Citation Nr: 19105260 Decision Date: 01/23/19 Archive Date: 01/22/19 DOCKET NO. 16-32 426 DATE: January 23, 2019 ORDER New and material evidence having been received, reopening of entitlement to service connection for a back disability is granted. Entitlement to service connection for a back disability is granted. Entitlement to service connection for a left knee disability is granted. Entitlement to service connection for a right knee disability is granted. Entitlement to service connection for a recurrent boil, left thigh abcess is denied. Entitlement to service connection for an acquired psychiatric disorder, to include depressive disorder is granted. Entitlement to an effective date earlier than November 8, 2013, for the grant of service connection for a cervical spine condition (neck disability) is denied. Entitlement to an effective date earlier than November 8, 2013, for the grant of service connection for bilateral hearing loss is denied. Prior to January 8, 2018, entitlement to a disability rating in excess of 20 percent for a neck disability is denied. From January 8, 2018, entitlement to a 30 percent disability rating for a neck disability is granted, except for the period from September 20, 2018 through February 28, 2019, when a temporary 100 percent rating is in effect. Beginning November 8, 2013, a separate 20 percent disability rating for peripheral neuropathy of the right upper extremity as a neurological complication of the Veteran’s neck disability is granted. Beginning November 8, 2013, a separate 20 percent disability rating for peripheral neuropathy of the left upper extremity as a neurological complication of the Veteran’s neck disability is granted. Prior to January 12, 2017, entitlement to a rating in excess of 10 percent for a left ankle disability under Diagnostic Code 5271 is denied. Beginning January 12, 2017, entitlement to a 20 percent rating for a left ankle disability under Diagnostic Code 5721 is granted. A separate 10 percent rating for left ankle disability under Diagnostic Code 5262 is granted. REMANDED Entitlement to an initial increased disability rating for bilateral hearing loss is remanded. Entitlement to service connection for sleep apnea is remanded. Entitlement to service connection for a right ankle disability is remanded. Entitlement to service connection for a right leg condition is remanded. Entitlement to a total disability rating for individual unemployability (TDIU) is remanded. FINDINGS OF FACT 1. The Veteran filed a claim for service connection for his back disability that was denied by a January 1996 rating decision. The Veteran was notified of this decision and his appellate rights and failed to file a timely Notice of Disagreement (NOD) or submit new and material evidence within 1 year. 2. The evidence received since the January 1996 rating decision is not cumulative of evidence previously of record and relates to an unestablished fact necessary to substantiate the claims for service connection for the Veteran’s back disability. 3. Resolving reasonable doubt in the Veteran’s favor, his back disability is at least as likely as not related to his time in service. 4. The preponderance of the evidence reflects that the Veteran’s left knee disability is due to his time in service. 5. Resolving reasonable doubt in the Veteran’s favor, his right knee disability is at least as likely as not related to his time in service. 6. The preponderance of the evidence is against the finding that the Veteran has had a left thigh abscess during the pendency of the appeal, or proximate thereto. 7. The Veteran’s depression is secondary to his service-connected back, neck, bilateral knee, hypertension, tinnitus, and left ankle disabilities. 8. Prior to November 8, 2013, there was no formal claim, informal claim, or written intent to file a claim for entitlement to service connection for a neck disability. 9. Prior to November 8, 2013, there was no formal claim, informal claim, or written intent to file a claim for entitlement to service connection for bilateral hearing loss. 10. Prior to January 8, 2018, the Veteran’s forward flexion of the cervical spine was at worst, 30 degrees. 11. From January 8, 2018, the Veteran’s forward flexion of the cervical spine was to 10 degrees, but he did not have ankylosis of the cervical spine. 12. Beginning November 8, 2013, the Veteran had slight incomplete paralysis of the right upper extremity as a neurological complication of his neck disability. 13. Beginning November 8, 2013, the Veteran had slight incomplete paralysis of the left upper extremity as a neurological complication of his neck disability. 14. Prior to January 12, 2017, the Veteran’s left ankle disability manifested as moderate limitation of motion. 15. From January 12, 2017, the Veteran’s left ankle disability manifested as marked limitation of motion. 16. The Veteran’s left ankle disability manifested as slight instability. CONCLUSIONS OF LAW 1. The January 1996 rating decision that denied the Veteran’s claim for service connection for a back disability is final. 38 U.S.C. § 7105(c) (2012); 38 C.F.R. §§ 3.104, 3.156, 20.200, 20.201, 20.202, 20.302, 20.1103 (2018). 2. The evidence received since the January 1996 rating decision is new and material, and the requirements for establishing service connection for a back have been met. 38 U.S.C. §§ 1110, 1112, 5107, 5108 (2012); 38 C.F.R. §§ 3.102, 3.156, 3.303, 3.307, 3.309 (2018). 3. The criteria for service connection for a back disability have been met. 38 U.S.C. §§ 1110, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303 (2018). 4. The criteria for service connection for a left knee disability have been met. 38 U.S.C. §§ 1110, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303 (2018). 5. The criteria for service connection for a right knee disability have been met. 38 U.S.C. §§ 1110, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303 (2018). 6. The criteria for service connection for a left thigh abscess have not been met. 38 U.S.C. §§ 1110, 5107 (2012); 38 C.F.R. § 3.303 (2018). 7. The criteria for secondary service connection for the Veteran’s depression have been met. 38 U.S.C. §§ 1110, 5107 (2012); 38 C.F.R. §§ 3.102, 3.310 (2018). 8. The criteria for an effective date prior to November 8, 2013, for the grant of service connection for a neck disability have not been met. 38 U.S.C. §§ 5107, 5110 (2012); 38 C.F.R. § 3.102, 3.155, 3.400 (2018). 9. The criteria for an effective date prior to November 8, 2013, for the grant of service connection for bilateral hearing loss have not been met. 38 U.S.C. §§ 5107, 5110 (2012); 38 C.F.R. § 3.102, 3.155, 3.400 (2018). 10. Prior to January 8, 2018, the criteria for an evaluation in excess of 20 percent for the Veteran’s neck disability have not been met. 38 U.S.C. § § 1155, 5107 (2012); 38 C.F.R. § § 4.1-4.16, 4.45, 4.59, 4.71a, Diagnostic Code 5243 (2018). 11. From January 8, 2018, the criteria for an evaluation 30 percent for the Veteran’s neck disability have been met. 38 U.S.C. § § 1155, 5107 (2012); 38 C.F.R. § § 4.1-4.16, 4.45, 4.59, 4.71a, Diagnostic Code 5243 (2018). 12. Beginning November 8, 2013, the criteria for a separate 20 percent rating for peripheral neuropathy of the right upper extremity have been met. 38 U.S.C. § § 1155, 5107 (2012); 38 C.F.R. § § 4.1-4.16, 4.45, 4.59, 4.71a, General Rating Formula for Diseases and Injuries of the Spine Note (1), 4.124a, Diagnostic Code 8511. 13. Beginning November 8, 2013, the criteria for a separate 20 percent rating for peripheral neuropathy of the left upper extremity have been met. 38 U.S.C. § § 1155, 5107 (2012); 38 C.F.R. § § 4.1-4.16, 4.45, 4.59, 4.71a, General Rating Formula for Diseases and Injuries of the Spine Note (1), 4.124a, Diagnostic Code 8511. 14. Prior to January 12, 2017, the criteria for a left ankle disability rating in excess of 10 percent have not been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.102, 4.1-4.14, 4.71a, Diagnostic Code 5271 (2018). 15. From January 12, 2017, the criteria for a left ankle disability rating of 20 percent have been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.102, 4.1-4.14, 4.71a, Diagnostic Code 5271 (2018). 16. The criteria for a separate 10 percent rating for slight left ankle instability have been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.102, 4.1-4.14, 4.71a, Diagnostic Code 5262 (2018). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Board acknowledges the Veteran’s representative’s argument concerning the November 2017 left knee VA examination; the adequacy of that examination is addressed below. Accordingly, neither the Veteran nor his representative have raised any other issues with the duty to notify or 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). The Board also notes a July 2017 rating decision granted the Veteran’s service connection claim for tinnitus. Therefore, that claim is no longer before the Board. New and Material Evidence To reopen a claim which has been denied by a final decision, the claimant must present new and material evidence. 38 U.S.C. § 5108. New and material evidence means evidence not previously submitted to agency decision makers; which relates, either by itself or when considered with previous evidence of record, to an unestablished fact necessary to substantiate the claim; which is 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 which raises a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a). To reopen a previously disallowed claim, new and material evidence must be presented or secured since the last final disallowance of the claim on any basis, including on the basis that there was no new and material evidence to reopen the claim since a prior final disallowance. See Evans v. Brown, 9 Vet. App. 273, 285 (1996). For purposes of reopening a claim, the credibility of newly submitted evidence is generally presumed. See Justus v. Principi, 3 Vet. App. 510, 513 (1992) (in determining whether evidence is new and material, “credibility” of newly presented evidence is to be presumed unless evidence is inherently incredible or beyond competence of witness). The threshold for determining whether new and material evidence raises a reasonable possibility of substantiating a claim is “low.” See Shade v. Shinseki, 24 Vet. App. 110, 117 (2010). Furthermore, in determining whether this low threshold is met, VA should not limit its consideration to whether the newly submitted evidence relates specifically to the reason why the claim was last denied, but instead should ask whether the evidence could reasonably substantiate the claim were the claim to be reopened, to include by triggering the Secretary’s duty to assist. Id. at 118. In a June 1996 rating decision, the Regional Office (RO) denied service connection for a back disability. The RO determined the Veteran’s claim was not well grounded. The RO considered the Veteran’s retirement examination which showed complaints of low back pain, but concluded the Veteran’s low back complaint did not qualify as a disability. Accordingly, service connection was denied. The Veteran was notified of that decision and his appeal rights; however, he did not file an appeal. There was also no new and material evidence received within one year of the issuance of the decision. Thus, the January 1996 rating decision is final. 38 U.S.C. § 7105 (2012); 38 C.F.R. §§ 3.156(b), 20.200, 20.201, 20.302, 20.1103 (2018). The Veteran filed a petition to reopen in November 2013. Since the January 1996 rating decision, additional VA treatment records and private medical records have been received. Specifically, the Board notes the evidence contains a May 2016 private opinion concluding the Veteran’s back disability is due to service. New and material evidence has been received to reopen the Veteran’s back disability claim. 38 C.F.R. § 3.156(a). The Board addresses the merits of the Veteran’s claim below. Service Connection Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active military service. To establish service connection for the claimed disorder, there must be (1) medical evidence of a current disability; (2) medical, or in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical, or in certain circumstances, lay evidence of a nexus between the claimed in-service disease or injury and the current disability. See 38 C.F.R. § 3.303 (2018); see also Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004). The Board must determine the value of all evidence submitted, including lay and medical evidence. Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). The evaluation of evidence generally involves a three-step inquiry. First, the Board must determine whether the evidence comes from a “competent” source. Second, the Board must then determine if the evidence is credible, or worthy of belief. Barr v. Nicholson, 21 Vet. App. 303, 308 (2007). Third, the Board must weigh the probative value of the evidence in light of the entirety of the record. A claimant is entitled to the benefit of the doubt when there is an approximate balance of positive and negative evidence. See 38 C.F.R. § 3.102 (2018). When a claimant seeks benefits and the evidence is in relative equipoise, the claimant prevails. See Gilbert v. Derwinski, 1 Vet. App. 4 (1990). The preponderance of the evidence must be against the claim for benefits to be denied. See Alemany v. Brown, 9 Vet. App. 518 (1996). 1. Back Disability The Veteran’s service records document his in-service back treatment. In June 1987, the Veteran reported back pain that radiated down to his right side. In April 1988, he complained of upper back pain during pullups. Last, his November 1994 retirement examination documented recurrent back pain. In February 2014, the Veteran received a VA examination. The examiner noted the Veteran’s 2000 diagnosis of degenerative disc disease of the lumbar spine. The examiner considered the retirement examination documented low back pain but noted the lack of a formal diagnosis until years after discharge. Therefore, the examiner concluded the Veteran’s current back disability was not related to his in service treatment. In a May 2016 private opinion, the examiner concluded the Veteran’s history of military duty led to degenerative changes of the lumbar spine, eventually requiring surgery. The private examiner concluded the Veteran’s degenerative changes were caused by his carrying around a 50-pound sack as part of training and his work on bridges. The Board considers the positive and negative opinion of record and assigns both opinions high probative value. Both examiners consider the Veteran’s in-service duties and complaints in forming an opinion. Accordingly, as the evidence is in relative equipoise, the Veteran’s claim prevails. See Gilbert v. Derwinski, 1 Vet. App. 4 (1990). Therefore, service connection for a back disability is granted. 2. Left Knee The Veteran was treated for various left knee injuries in service. An April 1977 record noted the Veteran injured his left knee when he slipped in the shower. In December 1977, the Veteran was treated for left knee pain and placed on limited duty. In February 1989, he reported having trouble bending his left knee. A March 1989 service record documented the Veteran’s left knee pain due to direct trauma and noted he had swelling with limited range of motion. The Veteran’s first VA examination was in February 2014. The examiner noted the Veteran was diagnosed with degenerative joint disease in 2001. The examiner concluded his current condition was not related to his left knee treatment in service Because the Veteran was not diagnosed until years after service. The Veteran submitted a private opinion from May 2016. The private examiner noted the Veteran’s in-service job required heavy lifting and running in combat boots. The examiner noted that while the Veteran’s radiographs in service may have been normal the Veteran could have had symptoms of early degeneration. Further, the examiner noted the Veteran had no significant injuries post-service to cause his knee issues. In 2017, the Veteran received 2 VA opinions. In September 2017, the VA examiner concluded the Veteran’s left knee disability was at least as likely as not related to his in-service injuries. The examiner noted he had no issues prior to service and the onset of his condition was documented in his service records. Conversely, in a November 2017 VA opinion, the examiner determined his left knee disability was not related to his in-service complaints because his arthritis diagnosis was 20 years later. The November 2017 examiner opined that it was reasonable to conclude the Veteran’s current disability was age related. The Board considers all the opinions of record and finds the preponderance of the evidence is for the Veteran’s claim. As mentioned above, the Board considers the Veteran’s argument that the November 2017 VA opinion was inadequate. The Board agrees that the opinion fails to address the Veteran’s in-service complaints and only discusses the length of time between service and diagnosis. Similarly, the other negative VA opinion, from February 2014, only considered the 20-year gap in formal diagnosis. Consequently, the Board assigns the May 2016 private opinion and September 2017 VA opinion higher probative weight. Both opinions addressed the Veteran’s in-service complaints; specifically, the May 2016 private opinion noted the Veteran’s early reports of pain were signs of degeneration. Therefore, as the preponderance of probative evidence is for the Veteran’s claim, the Board finds service connection for a left knee disability is warranted. See Alemany v. Brown, 9 Vet. App. 518 (1996). 3. Right Knee The Veteran’s September 1988 service records documented his treatment for a right knee laceration. The Veteran received conflicting opinions concerning his right knee disability. Similar to his left knee, the February 2014 VA examiner opined his current right knee issue was not related to service. Likewise, the September 2017 VA examiner concluded his in-service right knee laceration was not the type of condition that would cause a chronic disability because there was no nerve of muscle damage. However, the May 2016 private examiner considered the Veteran’s in service duty as the cause of his knee issues. As discussed above, the private doctor cited the Veteran’s running in combat boots, carrying heavy equipment, and building bridges in-service caused his knee pain. Thus, the Board finds the probative evidence of record is in relative equipoise. For the reasons addressed above, the Board finds the February 2014 opinion inadequate as the Veteran’s in-service injury was not addressed. The Board thus considers the conflicting September 2017 and May 2016 opinions, which both considered the Veteran’s time in service. The Board similarly assigns both opinions probative value. As there is an equal balance of positive and negative evidence, the benefit of the doubt doctrine is applicable and the Veteran’s claim for service connection is granted. 4. Left Thigh Abscess The Veteran’s service records document his continual complaints and treatment for a left thigh abscess during active service. In February 2014, the Veteran was afforded a VA examination. The VA examiner noted the Veteran’s initial diagnosis in 1984. However, there was no evidence of an abscess present at the examination. The examiner noted the condition was last active in 2007, prior to the appeal period. Accordingly, the VA examiner found there was no evidence of a current disability. The Board acknowledges the evidence of record showing the Veteran’s history of a left thigh abscess, but it was not present at the February 2014 VA examination. As noted, the most recent occurrence of a left thigh abscess was in 2007, about 6 years before the date of the Veteran’s claim in November 2013. Given the length of time between last occurrence of an abscess and the claim of entitlement to service connection for such, the Board finds the 2007 occurrence is not contemporaneous to the claim and that the condition resolved prior to when he filed his claim. While the Veteran is competent to report observable symptoms, he is not competent to provide a diagnosis of a current disability caused by his past episodes of left thigh abscesses during his active service. Such findings require medical expertise and are outside the realm of common knowledge of a layperson. Kahana v. Shinseki, 24 Vet. App. 428 (2011); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Therefore, the Veteran is not competent to provide a diagnosis or an etiology opinion in this case. Additionally, he has not provided a lay description of symptoms during the appeal period. For a disability to be service connected, it must be present at the time a claim for VA disability compensation is filed or during, or contemporary to, the pendency of the claim. McClain v. Nicholson, 21 Vet. App. 319 (2007); Romanowsky v. Shinseki, 26 Vet. App. 289 (2013). Here, there is no evidence of record showing the Veteran to have a current diagnosis of a left thigh abscess during the period of the claim, or proximate thereto. Congress has specifically limited entitlement to service-connected benefits to cases where there is a current disability. In the absence of proof of a present disability, there can be no valid claim. Brammer v. Derwinski, 3 Vet. App. 223 (1992). Accordingly, the Board finds that the preponderance of the evidence is against the claim and entitlement to service connection for a left thigh abscess is not warranted. 38 U.S.C. § 5107 (b) (2012); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). 5. Psychiatric Disorder Service connection may be established on a secondary basis for a disability which is proximately due to or the result of a service-connected disability or injury. 38 C.F.R. § 3.310(a) (2018). Secondary service connection may also be established for a nonservice-connected disability which is aggravated by a service-connected disability. In such an instance, the Veteran may be compensated for the degree of disability over and above the degree of disability existing prior to the aggravation. 38 C.F.R. § 3.310(a) (2018); Allen v. Brown, 7 Vet. App. 439, 448 (1995). To establish entitlement to service connection on this 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). In a January 2018 VA opinion, the examiner determined the Veteran had depressive disorder. The examiner noted the Veteran had depression as a child that remitted when he was in service. The Veteran’s depression returned due to his chronic pain and limited mobility. Specifically, the examiner attributed his depression to his multiple neck and back surgeries, headaches, tinnitus, knee replacements, cardiovascular disease, and recent ankle surgery. The Board has service connected the Veteran for his back and knee disabilities and notes the Veteran’s prior service connection for his neck, tinnitus, hypertension, and left ankle disabilities. Consequently, as the January 2018 examiner opined the Veteran’s depression was due to the aforementioned conditions, the Board finds the requirements for secondary service connection have been met. Thus, service connection for depression is granted on a secondary basis. Effective Date Unless specifically provided otherwise, the effective date of an evaluation and grant of pension, compensation, or dependency and indemnity compensation based on an original claim, a claim reopened after final disallowance, or a claim for increase will be the date of receipt of the claim or the date entitlement arose, whichever is the later. See 38 U.S.C. § 5110(a) (2012); 38 C.F.R. § 3.400 (2018). The effective date for a grant of service connection is the day following the date of separation from active service or the date entitlement arose, if the claim is received within one year after separation from active service; otherwise date of receipt of claim, or date entitlement arose, whichever is later. See 38 U.S.C. § 5110(a) (2012); 38 C.F.R. § 3.400(b)(2)(i) (2018). Prior to March 24, 2015, a “claim” was either a formal or informal communication in writing requesting a determination of entitlement or evidencing a belief in entitlement to a benefit. See 38 C.F.R. § 3.1(p) (2014). “Date of receipt” of a claim, information, or evidence means the date on which a claim, information, or evidence was received by VA. See 38 C.F.R. § 3.1(r). Any documented communication from, or action by, a veteran indicating intent to apply for a benefit under laws administered by VA may be considered an informal claim. See 38 C.F.R. § 3.155(b) (2018). To determine when a claim was received, the Board must review all communications in the claims file that may be construed as an application or claim. See Quarles v. Derwinski, 3 Vet. App. 129, 134 (1992). Effective March 24, 2015, all claims must be submitted on a form prescribed by the Secretary of VA. Neck Disability and Bilateral Hearing Loss A review of the claims file reveals that VA received the Veteran’s claim seeking service connection for a neck disability and bilateral hearing loss on November 8, 2013. Generally, the effective date for service connection is not based on the date a disability began, but rather on the date of receipt of the claim. See Lalonde v. West, 12 Vet. App. 377, 382 (1999). The Veteran asserts he is entitled to an earlier effective date for the award of service connection for these disabilities but did not provide an explanation as to why. He did not assert that he had filed a claim prior to November 8, 2013. No communication was received from the Veteran nor his representative indicating an intent to claim service connection for a neck disability or bilateral hearing loss prior to November 8, 2013. Therefore, an effective date prior to November 8, 2013 for the grant of service connection for both disabilities is denied. See 38 U.S.C. § 5110(a) (2012); 38 C.F.R. § 3.400. Increased Rating As a preliminary matter, the Board notes that in its December 2018 Appellant’s Brief, the Veteran’s representative stated that the Veteran requests the maximum benefit allowed by law, including an extraschedular rating “based on the exceptional and unusual symptoms and severity of his service-connected disability.” The Veteran’s representative did not specify which claim or claims were being referred to, and did not provide any argument or evidence in support of an extraschedular rating for any of the increased rating claims. The Veteran and his representative do not state how they believe the rating criteria do not contemplate his symptoms. Further, the record does not raise any symptoms that are not already contemplated by the rating schedule. Disability ratings are determined by applying the criteria established in VA’s Schedule for Rating Disabilities, which is based upon the average impairment of earning capacity. Individual disabilities are assigned separate Diagnostic Codes. 38 U.S.C. § 1155 (2012); 38 C.F.R. §§ 4.1, 4.20 (2018). When a question arises as to which of two ratings applies under a particular Diagnostic Code, the higher evaluation is assigned if the disability more nearly approximates the criteria for the higher rating; otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7 (2018). Consideration must be given to increased evaluations under other potentially applicable Diagnostic Codes. Schafrath v. Derwinski, 1 Vet. App. 589, 595 (1991). After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the claimant. 38 C.F.R. § 4.3 (2018). Where entitlement to compensation already has been established and an increase in the disability rating is at issue, it is the present level of disability that is of primary concern. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994). Separate ratings may be assigned for separate periods of time based on the facts found; this practice is known as staged ratings. Hart v. Mansfield, 21 Vet. App. 505 (2007). 1. Neck Disability Given the nature of the present claim for a higher initial evaluation, the Board has considered all evidence of severity since the effective date for the award of service connection in November 2013. Fenderson v. West, 12 Vet. App. 119 (1999). The Board also notes that from September 20, 2018 through February 28, 2019, the Veteran’s neck disability is rated at 100 percent. For purposes of this appeal, that time period will not be considered. The Veteran’s cervical spine disability is rated at 20 percent under Diagnostic Code 5243, which contemplates intervertebral disc syndrome (IVDS). 38 C.F.R. § 4.71a (2018). IVDS may be rated under either the Formula for Rating IVDS Based on Incapacitating Episodes or the General Rating Formula for Diseases and Injuries of the Spine. IVDS warrants a 20 percent evaluation when the Veteran has incapacitating episodes having a total duration of a least 2 weeks but less than 4 weeks during the past 12 months. A 40 percent evaluation is warranted when the Veteran has incapacitating episodes having a total duration of at least 4 weeks but less than 6 weeks during the past 12 months. 38 C.F.R. § 4.71a. For purposes of assigning evaluations under Code 5243, an “incapacitating episode” is a period of acute signs and symptoms due to intervertebral disc syndrome that requires bed rest prescribed by a physician and treatment by a physician. Id., Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes, Note 1 (2016). There is no medical or lay evidence of record indicating the Veteran has ever had an incapacitating episode due to his neck disability. Therefore, the Formula for Rating IVDS does not apply. Additionally, although the RO used Diagnostic Code 5423, they applied the criteria set forth in the General Rating Formula for Diseases and Injuries of the Spine. Under the General Rating Formula for Diseases and Injuries of the Spine, a 20 percent rating is warranted with forward flexion of the cervical spine greater than 15 degrees but not greater than 30 degrees, the combined range of motion of the cervical spine not greater than 170 degrees; or muscle spasms or guarding severe enough to result in an abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis. A 30 percent rating is warranted with forward flexion of the cervical spine at 15 degrees or less or there is favorable ankylosis of the entire cervical spine. Id. A 40 percent rating is warranted with unfavorable ankylosis of the entire cervical spine or favorable ankylosis of the entire thoracolumbar spine. Id. A 50 percent rating is warranted for unfavorable ankylosis of the entire thoracolumbar spine. Id. Last, a 100 percent rating is warranted for unfavorable ankylosis of the entire spine. Id. Under the rating criteria, forward flexion to 45 degrees, extension to 45 degrees, lateral flexion to 45 degrees, and rotation to 80 degrees, are considered normal range of motion of the cervical spine. Id. at Plate V. “Ankylosis” is defined as “immobility and consolidation of a joint due to disease, injury, or surgical procedure.” Dorland’s Illustrated Medical Dictionary, 94 (32nd ed. 2012). When an evaluation of a disability is based upon limitation of motion, the Board must also consider, in conjunction with the otherwise applicable Diagnostic Code, any additional functional loss the Veteran may have sustained by virtue of other factors as described in 38 C.F.R. §§ 4.40 and 4.45. DeLuca v. Brown, 8 Vet. App. 202, 206 (1995). Such factors include more or less movement than normal, weakened movement, excess fatigability, incoordination, pain on movement, swelling, and deformity or atrophy from disuse. A finding of functional loss due to pain must be supported by adequate pathology and evidenced by the visible behavior of the Veteran. 38 C.F.R. § 4.40 (2018); Johnston v. Brown, 10 Vet. App. 80, 85 (1997). The Veteran’s first VA examination was in February 2014. The Veteran denied experiencing flare ups. His range of motion was forward flexion to 30 degrees, with pain; extension to 20 degrees, with pain; right lateral flexion to 30 degrees without pain; left lateral flexion to 30 degrees without pain, right lateral rotation to 60 degrees, with pain; and left lateral rotation to 60 degrees, with pain. He experienced no additional loss in range of motion after repetitive testing, but had less movement and pain on movement. His muscle strength, reflexes, and sensory examinations were normal, and the examiner specifically found that he did not have radiculopathy. The examiner noted that the Veteran did not have tenderness, ankylosis, guarding, abnormal gait, or spinal contour. An October 2016 private examiner reported the Veteran’s neck disability had worsened since his last examination. Subsequently, the Veteran received a VA examination on January 8, 2018. At his January 2018 examination his forward flexion, extension, right lateral flexion, left lateral flexion, right lateral rotation, and left lateral rotation were all limited to 10 degrees. All ranges of motion were painful. His abnormal range of motion interfered with his ability to drive. He experienced no additional loss in range of motion after repetitive testing, but continued to experienced pain and less movement than normal. He did not have ankylosis. The Board finds prior to his January 2018 VA examination, the criteria for a disability rating in excess of 20 percent were not met. Prior to that examination, the Veteran’s cervical forward flexion was not less than 15 degrees, as required for a 30 percent rating. Additionally, the Veteran did not have ankylosis. The Board considers the Veteran’s report of painful movement and less movement than normal contributing to functional loss. See DeLuca v. Brown, 8 Vet. App. 202 (1995). However, neither the lay nor clinical evidence demonstrated painful motion that cause functionally limitation beyond that contemplated by the current evaluation, 20 percent. See 38 C.F.R. § 4.59. Consequently, the Board finds prior to the January 2018 examination, the Veteran’s disability is best captured by a 20 percent rating. The Board finds, however, that the January 8, 2018 examination presents a distinct worsening in the Veteran’s disability, such that an increase to a 30 percent rating is warranted. At that examination, the Veteran’s forward flexion was less than 15 degrees. Nevertheless, the Veteran did not meet the criteria for a higher rating as he did not have unfavorable ankylosis of the entire cervical spine. The Board notes the medical evidence of record consistently shows the Veteran does not have ankylosis. The Board similarly considers the Veteran’s report of painful, limited motion contributing to functional loss. While the Veteran’s functional loss is considered, the evidence fails to show the Veteran’s functional limitation results in limitation of motion sufficient to meet the requirements of the next higher disability rating. Thompson v. McDonald, 815 F.3d 781, 785-86 (Fed. Cir. 2016). A 30 percent rating is granted for the Veteran’s neck disability beginning on January 8, 2018, the date of his VA examination. The record does not indicate a specific date where the 30 percent criteria were met prior to this examination, therefore it is not possible to stage the rating prior to that date. Aside from peripheral neuropathy in the upper extremities, no additional neurological abnormalities requiring separate ratings are shown by the medical or lay evidence of record. Service connection for peripheral neuropathy was granted for peripheral neuropathy of the right upper extremity with a 40 percent rating under Diagnostic Code 8511, effective September 21, 2016. Service connection for peripheral neuropathy of the left upper extremity was granted with a 30 percent rating under Diagnostic Code 8511, effective September 21, 2016. This effective date was the date the Veteran claimed service connection for these disabilities. However, the General Rating Formula for Diseases and Injuries of the Spine notes that neurological abnormalities must be evaluated as part of the claim for an increased rating. The appeal period for the Veteran’s neck disability begins on November 8, 2013. The Veteran was diagnosed with cervical spondylosis with myelopathy, cervical stenosis, and radiculopathy at the Sarasota Memorial Hospital in May 2007. He reported pain running down his arms. The Board notes that at his June 2014 VA examination for his neck disability, strength, reflexes, and sensory examinations were all normal for his upper extremities. The examiner specifically found that there was no radicular pain or any other signs or symptoms due to radiculopathy. In May 2016 his diagnosis was cervical radiculitis. Diagnostic Code 8511 contemplates paralysis of the middle radicular group. Under Diagnostic Code 8511, 20 percent ratings are warranted for mild incomplete paralysis of the major and minor arms. A 40 percent rating for the major arm, and a 30 percent rating for the minor arm, is warranted when there is moderate incomplete paralysis. A 50 percent rating for the major arm, and a 40 percent rating for the minor arm, is warranted when there is severe incomplete paralysis. A 70 percent rating for the major arm, and a 60 percent rating for the minor arm, is warranted when there is complete paralysis, with adduction, abduction, and rotation of arm, flexion of elbow, and extension of wrist lost or severely affected. 38 C.F.R. § 4.124a (2017). The term “incomplete paralysis” with this and other peripheral nerve injuries indicates a degree of lost or impaired function substantially less than the type pictured for complete paralysis given with each nerve, whether due to varied level of the nerve lesion or to partial regeneration. When the involvement is wholly sensory, the rating should be for the mild, or at most, the moderate degree. 38 C.F.R. § 4.124a (2017). Prior to the October 2016 VA examination, the only evidence of radiculopathy is a notation of it in 2007 and a diagnosis of cervical radiculitis in May 2016. Prior to the October 2016 VA examination, the only symptom noted was pain by history. Symptoms of radiculopathy were specifically not found at the June 2014 VA examination. Based on the evidence, the Board grants separate 20 percent ratings for peripheral neuropathy of the upper extremities as neurological abnormalities of the Veteran’s neck disability. However, prior to the October 2016 VA examination, the neuropathy must be described as slight because there were no symptoms other than a history of pain. The June 2014 VA examination showed normal results and symptoms of radiculopathy were specifically not found. VA treatment records and lay statements do not provide further description of peripheral neuropathy. It is not more appropriately categorized as moderate. After September 21, 2016, the Veteran’s peripheral neuropathy is best categorized as moderate. The Veteran filed his claim for peripheral neuropathy on September 21, 2016. As a result of the claim, the RO provided the Veteran with a VA peripheral nerves examination. At the October 2016 examination, bilateral upper extremity peripheral neuropathy was diagnosed, and the Veteran reported pain running down both arms from his neck after his surgery in 2007. At the examination he reported his current symptoms as pain running down both arms, made worse by turning head or raising his arms. He described reduced strength in his hands and a “pins and needles” feeling in his hands, as well as numbness in his arms. The examiner noted that the Veteran was right handed. Upon examination, there was moderate constant pain, moderate intermittent pain, moderate paresthesias and/or dysesthesias, and moderate numbness, all bilaterally. His strength was 4/5 for elbow flexion and extension, wrist flexion and extension, and grip. He did not have muscle atrophy. His biceps reflexes were 1+ (hypoactive) bilaterally. His triceps reflexes were 0 (absent). His brachioradialis reflex was 0 on the right and 1+ on the left. His shoulder sensation was normal on the right and decreased on the left. His inner/outer forearm and hand/fingers sensation was decreased bilaterally. There were no trophic changes. The examiner noted moderate incomplete paralysis of the middle and lower radicular groups bilaterally. No assistive devices were used. The examiner stated that the Veteran’s ability to perform repetitive gripping, overhead work, and repetitive typing was limited. The findings from the October 2016 VA examination do not support a finding that there is severe incomplete paralysis in either extremity. The examiner noted a moderate (not severe) level of severity for both types of pain, paresthesias and/or dysesthesias, and numbness. His strength was decreased at 4/5 (5/5 is normal). More severe levels of weakness are accounted for in strength testing: 3/5, 2/5, 1/5, and 0/5. These represent active movement against gravity, active movement with gravity eliminated, palpable or visible muscle contraction but no joint movement, and no muscle movement, respectively. The Veteran’s strength (4/5) is described as active movement against some resistance. This level of weakness does not support a finding that the disability is severe. The Veteran had at worst decreased sensation, as opposed to the more severe level, which is absent sensation. A lack of trophic changes also supports a finding that the disability is moderate. The Veteran’s reflexes were hypoactive or absent, but this finding does not render his disability severe, when read together with the other results of the examination, the majority of which support a moderate rating. Significantly, the VA examiner found that the severity of the Veteran’s disability was moderate overall. At his January 2018 neck conditions examination, the examiner diagnosed bilateral upper extremity radiculopathy. The examiner found mild constant pain, no intermittent pain, mild paresthesias and/or dysesthesias, and mild numbness, all bilaterally. His strength was 5/5 (normal) for all upper extremity tests. His reflexes were 1+ (hypoactive) for bicep, triceps, and brachioradialis. His right shoulder, right inner/outer forearm, left shoulder, and left inner/outer forearm had normal sensation. His right and left hand/fingers had decreased sensation. The examiner described the overall severity of the condition as mild bilaterally. The January 2018 examination does not support a finding that the Veteran’s radiculopathy in either upper extremity is more accurately described as severe. Significantly, the results of the January 2018 VA examination showed the same level or milder symptoms than the October 2016 VA examination. Some of the tests performed yielded normal results. The other medical and lay evidence of record does not provide a description of the Veteran’s bilateral peripheral neuropathy of the upper extremities. For these reasons, ratings greater than 40 percent for the right arm and 30 percent for the left arm for bilateral peripheral neuropathy of the upper extremities as a neurological complication of the Veteran’s neck disability are not warranted. The Veteran has erectile dysfunction, but in February 2018, a VA examiner stated that it was due to benign prostatic hypertrophy. There is no medical or lay evidence to the contrary. A separate rating for erectile dysfunction as a neurological complication of his neck disability is not warranted. 2. Left Ankle Disability The Veteran’s left ankle disability is currently rated under Diagnostic Code 5271, limited motion of the ankle. 38 C.F.R. § 4.71a (2018). Under this Diagnostic Code a 10 percent rating is warranted with moderate limited motion and a 20 percent rating is warranted under marked limited motion. Standard range of motion of an ankle is to 20 degrees of dorsiflexion and to 45 degrees of plantar flexion. 38 C.F.R. § 4.71 Plate II. While the schedule of ratings does not provide information as to what manifestations constitute “moderate” or “marked” limitation of ankle motion, guidance can be found in the VA Adjudication Procedures Manual (M21-1). The M21-1 states that moderate limitation of ankle motion is present when there is less than 15 degrees dorsiflexion or less than 30 degrees plantar flexion, while marked limitation of motion is demonstrated when there is less than 5 degrees dorsiflexion or less than 10 degrees plantar flexion. See M21-1, III.iv.4.A.3.k. The M21-1 is not binding on the Board. However, the Board must address relevant provisions of the M21-1 and conduct an independent analysis before determining whether the provisions may be relied upon as a factor to support its decision. Overton v. Wilkie, 30 Vet. App. 257 (2018). In finding that the Veteran’s limitation of ankle motion is not more accurately defined as “marked,” the Board considers VA’s proposed change to Diagnostic Code 5271, which was published in February 2003. See 68 FR 6998. In the proposed regulation, VA noted that it hired an outside consultant to recommend changes “…to ensure that the schedule uses current medical terminology and unambiguous criteria, and that it reflects medical advances that have occurred since the last review. The consultant convened a panel of non-VA specialists to review the portion of the rating schedule dealing with the musculoskeletal system in order to formulate recommendations.” Id. Regarding Diagnostic Code 5271, VA noted that the terms “marked” and “moderate” are subjective and proposed to substitute more objective criteria that was recommended by the consultants. Specifically, it was proposed to assign a 20 percent rating if there was less than 5 degrees passive dorsiflexion or less than 10 degrees passive plantar flexion, and a 10 percent rating if there was less than 15 degrees of passive dorsiflexion or less than 30 degrees passive plantar flexion. Id. at 7018. It was noted that this change would promote consistent evaluations. Id. The Board finds the explanation of the proposed regulation to be persuasive. Significantly, VA consulted with specialist medical professionals who recommended objective criteria based upon current medical knowledge with the specific intent of ensuring more consistent outcomes for veterans. Then, in August 2017, VA again proposed to change Diagnostic Code 5271. See 82 FR 35719. VA noted that the criteria set forth in Diagnostic Code 5271 are “subjective and the terminology is vague, resulting in inconsistent evaluations.” VA proposed this time to define “marked” as less than 5 degrees of dorsiflexion or less than 10 degrees of plantar flexion, and “moderate” as less than 15 degrees of dorsiflexion or less than 30 degrees of plantar flexion. Id. at 35723. VA noted that, “[a]s VA currently uses these standards to define marked and moderate, this change is intended as a clarification of current policy and would ensure consistent application of these criteria among rating personnel.” Id. The Board finds the explanation of the proposed regulation to be persuasive because again, VA is expressing its intent to codify a policy that was employed to ensure more uniformity among its rating personnel. Additionally, the proposed criteria were similar to those proposed in 2003, with the exception that the word “passive” was not included. In Dorland’s Illustrated Medical Dictionary, 1592 (32nd ed. 2012), range of motion redirects the reader to “exercise.” Passive exercise “is motion imparted to a segment of the body by another individual, machine, or other outside force, or produced by voluntary effort of another segment of the patient’s own body.” Id., at 658. Active exercise is “motion imparted to a part by voluntary contraction and relaxation of muscles controlling the part.” Id. It is reasonable from these definitions to conclude that active motion is the more difficult of the two types of motion to perform because it is done without assistance from external forces, which would be capable of pushing the Veteran’s joint farther than he would be able to move it on his own. Therefore, the omission of the word “passive” from the 2017 proposed regulation is likely more favorable to veterans, which causes the Board to be more further inclined to employ its use. The Board does not consider the M21-1 provision to be binding, but finds the reasoning employed in the 2003 and 2017 proposed rules to be highly persuasive in support of a finding that the ranges of motion listed in the M21-1 are appropriate, given that they are nearly identical to the 2003 proposal that was made in consultation with specialist medical professionals. The Board also considers whether an increased rating is warranted under other Diagnostic Codes pertaining to the ankle. Diagnostic Code 5270 contemplates ankylosis of the ankle. A 20 percent evaluation is warranted for ankylosis of the ankle in less than 30 degrees of plantar flexion. A 30 percent evaluation is warranted for ankylosis of the ankle in plantar flexion between 30 degrees and 40 degrees, or in dorsiflexion, between 0 degrees and 10 degrees. A 40 percent evaluation is warranted when there is ankylosis of the ankle in plantar flexion at more than 40 degrees, or in dorsiflexion at more than 10 degrees or with abduction, adduction, inversion, or eversion deformity. 38 C.F.R. § 4.71a. The Veteran retains the ability to move his ankle, therefore he does not have ankylosis. The Veteran’s ankle disability is based upon limitation of motion. Consequently, the Board must also consider, in conjunction with the otherwise applicable Diagnostic Code, any additional functional loss the Veteran may have sustained by virtue of other factors: less movement than normal, weakened movement, excess fatigability, incoordination, pain on movement, swelling, and deformity or atrophy from disuse. 38 C.F.R. §§ 4.40, 4.45 (2018); DeLuca v. Brown, 8 Vet. App. 202 (1995). Prior to January 12, 2017 The Veteran received a VA examination in June 2014. The Veteran’s range of motion was dorsiflexion to 10 degrees and plantar flexion to 30 degrees. After repetition, there was no additional loss in range of motion. The Veteran denied experiencing flare-ups. He did not have ankylosis nor use assistive devices. Prior to January 12, 2017, the Board finds that a disability rating in excess of 10 percent under Diagnostic Code 5271 is not warranted. The June 2014 VA examination shows, the Veteran’s plantar flexion was 0 to 30 degrees with pain and his dorsiflexion was 0 to 10 degrees. The Board acknowledges the Veteran had abnormal limited range of motion, but the evidence does not show the Veteran had marked limitation of motion. In support of this finding, the Board notes that the Veteran could perform repetitive motion with no additional loss in range of motion and he did not experience flare ups. His strength was normal, showing that he did not have weakness in his ankle. He retained half of his dorsiflexion and two thirds of his plantar flexion. These factors weigh against a finding that the severity of the Veteran’s limitation of ankle motion is more accurately described as “marked.” Additionally, for the reasons discussed above, the Board finds the objective criteria proposed by VA as a revision to Diagnostic Code 5271 to be highly persuasive. The Veteran’s dorsiflexion was less than 15 degrees, but greater than 5 degrees. His plantar flexion was 30 degrees, which is above the cutoff for what is described as “moderate” in the proposed regulation and later in the M21-1, and again in a second proposed regulation. While the Board acknowledges the Veteran had limited, painful motion, evaluations in excess of the minimum compensable rating must be based on demonstrated functional impairment. Burton v. Shinseki, 25 Vet. App. 1 (2011). Pain must affect some aspect of “the normal working movements of the body” such as “excursion, strength, speed, coordination, and endurance,” in order to constitute functional loss. See Mitchell v. Shinseki, 25 Vet. App. 32, 37 (2011); 38 C.F.R. § 4.40 (2018). Therefore, even when considering functional limitations due to pain and other factors identified in 38 C.F.R. §§ 4.40, 4.45, the Board finds that the Veteran’s functional loss from his left ankle disability does not equate to more than the disability picture contemplated by the 10 percent rating prior to January 12, 2017. 38 C.F.R. § 4.71a (2018). From January 12, 2017 At the VA examination in January 2017, the Veteran reported having constant pain at around 7 out of 10, but during flare-ups his pain increased to 8/9 out of 10 and he had trouble getting out of bed and walking. His dorsiflexion had improved to 15 degrees and plantar flexion had worsened to 20 degrees. He had pain on weightbearing and tenderness to palpation over the achilles area, lateral malleolus, and medial malleolus. He had pain with weight bearing testing. He constantly used a cane. His muscle strength was 4/5 in plantar flexion and dorsiflexion, indicating weakness. He experienced functional loss due to pain, but was not impacted by weakness, fatigability, or incoordination. His left ankle limited his ability to walk or stand for prolonged periods, and step off curbs. The Veteran’s next VA examination was in June 2017. He reported constant, throbbing pain. He also experienced a burning sensation that was hypersensitive to the touch. The Veteran’s pain was aggravated by wearing shoes. His dorsiflexion was normal at 20 degrees, but his plantar flexion remained limited to 20 degrees. The examiner noted the Veteran had ankle instability, which will be discussed in more detail below. The examiner also noted that the Veteran’s ability to participate in the examination was severely limited when compared to his January 2017 examination. The examiner could not provide an explanation for this difference because the Veteran had not sought additional treatment. The Veteran’s most recent VA examination was in August 2017. The Veteran similarly reported a throbbing, burning sensation in his left ankle that interfered with prolonged standing or walking. His range of motion was dorsiflexion to limited to 10 degrees and plantar flexion limited to 20 degrees with pain. During flare-ups he experienced functional loss in the form of pain and lack of endurance that limited his range of motion in both dorsiflexion and plantar flexion to 5 degrees. During a flare up, his range of motion would therefore be dorsiflexion to 5 degrees and plantar flexion to 15 degrees. He continued to use a cane for support but did not have ankylosis. The examiner also reported no instability or dislocation. A 20 percent rating is warranted, effective on January 12, 2017, the date of his VA examination which first noted a significant increase in the severity of his disability. He had significantly increased pain and newly-reported flare-ups. Although his dorsiflexion had improved such that he retained three quarters of it, his plantar flexion had decreased such that he retained less than half of it. In addition, he experienced functional loss in the form of decreased muscle strength and not being able to walk or stand for prolonged periods. His disability is more accurately described as “marked” based upon the information in the January 12, 2017 VA examination. The record does not provide information sufficient to stage this rating to an earlier date. The appeal is granted. A rating of 30 percent is available under Diagnostic Code 5720. However, VA examiners have specifically found that ankylosis is not present. Further, there is no evidence of record that the Veteran’s left ankle is immobilized. By definition, he therefore does not manifest ankylosis of any form. See Dinsay v. Brown, 9 Vet. App. 79, 81 (1996); Lewis v. Derwinski, 3 Vet. App. 259 (1992) (indicating that ankylosis is complete immobility of the joint in a fixed position, either favorable or unfavorable). Therefore, a higher rating under Diagnostic Code 5270 is not warranted. Diagnostic Code 5262 contemplates impairment of the tibia and fibula, a 40 percent rating is assigned with nonunion, with loose motion, requiring brace. With malunion, 30, 20, and 10 percent ratings are warranted if there is marked, moderate, or slight knee or ankle disability, respectively. The June 2017 VA examiner noted the Veteran had ankle instability, which is not contemplated by Diagnostic Code 5271. A separate 10 percent rating under Diagnostic Code 5262 is warranted. However, a 20 percent rating is not warranted. While at his June 2017 examination, instability was suspected, there was no instability noted at his August 2017 examination. The Board acknowledges the Veteran uses a cane for support, which also shows evidence of instability. Nevertheless, the record lacks lay or medical evidence to support a higher rating for moderate ankle instability. Therefore, his instability is most accurately described as slight. REASONS FOR REMAND 1. Bilateral Hearing Loss The evidence contains a VA examination from May 2014 and a private examination from May 2016. The private examination notes the Veteran’s difficulty hearing his spouse in quiet environments, which is an increase in the Veteran’s disability from May 2014 where no impact on his daily life was noted. However, the May 2016 examination cannot be used as the basis for an increased rating because the examination failed to provide audiological test results for 3000 Hertz. Accordingly, a new VA examination is necessary to adequately rate the current severity of the Veteran’s disability. 2. Sleep Apnea The evidence contains the Veteran’s diagnosis of sleep apnea. In May 2018, the Veteran was service connected for a respiratory condition, and at an April 2018 VA examination, it was noted that his lung issues had caused sleep disturbances. Therefore, a VA examination is necessary to determine if the Veteran’s sleep apnea is related to or aggravated by his service-connected lung disability. 3. Right Ankle There is conflicting evidence concerning whether the Veteran has a right ankle disability. However, the Veteran has consistently reported pain in his right ankle and the most recent records show arthritis in his right ankle. While there are no in-service complaints for the right ankle, a VA examination is needed to determine if the Veteran’s right ankle disability was caused by the requirements of his in-service job such as carrying heavy loads during training and consistently training in combat boots. Additionally, the VA examiner should consider if the Veteran’s right ankle disability was the result of or aggravated by his service-connected left ankle or bilateral knee disabilities. 4. Right Leg Disability The Veteran received a VA examination for bilateral upper extremity radiculopathy related to his neck disability in October 2016. At that examination, moderate, incomplete paralysis of the Veteran’s right lower extremity was noted for the middle and lower radicular group. As the Veteran is now service connected for his back disability, a VA examination is necessary to determine if this lower extremity incomplete paralysis is caused by or aggravated by his back disability. 5. TDIU Because a decision on the remanded issues of entitlement to an increased rating for bilateral hearing loss and service connection for sleep apnea, right ankle, and right leg could impact a decision on the issue of TDIU, the issues are inextricably intertwined. Therefore, a remand of the TDIU claim is required. The matters are REMANDED for the following action: 1. Schedule the Veteran for an examination with an appropriate clinician to determine the current severity of his bilateral hearing loss. The entire claims file and a copy of this remand must be made available to the examiner for review, and the examiner must specifically acknowledge receipt and review of these materials in any reports generated. The examiner must provide all findings, along with a complete rationale for any opinions provided. 2. Schedule the Veteran for an examination with an appropriate clinician for his sleep apnea. The entire claims file and a copy of this remand must be made available to the examiner for review, and the examiner must specifically acknowledge receipt and review of these materials in any reports generated. The examiner must opine as to the following: a) Whether it is at least as likely as not (50 percent or greater probability) that the Veteran’s sleep apnea was proximately due to or the result of his service-connected interstitial lung disease. b) Whether it is at least as likely as not that disability was aggravated beyond its natural progression by his service-connected interstitial lung disease. c) Whether it is at least as likely as not that the Veteran’s sleep apnea began in service or is related to an incident of service. The examiner must provide all findings, along with a complete rationale for his or her opinion(s) in the examination report. If any of the above requested opinions cannot be made without resort to speculation, the examiner must state this and provide a rationale for such conclusion. 3. Schedule the Veteran for an examination with an appropriate clinician for his right ankle disability. The entire claims file and a copy of this remand must be made available to the examiner for review, and the examiner must specifically acknowledge receipt and review of these materials in any reports generated. The examiner must opine as to the following: a) Whether it is at least as likely as not that the Veteran’s right ankle disability began during active service, is related to an incident of service, or began within one year after discharge from active service. Although an independent review of the claims file is required, the Board calls the examiner’s attention to May 2016 and September 2017 private opinions considering the Veteran’s in service training and job requirements. b) Whether it is at least as likely as not that the Veteran’s right ankle disability was proximately due to or the result of his service-connected left ankle or bilateral knee disabilities. c) Whether it is at least as likely as not that disability was aggravated beyond its natural progression by his service-connected left ankle or bilateral knee disabilities. The examiner must provide all findings, along with a complete rationale for his or her opinion(s) in the examination report. If any of the above requested opinions cannot be made without resort to speculation, the examiner must state this and provide a rationale for such conclusion. 4. Schedule the Veteran for an examination with an appropriate clinician for his right leg disability. The entire claims file and a copy of this remand must be made available to the examiner for review, and the examiner must specifically acknowledge receipt and review of these materials in any reports generated. The examiner must opine as to the following: a) Whether it is at least as likely as not that the Veteran’s right leg disability was proximately due to or the result of his service-connected back disability. b) Whether it is at least as likely as not that his right leg disability was aggravated beyond its natural progression by his service-connected back disability. The examiner must provide all findings, along with a complete rationale for his or her opinion(s) in the examination report. If any of the above requested opinions cannot be made without resort to speculation, the examiner must state this and provide a rationale for such conclusion. 5. After the above development has been completed, readjudicate the issues on appeal, including the inextricably intertwined TDIU claim. If any decision is unfavorable to the Veteran, issue a Supplemental Statement of the Case and allow the applicable time for response. Then, return the case to the Board. D. Martz Ames Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD R. Brunot, Associate Counsel