Citation Nr: 20004965 Decision Date: 01/22/20 Archive Date: 01/22/20 DOCKET NO. 18-38 455 DATE: January 22, 2020 ORDER Service connection for migraine headaches is denied. Service connection for a mental disability, other than sleep disturbance and unspecified insomnia disorder, is denied. Entitlement to an effective date earlier than October 9, 2008 for the grant of service connection for a right knee disability is denied. Entitlement to an effective date earlier than October 9, 2008 for the grant of service connection for right upper extremity weakness is denied. Entitlement to an effective date earlier than October 9, 2008 for the grant of service connection for right lower extremity weakness is denied. Entitlement to an effective date earlier than October 9, 2008 for the grant of service connection for esophagus stricture of swallowing is denied. Entitlement to an effective date earlier than October 9, 2008 for the grant of service connection for irritable bowel syndrome (IBS) is denied. Entitlement to an effective date earlier than October 9, 2008 for the grant of service connection for erectile dysfunction (ED) is denied. Entitlement to an effective date earlier than October 9, 2008 for the grant of service connection for neurogenic bladder is denied. Entitlement to an effective date earlier than October 9, 2008 for the grant of special monthly compensation (SMC) is denied. Entitlement to a total disability rating, based on individual unemployability, due to service-connected disabilities (TDIU) is granted. REMANDED Service connection for a low back disability, to include as secondary to service-connected multiple sclerosis (MS), is remanded. Entitlement to a rating in excess of 10 percent for a right knee disability is remanded. Entitlement to a rating in excess of 40 percent for right upper extremity weakness is remanded. Entitlement to a rating in excess of 40 percent for right lower extremity weakness is remanded. Entitlement to a rating in excess of 30 percent for esophagus stricture of swallowing is remanded. Entitlement to a rating in excess of 20 percent prior to June 25, 2018 and in excess of 40 percent thereafter, for neurogenic bladder is remanded. Entitlement to an increased (compensable) rating for IBS is remanded. Entitlement to an increased (compensable) rating for ED is remanded. FINDINGS OF FACT 1. Migraine headaches were not present in service or for years thereafter, and are not etiologically related to active military service. 2. The Veteran does not have a mental disability, other than sleep disturbance and unspecified insomnia disorder. 3. The claim of entitlement to service connection for a right knee disability was not received within one year of the Veteran's discharge from service or until October 9, 2008. 4. The claim of entitlement to service connection for right upper extremity weakness was not received one within year of the Veteran's discharge from service or until October 9, 2008. 5. The claim of entitlement to service connection for right lower extremity weakness was not received one within year of the Veteran's discharge from service or until October 9, 2008. 6. The claim of entitlement to service connection for esophagus stricture of swallowing was not received one within year of the Veteran's discharge from service or until October 9, 2008. 7. The claim of entitlement to service connection for neurogenic bladder was not received one within year of the Veteran's discharge from service or until October 9, 2008. 8. The claim of entitlement to service connection for IBS was not received one within year of the Veteran's discharge from service or until October 9, 2008. 9. The claim of entitlement to service connection for ED was not received one within year of the Veteran's discharge from service or until October 9, 2008. 10. Entitlement to SMC based on loss of use of creative organ did not arise until October 9, 2008. 11. As of August 1, 2018, the Veteran has been unable to secure and follow substantially gainful employment as a result of service-connected disabilities. CONCLUSIONS OF LAW 1. Migraine headaches were not incurred in or aggravated by active service. 38 U.S.C. § 1110 (2012); 38 C.F.R. § 3.303 (2018). 2. The criteria for service connection for a mental disability, other than sleep disturbance and unspecified insomnia disorder have not been met. 38 U.S.C. § 1110 (2012); 38 C.F.R. § 3.303 (2018). 3. The criteria for an effective date earlier than October 9, 2008 for the grant of service connection for a right knee disability have not been met. 38 U.S.C. § 5110 (2012); 38 C.F.R. § 3.400 (2018). 4. The criteria for an effective date earlier than October 9, 2008 for the grant of service connection for right upper extremity weakness have not been met. 38 U.S.C. § 5110 (2012); 38 C.F.R. § 3.400 (2018). 5. The criteria for an effective date earlier than October 9, 2008 for the grant of service connection for right lower extremity weakness have not been met. 38 U.S.C. § 5110 (2012); 38 C.F.R. § 3.400 (2018). 6. The criteria for an effective date earlier than October 9, 2008 for the grant of service connection for esophagus stricture of swallowing have not been met. 38 U.S.C. § 5110 (2012); 38 C.F.R. § 3.400 (2018). 7. The criteria for an effective date earlier than October 9, 2008 for the grant of service connection for neurogenic bladder have not been met. 38 U.S.C. § 5110 (2012); 38 C.F.R. § 3.400 (2018). 8. The criteria for an effective date earlier than October 9, 2008 for the grant of service connection for IBS have not been met. 38 U.S.C. § 5110 (2012); 38 C.F.R. § 3.400 (2018). 9. The criteria for an effective date earlier than October 9, 2008 for the grant of service connection for ED have not been met. 38 U.S.C. § 5110 (2012); 38 C.F.R. § 3.400 (2018). 10. The criteria for an effective date earlier than October 9, 2008 for special monthly compensation (SMC) based on loss of use of creative organ have not been met. 38 U.S.C. § 5110 (2012); 38 C.F.R. § 3.400 (2018). 11. The criteria for the assignment of TDIU due to service-connected disabilities have been met as of August 1, 2018. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.102, 3.340, 3.341, 4.15, 4.16 (2018). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had multiple periods of active duty for training (ACDUTRA) in the U.S. Army from August to December 1985 and from September 1991 to January 1992. He also had periods of active service in the U.S. Army National Guard (ANG), including from September 2001 to May 2002. In a June 2018 rating decision, the RO granted service connection for sleep disturbance due to MS. This was a full grant of the benefit sought with regard to that issue. Grantham v. Brown, 114 F .3d 1156 (Fed. Cir. 1997). In May 2015 and September 2016, the Board remanded the case for further development by the originating agency. The case has been returned to the Board for further appellate action. Service Connection Claims Service connection will be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred in or aggravated by active military service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303 (a). Establishing service connection generally requires (1) 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 evidence of a nexus between the claimed in-service disease or injury and the present disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); see Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd per curiam, 78 F.3d 604 (Fed. Cir. 1996) (table); see also Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); Hickson v. West, 12 Vet. App. 247, 253 (1999); 38 C.F.R. § 3.303. Under 38 C.F.R. § 3.303 (b), an alternative method of establishing the second and third Shedden/Caluza elements is through a demonstration of continuity of symptomatology. Barr v. Nicholson, 21 Vet. App. 303 (2007); see Clyburn v. West, 12 Vet. App. 296, 302 (1999). Continuity of symptomatology may be established if a claimant can demonstrate (1) that a condition was "noted" during service; (2) evidence of post-service continuity of the same symptomatology; and (3) medical or, in certain circumstances, lay evidence of a nexus between the present disability and the post-service symptomatology. See Hickson, 12 Vet. App. at 253 (lay evidence of in-service incurrence sufficient in some circumstances for purposes of establishing service connection); 38 C.F.R. § 3.303 (b). The theory of continuity of symptomatology can be used only in cases involving those conditions explicitly recognized as chronic under 38 C.F.R. § 3.309 (a). See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). In relevant part, 38 U.S.C. 1154 (a) requires that VA give "due consideration" to "all pertinent medical and lay evidence" in evaluating a claim for disability or death benefits. Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). The United States Court of Appeals for the Federal Circuit has held that "[l]ay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional." Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); see also Buchanan v. Nicholson, 451 F.3d at 1337 ("[T]he Board cannot determine that lay evidence lacks credibility merely because it is unaccompanied by contemporaneous medical evidence"). "Symptoms, not treatment, are the essence of any evidence of continuity of symptomatology." Wilson v. Derwinski, 2 Vet. App. 16, 19 (1991). Once evidence is determined to be competent, the Board must then determine whether such evidence is also credible. See Layno, supra (distinguishing between competency ("a legal concept determining whether testimony may be heard and considered") and credibility ("a factual determination going to the probative value of the evidence to be made after the evidence has been admitted"). Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303 (d). Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits under laws administered by the Secretary. The Secretary shall consider all information and lay and medical evidence of record in a case before the Secretary with respect to benefits under laws administered by the Secretary. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of the matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107 (2012); 38 C.F.R. § 3.102 (2018); see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996), (citing Gilbert, 1 Vet. App. at 54). 1. Service connection for migraine headaches Service treatment records are negative for any evidence of headaches during active duty or at the time of the Veteran's discharge. Post-service medical records show treatment for headaches many years after the Veteran’s discharge, but they do not indicate that the Veteran's headaches are related to his active military service. See VA treatment records from the VA Medical Center in Cleveland. Service connection is possible for disabilities first diagnosed after service, and the lack of evidence of a disorder in the service treatment records is not fatal to a claim for service connection. However, the Veteran has not reported a continuity of symptomatology beginning in service, and there is no probative medical evidence, VA or private, indicating that his post-service headaches may be related to service. In this regard, the Board notes that although the Veteran has reported several symptoms as secondary to his service-connected MS, he has not reported that his claimed migraine headaches are associated with his MS. See January 2009 and September 2010 statements from the Veteran and VA MS examinations. With regard to the years-long evidentiary gap in this case between active service and the Veteran’s headaches, the Board notes that this passage of time weighs significantly against a finding of direct service connection for migraine headaches. See Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000). The Veteran is competent to report the symptoms and onset of his headaches; however, it would require medical expertise to say that his current headaches, diagnosed many years after service, are related to service. The Veteran, as a layperson, is not qualified to render an opinion concerning the medical cause of his headaches. 38 C.F.R. § 3.159 (a)(1), (2) (2018). There is no competent evidence relating the Veteran's post-service headaches to any event in his active service. Absent such evidence, the Veteran's claim must be denied. Accordingly, the Board must conclude that the preponderance of the evidence is against the claim, reasonable doubt does not arise, and the claim is denied. 38 U.S.C. § 5107 (b) (2012). 2. Service connection for a mental disability, other than sleep disturbance and unspecified insomnia disorder Service treatment records are negative for any evidence of a mental disability during active duty or at the time of the Veteran's discharge. Post-service treatment records show the Veteran has complained of chronic sleep impairment, difficulty in understanding complex commands and disturbances of motivation and mood. He has been diagnosed with sleep disturbance due to MS and an unspecified insomnia disorder due to MS, for which he is already service-connected. See June 2018 rating decision and December 2019 VA mental disorders examination report. There is no diagnosis of any other mental disability of record. Whether service connection is claimed on direct, presumptive, or any other basis, a necessary element for establishing such a claim is the existence of a current disability. See Degmetich v. Brown, 104 F.3d 1328 (1997) (holding that section 1110 of the statute requires the existence of a present disability for VA compensation purposes); see also Gilpin v. West, 155 F.3d 1353 (Fed. Cir. 1998); Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992); Rabideau v. Derwinski, 2 Vet. App. 141, 144 (1992). The presence of a disability at the time of filing of a claim or during its pendency warrants a finding that the current disability requirement has been met, even if the disability resolves prior to the Board's adjudication of the claim. McClain v. Nicholson, 21 Vet. App. 319, 321 (2007). In this case, while the Veteran has reported suffering from a mental disability, there is no confirmation in the medical evidence that the Veteran has had a current diagnosis of a mental disability, other than sleep disturbance and insomnia since the filing of his claim. VA does not generally grant service connection for symptoms alone, without an identified basis for those symptoms. VA needs to identify a disability, not symptoms of a disability. Accordingly, service connection cannot be granted for symptoms of a disability, such as disturbances of motivation and mood. In light of the absence of any competent evidence of a mental disability, other than sleep disturbance and insomnia, during the pendency of this appeal, this claim must be denied. In reaching this decision, the Board has considered the benefit-of-the-doubt doctrine; however, as the preponderance of the evidence is against the claim, that doctrine is not applicable. See 38 U.S.C. § 5107; 38 C.F.R. § 3.102. Earlier Effective Date Claims Generally, the effective date of a rating and award of pension, compensation or dependency and indemnity compensation based on an original claim, a claim reopened after final disallowance, or a claim for increase is the day following separation from active service or the date entitlement arose if the claim is received within one year after separation from service; otherwise it will be the date of receipt of the claim or the date entitlement arose, whichever is the later. 38 U.S.C. § 5110 (a) (2012); 38 C.F.R. § 3.400 (2018). A specific claim in the form prescribed by VA must be filed in order for benefits to be paid to any individual under the laws administered by VA. 38 U.S.C. § 5101 (a) (2012); 38 C.F.R. § 3.151 (a) (2018). The date of receipt of a claim is the date on which a claim, information, or evidence is received by VA. 38 C.F.R. § 3.1 (r) (2018). A claim is defined broadly to include a formal or informal communication in writing requesting a determination of entitlement or evidencing a belief in entitlement to a benefit. 38 C.F.R. § 3.1 (p) (2018); Brannon v. West, 12 Vet. App. 32 (1998); Servello v. Derwinski, 3 Vet. App. 196 (1992). Any communication or action indicating an intent to apply for one or more benefits under the laws administered by VA, from a Veteran or representative, may be considered an informal claim. An informal claim must identify the benefit sought. Upon receipt of an informal claim, if a formal claim has not been filed, an application form will be forwarded to the claimant for execution. If received within one year from the date it was sent to the Veteran, it will be considered filed as of the date of receipt of the informal claim. 38 C.F.R. § 3.155 (2018). A report of examination or hospitalization which meets certain requirements of will be accepted as an informal claim for benefits if the report relates to a disability which may establish entitlement. Once a formal claim for pension or compensation has been allowed or a formal claim for compensation has been disallowed for the reason that the service-connected disability is not compensable in degree, receipt of a report of examination or hospitalization by VA or the uniformed services will be accepted as an informal claim for benefits. The date of outpatient or hospital examination or date of admission to a VA or uniformed services hospital will be accepted as the date of receipt of a claim. Those provisions apply only when the reports relate to examination or treatment of a disability for which service-connection has previously been established or when a claim specifying the benefit sought is received within one year from the date of the examination, treatment or hospital admission. 38 C.F.R. § 3.157 (2018). Evidence from a private physician or lay man will also be accepted as an informal claim for increased benefits, effective from the date received by VA. 38 C.F.R. § 3.157 (b)(2). Medical records cannot constitute an initial claim for service connection; rather there must be a record showing some intent by the claimant to apply for the benefit. Criswell v. Nicholson, 20 Vet. App. 501 (2006); Brannon v. West, 12 Vet. App. 32, 35 (1998). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the VA shall resolve reasonable doubt in favor of the claimant. 38 U.S.C. § 5107 (b) (2012); 38 C.F.R. § 3.102 (2018). 1. Entitlement to an effective date earlier than October 9, 2008 for the grant of service connection for a right knee disability On October 9, 2008, VA received the Veteran's initial claim for service connection for a right knee disability. A September 2015 rating decision granted service connection for a right knee strain status post ACL tear (claimed as right knee disability), effective October 9, 2008, the date of receipt of the claim for service connection. The applicable law and regulations provide that unless a claim is filed within one year of service, the effective date is the latter of the date entitlement arose or the claim was received. 38 U.S.C. § 5110 (a), (b)(1) (2012); 38 C.F.R. § 3.400 (b)(2) (2018). The Board reviewed the records, but it cannot construe any document of record prior to October 9, 2008, to constitute a claim, formal or informal, for service connection for a right knee disability. There is no evidence in this case that entitlement arose prior to the date of claim. However, to the extent that the Veteran may argue that it did, because the date of claim is later, that date controls the effective date of service connection. As the Veteran did not submit a claim for service connection for a right knee disability prior to October 9, 2008, and there is no prior communication in the record that could be considered an informal claim for VA compensation for a right knee disability, that is the earliest possible effective date. 38 U.S.C. § 5110 (a) (2012); 38 C.F.R. § 3.400 (2018). Therefore, the Board finds that there is no basis upon which to grant an effective date earlier than October 9, 2008, for entitlement to service connection for a right knee disability. The Board finds that the preponderance of the evidence is against the claim for an earlier effective date and that claim must be denied. 38 U.S.C. § 5107 (b) (2012); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). 2. Entitlement to an effective date earlier than October 9, 2008 for the grant of service connection for right upper extremity weakness 3. Entitlement to an effective date earlier than October 9, 2008 for the grant of service connection for right lower extremity weakness 4. Entitlement to an effective date earlier than October 9, 2008 for the grant of service connection for esophagus stricture of swallowing 5. Entitlement to an effective date earlier than October 9, 2008 for the grant of service connection for neurogenic bladder 6. Entitlement to an effective date earlier than October 9, 2008 for the grant of service connection for IBS 7. Entitlement to an effective date earlier than October 9, 2008 for the grant of service connection for ED On October 9, 2008, VA received the Veteran's initial claim for service connection for multiple sclerosis (MS) with associated symptoms, including limping on the right leg, spacisity of the lower right leg, frequent urination, heat intolerance, problems walking, and balance and coordination problems. See January 2009 and September 2010 statements from the Veteran. A December 2016 rating decision granted service connection for right upper extremity weakness, right lower extremity weakness, esophagus stricture of swallowing, neurogenic bladder, and IBS, all secondary to MS, and all effective October 9, 2008, the date of receipt of the claim for service connection. The applicable law and regulations provide that unless a claim is filed within one year of service, the effective date is the latter of the date entitlement arose or the claim was received. 38 U.S.C. § 5110 (a), (b)(1) (2012); 38 C.F.R. § 3.400 (b)(2) (2018). The Board reviewed the records, but it cannot construe any document of record prior to October 9, 2008, to constitute a claim, formal or informal, for service connection for right upper extremity weakness, right lower extremity weakness, esophagus stricture of swallowing, neurogenic bladder or IBS. There is no evidence in this case that entitlement arose prior to the date of claim. However, to the extent that the Veteran may argue that it did, because the date of claim is later, that date controls the effective date of service connection. As the Veteran did not submit a claim for service connection for right upper extremity weakness, right lower extremity weakness, esophagus stricture of swallowing, neurogenic bladder or IBS prior to October 9, 2008, and there is no prior communication in the record that could be considered an informal claim for VA compensation for extremity weakness, right lower extremity weakness, esophagus stricture of swallowing, neurogenic bladder or IBS, that is the earliest possible effective date. 38 U.S.C. § 5110 (a) (2012); 38 C.F.R. § 3.400 (2018). Therefore, the Board finds that there is no basis upon which to grant an effective date earlier than October 9, 2008, for entitlement to service connection for extremity weakness, right lower extremity weakness, esophagus stricture of swallowing, neurogenic bladder or IBS. The Board finds that the preponderance of the evidence is against the claims for an earlier effective date and those claims must be denied. 38 U.S.C. § 5107 (b) (2012); Gilbert v. Derwinski, 1 Vet. App. 49 (1990).   8. Entitlement to an effective date earlier than October 9, 2008 for special monthly compensation (SMC) based on loss of use of creative organ The Veteran never filed a claim for SMC. Rather, he was granted SMC based on loss of use of creative organ, based on the grant of service connection for ED, effective October 9, 2008. See December 2016 rating decision. Prior to the grant of service connection for ED, the Veteran was not entitled to SMC based on loss of use of creative organ. As the Veteran did not file a claim, formal or informal, for SMC, and entitlement to SMC based on loss of use of creative organ did not arise until October 9, 2008—the effective date of the grant of service connection for ED, that is the earliest possible effective date. 38 U.S.C. § 5110 (a) (2012); 38 C.F.R. § 3.400 (2018). Therefore, the Board finds that there is no basis upon which to grant an effective date earlier than October 9, 2008, for the grant of SMC, based on loss of use of creative organ. Entitlement to TDIU The Court has held that TDIU is an element of all claims for an increased rating. Rice v. Shinseki, 22 Vet. App. 447 (2009). TDIU is granted where a veteran's service-connected disabilities are rated less than total, but they prevent him/her from obtaining or maintaining all gainful employment for which his/her education and occupational experience would otherwise qualify him/her. 38 C.F.R. § 4.16 (2018). TDIU ratings may be assigned where the schedular rating is less than total, when it is found that the disabled person is unable to secure or follow a substantially gainful occupation as a result of a single service-connected disability ratable at 60 percent or more, or as a result of two or more disabilities, provided at least one disability is ratable at 40 percent or more and there is sufficient additional service-connected disability to bring the combined rating to 70 percent or more. 38 C.F.R. §§ 3.340, 3.34l, 4.16 (a) (2018). However, even when the percentage requirements are not met, entitlement to a total rating, on an extraschedular basis, may nonetheless be granted, in exceptional cases, when the veteran is unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities. 38 C.F.R. §§ 3.321 (b), 4.16 (b). In determining whether an individual is unemployable by reason of service-connected disabilities, consideration must be given to the type of employment for which the veteran would be qualified. Such consideration would include education and occupational experience. Age may not be considered a factor. 38 C.F.R. § 3.341 (2018). Unemployability associated with advancing age or intercurrent disability may not be used as a basis for assignment of a total disability rating. 38 C.F.R. § 4.19 (2018). For a veteran to prevail on a total rating claim, the record must reflect some factor which takes his or her case outside of the norm. See Van Hoose v. Brown, 4 Vet. App. 361, 363 (1996); 38 C.F.R. §§ 4.1, 4.15 (2018). The sole fact that a veteran happens to be unemployed or has difficulty obtaining employment is not enough. A high rating in itself is recognition that the impairment makes it difficult to obtain and keep employment. The question is whether the veteran is capable of performing the physical and mental acts required by employment, not whether the veteran can find employment. See Van Hoose, supra, at 363; 38 C.F.R. § 4.16 (a). The fact that a veteran is unemployed is generally insufficient to demonstrate that he/she is considered "unemployable" within the meaning of pertinent VA laws and regulations. Instead, a longitudinal review of all the evidence is necessary in order to obtain a full understanding of the case. See Schafrath v. Derwinski, 1 Vet. App. 589 (1991). Where a veteran: (1) submits evidence of a medical disability; (2) makes a claim for the highest rating possible; and (3) submits evidence of unemployability, the requirement in 38 C.F.R. § 3.155 (a) (2018) that an informal claim "identify the benefit sought" has been satisfied and VA must consider whether the veteran is entitled to a total rating for compensation purposes based on individual unemployability (TDIU). Roberson v. Principi, 251 F.3d 1378 (Fed. Cir. 2001). Analysis Service connection is currently in effect for a right knee disability (10% disabling); right upper extremity weakness (40% disabling); right lower extremity weakness (40% disabling); neurogenic bladder (40% disabling); esophagus stricture of swallowing (30% disabling); IBS (0% disabling); ED (0% disabling); and sleep disturbance (0% disabling). The Veteran has a combined disability rating of 80 percent from October 9, 2008 and 90 percent from June 25, 2018. Therefore, he meets the schedular criteria for consideration of TDIU since October 9, 2008. See 38 C.F.R. § 4.16 (a) (2018). The Veteran contends that he has been unemployable due to his service-connected MS since August 2018. See November 2018 Application for Increased Compensation Based on Unemployability, VA Form 21-8940. A December 2019 VA examiner opined that the Veteran’s service-connected disabilities, all secondary to his MS, would not preclude him from employment, especially in a sedentary capacity, with frequent bathroom breaks and longer periods for breaks for eating. See December 2019 VA individual unemployability (IU) medical opinion. However, after reviewing the Veteran’s treatment records and examining the Veteran, private physician, H. S., MD opined in an October 2019 report that the Veteran’s service-connected impairments more likely than not prevent him from maintaining substantially gainful employment, and that he has been unemployable due to his service-connected disabilities since at least August 1, 2018, when he stopped working. See October 2019 statement from private physician, H. S., MD. Furthermore, he was determined to be disabled by SSA as of August 1, 2018, due to MS and other unspecified arthropathies. As indicated above, there is evidence of record, notably the December 2019 VA medical opinion, that suggests that the Veteran is not prevented from performing all types of gainful employment, such as sedentary work. However, when considering the entire record in this case, including the opinion of the private physician and the SSA findings, overall, the Board finds that the evidence supporting the Veteran's TDIU claim is in relative equipoise, with that suggesting that his service-connected disabilities would preclude substantially gainful employment. The term "unemployability," as used in VA regulations governing total disability ratings, is synonymous with an inability to secure and follow a substantially gainful occupation. See VAOPGCPREC 75-91 (Dec. 17, 1991). The critical issue is whether the Veteran's service-connected disability or disabilities preclude him from engaging in substantially gainful employment (i.e., work which is more than marginal, that permits the individual to earn a "living wage"). See Moore v. Derwinski, 1 Vet. App. 356 (1991). In this case, the evidence reflects that the Veteran's numerous service-connected disabilities noted above, present significant obstacles with respect to the Veteran's employability, essentially rendering him unemployable as defined for VA purposes. Based on these findings, and resolving reasonable doubt in the Veteran's favor, the Board finds that the Veteran is unemployable as a result of his service-connected disabilities. 38 U.S.C. § 5107 (b) (2012); Gilbert v. Derwinski, 1 Vet. App. 49 (1990); Ortiz v. Principi, 274 F.3d 1361 (Fed. Cir. 2001). There can be no doubt that further inquiry could be undertaken with a view towards development of the claim. However, under the "benefit-of-the-doubt" rule, where there exists "an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter," the veteran shall prevail upon the issue. Ashley v. Brown, 6 Vet. App. 52, 59 (1993); see also Massey v. Brown, 7 Vet. App. 204, 206-207 (1994). In summary, as it appears that the Veteran's service-connected disabilities, together, preclude him from securing or maintaining substantially gainful employment, the criteria for entitlement to a TDIU have been met since August 1, 2018, the day he stopped working, the day he claims he became unemployable, and the day the private physician and the SSA found him to be unemployable. REASONS FOR REMAND 1. Service connection for a low back disability, to include as due to service-connected MS, is remanded. Service treatment records show that in October 2004, the Veteran had chiropractic treatment for a lumbar spine dysfunction. In November 2004, he was given a physical profile for low back pain/strain. In December 2004, he was treated again for low back pain. During a January 2017 VA examination, the Veteran was diagnosed with a lumbosacral strain and very mild lumbar spine degenerative joint disease (DJD). The Veteran also reported that he was told by a private chiropractor that he had scoliosis. The Veteran reported further that his low back pain began in 2005 during active duty, when he was told he had MS, and he believed his low back scoliosis was due to antalgic gait, caused by his MS. The examiner opined that, as the RO did not point out any pertinent service treatment records, and as the Veteran’s back spinal curvature would not be due to an injury, but rather, is a developmental abnormality, he could not say that it was as likely as not that a low back disability was due to military service. The Board notes that service connection is possible for diseases first identified after service. 38 C.F.R. § 3.303 (d) (2018). The January 2017 examiner did not provide an opinion as to whether the low back disability identified after service is related to a disease or injury in service or to the Veteran's reports of continuous symptoms since service. In fact, the examiner did not adequately consider the Veteran's lay statements of continuity. Dalton v. Nicholson, 21 Vet. App. 23, 39-40 (2007) (finding a medical examination inadequate where the examiner impermissibly ignored the appellant's lay assertions regarding onset of symptoms or injury during service). Furthermore, the examiner failed to give an opinion as to whether the Veteran had a diagnosed low back disability related to his service-connected MS, as he reported that he believed his antalgic gait was due to his MS. The Board is required to consider all theories of entitlement to service connection. See Szemraj v. Principi, 357 F.3d 1370, 1371 (Fed. Cir. 2004), and Roberson v. Principi, 251 F.3d 1378, 1384 (Fed. Cir. 2001) (explaining that the Board must consider all potential theories of entitlement raised by the evidence). For these reasons, the Board finds the January 2017 VA opinion inadequate for evaluation purposes. Furthermore, as noted above, the Veteran was noted to have scoliosis. Under pertinent law and regulations, a Veteran will be considered to have been in sound condition when examined, accepted, and enrolled for service, except as to defects, infirmities, or disorders noted at entrance into service. 38 U.S.C. § 1111. When no preexisting condition is noted upon entry, the Veteran is presumed to have been sound upon entry and the presumption of soundness arises. If the presumption of soundness applies, to rebut the presumption of soundness under 38 U.S.C. § 1111, VA must show by clear and unmistakable evidence both that the disease or injury existed prior to service and that the disease or injury was not aggravated by service. The claimant is not required to show that the disease or injury increased in severity during service before VA's duty under the second prong of this rebuttal standard attaches. VAOGCPREC 03-2003; see also Wagner v. Principi, 370 F.3d 1089 (Fed. Cir. 2004). If the government fails to rebut the presumption of soundness, the claim is one for service connection, not aggravation. Id. at 1096; 38 U.S.C. § 1111. As there is no evidence of scoliosis at the time of the Veteran's service entrance examination, the Veteran is presumed to have been sound upon entrance. 38 U.S.C. § 1111. No medical opinion currently of record addresses whether the Veteran's diagnosed scoliosis is a congenital or developmental defect or disease subject to service connection, and if it is a disease subject to service connection, whether it clearly and unmistakably preexisted service, and if so, whether there is clear and unmistakable evidence that it was not aggravated (permanently worsened beyond its natural progression) during service. Based on the findings noted above, the Board finds that a remand for a VA examination and medical opinion as to the etiology of any current low back disability is necessary. Barr v. Nicholson, 21 Vet. App. 303 (2007). 2. Entitlement to a rating in excess of 10 percent for a right knee disability is remanded. 3. Entitlement to a rating in excess of 40 percent for right upper extremity weakness is remanded. 4. Entitlement to a rating in excess of 40 percent for right lower extremity weakness is remanded. 5. Entitlement to a rating in excess of 30 percent for esophagus stricture of swallowing is remanded. 6. Entitlement to a rating in excess of 20 percent prior to June 25, 2018 and in excess of 40 percent thereafter, for neurogenic bladder is remanded. 7. Entitlement to an increased (compensable) rating for IBS is remanded. 8. Entitlement to an increased (compensable) rating for ED, is remanded. Additional pertinent evidence has been added to the record since the issuance of the statements of the case (SOCs) in June 2018. These records include December 2018 VA multiple sclerosis, urinary tract, knee and lower leg, and male reproductive organs disability benefits questionnaires (DBQs), Social Security Administration (SSA) medical records, private treatment records from the Oak Clinic for MS, and December 2019 VA IBS, esophagus stricture, peripheral nerves, male reproductive organ, neurogenic bladder, and knee and lower leg examinations. The issues denied in the June 2018 SOCs, including entitlement to an increased rating for a right knee disability, entitlement to an increased rating for right upper extremity weakness, entitlement to an increased rating for right lower extremity weakness, entitlement to an increased rating for esophagus stricture of swallowing, entitlement to an increased rating for neurogenic bladder, entitlement to an increased rating for IBS, and entitlement to an increased rating for ED, have not been readjudicated since the additional evidence was added to the record. Pertinent evidence is initially reviewed by the agency of original jurisdiction (AOJ). Additional pertinent evidence that becomes available after the SOC, but prior to certification to the Board is to be addressed in an additional supplemental statement of the case (SSOC). 38 C.F.R. § 19.31 (b) (2018). After certification to the Board, such evidence must be referred back to the AOJ for initial review. 38 C.F.R. § 19.37 (b) and 20.1304(c) (2018). Exceptions are when the Veteran or his representative waives this review, or when the Board grants the benefit being sought in full. Id. In this case, additional evidence has been added to the record following certification of the issues on appeal to the Board in August 2018. Neither the Veteran nor his representative has waived AOJ review of this additional evidence. See 38 U.S.C. § 7105 (e) (2012); 38 C.F.R. § 20.1304 (c) (2018). Thus, a remand is required so that a SSOC may be issued with consideration of all the evidence of record with regard to the remanded claims on appeal noted above. The matters are REMANDED for the following action: 1. Updated treatment records should be obtained and added to the claims folder/efolder. 2. Following completion of the above, schedule the Veteran for a new VA spine examination to determine the etiology of any current lumbar spine disability. The examiner should review the claims folder and note such review in the examination report or an addendum. Thereafter, the examiner should address the following inquiries: (A) Identify all current diagnoses referable to the lumbar spine. (B) For each diagnosis, the examiner should state whether such condition constitutes a congenital or developmental defect or a disease (per VAOPGCPREC 82-90, in general, a congenital abnormality that is subject to improvement or deterioration is considered a disease). (i) If such is considered a defect, was there additional disability due to disease or injury superimposed upon such defect during service? If so, please identify the additional disability. (ii) If such is a disease, was it aggravated beyond the natural progression during his military service? Aggravation indicates a permanent worsening of the underlying condition as compared to a temporary increase in symptoms. (C) If a diagnosis is not considered a congenital or developmental defect or a disease, the examiner should provide an opinion as to whether it is at least as likely as not (50 percent probability or greater) that any current lumbar spine disability, including lumbar strain and lumbar spine DJD, is the result of an injury or disease in active service. The examiner should also provide an opinion as to whether it is at least as likely as not (50 percent probability or more) that any currently diagnosed low back disability was caused or aggravated by the service-connected MS. A complete rationale should be given for all opinions and conclusions expressed. The examiner is advised that the Veteran is competent to report injuries and symptoms, and that his reports must be considered in formulating the requested opinion. If his reports are discounted, the examiner should provide a reason for doing so. The examiner is also advised that the absence of evidence in the service treatment records is an insufficient basis, by itself, for a negative opinion. (Continued on the next page)   If the examiner cannot provide an opinion without resort to speculation, the examiner should provide an explanation as to why this is so and note what, if any, additional evidence would permit such an opinion to be made. 3. After completion of the above and any other development deemed necessary, review the expanded record, taking into consideration all relevant evidence associated with the record since the June 2018 SOCs, and readjudicate the claims for service connection and increased ratings on appeal. If any benefit sought on appeal is not granted, the AOJ should issue a supplemental statement of the case and provide the appropriate opportunity to respond, before returning the case to the Board, if otherwise in order. KELLI A. KORDICH Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board F. Yankey, Counsel The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential, and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.