Citation Nr: 20045069 Decision Date: 07/07/20 Archive Date: 07/07/20 DOCKET NO. 17-50 303A DATE: July 7, 2020 ORDER A restoration of a 10 percent rating under Diagnostic Code 5257, for left knee instability, since December 30, 2019, is granted, subject to the regulations governing the payment of monetary awards. A rating in excess of 10 percent a left knee injury under Diagnostic Code 5257 is denied. A separate 10 percent rating, but no higher, for left knee limitation of flexion, prior to December 30, 2019, is granted, subject to the regulations governing the payment of monetary awards. A rating in excess of 10 percent for left knee limitation of flexion, since December 30, 2019, is denied. A rating in excess of 30 percent for left distal tibia and fibula with limitation of motion of the left ankle (left ankle disability) is denied. A rating in excess of 10 percent for traumatic arthritis of the left great toe (left great toe disability) is denied. The application to reopen the claim of service connection for a low back disability is granted. Service connection for degenerative changes of the thoracic spine (low back disability), as secondary to the service-connected left ankle disability, is granted. REMANDED The issue of service connection for an acquired psychiatric disorder, to include a depressive disorder, is remanded. The issue of service connection for obstructive sleep apnea is remanded. The issue of whether new and material evidence has been received to reopen the claim of service connection for tinnitus is remanded. The issue of whether new and material evidence has been received to reopen the claim of service connection for bilateral hearing loss is remanded. The issue of whether new and material evidence has been received to reopen the claim of service connection for a right ankle disability is remanded. The issue of whether new and material evidence has been received to reopen the claim of service connection for a bilateral hip disability is remanded. The issue of whether new and material evidence has been received to reopen the claim of service connection for a right knee disability is remanded. The issue of service connection for hypertension is remanded. The issue of service connection for diabetes mellitus is remanded. The issue of service connection for tremors is remanded. The issue of service connection for erectile dysfunction is remanded. The issue of service connection for headaches is remanded. The issue of a total disability rating based on individual unemployability (TDIU) is remanded. FINDINGS OF FACT 1. The Veteran was in receipt of a 10 percent rating under DC 5257 for more than 20 years, prior to December 30, 2019; the discontinuance of the 10 percent rating under DC 5257, effective December 30, 2019, was improper. 2. The Veteran’s left knee instability did not more nearly approximate moderate instability; he had left knee pain, painful motion, and functional impairment; left knee flexion was to 140 degrees and there was no limitation of extension; there was no left knee ankylosis, semilunar cartilage dislocation or removal, or genu recurvatum. 3. Since December 30, 2019, the Veteran’s left knee disability did not more nearly approximate limitation of flexion to 30 degrees even considering pain and flare ups. 4. The Veteran’s left ankle disability did not more nearly approximate nonunion of the left tibia and fibula, with loose motion requiring a brace. 5. The Veteran’s left great toe disability manifested by arthritis affecting the minor joint groups. 6. In a September 2010 rating decision, the RO denied service connection for a low back disability. The Veteran received notice of the decision, did not appeal the decision, and new and material evidence was not received within one year after it was issued. 7. Evidence received since the September 2010 rating decision relates to an unestablished fact and raises a reasonable possibility of substantiating the claim of service connection for a low back disability. 8. The evidence is at least evenly balanced as to whether the Veteran’s low back disability is caused by his service-connected left ankle disability. CONCLUSIONS OF LAW 1. The criteria for a restoration of a 10 percent rating under Diagnostic Code 5257, effective May 30, 2019, are met. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.951 (b), 4.71a, Diagnostic Code (DC) 5257. 2. The criteria for a rating in excess of 10 percent for a left knee injury under DC 5257 are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.159, 4.40, 4.45, 4.59, 4.71a, DC 5257. 3. The criteria for a separate 10 percent rating for left knee limitation of flexion, prior to December 30, 2019, are met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.159, 4.40, 4.45, 4.59, 4.71a, DCs 5256, 5258-5260, 5261, 5263. 4. The criteria for a rating in excess of 10 percent for left knee limitation of flexion are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.159, 4.40, 4.45, 4.59, 4.71a, DCs 5256, 5258-5260, 5261, 5263. 5. The criteria for a rating in excess of 30 percent for a left ankle disability are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.159, 4.40, 4.45, 4.59, 4.71a, DC 5262. 6. The criteria for a rating in excess of 10 percent for the great toe disability are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.321, 4.40, 4.45, 4.59, 4.118, DC 5010. 7. The September 2010 rating decision that denied service connection for a low back disability is final. 38 U.S.C. § 7105(c); 38 C.F.R. §§ 20.302, 20.1103. 8. Since the September 2010 rating decision, new and material evidence has been received to reopen the claim of service connection for a low back disability. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. 9. With reasonable doubt resolved in favor of the Veteran, the criteria for service connection for a low back disability, as secondary to his service-connected left ankle disability, are met. 38 U.S.C. §§ 1131, 5107; 38 C.F.R. §§ 3.303, 3.310. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from March 1977 to March 1981, May 1981 to May 1984, and September 1985 to May 1987. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from May 2015 and November 2015 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO). During the pendency of the appeal, the Veteran filed a formal claim of TDIU indicating that he was unable to secure or obtain gainful employment due to his service-connected disabilities. See Veteran’s Application for Increased Compensation Based on Unemployability (March 2020). Although in April 2020, the RO denied a TDIU, the issue is raised as part and parcel of the higher rating claims on appeal. Rice v. Shinseki, 22 Vet. App. 447 (2009). Increased Ratings Disability evaluations are determined by evaluating the extent to which a veteran’s service-connected disability adversely affects his or her ability to function under the ordinary conditions of daily life, including employment, by comparing his or her symptomatology with the criteria set forth in the Rating Schedule. 38 U.S.C. § 1155; 38 C.F.R. §§ 4.1, 4.2, 4.10. In order to evaluate the level of disability and any changes in condition, it is necessary to consider the complete medical history of the veteran’s condition. Schafrath v. Derwinski, 1 Vet. App. 589, 594 (1991). Where, as here, entitlement to compensation has already been established and an increase in the disability rating is at issue, the present level of disability is of primary concern. Francisco v. Brown, 7 Vet. App. 55 (1994). Staged ratings are appropriate for any rating claim when the factual findings show distinct time periods during the appeal period where the service-connected disability exhibits symptoms that would warrant different ratings. Hart v. Mansfield, 21 Vet. App. 505, 510 (2007). Disabilities evaluated on the basis of limitation of motion require VA to apply the provisions of 38 C.F.R. §§ 4.40, 4.45, pertaining to functional impairment. The United States Court of Appeals for Veterans Claims (Court) has instructed that in applying these regulations VA should obtain examinations in which the examiner determines whether the disability is manifested by weakened movement, excess fatigability, incoordination, pain, or flare-ups. Such inquiry is not to be limited to muscles or nerves. These determinations are, if feasible, to be expressed in terms of the degree of additional range-of-motion loss due to any weakened movement, excess fatigability, incoordination, flare-ups, or pain. The examiner should also determine the point, if any, at which such factors cause functional impairment. Moreover, the joints involved should be tested for pain on both active and passive motion, in weight-bearing and nonweight-bearing and, if possible, with the range of the opposite undamaged joint. Correia v. McDonald, 28 Vet. App. 158 (2016); DeLuca v. Brown, 8 Vet. App. 202 (1995); see also Johnston v. Brown, 10 Vet. App. 80, 84-5 (1997); 38 C.F.R. § 4.59. Further, in claims for higher ratings for musculoskeletal disabilities, where a veteran has a noncompensable rating and complaints of pain on motion, the veteran may be entitled to at least the minimum compensable rating for the joint. 38 C.F.R. § 4.59; Burton v. Shinseki, 25 Vet. App. 1 (2011). In Petitti v. McDonald, 27 Vet. App. 415 (2015), the Court held that under 38 C.F.R. § 4.59, “the trigger for a minimum disability rating is an actually painful, unstable, or malaligned joint,” and it explained that 38 C.F.R. § 4.59 speaks to both painful motion of joints and actually painful joints. Id. at 425. Moreover, the Court held that 38 C.F.R. § 4.59 does not require “objective” evidence but can be satisfied with lay and other nonmedical evidence. Id. at 429. The provisions of 38 C.F.R. § 4.59 are not limited to arthritis and must be considered when raised by the claimant or when reasonably raised by the record. Id. Moreover, the plain language of § 4.59 indicates that it is applicable to the evaluation of musculoskeletal disabilities involving actually painful, unstable, or malaligned joints or periarticular regions, regardless of whether the DC under which the disability is being evaluated is predicated on range of motion measurements. Southall-Norman v. McDonald, 28 Vet. App. 346, 354 (2016). Left Knee Disability During a May 2015 VA knee examination, the Veteran reported left knee pain; difficulty with walking; and that sitting, standing, and walking worsened his left knee pain. He denied flare ups of left knee symptoms. He required a cane and a walker for ambulation. Upon physical examination, ranges of motion of the left knee were recorded as flexion to 140 degrees with pain and extension was to 0 degrees with pain. The examiner noted that the Veteran had pain on range of motion testing; however, it did not cause functional loss. He was able to perform repetitive use testing, without additional functional loss or range of motion. He did not have pain on weight bearing. Muscle strength was normal. The examiner indicated that there was no history of recurrent subluxation, lateral instability, or joint effusion. Joint stability testing was normal. There was no muscle atrophy or ankylosis of the left knee. There was no recurrent patellar dislocation, “shin splints” (medial tibial stress syndrome), stress fractures, or a meniscus (semilunar cartilage) condition. The examiner concluded that the Veteran’s left knee disability did not impact his ability to perform occupational tasks such as standing, walking, lifting, or sitting. VA treatment records dated in July 2015 and June 2017 reflect that the Veteran walked with an antalgic gait due to his left leg disability, he ambulated with a cane, and that he reported that his left knee gave away and that he had falls. In a January 2020 VA knee examination, the Veteran reported left knee pain; flare ups; functional impairment due to his left knee; stiffness; locking; instability; and that his left knee gave away. He also stated that he had difficulty with walking, sitting, and standing due to knee pain. The examiner noted that the Veteran required regular use of a cane to assist with ambulation. Upon physical examination, ranges of motion of the left knee were recorded as flexion to 100 degrees with pain and extension was to 0 degrees with pain. Upon repetitive use-testing, the Veteran’s left knee flexion was limited to 90 degrees and extension was limited to 0 degrees. The Veteran had pain on passive range of motion testing and pain when the joint was used in non-weight bearing. There was no pain with weight bearing. The examiner indicated that pain and fatigue caused functional loss. The examiner found that the Veteran would not have additional loss of function or motion during left knee flare ups. The examiner indicated that there was no history of recurrent subluxation, lateral instability, or effusion. Joint stability testing was normal. Muscle strength was normal. There was no muscle atrophy or ankylosis. There was no recurrent patellar dislocation, “shin splints” (medial tibial stress syndrome), stress fractures, or a meniscus (semilunar cartilage) condition. The examiner concluded that the Veteran’s left knee disability impacted his ability to perform occupational tasks such as standing, walking, lifting, or sitting, as the Veteran would be restricted in pushing, pulling or lifting more than thirty pounds. I. Left Knee Instability In a November 2015 rating decision, the RO continued a 10 percent rating for the left knee disability under DC 5257 for recurrent subluxation or lateral instability. 38 C.F.R. § 4.71a, DC 5257. In an April 2020 rating decision, the RO, discontinued the 10 percent rating under DC 5257 and assigned a 10 percent rating for the Veteran’s left knee disability under DC 5260, effective December 30, 2019. The 10 percent rating under DC 5257 had been in effect since May 21, 1987, and the rating is protected under the law preserving disability ratings in effect for more than 20 years. 38 C.F.R. § 3.951(b). Thus, the RO’s discontinuance of the 10 percent rating under DC 5257, effective December 30, 2019, was an impermissible reduction in a protected rating. Under 38 C.F.R. § 3.951(b), the discontinuance was improper and the 10 percent rating under DC 5257 is restored effective December 30, 2019. Under DC 5257, a 10 percent rating is warranted for slight instability, a 20 percent rating is warranted for moderate recurrent subluxation or lateral instability, and a 30 percent rating is warranted for severe recurrent subluxation or lateral instability. 38 C.F.R. § 4.71a, DC 5257. For the following reasons, a rating in excess of 10 percent for the left knee disability under DC 5257 is not warranted. Throughout the appeal period, the Veteran’s left knee instability did not more nearly approximate moderate instability. To this extent, although the Veteran required a cane for ambulation, there was no subluxation or lateral instability of the left knee. Also, instability testing was normal. A rating in excess of 10 percent for the Veteran’s left knee instability is not warranted, as there was no history of subluxation or lateral instability of the left knee and joint stability testing was normal. II. Limitation of Knee Flexion 1. Limitation of knee flexion prior to December 30, 2019. Under DC 5260, limitation of flexion of the leg is rated as a noncompensable when flexion is limited to 60 degrees; a 10 percent rating is warranted when flexion is limited to 45 degrees; a 20 percent rating is warranted when flexion is limited to 30 degrees; and a 30 percent rating is warranted when flexion is limited to 15 degrees. 38 C.F.R. § 4.71a, DC 5260. For rating purposes, normal range of motion in a knee joint is from 0 to 140 degrees. 38 C.F.R. § 4.71, Plate II. For the following reasons, a, separate, 10 percent rating, but no higher, for left knee limitation of flexion, prior to December 30, 2019, is warranted. Prior to December 30, 2019, the evidence of record shows that the Veteran’s left knee flexion was limited, at worst, to 140 degrees with pain. See VA examination report (May 2015). The Veteran reported left knee pain; painful motion; and functional impairment, as he had difficulty with walking due to his left knee disability. In light of the evidence of actual left knee pain, painful motion, and functional impairment, the Court’s holding in Petitti, and with resolution of all reasonable doubt in the Veteran’s favor, a separate minimum, compensable rating under DC 5260 (i.e.,10 percent) is warranted for painful left knee flexion. This contemplates limitation of knee flexion to 45 degrees. See Petitti, 27 Vet. App. at 424-30; Burton, 25 Vet. App. at 3-5; 38 C.F.R. § 4.71a, DC 5260. A rating higher than 10 percent for limitation of knee flexion under DC 5260 is not warranted, as the Veteran’s limitation of flexion of the left knee did not more nearly approximate the 20 percent rating, limitation of flexion to 30 degrees, even considering pain and flare ups. As indicated above, the Veteran’s left knee flexion was limited, at worst, to 140 degrees with pain. 2. Limitation of knee flexion since December 30, 2019, For the following reasons, a rating in excess of 10 percent for the left knee injury (rated under DC 5260 for left knee limitation of flexion) since December 30, 2019, is not warranted. Since December 30, 2019, the evidence reflects that the Veteran’s left knee flexion was limited, at worst, to 100 degrees with pain. See VA examination report (May 2015). Upon repetitive-use testing, flexion was limited, at worst, to 90 degrees with pain. The Veteran reported left knee pain; flare ups; and functional impairment, as he had difficulty with prolonged walking, sitting, or standing. The Veteran is competent to report the symptoms associated with his service-connected left knee disability and the extent of his impairment during flare ups of symptoms. See Jandreau, 492 F.3d 1372 at 1377 (Fed. Cir. 2007). Regardless of the competent and credible reports of flare ups, pain, and other functional impairments, the preponderance of the evidence supports that the Veteran’s left knee symptoms more nearly approximated the criteria for a 10 percent rating since December 30, 2019, under DC 5260. Specifically, the above evidence reflects that the Veteran’s left knee symptoms, such as pain, painful motion, other functional impairments were not so severe, frequent and/or prolonged to warrant the next higher percent rating during this period. A preponderance of the evidence shows that even considering pain, painful motion, and other functional factors, the Veteran’s left knee symptoms were not shown to have been so disabling to actually or effectively result in limitation of knee flexion more nearly approximating 30 degrees, for limitation of knee flexion under DC 5260. III. Limitation of Knee Extension VA’s General Counsel has held that separate ratings can be provided for limitation of knee extension and flexion. VAOPGCPREC 9-2004; 69 Fed. Reg. 59,990 (2004). Under DC 5261, limitation of extension of the leg, is rated as noncompensable when extension is limited to 5 degrees; a 10 percent rating is warranted when extension is limited to 10 degrees; a 20 percent rating is warranted when extension is limited to 15 degrees; a 30 percent rating is warranted when extension is limited to 20 degrees; a 40 percent rating is warranted when extension is limited to 30 degrees; and a 50 percent rating is warranted when extension is limited to 45 degrees. 38 C.F.R. § 4.71a, DC 5261. For the following reasons, a, separate, compensable rating under DC 5261 for limitation of knee extension is not warranted for the Veteran’s left knee disability at any time during the appeal period. Although the Veteran reported left knee pain, there has been no limitation of knee extension, even considering pain and other factors. The Veteran’s range of motion for extension does not meet the criteria for a separate compensable rating for extension, which requires at least extension limited to 5 degrees, at any time during the appeal period. The Veteran is in receipt of a minimum, compensable rating for limitation of flexion of the left knee under DC 5260, throughout the appeal period. The Veteran may not be assigned an additional rating for painful left knee extension as he is already compensated for painful motion of the left knee, under DC 5260. The Veteran cannot be compensated for the same symptomology more than once, as such would constitute pyramiding in violation of 38 C.F.R. § 4.14. Therefore, an additional minimum, compensable rating on the basis of pain for the left knee joint is not warranted for painful extension. Also, there has been no evidence of left knee ankylosis, effusion, cartilage dislocation or removal, or genu recurvatum at any time during the claim period. Therefore, separate or higher ratings are not warranted under DCs 5256, 5258, 5259, or 5263 at any time during the appeal period. Notably, the Veteran’s left ankle disability, is rated under DC 5262, impairment of the tibia or fibula, which will be discussed below. Overall, the Veteran’s left knee instability and left knee limitation of flexion resulted in impairments that are no more than 10 percent disabling under DC 5260 and DC 5272 during the entire appeal period. Therefore, higher and or separate compensable ratings for the left knee disability is not warranted. 38 U.S.C. §§ 1155, 5107(b); 38 C.F.R. §§ 4.7, 4.71a, DCs 5256, 5258, 5259, 5263. Left Ankle Disability The Veteran’s left ankle disability, left distal tibia and fibula with limitation of motion of ankle, is rated as 30 percent disabling under 38 C.F.R. § 4.71a, DC 5262. Under DC 5262, a 30 percent rating is warranted for malunion with marked knee or ankle disability. A maximum rating of 40 percent is warranted for nonunion of the tibia and fibula with loose motion, requiring a brace. 38 C.F.R. § 4.71a, DC 5262. Nonunion is defined as “failure of ends of a fractured bone to unite.” See Dorland’s Illustrated Medical Dictionary, 1289 (32nd ed. 2012). The evidence shows that during service, in March 1986, the Veteran fractured his left tibia and fibula. He submitted an increased rating claim for his left ankle disability in March 2015. During May 2015 and January 2020 VA ankle examinations, the Veteran reported left ankle pain with burning sensations; swelling; instability; and difficulty with walking. He indicated that his left ankle disability symptoms worsened with cold weather. He denied left ankle flare ups. See VA examination reports (May 2015; January 2020). He stated that he required a cane for ambulation. Id. He reported functional impairment, as his ability to walk or stand for prolonged period was limited. Upon physical examination, ranges of motion of the left ankle were recorded as dorsiflexion to 15 degrees, with pain and plantar flexion was to 35 degrees, with pain. Id. He had pain with weight bearing and on passive range of motion testing. See VA examination January (2020). Upon repetitive use testing, ranges of motion of the left ankle were recorded, at worst, dorsiflexion to 15 degrees with pain and plantar flexion to 30 degrees, with pain. See VA examination reports (May 2015; January 2020). Muscle strength was, at worst, 4/5 active movement against some resistance. Id. The examiners indicated that there was no left ankle muscle atrophy or ankylosis. The May 2015 VA examiner indicated that there was left ankle instability or dislocation suspected; the January 2020 VA examiner found that there was no left ankle instability. The January 2020 VA examiner found that the Veteran would not have additional loss of function or motion during left ankle flare ups. The VA examiners noted a May 2015 VA left ankle x-ray report that showed old posttraumatic deformity involving the distal tibia and distal fibular shaft and that there was no evidence of a new fracture or dislocation in the left ankle. The January 2020 VA examiner diagnosed left distal tibia and fibula with limitation of motion of the left ankle. The examiners concluded that the Veteran’s left ankle disability impacted his ability to perform occupational tasks such as standing, walking, lifting, and sitting. For the following reasons, a rating in excess of 30 percent for a left ankle disability under DC 5262 is not warranted. The Veteran’s left ankle disability has not more nearly approximated the next higher rating, a 40 percent rating, which requires nonunion of the tibia and fibula with loose motion. To this extent, there has been no evidence that the Veteran had nonunion of the left tibia and fibula. For instance, a May 2015 VA x-ray report showed old posttraumatic deformity involving the distal tibia and distal fibular shaft; however, there was no indication that there was nonunion of the tibia and fibula. The Board has considered whether the Veteran would be entitled to a higher or separate rating under any other diagnostic codes. The Veteran has been diagnosed as having left distal tibia and fibula with limitation of motion of the left ankle, which is specifically listed under the rating schedule in DC 5262 and, therefore, his left ankle disability may not be rated under another DC. See Copeland v. McDonald, 27 Vet. App. 333, 337 (2015) (when a condition is specifically listed in the rating schedule, it may not be rated by analogy). Furthermore, the Veteran’s left ankle disability does not warrant a separate rating. A separate compensable rating under DC 5271, limitation of motion, would constitute pyramiding in violation of 38 C.F.R. § 4.14, as the Veteran cannot be compensated for the same symptomology more than once. Furthermore, as to other diagnostic codes pertaining to the ankle, there was no evidence of ankylosis of the ankle or subastragalar or tarsal joint to allow for application of DC 5270 or 5273. Further, the evidence of record does not demonstrate malunion of the calcaneus or talus, and there is no indication that the Veteran had undergone a talectomy (an astragalectomy). Accordingly, DCs 5273 or 5274 are not applicable. As the preponderance of the evidence is against a rating in excess of 30 percent for a left ankle disability, the benefit-of-the-doubt doctrine is not for application, and a rating in excess of 30 percent for a left ankle disability is denied. 38 U.S.C. § 5107(b); 38 C.F.R. § 4.3. Left Toe Disability The Veteran’s left toe disability is rated as 10 percent disabling under DC 5010. The Veteran submitted a claim for increase in March 2015. Under DC 5010, arthritis due to trauma, substantiated by x-ray findings, is to be rated as degenerative arthritis under DC 5003. DC 5003 provides that degenerative arthritis that is established by x-ray findings will be rated on the basis of limitation of motion under the appropriate diagnostic codes for the specific joint or joints involved. When there is no limitation of motion of the specific joint or joints that involve degenerative arthritis, a 10 percent rating is assigned with x-ray evidence of involvement of 2 or more major joints or 2 or more minor joint groups, and a 20 percent rating is assigned with x-ray evidence of involvement of 2 or more major joints or 2 or more minor joint groups, with occasional incapacitating exacerbations. 38 C.F.R. § 4.71a, DC 5003. Note (1) provides that the 20 percent and 10 percent ratings based on x-ray findings will not be combined with ratings based on limitation of motion. Id. When there is some limitation of motion of the specific joint or joints involved that is noncompensable under the appropriate diagnostic codes, DC 5003 provides a rating of 10 percent for each such major joint or group of minor joints affected by limitation of motion, to be combined, not added, under DC 5003. Limitation of motion must be objectively confirmed by findings such as swelling, muscle spasm, or satisfactory evidence of painful motion. Id. Turning to the evidence, VA treatment records dated in December 2016 document the Veteran’s reports of left great toe pain. In January 2020, the Veteran was afforded a VA examination. He reported left toe pain, gout, and gout flareups occurring every four to five months. He also reported that he had functional loss or functional impairment due to his left great toe disability, as he had difficulty wearing socks and that he had sensitivity in his left great toe. Upon physical examination, the examiner indicated that there was left great toe pain, mild joint swelling, and stiffness. There was no left great toe redness. There was pain on passive range of motion testing. Furthermore, the examiner indicated that there was functional impairment, in terms of less movement than normal, pain on movement, and pain on weight-bearing. The examiner indicated that there was no pain, weakness, fatigability, or incoordination that significantly limited the Veteran’s functional ability during flare-ups or when the toe was used repeatedly over a period of time. The examiner found that there was no other functional loss during flare-ups or when the toe was used repeatedly over a period of time. The examiner diagnosed traumatic arthritis of the left great toe, based on an x-ray report. The examiner indicated that the Veteran had co-morbid gout that was non-service connected and that it contributed to the left great toe disability. For the following reasons, a rating in excess of 10 percent for the left great toe disability is not warranted. The Veteran’s traumatic arthritis of the left great toe manifested by pain, joint swelling, stiffness, and pain on passive range of motion testing. The Veteran is in receipt of a 10 percent rating for his traumatic arthritis of the left great toe. This is consistent with the criteria for a 10 percent rating for arthritis affecting the minor joint groups under DC 5010. See 38 C.F.R. § 4.71a. The Board has considered whether the Veteran is entitled to separate or higher ratings for his left great toe disability. A separate or higher rating is not warranted under any other rating criteria, as there was no evidence of acquired claw foot, metatarsalgia, hallux rigidus, malunion or nonunion of the tarsal or metatarsal bones, or toe amputation. Therefore, DCs 5170-5173 (for toe amputation), DC 5277 (for weak foot, bilateral), DC 5278 (for claw foot), DC 5279 (for metatarsalgia, anterior, unilateral or bilateral), DC 5281 (for hallux rigidus, unilateral, severe), DC 5282 (for hammertoe), and DC 5283 (for tarsal or metatarsal bones, malunion of, or nonunion of) are not applicable. See 38 C.F.R. § 4.71a. As the preponderance of the evidence is against a rating in excess of 10 percent for the left great toe disability, the benefit-of-the-doubt doctrine is not for application, and a rating in excess of 10 percent for the left great toe disability is denied. 38 U.S.C. § 5107(b); 38 C.F.R. § 4.3. New and Material Evidence Generally, a claim that has been denied in a final unappealed rating decision may not thereafter be reopened and allowed. 38 U.S.C. § 7105(c). An exception to this rule is 38 U.S.C. § 5108, which provides that if new and material evidence is presented or secured with respect to a claim which has been disallowed, VA will reopen the claim and review it on the merits. The implementing regulation also provides that new and material evidence received prior to the expiration of the appeal period will be considered as having been filed in connection with the claim that was pending at the beginning of the appeal period. 38 C.F.R. § 3.156(b). New evidence is defined as existing evidence not previously submitted to agency decision makers. Material evidence means evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. New and material evidence can be neither cumulative nor redundant of the evidence previously of record and must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a). In determining whether evidence is new and material, the credibility of the evidence is generally presumed. Justus v. Principi, 3 Vet. App. 510, 512-513 (1992). The United States Court of Appeals for the Federal Circuit (Federal Circuit) has held, however, that evidence that is merely cumulative of other evidence in the record cannot be new and material even if that evidence had not been previously presented. Anglin v. West, 203 F.3d 1343, 1347 (2000). In deciding whether new and material evidence has been received, the Board looks to the evidence submitted since the last final denial of the claim on any basis. Evans v. Brown, 9 Vet. App. 273, 285 (1996). The threshold for determining whether new and material evidence raises a reasonable possibility of substantiating a claim is “low.” Shade v. Shinseki, 24 Vet. App. 110, 117 (2010). Regardless of whether the RO determined new and material evidence had been submitted, the Board must address the issue of the receipt of new and material evidence in the first instance because it determines the Board’s jurisdiction to reach the underlying claims and to adjudicate the claims de novo. See Jackson v. Principi, 265 F.3d 1366, 1369 (2001) (the Board has a jurisdictional responsibility to consider whether it was proper for a claim to be reopened, regardless of whether the previous action denying the claim was appealed to the Board). Whether new and material evidence has been received to reopen the claim of service connection for a low back disability. In a September 2010 rating decision, the RO denied service connection for a low back disability, on the basis that the Veteran had no current low back disability and that there was no nexus between a low back disability and his military service. Later that month, in a September 2010 notification letter, the Veteran received notice of the September 2010 rating decision. He did not appeal that decision and new and material evidence was not associated with the record within one year of its issuance. Accordingly, the September 2010 rating decision is final. See 38 U.S.C. § 7105(c); 38 C.F.R. §§ 3.104, 3.156(a)-(b), 20.302, 20.1103. In March 2015, the Veteran submitted an application to reopen his previously denied claim of service connection for a low back disability. Relevant evidence received after the September 2010 rating decision includes a March 2013 x-ray report that shows degenerative changes of the thoracic spine and an October 2019 letter from a physician that found that the Veteran’s left ankle disability caused the Veteran’s current low back disability. Since the final prior denial in September 2010, the evidence shows that the Veteran has a current low back disability and that it may be the result of a service-connected disability. The new evidence was not previously considered in the final prior September 2010 rating decision and relates to an unestablished fact necessary to substantiate the claim and raises a reasonable possibility of substantiating the claim. See Shade, 24 Vet. App. at 117. Therefore, the criteria for reopening the claim of service connection for a low back disability are met. Notably, in the remand portion below, the issues of whether new and material evidence has been received to reopen the claims of service connection for disabilities, other than the low back disability, are remanded below to obtain any possible outstanding service treatment records (STRs), as the evidence is unclear whether all of the Veteran’s STRs have been associated with the record. In this instance, the Veteran has not asserted that his low back disability is related to his military, but rather that his low back disability is secondary to service-connected left ankle disability. Furthermore, as will be shown below, service connection for a low back disability, on a secondary service connection basis, is granted herein. Therefore, if, upon remand, outstanding STRs are obtained, such STRs would not be relevant, as they do not relate to the basis on which the application to reopen the claim of service connection for a low back disability was granted. Accordingly, consideration of the provisions of 38 C.F.R. § 3.156(c) (2017), relating to the receipt of relevant official service department records, is therefore not required. See Kisor v. Shulkin, 869 F.3d 1360 (Fed. Cir. 2017) (accepting VA’s interpretation of the relevancy requirement of 38 C.F.R. § 3.156(c), i.e., that as used in § 3.156(c)(1), “relevant” means noncumulative and pertinent to the matter at issue in the case). Secondary Service Connection Service connection is warranted for disability proximately due to, the result of, or aggravated by a service-connected disease or injury. 38 C.F.R. § 3.310 (a), (b). For the reasons below, service connection for a low back disability, on a secondary service connection basis, is warranted. A May 2013 x-ray report shows degenerative changes of the thoracic spine. See Social Security Administrative (SSA) disability records (May 2013). Therefore, the medical evidence of record contains a current low back disability. In an October 2019 letter, a private physician indicated that she reviewed the Veteran’s claims file and opined that the Veteran’s service-connected left ankle disability caused his low back disability. The physician reasoned that the Veteran’s treatment records reflect that his left ankle disability caused him to walk with a limp and antalgic gait, which caused his low back pain. The physician explained that medical research reflects that a limp “will cause back pain and aggravate a pre-existing back pain.” The private physician explained that medical research supports that walking with a limp causes a shift of the body’s center of gravity towards the affected leg, thus, resulting in low back pain and/or causing degenerative changes of the disc and facet joints. The evidence of record reflects that the Veteran’s service-connected left ankle and left knee disabilities caused him to walk with an antalgic gait and that he required a cane for ambulation. See VA examination reports (May 2015). The October 2019 opinion is entitled to significant probative weight, as the private physician explained the reasons for her conclusion based on an accurate characterization of the evidence of record and medical research. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304. In sum, the evidence of record establishes that the Veteran’s low back disability is caused by his service-connected left ankle disability. Accordingly, service connection for a low back disability, as secondary to the service-connected left ankle disability, is warranted. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. REASONS FOR REMAND 1. The issue of service connection for an acquired psychiatric disorder is remanded. The Veteran claims that his acquired psychiatric disorder is due to his military service and that he has had symptoms of an acquired psychiatric disorder in and since service. See private examination report (October 2019). Specifically, the Veteran reports that during his last period of active duty, he was injured in an automobile accident. He stated that after his in-service injury and while he was in service, he experienced psychiatric symptoms such as irritability, depression, and chronic sleep impairment. Id. The Veteran’s December 1976 enlistment examination report shows that psychiatric clinical evaluation was normal; however, the examining physician noted “depression, reactive”. STRs thereafter document that the Veteran reported nervous trouble and depression or excessive worry; also, a physician assessed an anxiety reaction. See medical history reports (April 1981; April 1985); STR (April 1980). In an October 2019 private examination report, a private Ph.D. diagnosed a depressive disorder and found that it was due to the Veteran’s military service and, also, suggested that it was secondary to his service-connected disabilities. Although the October 2019 private Ph.D. provided a positive nexus opinion between the Veteran’s depressive disorder and his military service, the private Ph.D. did not address whether the Veteran’s pre-existing depression, noted on his enlistment examination, underwent an increase in severity during service and, if so, whether it was due the natural progress of the disease. Furthermore, although the Ph.D. suggested that the Veteran’s psychiatric disorder was secondary to his service-connected disabilities, she did not provide a clear opinion or rationale. Therefore, a remand is necessary to obtain a VA opinion to address whether the Veteran’s pre-existing depression, noted on his enlistment examination, underwent an increase in severity during service and, if so, whether it was due the natural progress of the disease. Also, the opinion should address whether the Veteran’s depressive disorder is secondary to his service-connected disabilities. 2. The issue of service connection for obstructive sleep apnea is remanded. The Veteran has not provided any assertions as to the claim of service connection for obstructive sleep apnea; however, the evidence suggests that the Veteran’s obstructive sleep apnea is the result of his military service, is secondary to his pain from his service-connected disabilities, or is secondary to his non-service connected depressive disorder. See lay statements (May 2019) (where the Veteran’s brother and ex-spouse provided statements indicating that the Veteran had sleeping difficulties in and since service and that his pain interfered with his sleep); sleep apnea disability benefits questionnaire (October 2019) (where a private physician found that the Veteran’s sleep apnea was, in part, caused or aggravated by his non-service connected diagnosed depressive disorder). The evidence of record contains a current diagnosis of obstructive sleep apnea. See VA sleep medicine diagnostic study report (November 2015). The Veteran’s STRs include an April 1981 report of medical history, where the Veteran reported that he had frequent trouble sleeping. In light of the above, a remand is warranted to obtain a VA opinion to determine the etiology of the Veteran’s obstructive sleep apnea. 4. The issue of whether new and material evidence has been received to reopen the claim of service connection for tinnitus is remanded. 5. The issue of whether new and material evidence has been received to reopen the claim of service connection for bilateral hearing loss is remanded. 6. The issue of whether new and material evidence has been received to reopen the claim of service connection for a right ankle disability is remanded. 7. The issue of whether new and material evidence has been received to reopen the claim of service connection for a bilateral hip disability is remanded. 8. The issue of whether new and material evidence has been received to reopen the claim of service connection for a right knee disability is remanded. 9. The issue of service connection for hypertension is remanded. 10. The issue of service connection for diabetes mellitus is remanded. 11. The issue of service connection for tremors is remanded. 12. The issue of service connection for erectile dysfunction is remanded. 13. The issue of service connection for headaches is remanded. At the outset, the Veteran and his attorney have not provided any contentions or evidence regarding the issues listed above. In this case, the evidence is unclear whether all of the Veteran’s STRs, from his three periods of active duty service, have been associated with the record. For example, the evidence reflects that the Veteran separated early from his third period of active duty due to a left tibia and fibula fracture that occurred in 1986. See medical board report cover sheet (March 1987). Although the Veteran’s service records include a March 1987 medical board report, the evidence does not appear to contain a separation report from his last period of active duty service. Furthermore, in a January 1988 rating decision, which denied service connection for tinnitus and bilateral hearing loss, the RO stated “[C]omplete SMR’s are not available”. Also, in a September 2010 rating decision, the RO indicated that they considered evidence from only two periods of the Veteran’s active duty service. In sum, although the evidence of record contains some STRs, in light of the above, the evidence is unclear whether all of the Veteran’s STR have been obtained. Therefore, upon remand, any outstanding STRs should be obtained and associated with the record. 14. The issue of a TDIU is remanded. The Veteran has raised the issue of a TDIU as part and parcel of the higher rating claims on appeal. See Veteran’s TDIU claim (March 2020). As indicated above, in the April 2020 rating decision, the RO denied a TDIU; at that time the Veteran did not meet the schedular requirements for a TDIU. 38 C.F.R. § 4.16(a). In light of the decision above granting separate compensable ratings for the Veteran’s left knee disability and service connection for a low back disability, the AOJ should consider the issue of a TDIU, in the first instance, after implementing the grants herein. The matters are REMANDED for the following action: 1. Obtain any outstanding STRs from the Veteran’s three periods of active duty service (from March 1977 to March 1981, May 1981 to May 1984, and September 1985 to May 1987. If the Veteran’s STRs cannot be obtained, provide him with specific notice of the unavailability of these records pursuant to 38 C.F.R. § 3.159 (e)(1). Associate any outstanding STRs with the claims file, including any negative responses and documentation of all efforts to complete the research. 2. Refer the claims file to a psychiatrist or psychologist as to the issue of service connection for an acquired psychiatric disorder. The psychiatrist or psychologist must address the following: (a.) Whether the Veteran’s pre-existing depression reactive, noted in his December 1976 enlistment examination, underwent an increase in severity during service. (b.) If there was an increase, was it due the natural progress of the disease. The psychiatrist or psychologist should comment on the Veteran’s STRs that document his reports of psychiatric symptoms and an assessment of an anxiety reactive. Additionally, the psychiatrist or psychologist should also opine as to whether it is at least as likely as not (50 percent or greater probability) that the Veteran’s current depressive disorder was caused or aggravated by his service-connected disabilities. The psychiatrist or psychologist must provide reasons for each opinion. 3. Refer the claims file to a physician for an opinion as to the etiology of the Veteran’s obstructive sleep apnea. The physician should provide an opinion as to whether it is at least as likely as not (50 percent or greater probability) that the Veteran’s obstructive sleep apnea had its onset in service or is otherwise related to service. The physician should address the April 1981 report of medical history, where the Veteran reported that he had frequent trouble sleeping. The physician should also provide an opinion as to whether it is at least as likely as not (50 percent or greater probability) that the pain from the Veteran’s service-connected disabilities caused or aggravated his obstructive sleep apnea. The physician must provide a rationale for each opinion. 4. After the above development has been completed, readjudicate the issues on appeal, including the issue of a TDIU. JAMES L. MARCH Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board A. Castillo, 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.