Citation Nr: 21001645 Decision Date: 01/11/21 Archive Date: 01/11/21 DOCKET NO. 18-15 249 DATE: January 11, 2021 ORDER The appeal for claims of entitlement to service connection for residuals of contusion of the left and right hand; a right shoulder disability; a stomach condition, claimed as digestive disease; a right eye disability; and hypertension: for increased ratings for tinnitus; and, cervical spine, neck degenerative arthritis: for an extraschedular rating for bilateral hearing loss: and, for entitlement to a TDIU has been withdrawn. New and material evidence having been received; the claim of entitlement to service connection for low back pain is reopened. New and material evidence having been received, the claim of entitlement to service connection for pes planus is reopened. New and material evidence having been received, the claim of entitlement to service connection for residuals of a fractured nose is reopened. Entitlement to service connection for a lumbar spine disability with bilateral lower extremity radiculopathy is granted. Entitlement to service connection for pes planus (claimed as fallen arches, and bilateral foot injury) is granted. Entitlement to service connection for ocular migraine headache disability is granted. Entitlement to 30 percent rating for service-connected peripheral vestibular disorder is granted. Entitlement to a temporary total evaluation under 38 C.F.R. § 4.30 based on the need for convalescence following surgery on November 15, 2017, associated with the lumbar spine disability is denied. REMANDED Entitlement to service connection for residuals of a fractured nose is remanded. Entitlement to service connection for a left knee disability, to include as secondary to service-connected disabilities is remanded. Entitlement to service connection for a right knee disability, to include as secondary to service-connected disabilities is remanded. Entitlement to service connection for a right ankle disability (claimed as right ankle/foot), to include as secondary to service-connected disabilities is remanded. Entitlement to service connection for a left hip disability, to include as secondary to service-connected disabilities is remanded. Entitlement to service connection for a sleep disorder, to include sleep apnea is remanded. FINDINGS OF FACT 1. At his March 2020 hearing, prior to the promulgation of a decision in the appeal, the Board was notified by the appellant and his representative that a withdrawal of the appeal of the claims for entitlement to service connection for residuals of contusion of the left and right hand; right shoulder disability; stomach condition, claimed as digestive disease; right eye disability; hypertension; and for increased ratings for tinnitus; cervical spine, neck degenerative arthritis; and for an extra-schedular rating for bilateral hearing loss; and for entitlement to a TDIU was requested. 2. In a final decision issued in August 2009, the RO denied the Veteran’s claim of entitlement to service connection for low back pain. 3. Evidence added to the record since the August 2009 prior final denial is not cumulative or redundant of the evidence of record at the time of the prior decision and raises a possibility of substantiating the Veteran’s claim for service connection for low back pain. 4. In a final decision issued in August 2009, the RO denied the Veteran’s claim of entitlement to service connection for pes planus. 5. Evidence added to the record since the August 2009 prior final denial is not cumulative or redundant of the evidence of record at the time of the prior decision and raises a possibility of substantiating the Veteran’s claim for service connection for pes planus. 6. In a final decision issued in August 2009, the RO denied the Veteran’s claim of entitlement to service connection for residuals, fractured nose. 7. Evidence added to the record since the August 2009 prior final denial is not cumulative or redundant of the evidence of record at the time of the prior decision and raises a possibility of substantiating the Veteran’s claim for service connection for residuals, fractured nose. 8. The Veteran’s lumbar spine disability with bilateral lower extremity radiculopathy was incurred in service. 9. The Veteran’s bilateral pes planus is related to service, to include in-service injury. 10. The Veteran’s ocular migraine disability is related to service, to include injury from loud impulse noises. 11. The Veteran’s peripheral vestibular disorder is characterized by dizziness and occasional staggering. 12. The evidence does not show that following the November 15, 2017, L3-L4 transforaminal epidural injection the Veteran required at least one month of convalescence for now service-connected lumbar spine, experienced severe post-operative residuals, or involved immobilization by cast, without surgery, of one major joint or more for a service-connected disability. CONCLUSIONS OF LAW 1. The criteria for withdrawal of entitlement to service connection for residuals of contusion to the left and right hand; right shoulder disability; stomach condition, claimed as digestive disease; right eye disability; hypertension; and for increased ratings for tinnitus; cervical spine, neck degenerative arthritis; and for an extraschedular rating for bilateral hearing loss; and for entitlement to a TDIU by the appellant (or his authorized representative) have been met. 38 U.S.C. § 7105(West 2012); 38 C.F.R. § 19.55 (2019). 2. As new and material evidence has been received since the issuance of a final August 2009 rating decision, the criteria for reopening the claim of entitlement to service connection for low back pain have been met. 38 U.S.C. § 5108 (West 2012); 38 C.F.R. § 3.156 (2019). 3. As new and material evidence has been received since the issuance of a final August 2009 rating decision, the criteria for reopening the claim of entitlement to service connection for pes planus have been met. 38 U.S.C. § 5108 (West 2012); 38 C.F.R. § 3.156 (2019). 4. As new and material evidence has been received since the issuance of a final August 2009 rating decision, the criteria for reopening the claim of entitlement to service connection for residuals, fractured nose have been met. 38 U.S.C. § 5108 (West 2012); 38 C.F.R. § 3.156 (2019). 5. The criteria for service connection for a lumbar spine disability with bilateral lower extremity radiculopathy are met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. 6. The criteria for service connection for bilateral pes planus are met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. 7. The criteria for service connection for ocular migraine disability are met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. 8. The criteria for entitlement to an increased rating of 30 percent for service-connected peripheral vestibular disorder have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1 4.7, 4.87, Diagnostic Code 6204. 9. The criteria for entitlement to a temporary total disability rating based upon convalescence for surgical treatment for low back pain on November 15, 2017, have not been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 4.29, 4.30 (2019). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service in the United States Army from August 1981 to August 1984. See DD. Form 214, Certificate of Release or Discharge from Active Duty. The Veteran was afforded a March 2020 Board hearing before the undersigned, and a transcript is of record. See March 2020, Hearing Transcript. The claim for bilateral knee disability is separated into claims for the right and the left knee, as stated on the title page. Withdrawal 1. Whether the appeal for service connection for left hand and right hand; right shoulder; stomach condition; right eye; hypertension; and for increased ratings for tinnitus; cervical spine; and for an extraschedular rating for bilateral hearing loss; and for entitlement to a TDIU are withdrawn The Board may dismiss any appeal which fails to allege specific error of fact or law in the determination being appealed. 38 U.S.C. § 7105. An appeal may be withdrawn as to any or all issues involved in the appeal at any time before the Board promulgates a decision. 38 C.F.R. § 20.204. Withdrawal may be made by the appellant or by his authorized representative. 38 C.F.R. § 20.204. At the March 2020 Board hearing, the appellant withdrew from the appeal the claims for service connection for residuals of contusion, left hand and right hand; a right shoulder disability; a stomach condition, claimed as digestive disease; right eye disability; hypertension; and for increased ratings for tinnitus; cervical spine, neck degenerative arthritis; and for an extraschedular rating for bilateral hearing loss; and for entitlement to a TDIU. See March 2020, Hearing Transcript. The appellant’s withdrawal of the aforementioned issues at the hearing was clear and unambiguous. See 38 C.F.R. § 20.204(b); DeLisio v. Shinseki, 25 Vet. App. 45, 57 (2011). That is, the appellant, assisted by his representative, explicitly, unambiguously, and with a full understanding of the consequences, withdrew the issues named above. The undersigned VLJ clearly identified the withdrawn issues, and the appellant affirmed that he was requesting a withdrawal as to these issues. In addition, the VLJ discussed the consequences of withdrawing an appeal, and the appellant expressed that he fully understood those consequences. All of these facts are significant because the United States Court of Appeals for the Federal Circuit adopted the DeLisio rule that a withdrawal must be 1) explicit, 2) unambiguous, and 3) done with a full understanding of the consequences of such action by the appellant, with the subsequent Board dismissal decision including findings as to all three elements. Acree v. O’Rourke, 891 F.3d 1009, 1015 (Fed. Cir. 2018). The Board concludes all three elements were met here for the withdrawal, such that the withdrawal of the issues is valid. As such, there remain no allegations of errors of fact or law for appellate consideration for these issues. See 38 C.F.R. § 20.204(b). Accordingly, the Board does not have jurisdiction to review these issues, and they are dismissed. New and Material Evidence In order to reopen a claim which has been denied by a final decision, a claimant must present new and material evidence. 38 U.S.C. § 5108; 38 C.F.R. § 3.156(a). New and material evidence means evidence not previously submitted to agency decisionmakers; which relates, either by itself or when considered with previous evidence of record, to an unestablished fact necessary to substantiate the claim; which is neither cumulative nor redundant of the evidence of record at the time of the last prior final denial of the claim sought to be reopened, and which raises a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a). To reopen a previously disallowed claim, new and material evidence must be presented or secured since the last final disallowance of the claim on any basis, including on the basis that there was no new and material evidence to reopen the claim since a prior final disallowance. See Evans v. Brown, 9 Vet. App. 273, 285 (1996). For purposes of reopening a claim, the credibility of newly submitted evidence is generally presumed. See Justus v. Principi, 3 Vet. App. 510, 513 (1992) (in determining whether evidence is new and material, “credibility” of newly presented evidence is to be presumed unless evidence is inherently incredible or beyond competence of witness). The threshold for determining whether new and material evidence raises a reasonable possibility of substantiating a claim is “low.” In determining whether this threshold is met, VA should not limit its consideration to whether the newly submitted evidence relates specifically to the reason why the claim was last denied, but instead should ask whether the evidence could reasonably substantiate the claim were the claim to be reopened by triggering VA’s duty to assist. See Shade v. Shinseki, 24 Vet. App. 110, 117-18 (2010). 2. Whether there is new and material evidence to reopen a claim of service connection for low back pain A December 1984 rating decision by the RO denied the Veteran’s claim for service connection for low back disability because it was acute and transitory and left no residual. See December 1984, Rating Decision. This decision is final, as the Veteran did not appeal this decision. 38 U.S.C. § 7105(c) (West 2012); 38 C.F.R. §§ 3.104, 20.302, 20.1103. In February 2005, the Veteran requested to reopen his claim for service connection for a low back disability. See February 2005, VA 21-526 Veterans Application for Compensation or Pension. In an August 2005 rating decision, the RO denied the Veteran’s request to reopen his claim for service connection for a low back disability. See August 2005, Rating Decision-Narrative. This decision is final, as the Veteran did not appeal this decision. 38 U.S.C. § 7105(c) (West 2012); 38 C.F.R. §§ 3.104, 20.302, 20.1103. In June 2009, the Veteran submitted an application to reopen his claim for service connection for a low back disability. See June 2009, VA 119 Report of Contact. In an August 2009 rating decision, the RO denied the Veteran’s request to reopen his claim for service connection for a low back disability, noting that there was no new and material evidence, as the evidence did not show that the condition was diagnosed, chronic, and related to service. See August 2009, Rating Decision -Narrative. Although the Veteran attempted to appeal this decision, his notice of disagreement was not submitted by a recognized representative, and he was notified that his appeal was not accepted. See August 2010, NOD; see September 2010 Notification Letter. As such, the decision became final. 38 U.S.C. § 7105(c) (West 2012); 38 C.F.R. §§ 3.104, 20.302, 20.1103. In November 2013, the Veteran again submitted an application to reopen his claim for service connection for low back disability. See November 2013, VA 21-526EZ, Fully Developed Claim (Compensation). The evidence of record at the time of the most recent final prior denial in August 2009, included, inter alia, the Veteran’s service treatment records, a November 1984 VA examination report diagnosing chronic low back pain, and Veteran lay statements. See November 1984 VA Examination. The evidence submitted and obtained since the August 2009 final denial includes the Veteran’s lay statements, a March 2020 hearing transcript, and an April 2020 private positive nexus opinion. See April 2020, Dr. M. Rivero; see March 2020, Hearing Transcript. This evidence is both new and material sufficient to reopen the Veteran’s claim. The evidence is “new” as it had not been previously considered by VA, and it is “material” because it relates to unestablished facts necessary to substantiate the underlying service connection claim. Specifically, the April 2020 private opinion provides a statement that the Veteran’s low back disability is related to his service. As this evidence relates to an unestablished fact, a nexus between a current disability and service, reopening of the claim is in order. Shade, 24 Vet. App. 110. 3. Whether there is new and material evidence to reopen a claim of service connection for pes planus In a December 1984 rating decision, the RO denied service connection for pes planus finding it existed prior to service and was not aggravated during service beyond its natural progress. This decision is final, as the Veteran did not appeal this decision. 38 U.S.C. § 7105(c) (West 2012); 38 C.F.R. §§ 3.104, 20.302, 20.1103. In February 2005, the Veteran submitted a claim to reopen his claim for service connection for pes planus. See February 2005, VA 21-526 Veterans Application for Compensation or Pension. In an August 2005 rating decision, the RO denied the Veteran’s request to reopen his claim for service connection for pes planus. See August 2005, Rating Decision-Narrative. This decision is final, as the Veteran did not appeal this decision. 38 U.S.C. § 7105(c) (West 2012); 38 C.F.R. §§ 3.104, 20.302, 20.1103. In June 2009, the Veteran requested the VA reopen his claim for service connection for pes planus. See June 2009, VA 119 Report of Contact. In an August 2009 rating decision, the RO denied the Veteran’s request to reopen his claim, noting that there was no new and material evidence, as the evidence did not show that the condition was diagnosed, chronic and related to service. See August 2009, Rating Decision -Narrative. Although the Veteran attempted to appeal this decision, his notice of disagreement was not submitted by a recognized representative, and he was notified that his appeal was not accepted. See August 2010, NOD; see September 2010 Notification Letter. As such, the decision became final. 38 U.S.C. § 7105(c) (West 2012); 38 C.F.R. §§ 3.104, 20.302, 20.1103. In November 2013, the Veteran again submitted an application to reopen his claim for service connection for pes planus. See November 2013, VA 21-526EZ, Fully Developed Claim (Compensation). The evidence of record at the time of the most recent final prior denial in August 2009, included, inter alia, the Veteran’s service treatment records, a November 1984 VA examination with diagnosis of pes planus to the second degree, and lay statements. See November 1984 VA Examination. The evidence submitted and obtained since the August 2009 final denial includes the Veteran’s lay statements, a March 2020 hearing transcript, and an April 2020 private positive nexus opinion. See April 2020, Dr. M. Rivero; see March 2020, Hearing Transcript. Specifically, the Veteran has indicated that he did not experience pes planus prior to service, and that his symptoms began in basic training in service. This evidence is both new and material sufficient to reopen the Veteran’s claim. The evidence is “new” as it had not been previously considered by VA, and “material” because it relates to unestablished facts necessary to substantiate the underlying service connection claim. Specifically, the April 2020 private opinion reflects the Veteran’s pes planus disability is related to his service. As this evidence relates to an unestablished fact, a nexus between a current disability and service, reopening of the claim is in order. Shade, 24 Vet. App. 110. 4. Whether there is new and material evidence to reopen a claim of service connection for residuals of fractured nose In an August 2005 rating decision, the RO denied the Veteran’s claim for service connection for residuals of a fractured nose finding that although there was a contusion to the nose in service, there was no permanent residual of chronic disability subject to service connection shown by service treatment records or demonstrated by evidence following service. See August 2005, Rating Decision-Narrative. This decision is final, as the Veteran did not appeal this decision. 38 U.S.C. § 7105(c) (West 2012); 38 C.F.R. §§ 3.104, 20.302, 20.1103. In June 2009, the Veteran requested that VA reopen his claim for service connection for residuals of a fractured nose. See June 2009, VA 119 Report of Contact. In an August 2009 rating decision, the RO denied the Veteran’s request to reopen his claim, and the evidence there was not new and material evidence, as the evidence did not show that the condition was diagnosed, chronic and related to service. See August 2009, Rating Decision -Narrative. Although the Veteran attempted to appeal this decision, his notice of disagreement was not submitted by a recognized representative, and he was notified that his appeal was not accepted. See August 2010, NOD; see September 2010 Notification Letter. As such, the decision became final. 38 U.S.C. § 7105(c) (West 2012); 38 C.F.R. §§ 3.104, 20.302, 20.1103. In November 2013, the Veteran again submitted an application to reopen his claim for service connection for residuals of his fractured nose. See November 2013, VA 21-526EZ, Fully Developed Claim (Compensation). The evidence of record at the time of the most recent final prior denial in August 2009, included, inter alia, the Veteran’s service treatment records showing a contusion to the nose, and the Veteran’s lay statements. See March 1984 STR. The evidence submitted and obtained since the August 2009 final denial includes the Veteran’s lay statements, and a March 2020 hearing transcript. See March 2020, Hearing Transcript. Specifically, the Veteran and his wife have described how he has experienced a nasal wheezing that affects how he sounds when he talks, breathing difficulties, and spontaneous nose bleeds. This evidence is both new and material sufficient to reopen the Veteran’s claim. The evidence is “new” as it had not been previously considered by VA, and “material” because it relates to unestablished facts necessary to substantiate the underlying service connection claim. As this evidence of symptoms of a nasal disability, could reasonably substantiate the claim were the claim to be reopened by triggering VA’s duty to assist, reopening of the claim is in order. Shade, 24 Vet. App. 110. Service Connection Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. § 3.303. The three-element test for service connection requires evidence of: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the current disability and the in-service disease or injury. Shedden v. Principi, 381 F.3d 1163, 1166 -67 (Fed. Cir. 2004). Moreover, since arthritis is a chronic condition according to § 3.309(a), service connection may be established alternatively under § 3.303(b) if it was first noted during his service and he has experienced continuous symptoms associated with it ever since. Walker v. Shinseki, 708 F.3d 1331 (2013). The Veteran will be considered to have been in sound condition when examined, accepted and enrolled for service, except as to defects, infirmities, or disorders noted at entrance into service, or where clear and unmistakable (obvious or manifest) evidence demonstrates that (1) an injury or disease existed before acceptance and enrollment into service (2) and was not aggravated by such service. 38 U.S.C. § 1111; 38 C.F.R. § 3.304(b); Wagner v. Principi, 370 F.3d 1089, 1096 (Fed. Cir. 2004); Bagby v. Derwinski, 1 Vet. App. 225, 227 (1991). Only such conditions as are recorded in examination reports are to be considered as noted. 38 U.S.C. § 1111; 38 C.F.R. § 3.304(b). 5. Entitlement to service connection for a low back disability The Board concludes that the Veteran has a current lumbar disability that is related to in-service injury. 38 U.S.C. §§ 1110, 1131, 5107(b); Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009); 38 C.F.R. § 3.303(a). The Veteran has current diagnoses of the lumbar spine to include low back pain, diagnosed as intervertebral disc syndrome, lumbosacral strain, and degenerative osteoarthritis of the spine, and bilateral lower extremity radiculopathy. See April 2020, Dr. M. Rivero; see February 2016, VA Examination Back (Thoracolumbar Spine) Conditions DBQ. . There were in-service injuries to the back during service. Service treatment records show that the Veteran was seen for complaints of low back pain, and there were findings to include tenderness to palpation, tightness, reduced range of motion, and muscle spasms. See February 1983, STR. The Veteran has described hurting his back in service when he tried to push a Jeep out of the mud, and when that failed, he tried to lift the trailer attached to the Jeep out of the mud, resulting in back pain. See March 2020 Correspondence. Indeed, his wife submitted a statement corroborating the report that the Veteran experienced extreme pain after attempting to lift the Jeep during service, and the service treatment records include a notation referencing the Veteran’s attempt to lift the front end of a Jeep followed by back pain. See March 2020, Correspondence; see February 1983 STR. Additional service treatment records show that the Veteran continued to seek care for his back, and may have reinjured it lifting various objects. See August 1983 STR. Thus, the question becomes whether the current disability is related to service. The evidence in favor of the claim includes the April 2020 private opinion, wherein the doctor reviewed the Veteran’s claims file and noted the in-service low back pain and resulting treatment, as well as the VA treatment records since service showing chronic low back pain, with frequent flares, and consistent references to the in-service injury to the back by lifting a Jeep beginning the pain. See April 2020, Dr. M. Rivero. Accordingly, the examiner indicated that it was more likely than not that the Veteran’s low back pain, diagnosed as intervertebral disc syndrome, lumbosacral strain, and degenerative osteoarthritis of the spine were due to trauma from lifting the front end of a Jeep while on active duty with development of post traumatic DDD and degenerative facet joint disease. The examiner included an explanation that post-traumatic arthritis develops after an acute direct trauma to the joint and causes about twelve percent of all osteoarthritis cases Further, there is a February 2016 VA examination of the lumbar spine showing diagnoses of intervertebral disc syndrome and degenerative arthritis of the spine, with radiculopathy involving the sciatic nerve and affecting the bilateral lower extremities. See February 2016, VA Examination Back (Thoracolumbar Spine) Conditions DBQ. The examiner did not offer an etiological opinion. At his Board hearing the Veteran reported having severe sciatic nerve attacks since service. See March 2020, Hearing Transcript. Upon review of the record, the Board finds the probative evidence indicates that the Veteran’s current lumbar spine disability with bilateral lower extremity radiculopathy is related to service. Accordingly, the Board finds that service connection for lumbar spine disability with bilateral lower extremity radiculopathy is warranted. 6. Entitlement to service connection for pes planus (claimed as fallen arches, and bilateral foot injury) The Board concludes that the Veteran has a current pes planus disability that is related to in-service injury. 38 U.S.C. §§ 1110, 1131, 5107(b); Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009); 38 C.F.R. § 3.303(a). Although a previous rating decision indicated that the Veteran’s pes planus was a congenital condition that preexisted service, the Board notes that there is no notation of pes planus on the entrance examination, and there is not clear and unmistakable evidence that it preexisted service. See August 1981 Enlistment Examination, STR. As such, the Veteran is entitled to the presumption of soundness at entry to service. 38 U.S.C. § 1111; 38 C.F.R. § 3.304(b); Wagner v. Principi, 370 F.3d 1089, 1096 (Fed. Cir. 2004) The Veteran has current diagnoses of bilateral pes planus. See April 2020, Dr. M. Rivero. During service, the Veteran was seen for pain in his left foot and right toes after stepping in a hole while running. See September 1981, STR. In addition, he was treated for pain in his feet and tenderness to palpation of the plantar facia bilaterally. See January 1982 STR. He was later noted to have grade 2 pes planus and tenderness to palpation of the arches of his feet. See January 1982, STR. In March 1982, the Veteran reported a seven-month history of bilateral foot swelling, and there was tenderness to palpation and pain with dorsiflexion of the feet. See March 1982, STR. He was treated later that month for plantar fasciitis, and in October 1982 had custom orthotics to wear for his continued foot pain. See October 1982, STR. Even in October 1982 the Veteran reported that the Army caused his arches to fall in basic training. See October 1982, STR. Thus, the question becomes whether the current disability is related to service. The evidence in favor of the claim includes the April 2020 private opinion, wherein the doctor reviewed the Veteran’s claims file and noted in-service symptomatology and treatment regarding the feet, and opined that it was at least as likely as not that the Veteran’s bilateral pes planus was service connected (which the Board interprets as meaning related to service). See April 2020, Dr. M. Rivero. The examiner based her opinion on the application of her training, experience and professional qualifications in reviewing the Veteran’s claims folder. Upon review of the record, the Board finds the most probative evidence indicates that the Veteran’s current bilateral pes planus is related to service. Accordingly, the Board finds that service connection for bilateral pes planus is warranted. 7. Entitlement to service connection for headaches, to include as secondary to service-connected peripheral vestibular disorder The Board concludes that the Veteran has a current headache disability that is related to service, to include injury from the firing range with loud impulse noise exposure to weapons. 38 U.S.C. §§ 1110, 1131, 5107(b); Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009); 38 C.F.R. § 3.303(a). The Veteran has current diagnoses of ocular migraine headaches. See April 2020, Dr. M. Rivero. The Veteran reported that his headaches began in service, associated with exposure to the firing range with loud impulse noise followed by ringing in his ears. At that time the headaches were migraines, and in 2012 he had ocular headaches beginning around the eyes or associated with vision changes. The evidence against the claim includes an August 2017 VA examination report that indicates there was no documentation of migraines while in service, and diagnosis of migraines was not until 2013, many years after service, such that a nexus was not established. See August 2017, VA Medical Opinion – Disability Benefits Questionnaire. The examiner did not discuss the Veteran’s exposure to loud noises in service, or reports of headaches in and since service. There is also a November 2016 VA examination report wherein the Veteran reported that his headaches began after leaving the firing range in service, at which time his ringing in the ears also began. See November 2016, VA Examination Headaches (including Migraine Headaches) DBQ. The examiner also noted the Veteran had been diagnosed as having migraines behind the eye in 2012. An etiological opinion was not provided. The evidence in favor of the claim includes the April 2020 private opinion, wherein the doctor reviewed the Veteran’s claims file and noted the in-service noise exposure and Veteran’s reported headaches, and opined that it was at least as likely as not that the Veteran’s ocular migraines were service connected (which the Board interprets as meaning related to service). See April 2020, Dr. M. Rivero. The examiner based her opinion on the application of her training, experience and professional qualifications and review of the Veteran’s claims folder. Upon review of the record, the Board finds the evidence is at least in relative equipoise that the Veteran’s current ocular migraine disability is related to service. The Board resolves the benefit of the doubt in the Veteran’s favor, and grants service connection for ocular migraine headaches. See Wise v. Shinseki, 26 Vet. App. 517, 531 (2014) (“By requiring only an ‘approximate balance of positive and negative evidence’..., the nation, ‘in recognition of our debt to our veterans,’ has ‘taken upon itself the risk of error’ in awarding... benefits.”). Consequently, service connection for ocular migraine disability is warranted. Increased Rating Disability ratings are determined by evaluating the extent to which a veteran’s service-connected disability adversely affects his ability to function under the ordinary conditions of daily life, including employment, by comparing his symptomatology with the criteria set forth in the Schedule for Rating Disabilities (Rating Schedule). 38 U.S.C. § 1155; 38 C.F.R. §§ 4.1, 4.2, 4.10. If two evaluations are potentially applicable, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that evaluation; otherwise, the lower evaluation will be assigned. 38 C.F.R. § 4.7. The veteran’s entire history is to be considered when making disability evaluations. See generally 38 C.F.R. § 4.1; Schafrath v. Derwinski, 1 Vet. App. 589 (1995). “Staged” ratings are appropriate for any rating claim when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings. See Hart v. Mansfield, 21 Vet. App. 505 (2007). 8. Entitlement to a rating greater than 10 percent for service-connected peripheral vestibular disorder The Veteran’s migraine associated vertigo was service connected and granted a noncompensable rating effective November 18, 2013 in a May 2014 rating decision. See May 2014, Rating Decision- Narrative. Following a September 2016 appeal for an increased rating, an August 2017 rating decision increased his rating for peripheral vestibular disorder (PVD) (formerly migraine-associated vertigo) to 10 percent effective February 3, 2015; however, the Veteran appealed for an increased rating in September 2016. See August 2017, Rating Decision-Narrative; see September 2016, VA 21-526EZ, Fully Developed Claim (Compensation). Under Diagnostic Code 6204 a 10 percent rating contemplates occasional dizziness and the maximum schedular rating of 30 percent for dizziness and occasional staggering. A Note following Diagnostic Code 6204 provides: “Objective findings supporting the diagnosis of vestibular disequilibrium are required before a compensable rating can be assigned under this code.” 38 C.F.R. § 4.87, Diagnostic Code 6204. The term “staggering” is not defined in the rating schedule, but is generally defined as standing or proceeding unsteadily. See Webster’s New College Dictionary, 3rd ed., at 1099. The Board finds that a higher rating of 30 percent for the PVD is warranted. VA treatment notes show that the Veteran reported experiencing dizziness with positional changes. See November 2013, Tennessee Valley Health Care Service, received by CAPRI April 2020. An April 2014 VA examination considering the Veteran’s PVD indicated that the Veteran experienced attacks of vertigo and cerebellar gait more than once weekly lasting more than 24 hours; staggering more than once weekly lasting more than 24 hours; and vertigo also more than once weekly lasting more than 24 hours. See April 2014, Independent Medical Opinion (including Vestibular and Infectious Conditions) DBQ. In addition, private treatment records show that the Veteran was evaluated at a Balance Disorders Clinic and had an abnormal ocular VEMP examination showing electrophysiological evidence for PVD affecting the right utricle and or superior vestibular nerve. See undated, Vanderbilt University Medical Center Balance Disorders Clinic, received October 2017. There was also abnormal VNG examination showing uncompensated PVD affecting the right side, and electro-video-nystagmography report of optokinetic subsystem and spontaneous nystagmus abnormalities. See undated, Vanderbilt University Medical Center Balance Disorders Clinic, received October 2017 At his hearing, the Veteran reported that he experienced not only dizziness but also staggering. See March 2020, Hearing Transcript. The Veteran’s representative indicated that the Veteran had a June 2017 treatment note indicating that the Veteran experienced vertigo attacks affecting his cerebellar gait, and that this equated to staggering. The Veteran described experiencing severe bouts of dizziness several times a week, and having problems maintaining his balance when walking. He detailed an instance when he experienced dizziness at a Kentucky Fried Chicken and staggered and fell into the wall. The Veteran’s wife also reported witnessing the Veteran staggering, and described his actions as similar to symptoms of a stroke during his episodes. As noted above, the Veteran described symptoms of dizziness and staggering, and the medical records show that he experiences vertigo that affects his gait. Recent VA treatment records show that the Veteran experienced staggering. See April 2014, Independent Medical Opinion (including Vestibular and Infectious Conditions) DBQ. . The Veteran, and his wife, are competent to report his symptoms to include dizziness, staggering, and loss of balance. See Layno v. Brown, 6 Vet. App. 465 (1994). Lay testimony is competent to establish the presence of observable symptomatology, where the determination is not medical in nature and is capable of lay observation. Barr v. Nicholson, 21 Vet. App. 303 (2007). Given his credible complaints of dizziness, and falling at times with the abnormal VNG examination showing uncompensated PVD affecting the right side, and electro-video-nystagmography report of optokinetic subsystem and spontaneous nystagmus abnormalities which show objective findings of PVD, the Board finds that a rating of 30 percent under Diagnostic Code 6204 s warranted. Resolving reasonable doubt in the Veteran’s favor, the Board finds that the symptomatology for the PVD closely approximates that for dizziness and occasional staggering, warranting a 30 percent rating for the rating period on appeal. 38 C.F.R. § 4.124a. A 30 percent rating represents the maximum schedular rating available under the schedular criteria of Diagnostic Code 6204. Additionally, the Board finds no other applicable diagnostic codes that would afford the Veteran a higher disability rating. See Schafrath v. Derwinski, 1 Vet. App. 589 (1991). 9. Entitlement to a temporary total disability evaluation for non-service connected back disorder The Veteran asserts that he is entitled to a temporary total evaluation for convalescence following back surgery on November 15, 2017, for his lumbar spine disability. See December 2017, VA 21-526b, Veteran Supplemental Claim. A total disability rating (100 percent) will be assigned without regard to other provisions of the Rating Schedule when it is established by report at hospital discharge (regular discharge or release to non-bed care) or outpatient release that entitlement to a temporary total convalescence rating is warranted, effective from the date of hospital admission or outpatient treatment and continuing for a period of one, two, or three months from the first day of the month following such hospital discharge or outpatient release. 38 C.F.R. § 4.30. Entitlement to a temporary total convalescence rating is warranted if treatment of a service-connected disability results in: (1) surgery necessitating at least one month of post-operative convalescence; (2) surgery with severe post-operative residuals, such as incompletely healed surgical wounds, stumps of recent amputations, therapeutic immobilization of a one major joint or more, application of a body cast, the necessity for house confinement, or the necessity for continued use of a wheelchair or crutches (regular weight-bearing prohibited); or (3) immobilization by cast, without surgery, of one major joint or more. 38 C.F.R. § 4.30(a). This regulation only authorizes the assignment of a disability rating and payment of compensation for service-connected disabilities. The United States Court of Appeals for Veterans Claims (Court) has defined convalescence as “the stage of recovery following an attack of disease, a surgical operation, or an injury and recovery as the act of regaining or returning toward a normal or healthy state.” Felden v. West, 11 Vet. App. 427, 430 (1998). Here, the evidence shows that on November 15, 2017, the Veteran received a left L3-L4 transforaminal epidural injection, a procedure involving an injection of a steroid close to the lumbar spine to decrease swelling and discomfort. See November 2017, CAPRI. A notation was made indicating that there were no complications, and the Veteran was discharged the same day of the procedure. Indeed, even if the Veteran continued to experience pain of the lumbar spines, other than his general claim for the temporary total rating, he has not alleged and the record does not show complications following the lumbar epidural injection, and to the extent that treatment records from December indicate lumbar pain, there is no indication that the Veteran’s lumbar spine required house confinement or necessitated use of a wheelchair or crutches (prohibited weight bearing). Hence, to the extent the Veteran experienced post-surgical complications, they did not rise to the level to be considered “severe post-operative residuals,” as contemplated by 38 C.F.R. § 4.30. As such, there is no evidence that the Veteran underwent a surgical procedure that necessitated at least one month of post-operative convalescence or suffered from severe post-operative residuals, or was immobilized by cast. Although the Veteran has broadly claimed entitlement to a temporary total rating for convalescence, he has not provided any details regarding a convalescence, and severe post-operative residuals. Accordingly, the preponderance of the evidence is against the grant of a temporary total rating based upon convalescence and, as such, there is no doubt to be resolved and the Veteran’s claim for a temporary total rating for surgical procedure on November 15, 2017 of his now service-connected lumbar spine disability with bilateral lower extremity radiculopathies is denied. REASONS FOR REMAND A VA examination is warranted where (1) the record contains competent evidence that the claimant has a current disability or signs and symptoms of a current disability, (2) the record indicates that the disability or signs and symptoms of disability may be associated with active service, and (3) the record does not contain sufficient information to decide the claim. McLendon v. Nicholson, 20 Vet. App. 79 (2006). 1. Entitlement to service connection for residuals of a fractured nose The Veteran contends that he is entitled to service connection for residuals of a fractured nose. See November 2013, VA 21-526EZ, Fully Developed Claim (Compensation). A March 1984 service treatment record shows a nasal contusion with swollen, deformed nose, angling to the right, tender to the touch and with slight bleeding. See March 1984 STR. At his hearing, the Veteran explained that he had been hit across the nose in service while practicing training techniques. See March 2020, Hearing Transcript. VA treatment records from 2005 indicate that the Veteran reported having difficulty with stuffiness since a nasal fracture in the military. See March 2005, Austin VA Clinic, received April 2020. April 2005 imaging showed a chip fracture at the tip of the nasal bone, and there also appeared to be a fracture extending into the nasal sidewalls. See April 2005, Nasal Bones X-ray in CAPRI. In October 2011, the Veteran noted decreased breathing though his nose since the time of a nose injury in 2011. See Medical Treatment Records-Furnished by SSA, received June 2013 in CAPRI. A November 2011 private treatment record indicated that the Veteran had been assaulted at work in July as a prison guard, and was likely to have fractured his nose by his description and history. See Medical Treatment Records -Furnished by SSA, received June 2013 in CAPRI. At his March 2020 Board hearing, the Veteran and his wife described how he experienced a nasal wheezing that affects how he sounds when he talks, breathing difficulties, and spontaneous nose bleeds. See March 2020, Hearing Transcript. Accordingly, the Veteran’s statements and service treatment records suggest a nose injury in service, and he has current symptomatology of residuals of a fractured nose, however he has not yet received a VA examination to determine the nature and etiology of his claimed disability. As such, remand to obtain a VA examiner’s opinion is necessary. McLendon v. Nicholson, 20 Vet. App. 79 (2006). In addition, at his hearing, the Veteran contended that the residuals of fractured nose could be secondary to sleep apnea, which is also being remanded, and secondary theories of service connection should be considered by the examiner. 2. Entitlement to service connection for a left knee disability; 3. Entitlement to service connection for a right knee disability The Veteran contends that he has left and right knee disabilities related to service, or as secondary to service-connected disabilities. See November 2013, VA 21-526EZ, Fully Developed Claim (Compensation); see March 2020, Hearing Transcript. VA treatment records show that the Veteran has reported bilateral knee pain. See August 2017 Atlanta VAMC, received September 2020 in CAPRI. Private medical note indicates that the Veteran receives care for arthritis in his knees. See December 2019, Dr. S. Gbenie. In light of the current knee disabilities, and the grant herein of the lumbar spine disability, the Board finds VA examination to determine the nature and etiology of the Veteran’s claimed left and right knee disabilities, to include consideration of secondary service connection is necessary. McLendon v. Nicholson, 20 Vet. App. 79 (2006). 4. Entitlement to service connection for a right ankle disability The Veteran claims service connection for a right ankle condition. See September 2016, VA 21-526EZ, Fully Developed Claim (Compensation). Private treatment records show that the Veteran was treated for right ankle peroneal tendon tenolysis, lack of motion and experienced peristent right ankle pain. See April 2013 Medical Treatment-Records- Furnished by SSA, Tennessee Orthopaedic Alliance. Private medical note indicates that the Veteran receives care for arthritis in his ankles. See December 2019, Dr. S. Gbenie. Here, a VA examination is warranted to ascertain the nature and etiology of the Veteran’s right ankle disability, to include whether it is secondary to service-connected disabilities. McLendon v. Nicholson, 20 Vet. App. 79 (2006). 5. Entitlement to service connection for a left hip disability The Veteran contends that service connection is warranted for a left hip disability. See September 2016, VA 21-526EZ, Fully Developed Claim (Compensation). VA treatment notes the Veteran experienced pain down his left hip. See September 2017, Atlanta VAMC received January 2018 in CAPRI. VA treatment notes show that the Veteran had left hip X-rays that were essentially unremarkable, following a positive left hip scour test. See November 2017, Atlanta VAMC, received May 2019 in CAPRI; see November 2017 Atlanta VAMC, received August 2018 in CAPRI. Nevertheless, the Veteran reports left hip pain, and has had a positive scour test. The Veteran has contended that his hip problems are also secondary to service-connected disabilities. Considering VA treatment records showing symptoms of left hip problems and the grant of service connection for the lumbar spine disability herein, a VA examination is warranted. McLendon v. Nicholson, 20 Vet. App. 79 (2006). 6. Entitlement to service connection for a sleep disorder, to include sleep apnea The Veteran claims entitlement to service connection for a sleep disorder, to include sleep apnea, and to include as secondary to service-connected disabilities. See September 2016, VA 21-526EZ, Fully Developed Claim (Compensation). He reported that he developed severe sleep problems while in service, explaining that he spent periods of deployment for training when he was up all night without sleep. See March 2020 Correspondence. Specifically, he has indicated that it is secondary to residuals of a fractured nose. The record also suggests that it may be secondary to chronic pain from service-connected disabilities, to include the back. Private treatment notes indicate that the Veteran experienced loss of sleep. See July 2015 Medical Treatment Records- Furnished by SSA Daily Note; see Medical Treatment Records- Furnished by SSA, received June 2013 by CAPRI. VA treatment records indicate a diagnosis of severe obstructive sleep apnea according to polysomnography testing. See Atlanta VA Medical Center (VAMC), received September 2020 in CAPRI. The medical records also indicate the Veteran reported trouble sleeping in reference to his chronic pain, to include his back pain. See Atlanta VAMC received September 2020 in CAPRI. Here, a VA examination is necessary to ascertain the nature and etiology of the Veteran’s obstructive sleep apnea, to include whether it is secondary to any service-connected disabilities. The matters are REMANDED for the following action: 1. Obtain the Veteran’s updated VA treatment records. 2. The Board recognizes the potential practical difficulties in scheduling an examination in light of the COVID-19 epidemic and requests flexibility and understanding in affording the Veteran any warranted examination. Schedule the Veteran for examination(s) by appropriate clinician(s) to determine the nature and etiology of any of the following disabilities. Direct 3.303, 3.304, 3.305 a) Whether it is at least as likely as not that the following are related to an in-service injury, event, or disease: i. residuals of a fractured nose; ii. left knee disability; iii. right knee disability; iv. right ankle disability; v. left hip disability; vi. sleep disorder, to include sleep apnea. Presumptive 3.309(a) b) whether it is at least as likely as not that any arthritis of the (i-v) nose, left or right knees, right ankle, or left hip: i. began during active service, ii. manifested within one year after discharge from service, or iii. was noted during service with continuity of the same symptomatology since service. Secondary Service Connection (c) whether any disability i-vi, is: i. proximately due to a service-connected disability, or ii. underwent any incremental increase in disability, regardless of its permanence by service-connected disability. • The term incremental increase in disability means additional impairment of earning capacity. Objective measurement, or numerical quantification, is not required to ascertain an increase in disability. Additional disability due to flareups of musculoskeletal disabilities, even if it cannot be quantified, or an incremental increase in pain might constitute an increase in disability, or aggravation, for the purposes of secondary service connection. • A complete rationale for ALL requested opinions is REQUIRED. If the examiner is unable to provide any opinion without resorting to speculation, he or she must indicate why this is so. Specifically, the examiner must indicate whether the need to speculate is caused by a deficiency in the state of general medical knowledge (i.e. no one could respond given medical science and the known facts) or by a deficiency in the record or examiner (i.e. additional facts are required, or the examiner does not have the needed knowledge or training). (continued on the next page) YVETTE R. WHITE Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board A. Barner, 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.