Citation Nr: 21001082 Decision Date: 01/07/21 Archive Date: 01/07/21 DOCKET NO. 07-28 385 DATE: January 7, 2021 ORDER The previously denied claim of entitlement to service connection for left toe disability is reopened. The previously denied claim of entitlement to service connection for right shoulder condition is reopened. The previously denied claim of entitlement to service connection for left shoulder condition is reopened. Entitlement to an effective date earlier than March 2, 2006 for the grant of service connection for lumbar spine disability is denied. Entitlement to an initial rating in excess of 40 percent for lumbar spine disability is denied. Entitlement to service connection for right lower extremity radiculopathy is granted. Entitlement to service connection for left lower extremity radiculopathy is granted. Entitlement to service connection for hepatitis C is denied. REMANDED Entitlement to service connection for bilateral foot disability (to include left toe disability) is remanded. Entitlement to service connection for right knee disability is remanded. Entitlement to service connection for left knee disability is remanded. Entitlement to service connection for tinnitus is remanded. Entitlement to service connection for bilateral hearing loss is remanded. Entitlement to service connection for acquired psychiatric disorder, to include posttraumatic stress disorder (PTSD), bipolar disorder, and adjustment disorder, is remanded. Entitlement to service connection for right shoulder disability is remanded. Entitlement to service connection for left shoulder disability is remanded. Entitlement to service connection for hypertension is remanded. Entitlement to service connection for stomach disability is remanded. Entitlement to service connection for sleep disability is remanded. Entitlement to service connection for diabetes mellitus is remanded. Entitlement to service connection for right upper extremity neuropathy is remanded. Entitlement to service connection for left upper extremity neuropathy is remanded. Entitlement to service connection for right hand disability is remanded. Entitlement to an initial rating in excess of 10 percent for right foot hammer toe disability is remanded. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) is remanded. FINDINGS OF FACT 1. The Board’s July 2011 decision denying service connection for left toe disability is final. 2. Additional evidence received since the Board’s July 2011 decision is not cumulative or redundant of the evidence of record at the time of that decision, relates to an unestablished fact necessary to substantiate the claim for service connection for left toe disability, and raises a reasonable possibility of substantiating the claim. 3. The Regional Office’s November 2007 rating decision continuing the denial of service connection for left and right shoulder condition is final. 4. Additional evidence received since the November 2007 rating decision is not cumulative or redundant of the evidence of record at the time of that decision, relates to an unestablished fact necessary to substantiate the claims for service connection for left and right shoulder condition, and raises a reasonable possibility of substantiating the claims. 5. In a claim received by VA on March 2, 2006, the Veteran sought service connection for lumbar spine disability. 6. Prior to March 2, 2006, there was no formal claim, informal claim, or written intent to file a claim for entitlement to service connection for lumbar spine disability. 7. Throughout the appeal period, the preponderance of the evidence shows that the Veteran’s lumbar spine disability has not resulted in unfavorable ankylosis of the entire thoracolumbar spine or incapacitating episodes having a total duration of at least six weeks during the past twelve months. 8. The Veteran’s bilateral lower extremity radiculopathy is due to his service-connected lumbar spine disability. 9. The preponderance of the evidence is against finding that the Veteran’s hepatitis C disability began during active duty or ACDUTRA or is the result of a disease or injury in active duty or ACDUTRA. CONCLUSIONS OF LAW 1. The Board’s July 2011 decision that denied service connection for left toe disability is final. 38 U.S.C. § 7104; 38 C.F.R. § 20.1100. 2. New and material evidence has been received to reopen the Veteran’s claim for service connection for left toe disability. 38 U.S.C. §§ 1131, 5108; 38 C.F.R. §§ 3.303, 3.156. 3. The Regional Office’s November 2007 rating decision that continued the denial of service connection for left and right shoulder condition is final. 38 U.S.C. § 7105; 38 C.F.R. §§ 20.200, 20.201, 20.1103. 4. New and material evidence has been received to reopen the Veteran’s claims for service connection for left and right shoulder condition. 38 U.S.C. §§ 1131, 5108; 38 C.F.R. §§ 3.303, 3.156. 5. The criteria for an effective date prior to March 2, 2006, for the grant of service connection for lumbar spine disability have not been met. 38 U.S.C. §§ 5107, 5110; 38 C.F.R. §§ 3.102, 3.155, 3.400. 6. The criteria for an initial rating in excess of 40 percent for lumbar spine disability have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.71a, Diagnostic Code 5242-5237. 7. The criteria for secondary service connection for right lower extremity radiculopathy have been met. 38 U.S.C. §§ 1131, 5107; 38 C.F.R. §§ 3.102, 3.310. 8. The criteria for secondary service connection for left lower extremity radiculopathy have been met. 38 U.S.C. §§ 1131, 5107; 38 C.F.R. §§ 3.102, 3.310. 9. The criteria for service connection for hepatitis C have not been met. 38 U.S.C. §§ 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from May 1980 to May 1984 with additional service in the Reserves, including a period of ACDUTRA from September 1986 to June 1987. This appeal arises from a number of rating decisions. The claims of entitlement to service connection for bilateral foot, right knee, left knee, and right leg disabilities arise from a September 2006 rating decision denying service connection for such conditions. In July 2011, April 2013, February 2014, and February 2018, the Board remanded these claims for additional development. The claim of entitlement to a higher initial rating for right hammer toes arises from a May 2007 rating decision granting service connection for right hammer toes with a noncompensable rating. In July 2011, the Board remanded the matter for additional development. In April 2013, the Board granted a 10 percent rating, and no higher, for the Veteran’s right hammer toes disability. The Veteran appealed the Board’s decision to the United States Court of Appeals for Veterans Claims (Court). In March 2014, the Court granted the parties’ March 2014 Joint Motion for Remand (JMR) and remanded the issue of entitlement to an initial rating in excess of 10 percent for right hammer toes disability to the Board for readjudication. In August 2014, May 2015, and February 2018, the Board remanded this matter for further development. The claim to reopen the denial of service connection for left foot toe disability arises from a January 2015 rating decision denying reopening of the claim based on a finding of no new and material evidence. The claim for entitlement to service connection for right hand disability also arises from the January 2015 rating decision. The issue of whether new and material evidence has been presented to reopen the claim for service connection for left foot toe disability and the claim for service connection for right hand disability were remanded by the Board in February 2018. The claims of entitlement to a higher initial rating for lumbar spine disability and an earlier effective date for the grant of service connection for lumbar spine disability arise from an April 2016 rating decision granting service connection for lumbar spine disability, effective March 2, 2006, with a 40 percent rating. The claim to reopen the denial of service connection for shoulder disability arises from a September 2016 rating decision denying reopening of the claim based on a finding of no new and material evidence. The claims of entitlement to service connection for diabetes, hepatitis C, hypertension, upper and lower extremity neuropathy, stomach, sleep, and psychiatric disability arise from a September 2016 rating decision. In February 2018, the Board added a claim for TDIU as part and parcel of the increased rating claim and remanded the TDIU claim for further development. The Veteran’s claims for service connection for tinnitus and hearing loss were initially denied in a September 2006 rating decision for lack of a hearing loss disability and lack of a connection to service. The Veteran filed a claim to reopen these claims in June 2007. In July 2007, the Veteran notified VA that there were outstanding VA treatment records from Temple VA Medical Center. The Veteran’s claims for service connection for tinnitus and hearing loss were again denied in a November 2007 rating decision based on lack of a connection to service. However, the outstanding Temple VA treatment records were not listed in the evidence considered in the November 2007 rating decision. The outstanding Temple VA treatment records were added to the Veteran’s claims file in December 2007. The records added include July 2007 VA treatment records containing new and material evidence relating to the Veteran’s claims for service connection for tinnitus and hearing loss. The July 2007 VA treatment records contain the Veteran’s reports of additional details regarding in-service noise exposure, the lack of hearing protection in service, the lack of noise exposure after service, and timing of hearing loss symptomatology, and a hearing loss diagnosis. As the July 2007 VA treatment records were created within a year of the September 2006 rating decision, and were not considered in the November 2007 rating decision, the claims remained open until a new and material determination. Lang v. Wilkie, 971 F.3d 1348 (2020) (finding VA medical records created within the appeal period following an AOJ decision are constructively in VA’s possession for the purposes of 3.156(b)). The Veteran filed claims to reopen, which were denied in January 2015 (tinnitus) and September 2016 (hearing loss) rating decisions, which he appealed. Accordingly, the Board reviews the claims for service connection for tinnitus and bilateral hearing loss de novo. See 38 C.F.R. § 3.156(b). Although evidence has been added to the claims file since the February 2018 Statement of the Case (SOC), the April 2018 SOC, and the February 2020 Supplemental Statement of the Case (SSOC), the Veteran submitted waivers of initial Agency of Original Jurisdiction (AOJ) consideration of such evidence. See October 2020, October 2019 Waivers. Accordingly, the Board may proceed with adjudication of the appeal. The Board has limited the discussion below to the relevant evidence required to support its findings of fact and conclusions of law, as well as to the specific contentions regarding the case as raised directly by the Veteran and those reasonably raised by the record. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015); Robinson v. Peake, 21 Vet. App. 545, 552 (2008). Although the remand directives below include instructions to obtain outstanding audiograms and 2004 psychiatric treatment, the Board may decide the Veteran’s claims below as the outstanding records are not relevant to the denial determinations due to the nature and timing of the outstanding records. 1. The previously denied claim of entitlement to service connection for left toe disability is reopened. In a July 2011 decision, the Board denied service connection for left toe disability on the basis that there was no link to service. The Veteran did not appeal the decision. The decision is final. 38 U.S.C. § 7104; 38 C.F.R. § 20.1100. Accordingly, the claim may now be considered on the merits only if new and material evidence has been received since the time of the prior adjudication. Evidence is considered “new” if it was not previously submitted to agency decision makers. “Material” evidence is existing evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. “New and material evidence” can be neither cumulative nor redundant of the evidence of record at the time of the last prior final denial of the claim sought to be reopened and must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a). In determining whether evidence is new and material, the “credibility of the evidence is to be presumed.” Justus v. Principi, 3 Vet. App. 510, 513 (1992). The evidence received since the time of the Board’s July 2011 decision includes a May 2014 VA examiner noting that hammer toes occur due to poorly fitting shoes and the Veteran’s contention in a March 2016 VA examination that his hammer toes were caused by prolonged marching and standing in boots during service. This evidence was not before adjudicators when the Veteran’s claim was last finally denied and it is not cumulative or redundant of the evidence of record at the time of that decision. The new evidence relates to an unestablished fact necessary to substantiate the claim for service connection for left toe disability and raises a reasonable possibility of substantiating the claim. Accordingly, the claim is reopened. 2. The previously denied claim of entitlement to service connection for right shoulder condition is reopened. 3. The previously denied claim of entitlement to service connection for left shoulder condition is reopened. In a November 2007 rating decision, the Regional Office (RO) continued the denial of service connection for left and right shoulder condition on the basis that there was no link to service. The RO notified the Veteran of its decision, and of his appellate rights, but he did not initiate an appeal of the RO’s decision within one year. Nor was any new and material evidence received within a year. As a result, the RO’s decision became final. Accordingly, the claims may now be considered on the merits only if new and material evidence has been received since the time of the prior adjudication. Evidence is considered “new” if it was not previously submitted to agency decision makers. “Material” evidence is existing evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. “New and material evidence” can be neither cumulative nor redundant of the evidence of record at the time of the last prior final denial of the claim sought to be reopened and must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a). In determining whether evidence is new and material, the “credibility of the evidence is to be presumed.” Justus v. Principi, 3 Vet. App. 510, 513 (1992). The evidence received since the time of the November 2007 rating decision includes the Veteran’s reports that his service-connected right ankle pain caused a fall that resulted in shoulder problems. See, e.g., January 2015 VA Treatment Records. This evidence was not before adjudicators when the Veteran’s claims were last finally denied and it is not cumulative or redundant of the evidence of record at the time of that decision. The new evidence relates to an unestablished fact necessary to substantiate the claims for service connection for left and right shoulder disability and raises a reasonable possibility of substantiating the claims. Accordingly, the claims are reopened. 4. Entitlement to an effective date earlier than March 2, 2006 for service connection for lumbar spine disability is denied. Unless specifically provided otherwise, the effective date of an evaluation and grant of pension, compensation, or dependency and indemnity compensation based on an original claim, a claim reopened after final disallowance, or a claim for increase will be the date of receipt of the claim or the date entitlement arose, whichever is later. See 38 U.S.C. § 5110(a); 38 C.F.R. § 3.400. The effective date for a grant of service connection is the day following the date of separation from active service or the date entitlement arose, if the claim is received within one year after separation from active service; otherwise, it is the date of receipt of claim, or the date entitlement arose, whichever is later. See 38 U.S.C. § 5110(a); 38 C.F.R. § 3.400(b)(2)(i). Prior to March 24, 2015, a “claim” was either a formal or informal communication in writing requesting a determination of entitlement or evidencing a belief in entitlement to a benefit. See 38 C.F.R. § 3.1(p). “Date of receipt” of a claim, information, or evidence means the date on which a claim, information, or evidence was received by VA. See 38 C.F.R. § 3.1(r). Any documented communication from, or action by, a veteran indicating intent to apply for a benefit under laws administered by VA may be considered an informal claim. See 38 C.F.R. § 3.155(b). To determine when a claim was received, the Board must review all communications in the claims file that may be construed as an application or claim. See Quarles v. Derwinski, 3 Vet. App. 129, 134 (1992). Effective March 24, 2015, all claims must be submitted on a form prescribed by the Secretary of VA. The Veteran filed a claim for service connection for back disability which was received by VA on March 2, 2006. The Veteran’s claims file does not contain any earlier informal or formal claim for service connection for back disability. The Veteran was granted an effective date of March 2, 2006 for his lumbar spine disability, the date of claim. Neither the Veteran nor his attorney has made any argument as to why an earlier effective date is warranted. Therefore, an effective date prior to March 2, 2006 for the grant of service connection for lumbar spine disability is denied. 5. Entitlement to an initial rating in excess of 40 percent for lumbar spine disability is denied. Disability evaluations are determined by the application of a schedule of ratings, which is in turn based on the average impairment of earning capacity caused by a given disability. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Separate diagnostic codes identify the evaluations to be assigned to the various disabilities. If there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. If different disability ratings are warranted for different periods of time over the life of a claim, “staged” ratings may be assigned. Hart v. Mansfield, 21 Vet. App. 505 (2007); Fenderson v. West, 12 Vet. App. 119, 125-26 (1999). The Veteran seeks a higher initial rating for his service-connected lumbar spine disability, rated 40 percent disabling from March 2, 2006, the date of service connection. The Veteran’s lumbar spine disability is rated under 38 C.F.R. § 4.71a, Diagnostic Code 5242-5237. Under the General Rating Formula for Diseases and Injuries of the Spine, a 10 percent rating is warranted for forward flexion of the thoracolumbar spine greater than 60 degrees but not greater than 85 degrees; or, combined range of motion of the thoracolumbar spine greater than 120 degrees but not greater than 235 degrees; or, muscle spasm, guarding, or localized tenderness not resulting in abnormal gait or abnormal spinal contour; or, vertebral body fracture with loss of 50 percent or more of the height. A 20 percent rating is warranted for forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees; or the combined range of motion of the thoracolumbar spine not greater than 120 degrees; or, muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis. A 40 percent rating is warranted for forward flexion of the thoracolumbar spine to 30 degrees or less; or, favorable ankylosis of the entire thoracolumbar spine. A 50 percent rating is warranted for unfavorable ankylosis of the entire thoracolumbar spine. A 100 percent evaluation is warranted for unfavorable ankylosis of the entire spine. 38 C.F.R. § 4.71a, General Rating Formula for Diseases and Injuries of the Spine. Any associated objective neurological abnormalities, including, but not limited to, bowel or bladder impairment, are to be evaluated separately under an appropriate diagnostic code. Id. at Note 1. Unfavorable ankylosis is defined as “a condition in which the entire cervical spine, the entire thoracolumbar spine, or the entire spine is fixed in flexion or extension, and the ankylosis results in one or more of the following: difficulty walking because of a limited line of vision; restricted opening of the mouth and chewing; breathing limited to diaphragmatic respiration; gastrointestinal symptoms due to pressure of the costal margin on the abdomen; dyspnea or dysphagia; atlantoaxial or cervical subluxation or dislocation; or neurologic symptoms due to nerve root stretching.” Id. at Note 5. Additionally, fixation of a spinal segment in neutral position (zero degrees) is “always” considered favorable ankylosis. Id. When evaluating musculoskeletal disabilities based on limitation of motion, 38 C.F.R. § 4.40 requires consideration of functional loss caused by pain or other factors listed in that section that could occur during flare-ups or after repeated use and, therefore, not be reflected on range-of-motion testing. 38 C.F.R. § 4.45 requires consideration also be given to less movement than normal, more movement than normal, weakened movement, excess fatigability, incoordination, and pain on movement. See DeLuca v. Brown, 8 Vet. App. 202 (1995); see also Mitchell v. Shinseki, 25 Vet. App. 32, 44 (2011). Nonetheless, even when the background factors listed in § 4.40 or 4.45 are relevant when evaluating a disability, the rating is assigned based on the extent to which motion is limited, pursuant to 38 C.F.R. § 4.71a; a separate or higher rating under § 4.40 or 4.45 itself is not appropriate. See Thompson v. McDonald, 815 F.3d 781, 785 (Fed. Cir. 2016) (“[I]t is clear that the guidance of § 4.40 is intended to be used in understanding the nature of the veteran’s disability, after which a rating is determined based on the § 4.71a criteria.”). Under 38 C.F.R. § 4.59, painful motion is a factor to be considered with any form of arthritis; however, 38 C.F.R. § 4.59 is not limited to disabilities involving arthritis. See Burton v. Shinseki, 25 Vet. App. 1 (2011). In Correia v. McDonald, 28 Vet. App. 158 (2016), the Court held that the final sentence of 38 C.F.R. § 4.59 requires that the examiner record the results of range of motion testing “for pain on both active and passive motion [and] in weight-bearing and non-weight-bearing and, if possible, with range of motion measurements of the opposite undamaged joint.” The spine has no opposite joint. In Sharp v. Shulkin, 29 Vet. App. 26 (2017), the Court held that VA examiners must obtain information about the severity, frequency, duration, precipitating and alleviating factors, and extent of functional impairment of flares from the veterans themselves, when a flare-up is not observable at the time of examination. The Veteran underwent VA lumbar spine examination in June 2006. During the VA examination, he reported back pain which increased with activity. The VA examiner noted painful motion and spasms on examination. Range of motion examination showed flexion limited to 20 degrees. The VA examiner noted the Veteran’s report that his symptoms are moderate to severe constantly and therefore explained there would be no additional limitation of range of motion following repetitive use or during a flare-up. The September 2011 VA examiner noted the Veteran’s reports of back pain. The Veteran reported flare-ups of severe low back pain 2-3 times per month lasting 2-3 days. Range of motion testing showed forward flexion to 50 degrees. The VA examiner did not opine as to additional functional loss during flare-ups. The May 2013 VA examiner noted back pain but no reports of flare-ups. Range of motion examination showed forward flexion to 90 degrees but limited range of motion for extension and right and left lateral flexion. The VA examiner noted functional loss from less movement than normal, weakened movement, and pain on movement. Although the Veteran asserts that the May 2013 VA examiner did not examine his back, the May 2013 VA examination report contains detailed range of motion findings. Moreover, the Veteran underwent additional VA examination a year later showing further limitation of motion and his rating is based on the additional limitation of motion shown in the later examinations. The Veteran underwent additional VA examination in May 2014. The May 2014 VA examiner noted the Veteran’s reports of back pain. Range of motion testing showed flexion limited to 30 degrees. The Veteran reported flare-ups with increased physical activity which manifest as increased pain and decreased flexion by 20-25 percent. The VA examiner noted that there was no ankylosis of the spine. The July 2018 VA examiner noted the Veteran’s reports of constant flare-ups with difficulty bending. The Veteran reported that he was experiencing a flare-up at the time of the examination. The VA examiner noted pain on examination causing functional loss. The VA examiner noted impaired bending, as forward flexion was limited to 30 degrees. The VA examiner opined that pain, weakness, and lack of endurance significantly limited functional ability with flare-ups resulting in range of motion limited to 30 degrees flexion. The VA examiner noted bent over posture and voluntary guarding secondary to pain. The VA examiner noted that there was no ankylosis of the spine. The Veteran’s VA treatment records, private treatment records, and SSA disability records show muscle spasms, pain, flare-ups, and limitation of motion. A September 2008 private examination in the Veteran’s SSA records shows forward flexion limited to less than 20 degrees. The Board finds that the preponderance of the evidence is against a rating in excess of 40 percent for lumbar spine disability. The Veteran is in receipt of the highest schedular rating for limitation of motion throughout the appeal period. A 40 percent rating even contemplates favorable ankylosis of the lumbar spine. The Board acknowledges the Veteran’s lay reports of symptoms and that there was functional loss due to pain, spasms, guarding, weakened movement, lack of endurance, pain on movement, and pain during flare-ups. However, even considering the Veteran’s lay reports of symptoms and noted functional loss, the degree of additional limitation reflected by the Veteran’s statements would not result in symptoms more nearly approximating unfavorable ankylosis of the entire thoracolumbar spine. The Veteran’s VA examinations and his reports still show some range of motion. His range of motion was limited to at worst 20 degrees during VA examination and he reported at that time, in June 2006, that the severity of his back disability was constant. A September 2008 private examiner noted flexion limited to less than 20 degrees. During the May 2014 VA examination, the Veteran showed flexion to 30 degrees and reported that flare-ups decreased his flexion by 20-25 percent. The Veteran’s most recent VA examination in July 2018 was conducted during a flare-up and still showed flexion to 30 degrees. VA treatment records show limitation of motion but do not show ankylosis. Accordingly, even though the lay and medical evidence shows the Veteran’s range of motion is significantly limited, the Veteran still has some range of motion. The May 2014 and July 2018 VA examiners specifically noted that the Veteran does not experience ankylosis of the spine. Accordingly, the preponderance of the evidence is against a finding of unfavorable ankylosis of the entire thoracolumbar spine. Consideration has also been given to assigning a rating under the Formula for Rating Intervertebral Disc Syndrome (IVDS) Based on Incapacitating Episodes. However, the evidence of record is against a finding that the Veteran was ever prescribed bed rest by a physician for a duration that meets the criteria for a higher rating. See 38 C.F.R. § 4.71a, Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes. The June 2006 and September 2011 VA examiners noted no incapacitating episodes. The May 2013, May 2014, and July 2018 VA examiners noted that the Veteran did not have IVDS. As to neurological impairment, the Veteran’s claim for service connection for bilateral lower extremity radiculopathy as secondary to his lumbar spine disability is granted in this decision and a rating will be assigned by the Regional Office. For the foregoing reasons, the preponderance of the evidence is against the Veteran’s claim for a rating in excess of 40 percent for lumbar spine disability. In denying such a rating, the Board finds the benefit of the doubt doctrine is not applicable. 38 U.S.C. § 5107; 38 C.F.R. §§ 4.3, 4.7. Service Connection Generally, service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). In order to establish entitlement to service connection for any disability on a direct basis, the record must contain competent evidence of (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Service connection may be established on a secondary basis for a disability which is proximately due to or the result of service-connected disease or injury. 38 C.F.R. § 3.310(a). Establishing service connection on a secondary basis requires evidence showing that a current disability exists and that the disability was caused by or aggravated by a service-connected disability. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49 (1990). 6. Entitlement to service connection for right lower extremity radiculopathy is granted. 7. Entitlement to service connection for left lower extremity radiculopathy is granted. The Veteran seeks service connection for bilateral lower extremity neuropathy as secondary to his service-connected lumbar spine disability. The Veteran has a diagnosis of lumbar radiculopathy. See March 2019 VA Treatment Record. A December 2017 private examiner noted the Veteran’s lower extremity radiculopathy and peripheral neuropathy of the bilateral lower extremities and opined that the Veteran’s bilateral lower extremity pain and numbness is at least as likely as not caused by his lumbar spine disability. The examiner explained that the Veteran has historically complained of radicular symptoms and that the September 2011 VA back examiner noted lower extremity pain, paresthesias, and numbness associated with sciatic nerve impairment as a result of the Veteran’s lumbosacral degeneration. The examiner explained that while the Veteran’s diabetes plays a role in exacerbating his neurological symptoms, it cannot be ruled out that the Veteran’s lumbosacral complications played a primary role in the onset and aggravation of his lower extremities pain and numbness. The examiner noted that the Veteran complained of radicular symptoms in the context of his lumbar spine treatment long before his diabetes diagnosis. The examiner explained that the Veteran’s bilateral lower extremities neurological impairment cannot be attributed to diabetes alone. The December 2017 private opinion is in accord with the evidence in the Veteran’s claims file. The June 2006 VA back examination notes positive straight leg raising tests with diminished sensation of the right leg and the September 2011 VA examination notes radicular symptoms. More recently, a March 2019 VA treatment record shows positive straight leg raising tests bilaterally with a diagnosis of lumbar radiculopathy. The Board notes that a March 2016 VA examiner opined that the Veteran’s foot numbness is classic for diabetic peripheral neuropathy and that the Veteran has been diagnosed with bilateral diabetic peripheral neuropathy. The VA examiner opined that the Veteran’s foot numbness was not due to a service-connected condition. However, the VA examiner was specifically opining as to whether the Veteran’s foot numbness was the result of his service-connected right hammer toe disability. The VA examiner did not specifically address whether the Veteran’s bilateral lower extremity symptoms were caused by or aggravated by his lumbar spine disability. Moreover, the December 2017 private examiner considered the VA opinion and explained that while the Veteran’s diabetes contributes to his neurological symptoms, it is not the sole cause of such symptoms. The Board notes that a July 2018 VA back examiner noted no radicular symptoms and explained that the Veteran’s bilateral foot numbness in a stocking distribution combined with his symmetric lower extremities absent deep tendon reflexes is consistent with diabetic peripheral neuropathy. However, the July 2018 VA examiner did not address the December 2017 private nexus opinion. Viewing the evidence as a whole, and in the light most favorable to the Veteran, the Board finds the December 2017 private opinion persuasive. The private opinion is based on a review of the record, acknowledges the role the Veteran’s diabetes plays in his lower extremity neurological impairment, and provides a rationale for the opinion that the Veteran’s lumbar spine disability causes his lower extremity pain and numbness. Viewing the evidence as a whole and resolving doubt in favor of the Veteran, service connection for right and left lower extremity radiculopathy is warranted as secondary to service-connected lumbar spine disability. Although the Veteran filed a claim for service connection for a right leg disability separate from his claim for lower extremity neuropathy, it is clear from the Veteran’s statements and other evidence in the claims file that the Veteran’s claim for right leg disability is a claim for right lower extremity neuropathy. See, e.g., September 2011 VA Examination Report (Veteran reporting right leg radiculopathy and right knee, ankle, and foot disabilities; no other leg conditions reported). The Veteran is already service connected for his right ankle and right foot hammer toe disability and his claims for service connection for a right knee and right foot disability are remanded separately. Accordingly, the decision granting service connection for right lower extremity radiculopathy includes a grant of the Veteran’s claim for service connection for a right leg disability. The Board has therefore combined the claims. 8. Entitlement to service connection for hepatitis C is denied. The Veteran seeks service connection for hepatitis C. The question for the Board is whether the Veteran has a current disability that began during active duty or ACDUTRA or is the result of a disease or injury in active duty or ACDUTRA. The Board concludes that, while the Veteran has been treated for hepatitis C, the preponderance of the evidence weighs against finding that the Veteran’s hepatitis C disability began during active duty or ACDUTRA or is the result of a disease or injury in active duty or ACDUTRA. The Veteran’s service treatment records do not show a hepatitis C diagnosis and the Veteran has not asserted that his hepatitis C disability began during service. VA treatment records show the Veteran was not positive for hepatitis C until September 2011, decades after his separation from service. See August 2012 VA Treatment Record (noting Veteran was HCV PCR positive as of September 2011). In August 2012 VA treatment, the Veteran denied a history of overt jaundice or hepatitis symptoms. The August 2012 VA treatment record notes risk factors for hepatitis C applicable to the Veteran, including drug and alcohol use, homelessness, body piercing, and housekeeping in a dialysis unit. No risk factors relating to service were noted. The Veteran has not asserted a connection between his hepatitis C and service and the claims file, including the Veteran’s VA treatment records, does not show such a connection. The Board notes that the Veteran was not afforded a VA examination nor was opinion obtained for his hepatitis C condition. However, examination is not warranted as the duty to assist has not been triggered. See McLendon v. Nicholson, 20 Vet. App. 79 (2006); 38 C.F.R. § 3.159(c)(4). Although McLendon sets a low bar, that bar has not been met here as there is no indication of a link between the Veteran’s condition and his service. Although the Veteran generally seeks service connection for hepatitis C, he has not asserted a specific connection to service. Although the Veteran believes that his hepatitis C disability is related to service, the Veteran in this case is not competent to provide a nexus opinion regarding this issue as it is medically complex. Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007); see also Kahana v. Shinseki, 24. Vet. App. 428 (2011). As the preponderance of the evidence is against the claim, the Veteran’s claim for service connection for hepatitis C is denied. REASONS FOR REMAND 1. Entitlement to service connection for bilateral foot disability (to include left toe disability) is remanded. A May 2014 VA examiner opined that the Veteran’s pes planus and hammer toes are less likely than not related to service. The VA examiner explained that the service treatment records do not contain documentation of such problems. The VA examiner further explained that hammer toes are most often due to poorly fitting shoes and that pes planus is usually due to local foot injuries or prolonged foot stressors. However, the VA examiner did not address the Veteran’s contention that his foot conditions are due to walking, running, and exercise in service. The Veteran reported marching long distances (20 miles) carrying a heavy backpack (70 pounds) during service. In March 2016, the Veteran asserted that his foot conditions are due to prolonged marching and standing in boots during service. A February 2020 VA medical opinion provider also opined that the Veteran’s foot diagnoses are less likely than not caused by service. However, the VA opinion provider also did not address the Veteran’s contention that his foot conditions are related to physical activity and wearing boots during service. Accordingly, remand is warranted to obtain additional VA medical opinion. The Veteran also contends that his service-connected right ankle’s limited motion and pain caused or exacerbated his foot condition. The Veteran’s claims file contains VA medical opinions regarding whether the Veteran’s bilateral foot disability is caused by or aggravated by his service-connected right ankle disability. However, the VA medical opinions in the claims file are not adequate. The September 2011 VA examiner opined on causation but not aggravation. The June 2013 VA examiner did not provide an opinion on the Veteran’s hallux valgus and bilateral pes planus diagnoses. A May 2014 VA examiner opined that the Veteran’s hammer toes and pes planus are less likely as not caused by or permanently aggravated by an altered gait due to his right knee disability. The VA examiner explained that the right ankle showed full strength and range of motion, that there was no altered gait during examination, and that there was no indication that the Veteran’s hammer toes and pes planus were due to a chronic ankle condition. In a November 2015 addendum, the May 2014 VA examiner noted that submitted Mayo clinic materials did not change the earlier opinion. The VA examiner did not opine as to the Veteran’s earlier diagnosed hallux valgus. A February 2020 VA medical opinion provider also opined that the Veteran’s bilateral feet diagnoses (as shown by x-ray) are less likely than not permanently aggravated beyond their natural progression by the Veteran’s service-connected right ankle disability. The VA medical opinion provider explained that there was no objective medical record evidence to indicate that the Veteran’s right ankle injury had not resolved without residual as no right ankle pain or condition was listed in the chronic problem list and therefore there could be no permanent aggravation beyond the natural progression relationship. However, secondary service connection is available for any incremental increase in disability in non-service-connected disabilities resulting from service-connected disabilities regardless of its permanence. See Ward v. Wilkie, 31 Vet. App. 233, 240-41 (2019). The Veteran asserts that his ankle pain and limited motion exacerbated his bilateral foot conditions. A June 2006 VA ankle examination shows limitation of motion and pain with standing and walking. The Veteran’s VA treatment records during the appeal period note ankle pain and giving out. See, e.g., January 2008, March 2010 VA Treatment Records. Accordingly, remand is appropriate to obtain additional VA medical opinion. 2. Entitlement to service connection for right knee disability is remanded. 3. Entitlement to service connection for left knee disability is remanded. In a May 2013 opinion, a VA examiner opined that the Veteran’s chondromalacia of the knees is less likely than not related to service. The VA examiner explained that review of the Veteran’s service treatment records failed to show a diagnosis consistent with chondromalacia of the knees. However, the VA examiner failed to explain why the Veteran’s current knee condition was not the result of in-service injuries and symptoms. A September 1981 service treatment record shows the Veteran fell down several steps and reported right knee pain and had an abrasion. A March 1983 service treatment record shows the Veteran reported left knee pain following parade practice. The Veteran cited online materials explaining that contributory causes to chondromalacia include increased stress on the patella and activities that cause the knee to be flexed against pressure. In addition, the May 2013 VA examiner noted that the Veteran did not have arthritis but 2006 VA x-rays show bilateral degenerative joint disease, as noted in the May 2014 VA examination report. Accordingly, remand is appropriate to obtain additional VA medical opinion regarding whether the Veteran’s current knee disability is related to service. In an August 2013 opinion, a VA examiner opined that the Veteran’s knees are not at least as likely as not aggravated beyond their natural progression by his service-connected right ankle disability. The VA examiner noted that review of medical literature fails to find that a condition of one joint may induce or aggravate beyond its natural progression a condition in another joint. The VA examiner further explained that the Veteran’s knee conditions are more likely than not due to the effects of aging, musculoskeletal deconditioning, and genetic propensity. In a December 2013 Informal Hearing Presentation (IHP), the Veteran argued that the August 2013 opinion was inadequate as the examiner’s rationale was broad without consideration of the Veteran’s specific condition and the location of the joints affected. The Veteran argued that Mayo clinic materials referenced in the IHP supported a link between a foot or ankle injury and knee conditions. Following a February 2014 Board remand, additional VA medical opinion was obtained. In May 2014, the VA examiner opined that the Veteran’s knee condition was less likely caused or permanently worsened beyond the natural progression by an altered gait due to the Veteran’s service-connected right ankle. The examiner noted that there were no studies linking knee osteoarthritis or patellofemoral syndrome with the ankle. The VA examiner also noted that the ankle was unremarkable on examination and the Veteran had normal physical aging of his knees. In a January 2015 addendum, the VA examiner opined that the Mayo clinic article cited does not change the opinion provided – that the Veteran’s knee condition is less likely than not caused or permanently worsened beyond the natural progression by his right ankle. The VA examiner noted that the Veteran’s knee and right ankle conditions are mild and the Veteran’s knee condition is due to normal aging. However, secondary service connection is available for any incremental increase in disability in non-service-connected disabilities resulting from service-connected disabilities regardless of its permanence. See Ward v. Wilkie, 31 Vet. App. 233, 240-41 (2019). The Veteran asserts that his ankle pain and limited motion place more stress on his knees and that his ankle instability causes strain on his knees. The Veteran also asserts that his foot pain places stress on his knees. The VA medical opinions provided do not address whether the Veteran’s service-connected right foot hammer toe disability caused or aggravated his knee conditions. For the above reasons, remand is appropriate to obtain additional VA medical opinion. 4. Entitlement to service connection for tinnitus is remanded. 5. Entitlement to service connection for bilateral hearing loss is remanded. Remand of the Veteran’s claims for service connection for tinnitus and bilateral hearing loss is warranted to obtain VA medical opinion. The Veteran reported ringing in his ears and gradual hearing loss since in-service noise exposure from guns and machinery. VA treatment records note a mild to severe hearing loss for the right ear and a normal to mild hearing loss for the left ear. See July 2007 VA Treatment Record. The Veteran’s MOS during active duty was light wheel vehicle power generation mechanic which has a high probability of hazardous noise exposure. The Veteran’s MOS during ACDUTRA was avionics communications equipment repairer which also has a high probability of hazardous noise exposure. Accordingly, remand is warranted to obtain VA medical opinion regarding whether the Veteran’s tinnitus and hearing loss had an onset in service or are related to service. In addition, remand is necessary to obtain outstanding records. The Veteran’s VA treatment records show July 18, 2007 and September 13, 2007 audiograms were taken and recorded in the Veteran’s medical file (CPRS) but these audiograms are not part of the Veteran’s claims file. Accordingly, remand is warranted to obtain such records. 6. Entitlement to service connection for acquired psychiatric disorder, to include PTSD, bipolar disorder, and adjustment disorder, is remanded. Review of the claims file shows that there are outstanding psychiatric treatment records. VA treatment records note that the Veteran was treated for his psychiatric disability in Dallas County Jail from March 2004 to August 2004, where he was provided psychiatric diagnoses and medications. See February 2005, December 2004 VA Treatment Records. Such treatment records are not in the Veteran’s claims file and it does not appear that any efforts were made to obtain them. Accordingly, remand is warranted to obtain the outstanding treatment records. The Veteran has been diagnosed with a psychiatric disability and reports that he witnessed some distressing things in service and has nightmares about service. See, e.g., January 2006, March 2019 VA Treatment Records. In addition, VA treatment records suggest a potential connection between the Veteran’s psychiatric disability and his service-connected lumbar spine disability. See, e.g, May 2013 VA Treatment Record (noting Veteran’s psychiatric illness is complicated by psychosocial stressors and medical illness); June 2013 VA Treatment Record (noting ongoing monitoring of psychiatric illness in the setting of complicating medical disorders); June 2013 VA Treatment Record (noting Veteran’s anxiety related to not having his morphine prescription for his back). Accordingly, while this matter is on remand, VA medical opinion should be obtained regarding whether the Veteran’s psychiatric disability is related to service or secondary to his service-connected lumbar spine disability. 7. Entitlement to service connection for right shoulder disability is remanded. 8. Entitlement to service connection for left shoulder disability is remanded. The Veteran has diagnoses for bilateral shoulder disability and reports that he has had shoulder pain since service. The Veteran’s service treatment records show reports of shoulder pain. See July 1981, September 1981, and January 1987 STRs. In addition, the Veteran has reported that his service-connected right ankle pain caused a fall that resulted in shoulder problems. See, e.g., January 2015 VA Treatment Records. Accordingly, remand is appropriate to obtain VA medical opinion regarding whether the Veteran’s shoulder disability is related to service or secondary to his service-connected right ankle disability. 9. Entitlement to service connection for hypertension is remanded. The Veteran has a diagnosis of hypertension. An April 2006 VA treatment record shows the Veteran’s report that he experiences elevated blood pressure with occasions of uncontrolled pain and contains a notation that better pain control will hopefully help with his blood pressure. During the April 2006 visit, the Veteran complained of back and ankle pain. A December 2009 VA treatment record notes that the Veteran’s blood pressure is high but that the Veteran reported that he was in significant pain. Accordingly, remand is warranted for VA medical opinion regarding whether the Veteran’s hypertension is caused by or aggravated by pain from to the Veteran’s service-connected disabilities. 10. Entitlement to service connection for stomach disability is remanded. The Veteran seeks service connection for a stomach disability. SSA records and VA treatment records show complaints of upset stomach related to medications taken for the Veteran’s service-connected lumbar spine disability. The Veteran’s service treatment records also contain complaints of stomach upset. Accordingly, remand is warranted for VA medical opinion regarding whether the Veteran has a stomach disability related to service or caused by or aggravated by his service-connected lumbar spine disability. 11. Entitlement to service connection for sleep disability is remanded. The Veteran seeks service connection for a sleep disability and VA treatment records show notations that the Veteran’s back pain is causing problems with sleep. Accordingly, remand is warranted for VA medical opinion regarding whether the Veteran has a sleep disability caused by or aggravated by his service-connected lumbar spine disability. 12. Entitlement to service connection for diabetes mellitus is remanded. 13. Entitlement to service connection for right upper extremity neuropathy is remanded. 14. Entitlement to service connection for left upper extremity neuropathy is remanded. 15. Entitlement to service connection for right hand disability is remanded. As to the Veteran’s claim for service connection for diabetes, VA treatment records note that the Veteran’s medication for his psychiatric disorder has the potential to have caused his diabetes originally or worsened control of it. See, e.g., May 2013 VA Treatment Record. The Veteran’s claim for service connection for diabetes is therefore intertwined with his claim for service connection for a psychiatric disorder and should be remanded. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991). As to the Veteran’s claims for right hand disability and upper extremity neuropathy, VA treatment records show hand pain, numbness, and weakness, and diminished reflexes and pain in the bilateral upper extremities. VA treatment records show diagnoses of neuropathy non-specific and diabetic peripheral neuropathy. As the Veteran’s diabetes may play a role in the Veteran’s right hand and upper extremity neurological conditions, these claims are intertwined with the diabetes claim and should be remanded. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991). 16. Entitlement to an initial rating in excess of 10 percent for right foot hammer toe disability is remanded. The Veteran’s claim for a higher rating for his right foot hammer toe disability is intertwined with the development being conducted for his claim for service connection for bilateral foot disability, including clarification on the pes cavus diagnosis. Accordingly, the rating claim is remanded. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991). 17. Entitlement to a TDIU is remanded. With the above grant of service connection for bilateral lower extremity radiculopathy, the Veteran’s service-connected disability picture has changed. The Regional Office should reevaluate the TDIU issue prior to Board consideration. In addition, the claim for TDIU is intertwined with the claim for a higher rating for right foot hammer toe disability which is being remanded. The issue of TDIU is intertwined with the ratings assigned to the Veteran’s now service-connected bilateral lower extremity radiculopathy and the rating for his right foot hammer toe disability and therefore should be remanded. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991). The matters are REMANDED for the following action: 1. Take all appropriate actions to obtain the Veteran’s psychiatric treatment records from Dallas County Jail from March 2004 to August 2004. 2. After securing any necessary authorization, obtain any private treatment records as the Veteran may identify relevant to his claims. If the Veteran provides a signed authorization form, make two requests for the authorized records unless it is clear after the first request that a second request would be futile. 3. Obtain any additional VA treatment records, to include VA treatment records from February 2020 to the present. Associate with the claims file all potentially relevant documents scanned into Vista Imaging or CPRS but not associated with the Veteran’s claims file, including the July 18, 2007 and September 13, 2007 audiograms. 4. After obtaining outstanding records to the extent possible, ask the appropriate examiner to review the Veteran’s file. The necessity of an in-person examination is left to the discretion of the examiner. The examiner should identify all foot disability (except the Veteran’s already service-connected right foot hammer toe disability) during the claims period, even if resolved. The examiner should address the hallux valgus disability identified by the September 2011 VA examiner and the pes cavus diagnosis identified in an August 2017 VA treatment record. For each disability, the examiner should opine regarding whether it is at least as likely as not (a 50 percent or greater probability) that the disability: (a) is the result of a disease or injury in active duty or ACDUTRA; or (b) is caused or aggravated by the Veteran’s service-connected right ankle disability. Note that aggravation means any incremental increase in disability in non-service-connected disabilities (i.e., any additional impairment of earning capacity) resulting from service-connected condition. The examiner should consider all medical and lay evidence of record, including the June 1981 and January 1987 STRs noting toe and foot complaints, the Veteran’s report of marching long distances (20 miles) carrying a heavy backpack (70 pounds) during service, the Veteran’s report of prolonged marching and standing in boots during service, the Veteran’s contention that his foot conditions are due to walking, running, and exercise in service, the May 2014 VA examiner’s notation that hammer toes occur due to poorly fitting shoes, the May 2014 VA examiner’s notation that pes planus is usually due to prolonged foot stressors, the Veteran’s contention that his ankle pain and limited motion exacerbated his bilateral foot conditions, the June 2006 VA ankle examination showing limitation of motion and pain with standing and walking, and VA treatment records noting ankle pain and giving out. The examiner is asked to explain the reasons behind any opinions expressed. The examiner is reminded that the term “as likely as not” does not mean “within the realm of medical possibility,” but rather that the evidence of record is so evenly divided that, in the examiner’s expert opinion, it is as medically sound to find in favor of the proposition as it is to find against it. 5. After obtaining outstanding records to the extent possible, ask the appropriate examiner to review the Veteran’s file. The necessity of an in-person examination is left to the discretion of the examiner. The examiner should identify all right and left knee disability during the claims period. For each disability, the examiner should opine regarding whether it is at least as likely as not (a 50 percent or greater probability) that the disability: (a) is the result of a disease or injury in active duty or ACDUTRA; or (b) is caused or aggravated by the Veteran’s service-connected right ankle or right hammer toe disability. Note that aggravation means any incremental increase in disability in non-service-connected disabilities (i.e., any additional impairment of earning capacity) resulting from service-connected condition. The examiner should consider all medical and lay evidence of record, including the September 1981 service treatment record showing the Veteran fell down several steps and reported right knee pain and had an abrasion, the March 1983 service treatment record showing the Veteran reported left knee pain following parade practice, the online materials cited in the Veteran’s December 2013 Informal Hearing Presentation regarding contributory causes to chondromalacia, the 2006 VA diagnosis of bilateral degenerative joint disease, the Mayo materials cited in the Veteran’s December 2013 Informal Hearing Presentation, the Veteran’s contentions that his ankle and foot pain and ankle limited motion place more stress on his knees and that his ankle instability causes strain on his knees, the June 2006 VA ankle examination showing limitation of motion and pain with standing and walking, and VA treatment records noting ankle pain and giving out. The examiner is asked to explain the reasons behind any opinions expressed. The examiner is reminded that the term “as likely as not” does not mean “within the realm of medical possibility,” but rather that the evidence of record is so evenly divided that, in the examiner’s expert opinion, it is as medically sound to find in favor of the proposition as it is to find against it. 6. After obtaining outstanding records to the extent possible, ask the appropriate examiner to review the Veteran’s file. The necessity of an in-person examination is left to the discretion of the examiner. If the records or examination show hearing loss meeting VA standards, the examiner should opine regarding whether it is at least as likely as not (a 50 percent or greater probability) that the Veteran’s hearing loss began during active duty or ACDUTRA or is the result of a disease or injury in active duty or ACDUTRA, to include the Veteran’s in-service hazardous noise exposure. The examiner should opine regarding whether it is at least as likely as not (a 50 percent or greater probability) that the Veteran’s tinnitus began during active duty or ACDUTRA or is the result of a disease or injury in active duty or ACDUTRA, to include the Veteran’s in-service hazardous noise exposure. The examiner should consider all medical and lay evidence of record, including the Veteran’s report that his tinnitus and gradual hearing loss began in active duty following noise exposure from guns and machinery without use of hearing protection, the Veteran’s denial of civilian occupational and recreational noise exposure, the June 1981 STR noting right ear problems, and the April 1987 STR for sinus congestion potentially noting tinnitus. The examiner is asked to explain the reasons behind any opinions expressed. The examiner is reminded that the term “as likely as not” does not mean “within the realm of medical possibility,” but rather that the evidence of record is so evenly divided that, in the examiner’s expert opinion, it is as medically sound to find in favor of the proposition as it is to find against it. 7. After obtaining outstanding records to the extent possible, ask the appropriate examiner to review the Veteran’s file. The necessity of an in-person examination is left to the discretion of the examiner. The examiner should identify all acquired psychiatric disability during the claims period. The examiner should address the Veteran’s VA treatment diagnoses of PTSD, bipolar disorder, and adjustment disorder. For each disability, the examiner should opine regarding whether it is at least as likely as not (a 50 percent or greater probability) that the disability: (a) had an onset in active duty or ACDUTRA or is otherwise the result of a disease or injury in active duty or ACDUTRA; or (b) is caused or aggravated by the Veteran’s service-connected lumbar spine disability. Note that aggravation means any incremental increase in disability in non-service-connected disabilities (i.e., any additional impairment of earning capacity) resulting from service-connected condition. The examiner should consider all medical and lay evidence of record, including the Veteran’s reports in January 2006 and March 2019 VA treatment records about distressing things in service and nightmares and the 2013 VA treatment records noting that the Veteran’s psychiatric illness is complicated by medical illness and that the Veteran experienced anxiety related to not having his back pain medications. The examiner is asked to explain the reasons behind any opinions expressed. The examiner is reminded that the term “as likely as not” does not mean “within the realm of medical possibility,” but rather that the evidence of record is so evenly divided that, in the examiner’s expert opinion, it is as medically sound to find in favor of the proposition as it is to find against it. 8. After obtaining outstanding records to the extent possible, ask the appropriate examiner to review the Veteran’s file. The necessity of an in-person examination is left to the discretion of the examiner. The examiner should identify all right and left shoulder disability during the claims period. For each disability, the examiner should opine regarding whether it is at least as likely as not (a 50 percent or greater probability) that the disability: (a) had an onset in active duty or ACDUTRA or is otherwise the result of a disease or injury in active duty or ACDUTRA; or (b) is caused or aggravated by the Veteran’s service-connected right ankle disability. If the examiner opines that the Veteran’s right but not left shoulder disability had an onset in service, is related to service, or is secondary to his right ankle disability, the examiner should also opine regarding whether it is at least as likely as not (a 50 percent or greater probability) that the Veteran’s left shoulder disability is caused or aggravated by the Veteran’s right shoulder disability. Note that aggravation means any incremental increase in disability in non-service-connected disabilities (i.e., any additional impairment of earning capacity) resulting from service-connected condition. The examiner should consider all medical and lay evidence of record, including the July 1981, September 1981, and January 1987 service treatment records noting shoulder pain, the Veteran’s report that his service-connected right ankle pain caused a 2014 fall that resulted in shoulder problems, and the Veteran’s report that compensating for his right shoulder problems resulted in problems with his left shoulder. The examiner is asked to explain the reasons behind any opinions expressed. The examiner is reminded that the term “as likely as not” does not mean “within the realm of medical possibility,” but rather that the evidence of record is so evenly divided that, in the examiner’s expert opinion, it is as medically sound to find in favor of the proposition as it is to find against it. 9. After obtaining outstanding records to the extent possible, ask the appropriate examiner to review the Veteran’s file. The necessity of an in-person examination is left to the discretion of the examiner. The examiner should opine regarding whether it is at least as likely as not (a 50 percent or greater probability) that the Veteran’s hypertension is caused or aggravated by his service-connected disabilities, to include his service-connected lumbar spine, bilateral lower extremity radiculopathy, right ankle, and right hammer toe disability. Note that aggravation means any incremental increase in disability in non-service-connected disabilities (i.e., any additional impairment of earning capacity) resulting from service-connected condition. The examiner should consider all medical and lay evidence of record, including the VA treatment records noting an increase in blood pressure with significant pain. The examiner is asked to explain the reasons behind any opinions expressed. The examiner is reminded that the term “as likely as not” does not mean “within the realm of medical possibility,” but rather that the evidence of record is so evenly divided that, in the examiner’s expert opinion, it is as medically sound to find in favor of the proposition as it is to find against it. 10. After obtaining outstanding records to the extent possible, ask the appropriate examiner to review the Veteran’s file. The necessity of an in-person examination is left to the discretion of the examiner. The examiner should identify any stomach diagnosis, or functional impairment from stomach pain, during the claims period. For any stomach diagnosis or functional impairment from stomach pain identified, the examiner should opine regarding whether it is at least as likely as not (a 50 percent or greater probability) that the Veteran’s disability: (a) began during active duty or ACDUTRA or is the result of a disease or injury in active duty or ACDUTRA; or (b) is caused or aggravated by the Veteran’s service-connected lumbar spine disability, to include medications for such disability. Note that aggravation means any incremental increase in disability in non-service-connected disabilities (i.e., any additional impairment of earning capacity) resulting from service-connected condition. The examiner should consider all medical and lay evidence of record, including the SSA records and VA treatment records showing complaints of upset stomach related to pain medications and the Veteran’s STRs noting complaints of stomach upset. The examiner is asked to explain the reasons behind any opinions expressed. The examiner is reminded that the term “as likely as not” does not mean “within the realm of medical possibility,” but rather that the evidence of record is so evenly divided that, in the examiner’s expert opinion, it is as medically sound to find in favor of the proposition as it is to find against it. 11. After obtaining outstanding records to the extent possible, ask the appropriate examiner to review the Veteran’s file. The necessity of an in-person examination is left to the discretion of the examiner. The examiner should opine whether the Veteran has a diagnosis of sleep disability within the claims period. For any sleep diagnosis, the examiner should opine regarding whether it is at least as likely as not (a 50 percent or greater probability) that the disability is caused or aggravated by the Veteran’s service-connected lumbar spine disability. Note that aggravation means any incremental increase in disability in non-service-connected disabilities (i.e., any additional impairment of earning capacity) resulting from service-connected condition. The examiner should consider all medical and lay evidence of record, including VA treatment records noting the Veteran’s back pain interferes with sleep. The examiner is asked to explain the reasons behind any opinions expressed. The examiner is reminded that the term “as likely as not” does not mean “within the realm of medical possibility,” but rather that the evidence of record is so evenly divided that, in the examiner’s expert opinion, it is as medically sound to find in favor of the proposition as it is to find against it. 12. After the above development, and any other development deemed necessary, to include any additional VA examinations, or any development relating to the Veteran’s diabetes, right hand disability, and upper extremity neuropathy claims deemed warranted, readjudicate the claims. Readjudicate the claim for TDIU with consideration of the now-service connected bilateral lower extremity radiculopathy disability. If the benefits sought on appeal remain denied, the Veteran and his attorney should be furnished a supplemental statement of the case and given the opportunity to respond thereto. Shereen M. Marcus Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board A. Purcell, 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.