duty, active duty for training (ADT) or inactive duty for training (IDT). 9. The most competent and probative evidence of record demonstrates that the Veteran’s currently diagnosed low back is related to service. 10. The Veteran has been in receipt of the maximum schedular rating for tinnitus throughout the appeal period. 11. At no time during the appeal period has the Veteran’s hypertension manifested by evidence of diastolic blood pressure predominantly 110 or more or systolic blood pressure predominantly 200 or more. 12. Throughout the appeal period, the Veteran’s left knee scar has not been painful or unstable, is not deep, does not cover an area of 6 square inches or greater, is not associated with any underlying soft tissue damage, and has not resulted in any disabling effects. CONCLUSIONS OF LAW 1. The August 2006 rating decision denying claims of entitlement to service connection for bilateral hearing loss, a low back disability, a respiratory condition, and a skin lesion of the left cheek, is final. 38 U.S.C. § 7105 (2012); 38 C.F.R. §§ 20.201, 20.300, 20.302, 20.1103 (2018). 2. The August 2008 rating decision declining to reopen a claim of entitlement to service connection for a low back disability is final. 38 U.S.C. § 7105 (2012); 38 C.F.R. §§ 20.201, 20.300, 20.302, 20.1103 (2018). 3. The December 2011 rating decision denying the claim of entitlement to service connection for a heart condition is final. 38 U.S.C. § 7105 (2012); 38 C.F.R. §§ 20.201, 20.300, 20.302, 20.1103 (2018). 4. New and material evidence has not been received, and the criteria to reopen the finally disallowed claim of entitlement to service connection for bilateral hearing loss have not been met. 38 U.S.C. § 5108 (2012); 38 C.F.R. § 3.156 (2018). 5. New and material evidence has been received, and the criteria to reopen the finally disallowed claim of entitlement to service connection for a respiratory condition have been met. 38 U.S.C. § 5108 (2012); 38 C.F.R. § 3.156 (2018). 6. New and material evidence has been received, and the criteria to reopen the finally disallowed claim of entitlement to service connection for a skin lesion of the left cheek have been met. 38 U.S.C. § 5108 (2012); 38 C.F.R. § 3.156 (2018). 7. New and material evidence has been received, and the criteria to reopen the finally disallowed claim of entitlement service connection for a low back disability have been met. 38 U.S.C. § 5108 (2012); 38 C.F.R. § 3.156 (2018). 8. New and material evidence has been received, and the criteria to reopen the finally disallowed claim of entitlement to service connection for a heart condition have been met. 38 U.S.C. § 5108 (2012); 38 C.F.R. § 3.156 (2018). 9. The criteria for service connection for a right 3rd digit deformity disability are not met. 38 U.S.C. §§ 1110, 1137, 5107(b) (2012); 38 C.F.R. §§ 3.102, 3.303 (2018). 10. The criteria for service connection for a low back disability (claimed as IVDS of the thoracolumbar spine) are met. 8 U.S.C. §§ 1110, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309 (2018). 11. There is no legal basis for the assignment of either a higher single evaluation for tinnitus or separate 10 percent disability ratings for the tinnitus of each ear. 38 U.S.C. § 1155; 38 C.F.R. § 4.87, Diagnostic Code 6260; Smith v. Nicholson, 451 F.3d. 1344 (Fed. Cir. 2006). 12. The criteria for entitlement to a disability rating in excess of 10 percent for hypertension have not been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.104, DC 7101 (2018). 13. The criteria for a compensable rating for a left knee scar have not been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. § 4.118, Diagnostic Code 7805 (2018). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from September 2000 to February 2001, from June 2004 to November 2005, from September 2009 to October 2009 and from September 2010 to May 2011; the Veteran also served on periods of Active Duty for Training and Inactive Duty for Training with the Army National Guard from 1999 to 2016. These matters come before the Board of Veterans' Appeals (Board) on appeal from September 2016 and October 2017 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in Fort Harrison, Montana. Notices of Disagreement were submitted in November 2016 and November 2017, respectively. Statements of the Case were issued in December 2017 and January 2018. The Veteran perfected the appeals with the timely submission of VA Forms 9 in February 2018. I. New and Material Evidence Service connection may be established for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303. VA rating decisions that are not timely appealed are final. 38 U.S.C. § 7105; 38 C.F.R. § 20.1103. A finally disallowed claim may be reopened when new and material evidence is presented or secured with respect to that claim. 38 U.S.C. § 5108. New evidence is defined as evidence not previously submitted to agency decision-makers. Material evidence means existing evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. New and material evidence can be neither cumulative nor redundant of the evidence of record at the time of the last prior final denial of the claim sought to be reopened, and must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156 (a). An adjudicator must follow a two-step process in evaluating a previously denied claim. First, the adjudicator must determine whether the evidence added to the record since the last final decision is new and material. If new and material evidence is presented or secured with respect to a claim that has been finally denied, the claim will be reopened and decided upon the merits. Once it has been determined that a claimant has produced new and material evidence, the adjudicator must evaluate the merits of the claim in light of all the evidence, both new and old, after ensuring that the VA's statutory duty to assist the appellant in the development of a claim has been fulfilled. 38 U.S.C. § 5108; Elkins v. West, 12 Vet. App. 209 (1999); Vargas-Gonzalez v. West, 12 Vet. App. 321 (1999). The claim to reopen does not require the submission of new and material evidence as to each previously unproven element of a claim for that claim to be reopened. Shade v. Shinseki, 24 Vet. App 110 (2010). For the purpose of establishing whether new evidence is material, the credibility of the new evidence, although not its weight, is presumed. Justus v. Principi, 3 Vet. App. 510 (1992). 1. Whether new and material evidence has been submitted to reopen a claim of entitlement to service connection for bilateral hearing loss. Service connection for a bilateral hearing loss disability was denied in an August 2006 rating decision. At the time of the August 2006 decision, the evidence consisted of the Veteran’s statements concerning onset/etiology; service treatment records (STRs); and a VA audiological examination report. Specifically, the Veteran claimed that he had been exposed to weapons fire and explosions while on active duty. STRs were negative for complaints, treatment, and/or diagnoses of hearing loss. The Veteran attended a VA examination in July 2006 and the audiometric findings did not meet the regulatory criteria for a hearing loss disability for VA purposes. The RO concluded that there was no evidence of record that showed audiometric findings which met the criteria for service connection for defective hearing. The Veteran did not submit a timely notice of disagreement or submit new and material evidence within one year of the issuance of the rating decision. Accordingly, the August 2006 rating decision became final. Evidence associated with the claims file since the August 2006 rating decision includes statements from the Veteran in support of his claim and VA treatment records and an examination report. The VA treatment records and examination report added to the claims file are new, but they are not material, as none of the treatment providers provide any audiometric findings which meet the regulatory criteria for a hearing loss disability for VA purposes. See 38 C.F.R. § 3.385. In this regard, the June 2016 VA audiology examination showed normal right and left ear hearing and speech recognition scores using the Maryland CNC Test were 96 percent, bilaterally. VA treatment records contain no findings or diagnoses hearing loss. The newly added statements from the Veteran reiterate the previously considered assertion that he has a bilateral hearing loss disability related to hazardous noise exposure that occurred during his service. Those statements are cumulative and redundant of contentions that were previously considered by the RO in the August 2006 decision and they are not material evidence. In short, the Board finds that even though the additional evidence is new, it does not address unestablished facts needed to substantiate the claim. Specifically, it does not demonstrate that the Veteran has a current hearing loss disability or that such is related to service. Since the evidence does not meet the definition of material evidence, it does not satisfy the low threshold for reopening a claim. See Shade, supra. As new and material evidence has not been received, the petition to reopen the claim for service connection for bilateral hearing loss must be denied. 2. Whether new and material evidence has been submitted to reopen a claim of entitlement to service connection for a low back disability. The Veteran’s claim for a low back disability was initially denied in an August 2006 rating decision. He did not perfect an appeal, and the decision became final. The Veteran subsequently sought to reopen his claim and it was again denied in an August 2008 rating decision. At that time, the RO declined to reopen the claim on the basis that the evidence still failed to show a low back disability was incurred in or aggravated by military service. The record consisted of STRs and VA treatment records documenting a current low back disability diagnosis. The Veteran did not submit a notice of disagreement or submit new and material evidence within one year of its promulgation. Accordingly, the August 2008 rating decision became final. Evidence associated with the claims file since the August 2008 rating decision includes a VA examination report/findings, and a VA opinion linking the Veteran’s current low back disability to service. See, e.g., January 2017 VA Orthopedic Consult Note. The Board finds the opinion to be new and material, and the Veteran's claim is reopened. To this extent only, the appeal is granted. 3. Whether new and material evidence has been submitted to reopen a claim of entitlement to service connection for a heart condition. 4. Whether new and material evidence has been submitted to reopen a claim of entitlement to service connection for a skin lesion of the left cheek. 5. Whether new and material evidence has been submitted to reopen a claim of entitlement to service connection for a respiratory condition. In August 2008, the RO denied the Veteran's claim of entitlement to service connection for a skin lesion on the left cheek skin lesion on the basis that such condition was neither incurred in nor caused by service. The RO also denied the claim of entitlement to service connection for a respiratory condition on the basis that the claimed condition did not exist. The Veteran did not submit a notice of disagreement or submit new and material evidence within one year of its promulgation. Accordingly, the August 2008 rating decision became final. With respect to the claimed heart disability, the RO denied this claim in a December 2011 rating decision on the basis that the evidence failed to show a clinically diagnosed heart disability. The Veteran did not submit a notice of disagreement or submit new and material evidence within one year of its promulgation. Accordingly, the December 2011 rating decision became final. Evidence added to the claims file since the August 2008 and December 2011 decisions includes VA treatment records, private treatment records, and statements from the Veteran and his attorney regarding his respiratory, heart, and skin symptoms and his contentions that such are due to his active service, to include his exposure to burn pits and various environmental hazards therein. See, e.g., February 2018 Affidavit (describes being within a quarter to half mile of burn pits in Iraq and constantly breathing in breathing in smoke); see also July 2018 Attorney Brief. The above listed information is both new and material and therefore sufficient to reopen the previously-denied claims. 38 C.F.R. § 3.156 (a); Shade, supra. II. Service Connection Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. § 3.303. The three-element test for service connection requires evidence of: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the current disability and the in-service disease or injury. Shedden v. Principi, 381 F.3d 1163, 1166 -67 (Fed. Cir. 2004). Active military, naval, or air service includes any period of active duty for training (ACDUTRA) during which the individual concerned was disabled or died from a disease or injury incurred in or aggravated in the line of duty, or any period of inactive duty training (IADT) during which the individual concerned was disabled or died from an injury incurred in or aggravated in the line of duty. 38 U.S.C. § 101 (21) and (24) (2012); 38 C.F.R. § 3.6 (a) and (d) (2018). ACDUTRA includes full-time duty performed for training purposes by members of the Reserves and National Guard of any state. 38 U.S.C. § 101 (22) (2012); 38 C.F.R. § 3.6 (c)(1) and (3). Thus, service connection may be granted for a disability resulting from a disease or injury incurred or aggravated while performing ACDUTRA, or from an injury incurred or aggravated while performing INACDUTRA. 38 U.S.C. §§ 101 (24), 106, 1110 (2012). When a claim for service connection is based upon an injury which occurred during a period of ACDUTRA or INACDUTRA, presumptive periods and the presumption of sound of condition do not apply, regardless of whether the individual had a prior period of active service. Smith v. Shinseki, 24 Vet. App. 40, 44-46 (2010); Biggins v. Derwinski, 1 Vet. App. 474, 477-78 (1991). 1. Entitlement to service connection for right 3rd digit deformity. The Veteran seeks service connection for a right 3rd (middle) finger deformity. During a June 2016 VA Hand and Finger Conditions examination, he reported that he injured his middle finger during training in 2002. The Veteran’s personnel records reflect that he had both ACDUTRA and INACDUTRA service (but no active duty service) with the Army National Guard during 2002. As an initial matter, the medical record discloses a current diagnosis of right 3rd digit deformity. See June 2016 Hand/Finger Conditions Examination Report. Service treatment records are silent for complaints, treatment, and/or diagnoses of a right 3rd digit disability or injury during any period(s) of active duty service, ACDUTRA, or INACDUTRA. Personnel records are also negative for a Line of Duty report documenting any such injury to the right middle finger. The first post-service evidence of a right finger disability is not shown until June 2016, at which time the Veteran submitted his initial claim for service connection. This is more than five years after separation from his most recent periods of active duty and National Guard service in 2011, and nearly 15 years after the alleged injury in 2002. The Veteran underwent a VA Hand/Finger Conditions Examination in June 2016. While the examiner did not provide an etiology opinion concerning the right digit deformity, he did note that STRs did not document a finger injury. In this case, the Board finds that the preponderance of the evidence is against finding that a medical nexus exists between the Veteran's right 3rd finger deformity and an injury, event or disease incurred during active service, ACDUTRA or INACDUTRA. 38 U.S.C. § 1110; Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009); 38 C.F.R. § 3.303 (a), (d). Again, service treatment records for active duty, and available National Guard medical records (including periodic review examination reports) are absent indication of symptoms, complaints, findings, and/or diagnosis of a right finger problem/injury. Importantly, the Board observes that there is no objective evidence showing that a right finger disability manifested during a period of ACDUTRA or INACDUTRA. Although the Veteran asserted that he injured his finger during ACDUTRA or INACDUTRA training in 2002, there is simply no evidence documenting such injury. While the Veteran believes his right 3rd finger deformity disability is related to an in-service injury, event, or disease, he is not competent to provide a nexus opinion in this case. This issue is also medically complex, as it requires specialized medical knowledge. Jandreau v. Nicholson, 492 F.3d 1372, 1377, 1377 n.4 (Fed. Cir. 2007). Consequently, the Board gives more probative weight to the competent medical evidence. The Board acknowledges that a VA etiology opinion was not obtained in association with this issue. As discussed above, there is no competent evidence of finger disability due to disease or injury during the Veteran’s active duty service, or during ACDUTRA or INACDUTRA training with Army National Guard. Further, there is no competent and credible evidence suggesting a relationship between the Veteran's current symptoms and periods of active duty, active duty for training, or inactive duty for training. Thus, the Board finds that the low threshold under McLendon has not been met and a VA examination with opinion for the claimed disorder is not warranted. See 38 U.S.C. § 5103A (d); 38 C.F.R. § 3.159 (c)(4); McLendon v. Nicholson, 20 Vet. App. 79 (2006). In sum, the Board finds that the most probative evidence is against the Veteran's claim, and service connection for right 3rd finger deformity 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 competent, probative evidence is against the claim, that doctrine is not applicable. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). 2. Entitlement to service connection for a low back disability. The Veteran contends that he injured his low back while on active duty in Iraq in 2004-2005. He asserts that he jumped out of a Humvee with wearing full armor and over 100 pounds of gear. He has endorsed near-continuous low back symptomatology since that time. With respect to current diagnosis, VA treatment records and a VA examination report confirm a current low back disability, diagnosed as lumbar IVDS with degenerative disc disease. With respect to in-service injury, the Board finds the Veteran’s statements to be both competent and credible in this regard. Indeed, personnel records reflect that the Veteran was deployed (active duty) to Iraq from 2004 to 2005, and that his MOS was that of a heavy wheeled vehicle mechanic. Service treatment records confirm complaints and treatment relating to low back pain immediately upon his return from Iraq. See Post-Deployment Assessments. Such evidence is consistent with the Veteran’s statements concerning in-service injury and treatment for low back pain. Post-service private and VA treatment records show ongoing complaints and treatment of low back pain related to his service in Iraq. See, e.g., July 2009 Treatment Record (noting back pain x4 years, since jumping out of a Humvee in Iraq and diagnosing chronic low back pain.); see also March 2008 VA MRI Report. Based on the foregoing, the remaining question for consideration here is whether the Veteran’s currently diagnosed low back disability is related to service. In this case, the Veteran’s longtime treating VA orthopedic physician opined that, given his in-service complaints of low back pain and his mechanism of injury (i.e., high energy axial load and concordant symptoms), his current lumbar spine disabilities were more likely than not related to service. See January 2017 VA Orthopedic Consult Note. In so finding, the physician noted that he had reviewed the Veteran’s STRs (to include the multiple post-deployment health assessments noting back pain) and post-service VA treatment records; he further noted that a March 2008 VA MRI report had confirmed two level disc herniations which was “very rare” for a 27-year-old. The Board finds the January 2017 to be highly probative as to the issue of nexus as it considers the Veteran’s statements as to onset and is well-supported by the evidence; notably, there are no medical opinions of record to the contrary. In short, the Veteran has competently and credibly reported that he sustained in-service injury to his low back while serving in Iraq; STRs confirm ongoing complaints of low back pain following his 2004 deployment; and the most competent and probative evidence of record, namely, the January 2017 VA opinion, unequivocally relates his current low back disability to in-service injury. In light of the foregoing, and in resolving all doubt in the Veteran’s favor, the Board finds that service-connection for a low back disability is warranted. III. Increased Ratings Disability evaluations are determined by the application of the VA Schedule for Rating Disabilities (Rating Schedule). 38 C.F.R. Part 4. The percentage ratings contained in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and their residual conditions in civil occupations. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Any reasonable doubt regarding the degree of disability will be resolved in favor of the claimant. 38 C.F.R. § 4.3. If two evaluations are potentially applicable, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that evaluation; otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. A disability may require re-evaluation in accordance with changes in a veteran's condition. It is thus essential, in determining the level of current impairment, that the disability be considered in the context of the entire recorded history. 38 C.F.R. § 4.1. 1. Entitlement to an evaluation in excess of 10 percent for tinnitus. The Veteran seeks a rating in excess of 10 percent for tinnitus. However, there is no legal basis for the assignment of either a higher single evaluation for tinnitus or separate 10 percent disability ratings for the tinnitus of each ear. 38 U.S.C. § 1155; 38 C.F.R. § 4.87, Diagnostic Code (DC) 6260; Smith v. Nicholson, 451 F.3d. 1344 (Fed. Cir. 2006). Tinnitus is rated in accordance with 38 C.F.R. § 4.87, Diagnostic Code 6260. That diagnostic code provides a maximum 10 percent evaluation for recurrent tinnitus. Only a single evaluation is warranted for tinnitus, whether the sound is perceived in one ear, both ears, or in the head. 38 C.F.R. § 4.87, Diagnostic Code 6260, Note 2; VAOPGCPREC 2-03. The Veteran’s tinnitus has been rated as 10 percent disabling throughout the appeal period; this is the highest scheduler rating available under DC 6260. The competent, credible evidence of record is against a finding that such rating is inadequate. Indeed, following a June 2016 VA audiologic examination, the examiner noted that the Veteran’s tinnitus would have no impact on the ordinary conditions of life, including his ability to work. Under such circumstances, the Board finds that the Veteran is properly compensated by his rating. Accordingly, the claim is denied as there is no legal basis upon which to award an evaluation in excess of 10 percent or separate schedular evaluations for tinnitus in each ear. Sabonis v. Brown, 6 Vet. App. 426 (1994). 2. Entitlement to an evaluation in excess of 10 percent for hypertension. The Veteran seeks a rating in excess of 10 percent for hypertension; it is currently rated as 10 percent disabling under DC 7101. For the Veteran to be entitled to the next available rating of 20 percent, the evidence must show diastolic pressure predominantly 110 or more, or systolic pressure predominantly 200 or more. 38 C.F.R. § 4.104, DC 7101. The Board has reviewed the Veteran's VA treatment records but found no indication that the Veteran's hypertension meets the criteria for a 20 percent rating. VA treatment records for the period on appeal consistently show diastolic pressure under 110 and systolic pressure under 200. See CAPRI Records dated 2015 to 2017. The highest blood pressure reading for this period was an April 2015 reading of 150/100. Treatment notes include indications that the Veteran's blood pressure was controlled with medication. The Veteran also underwent a VA hypertension examination in June 2016; the examiner noted that he did not have a history of a diastolic blood pressure elevation to predominantly 100 or more. Blood pressure readings were 128/90, 130/92, and 130/90. The Veteran's average BP reading was 129/90. The examiner indicated that the Veteran's hypertension did not impact his ability to work. Notably, there is no argument or indication that the aforementioned VA treatment records/examinations are an inaccurate representation of the severity of the Veteran's hypertension. In summary, there is no evidence of predominant diastolic blood pressure of 110 or more or a predominant systolic blood pressure of 200 or more. The criteria for an increased rating for hypertension have not been met or nearly approximated at any time during the claims period. 38 C.F.R. § 4.104, DC 7101. A rating in excess of 10 percent for hypertension is denied. 3. Entitlement to a compensable evaluation for a linear scar of the left posterior knee. The Veteran contends that his left knee scar warrants a compensable rating. His scar has been rated under 38 C.F.R. § 4.118, Diagnostic Code 7805. The rating criteria for the skin have been amended, effective August 13, 2018. These amendments do not directly affect DC 7805, under which this Veteran’s scar has been evaluated. They introduce a General Rating Formula for skin conditions and amend DCs 7801 and 7802 by characterizing multiple scars by 6 body zones affected rather than by extremity. Claims pending prior to the effective date, such as this one, may be rated under either the amended or pre-amended criteria, depending on which is more advantageous. Both the pre-amended and amended versions of DC 7800 apply to scars or other disfigurement of the head, face, or neck. As the Veteran’s scar is located on his posterior knee, this code is not for application. The pre-amended version of DC 7801 applies to scars that are deep and nonlinear, and provides for a 10 percent disability rating when such scars cover an area or areas of at least 6 square inches (39 sq. cm.). Note (1) states that a deep scar is one associated with underlying soft tissue damage. The amended version also applies to scars that are associated with underlying soft tissue damage. As the Veteran’s left knee scar has not been assessed as deep and nonlinear, or associated with underlying soft tissue damage, this code is not for application. Under pre-amended DC 7802, scars not of the head, face, or neck, that are superficial and nonlinear are assigned a rating of 10 percent with area or areas of 144 square inches (929 sq. cm.) or greater. Under amended DC 7802, scars not of the head, face, or neck, that are not associated with underlying soft tissue damage are assigned a rating of 10 percent with area or areas of 144 square inches (929 sq. cm.) or greater. In this case, the Veteran’s left knee scar measures 15 centimeters. Accordingly, this code is not for application. DC 7804 was not affected by the recent amendments. Under that code, scars that are unstable or painful can be assigned a rating of 30 percent with five or more scars that are unstable or painful. A rating of 20 percent requires three or four scars that are unstable or painful. A rating of 10 percent requires one or two scars that are unstable or painful. Note (1): An unstable scar is one where, for any reason, there is frequent loss of covering of skin over the scar. Note (2): 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 Note (3): Scars evaluated under diagnostic codes 7800, 7801, 7802, or 7805 may also receive an evaluation under this diagnostic code, when applicable. The Veteran underwent a VA scar examination in June 2016. At that time, the examiner identified a 15-centimeter scar of the left posterior knee/upper calf, which was neither painful nor unstable; deep or nonlinear; and did not result in limitation of function. VA treatment records are silent regarding any complaints, treatment, or contentions of worsening of symptoms from the Veteran concerning his service-connected scar. In this case, the Board finds that a compensable rating is not warranted for the Veteran's left knee scar. The Veteran has not reported any pain associated with his left knee scar, nor are there objective findings of scar pain and/or frequent loss of covering of skin over the scar. See, e.g., June 2016 VA Scar examination (noting that the scar was neither painful nor unstable). Accordingly, a compensable rating cannot be assigned under DC 7804. Under both versions of DC 7805, scars, other (including linear scars) and other effects of scars evaluated under diagnostic codes 7800, 7801, 7802, and 7804, are evaluated on the basis of any disabling effects not considered in a rating provided under diagnostic codes 7800-04 under an appropriate diagnostic code. The weight of the evidence in this case demonstrates no disabling effects from the Veteran’s service-connected scar. Indeed, the June 2016 VA examiner expressly found that the scar was not productive of any functional impairment. In sum, there is no basis upon which to assign a compensable rating for the left knee scar. Namely, the scar is not painful or unstable; it has also not been shown to deep, associated with any underlying tissue damage, or cover an area of 144 square inches or greater. The Veteran has not reported any symptoms associated with his service-connected scar during the appeal period, nor have his treating or examining physicians found any symptoms on examination of the scar. Moreover, there is no evidence of any disabling effects of the left knee scar. Accordingly, the Board concludes that compensable disability rating for the service-connected left knee scar is not warranted for any part of the rating period on appeal. 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 claim, that doctrine is not applicable. See 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102; Gilbert, supra. REASONS FOR REMAND 1. Entitlement to service connection for bilateral pes planus. The Veteran’s November 1999 Army National Guard Enlistment Report of Medical Examination expressly notes “mild,” asymptomatic pes planus of the feet. A May 2004 Army Nation Guard Retention Report of Medical Examination report shows “moderate,” asymptomatic pes planus of the feet. A July 2009 Army National Guard Commission Report of Medical Examination likewise notes “moderate,” asymptomatic pes planus of the feet. Current VA treatment records confirm a diagnosis of bilateral pes planus. The question at issue with respect to this condition is whether it was aggravated while the Veteran performed ACDUTRA or INACDUTRA. A medical opinion addressing this matter should be obtained on remand. 2. Entitlement to service connection for sleep apnea, to include as due to an undiagnosed illness or medically unexplained chronic multisymptom illness or environmental exposures (burn pits) in Southwest Asia. 3. Entitlement to service connection for a respiratory condition, to include as due to an undiagnosed illness or medically unexplained chronic multisymptom illness or environmental exposures (burn pits) in Southwest Asia. 4. Entitlement to service connection for a heart condition, to include as due to an undiagnosed illness or medically unexplained chronic multisymptom illness or environmental exposures (burn pits) in Southwest Asia. 5. Entitlement to service connection for a skin lesion of the left cheek, to include as due to an undiagnosed illness or medically unexplained chronic multisymptom illness or environmental exposures (burn pits) in Southwest Asia. 6. Entitlement to service connection for left leg numbness, to include as due to an undiagnosed illness or medically unexplained chronic multisymptom illness or environmental exposures (burn pits) in Southwest Asia. The Veteran contends that he has sleep apnea (or sleep disturbance), a respiratory condition (or, signs or symptoms involving the respiratory system), a heart condition (or, cardiovascular signs or symptoms), skin lesion of the left cheek (or, signs or symptoms involving skin), and left leg numbness (or, neurological symptoms) that are related to service, to include as due to environmental exposures in Southwest Asia (Iraq). Notably, he has qualifying Persian Gulf War service to consider the presumptive service connection provisions of 38 C.F.R. § 3.317 and he was exposed to smoke from burn pits while serving in Iraq from June 2004 to November 2005 and from November 2010 to December 2010. To date, the Veteran has not been provided an examination to determine whether his claimed symptoms can be ascribed to any known clinical diagnosis/es with an etiological opinion(s), or in the alternative, whether such is a qualifying chronic disability resulting from an undiagnosed illness or part of medically unexplained chronic multisymptom illness. As a result, the Board cannot make a fully-informed decision on the claims of entitlement to service connection for sleep apnea, a heart condition, a respiratory condition, and a skin lesion of the left cheek. These claims are therefore remanded. See 38 U.S.C. § 5103A; 38 C.F.R. § 3.159 (c)(4)(i); 38 C.F.R. § 3.317. The Board notes that the Veteran underwent a VA in June 2016 at which time he reported that he used a CPAP machine and was diagnosed sleep apnea in 2014. The June 2016 examiner did not diagnosis sleep apnea (nor was a sleep study conducted in conjunction with the examination). In a February 2018 Affidavit, the Veteran again asserted that he had been diagnosed with sleep apnea per an April 2014 sleep study. It is unclear if referenced sleep study was conducted at a VA facility or private medical facility. In any event, the Veteran should be afforded an opportunity to provide the appropriate authorizations to obtain any such private records on remand; alternatively, the RO should attempt to obtain VA treatment records from April 2014 and any associated sleep studies. 7. Entitlement to an evaluation in excess of 30 percent for PTSD with major depressive disorder and generalized anxiety disorder is remanded. Statements submitted by the Veteran’s spouse in 2017 and the representative's July 2018 appellate brief suggest that there may have been a material worsening of the Veteran's service-connected psychiatric disorder since his last VA examination in July 2016. Accordingly, the Board finds remand is necessary to assess the current severity of the Veteran's PTSD with major depressive disorder and anxiety. 38 C.F.R. §§ 3.326, 3.327; see also Snuffer v. Gober, 10 Vet. App. 400, 403 (1997). 8. Entitlement to an initial evaluation in excess of 30 percent for temporomandibular joint (TMJ) with bruxism is denied. The Veteran's residuals, fracture of mandible with TMJ with bruxism is rated under Diagnostic Code 9905, which contemplates limited motion of temporomandibular articulation. See 38 C.F.R. § 4.150, DC 9905. Effective September 10, 2017, regulations regarding DC 9905 were revised. See 82 Fed. Reg. 36080, 36,083 (August 3, 2017). In pertinent part, under DC 9905 prior to September 10, 2017, for limited of motion of temporomandibular articulation: interincisal range of 0 to 10 millimeters (mm) warrants a 40 percent rating and 11 to 20 mm warrants 30 percent. 38 C.F.R. § 4.150. Under DC 9905 beginning September 10, 2017, for temporomandibular disorder (TMD), interincisal range of 0 to 10 mm of maximum unassisted vertical opening; with dietary restrictions to all mechanically altered foods warrants a 50 percent rating; without dietary restrictions to mechanically altered foods warrants 40 percent. Interincisal range of 11 to 20 mm of maximum unassisted vertical opening: with dietary restrictions to all mechanically altered foods warrants 40 percent; without dietary restrictions to mechanically altered foods warrants 30 percent. Interincisal range of 21 to 29 mm of maximum unassisted vertical opening: with dietary restrictions to full liquid and pureed foods warrants 40 percent; with dietary restrictions to soft and semi-solid foods warrants 30 percent; without dietary restrictions to mechanically altered foods warrants 20 percent. 38 C.F.R. § 4.150 (2018). For VA compensation purposes, mechanically altered foods are defined as altered by blending, chopping, grinding or mashing so that they are easy to chew and swallow. There are four levels of mechanically altered foods: full liquid, puree, soft, and semisolid foods. To warrant elevation based on mechanically altered foods, the use of texture-modified diets must be recorded or verified by a physician. Id. The Veteran underwent a TMJ Conditions Examination (DBQ) in February 2017. At that time, the Veteran’s interincisal range was 21 mm (19 mm after three repetitions). While the Veteran reported experiencing flare-ups when eating chewy foods, the VA examiner did not address whether there were any dietary restrictions associated with the TMJ condition. Notably, the Veteran recently submitted a private dental report in which he reported that he managed his TMJ symptoms “with a soft food diet” and Ibuprofen during symptom flare-ups. As noted, higher ratings are available under revised DC 9905 with a showing of dietary restriction. Based on the foregoing, the Board finds that a new VA examination is warranted to address whether the Veteran has any physician-verified dietary restrictions to mechanically altered food associated with his TMJ. 9. Entitlement to a TDIU rating is remanded. The Board finds the issue of entitlement to a TDIU is inextricably intertwined with the pending claims of service connection and increased ratings. As such, the Board will defer consideration of the TDIU issue at this time. Harris v. Derwinski, 1 Vet. App. 180 (1991). The matters are REMANDED for the following action: 1. Obtain all outstanding records of VA treatment, to include any sleep studies conducted by VA in February 2014. 2. Contact the Veteran and afford him the opportunity to identify by name, address and dates of treatment or examination of any relevant medical records. This should include a request for the February 2014 sleep study referenced by the Veteran in his Affidavit. Subsequently, and after securing the proper authorizations where necessary, make arrangements to obtain all the records of treatment or examination from all the sources listed by the Veteran which are not already on file. 3. Schedule the Veteran for an appropriate VA examination in conjunction with his claim for service connection for bilateral flat feet. The examiner should be provided with the Veteran's verified periods of ACDUTRA and INACDUTRA. The claims file must be made available to and reviewed by the examiner. All necessary tests and studies must be conducted. The examiner must address the following opinion requests: (a) Whether it is at least as likely as not (a 50 percent or greater probability) that bilateral pes planus underwent a worsening (aggravation) during any period(s) of active duty service; (b) If not, then whether it is at least as likely as not (50 percent probability or greater) that bilateral pes planus was aggravated as a result of disease or injury during any period(s) of ACDUTRA, or an injury during INACDUTRA. A complete rationale for all opinions and conclusions reached should be provided. It is imperative that the examiner offer a detailed analysis for all conclusions and opinions reached, supported by specific references to the Veteran's claims file, including in-service, National Guard, and post-service medical records. 4. Schedule the Veteran for a VA Gulf War General Medical Examination by an appropriate clinician to determine the nature and etiology of Veteran's claimed respiratory condition, sleep apnea (sleep disturbance), skin lesion of the left cheek, heart condition, and left leg numbness. Any studies, tests, and evaluations deemed necessary should be performed. The examiner must address the following: (a) Whether the Veteran’s respiratory symptoms, cardiovascular/heart symptoms, sleep apnea (sleep disturbance symptoms), skin lesion of the left cheek (skin symptoms), and left leg numbness (neurological symptoms) can be ascribed to any known clinical diagnoses? (b) If diagnosed disorders are established, the examiner should render an opinion as to whether it is at least as likely as not that any such disorder(s) had its/their onset during the Veteran’s active duty service, or is/are otherwise related to any period of service, to include as due to environmental exposures in Southwest Asia including burn pits. (c) If any of the Veteran's respiratory symptoms, cardiovascular/heart symptoms, sleep apnea (sleep disturbance symptoms), skin lesion of the left cheek (skin symptoms), and left leg numbness (neurological symptoms) cannot be ascribed to any known clinical diagnosis/es, then specify whether they are an undiagnosed illness or medically unexplained chronic multisymptom illness as established by history, physical examination, and laboratory tests, that have either (i) existed for 6 months or more, or (ii) exhibited intermittent episodes of improvement and worsening over a 6-month period. 5. Schedule the Veteran for a VA examination to assess the current severity of his PTSD with major depressive disorder and generalized anxiety disorder. The examiner should identify the severity of all current manifestations of the Veteran's disorder. The examiner is asked to provide a full description of any functional effects that the Veteran's service-connected psychiatric disorder has on his social and occupational functioning, to include his ability to work. 6. Schedule the Veteran for a VA examination to determine the nature and severity of his service-connected TMJ disorder. The examiner should conduct all indicated tests and studies, to include range of motion studies. The joints involved should be tested in both active and passive motion and in weight-bearing and non weight-bearing. If the examiner is unable to conduct the required testing or concludes that the required testing is not necessary in this case, he or she should clearly explain why that is so. The examiner should describe any pain, weakened movement, excess fatigability, instability of station and incoordination present. Any dietary restrictions due to TMJ should be documented in the examination report. The examiner should also state whether the examination is taking place during a period of flare-up. If not, the examiner should ask the Veteran to describe the flare-ups he experiences, including: frequency, duration, characteristics, precipitating and alleviating factors, severity and/or extent of functional impairment he experiences during a flare-up of symptoms and/or after repeated use over time. Based on the Veteran's lay statements and the other evidence of record, the examiner should provide an opinion estimating any additional degrees of limited motion caused by functional loss during a flare-up or after repeated use over time. If the examiner cannot estimate the degrees of additional range of motion loss during flare-ups or after repetitive use without resorting to speculation, the examiner should state whether the need to speculate is caused by a deficiency in the state of general medical knowledge (i.e. no one could respond given medical science and the known facts) or by a deficiency in the record or the examiner (i.e. additional facts are required, or the examiner does not have the needed knowledge or training). 7. Then readjudicate the appeal. If the benefit sought on appeal remain denied, furnish the Veteran and his representative with a SSOC and afford them the opportunity to respond before the file is returned to the Board for further consideration. DEBORAH W. SINGLETON Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD H. Hoeft, Counsel