Citation Nr: 19101209 Decision Date: 01/07/19 Archive Date: 01/04/19 DOCKET NO. 17-40 947 DATE: January 7, 2019 ORDER As new and material evidence has been submitted regarding the claim for service connection for bilateral knee strain, the Veteran’s claim is reopened. As new and material evidence has been submitted regarding the claim for service connection for radiculopathy of the bilateral lower extremities, the Veteran’s claim is reopened. Entitlement to service connection for radiculopathy of the bilateral lower extremities is denied. Entitlement to an evaluation in excess of 40 percent for service-connected chronic lumbosacral strain is denied. Entitlement to an evaluation in excess of 20 percent for service-connected cervical radiculopathy of the left upper extremity is denied. Entitlement to an evaluation in excess of 50 percent for service-connected other specified trauma and stressor related disorder, somatic symptom disorder, sleep disorder, is denied.   REMANDED Entitlement to service connection for bilateral knee strain is remanded. Entitlement to service connection for sleep apnea is remanded. Entitlement to a total disability rating based on individual unemployability (TDIU) is remanded. FINDINGS OF FACT 1. By a May 2002 rating decision, the Veteran’s claims for service connection for a left knee condition and a right knee condition were denied since there was no evidence that the claimed conditions existed. 2. Evidence received since the May 2002 rating decision is not cumulative or redundant, and raises a reasonable possibility of substantiating a claim for service connection for bilateral knee strain. 3. By an April 2016 rating decision, the Veteran’s claim for service connection for radiculopathy of the bilateral lower extremities was denied since there was no link between the diagnosed medical condition and military service. 4. Evidence received since the April 2016 rating decision is not cumulative or redundant, and raises a reasonable possibility of substantiating a claim for service connection for radiculopathy of the bilateral lower extremities. 5. Radiculopathy of the bilateral lower extremities is not shown by the most probative evidence of record to be etiologically related to a disease, injury, or event in service, or to a service-connected disability. 6. The Veteran’s service-connected chronic lumbosacral strain is manifested by complaints of pain and limitation of motion with no evidence of ankylosis. 7. The Veteran’s service-connected cervical radiculopathy of the left upper extremity has been manifested by mild intermittent pain, paresthesias and/or dysesthesias, and numbness. 8. The Veteran’s service-connected other specified trauma and stressor related disorder, somatic symptom disorder, sleep disorder, is manifested by depressed mood, anxiety, irritability, sleep disturbances, and difficulty maintaining effective relationships and adapting to stressful circumstances. CONCLUSIONS OF LAW 1. The May 2002 rating decision denying the Veteran’s claims for service connection for a right knee condition and a left knee condition is final. See 38 U.S.C. § 7105 (2012); 38 C.F.R. § 20.1103 (2017). 2. New and material evidence sufficient to reopen the Veteran’s claim for service connection bilateral knee strain has been submitted. See 38 U.S.C. § 5108 (2012); 38 C.F.R. § 3.156 (a) (2017). 3. The April 2016 rating decision denying the Veteran’s claim for service connection for radiculopathy of the bilateral lower extremities is final. See 38 U.S.C. § 7105 (2012); 38 C.F.R. § 20.1103 (2017). 4. New and material evidence sufficient to reopen the Veteran’s claim for service connection for radiculopathy of the bilateral lower extremities has been submitted. See 38 U.S.C. § 5108 (2012); 38 C.F.R. § 3.156 (a) (2017). 5. The criteria for entitlement to service connection for radiculopathy of the bilateral lower extremities have not been met. See 38 U.S.C. §§ 1110, 1131, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304, 3.310 (2017).   6. The criteria for entitlement to an evaluation in excess of 40 percent for service-connected chronic lumbosacral strain have not been met. See 38 U.S.C. §§ 1155, 5102, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.159, 3.321, 4.40, 4.45, 4.71a, Diagnostic Code 5295 (2017). 7. The criteria for entitlement to an evaluation in excess of 20 percent for service-connected cervical radiculopathy of the left upper extremity have not been met. See 38 U.S.C. §§ 1155, 5102, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.159, 3.321, 4.40, 4.45, 4.124a, Diagnostic Code 8510 (2017). 8. The criteria for entitlement to an evaluation in excess of 50 percent for service-connected other specified trauma and stressor related disorder, somatic symptom disorder, sleep disorder, have not been met. See 38 U.S.C. § 1155, 5102, 5103, 5103A, 5107 (2012); 38 C.F.R. § 3.159, 3.321, 4.130, Diagnostic Code 9421 (2017). REFERRED ISSUE In September 2017, the Veteran submitted a copy of his May 2016 statement, indicating he was seeking service connection for hearing loss and tinnitus (he was granted service connection for tinnitus). It is not clear whether he resubmitted that statement in 2017 in an attempt to reopen the previously denied claim. However, effective on and after March 24, 2015, VA updated the regulations concerning the filing of claims. 79 Fed. Reg. 57,660 (Sept. 24, 2014) (codified in 38 C.F.R. Parts 3, 19, and 20 (2015)). In part, the Department replaced the informal/formal claims process with a standardized and more formal process. See 79 Fed. Reg. at 57,663-64; see also 38 C.F.R. § 3.155 (2015). As a result of the rulemaking, a complete claim on an application form is required for all types of claims. 38 C.F.R. § 3.155(d). The Veteran has submitted the standardized claims form for other issues. If he wishes to reopen his claim for service connection for hearing loss, he is advised to submit the proper form.   REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from February 1991 to November 1999. The Board must assess the credibility and weight of all evidence, including the medical evidence, to determine its probative value, accounting for evidence which it finds to be persuasive or unpersuasive, and providing reasons for rejecting any evidence favorable to the claimant. Equal weight is not accorded to each piece of evidence contained in the record; every item of evidence does not have the same probative value. When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claims or is in relative equipoise, with the Veteran prevailing in either event, or whether a preponderance of the evidence is against the claims, in which case, the claim is denied. See Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Neither the Veteran nor his representative has raised any issues with the duty to notify or the duty to assist. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that “the Board’s obligation to read filings in a liberal manner does not require the Board . . . to search the record and address procedural arguments when the veteran fails to raise them before the Board.”); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to a duty to assist argument). Thus, the Board need not discuss any potential issues in this regard. Through the processing of these claims, the RO also denied the issue of entitlement to TDIU in a May 2016 rating decision. In July 2017, the Veteran submitted a notice of disagreement (NOD) indicating he wished to appeal the denial of this claim. In December 2017, the Veteran was issued a letter informing him that his NOD was untimely and would, therefore, not be accepted. However, as the Veteran indicated that he is unemployable due to his service-connected disabilities, the Board construes the issue of entitlement to TDIU as being before the Board. Rice v. Shinseki, 22 Vet. App. 447 (2009) (holding that claims for higher evaluations also include a claim for unemployability when the appellant claims he is unable to work due to a service connected disability). As the issue is considered part of his pending appeal, there is no requirement that he submit a separate NOD. New and Material Evidence New evidence means 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) (2017). When determining whether the claim should be reopened, the credibility of the newly submitted evidence is presumed. See Justus v. Principi, 3 Vet. App. 510 (1992). Moreover, a Veteran need not present evidence as to each element that was a specified basis for the last disallowance, but merely new and material evidence as to at least one of the bases of the prior disallowance. See Shade v. Shinseki, 24 Vet. App. 110 (2010) (holding that it would be illogical to require that a claimant submit medical nexus evidence when he has provided new and material evidence as to another missing element). 1. Whether new and material evidence has been submitted sufficient to reopen a previously denied claim for service connection for bilateral knee strain. By a May 2002 rating decision, the Veteran’s claims for service connection for a left knee condition and a right knee condition were denied since there was no evidence that the claimed conditions existed. At the time of this denial, the Veteran’s service treatment records, post-service medical records, and statements were considered. The new evidence submitted since this denial consists primarily of statements from the Veteran and post-service medical records.   With regard to the newly submitted post-service medical records, the claims file contains a May 2017 VA examination report, at which it was noted that the Veteran had a bilateral knee strain with instability. As the evidence of record now shows that a current bilateral knee condition exists, the Board finds that this newly submitted evidence relates to an unestablished fact necessary to substantiate the claim for service connection for a bilateral knee strain. As such, the claim for service connection for a bilateral knee strain is reopened. However, the Board cannot, at this point, adjudicate the reopened claim, as further development is necessary. This is detailed in the REMAND below. 2. Whether new and material evidence has been submitted sufficient to reopen a previously denied claim for service connection for radiculopathy of the bilateral lower extremities. By an April 2016 rating decision, the Veteran’s claim for service connection for radiculopathy of the bilateral lower extremities was denied since there was no link between the diagnosed medical condition and military service. At the time of this denial, the Veteran’s service treatment records, post-service medical records, and statements were considered. The new evidence submitted since this denial consists primarily of statements from the Veteran and post-service medical records. With regard to the newly submitted post-service medical records, the claims file contains a March 2017 statement from the Veteran’s representative opining that the Veteran’s bilateral lower extremity radiculopathy is more likely than not service-connected secondary to his service-connected chronic lumbosacral strain. The representative attached his curriculum vitae, which showed that he is a physician as well as an attorney. As the newly submitted evidence links the Veteran’s bilateral lower extremity radiculopathy to a service-connected disability, the Board finds that this newly submitted evidence relates to an unestablished fact necessary to substantiate the claim for service connection for radiculopathy of the bilateral lower extremities. As such, the claim for service connection for radiculopathy of the bilateral lower extremities is reopened. The Board will adjudicate the reopened claim below. The RO did adjudicate the merits of the claim, so the Board can do so as well. Service Connection Service connection may be established for disability resulting from personal injury suffered or disease contracted in the line of duty in the active military, naval, or air service. 38 U.S.C. §§ 1131; 38 C.F.R. § 3.303. In order to prevail on the issue of service connection there must be (1) competent evidence of a current disability; (2) medical evidence, or in certain circumstances, lay evidence of in-service occurrence or aggravation of a disease or injury; and (3) competent evidence of a nexus between an in-service injury or disease and the current disability. See Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). To establish a right to compensation for a present disability, a Veteran must show: “(1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service”-the so-called “nexus” requirement. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Service connection may also be established on a secondary basis for a disability which is proximately due to, the result of, or aggravated by a service-connected disease or injury. 38 C.F.R. § 3.310 (2017). In order to establish entitlement to service connection on a secondary basis, there must be (1) evidence of a current disability; (2) evidence of a service-connected disability; and (3) medical evidence establishing a nexus between the service-connected disability and the current disability. See Wallin v. West, 11 Vet. App. 509, 512 (1998). The Veteran is seeking service connection for radiculopathy of the bilateral lower extremities. A review of the service treatment records reveals that the Veteran complained of back pain that radiated downward and affected the hip area in April 1999. A June 2015 VA back examination report noted that the Veteran did not have radicular pain or any other signs or symptoms of radiculopathy. In February 2016, the Veteran underwent a VA examination, at which he was noted as having chronic lumbar strain and lumbar spine degenerative disc disease with radiculopathy. The examiner noted that the Veteran’s service-connected lumbar strain is a separate and unrelated condition to his lumbar spine degenerative disc disease with radiculopathy. An accompanying opinion determined that the Veteran’s lumbar spine degenerative disc disease with radiculopathy is less likely than 50 percent probability proximately due to or the result of the Veteran’s service-connected condition. The examiner noted that the Veteran’s lumbar spine degenerative disc disease with radiculopathy is a disease with a clear and specific etiology and diagnosis. The Veteran’s lumbar spine degenerative disc disease with radiculopathy is less likely than not related to a specific exposure evidence experienced by the Veteran during service in Southwest Asia. The examiner noted that a lumbar strain does not cause degenerative disc disease. Degenerative disc disease is the result of his post military activities and aging, as evidenced by his negative lumbar spine x-ray report on June 23, 2000, and negative lumbar spine CT scan on March 15, 2002. In a March 2017 statement, the Veteran’s representative opined that the Veteran’s bilateral lower extremity radiculopathy is more likely than not service-connected secondary to his service-connected chronic lumbosacral strain. The representative attached his curriculum vitae, which showed that he is a physician as well as an attorney. Regulations provide that service connection may be granted for any disease diagnosed after discharge, when all evidence, including that pertinent to service, establishes that the disability was incurred in service. 38 C.F.R. 3.303(d) (2017). First, there is no medical evidence of record linking a current diagnosis of radiculopathy of either lower extremity directly to his active duty service. The Veteran told the 2016 VA examiner that he has had pain in his hip and buttock ever since the 1999 injury. Any allegation from him that he has had continuous radiculopathy type symptoms since service is not credible. The Veteran has had extensive post-service treatment and VA examinations for his service-connected lumbar strain, and these records clearly demonstrate no continuity of symptoms. Therefore, the Board finds that service connection cannot be granted on a direct basis. See Shedden, supra. The Veteran’s primary claim is his radiculopathy is due to his service-connected lumbar strain. To reiterate – the Veteran is service-connected for lumbar strain and NOT for lumbar disc disease. The only evidence linking the radiculopathy to the lumbar strain is from the March 2017 opinion from the Veteran’s representative. While the Board acknowledges his status as a physician, this opinion is entitled to no persuasive weight for the following reasons. The CAVC has addressed whether part of a legal brief submitted by a Veteran’s attorney representative, who is also a medical doctor, constitutes a medical opinion that the Board must discuss. In determining whether a specific submission constitutes a medical opinion, the CAVC offered some suggested considerations for the Board: • Within the submission, does the author identify himself/herself as acting in the role of medical professional or legal advocate? • Does the author identify the submission as the professional opinion of a medical expert or as a legal brief? • Is there wording that would signal the intention to provide an expert medical opinion, such as “in my opinion,” identifiable medical judgment, or rationale? • Is the medical judgment independent of or clearly discernible from the legal arguments presented? Harvey v. Shulkin, 30 Vet. App. 10 (2018). The CAVC also noted that including the title or designation “M.D.” on the letterhead and in the signature block alone is insufficient to indicate that the submission is intended to be a medical opinion. Id. Here, the representative titled the 2017 submission “Independent Medical Expert Opinion,” and he stated he had no “vested interest” in the outcome of the case because he was being paid a flat fee for his opinion. It appears he did not, at that time, represent the Veteran, but he was subsequently appointed as the Veteran’s representative a mere three months later with a fee agreement that provides him payment out of any benefits awarded to the Veteran. However, leaving that point aside, the fact is this opinion is entitled to no probative value. He provided no rationale whatsoever for the opinion that the Veteran’s radiculopathy is related to his service-connected chronic lumbosacral strain as opposed to his nonservice-connected lumbar spine degenerative disc disease. The representative merely opined such while copying findings from a VA examination that the Veteran has radiculopathy; the diagnosis is not, however, in question. The representative merely made a statement the conditions are related with no explanation and no analysis of the facts of this case. By contrast, the examiner who provided the February 2016 VA opinion reviewed the Veteran’s claims file and offered an opinion with supporting explanations as to why, in his medical judgment, the Veteran’s bilateral lower extremity radiculopathy is not related to his service-connected chronic lumbosacral strain. The February 2016 VA opinion clearly linked the Veteran’s radiculopathy with his lumbar spine degenerative disc disease and noted that the Veteran’s service-connected lumbar strain is a separate and unrelated condition to his lumbar spine degenerative disc disease with radiculopathy. The Board acknowledges the Veteran’s assertions that his radiculopathy of the bilateral lower extremities is related to his service-connected lumbar spine condition. However, the Veteran’s opinion is afforded little weight in the analysis of whether a nexus between his radiculopathy of the bilateral lower extremities and his service-connected chronic lumbosacral strain exists, as the Veteran does not have training in neurological or orthopedic diseases. As the Board places the most significant weight on the February 2016 VA medical opinion, which finds against service connection on a secondary basis, the Veteran’s claim for service connection for bilateral lower extremity radiculopathy must fail on a secondary basis. As the preponderance of the evidence is against this claim, the benefit-of-the-doubt rule does not apply, and the claim for service connection for bilateral lower extremity radiculopathy must be denied. See 38 U.S.C. § 5107(b) (West 2002); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Increased Rating Disability ratings are determined by applying the criteria set forth in VA’s Schedule for Rating Disabilities, which is based on the average impairment of earning capacity. Individual disabilities are assigned separate diagnostic codes. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. If two evaluations are potentially applicable, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating; otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. When reasonable doubt arises as to the degree of disability, such doubt will be resolved in the Veteran’s favor. 38 C.F.R. § 4.3. The Veteran’s entire history is reviewed when making a disability determination. See 38 C.F.R. § 4.1 (2017). Where the Veteran timely appealed the rating initially assigned for the service-connected disability within one year of the notice of the establishment of service connection for it, VA must consider whether the Veteran is entitled to “staged” ratings to compensate him for times since filing his claim when his disability may have been more severe than at other times during the course of his appeal. See Fenderson v. West, 12 Vet. App. 119 (1999). But where service connection has already been established, and increase in the disability rating is at issue, it is the present level of the disability that is of primary concern. See Francisco v. Brown, 7 Vet. App. 55 (1994). However, in such cases, when the factual findings show distinct time periods during which a claimant exhibits symptoms of the disability at issue and such symptoms warrant different evaluations, staged evaluations may also be assigned. Hart v. Mansfield, 21 Vet. App. 505 (2007). Pertinent regulations do not require that all cases show all findings specified by the Rating Schedule, but that findings sufficiently characteristic to identify the disease and the resulting disability and above all, coordination of rating with impairment of function will be expected in all cases. 38 C.F.R. § 4.21. Therefore, the Board has considered the potential application of various other provisions of the regulations governing VA benefits, whether or not they were raised by the Veteran, as well as the entire history of the Veteran’s disabilities in reaching its decision. Schafrath v. Derwinski, 1 Vet. App. 589, 595 (1991). The evaluation of the same disability under various diagnoses, known as pyramiding, is generally to be avoided. 38 C.F.R. § 4.14 (2017). The critical element in permitting the assignment of several ratings under various diagnostic codes is that none of the symptomatology for any one of the disabilities is duplicative or overlapping with the symptomatology of the other disability. See Esteban v. Brown, 6 Vet. App. 259, 261- 62 (1994). 1. Entitlement to an evaluation in excess of 40 percent for service-connected chronic lumbosacral strain. The Veteran has been assigned a 40 percent evaluation under Diagnostic Code 5295 for his service-connected chronic lumbosacral strain. The Veteran seeks a higher rating. Under the current General Rating Formula for Diseases and Injuries of the Spine (General Formula), a 40 percent evaluation is warranted for forward flexion of the thoracolumbar spine of 30 degrees or less; or, favorable ankylosis of the entire thoracolumbar spine. A 50 percent evaluation is warranted for unfavorable ankylosis of the entire thoracolumbar spine. A 100 percent evaluation is warranted for unfavorable ankylosis of the entire spine. 38 C.F.R. § 4.71a, Diagnostic Codes 5235 to 5243 (2008). As discussed in more detail above, the Veteran is NOT service-connected for disc disease. Therefore, the Formula for Rating Intervertebral Disc Syndrome (IVDS) Based on Incapacitating Episodes does not apply to rating his condition. When evaluating disabilities of the musculoskeletal system, 38 C.F.R. § 4.40 allows for consideration of functional loss due to pain and weakness causing additional disability beyond that reflected on range of motion measurements. See DeLuca v. Brown, 8 Vet. App. 202 (1995). Further, 38 C.F.R. § 4.45 provides that consideration also be given to weakened movement, excess fatigability and incoordination. The Board has reviewed all lay and medical evidence, to include post-service treatment records and June 2015 and February 2016 VA examination reports. The next highest rating requires unfavorable ankylosis of the entire thoracolumbar spine or symptoms comparable to such. That is simply not shown here. The VA examination conclusively showed he does not have ankylosis. Although his lumbar spine motion is limited, he retains the ability to move his spine in all tested directions, so it is not ankylosed. See 2016 VA examination (extension to 15 degrees, bilateral lateral flexion to 20 degrees, right lateral rotation to 15 degrees, and left lateral rotation to 20 degrees). The VA examiner expressly checked “no” for the question of whether the Veteran had ankylosis. The Veteran refused to perform forward flexion, stating it was too painful, but his refusal to cooperate with testing does not lead to any conclusion his spine is ankylosed. That examiner also found the Veteran’s reported extent of his functional loss was medically inconsistent with the examination findings, and provided an explanation of his/her observations of the Veteran’s behavior during the examination. It is interesting to note that private records from just a few months before the examination showed only tenderness to palpation of the spine, with normal, painless range of motion of all extremities, negative straight leg raising test, normal gait, strength, etc. The medical evidence does not show objective findings comparable to ankylosis, and the Veteran’s lay statements about the severity of his symptoms is simply not credible. With respect to the possibility of assigning a higher rating under 38 C.F.R. §§ 4.40, 4.45, the Veteran has already been assigned the maximum evaluation allowable for limitation of range of motion. There is no indication in the medical evidence of record that any subjective complaints, such as pain, fatigue, incoordination, or weakness, result in additional limitation of function so as to meet the criteria for a higher evaluation for any period of time on appeal. Again, the Veteran’s reports are not entirely credible, and the extent of the impairment he alleges is not substantiated. Finally, as to evaluating any associated objective neurologic abnormalities, including, but not limited to, bowel or bladder impairment, separately under the appropriate diagnostic code, there is no medical evidence that any of the Veteran’s complained of symptoms or findings such as radiculopathy are attributable to the service-connected lumbar strain. As the Veteran was granted service connection for erectile dysfunction in a September 2015 rating decision, no further discussion is needed on that matter. As for his claims of loss of bowel and bladder control, he was denied service connection for fecal and urinary incontinence in that same decision. A June 2015 VA examination report noted that the Veteran does not have findings for the claimed urinary incontinence condition or fecal incontinence condition. The February 2016 VA examination report noted that the Veteran reported that he no longer had fecal incontinence. It was noted at the VA back examination report that he did not have other neurologic abnormalities or findings related to the thoracolumbar spine, such as bowel or bladder problems/pathologic reflexes. Therefore, as there is no clinical evidence demonstrating objective neurologic abnormalities related specifically to the Veteran’s chronic lumbosacral strain, the evidence of record does not support assigning a separate rating based on other neurological abnormalities. The Board concludes that the preponderance of the evidence is against assigning a rating in excess of 40 percent for the Veteran’s service-connected chronic lumbosacral strain, and the benefit of the doubt rule enunciated in 38 U.S.C. § 5107(b) is not for application. There is not an approximate balance of evidence. See generally Gilbert, supra; Ortiz v. Principi, 274 F. 3d 1361 (Fed. Cir. 2001). Assignment of staged ratings is not for application. Hart, supra. The Veteran has not raised the issue of an extraschedular evaluation through his statements, and the evidence of record does not raise this issue through documentation of symptoms not contemplated by the rating criteria. 2. Entitlement to an evaluation in excess of 20 percent for service-connected cervical radiculopathy of the left upper extremity. In an April 2016 rating decision, the RO granted service connection for cervical radiculopathy of the left upper extremity (minor) and assigned a 20 percent evaluation, effective October 19, 2015, under Diagnostic Code 8510. The Veteran seeks a higher rating. Diagnostic Code 8510 provides the rating criteria for paralysis of upper radicular group. Complete paralysis of the nerve is rated as 70 percent disabling for the major arm, and as 60 percent disabling for the minor arm. Disability ratings of 20 percent, 40 percent, and 50 percent are assignable for incomplete paralysis which is mild, moderate, or moderately severe in degree, for the major arm, and as 20, 30, and 40 percent, for the minor arm, respectively. 38 C.F.R. § 4.124a, Diagnostic Code 8510. The term “incomplete paralysis” indicates a degree of lost or impaired function substantially less than the type picture for complete paralysis given with each nerve, whether due to varied level of the nerve lesion or to partial regeneration. 38 C.F.R. § 4.124a. When the involvement is wholly sensory, the rating should be for the mild, or at most, the moderate degree. The Board notes that words such as mild, moderate, and severe are not defined in the Rating Schedule. Rather than applying a mechanical formula, VA must evaluate all evidence, to the end that decisions will be equitable and just. 38 C.F.R. § 4.6 (2017). The Board notes that words such as “severe,” “moderate,” and “mild” are not defined in the Rating Schedule. Rather than applying a mechanical formula, VA must evaluate all evidence, to the end that decisions will be equitable and just. 38 C.F.R. § 4.6 (2017). Although the use of similar terminology by medical professionals should be considered, is not dispositive of an issue. Instead, all evidence must be evaluated in arriving at a decision regarding a request for an increased disability rating. 38 U.S.C. § 7104 (2012); 38 C.F.R. §§ 4.2, 4.6 (2017). The Board has reviewed all relevant post-service medical records available, as well as the Veteran’s statements. The Veteran also underwent pertinent VA neck examinations in June 2015 and in February 2016, as well as a VA shoulder examination in February 2016. At the June 2015 VA neck examination, the examiner noted that the Veteran did not have radicular pain or any other signs or symptoms due to radiculopathy. In a November 2015 statement, the Veteran asserted he experienced left arm recurring tingling and numbness that contributed to loss of sleep and an increase in curtailment of his activities due to functional fatigue from pain during the raising/lowering of his arms. In a December 2015 statement, the Veteran asserted that he experiences a constant pain that radiates into the left shoulder blade and down to the middle of the left hand. The Veteran asserted that he experiences additional pain after certain activities, such as carrying bags of groceries, or flexing his neck rearward.   At the February 2016 VA neck examination, the examiner noted that the Veteran had radicular pain and other signs and symptoms due to radiculopathy. The examiner noted that the Veteran did not have constant pain in the left upper extremity, but he did have mild intermittent pain, paresthesias and/or dysesthesias, and numbness in the left upper extremity. The Veteran did not have any other signs or symptoms of radiculopathy. The examiner noted that his radiculopathy involved C5/C6 nerve roots on the left side and was mild in severity. At the February 2016 VA shoulder examination, the Veteran reported that his upper back is always sore since his 1999 injury and the soreness moves into the top of his shoulders. He has left arm numbness and tingling. The Veteran’s right hand is his dominant hand. The Veteran reported daily neck pain and indicated that the pain limits him from lifting more than 15 pounds. He has to make adjustments with reaching to grab things. The Veteran denied flare-ups of the shoulder or arm and did not report any functional loss of functional impairment. Right shoulder range of motion was noted as normal. In a December 2018 statement, the Veteran reported that he experiences increased pain or numbness when he sleeps in certain positions or while driving. Upon review of all pertinent evidence, the Board finds that the criteria for an evaluation in excess of 20 percent for radiculopathy of left upper extremity have not been met. The Board acknowledges the Veteran’s assertions that he experiences a constant pain that radiates into the left shoulder blade and down to the middle of the left hand, and he experiences additional pain after certain activities. However, the February 2016 VA examiner specifically noted that the Veteran’s service-connected left upper extremity radiculopathy was mild in severity. There is no medical evidence to the contrary. The June 2015 VA examiner noted that the Veteran did not have radicular pain or any other signs or symptoms due to radiculopathy. Moreover, the Veteran’s post-service treatment records do not document complaints or treatment for symptoms that would suggest that the Veteran’s service-connected cervical radiculopathy of the left upper   extremity is moderate in severity. As such, the Board finds that an evaluation in excess of 20 percent is not warranted under Diagnostic Code 8510 for service-connected cervical radiculopathy of the left upper extremity. The Board has considered whether an increased evaluation could be assigned under an alternative diagnostic code used in rating disease of the peripheral nerves. 38 C.F.R. § 4.124a (2017). However, the Board finds that Diagnostic Code 8510 is the most appropriate diagnostic code for evaluating the Veteran’s service-connected cervical radiculopathy of the left upper extremity. As such, an increased rating is not warranted under an alternative diagnostic code. The Board concludes that the preponderance of the evidence is against assigning an evaluation in excess of 20 percent for the Veteran’s service-connected cervical radiculopathy of the left upper extremity, and the benefit of the doubt rule enunciated in 38 U.S.C. § 5107 (b) is not for application. There is not an approximate balance of evidence. See generally Gilbert, supra; Ortiz v. Principi, 274 F. 3d 1361 (Fed. Cir. 2001). Assignment of staged ratings is not for application. Fenderson, supra. The Veteran has not raised the issue of an extraschedular evaluation through his statements, and the evidence of record does not raise this issue through documentation of symptoms not contemplated by the rating criteria. 3. Entitlement to an evaluation in excess of 50 percent for service-connected other specified trauma and stressor related disorder, somatic symptom disorder, sleep disorder. The Veteran is seeking entitlement to an evaluation in excess of 50 percent for service-connected other specified trauma and stressor related disorder, somatic symptom disorder, sleep disorder. This disability is evaluated under Diagnostic Code 9421. The regulations establish a general rating formula for mental disabilities. See 38 C.F.R. § 4.130 (2017). Ratings are assigned according to the manifestation of particular symptoms. However, the use of the term “such as” in 38 C.F.R. § 4.130 demonstrates that the symptoms after that phrase are not intended to constitute an exhaustive list, but rather are to serve as examples of the type and degree of the symptoms, or their effects, that would justify a particular rating. See Mauerhan v. Principi, 16 Vet. App. 436 (2002). Accordingly, the evidence considered in determining the level of impairment under § 4.130 is not restricted to the symptoms provided in the diagnostic code. Instead, VA must consider all symptoms of a claimant’s disability that affect the level of occupational and social impairment. The criteria for a 50 percent rating are: Occupational and social impairment with reduced reliability and productivity due to such symptoms as: flattened affect; circumstantial, circumlocutory, or stereotyped speech; panic attacks more than once a week; difficulty in understanding complex commands; impairment of short- and long-term memory (e.g., retention of only highly learned material, forgetting to complete tasks); impaired judgment; impaired abstract thinking; disturbances of motivation and mood; difficulty in establishing and maintaining effective work and social relationships. The criteria for a 70 percent rating are: Occupational and social impairment, with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood, due to such symptoms as: suicidal ideation; obsessional rituals which interfere with routine activities; speech intermittently illogical, obscure, or irrelevant; near-continuous panic or depression affecting the ability to function independently, appropriately and effectively; impaired impulse control (such as unprovoked irritability with periods of violence); spatial disorientation; neglect of personal appearance and hygiene; difficulty in adapting to stressful circumstances (including work or a worklike setting); inability to establish and maintain effective relationships. And, the criteria for a 100 percent rating are: Total occupational and social impairment, due to such symptoms as: gross impairment in thought processes or communication; persistent delusions or hallucinations; grossly inappropriate behavior; persistent danger of hurting self or others; intermittent inability to perform activities of daily living (including maintenance of minimal personal hygiene); disorientation to time or place; memory loss for names of close relatives, own occupation, or own name. See 38 C.F.R. § 4.130, Diagnostic Code 9421 (2017). After a careful review of the record and for reasons and bases expressed immediately below, the Board finds that the currently assigned 50 percent evaluation adequately compensates the Veteran for his service-connected other specified trauma and stressor related disorder, somatic symptom disorder, sleep disorder. A higher rating is not warranted. The Board has reviewed all pertinent evidence of record, to include the Veteran’s statements, post-service treatment records, and VA examination reports. In a January 2016 VA posttraumatic stress disorder (PTSD) examination report, the examiner noted diagnoses of other specific trauma and stressor related disorder, somatic symptoms disorder, and an unspecified sleep disorder. The examiner noted that it is not possible to differentiate the symptoms attributable to each diagnosis. Mental disorders are mutually aggravating and thus symptoms cannot be differentiated without resorting to mere speculation. The examiner noted that the Veteran’s mental diagnoses result in occupational and social impairment with reduced reliability and productivity. The Veteran reported that he had no friends and “only works.” He is divorced. He has maintained family contact through “texting” and occasional phone calls. He reported he does not have hobbies. The Veteran is employed. His reported symptoms include chronic sleep impairment, disturbances of motivation and mood, irritability/agitation, depressed mood, anhedonia, anxiety/nervousness, and difficulty in adapting to stressful circumstances, including work or a worklike setting. He denied suicidal ideation. The examiner noted that the Veteran had good hygiene and grooming. His speech was within normal limits. He was alert, attentive, oriented to person, place, time, and situation. His memory abilities were intact, as indicated by his performance throughout the interview. His thought processes were logical and organized. There was no evidence of delusional thought content or perceptual disturbances. In a December 2016 VA mental disorders examination report, the examiner noted diagnoses of other specific trauma and stressor related disorder, somatic symptoms with predominant pain, sleep disorder, and moderate major depression. The examiner specifically noted that somatic symptoms with predominate pain and the major depression have overlapping symptoms and cannot be differentiated. The examiner noted that the Veteran’s mental diagnoses result in occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks, although generally functioning satisfactorily, with normal routine behavior, self-care, and conversation. The examiner noted that the Veteran’s symptoms and diagnoses are all connected to his experience of chronic pain, sleep disturbance, anxiety, and depression. His symptoms include depressed mood, anxiety, chronic sleep impairment, and disturbances of motivation and mood. In a January 2017 VA treatment record, the Veteran reported “freezing” symptoms where he would wake up from nightmares unable to move or he would wake up with leg kicking movements. In a December 2016 statement, the Veteran asserted that his service-connected disabilities result in difficulty in adapting to stressful circumstances. Upon thorough review of the claims file, the Board concludes that the preponderance of the evidence is against granting a rating in excess of 50 percent. It is true that the file reflects that the Veteran has complained of depression, irritability, inability to maintain effective relationships, and difficulty adapting to stressful circumstances. However, the medical evidence of record does not reflect that the Veteran has symptoms comparable to suicidal ideation, obsessional rituals which interfere with routine activities, impaired speech, near-continuous panic or depression affecting the ability to function independently, appropriately and effectively, impaired impulse control (such as unprovoked irritability with periods of violence), spatial disorientation, or neglect of personal appearance and hygiene. Furthermore, those symptoms that are present have not been shown to be so severe as to result in deficiencies in most areas as contemplated by the criteria for a 70 percent rating. The January 2016 VA examiner specifically found that the mental diagnoses result in occupational and social impairment with reduced reliability and productivity. The December 2016 VA examiner noted that the Veteran’s disability resulted in occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks, although generally functioning satisfactorily, with normal routine behavior, self-care, and conversation. Neither of these examiners found that the Veteran’s service-connected disability resulted in occupational and social impairment, with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood, due to such symptoms, or that this disability resulted in total occupational and social impairment. The Board notes that the Veteran has reported that he has no friends. However, he also reported that he maintains contact with family and is apparently able to maintain work relationships sufficient enough to remain employed. While the Veteran has reported difficulty adapting to stressful circumstances, there is no objective evidence that this has had an impact on his ability to function or maintain employment. In short, the Board finds that the primary symptoms of disturbances of motivation and mood, difficulty in establishing and maintaining effective work and social relationships, sleep disturbances, anxiety, and irritability are adequately compensated by his currently-assigned 50 percent evaluation. In summary, the Board concludes that the preponderance of the evidence is against the claim for an increased rating, and the benefit of the doubt rule enunciated in 38 U.S.C. § 5107(b) is not for application. There is not an approximate balance of evidence. See generally Gilbert, supra; Ortiz v. Principi, 274 F. 3d 1361 (Fed. Cir. 2001). Assignment of staged ratings has been considered and is not for application. See Fenderson, supra. REASONS FOR REMAND Additional development is needed prior to the adjudication of the remaining claims on appeal. 1. Entitlement to service connection for a bilateral knee strain. At a May 2017 VA examination, the Veteran was noted as having a bilateral knee strain. At this examination, the Veteran reported bilateral knee pain since around 1996 with distance running and parachute jumps with heavy equipment. He denied seeking treatment for this but reported continued problems through the years. In an accompanying opinion, the examiner found that the claimed condition was less likely than not incurred in or caused by the claimed in-service injury, event, or illness. The examiner noted that service treatment records do not indicate significant injury to or chronic problems related to either knee. The Veteran denied knee trouble on his July 1999 retirement examination. On his February 2016 VA examination, the Veteran denied any knee problems. In reference to his parachutist badge, the examiner noted that parachute jumping is a hazardous activity and does frequently result in injuries. However, these injuries, like any other injury occurring during service, should result in medical visits and treatment. There is no evidence that repeated parachute jumps consistently leads to the delayed onset of orthopedic issues. In contrast, thousands of recreational extreme skiers and base jumpers take similar impacts on a much higher scale than that experienced in miliary training and tend to lead healthy orthopedic lives long term. The examiner noted, as a side note, that research brought in by the Veteran indicated no increase in radiographically evident osteoarthritis of the knees in military parachutists, with the exception of those with defined injuries, particularly meniscal injuries treated with meniscectomy. Upon review of the service treatment records, the Board notes that the Veteran complained of knee pain, pinching, or throbbing in May 1999, July 1999, and October 1999. The Veteran also reported pain in his knee joint during mornings and cold weather on his July 1999 Report of Medical History. As such, the Board finds that an addendum opinion should be obtained on the matter, which discusses the Veteran’s in-service knee complaints. 2. Entitlement to service connection for sleep apnea. Throughout the course of his appeal, the Veteran has asserted that he has sleep apnea as a result of his active duty service or as a result of his service-connected disabilities. Specifically, the Veteran asserted on his April 2016 claim that his sleep apnea is secondary to his service-connected other specified trauma and stressor related disorder, somatic symptom disorder, sleep disorder. On his May 2016 notice of disagreement (NOD), the Veteran reported that his Army NCO Evaluation Report with thru date of March 1999 indicated that he was caught sleeping on duty. He asserted that his military service shows an aggravation of sleep apnea with symptoms of non-refreshed sleep. In a December 2016 statement, the Veteran asserted that his sleep apnea symptoms began during service. The Veteran’s representative suggested in an October 2018 statement that the Veteran’s sleep apnea is more likely than not caused by and/or aggravated by his cervical spine degenerative disc disease, chronic pain syndrome due to his service-connected injuries, headaches, tinnitus, and depression. In support of his claim, the Veteran submitted a March 2017 private opinion from his representative/physician and an October 2018 private opinion from Dr. Benham linking his sleep apnea to several service-connected disabilities. However, the Board notes that a February 2016 VA opinion determined that the Veteran’s sleep apnea is less than 50 percent probability proximately due to or the result of the Veteran’s service-connected lumbar strain and cervical degenerative disc disease. The examiner further noted that obstructive sleep apnea is less likely than not related to a specific exposure event experienced by the Veteran during service in Southwest Asia. The examiner noted that lumbar strain and cervical degenerative disc disease do not cause sleep apnea and are not anatomically related. The Veteran is obese with central fat distribution; this is the cause of his sleep apnea. While the VA examiner discussed the issue of causation, the examiner did not discuss the issue of potential aggravation by the Veteran’s service-connected disabilities. Moreover, the examiner did not discuss a potential link between the Veteran’s sleep apnea and his service-connected disabilities other than his lumbar spine strain and cervical spine degenerative disc disease. Further, the examiner did not address the Veteran’s assertions that his falling asleep on duty in service was a sign of his sleep apnea. As such, an addendum opinion should be obtained on this matter.   3. Entitlement to TDIU. The issues being remanded are inextricably intertwined with the Veteran’s TDIU claim. See Smith (Daniel) v. Gober, 236 F.3d 1370, 1373 (Fed. Cir. 2001) (noting that where the facts underlying separate claims are “intimately connected,” the interests of judicial economy and avoidance of piecemeal litigation require that the claims be adjudicated together); see also Harris v. Derwinski, 1 Vet. App. 180, 183 (1991) (two or more issues are inextricably intertwined if one claim could have significant impact on the other). Action on the TDIU claim must therefore deferred. Upon remand, the Veteran should be provided with a notice letter detailing the requirements for establishing entitlement to TDIU and a VA Form 21-8940. The matter is REMANDED for the following action: 1. Provide the Veteran with appropriate notice of VA’s duties to notify and to assist with regard to substantiating a claim for entitlement to TDIU. Additionally, provide him with VA Form 21-8940 in connection with the inferred claim for entitlement to TDIU, and request that he supply the requisite information. 2. Associate with the claims file all outstanding treatment records from the Fayetteville VA Medical Center (VAMC) and the Durham VAMC (and associated outpatient clinics) from June 2017 to the present. 3. Return the claims file to the VA examiner who provided the May 2017 VA bilateral knee opinion so that an addendum opinion may be obtained. If the same examiner is not available, an opinion can be provided by another VA examiner. The examiner should opine as to whether it is at least as likely as not that the Veteran’s strain of either knee began during, or was caused or aggravated by, his active duty service. The examiner should specifically discuss the Veteran’s in-service knee complaints, to include his report of knee pain on the July 1999 Report of Medical History. See discussion above concerning in-service complaints. It would be helpful if the examiner would use the following language, as may be appropriate: "more likely than not" (meaning likelihood greater than 50%), "at least as likely as not" (meaning likelihood of at least 50%), or "less likely than not" or "unlikely" (meaning that there is a less than 50% likelihood). The term "at least as likely as not" does not mean "within the realm of medical possibility." Rather, it means that the weight of medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of that conclusion as it is to find against it. The examiner should provide a complete rationale for any opinions provided. If additional examination is needed to render the above-requested opinion, such should be provided.   4. Return the claims file to the VA examiner who provided the February 2016 VA sleep apnea opinion so that an addendum opinion may be obtained. If the same examiner is not available, an opinion can be provided by another VA examiner. The examiner should respond to the following: a. Whether it is at least as likely as not that the Veteran’s sleep apnea began during, or was caused or aggravated by, his active duty service. The examiner should address the Veteran’s assertions that his falling asleep on duty in service was a sign of his sleep apnea (see 1999 evaluation report). b. Whether it is at least as likely as not that the Veteran’s sleep apnea was caused or aggravated by any of his service-connected disabilities. It would be helpful if the examiner would use the following language, as may be appropriate: "more likely than not" (meaning likelihood greater than 50%), "at least as likely as not" (meaning likelihood of at least 50%), or "less likely than not" or "unlikely" (meaning that there is a less than 50% likelihood). The term "at least as likely as not" does not mean "within the realm of medical possibility." Rather, it means that the weight of medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of that conclusion as it is to find against it. The examiner should provide a complete rationale for any opinions provided. If additional examination is needed to render the above-requested opinion, such should be provided. MICHELLE L. KANE Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD L. Durham, Counsel