Citation Nr: 21065159 Decision Date: 10/25/21 Archive Date: 10/25/21 DOCKET NO. 17-49 349 DATE: October 25, 2021 ORDER The appeal of the issue of entitlement to a compensable rating for posttraumatic headaches is dismissed. Entitlement to service connection for residuals of a traumatic brain injury (TBI) is granted. An initial rating in excess of 10 percent for a low back disability is denied. REMANDED The issue of entitlement to service connection for a right shoulder condition is remanded. The issue of entitlement to service connection for right ear hearing loss is remanded. The issue of entitlement to an initial compensable rating for left ear hearing loss is remanded. FINDINGS OF FACT 1. During his November 2020 Board hearing, prior to the promulgation of a decision in the appeal, the Veteran stated on the record that he desired to withdraw his appeal for the issue of entitlement to a compensable rating for posttraumatic headaches. 2. The Veteran's currently diagnosed TBI had its onset in service. 3. For the entire period on appeal, the Veteran's low back disability was manifested by pain, normal forward flexion of the thoracolumbar spine, and a combined range of motion of the thoracolumbar spine of 240 degrees (normal), with no evidence of muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour, ankylosis of the thoracolumbar spine, or incapacitating episodes requiring medically prescribed bed rest due to intervertebral disc syndrome. CONCLUSIONS OF LAW 1. The criteria for withdrawal of the appeal of the issue of entitlement to an increased rating for posttraumatic headaches by the Veteran have been met. 38 U.S.C. § 7105 (b)(2), (d)(5); 38 C.F.R. §§ 20.202, 20.204(b), (c). 2. The criteria for establishing entitlement to service connection for TBI residuals have been met. 38 U.S.C. §§ 1110, 1131, 5103(a), 5107; 38 C.F.R. §§ 3.102, 3.303. 3. The criteria for an evaluation in excess of 10 percent for a low back disability have not been met. 38 U.S.C. § 1155; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.40, 4.45, 4.59, 4.71, 4.71a, Diagnostic Code 5237. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from June 2000 to September 2000, from June 2001 to August 2001, from February 2003 to May 2004, from June 2006 to October 2007, from January 2008 to September 2009, and from January 2010 to February 2011, with additional service in the Massachusetts Army National Guard. This matter is on appeal from a July 2017 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO), which, in pertinent part, (1) reopened and denied entitlement to service connection for right ear hearing loss; (2) found that new and material evidence had not been received to reopen a previously denied claim of entitlement to service connection for a right shoulder condition and TBI residuals; (3) granted entitlement to service connection for a low back disability and left ear hearing loss and assigned 10 percent and noncompensable ratings, respectively; and (4) and continued a noncompensable rating for the Veteran's posttraumatic headaches. The Veteran timely perfected an appeal. See August 2017 Notice of Disagreement; September 2017 Statement of the Case; September 2017 VA Form 9. With regard to the characterization of the issues on appeal, the Board notes that the RO denied entitlement to service connection for right ear hearing loss, a right shoulder condition, and TBI residuals in a September 2012 rating decision, which was not appealed. However, under 38 C.F.R. § 3.156 (c), if at any time after VA issues a decision on a claim, VA receives or associates with the claims file relevant official service department records that existed and had not been associated with the claims file when VA first decided the claim, VA will reconsider the claim. In this case, numerous service treatment records from the Veteran's deployments, which had not previously been requested or obtained by VA, were associated with the claims file in May 2016. These records, which existed and had not been previously considered by the RO in its previous denial, are pertinent to the issues of entitlement to service connection for right ear hearing loss, a right shoulder condition, and TBI residuals. Thus, the claim of entitlement to service connection for right ear hearing loss, a right shoulder condition, and TBI residuals must be reconsidered on a de novo basis, without regard to the previous final denials. 38 C.F.R. § 3.156 (c). The issues have been recharacterized accordingly. In November 2020, the Veteran testified at a hearing before a Veterans Law Judge, a transcript of which is of record. I. Withdrawn Issue 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. § 20.205. Withdrawal may be made by the appellant or by his or her authorized representative. Id. At his November 2020 Board hearing, the Veteran expressed his desire to withdraw his appeal of the issue of entitlement to an initial compensable rating for posttraumatic headaches. The undersigned confirmed the Veteran's request on the record and ensured that he understood the ramifications of his withdrawal request. Thus, the Veteran's withdrawal of his claim was explicit, unambiguous, and done with a full understanding of the consequences of such action. See Delisio v. Shinseki, 25 Vet. App. 45, 57 (2011); Acree v. O'Rourke, 891 F.3d 1009, 1014 (Fed. Cir. 2018). Hence, there remain no allegations of errors of fact or law for appellate consideration. Accordingly, the Board does not have jurisdiction to review the issue of entitlement to an initial compensable rating for posttraumatic headaches, and it is dismissed. II. Service Connection for TBI Residuals The Veteran seeks entitlement to service connection for TBI residuals, which he contends are related to an in-service IED blast. A. Legal Criteria Service connection is warranted where the evidence of record establishes that a particular injury or disease resulting in disability was incurred in the line of duty in the active military service or, if pre-existing such service, was aggravated thereby. 38 U.S.C. 1110, 1131; 38 C.F.R. 3.303 (a). Establishing service connection generally requires (1) evidence of a current disability; (2) evidence of in-service incurrence or aggravation of a disease or injury; and (3) evidence of a nexus between the claimed in-service disease or injury and the present disability. Shedden v. Principi, 381 F. 3d 1163, 1167 (Fed. Cir. 2004); see also Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd per curiam, 78 F. 3d 604 (Fed. Cir. 1996) (table); 38 C.F.R. § 3.303. Service connection may also be granted for any disease diagnosed after the military discharge, when all the evidence, including that pertinent to the period of military service, establishes that the disease was incurred during the active military service. 38 U.S.C. § 1113 (b); 38 C.F.R. § 3.303 (d). In determining whether service connection is warranted for a disability, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. 38 U.S.C. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination, the benefit of the doubt is afforded to the Veteran. B. Facts and Analysis The Veteran has been diagnosed with a TBI. See September 2020 VA Examination Report. Thus, the first Shedden requirement is satisfied. An August 2010 service treatment record shows that the Veteran was seen in the emergency room after an IED blast, and he was diagnosed with concussion and mild TBI. Accordingly, the second element of service connection is met. See Shedden, 381 F.3d at 1166-67. Having established a current disability and in-service injury, the question for consideration is whether the Veteran's TBI is related to such in-service injury. The Veteran was afforded a VA TBI examination in September 2020. The examiner diagnosed the Veteran with a TBI and opined that it was at least as likely as not related to the Veteran's in-service blast injury and subsequent concussion/mild TBI diagnosis. There are no contrary opinions of record. Therefore, all three elements of service connection have been met, and service connection for a TBI is warranted. III. Increased Rating for a Low Back Disability The Veteran contends that he is entitled to a higher disability rating for his back disability, which is currently assigned a 10 percent rating under C.F.R. § 4.71a, Diagnostic Code 5237 (lumbosacral or cervical strain). A. Legal Criteria Disability ratings are determined by the application of the VA's Schedule for Rating Disabilities. Separate diagnostic codes identify the various disabilities. 38 U.S.C. § 1155; 38 C.F.R. § Part 4. Ratings for service-connected disabilities are determined by comparing the Veteran's symptoms with criteria listed in VA's Schedule for Rating Disabilities, which is based, as far as practically can be determined, on average impairment in earning capacity. Where there is a question as to which of two disability evaluations shall be applied, the higher evaluation is to be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating is to be assigned. 38 C.F.R. § 4.7. The Veteran's entire history is reviewed when making disability evaluations. See generally 38 C.F.R. § 4.1; Schafrath v. Derwinski, 1 Vet. App. 589 (1995). Where, as here, the question for consideration is the propriety of the initial evaluation assigned, evaluation of the medical evidence since the grant of service connection and consideration of the appropriateness of "staged rating" is required. Fenderson v. West, 12 Vet. App. 119, 126 (1999). In making all determinations, the Board must fully consider the lay assertions of record. A Veteran is competent to report on that of which he or she has personal knowledge. Layno v. Brown, 6 Vet. App. 465, 470 (1994). When considering whether lay evidence is competent the Board must determine, on a case-by-case basis, whether the Veteran's particular disability is the type of disability for which lay evidence may be competent. Kahana v. Shinseki, 24 Vet. App. 428 (2011); see also Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the Veteran. 38 C.F.R. § 4.3. The criteria for rating disabilities of the spine are listed under Diagnostic Codes 5235 to 5243. All service-connected spine disabilities are evaluated under the General Rating Formula for Diseases and Injuries of the Spine (General Rating Formula), unless the spinal disability is rated under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes (Incapacitating Episodes Rating Formula). 38 C.F.R. § 4.71a, Diagnostic Codes 5235-5243. The Board notes that during the pendency of the appeal, the rating criteria for evaluating musculoskeletal disabilities under 38 C.F.R. § 4.71a were amended effective February 7, 2021. 85 Fed. Reg. 230 (Nov 30, 2020). These amendments revised select diagnostic codes "to ensure that this portion of the rating schedule uses current medical terminology and provides detailed and updated criteria for the evaluation of musculoskeletal disabilities." Id. However, the general rating criteria for diseases and injuries of the spine and the formula for rating intervertebral disc syndrome based on incapacitating episodes remain unchanged under the new rating criteria. If a law or regulation changes during the course of a claim or an appeal, the version more favorable to the Veteran will apply, to the extent permitted by any stated effective date in the amendment in question. 38 U.S.C. § 5110 (g); see also Kuzma v. Principi, 341 F.3d 1327 (Fed. Cir. 2003). If the revised version of the regulation is more favorable, the implementation of that regulation under 38 U.S.C. § 5110 (g) can be no earlier than the effective date of that change. If the former version is more favorable, VA can apply the earlier version of the regulation for the period prior to, and from, the effective date of the change. 38 U.S.C. § 5110; Kuzma, 341 F. 3d 1327. Therefore, the Board will consider the Veteran's claim under the old criteria prior to February 7, 2021, and both the old and new rating criteria from February 7, 2021. The criteria that is more favorable to the Veteran will be applied. Under the general rating formula, with or without symptoms such as pain, stiffness, or aching in the area of the spine affected by residuals of injury or disease, a 10 percent evaluation is assigned for forward flexion of the thoracolumbar spine greater than 60 degrees, but not greater than 85 degrees; or the combined range of motion of the thoracolumbar spine greater than 120 degrees, but not greater than 235 degrees; or muscle spasm, guarding, or localized tenderness not resulting in abnormal gait or abnormal spinal contour; or vertebral body fracture with loss of 50 percent or more of the height. A 20 percent rating is assigned for forward flexion of the thoracolumbar spine greater than 30 degrees, but not greater than 60 degrees; or the combined range of motion of the thoracolumbar spine not greater than 120 degrees; or muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis. A 40 percent rating is warranted if forward flexion of the thoracolumbar spine is to 30 degrees or less or if there is favorable ankylosis of the entire thoracolumbar spine. Unfavorable ankylosis of the entire thoracolumbar spine warrants a 50 percent rating, and unfavorable ankylosis of the entire spine warrants a 100 percent rating. 38 C.F.R. § 4.71a, Diagnostic Codes 5235-5243. There are several notes set out after the diagnostic criteria, which provide the following: first, associated objective neurologic abnormalities are to be rated separately under an appropriate diagnostic code. Second, for purposes of VA compensation, normal forward flexion of the thoracolumbar spine is zero to 90 degrees, extension is zero to 30 degrees, left and right lateral flexion are zero to 30 degrees, and left and right lateral rotation are zero to 30 degrees. The combined range of motion refers to the sum of the range of forward flexion, extension, left and right lateral flexion, and left and right rotation. The normal combined range of motion of the thoracolumbar spine is 240 degrees. The normal ranges of motion for each component of spinal motion provided in this note are the maximum that can be used for calculation of the combined range of motion. Third, in exceptional cases, an examiner may state that, because of age, body habitus, neurologic disease, or other factors not the result of disease or injury of the spine, the range of motion of the spine in a particular individual should be considered normal for that individual, even though it does not conform to the normal range of motion stated in the regulation. Fourth, each range of motion should be rounded to the nearest 5 degrees. 38 C.F.R. § 4.71a, Diagnostic Codes 5235-5243. Note five provides that for VA compensation purposes, unfavorable ankylosis is a condition in which the entire thoracolumbar spine, or the entire spine, is fixed in flexion or extension, and the ankylosis results in one or more of the following: difficulty walking because of a limited line of vision; restricted opening of the mouth and chewing; breathing limited to diaphragmatic respiration; gastrointestinal symptoms due to pressure of the costal margin on the abdomen; dyspnea or dysphagia; atlantoaxial or cervical subluxation or dislocation; or neurologic symptoms due to nerve root stretching. Fixation of a spinal segment in neutral position (zero degrees) always represents favorable ankylosis. 38 C.F.R. § 4.71a, Diagnostic Codes 5235-5243. Note six provides that disabilities of the thoracolumbar and cervical spine segments shall be separately evaluated, except when there is unfavorable ankylosis of both segments, which will be rated as a single disability. 38 C.F.R. § 4.71a, Diagnostic Codes 5235-5243. Under the incapacitating episodes rating formula, a 10 percent evaluation is to be assigned for IVDS with incapacitating episodes having a total duration of at least one week but less than two weeks during the past 12 months. A 20 percent evaluation is to be assigned for IVDS with incapacitating episodes having a total duration of at least two weeks but less than four weeks during the past 12 months. A 40 percent evaluation is to be assigned for IVDS with incapacitating episodes having a total duration of at least four weeks but less than six weeks during the past 12 months. A 60 percent evaluation is to be assigned for IVDS with incapacitating episodes having a total duration of at least six weeks during the past 12 months. An "incapacitating episode" is a period of acute signs and symptoms due to intervertebral disc syndrome that requires bed rest prescribed by a physician and treatment by a physician. 38 C.F.R. § 4.71a, Diagnostic Code 5243, Note 1. Under the former rating criteria, Diagnostic Code 5242 evaluated Degenerative arthritis of the Spine (see also Diagnostic Code 5003). 38 C.F.R. § 4.71a, Code 5242 (2020). Under the new criteria, Code 5242 applies to Degenerative arthritis, degenerative disc disease other than intervertebral disc syndrome (also, see either diagnostic code 5003 or 5010). See Schedule for Rating Disabilities: Musculoskeletal System and Muscle Injuries, 85 Fed. Reg. 76453, 76463 (Nov. 30, 2020) (to be codified at 38 C.F.R. § 4.71a, Diagnostic Code 5242). Under the former rating criteria, Diagnostic Code 5243 evaluated Intervertebral disc syndrome (IVDS). 38 C.F.R. § 4.71a, Code 5243 (2020). Under the new criteria, Code 5243 still applies to Intervertebral disc syndrome; but more specifically as this code is only to be assigned when there is disc herniation with compression and/or irritation of the adjacent nerve root; assign diagnostic code 5242 for all other disc diagnoses. See Schedule for Rating Disabilities: Musculoskeletal System and Muscle Injuries, 85 Fed. Reg. 76453, 76463 (Nov. 30, 2020) (to be codified at 38 C.F.R. § 4.71a, Diagnostic Code 5243). Disability of the musculoskeletal system is primarily the inability, due to damage or infection in parts of the system, to perform the normal working movements of the body with normal excursion, strength, speed, coordination, and endurance. Functional loss may be due to the absence or deformity of structures or other pathology, or it may be due to pain, supported by adequate pathology and evidenced by the visible behavior in undertaking the motion. Weakness is as important as limitation of motion, and a part that becomes painful on use must be regarded as seriously disabled. 38 C.F.R. § 4.40. In Mitchell v. Shinseki, 25 Vet. App. 32 (2011), the Court held that, although pain may cause a functional loss, "pain itself does not rise to the level of functional loss as contemplated by VA regulations applicable to the musculoskeletal system." Rather, pain may result in functional loss, but only if it limits the ability "to perform the normal working movements of the body with normal excursion, strength, speed, coordination, or endurance." Id. When evaluating musculoskeletal disabilities based on limitation of motion, 38 C.F.R. § 4.40 requires consideration of functional loss caused by pain or other factors listed in that section that could occur during flare-ups or after repeated use and, therefore, not be reflected on range-of-motion testing. 38 C.F.R. § 4.45 requires consideration also be given to less movement than normal, more movement than normal, weakened movement, excess fatigability, incoordination, and pain on movement. See DeLuca v. Brown, 8 Vet. App. 202 (1995); see also Mitchell v. Shinseki, 25 Vet. App. 32, 44 (2011). Nonetheless, even when the background factors listed in § 4.40 or 4.45 are relevant when evaluating a disability, the rating is assigned based on the extent to which motion is limited, pursuant to 38 C.F.R. § 4.71a (musculoskeletal system) or § 4.73 (muscle injury); a separate or higher rating under § 4.40 or 4.45 itself is not appropriate. See Thompson v. McDonald, 815 F.3d 781, 785 (Fed. Cir. 2016) ("[I]t is clear that the guidance of § 4.40 is intended to be used in understanding the nature of the veteran's disability, after which a rating is determined based on the § 4.71a [or 4.73] criteria."). B. Factual Background Turning to the evidence of record, the Veteran was afforded a VA back conditions examination in June 2017. He reported daily back pain that is exacerbated by bending, lifting, and twisting. He denied radicular symptoms and functional impairment. Range of motion testing was normal. Pain with right lateral rotation was noted on exam, but the pain did not result in functional loss. There was pain with passive range of motion. There was no evidence of pain with weight bearing or non-weight bearing, and there was no objective evidence of localized tenderness or pain on palpation. There was no evidence guarding or muscle spasm. With three repetitions, there was no loss of motion or function. The examiner indicated that pain, weakness, fatigability, or incoordination would not significantly limit functional ability with repeated use over time. The examiner also indicated that the Veteran did not experience flare-ups. The Veteran had normal reflexes, sensation, and motor function. Straight leg raising testing was negative, and the examiner noted that the Veteran had no radicular pain or any other signs or symptoms due to radiculopathy. There was no evidence of ankylosis or IVDS. X-rays did not document arthritis. The examiner diagnosed the Veteran with back strain. The Board also reviewed VA treatment records, which reflect occasional complaints of low back pain. During the November 2020 Board hearing, the Veteran testified that his low back symptoms had stayed constant throughout the appeal period, and he denied radiation of pain. C. Analysis Having carefully considered the Veteran's contentions in light of the evidence recorded and the applicable law, the Board finds that the criteria for a rating in excess of 10 percent were not met at any time during the appeal period. In order to warrant the next higher rating of 20 percent under the General Rating Formula, the evidence must show forward flexion of the thoracolumbar spine greater than 30 degrees, but not greater than 60 degrees; or the combined range of motion of the thoracolumbar spine not greater than 120 degrees; or muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis. 38 C.F.R. § 4.71a, Diagnostic Codes 5235 to 5243. In this case, the evidence does not indicate that forward flexion of the thoracolumbar spine was limited to 60 degrees or less, or that the combined range of motion of the thoracolumbar spine was 120 degrees or less. Forward flexion and combined range of motion was normal during the June 2017 VA examination. Nor does the evidence indicate that the Veteran had muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour. The June 2017 VA examiner found no evidence of localized tenderness, muscle spasm, or guarding, and there is no other evidence of localized tenderness, muscle spasm, or guarding contained in VA treatment records. The evidence also shows that the Veteran's back disability was not manifested by favorable ankylosis of the entire thoracolumbar spine, unfavorable ankylosis of the entire thoracolumbar spine, or unfavorable ankylosis of the entire spine, as defined in the notes to the General Rating Formula. Accordingly, a rating greater than 10 percent is not warranted under the General Rating Formula. See 38 C.F.R. § 4.71a. In reaching this determination, the Board has considered all applicable statutory and regulatory provisions to include 38 C.F.R. §§ 4.40 and 4.59, as well as the holding in Deluca v. Brown, 8 Vet. App. 202 (1995), regarding functional impairment attributable to pain. For a 20 percent evaluation, forward flexion of the thoracolumbar spine must be actually or functionally limited between 30 and 60 degrees, or the combined range of motion must be less than 120 degrees, or there must be muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour. The Board acknowledges that pain on motion must be taken into account when rating a disability based on limitation of motion, but pain alone does not warrant a higher disability rating. See Mitchell v. Shinseki, 25 Vet. App. 32 (2011) (holding that pain alone does not constitute functional loss but is just one factor to be considered when evaluating functional impairment). In order to assign a higher rating based on functional loss due to pain, the pain "must actually affect some aspect of 'the normal working movements of the body.'" Id. at 43 (quoting § 4.40). In Mitchell, the Court agreed that pain alone as a basis for a higher rating would produce such "absurd results" as for example where a claimant who experiences very slight pain throughout the range of motion of the knee would receive a 50 percent disability rating under DC 5261 and a 30 percent disability rating under DC 5260, whereas a claimant who experiences actual limitation of flexion to 30 degrees and limitation of extension to 20 degrees would only receive disability ratings of 20 percent and 30 percent respectively. Id. Moreover, although there was objective evidence of pain with right lateral rotation during the June 2017 VA examination, there is no persuasive evidence of record that the Veteran's subjective complaints of pain rise to the level of an individual who actually experiences functional loss at the level of 20 percent during this period. In this regard, even after repetitive motion, the Veteran's thoracolumbar spine range of motion was normal during the June 2017 VA examination, with no additional functional loss or limitation in range of motion with repetitive testing. Further, the examiner noted no additional functional loss or limitation of motion due to pain, to include with repeated use over time, and the Veteran denied flare-ups. Thus, while the Board notes the Veteran's complaints of pain, the evidence does not show that pain causes additional functional loss beyond that recorded on range of motion testing. See 38 C.F.R. §§ 4.40, 4.45; DeLuca, 8 Vet. App. at 206-07; Mitchell, 25 Vet. App. at 42-43. Moreover, even acknowledging that the Veteran's pain may at times have resulted in additional functional loss than that objectively demonstrated, especially with repeated use over time, and even when such functional limitations are considered, the evidence does not reflect functional impairment comparable to forward flexion of the thoracolumbar spine less than 60 degrees; combined range of motion of the thoracolumbar spine less than 120 degrees; or muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour. Thus, while the Board notes the Veteran's complaints of pain, the evidence does not show that pain causes additional functional loss beyond that recorded on range of motion testing. See 38 C.F.R. §§ 4.40, 4.45; DeLuca, 8 Vet. App. at 206-07; Mitchell, 25 Vet. App. at 42-43. As discussed above, the Veteran's range of motion was normal, even with consideration of pain and other such factors, and the Board finds that the Veteran's rating of 10 percent adequately encompasses the Veteran's functional impairment. Accordingly, the Veteran's disability picture does not meet or approximate the criteria described for a rating greater than 10 percent under the General Rating Formula based on limitation of motion. See 38 C.F.R. §§ 4.40, 4.45, 4.59; see also DeLuca, 8 Vet. App. at 202. The General Rating Formula also indicates that associated neurologic abnormalities are to be rated separately under the appropriate diagnostic code. Here, there is no evidence of any neurologic abnormalities associated with the Veteran's back disability. Initially, the Board notes that the Veteran is already separately service-connected for erectile dysfunction as secondary to his service-connected PTSD. Moreover, as discussed above, the Veteran denied radiation of pain, and muscle strength, reflex, and sensation testing were normal during the June 2017 VA examination and during the November 2020 Board hearing. Moreover, the VA examiner noted no evidence of radiculopathy or other neurologic abnormalities. Based on the foregoing, the Board finds that a preponderance of the evidence shows that the Veteran does not experience any neurologic abnormalities associated with his low back disability, to include lower extremity radiculopathy. Accordingly, the Board finds that a separate rating is not warranted for any objective neurological symptoms. Alternatively, the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes allows a rating of 20 percent where there is intervertebral disc syndrome with incapacitating episodes having a total duration of at least 2 weeks but less than 4 weeks during the past 12 months. In this case, the evidence of record does not show that the Veteran had incapacitating episodes as defined by VA regulations during this period. Nor does the evidence reflect a diagnosis of IVDS. Although the Veteran reported back pain, there is no evidence from any of the Veteran's medical providers that bedrest was prescribed by a physician for treatment of his spine disability. In this regard, the evidence shows that the Veteran's back condition has been treated conservatively. The Board accordingly finds that there is no credible evidence indicating that the Veteran's low back disability resulted in incapacitating episodes under the criteria set forth in the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes sufficient to warrant a higher rating based upon incapacitating episodes. Therefore, a disability rating in excess of 10 percent under Diagnostic Code 5243 is not warranted. Moreover, the revised criteria, effective from February 7, 2021, would not result in a higher rating because without evidence of incapacitating episodes such that Diagnostic Code 5243 applies, the revisions have no effect on the adjudication of the Veteran's claim after that date. In other words, applying Diagnostic Code 5243 both before and after February 7, 2021 does not result in a higher rating. The Board recognizes the Veteran's sincere belief that he is entitled to a higher rating. The Veteran is competent to report his symptoms and credible in his belief that his back disability warrants a higher rating. His competent and credible lay evidence, however, is outweighed by competent and credible medical evidence that evaluates the true extent of the back impairment based on objective data coupled with the lay complaints. In this regard, the Board notes that the VA examiners have the training and expertise necessary to administer the appropriate tests for a determination of the type and degree of the impairment associated with the Veteran's complaints. For these reasons, greater evidentiary weight is placed on the examination findings in regard to the type and degree of impairment. Thus, while the Board acknowledges the Veteran's reports of back symptomatology, the evidence in this case shows that the 10 percent rating assigned appropriately compensates the Veteran to the extent that he does have functional loss due to limited or excess movement, pain, weakness, excess fatigability, and/or incoordination. See 38 C.F.R. §§ 4.40 and 4.4; DeLuca. The Board has considered whether any additional Diagnostic Codes are applicable; however, the Board finds that the ratings discussed above are the most appropriate. The Board has also considered whether staged ratings are necessary during the appeal period. However, based on the facts found, the Board finds that the 10 percent rating assigned for the Veteran's back disability is appropriate for the entire period. See Hart v. Mansfield, 21 Vet. App. 505 (2007). For the foregoing reasons, the Board finds that the claim for a higher rating must be denied. In reaching this conclusion, the Board has considered the applicability of the benefit-of-the-doubt doctrine. However, as the preponderance of the evidence is against the Veteran's claim for a higher rating, that doctrine is not applicable. See 38 U.S.C. § 5107 (b); 38 C.F.R. §§ 3.102, 4.3; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). REASONS FOR REMAND Right Shoulder Condition The Veteran seeks service connection for a right shoulder condition, which he contends is related to an in-service shoulder injury. He also contends that his right shoulder condition worsened after his last period of active service because he was a .50 cal gunner and up-armored vehicle driver, which put additional strain on his shoulder. During the Veteran's March 2000 enlistment examination, he denied a history of shoulder problems, and his upper extremities were evaluated as clinically normal. No relevant abnormalities were noted. During the Veteran's second period of active service, an August 2001 service treatment record shows that the Veteran reported a three-day history of right shoulder pain after falling and hitting concrete. On examination, the Veteran's right shoulder was swollen and tender, and there was evidence of deformity. He was diagnosed with osteophyte separation. An October 2001 Annual Medical Certification form shows that the Veteran reported that he injured his right shoulder "before training" and that he reinjured it during his second period of service (AIT). He also reported that his shoulder only bothered him when lifting very heavy weights. During the Veteran's third period of active service, a May 2004 demobilization examination shows that the Veteran reported pain, swelling, and bone deformity from his clavicle separation. An August 2004 VA treatment record shows that the Veteran reported that he originally injured his right shoulder when he fell out of a moving car. He indicated that he went through basic training without difficulty but that he injured his right shoulder again in AIT when he fell on a concrete floor. During the Veteran's fourth period of active service, a February 2007 service treatment record shows that the Veteran reported a one-day history of upper right shoulder pain after performing weight training. An August 2007 annual medical assessment shows that the Veteran reported more problems with his right shoulder. A September 2007 Annual Medical Certification form shows that the Veteran reported continuing pain/discomfort from his prior shoulder injury. He also reported that his shoulder pain started in AIT but that he reaggravated his shoulder during his deployment. A December 2007 post-deployment health reassessment shows that the Veteran reported shoulder pain. During the Veteran's fifth period of active service, an April 2008 service treatment record shows that the Veteran reported shoulder pain, and there was tenderness to palpation on examination. He was diagnosed with possible mild tendinitis of biceps tendon and shoulder pain. During the Veteran's final period of service, a December 2010 post-deployment health assessment shows that the Veteran reported right shoulder pain during his deployment. He was advised to get follow-up care at a VAMC once he demobilized. A May 2011 post-deployment health reassessment shows that the Veteran reported continuing right shoulder pain. A July 2011 service treatment record shows that the Veteran was evaluated for right shoulder pain and found fit for duty. An August 2011 VA treatment record shows that the Veteran was evaluated for right shoulder pain and diagnosed with right acromioclavicular (AC) joint type III chronic dislocation. The Veteran was afforded a VA shoulder conditions examination in February 2012. He reported that he injured his right AC joint at age 17 prior to enlistment and that he reinjured his right shoulder in AIT. X-rays showed bone spurring and right AC separation with subluxation of the right clavicle. The examiner diagnosed the Veteran with AC joint separation and clavicle subluxation. In an August 2012 addendum report, a different VA examiner opined that the Veteran's right shoulder condition was less likely as not related to service because the Veteran self-reported a shoulder injury prior to service. The examiner acknowledged the in-service shoulder injury, but he indicated that it was less likely than not that a single injury in service was the defining point of subluxation "but rather a continuum of injuries" pre-dating service. The examiner also opined that the Veteran's right shoulder condition, which clearly and unmistakably existed prior to service, was clearly and unmistakably not aggravated beyond its natural progression during service because the "natural history of AC separation is one of re-injury with falls." Every veteran shall be taken to have been in sound condition when examined, accepted, and enrolled for service, except as to defects, infirmities, or disorders noted at the time of the examination, acceptance, and enrollment, or where clear and unmistakable evidence demonstrates that the injury or disease existed before acceptance and enrollment and was not aggravated by such service. 38 U.S.C. § 1111. Thus, when no preexisting condition is noted upon entry into service, the veteran is presumed sound. See Wagner v. Principi, 370 F.3d 1089 (Fed. Cir. 2004). However, if a preexisting disorder is noted upon entry into service, the veteran cannot bring a claim for service connection for that disorder, but the veteran may bring a claim for service-connected aggravation of that disorder. Jensen v. Brown, 19 F.3d 1413 (Fed. Cir. 1994). Where a preexisting disease or injury is noted on the entrance examination, section 1153 of the statute provides that "[a] preexisting injury or disease will be considered to have been aggravated by active military, naval, or air service, where there is an increase in disability during such service, unless there is a specific finding that the increase in disability is due to the natural progress of the disease." 38 U.S.C. § 1153; 38 C.F.R. § 3.306 (a). The Court has held that lay statements by an appellant concerning a preexisting condition are not sufficient to rebut the presumption of soundness. See Paulson v. Brown, 7 Vet. App. 466, 470 (1995) (stating that a lay person's account of what a physician may or may not have diagnosed is insufficient to support a conclusion that a disability preexisted service); Crowe, 7 Vet. App. at 246 (1994) (finding that supporting medical evidence is needed to establish the presence of a preexisting condition). Moreover, the Court has held that the presumption of soundness upon entry into service may not be rebutted without "contemporaneous clinical evidence or recorded history" in the record. Miller v. West, 11 Vet. App. 345, 348 (1998). In this regard, a higher court has subsequently explained the Miller decision by noting that "[n]othing in the court's opinion suggests that without such evidence the presumption can never be rebutted," emphasizing that any such determination must consider "how strong the other rebutting evidence might be." Harris v. West, 203 F.3d 1347, 1351 (Fed. Cir. 2000). Here, the Board finds the opinions and rationale of the August 2012 VA examiner that the Veteran's right shoulder condition clearly and unmistakably preexisted service to be inadequate to rebut the presumption of soundness. In this regard, the Veteran's reports that he previously experienced a right shoulder injury does not constitute the "clear and unmistakable evidence" needed to rebut the presumption of soundness upon entry into service. Indeed, lay statements by a Veteran concerning a preexisting condition are not sufficient to rebut the presumption of soundness; rather, supporting medical evidence is needed to establish the presence of a preexisting condition. The fact remains that no defects were noted at the time of the Veteran's March 2000 enlistment examination. Therefore, the Veteran is presumed sound as to his right shoulder, and the burden is on VA to rebut the presumption by clear and unmistakable evidence that a right shoulder condition both pre-existed and was not aggravated by service. In light of the foregoing, the Board finds that an addendum opinion is necessary to assist the Board in rendering the appropriate legal determinations in this case. See Barr v. Nicholson, 21 Vet. App. 303, 311 (2007) (stating that once VA undertakes the effort to provide an examination when developing a service-connection claim, even if not statutorily obligated to do so, it must provide an adequate one or, at a minimum, notify the claimant why one will not or cannot be provided). Hearing Loss The Veteran seeks a compensable rating for his left ear hearing loss. The Board notes that the Veteran was last afforded a VA examination to assess the severity of his service-connected left ear hearing loss disability in June 2017, over four years ago. During the November 2020 Board hearing, the Veteran testified that his hearing may have worsened since his last examination. To ensure that the record reflects the current severity of the Veteran's service-connected disabilities on appeal, more contemporaneous examinations are warranted. See Caffrey v. Brown, 6 Vet. App. 377, 381 (1994) (determining that Board should have ordered contemporaneous examination of Veteran because a 23-month-old exam was too remote in time to adequately support the decision in an appeal for an increased rating); Green v. Derwinski, 1 Vet. App. 121, 124 (1991) (holding that where the record does not adequately reveal the current state of that disability, the fulfillment of the statutory duty to assist requires a thorough and contemporaneous medical examination). The Veteran also seeks entitlement to service connection for right ear hearing loss. During the June 2017 VA examination, the Veteran did not exhibit a right ear hearing loss disability for VA purposes pursuant to 38 C.F.R. §3.385. However, in light of the fact that the Veteran will be reexamined to determine the severity of his left ear hearing loss, as well as the length of time since he was last examined, the Board finds that, if the Veteran demonstrates a right ear hearing loss disability on examination, an opinion regarding its etiology should also be obtained. The matters are REMANDED for the following action: 1. Obtain and associate with the Veteran's claims file all outstanding VA treatment records documenting treatment for the issues on appeal. The Veteran should also be given the opportunity to identify and/or submit any additional private treatment records pertinent to his claim. 2. After all available records have been associated with the claims file, obtain a VA medical opinion to determine the etiology of the Veteran's right shoulder condition. The need for another examination is left to the discretion of the medical professional offering the addendum opinion. The entire claims file and a copy of this Remand must be made available to the reviewing examiner and the examiner shall indicate in the report that the claims file was reviewed. After reviewing the claims file, and if necessary, examining the Veteran, the examiner should address the following: (a.) For each diagnosed right shoulder condition present during the pendency of the appeal, to include right shoulder AC joint type III chronic dislocation, AC joint separation, and clavicle subluxation, the physician should opine as to whether that disability clearly and unmistakably (i.e., highest degree of medical certainty) pre-existed military service. If pre-existence is demonstrated clearly and unmistakably, the physician should then opine whether the disorder was clearly and unmistakably not aggravated (i.e., not permanently worsened beyond the natural progression of the disease) during military service. If necessary, and to the extent possible, reconcile this opinion with service treatment records showing complaints and treatment relating to right shoulder symptoms and the Veteran's lay statements regarding onset and continuity of right shoulder symptoms. If it is found that there is clear and unmistakable evidence that the Veteran's right shoulder condition existed prior to service AND that there is clear and unmistakable evidence that the condition was not aggravated by service, the examiner should clearly indicate the clear and unmistakable evidence supporting his/her conclusions. (b.) If, however, the examiner cannot clearly and unmistakably determine that a right shoulder condition pre-existed military service, or that any preexisting disability was not aggravated in service, the physician must take as conclusive fact that the Veteran's right shoulder condition was sound on entrance into the military. After presuming such, the physician should then opine as to whether it is at least as likely as not (i.e., 50 percent or greater probability) that the Veteran's currently diagnosed right shoulder condition is related to his active military service, to include the documented in-service shoulder injury in August 2001. The physician should especially review and comment on service treatment records showing treatment for right shoulder pain and the Veteran's November 2020 hearing testimony regarding his duties during his last deployment. The examiner's report must reflect consideration of the Veteran's entire documented medical history and assertions and all lay evidence. A rationale for all requested opinions shall be provided. The reasons and bases for each opinion are to be fully explained with a complete discussion of the evidence of record and sound medical principles, including the use of any medical literature (if deemed warranted), which may reasonably explain the medical guidance in the study of this case. If the examiner is unable to provide an opinion without resort to speculation, he or she should explain why this is so and what, if any, additional evidence would be necessary before an opinion could be rendered. 3. After all available records have been associated with the claims file, the Veteran should be afforded an appropriate VA examination to determine the current severity of his left ear hearing loss and the nature and etiology of his right ear hearing loss. The claims file and a copy of this remand must be made available to the examiner in conjunction with the examination. After review of the claims file and examination of the Veteran, the examiner is asked to address the following: (a.) Confirm whether the Veteran has a current right ear hearing loss disability, per VA regulatory standards. If he does, the examiner should opine as to whether it is at least as likely as not (i.e., 50 percent probability or greater) that the Veteran's right ear hearing loss began in service, was caused by service, or is otherwise related to service. For purposes of this opinion, the examiner should presume that the Veteran suffered an "in-service injury" of acoustic trauma. The examiner is also advised that the Veteran is competent to report his symptoms and history, and such reports must be acknowledged and considered in formulating any opinion. (b.) The examiner should also report the extent of the Veteran's left ear hearing loss disability in accordance with VA rating criteria and include an opinion regarding the functional effects caused by the Veteran's left ear hearing loss disability. A complete rationale must be provided for all opinions offered. If an opinion cannot be offered without resorting to mere speculation, the examiner should explain in full why this is the case and identify what additional evidence (if any) would allow for a more definitive opinion. 4. After completing the requested actions, and any additional notification and/or development deemed warranted, re-adjudicate the Veteran's claim. If the claim remains denied, the Veteran and his representative should be furnished a supplemental statement of the case and be allowed an appropriate period of time for response. The case should be returned to the Board for further appellate review, if otherwise in order. B. MULLINS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board R. Kipper, 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.