Citation Nr: 20080220 Decision Date: 12/21/20 Archive Date: 12/21/20 DOCKET NO. 16-08 968 DATE: December 21, 2020 ORDER Entitlement to an effective date earlier than April 8, 2015 for the grant of service connection for right knee arthritis, status post strain, is denied. Entitlement to a rating higher than 10 percent for the right knee arthritis, status post strain, is denied. Entitlement to an initial compensable rating for healed surgical scars of the right lower extremity is denied. Entitlement to a rating higher than 40 percent for osteoarthritis of the lumbar spine with degenerative disc disease (lumbar spine disability) is denied. Entitlement to a rating higher than 30 percent for bilateral pes planus and degenerative joint disease with calluses (bilateral foot disability) is denied. Entitlement to service connection for Hepatitis C is denied. Entitlement to service connection for obstructive sleep apnea is denied.   REMANDED Entitlement to service connection for an acquired psychiatric disorder is remanded. Entitlement to service connection for erectile dysfunction (ED) is remanded. Entitlement to a total disability rating based on individual unemployability (TDIU) is remanded. FINDINGS OF FACT 1. There is no claim (formal or informal) after a November 2005 final and binding denial of service connection for right knee arthritis until April 8, 2015 that reasonably can be construed as a claim of entitlement to service connection for a right knee disability of any sort. 2. The Veteran’s right knee disability was manifested by flexion limited to 95 degrees (out of the normal 140 degrees), but not more nearly approximating a greater degree of limitation – even when considering the effect of his pain on his range of motion; and his extension was not limited, so entirely normal. 3. The most probative (competent and credible) evidence is against finding that he had additional right knee disability owing to lateral instability, recurrent subluxation, ankylosis, dislocated cartilage, removal of semilunar cartilage, malunion of the tibia and fibula, or genu recurvatum. 4. The two scars on his right toes were not painful or unstable and did not cause any functional impairment. 5. His lumbar spine disability was not manifested by ankylosis or incapacitating episodes having a total duration of at least 6 weeks during the prior 12 months. 6. His bilateral pes planus (flat feet) and degenerative joint disease (arthritis) with calluses (collective bilateral foot disability) was not manifested by pronounced as opposed to severe symptoms and impairment. 7. The most probative (competent and credible) evidence of record is against finding that he had Hepatitis C and/or sleep apnea that was caused or aggravated by his service or a service-connected disability. CONCLUSIONS OF LAW 1. The criteria are not met for an effective date earlier than April 8, 2015 for the grant of service connection for his right knee disability. 38 U.S.C. § 5110(a); 38 C.F.R. § 3.400. 2. The criteria also are not met for a rating higher than 10 percent for his right knee disability. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes (DCs) 5003, 5010, 5260. 3. The criteria are not met for a compensable rating for the healed surgical scars on his right lower extremity. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.118, DC 7805. 4. The criteria are not me for a rating higher than 40 percent for his lumbar spine disability. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.40, 4.45, 4.59, 4.71a, DCs 5242, 5243. 5. The criteria are not met for a rating higher than 30 percent for his bilateral foot disability. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.71a, DC 5010-5276. 6. The criteria are not met for entitlement to service connection for Hepatitis C. 38 U.S.C. §§ 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. 7. The criteria are not met for entitlement to service connection for sleep apnea. 38 U.S.C. §§ 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service from December 1977 to December 1981. He died in November 2017. The Appellant is his surviving spouse, so widow; she has been substituted as the claimant in this appeal to process these claims to completion (see April 2018 VA determination). These claims were previously before the Board in November 2018 but were remanded for further development and consideration – including for needed notification to the appellant-widow, to obtain VA medical nexus opinions concerning the origins of the disabilities alleged to be the result of the Veteran’s military service (meaning those not already determined to be service connected), to obtain outstanding clinical records pertinent to these claims, for verification of an alleged stressor, and for issuance of a Statement of the Case (SOC) and, if also necessary, any warranted Supplemental SOC (SSOC). There has been the required compliance, certainly the acceptable substantial compliance, with those remand directives – at least as concerning the claims now being decided rather than again remanded. See Stegall v. West, 11 Vet. App. 268, 271 (1998) (holding that a remand by the Board confers upon the Veteran, as a matter of law, the right to compliance with the remand instructions); but see also D'Aries v. Peake, 22 Vet. App. 97, 105 (2008) (holding that only "substantial" rather than strict or exact compliance with the Board's remand directives is required under Stegall); accord Dyment v. West, 13 Vet. App. 141, 146-47 (1999).   Effective Date Except as otherwise provided, the effective date of an evaluation 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 will be on the date of receipt of the claim or the date entitlement arose, whichever is the later. 38 U.S.C. § 5110(a); 38 C.F.R. §§ 3.400. The date of receipt shall be the date on which a claim, information or evidence was received by VA. 38 U.S.C. § 101(30); 38 C.F.R. § 3.1(r). 1. Entitlement to an earlier effective date for the grant of service connection for right knee arthritis In a September 2017 rating decision, the local regional office (RO) granted service connection for right knee arthritis and assigned a rating of 10 percent for this disability retroactively effective from April 8, 2015. As of the time of his unfortunate death in November 2017, the Veteran had not provided adequate argument as to why any earlier effective date is warranted. Historically, in a prior November 2005 rating decision that was not appealed, the RO previously considered – but conversely denied, the Veteran’s claim for service connection for a right knee disability. He did not file a petition to reopen this claim until in April 2015. This is significant because the U. S. Court of Appeals for Veterans Claims (Veterans Court/CAVC) has explained that, in an original claim for service connection, the date entitlement arouse is governed by the date the claim is received, not the date of the medical evidence submitted to support a particular claim. See McGrath v. Gober, 14 Vet. App. 28 (2000). Moreover, where a prior unappealed decision becomes final and binding on a Veteran, the effective date of a subsequent award of service connection is the date of receipt of the reopened claim, not instead the date of receipt of the original claim. See Sears v. Principi, 16 Vet. App. 244 (2002); Melton v. West, 13 Vet. App. 442 (2000).   Consider also that, effective March 24, 2015, VA amended its regulations to require that all claims governed by VA’s adjudication regulations be filed on a standard form. The amendments implement the concept of an intent to file a claim for benefits, which operates similarly to the informal claim process but requires that the submission establishing a claimant’s effective date of benefits must be received in one of three specified formats. The amendments also eliminated the constructive receipt of VA reports of hospitalization or examination and other medical records as informal claims under 38 C.F.R. § 3.157. See 79 Fed. Reg. 57660 (Sept. 25, 2014). The Court has held that a final and binding decision (such as the November 2005 denial in this case at hand) cannot be revisited, except under clearly defined and limited circumstances. Cook v. Principi, 318 F.3d 1334 (Fed. Cir. 2002). The Court has applied Cook by holding that the only way to review final and binding decisions is either by collateral attack by showing the earlier decision involved clear and unmistakable error (CUE) or through the submission of new and material evidence. See Rudd v. Nicholson, 20 Vet. App. 296 (2006); Dicarlo v. Nicholson, 20 Vet. App. 52 (2006). Because the effective date upon receipt of new and material evidence after a final disallowance will be the date of receipt of the new claim or the date entitlement arose, whichever is later, it is not possible to reopen a claim for an earlier effective date based on the receipt of new and material evidence. See Leonard v. Principi, 405 F.3d 1333 (Fed. Cir. 2005). The claims file includes a VA Form 21-526EZ which was received by VA on April 8, 2015, which is the reason why the effective date for service connection is that same date. It is not the date upon which the form was signed that is important. Rather, it is the date upon which the claim was received by VA that is paramount in assigning an effective date. 38 U.S.C. § 101(30); 38 C.F.R. § 3.1(r). As already explained, the effective date of an award will be on the date of receipt of the claim or the date entitlement arose, whichever is later. 38 U.S.C. § 5110(a). The claims file does not include any correspondence that reasonably could be construed as a claim, either formal or informal, prior to the April 8, 2015 receipt of the petition to reopen the prior final and binding denial of this same claim. Thus, an earlier effective date is not warranted. 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 Schedule for Rating Disabilities. The percentage ratings represent as far as can practicably be determined the average impairment in earning capacity resulting from such diseases and injuries and the residual conditions in civilian occupations. Generally, the degree of disabilities specified are considered adequate to compensate for considerable loss of working time from exacerbation or illness proportionate to the severity of the several grades of disability. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Separate diagnostic codes identify the various disabilities and the criteria for specific ratings. If two disability evaluations are potentially applicable, the higher evaluation will be assigned to the disability picture that more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. All reasonable doubt regarding the degree of disability will be resolved in favor of the Veteran. 38 C.F.R. § 4.3 For disabilities evaluated on the basis of limitation of motion, VA is required to apply the provisions of 38 C.F.R. §§ 4.40, 4.45, pertaining to functional impairment. If feasible, these determinations are to be expressed in terms of the degree of additional range-of-motion loss due to any weakened movement, premature or excess fatigability, incoordination, or pain. DeLuca v. Brown, 8 Vet. App. 202 (1995); see also Johnston v. Brown, 10 Vet. App. 80, 84-5 (1997). Moreover, the Court has clarified that VA should consider 38 C.F.R. § 4.59, concerning painful motion, even in cases where the disability being evaluated does not involve arthritis. See Burton v. Shinseki, 25 Vet. App. 1 (2011). In McGrath v. Gober, 14 Vet. App. 28 (2000), the Court held that when evidence is created is irrelevant compared to when the Veteran was actually experiencing the symptoms. Thus, the Board will consider whether the evidence of record suggests that the severity of pertinent symptoms increased sometime prior to the date of the examination reports noting pertinent findings.  2. Evaluation of right knee arthritis, status post strain, currently rated as 10 percent disabling The Veteran’s right knee disability is evaluated as 10 percent disabling under hyphenated DC 5010-5260, effective from April 8, 2015. According to DC 5010, arthritis due to trauma (i.e., post-traumatic arthritis) is rated as degenerative arthritis (hypertrophic or osteoarthritis), which is rated under DC 5003. According to DC 5003, the disability, in turn, is rated based on the extent it causes limitation of motion, so, here, since a knee disability, it requires considering DCs 5260 (for limitation of knee flexion) and 5261 (for limitation of extension). Also, according to DC 5003, when limitation of motion of a specific joint involved is 0-percent disabling (meaning noncompensable) under the appropriate DCs, a rating of 10 percent is for application for each major joint or group of minor joints affected by the limitation of motion. Normal or full range of motion of the knee is from 0 degrees of extension to 140 degrees of flexion. 38 C.F.R. § 4.71, Plate II. According to DC 5260, flexion limited to 60 degrees warrants a 0 percent rating. Flexion limited to 45 degrees warrants a 10 percent rating; flexion limited to 30 degrees warrants a 20 percent rating; and flexion limited to 15 degrees warrants a 30 percent rating. Under Diagnostic Code 5261, extension limited to 5 degrees is rated 0 percent. The criterion for a 10 percent rating is extension limited to 10 degrees. The criterion for the next higher rating, 20 percent, is extension limited to 15 degrees. The criterion for the next higher rating, 30 percent, is extension limited to 20 degrees. A 40 percent rating is assigned with extension limited to 30 degrees. The highest 50 percent rating is assigned with extension limited to 45 degrees. Separate ratings also are permissible for limitation of flexion and limitation of extension of the same knee under Diagnostic Codes 5260 and 5261. VAOPGCPREC 9-2004 (2004).   A March 2016 Disability Benefits Questionnaire (DBQ) shows the Veteran reported right knee pain that flared up on cold rainy days and with excessive walking (i.e. five minutes). He reported that he could stand for 10 minutes before needing to sit down, and he could sit for one hour before needing to stand up. He indicated he did not do housework or yard work, and that his son assisted him with things such as dressing and stepping into the tub. He reported waking up twice a week with knee pain, and that the most he could lift and carry comfortably was five pounds. He reported that he could not bowl, swim, hunt, or dance due to back, leg, and knee pain. On objective physical examination, he had full knee extension and flexion to 95 degrees. He reported increasing pain during the range of motion testing. Pain was noted on examination with rest, weightbearing, flexion, and extension. After repetitive use, he continued to have range of motion from 0 to 95 degrees. During a flare-up, the range of motion would remain the same. Thus, an increased rating is not warranted because his flexion was not limited to 30 degrees or less. Indeed, to give this some perspective, consider that even the most minimum 0 percent rating under DC 5260 requires flexion limited to 60 degrees, and he had far more flexion than that (to 95 degrees), again, even when considering his pain. In Mitchell v. Shinseki, 25 Vet. App. 32 (2011), the Court held that, although pain may cause functional loss, pain itself does not constitute functional loss. The Court in Mitchell explained that the evaluation of painful motion as limited motion only applies when limitation of motion is 0-percent disabling (noncompensable) under the applicable DC. The Court further explained that, although painful motion is entitled to a minimum 10 percent rating under Lichtenfels v. Derwinski, 1 Vet. App. 484, 488 (1991), when read together with DC 5003 concerning arthritis, it does not follow that the maximum rating is warranted under the applicable DC pertaining to range of motion simply because pain is present throughout the range of motion. Rather, the pain “must actually affect some aspect of ‘the normal working movements of the body’ such as ‘excursion, strength, speed, coordination, and endurance’ [under] 38 C.F.R. § 4.40 in order to constitute functional loss” warranting a higher rating. See id. at 43. Thus, although the Veteran has reported pain, his clinical findings reflect that he still has significant range of motion, certainly far more than is required for even a 0 percent rating under DC 5260. Hence, this is the reason a 10 percent rating nonetheless is still warranted, but no greater rating, when additionally considering DC 5003 because he had arthritis in this knee to justify assigning a 10 percent rating even though, in theory, the extent of his limitation of motion would only otherwise warrant a 0 percent (noncompensable) rating. Also, because the Veteran always had normal extension (meaning to 0 degrees), an increased rating under DC 5261 is not warranted nor is a separate rating under this other DC according to VAOPGCPREC 9-2004 (2004). As well, the DBQ reflects that there was no history of recurrent subluxation, no history of recurrent effusion, and that instability was not indicated. Consequently, the Veteran was not entitled to a separate rating for recurrent subluxation or lateral instability under DC 5257 since not shown – either on objective physical examination (so when considering the results of tests specifically geared to determining whether he had it) and even when recognizing he had no subjective complaint of it, either. VAOPGCPREC 23-97 (July 1, 1997; revised July 24, 1997); VAOPGCPREC 9-98 (August 14, 1998); see also English v. Wilkie, 30 Vet. App. 347, 349 (2018). Lastly, ratings under still other DCs also are not warranted as the evidence does not support cartilage impairment, tibia and fibula impairment, or genu recurvatum. See Lyles v. Shulkin, 29 Vet. App. 107 (2017). 3. Entitlement to a higher initial evaluation for healed surgical scars of the right lower extremity, evaluated as noncompensable (0-percent) disabling. In a May 2013 rating decision, the RO granted service connection for healed surgical scars, status post callus excision, of the right lower extremity and assigned a noncompensable rating under DC 7805, effective February 15, 2011. Under DC 7805, disabling effects not considered in a rating provided under DCs 7800-7804 are evaluated under an appropriate diagnostic code.   A February 2013 DBQ reflects that the Veteran reported scars on the right second and third toes from callus removal in 2010. The scars were found not to be painful, unstable, or have frequent loss of covering of the skin. Upon examination, there were two linear scars. One scar was 2.0 x .1 centimeters, and the other was 4.5 x .1 centimeter in size. The scars were noted to be superficial. Neither of the scars caused limitation of function. Although the Veteran was competent to state that his scars were painful, he reported that they were not painful at the February 2013 examination. There are also no clinical records specific to toe scars noting that they caused pain, were unstable, or caused functional limitations. In essence, he had scars sufficient to obtain service connection, and he was accordingly in receipt of service connection for this ratable disability. However, his scars do not rise to the level of severity warranting financial compensation under the applicable rating criteria. In essence, although he had scars, they were superficial, linear, pain-free, stable, and did not cause functional limitations. 4. Entitlement to an increased evaluation for osteoarthritis of the lumbar spine with degenerative disc disease (lumbar spine disability), evaluated as 40-percent disabling. The Veteran’s spine disability is evaluated as 40-percent disabling under DC 5243 effective from June 2005, the date upon which service connection is effective. A lumbar spine disability, if, as here, involving degenerative disc disease (i.e., intervertebral disc syndrome (IVDS)), may be evaluated under DC 5243 based on incapacitating episodes or, as also is applicable here, under DC 5242 for degenerative arthritis, depending on which method results in the higher evaluation when all disabilities are combined under § 4.25 (VA’s Combined Ratings Table). In February 2011, the Veteran filed a claim for a TDIU, which was taken by the RO as also a claim for an increased rating for his lumbar spine disability.   Under DC 5243, the Formula for Rating IVDS Based on Incapacitating Episodes, the Veteran would be entitled to a higher (i.e., 60 percent) rating if he had incapacitating episodes having a total duration of at least 6 weeks during the preceding 12-week period. An incapacitating episode, as explained in Note (1) in DC 5243, means bed rest prescribed by a physician and treatment by a physician. In contrast, under DC 5242 of the General Rating Formula for Diseases and Injuries of the Spine, the Veteran would be entitled to a higher rating if he he had unfavorable ankylosis of his entire thoracolumbar spine (50 percent) or entire spine (100 percent), the latter meaning when additionally considering the adjacent cervical segment. A February 2013 DBQ reflects that the Veteran reported that, during a flare-up, the pain was such that he “almost cannot get up in the mornings”. The Veteran had 90 degrees or greater of flexion, with objective evidence of pain at 75 degrees. After repetitive use testing, he continued to have 90 degrees or greater of flexion. He also had significant extension, lateral flexion, and lateral rotation. It was noted that the Veteran had pain on movement, but no other contributing factors. The 2013 DBQ notes that sensory examination was normal, straight leg raising test was negative, and the Veteran did not have radiculopathy or other neurologic abnormalities. It was also noted that he had not had incapacitating episodes. The examiner found that the impact was that the Veteran’s ability to work is partially impacted with things such as heavy lifting, pushing or pulling. A March 2016 DBQ reflects the Veteran’s report that his back pain is a 7 to 9 out of 10. He reported flare ups when it is cold or raining, and that causes the pain to be a 9 out of 10. The Veteran also reported he can stand for 10 minutes before needing to sit down, and he can sit for an hour before needing to stand up. He reported that his son helps him at home, and as noted above, he reported the need for assistance or limitation of activities due to his back, leg, and knees. Upon range of motion testing, he had forward flexion from 0 to 25 degrees. He also had bilateral lateral flexion from 0 to 15 degrees, and bilateral lateral rotation from 0 to 30 degrees. After repetitive use testing, he continued to have range of motion in all spheres, to include 0 to 20 degrees of flexion. Thus, he did not have ankylosis. The examiner also found that during a flare-up, the Veteran would continue to have range of motion. With regard to bedrest, the Veteran stated that every two weeks, “it is hard for me to walk, or even bend over. I just stay in the house laying on the bed.” He also stated that these episodes will last two days. The examiner found that the episodes of bed rest had a total duration of at least one week but less than two weeks during the past 12 months. There are no clinical records reflecting incapacitating episodes having a total duration of at least 6 weeks during a 12-month period. The Veteran's choice to stay in bed, so by his election, is insufficient to find that it was tantamount to an incapacitating episode because it was not prescribed by a physician; thus, even assuming that he chose to stay in bed four days a month for 12 months, equaling approximately seven weeks in a 12 months period, these are not “incapacitating episodes” as defined by VA regulation, and therefore, do not warrant an increased rating of 60 percent. Finally, the Board has considered whether the Veteran is entitled to a separate rating for objective neurologic abnormalities. As noted above, the 2013 DBQ notes that the Veteran did not have radiculopathy; thus, it is against a rating for such. In May 2020, the RO granted service connection for left lower extremity radiculopathy and assigned an evaluation of 20 percent disabling, effective from March 3, 2016, the date of an examination which found that the Veteran had radiculopathy. The Board acknowledges that the RO’s rating “code sheet” reflects an effective date of March 6, 2016; however, the RO’s “Reasons For Decision” notes that the effective date is March 3, 2016. The Boards that the “code sheet” date of March 6, 2016 rather than March 3, 2016 is a typographical error. The March 2016 DBQ notes that although the sensory examination for the right extremities was normal, it was not for the left. For the left, he had absent left thigh knee sensory findings, and decreased foot/toes sensory findings. He had a positive straight leg test on the left. He had moderate intermittent pain of the left lower extremity, severe paresthesias and/or dysesthesias on the left lower extremity, severe numbness of the left lower extremity. He had normal strength, but hypoactive left ankle reflexes (the examiner also noted that he had right ankle hypoactive reflexes but did not find that they were reflective of radiculopathy). His overall impairment was moderate radiculopathy of the sciatic nerve affecting the left lower extremity. For rating diseases of the peripheral nerves, when the involvement is wholly sensory, the evaluation should be for the mild, or at the most, the moderate degree. Examples of physical manifestations include, but are not limited to, muscle weakness, muscle atrophy and diminished or absent reflexes. Examples of sensory manifestations include, but are not limited to, pain (constant, intermittent or dull), numbness, paresthesias (abnormal touch sensation, burning or prickling, often in the absence of external stimulus), and dysesthesias (distortion of any sense, or unpleasant abnormal sensation produced by normal stimuli). When the rating impairment is wholly sensory, a rating commensurate with mild incomplete paralysis is reasonably assigned when symptoms are recurrent but not continuous and are not noted, when occurring, to be more than moderate. Moreover, physical manifestations do not automatically require a rating in excess of moderate incomplete paralysis. Miller v. Shulkin, 28 Vet. App. 376, 37980 2017). Rather, wholly sensory impairment may only be rated commensurate with mild or moderate impairment. When adjudicating claims not involving wholly sensory impairment (i.e., there is a mix of physical and sensory impairments, such as decreased reflexes and numbness), a rating of mild incomplete paralysis is warranted when there are less persistent sensory deficits that affect small areas or for very minimal reflex or muscle strength impairment. A rating of moderate incomplete paralysis may be warranted when there are combinations of significant sensory changes and mild or slight muscle or reflex impairment or muscle and / or reflex impairment that has been noted by the examiner to be moderate in nature. These terms "mild," "moderate," "moderately severe", and "severe" are not specifically defined in the Rating Schedule; rather than applying a mechanical formula, VA must evaluate all the evidence to the end that its decisions are "equitable and just." 38 C.F.R. § 4.6. The term "incomplete paralysis," with these and other peripheral nerve injuries, indicates a degree of lost or impaired function substantially less than the type picture for complete paralysis given with each nerve, whether due to varied level of the nerve lesion or to partial regeneration. Based on the foregoing, the Board find that a higher rating is not warranted as the evidence does not support moderately severe or severe impairment. Moreover, an earlier effective date is not warranted. It is possible, in some circumstances, that a particular piece of evidence demonstrates that the Veteran suffered from the symptoms of a disability or rating level earlier than the date of the examination, opinion, or diagnosis. See DeLisio v. Shinseki, 25 Vet. App. 45, 56 (2011) (holding that “entitlement to benefits for a disability or disease does not arise with a medical diagnosis of the condition, but with the manifestation of the condition and the filing of a claim for benefits for the condition” (citing 38 U.S.C. § 5110(a)); Tatum v. Shinseki, 24 Vet. App. 139, 145 (2010) (holding that “it is the information in a medical opinion, and not the date the medical opinion was provided that is relevant when assigning an effective date”). Based upon the evidence in this case, the exact onset of the Veteran’s current left lower extremity radiculopathy cannot be determined with any certainty. The earliest that that it can be factually ascertained that he met the criteria for a rating is the March 2016 DBQ. While he was competent to report pain, pain (whether or not it radiates) is considered in the rating for the spine. In addition, neurologic abnormalities must be based on objective findings under Note (1) of rating the spine. The evidence is also against a finding that the Veteran had bowel or bladder impairment, thus additional ratings for objective neurologic findings are not warranted. 5. Entitlement to an increased evaluation for bilateral pes planus and degenerative joint disease with calluses (bilateral foot disability), evaluated as 30-percent disabling. The Veteran’s disability is rated under DC 5010-5276 as 30-percent disabling. In February 2011, he filed a claim for a TDIU, which was taken by the RO as also a claim for an increased rating for his foot disabilities. He would be entitled to a higher, i.e., 50 percent rating if he had bilateral pronounced flatfoot (meaning marked pronation, extreme tenderness of plantar surfaces, marked inward displacement and severe spams of the tendo Achillis on manipulation, not improved by orthopedic shoes or appliances) The criteria for evaluating pes planus are not expressly written in the conjunctive as there is no "and" in the listed symptoms. Accordingly, it is not expected that all cases of pes planus will show all the findings specified. See Dyess v. Derwinski, 1 Vet. App. 448, 455-56 (1991) (applying 38 C.F.R. § 4.21 when evaluating pes planus). See also Camacho v. Nicholson, 21 Vet. App. 360, 366 (2007) (the cases in which the Court has indicated that 38 C.F.R. § 4.21 applies are those in which the diagnostic criteria are not clearly joined in the conjunctive). Essentially the criteria for pes planus list symptoms equating to mild, moderate, severe and pronounced pes planus. Additionally, the criteria for evaluating pes planus are not successive in nature; thus, it is not necessary that all criteria be met for a lower rating to allow for the next higher rating. See Tatum v. Shinseki, 23 Vet. App. 152, 155-56 A February 2013 DBQ shows the Veteran did not have marked pronation and did not have marked inward displacement and severe spasm of his Achilles tendon on manipulation. He had extreme tenderness of the plantar surface of both feet, but the tenderness was improved by orthopedic shoes or appliance. Thus, the evidence does not support an increased rating for this disability since there also is no clinical record supporting assignment of any greater rating. Service Connection In general, establishing service connection requires medical evidence or, in certain circumstances, lay evidence of the following: (1) a current disability; (2) in-service incurrence or aggravation of a relevant disease or an injury; and (3) a nexus between the disease or injury in service and the present disability. Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004).   6. Entitlement to service connection for Hepatitis C A May 2005 VA clinical records reflect that the Veteran had a past medical history of being positive for Hepatitis C. He reported that he wanted to be checked for Hepatitis because he had been told at a blood donation that he was positive, but he was unaware of what type. He reported that he had had unprotected sex the prior year. A June 2005 VA clinical record reflects that the Veteran reported having had sex with many different people while in service, and while using drugs. Records also reflect that he reported having used IV drugs in 1981, and snorted heroin off and on since then, up to 2-3 times a week, A February 2006 VA clinical record reflects that the Veteran admitted to IV drug use in the 1980s, and that he had a blood transfusion for gunshot wounds in 1991; he denied other risk factors for hepatitis. A November 2019 DBQ reflects the opinion of the examiner that it is less likely as not that the Veteran had Hepatitis C due to service. The examiner found no medical evidence to delineate the time of contract of Hepatitis, and that the earliest positive note of Hepatis C antibodies was December 2003. The examiner also noted that medical literature notes that Hepatitis C’s primary mode of transmission is blood to blood exposure, such as through a blood transfusion or intravenous route. It was also noted that the risk of sexual transmission is higher in HIV positive individuals or in individuals with multiple sexual partners in short-term relationships There is no probative evidence of record that the Veteran, while in service, was ever given an immunization, or other shot, with a needle that had infected blood on it. There is no probative evidence of record that while in service, the Veteran contracted Hepatitis from sexual intercourse. There is no probative evidence that while in service, he had a blood transfusion. There is simply no probative evidence of record that the Veteran was exposed to Hepatitis C while in service. In essence, the Veteran had three years of service and contends he had multiple sexual partners during that time; however, there is no evidence that any of them had Hepatitis. Post-service, he had more than twenty years during which to contract Hepatitis C; he had unprotected sex, and he had a blood transfusion. Hepatitis C is defined as "hepatitis c virus, the most common form of post-transfusion hepatitis, it also follows parenteral drug abuse . . ." DORLAND'S ILLUSTRATED MEDICAL DICTIONARY (31st Ed. 2007). Notably, the evidence reflects that post-service, the Veteran had a blood transfusion after suffering gunshot wounds. In the absence of demonstration of continuity of symptomatology since service by credible evidence, or a competent clinical opinion relating the current Hepatitis C to service, the initial demonstration of Hepatitis C approximately two decades after separation from service is too remote to be reasonably related to service. 7. Entitlement to service connection for sleep apnea The Veteran’s STRs are negative for complaints of, treatment for, or diagnosis of sleep apnea. As noted above, he separated from service in 1981. There is no competent and credible evidence of sleep apnea in the two decades after separation from service. The lapse of time between service separation and the earliest documentation of the disability now being claimed is a factor for consideration in deciding whether service connection is warranted. See Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000); Mense v. Derwinski, 1 Vet. App. 354 (1991) (holding that VA did not err in denying service connection when the Veteran had failed to provide evidence demonstrating continuity of symptomatology and had failed to account for the lengthy time period following service during which there was no clinical documentation of the claimed disorder). See also Horn v. Shinseki, 25 Vet. App. 231 (2012).   A November 2005 VA clinical record while the Veteran was an inpatient reflects that he “snores loudly majority of the night. No noted sleep apnea or nightmares.” An April 2007 VA clinical record reflects that the Veteran had been following a low fat diet, and had lost more than 20 pounds, but that he still weighed 249 pounds, had a body mass index (BMI) of 33.9, and was informed that a BMI in excess of 30 is associated with health risks including sleep apnea. The STRs, which note a weight of 190 pounds upon separation, are unremarkable for a high BMI, or a finding of obesity. The earliest diagnosis of sleep apnea is in 2009 (see April 2009 VA record). VA clinical records reflect that he was diagnosed with sleep apnea in 2009, which is approximately 28 years after separation from service. The Appellant’s attorney contends that the Veteran reported having trouble sleeping with frequent nightmares. However, nightmares and “trouble sleeping” are not necessarily synonymous with obstructive sleep apnea. Obstructive sleep apnea, his diagnosis, results from a collapse or obstruction of the airway with the inhibition of muscle tone, and in adults is seen primarily in middle-aged obese individuals with a male predominance. See DORLAND'S ILLUSTRATED MEDICAL DICTIONARY (31st Ed. 2007). The evidence of record does not include any competent indication that the Veteran’s obstructive sleep apnea was or may have been caused or aggravated by his service or a service-connected disability, so including by an acquired psychiatric disorder for which entitlement to service connection is being claimed but has not been established. There is no probative evidence of record (i.e. by a competent provider, based on credible facts, and with a supporting rationale) that the Veteran’s sleep apnea was as likely as not causally related to, or aggravated by, his service and/or a service-connected disability. To the contrary, the record reflects that he had the nonservice-related factors of age, gender, and increased weight.   Conclusion for all adjudicated claims The Veteran has not been shown to have the experience, training, or education necessary to give a probative opinion regarding the origins of his disabilities, including in terms of whether related or attributable to anything that occurred during his time in the military. This determination is beyond his lay competence. See Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011); Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007). See also King v. Shinseki, 700 F.3d 1339, 1345 (Fed. Cir. 2012) (indicating lay evidence must demonstrate some competence and affirming the Court's conclusion that the Board did not improperly discount the weight of a lay opinion in finding a medical expert's opinion more probative on the issue of medical causation). With regard to the claims for increased ratings, the Veteran has not provided evidence which disputes the DBQ findings. Moreover, he had multiple disabilities, to include of the feet, left lower extremity, and right knee for which he was in receipt of service-connection, and a right thigh muscle strain for which he was not in receipt of service connection. The Board holds that the objective findings of clinicians, who are trained in physical examinations, are more probative than lay statements as to which disabilities caused which symptoms. With regard to his claim for an earlier effective date, he has not provided adequate evidence and argument as to why an earlier date is warranted. As the preponderance of the evidence is against the claims, the benefit of the doubt rule is not applicable. See 38 U.S.C. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49, 54-56 (1990).   REASONS FOR REMAND 8. Entitlement to service connection for an acquired psychiatric disorder In November 2018, the Board remanded the matter to allow VA to attempt to corroborate the Veteran’s reported stressor of witnessing a fellow recruit kill himself in boot camp, and having to clean up the blood and brains. The Veteran asserted that the incident occurred in December 1977 or January 1978 at Parris Island, South Carolina. In September 2019 correspondence, VA requested that the Commandant of the Marine Corps verify the alleged stressor, and reported that it had allegedly occurred in December 1977. The request, which was addressed to the Navy Annex, was returned by the United States Postal Service as undeliverable. (The Board notes that a search for the address of the Commandant of the Marine Corps indicates that it is in the Pentagon, not the Navy Annex (which may have been demolished several years ago). The claims file does not reflect that VA made another attempt to verify the alleged stressor, or provide a reason why it was not done. Thus, there has not been the required compliance with these remand directives. See Stegall v. West, 11 Vet. App. 268 (1998). In addition, the Board notes that the request was for verification of an alleged December 1977 incident. The Veteran has stated that the incident occurred in December 1977, but has also stated that it may have occurred in January 1978. The Veteran entered service on December 27, 1977. Given that, traditionally, new Marine recruits do not provide a mailing address to anyone until at least seven days after entrance, it seems highly unlikely that the fellow recruit would have received a “Dear John” letter prompting his suicide in December 1977 as this would have been, at most, the first five days of service. It seems more reasonable that the alleged incident, if it occurred, would have been in January or February 1978. The earliest VA clinical record associated with the claims file is from 2005; however, the Veteran has reported that he was hospitalized at the Richmond VA Medical Center (VAMC) in 1993 or 1994 for major depressive disorder (see June 2005 clinical record). This alleged hospitalization was not noted by the private or VA examiners, and the evidence does not reflect that they were aware of this possibly pertinent information. Any VA treatment records are within VA’s constructive possession, and are considered potentially relevant to this issue on appeal. A remand is required to allow VA to obtain them. The Board also notes that the Veteran has reported that he was shot in 1991 and was depressed afterwards. Thus, the Board finds that a search for records from 1991 through 1994 may provide relevant evidence as the Veteran may not be certain as to his dates of treatment. 9. Entitlement to service connection for ED A December 2014 VA clinical record reflects that the Veteran reported that he was talking about “stopping meds due to sexual side effect, “unable to finish”. Celexa was discontinued, and the plan was to “start mirtazapine since no sexual side effects.” The Board finds that the issue of entitlement to service connection for ED is inextricably intertwined with the issue of entitlement to service connection for an acquired psychiatric disorder. Thus, the Board must defer considering this claim for ED until completion of the additional development being directed concerning the claim for an acquired psychiatric disorder. 10. Entitlement to a TDIU This claim of entitlement to a TDIU also is inextricably intertwined with the claim of entitlement to service connection for an acquired psychiatric disorder, so consideration of this TDIU claim also must be deferred. Accordingly, these claims are REMANDED for the following action: 1. Attempt to corroborate the Veteran’s alleged in-service stressor of witnessing and cleaning up the aftermath of the suicide of a fellow recruit in his unit which likely occurred in January 1978, but may have occurred in the last week of December 1977 or in February 1978. (Military police blotter reports or unit records may note the suicide). 2. Obtain the Veteran’s VA treatment records, if any, (to include in-patient treatment for mental health or substance use at the Richmond VAMC) for January 1, 1991 through December 31, 1994. 3. Thereafter, obtain a supplemental opinion as to whether it is as likely as not (50 percent or greater) that the Veteran had an acquired psychiatric disability causally related to, or aggravated by, service and/or a service-connected disability. The examiner should not consider any in-service stressor unless it has been verified by VA. If the examiner finds that the Veteran had depression caused by a service-connected disability (to include pain), the examiner should differentiate, if reasonably possible, any symptoms related to depression from those related to any other psychiatric disability (to include substance abuse, and PTSD caused by non-service-connected stressors). If the examiner finds that the Veteran had depression which was aggravated (worsened) by a service-connected disability (to include pain), the examiner should state the level of worsening (i.e. the baseline severity of depression prior to worsening caused by pain as compared to the level of depression after worsening by pain). An adequate rationale for all opinions must be provided, and should cite to relevant clinical records.   4. Thereafter, if service-connection is warranted for an acquired psychiatric disability, obtain a clinical opinion as to whether the Veteran’s ED is caused or aggravated by the acquired psychiatric disability, to include by the medication used to treat it. KEITH W. ALLEN Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board T. Wishard 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.