Citation Nr: 21004025 Decision Date: 01/25/21 Archive Date: 01/25/21 DOCKET NO. 16-53 299A DATE: January 25, 2021 ORDER Entitlement to an effective date earlier than June 2, 2014 for the grant of service connection for tinnitus is denied. Entitlement to an effective date earlier than June 4, 2013 for the grant of an increased rating of 30 percent for bilateral pes planus is denied. Entitlement to a 50 percent rating for pes planus is granted as of January 28, 2020, though no earlier; all other components of this increased rating claim are denied. Entitlement to a rating higher than 10 percent for the tinnitus is denied. Entitlement to an increased rating for left shoulder disability (residuals of left shoulder dislocation, status post arthroscopic repair, and painful limitation of left shoulder) is denied. Entitlement to service connection for bilateral hearing loss disability is denied. REMANDED Entitlement to an increased rating for cervical spine disability is remanded. Entitlement to an increased rating for thoracolumbar spine disability is remanded. Entitlement to service connection for major depressive disorder is remanded. Entitlement to service connection for headaches, to include as secondary to service-connected disability, is remanded. FINDINGS OF FACT 1. On June 2, 2014 , the Veteran filed a petition to reopen a prior final denial of his claim of entitlement to service connection for tinnitus; there is no evidence in the claims file after an earlier March 2002 denial of service connection for tinnitus, and prior to June 2, 2014, indicating he had filed or even intended to file a petition to reopen this claim. 2. On June 4, 2013, the Veteran filed a claim for an increased rating for bilateral pes planus (flat feet); there is no evidence in the claims file prior to June 4, 2013 that he intended to file a claim for a higher rating for his pes planus. 3. However, it is just as likely as not he has had pronounced flat feet since January 28, 2020, though no earlier. 4. The Veteran already has the maximum permissible schedular rating for his tinnitus, and the evidence does not reflect that his tinnitus manifests in symptoms and consequent impairment beyond what is contemplated by the schedular rating and has not, as examples, cause marked interference with his employment and/or frequent hospitalization. 5. The Veteran’s left shoulder (minor extremity) is not limited to 25 degrees to the side, is not ankylosed, does not manifest in loss of head of the humerus, and does not manifest in nonuse or fibrous union of the humerus. 6. The most probative (meaning most competent and credible) evidence is against finding that the Veteran had hearing loss during his service, within a year of separating from service, or that he currently has a hearing loss disability for VA purposes which is causally related to service. CONCLUSIONS OF LAW 1. The criteria are not met for an earlier effective date for the grant of service connection for tinnitus. 38 U.S.C. § 5110; 38 C.F.R. § 3.400. 2. The criteria are not met for an earlier effective date (i.e. earlier than June 4, 2013) for the grant of an increased rating of 30 percent for the bilateral (left and right foot) pes planus. 38 U.S.C. § 5110; 38 C.F.R. § 3.400. 3. The criteria are met for a rating of 50 percent for the bilateral pes planus from January 28, 2020, but no earlier. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.59, 4.71a, Diagnostic Code 5276. 4. The criteria are not met for a rating higher than 10 percent for the tinnitus. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. § 4.87, Diagnostic Code 6260. 5. The criteria are not met for a rating in excess of 20 percent for the left shoulder disability. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.71a, Diagnostic Code (DC/Code) 5201. 6. The criteria are not met for service connection for bilateral hearing loss disability. 38 U.S.C. §§ 1101, 1110, 1112, 1113, 1131, 1137, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.385. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from March 1999 to February 2002. Effective Date Effective March 24, 2015, VA amended its regulations to require that all claims governed by VA's adjudication regulations be filed on a standard form. 38 C.F.R. §§ 3.151, 3.155, 3.157. The amended regulations, however, apply only to claims filed on or after March 24, 2015. Because the Veteran's claims were received by VA prior to that date, the former regulations apply where warranted. Except as otherwise provided, the effective date of an evaluation and award of pension, compensation or dependency and indemnity compensation based on an original claim, a claim reopened after final disallowance, or a claim for increase will be on the date of receipt of the claim or the date entitlement arose, whichever is the later. 38 U.S.C. § 5110(a); 38 C.F.R. § 3.400. If a claim is reviewed at the request of the claimant more than one year after the effective date of a liberalizing law, benefits may be authorized for a period of one year prior to the date of receipt of such request. 38 C.F.R. § 3.114(a)(2). A claim is a formal or informal communication in writing requesting a determination of entitlement or evidencing a belief in entitlement to a benefit. 38 U.S.C. § 101(30); 38 C.F.R. § 3.1(p). The date of receipt shall be the date on which a claim, information or evidence was received by VA. 38 U.S.C. § 101(30); 38 C.F.R. § 3.1(r). Earlier effective dates can be established in some cases where an award or increase of compensation is granted pursuant to a liberalizing law. 38 U.S.C. § 5110(g); 38 C.F.R. § 3.114(a). Under these provisions, the claimant must have met all eligibility criteria for the liberalized benefit on the effective date of the liberalizing law or VA issue and have been continuously eligible from that date to the date of claim or administrative determination of entitlement. In such cases, the effective date of the award or increase shall be fixed in accordance with the facts found but shall not be earlier than the effective date of the liberalizing law or VA issue. 38 C.F.R. § 3.114(a). The Honoring America's Veterans and Caring for Camp Lejeune Families Act of 2012 (Honoring America's Veterans Act), Public Law 112-154, Section 506, 126 Stat. 1165 was signed into law on August 6, 2012. Section 506 of the Act amended 38 U.S.C. § 5110 to allow up to a one-year retroactive effective date for awards of disability compensation based on fully developed original claims for compensation received from August 6, 2013 through August 5, 2015. Under the Act, the effective date of an award of disability compensation to a veteran who submits an application therefor that sets forth an original claim that is fully-developed (as determined by the Secretary) as of the date of submittal shall be fixed in accordance with the facts found, but shall not be earlier than the date that is one year before the date of receipt of the application. 1. Entitlement to an earlier effective date for the grant of service connection for tinnitus. The Veteran has established his entitlement to service connection for tinnitus (ringing in his ears) effective from June 2, 2014. Neither he, nor his attorney, has provided adequate argument as to why any earlier effective date is warranted for this award. Regardless, the Board has reviewed the claims file and does not find any legal basis for granting any earlier effective date, so the appeal of this claim is being denied. The Veteran submitted his claim (VA Form 21-526EZ) for service connection for tinnitus on June 2, 2014; thus, it is the appropriate effective date. The Board realizes he filed his March 2014 claim under the Fully-Developed Claims process between August 6, 2013 through August 5, 2015. However, the criteria for an earlier effective date under the Honoring America's Veterans Act have not been met because his claim was not an original claim for compensation. One of the requirements for a one-year retroactive date under the law is that the claim was an original claim. See Public Law 112-154, Section 506. In this Veteran’s situation, his original claim for service connection for tinnitus had been denied by the RO in an unappealed, and therefore final and binding, March 2002 rating decision earlier issued. There is no evidence in the claims file prior to June 2, 2014, and after that prior March 2002 final and binding denial, indicating the Veteran filed or even intended to file a petition to reopen this claim for service connection for tinnitus. The Board, therefore, finds no basis upon which to grant an effective date earlier than June 2, 2014. As the preponderance of the evidence is against the claim, the benefit of the doubt rule is not applicable. See 38 U.S.C. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49, 54-56 (1990).   2. Entitlement to an earlier effective date for the bilateral pes planus On a June 2013 VA Form 21-4138 (Statement in Support of Claim), the Veteran requested an increase of his bilateral pes planus rating. As already explained, generally, the effective date of an evaluation based on a claim for increase will be the date of receipt of the claim or the date entitlement arose, whichever is the later. But, according to 38 C.F.R. § 3.400(o)(2), the effective date in a claim for an increased rating may be up to one year prior to the date of receipt of the increased rating claim – provided the evidence reflects a worsening of the disability during that immediately preceding year. In other words, this must be “factually ascertainable”. See Harper v. Brown, 10 Vet. App. 125 (1997). See also Gaston v. Shinseki, 605 F.3d 979 (Fed. Cir. 2010) (explaining that the legislative history of 38 U.S.C.A. § 5110 (b)(2) was to provide Veterans a one-year “grace period” for filing a claim following an increase in severity of a service-connected disability). The Veteran has been assigned an effective date for his higher 30 percent rating based on the date his claim was received by VA (i.e., June 4, 2013). In his Notice of Disagreement (NOD), neither he nor his attorney explained why an earlier effective date of the award is warranted and did not provide a proposed earlier date. Nevertheless, the Board has reviewed the evidence for one-year prior to June 4, 2013, for any indication of a worsening during that period that, in turn, would support assigning this higher rating as of an earlier effective date. There is not any such evidence, however, showing the required increase in severity of this disability to the 30-percent level during that immediately preceding year, meaning between June 4, 2012 and June 4, 2013. Thus, an earlier effective date is not warranted. Increased Ratings Disability evaluations are determined by comparing a Veteran's present symptomatology with criteria set forth in VA's Schedule for Rating Disabilities, which is based on average impairment in earning capacity. 38 U.S.C. § 1155; 38 C.F.R. Part 4. When a question arises as to which of two ratings applies under a particular diagnostic code, the higher evaluation is assigned if the disability more closely approximates the criteria for the higher rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the Veteran. Id. § 4.3. Further, a disability rating may require re-evaluation in accordance with changes in a Veteran's condition. It is thus essential in determining the level of current impairment that the disability is considered in the context of the entire recorded history. Id. § 4.1. Nevertheless, the present level of disability is of primary concern. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). That said, “staged” ratings are appropriate for an increased-rating claim when the factual findings show distinct time periods when the service-connected disability exhibits symptoms that would warrant different ratings. Hart v. Mansfield, 21 Vet. App. 505 (2007). Terms such as "mild", "moderate", "severe", "marked", and "pronounced" are not defined in the Rating Schedule, at least as concerning these disabilities at issue. Rather than applying a mechanical formula, the Board must evaluate all of the evidence to the end that its decisions are "equitable and just" as contemplated by the requirements of the law. 38 C.F.R. § 4.6. The Board is not bound by a clinician's use of a term. The intent of the Rating Schedule is to recognize painful motion with joint or periarticular pathology as productive of disability. It is the intention to recognize actually painful, unstable, or malaligned joints, due to healed injury, as entitled to at least the minimum compensable rating for the joint. 38 C.F.R. § 4.59. In Burton v. Shinseki, 25 Vet. App. 1 (2011), the Court held that consideration of 38 C.F.R. § 4.59 is not limited to cases involving arthritis, thereby providing for the possibility of a rating based on painful motion of a joint, regardless of whether the painful motion stemmed from joint or periarticular pathology. Further concerning the joints, the factors of disability reside in reductions of their normal excursion of movements in different planes. Inquiry will be directed to these considerations: (a) less movement than normal (due to ankylosis, limitation or blocking, adhesions, tendon-tie-up, contracted scars, etc.); (b) more movement than normal (from flail joint, resections, nonunion of fracture, relaxation of ligaments, etc.); (c) weakened movement (due to muscle injury, disease or injury of peripheral nerves, divided or lengthened tendons, etc.); (d) excess fatigability; (e) incoordination, impaired ability to execute skilled movements smoothly; and (f) pain on movement, swelling, deformity or atrophy of disuse. Instability of station, disturbance of locomotion, interference with sitting, standing and weight-bearing are related considerations. 38 C.F.R. § 4.45. DeLuca v. Brown, 8 Vet. App. 202, 204-07 (1995). The provisions of 38 C.F.R. § 4.40 and 38 C.F.R. § 4.45 are to be considered in conjunction with the diagnostic codes predicated on limitation of motion. Johnson v. Brown, 9 Vet. App. 7 (1996). The United States Court of Appeals for Veterans Claims (Court) however has clarified that, although pain may be a cause or manifestation of functional loss, pain, itself, does not constitute functional loss and is just one of several factors considered in determining the appropriate rating for a disability. See Mitchell v. Shinseki, 25 Vet. App. 32, 38-43 (2011); cf. Powell v. West, 13 Vet. App. 31, 34 (1999); Hicks v. Brown, 8 Vet. App. 417, 421 (1995). Instead, the Court in Mitchell explained that, pursuant to 38 C.F.R. §§ 4.40 and 4.45, the possible manifestations of functional loss caused by pain must be rated at the same level as if the functional loss were caused by any of the other factors relevant. As such, in evaluating the severity of a joint disability, VA must determine the overall functional impairment due to these factors. Reference to the Veteran's disabilities is presented in additional evidence of record beyond the most detailed pertinent evidence discussed by the Board in this decision. The additional evidence of record does not present findings concerning the Veteran's disabilities that significantly expand upon, revise, or contradict the Board’s findings. 3. Entitlement to an increased rating for bilateral pes planus (flat feet) The Veteran’s bilateral pes planus is evaluated as 30-percent disabling effective from June 4, 2013 (it was 10 percent prior to that). The Veteran would be entitled to a higher 50 percent rating if he had pronounced symptoms of flat feet, marked pronation, extreme tenderness of plantar surfaces of the feet, marked inward displacement and severe spasms of the tendo achilles on manipulation, not improved by orthopedic shoes or appliances. The Veteran’s attorney contends that the Veteran is entitled to a higher evaluation because he has extremely tender feet and must get injections of Kenalog and lidocaine to deal with pain. In addition, the Veteran states that he has to have special inserts for his shoes, that he has severe spasms of the tendo achilles on manipulation, that he must sleep with braces on both feet to stretch the tendons, and has been issued a Replexa machine to provide electric shocks to his feet to treat foot spasms. The Board notes that the Veteran has feet disabilities other than his service-connected pes planus. Neither the Veteran nor his attorney been shown to have the same level of degree of experience, knowledge, or training as the clinicians discussed below. The Board find that the clinicians’ reports as to the Veteran’s disabilities are more probative than the lay statements. Moreover, the clinical records note that the Replexa machine has been used to help control the Veteran’s radiculopathy, which has not been shown to be related to his pes planus (see October 2017, and June 2018 VA clinical records). The criteria for evaluating pes planus are not expressly written in the conjunctive as there is no "and" in the listed symptoms. Accordingly, it is not expected that all cases of pes planus will show all the findings specified. See Dyess v. Derwinski, 1 Vet. App. 448, 455-56 (1991) (applying 38 C.F.R. § 4.21 when evaluating pes planus). See also Camacho v. Nicholson, 21 Vet. App. 360, 366 (2007) (the cases in which the Court has indicated that 38 C.F.R. § 4.21 applies are those in which the diagnostic criteria are not clearly joined in the conjunctive). Essentially the criteria for pes planus list symptoms equating to mild, moderate, severe and pronounced pes planus. Additionally, the criteria for evaluating pes planus are not successive in nature; thus, it is not necessary that all criteria be met for a lower rating to allow for the next higher rating. See Tatum v. Shinseki, 23 Vet. App. 152, 155-56 (2009). The rating criteria that most accurately reflects the Veteran's disability picture is of the most importance here. See 38 C.F.R. § 4.7. An August 2013 VA clinical record reflects that the Veteran reported painful feet when he walks; he pointed to the tops and bottom of the feet. He was casted for orthoses. A December 2013 VA examination report reflects that the Veteran had pain on use of both feet, pain on manipulation, characteristic calluses, pain accentuated on use and manipulation, and that his symptoms are only slightly relieved by orthotics. He did not have extreme tenderness of plantar surface but had only moderate tenderness, and such tenderness was improved by orthotic shoes or appliances. He had decreased longitudinal arch height on weight bearing, and evidence of marked deformity of the foot, and marked pronation, which was moderate to severe, but that it was improved by orthopedic shoes or appliances. He did not have weight bearing line fall over or medial to the great toe. He did not have inward bowing of the achilles tendon. He did not have marked inward displacement and severe spasm. He used bilateral shoe inserts. It was noted that the Veteran was employed in security which aggravates his pain if he has to be on his feet a lot there. A December 2017 Disability Benefits Questionnaire (DBQ) reflects that the Veteran reported his foot pain has gradually become worse and is now occurring every day. He reported that the pain is most pronounced in the area of his great toes at the joints where he has bunions associated with mild hallux valgus deformities. He had metatarsalgia of the metatarsophalangeal (MTP) joints of both feet, which caused pain with prolonged walking and prolonged standing. He also had bilateral mild or moderate hallux valgus. The examiner found that the majority of the Veteran’s pain in his feet was due to his mild hallux valgus and MTP bunions. The examiner also found that the bilateral bunions are most likely unrelated to the Veteran’s bilateral pes planus (which is not medically known to cause bunions) and that the bunions are causing the first MTP metatarsalgia bilaterally. It was noted that the Veteran had pain accentuated on use, but did not have pain on manipulation of the foot, did not have an indication of swelling on use, and did not have characteristic callouses. He used orthotics but reported that his feet remained symptomatic. Although he had decreased longitudinal arch height, he did not have extreme tenderness of plantar surfaces, did not have objective evidence of marked deformity, did not have marked pronation, did not have weight-bearing line fall over or medial to the great toes, did not have inward bowing of the Achilles tendon, did not have marked inward displacement, and did not have severe spasm. A January 2020 Foot DBQ reflects that the Veteran reported constant pain, a bunion on the right foot, and constant pain from the soles of the feet to the Achilles. He reported that he was treated with injections and a Replexa machine. The Veteran reported that he had tried supports or orthotics, but they were not effective in relieving symptoms. The Veteran also reported flare-ups caused by walking and having to stand too long, and that on repetitive use of the feet, the pain becomes unbearable and he has an inability to walk or stand too long. Upon examination, the Veteran had pain on manipulation, and characteristic calluses, but no swelling. The Veteran had extreme tenderness of plantar surfaces of both feet, and decreased longitudinal arch height. He did not have evidence of marked deformity of either foot (i.e. he did not have pronation or abduction). He did not have marked pronation of either foot, and he did not have weight bearing line fall over or medial to the great toe. He did not have inward bowing of the Achilles tendon. He did not have marked inward displacement and severe spasm. The examiner noted that the Veteran had hallux valgus on the right foot, and that there is no medical literature found on relating pes planus to hallux valgus. The examiner found that the Veteran’s hallux valgus caused severe symptoms with function equivalent to amputation of the great toe. In sum, with regard to marked pronation, he had in in 2013 but not in 2017 or in 2020. With regard to extreme tenderness, he had it in 2020 but not in 2013 or 2017. With regard to marked inward displacement, he did not have it in 2013, 2015, or 2020. With regard to severe spasms, he did not have in 2013, 2015, or 2020. A November 2020 VA clinical record reflects that the Veteran reported bilateral foot pain which was a 4/10 intensity and gets worse upon prolonged standing.; he was advised to continue with shoe inserts. Although the Veteran is competent to report pain, and he has been shown to have pes planus, the majority of his foot pain prior to the 2020 examination has been clinically found to more likely due to his nonservice-connected bunions and/or hallux valgus, which are unrelated to his pes planus. The Board finds, in giving the benefit of the doubt to the Veteran, that as of January 28, 2020 (the date of examination), his disability warrants a 50 percent rating. The Board acknowledges that the Veteran has not had the majority of the symptoms in the 50 percent rating criteria; however, the Board finds that extreme tenderness to the plantar surface of the foot can reasonably be expected to cause significant impairment. Prior to January 28, 2020, a rating in excess of 30 percent is not warranted. As noted above, prior to January 28, 2020, he did not have extreme tenderness of the plantar surfaces, and even though he had marked pronation in 2013 (but not in 2017 or 2020), it was not shown to cause pronounced impairment. In other words, it was not a major impairment (i.e. it was not the major cause of his pain or problems with on walking or standing) even during a flare-up. The 30 percent disability rating, effective June 4, 2013, the date of receipt of the Veteran’s increased rating claim, adequately compensates him for his symptoms, and a higher evaluation is not warranted prior to January 28, 2020. Based upon the evidence in this case, the earliest that that it can be factually ascertained that he more closely meets the criteria for a 50 percent rating is the January 2020 DBQ. 4. Entitlement to an increased rating for the tinnitus The Veteran's tinnitus is rated as 10-percent disabling under the schedular rating criteria. There is no higher schedular rating for tinnitus – regardless of whether it is in one ear (unilateral) or both ears (bilateral) or perceived elsewhere in the head. 38 C.F.R. § 4.87, Diagnostic Code 6260, Note (2); see also Smith v. Nicholson, 451 F.3d 1344 (Fed. Cir. 2006). The evidence does not support that an extra-schedular rating may be warranted. The record does not reflect that the Veteran’s tinnitus has caused marked interference with employment (meaning above and beyond what is contemplated by his assigned schedular rating) or necessitated frequent periods of hospitalization, or that it causes effects of similar severity not contemplated by the rating assigned for this disability. See Thun v. Peake, 22 Vet. App. 111 (2008), aff'd sub nom. Thun v. Shinseki, 572 F.3d 1366 (Fed. Cir. 2009). 5. Entitlement to an increased rating for left shoulder disability The Veteran’s left shoulder is evaluated under DC 5202 as 20-percent disabling effective from March 1, 2003 (after completion of a 100 percent convalescent rating, which had followed a 20 percent rating ) for recurrent dislocation. He is also assigned a separate evaluation of 20 percent under DC 5201 for painful limitation of motion effective from June 4, 2013, the date upon which he had filed a claim for an increased rating. The Veteran is right-hand dominant; thus, his left shoulder is his minor extremity for rating purposes. The Veteran would be entitled to a higher rating if the evidence shows: favorable ankylosis, with abduction to 60 degrees, can reach mouth and head (30 percent under DC 5200); fibrous union of the humerus (50 percent under DC 5202); nonunion of the humerus (false flail joint) (60 percent under DC 5202); or loss of the head of the humerus (flail shoulder) (80 percent under DC 5202). 38 C.F.R. § 4.71a. Normal forward flexion of the shoulder is from 0 to 180 degrees; abduction is from 0 to 180 degrees; and internal and external rotation are from 0 to 90 degrees. 38 C.F.R. § 4.71a, Plate I. Forward flexion and abduction to 90 degrees amounts to shoulder level. A December 2013 DBQ reflects that the Veteran reported flare-ups of his left arm in that pain is aggravated with heavy lifting, with overhead activities, and with reaching. Upon examination, he had 120 degrees of flexion with pain beginning at 120 degrees. He also had left shoulder abduction with pain beginning at 120 degrees. The Veteran was able to perform repetitive use testing with only a loss of an additional five degrees of flexion and five degrees of abduction. The Veteran had pain and guarding of the shoulder, but had full strength. The Veteran had a history of recurrent dislocation (subluxation). The examiner found that the Veteran’s surgery to repair dislocation was apparently unsuccessful as the Veteran reported that it is painful and dislocates. A December 2017 DBQ reflects that the Veteran stated that his last dislocation was about 8 months ago. The Veteran stated that each time the shoulder has gone back into the correct position on its own. The Veteran stated that the main residuals that he has are decreased range of motion and pain. He reported left shoulder pain every day, for which he applies a topical analgesic and takes Tylenol 1000 mg a day. He also takes cyclobenzaprine as a muscle relaxer, and applies a cold pack to the shoulder. The Veteran stated that he previously worked as a home land security contractor, but had difficulty with the job because he needs to be able to do physical activities that he is unable to do as result of his neck, left shoulder, low back, foot conditions, and non-service-connected right knee (thus, not solely due to his shoulder). Upon examination in 2017, the Veteran had flexion to 90 degrees, abduction to 80 degrees, external rotation to 60 degrees, and internal rotation to 70 degrees. He reported having difficulty with activities of daily living because of difficulty reaching his back and difficulty with overhead activities. There was pain on examination causing functional loss, but there was no evidence of pain with weight bearing. The Veteran was not able to perform repetitive use testing with at least three repetitions. The examiner noted as follows: Range of motion is quite limited, but inconsistent due to severe pain. The veteran demonstrated less than 90° of flexion and abduction at times, but at times was able to flex and abduct his shoulder up to 90° when more effort was provided to actively move the shoulder during range of motion despite the pain. With regard to flares, the examiner stated that during a flare, the range of motion is unchanged. The examiner noted that a brief flare up was caused by active and passive range of motion during the examination. The examiner also noted as follows: The veteran is unable to do heavy duty manual work with his left upper extremity or repetitive moderate duty work or work that requires him to reach overhead with his left upper extremity. He is able to reach overhead with his right upper extremity. He is able to do most types of light duty work. He is able to do a desk job with Homeland security, but is most likely unable to go into the field. The claims file includes a VA Incident Report which notes that on November 1, 2018, while sitting at his desk, the Veteran was reaching for his coffee when his left shoulder became dislocated. He was immediately escorted to the emergency room for treatment, and returned to his duty at 1300 hours. A U.S. Department of Labor Attending Physician’s Report describes the incident as the Veteran reached backwards to pick up his coffee mug when his shoulder slipped out of socket. A November 2018 private record (Orthopaedic Associates, USA) reflects that the Veteran had not experienced a dislocation since his last visit, but was experiencing pain. In his December 2018 Notice of Disagreement, the Veteran asserted that his examination [in 2017], was “not conducted properly”. He stated that his arm motion was limited to 25 degrees from his side. In May 2019 correspondence, his attorney argued that the examination was inadequate because the Veteran reported that he is unable to raise his shoulder above 25 degrees but “the examiner ignored his statements”. A presumption of regularity is applied to all manner of VA processes and procedures. Miley v. Principi, 366 F.3d 1343, 1346-47 (Fed. Cir. 2004) ("The presumption of regularity provides that, in the absence of clear evidence to the contrary, the court will presume that public officers have properly discharged their official duties."); Rizzo v. Shinseki, 580 F.3d 1288, 1292 (Fed. Cir. 2008) (applying the presumption of regularity to VA examination). Clear evidence is required to rebut the presumption of regularity. Here, the Board finds that the presumption of regularity has not been rebutted; the examiner was able to perform range of motion testing despite the Veteran’s alleged assertion as to his limitation. Nonetheless, the Veteran was given another examination in 2020. A March 2019 VA primary care clinical record reflects that the Veteran’s shoulder abduction was limited to “about 30-45 degrees due to pain”. A January 2020 DBQ reflects that the Veteran reported chronic pain, instability, pain that radiates to neck and back, and an inability to raise his arm above his head. His treatment was Ibuprofen, ice packs, Diclofenac, cyclobenzaprine, lidocaine, and meloxicam. He reported that positioning or twisting the shoulder causes a flare up. Upon examination, he had forward flexion to 168 degrees, abduction to 165 degrees, external rotation to 82 degrees, and internal rotation to 85 degrees. (all beginning at 0 degrees.) There was objective evidence of pain as well as localized tenderness or pain on palpation of the scapula, which was a 5/10 in severity. There was evidence of pain with weight bearing. The Veteran was able to perform repetitive use testing with no additional loss of range of motion. The examiner opined that after repetitive use and/or a flare-up, the Veteran would have 160 degrees of flexion, 160 degrees of abduction, 80 degrees of external rotation, and 80 degrees of internal rotation. The evidence does not support that the Veteran is entitled to a higher rating. Although, he contends that his arm is limited to 25 degrees to the side, this has not been shown to be an accurate statement based on the multiple physical examinations. The Board finds that the statement of various clinicians, who are trained professionals in movement of the body, are more probative than the Veteran’s statement made for compensation purposes. In addition, the examination reports are against a finding of ankylosis, fibrous union of the humerus, nonunion of the humerus, or loss of head of the humerus. For these reasons and bases, an increased rating is not warranted. Conclusion of Increased Rating Claims A claim for a total disability rating based on individual unemployability (TDIU) may be raised as a derivative claim stemming from a Veteran's claim of entitlement to an increased rating for a service-connected disability, provided the disability is at least one of the reasons he is unemployable or claims to be. See Rice v. Shinseki, 22 Vet. App. 447 (2009). The Veteran is in receipt of service connection for bilateral pes planus, residuals of left shoulder disability, painful limitation of motion of the left shoulder, thoracolumbar strain with minimal degenerative disc disease, cervical strain, tinnitus, gastrointestinal esophageal reflux disease (GERD), and a left shoulder scar. A December 2017 DBQ reflects that the Veteran stated that he previously worked as a home land security contractor, but had difficulty with that job because he needs to be able to do physical activities that he is unable to do as result of his neck, left shoulder, low back, foot conditions, and non-service-connected right knee (thus, not solely due service-connected disabilities); he did not indicate that he was unemployed. In addition, subsequent records note that the Veteran was employed. As noted above, in November 2018, he was working at a desk when he dislocated his shoulder. A November 2020 VA clinical record notes that the Veteran was able to continue to work despite his mood. The evidence does not support that the Veteran’s employment is less than substantial gainful employment; thus, the issue of entitlement to a TDIU has not been reasonably raised by the record. Where the preponderance of the evidence is against the claims, the benefit of the doubt rule is not applicable. See 38 U.S.C. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49, 54-56 (1990). Service Connection In general, establishing service connection requires medical evidence or, in certain circumstances, lay evidence of the following: (1) a current disability; (2) in-service incurrence or aggravation of a relevant disease or an injury; and (3) a correlation (“nexus”) between the disease or injury in service and the present disability. Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004). Also, pursuant to 38 C.F.R. § 3.303(b), if a chronic disease according to § 3.309(a), a Veteran may establish the second and third elements of service connection by demonstrating continuity of symptomatology. Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Continuity of symptomatology may be established if a Veteran can demonstrate (1) that a condition was "noted" during service; (2) evidence of post-service continuity of the same symptomatology; and (3) medical or, in certain circumstances, lay evidence of a nexus between the present disability and the post-service symptomatology. Savage v. Gober, 10 Vet. App. 488, 495-97 (1997); 38 C.F.R. § 3.303(b). 6. Entitlement to service connection for bilateral hearing loss disability For the purposes of applying the laws administered by VA, impaired hearing will be considered to be a ratable disability when the auditory threshold in any of the frequencies of 500, 1,000, 2,000, 3,000 and 4,000 Hertz is 40 decibels or greater; or when the thresholds for at least three of these frequencies are 26 decibels or greater; or when speech recognition scores using the Maryland CNC Test are less than 94 percent. 38 C.F.R. § 3.385. The Veteran’s Report of Medical History in October 2001 for Medical Board purposes reflects that he denied having hearing loss. His corresponding Report of Medical Examination reflects that his hearing was within normal limits in all pertinent frequency levels. See Hensley v. Brown, 5 Vet. App. 155, 157 (1993) (indicating that normal hearing acuity ranges from 0 to 20 decibels (dB), and that a greater than 20-dB loss is indicative of hearing impairment, even if not considered to be a ratable disability according to 38 C.F.R. § 3.385). A January 2002 QTC report reflects that the Veteran had hearing within normal limits for both ears, and 100 percent speech recognition testing using the Maryland CNC word list. The examiner found that the Veteran “does not have measurable hearing loss in either ear”, and that his “hearing may improve with removal of the cerumen from both ears.” He separated from service less than three weeks later, in February 2002. VA clinical records note that he reported hearing problems (August 2002), but that his hearing was intact (July 2013). Records also note that he had cerumen (wax) build up in his ears with impaction in the right ear (January 2012) and has been prescribed carbamide peroxide daily for both ears for ear wax (2013). An April 2014 VA clinical record reflects that he denied hearing loss. A February 2015 LHI examination report reflects that the Veteran had abnormal hearing loss but did not have hearing loss which met the criteria for VA service connection in accordance with 38 C.F.R. § 3.385. In addition, the examiner opined that as the Veteran’s hearing thresholds were normal at (entrance and separation, and as noise induced hearing loss will not progress once it is stopped, the Veteran’s current bilateral hearing loss is less likely than not related to military noise exposure. A November 2018 VA note reflects that the Veteran’s “hearing to spoken words intact”. While the Veteran is competent to state that he has difficulty hearing, he has not been shown to be competent to state the degree of hearing loss. Most importantly, there is no competent and credible evidence of record that the Veteran has a currently ratable hearing loss disability for VA compensation purposes, meaning according to the threshold minimum requirements of 38 C.F.R. § 3.385. And even if he does, there is not the required competent and credible suggestion that his current hearing loss disability may be the result of his active service. For these reasons and bases, service connection is not warranted. See 38 U.S.C. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49, 54-56 (1990). REASONS FOR REMAND 7. Entitlement to an increased rating for cervical spine disability is remanded. The Veteran’s cervical strain disability is evaluated as 10 percent disabling under DC 5242 effective from February 21, 2007. In June 2013, the Veteran filed a claim for an increased rating. A June 2013 VA examination report reflects that the Veteran had forward flexion to 45 degrees or greater with objective evidence of pain at 45 degrees. He had extension to 25 degrees with objective evidence of pain at 25 degrees. Subsequent records reflect that the Veteran had a C5-C6 discectomy and fusion in 2014 at a private facility (see September 2016 VA record), and that he reported stiffness in the spine status post fusion (see December 2018 VA record). A remand is required to allow VA to obtain authorization and request these records. Thereafter, the Veteran should be scheduled for another examination to determine if the discectomy was related to his service-connected cervical strain, and if so, the extent of severity of his disability. 8. Entitlement to an increased rating for thoracolumbar spine disability is remanded. The Veteran’s disability of the thoracolumbar spine with minimal degenerative disc disease of the lower thoracic spine was initially evaluated as 10 percent disabling under DC 5237. In May 2013, the Veteran filed a claim for an increased rating, and in response, the RO increased the rating to 20 percent disabling is currently evaluated as 20 percent disability. The most recent examination report is from December 2017. Records in March 2019 note that the Veteran’s disc protrusion at T9/T10 had minimally increased in size since 2007. A March 2019 EMG study was stopped prior to completion at the Veteran’s request due to his reported pain. 2019 records also reflect that the Veteran was now getting Trigger Point Injections (TPI) in the thoracic and lumbar paraspinal region. The “mere passage of time” does not render an old examination inadequate. However, in the Veteran’s case, it appears that he has increased his treatment for pain during the past three years. Thus, the Board finds that another examination would be helpful. See Palczewski v. Nicholson, 21 Vet. App. 174, 182 (2007). 9. Entitlement to service connection for major depressive disorder (MDD) is remanded. An October 2019 DBQ by social worker M. Popko reflects that the Veteran has PTSD, depression “probably part” of PTSD, and anxiety disorder “probably secondary” to PTSD. A January 2020 DBQ by M. Popko again reflects her opinion that the Veteran has PTSD, depression related to PTSD, and anxiety disorder related to PTSD. The issue of entitlement to service connection for PTSD is not currently before the Board. Historically, the Veteran’s claim for service connection for PTSD was denied by the RO in January and May 2018 rating decisions. The Veteran filed a notice of disagreement; however, and importantly, he also elected to participate in RAMP (Rapid Appeals Modernization Program) and requested the supplemental claim review opinion. In January 2019, VA notified the Veteran that it had received his election into RAMP and his appeal as to the claim for service connection for PTSD was withdrawn. In January 2019, the RO again denied the claim. In January 2020, the Veteran filed a notice of disagreement, and in turn, the RO issued a statement of the case in April 2020. In June 2020, the Veteran filed a VA Form 9. However, as the Veteran had elected to be in the RAMP program, his claim should have been handled in the AMA system. In December 2020, the Board notified the Veteran that he did not currently have an appeal before the Board for the issue of entitlement to service connection for PTSD, and due to a prior administrative error, he was given 60 days to file a Decision Review Request form. In January 2021, the Veteran filed a VA Form 20-0995 requesting the supplemental claim process. As the issue of entitlement to service connection for major depressive disorder is inextricably intertwined with the issue of entitlement to service connection for PTSD, consideration must be deferred pending adjudication of that PTSD claim. 10. Entitlement to service connection for headaches, to include as secondary to service-connected disability, is remanded. The Veteran separated from service in February 2002. In 2014, he filed a claim for service connection for headaches. The Veteran’s STRs are negative for frequent or chronic headaches and note only one headache in April 2000 when he presented to the clinic for a headache, nasal congestion, sore throat, and cough for two to three days; he was diagnosed with a viral upper respiratory infection. A May 2000 record when seen for gastrointestinal complaints reflects that he denied a headache. His October 2001 Report of Medical History reflects that he denied frequent or severe headaches. July 2002, and August 2002 VA clinical records reflect that he denied frequent headaches. There is no competent and credible evidence of record that service connection is warranted for a headache disability on a direct incurrence basis. However, the Board must also consider whether service connection is warranted on a secondary basis. Post service, a February 2007 VA clinical records reflect that the Veteran reported that he gets headaches once or twice a week with generalized pain. He reported that they are worse when he cracks his neck to relieve his neck pain; the Veteran is in receipt of service connection for a cervical strain. The clinician recommended that the Veteran take Naproxen and avoid cracking his neck. Additionally, the Veteran reported a headache with sinus congestion (December 2007) and had a headache with impacted ear wax and vertigo (January 2012). However, he also denied headaches (e.g. November 2012, February 2013, March 2013, April 2014, May 2014, September 2016, November 2017), denied frequent headaches (July 2018), reported occasional headaches (October 2018, March 2019), and denied frequent headaches (December 2019, November 2020). A February 2018 record reflects that he reported having a motor vehicle accident in 2014 with resulted in a concussion. The Board finds that there is at least an indication that the Veteran may have occasional headaches due to his service-connected neck disability. Thus, a remand for a clinical opinion is warranted. Accordingly, these remaining claims are REMANDED for the following additional development and consideration: 1. Ask the Veteran to complete a VA Form 21-4142 for the medical provider(s) which treated his spine and performed a C5-C6 in 2014, and the providers for a concussion following a motor vehicle accident in approximately 2014. If he provides this necessary authorization, obtain these additional records. Document all requests for these records, as well as all responses, in the claims file and appropriately notify him and his attorney if unable to obtain these additional records 2. Thereafter, schedule the Veteran for an examination for his cervical spine. The examiner is asked to answer the following questions: (A) Is it as likely as not (50 percent or greater probability) that the Veteran’s C5-C6 discectomy was related to his service-connected cervical strain? (B) If not, is it possible to differentiate the symptoms related to his service-connected cervical strain from those related to his C5-C6 discectomy. (C) If it is as likely as not that the Veteran’s C5-C6 discectomy was related to his service-connected cervical strain, reassess, the severity of the Veteran’s service-connected cervical disability. Perform all necessary diagnostic testing and evaluation needed to make this determination and report all clinical manifestations in detail and in accordance with the applicable rating criteria. To this end the examiner must test the Veteran's active motion, passive motion, and pain with weight-bearing and without weight-bearing. The examiner must also attempt to elicit information regarding the severity, frequency, and duration of any flare-ups, and the degree of functional loss during flare-ups. To the extent possible, as well, the examiner should identify any symptoms and functional impairments due to the disability alone and discuss the effect of the Veteran's disability on any occupational functioning. If it is not possible to provide a specific measurement, or an opinion regarding flare-ups, symptoms, or functional impairment without resorting to mere speculation, the examiner must state whether the need to speculate is due to a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts), a deficiency in the record (additional facts are required), or the examiner (does not have the knowledge or training) or whatever other reason precludes a more definitive response 3. Also schedule the Veteran for an examination reassessing the severity of his thoracolumbar spine disability. Perform all necessary diagnostic testing and evaluation needed to make this determination and report all clinical manifestations in detail and in accordance with the applicable rating criteria. To this end the examiner must test the Veteran's active motion, passive motion, and pain with weight-bearing and without weight-bearing. The examiner must also attempt to elicit information regarding the severity, frequency, and duration of any flare-ups, and the degree of functional loss during flare-ups. To the extent possible, as well, the examiner should identify any symptoms and functional impairments due to the disability alone and discuss the effect of the Veteran's disability on any occupational functioning. If it is not possible to provide a specific measurement, or an opinion regarding flare-ups, symptoms, or functional impairment without resorting to mere speculation, the examiner must state whether the need to speculate is due to a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts), a deficiency in the record (additional facts are required), or the examiner (does not have the knowledge or training) or whatever other reason precludes a more definitive response 4. Schedule the Veteran for an examination for his headaches. The examiner is asked to provide responses to the following: (A) Is it at least as likely as not (50 percent or greater probability) that the Veteran has a chronic headache disability which is due or the result of his service-connected cervical spine disability? (B) Alternatively, is it at least as likely (50 percent or greater probability) that the Veteran has a chronic headache disability which is aggravated, i.e., worsened, by his service-connected cervical spine disability. If so, the examiner should to the extent possible indicate the baseline severity prior to aggravation. *Opinions are needed concerning both causation and aggravation. To aid in providing an adequate rationale, the examiner should consider the pertinent evidence of record, to include: a.) February 2007 VA clinical records which reflect that the Veteran reported that he gets headaches once or twice a week with generalized pain; he reported that they are worse when he cracks his neck to relieve his neck pain; b.) the Veteran’s report of a headache with sinus congestion (December 2007); c.) the Veteran’s complaint of a headache with impacted ear wax and vertigo (January 2012); d.) the Veteran’s denial of headaches and/or frequent headaches (e.g. November 2012, February 2013, March 2013, April 2014, May 2014, September 2016, November 2017, July 2018, December 2019, November 2020. ); e.) the Veteran’s report of occasional headaches (October 2018, March 2019); and f.) the Veteran’s report of a motor vehicle accident with a concussion in 2014.   5. Defer adjudication of the claim for service connection for major depressive disorder until the claim for PTSD (currently in the AMA system) is adjudicated. KEITH W. ALLEN Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board T. Wishard The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.