Citation Nr: 21066248 Decision Date: 10/29/21 Archive Date: 10/29/21 DOCKET NO. 17-40 127A DATE: October 29, 2021 ORDER The application to reopen the previously denied claim of entitlement to service connection for lumbosacral spine degenerative disc disease (lumbar spine disability) is granted. Entitlement to service connection for a sleep disability is denied. Entitlement to service connection for tinnitus is granted. Entitlement to an initial compensable rating for allergic rhinitis is denied. Entitlement to an increased rating of 10 percent, but not higher, for tension headaches is granted, subject to the laws and regulations controlling the award of monetary benefits. REMANDED Entitlement to service connection for lumbar spine disability is remanded. Entitlement to service connection for bilateral hearing loss is remanded. Entitlement to service connection for sinusitis is remanded. Entitlement to service connection for type 2 diabetes mellitus (DMII) is remanded. Entitlement to service connection for bilateral lower extremity peripheral neuropathy secondary to DMII is remanded. FINDINGS OF FACT 1. In a July 1991 rating decision, the Regional Office (RO) denied the Veteran's claims for entitlement to service connection for lumbar spine disability; the Veteran did not timely perfect an appeal of that decision, or submit new and material evidence within one year of notification. 2. Evidence added to the record since the July 1991 rating decision relates to an unestablished fact necessary to substantiate the claim, and raises a reasonable possibility of substantiating the claim. 3. The Veteran does not have a sleep disability or sleep disability symptomatology, and has not had a sleep disability or sleep disability symptomatology during the period on appeal. 4. The evidence is at least evenly balanced as to whether the Veteran's tinnitus is related to service. 5. The Veteran's allergic rhinitis symptomatology did not more nearly approximate greater than 50 percent obstruction of nasal passage on both sides, complete obstruction on one side, or polyps. 6. The evidence is at least evenly balanced as to whether the Veteran's tension headache symptomatology more nearly approximates characteristic prostrating attacks averaging one in two months, over the last several months, but does not more nearly approximate characteristic prostrating attacks, occurring on an average of once a month over the last several months. CONCLUSIONS OF LAW 1. The July 1991 RO decision that denied service connection for lumbar spine disability is final. 38 U.S.C. § 7105(c); 38 C.F.R. § 3.156(b), 20.1103. 2. The criteria for reopening the claim of entitlement to service connection for lumbar spine disability have been met. 38 U.S.C. § 5108; 38 C.F.R. § 3.156 (a). 3. The criteria for entitlement to service connection for a sleep disability have not been met. 38 U.S.C. §§ 1131, 5107(b); 38 C.F.R. §§ 3.303, 3.304(d). 4. With reasonable doubt resolved in favor of the Veteran, the criteria for entitlement to service connection for tinnitus have been met. 38 U.S.C. §§ 1131, 5107(b); 38 C.F.R. §§ 3.303, 3.304(d). 5. The criteria for an initial compensable rating for allergic rhinitis are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.10, 4.21, 4.31, 4.97, Diagnostic Code (DC) 6522. 6. With reasonable doubt resolved in favor of the Veteran, the criteria for an increased rating of 10 percent, but not higher, for tension headaches have been met. U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.10, 4.21, 4.124a, DC 8100. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from November 1984 to March 1985, January 1986 to June 1988, and June 1988 to June 1990. This matter comes to the Board of Veterans' Appeals (Board) on appeal from August 2014 and May 2015 rating decisions of the Department of Veterans Affairs (VA) RO which respectively and among other things: continued a noncompensable rating for tension headaches, denied reopening a claim for service connection for lumbar spine disability, continued the denials of service connection for hearing loss and DMII, denied service connection for OSA, and bilateral lower extremity peripheral neuropathy; continued a noncompensable rating for allergic rhinitis, and denied service connection for sinusitis, and tinnitus. The Veteran filed his notices of disagreement with the ratings assigned, the denials of service connection, and the reopening denial in September 2014, and August 2015, was issued a statement of the case in June 2017, and in August 2017 perfected his appeals to the Board. In a July 2020 supplemental statement of the case, the RO informed the Veteran that his claims for higher ratings, to reopen a claim for service connection, and entitlement to service connection had been denied. The Board notes that the Veteran included in his September 2014 notice of disagreement claims for service connection for right wrist pain and right knee contusion which had previously been denied in a July 1991 rating decision and not reopened. Thus, the issues of entitlement to service connection for right wrist pain and right knee contusion have been raised by the record, but have not yet been adjudicated by the Agency of Original Jurisdiction (AOJ); therefore, the Board does not have jurisdiction over the claim. The issues are referred to the RO for appropriate action, to include informing the Veteran and his attorney that an application to reopen a claim for benefits must be submitted on the application form prescribed by the Secretary of VA and providing such forms. See 38 C.F.R. § 3.150 (a) (providing for furnishing of appropriate application form upon request for VA benefits); 38 C.F.R. § 20.904 (b) ("The Board shall refer to the agency of original jurisdiction for appropriate consideration and handling in the first instance all claims reasonably raised by the record that have not been initially adjudicated by the agency of original jurisdiction"). The Board also acknowledges the Veteran's representative's contention that service connection has been granted for bilateral hearing loss since December 1991 as evidenced by a December 4, 1991 letter. Unfortunately, the letter erroneously informed the Veteran that service connection had been established with bilateral hearing loss rated as noncompensable. The RO denied the Veteran's claim for service connection for bilateral hearing loss and notified the Veteran in the previously noted rating decisions which the Veteran properly appealed. The Board will now adjudicate the Veteran's claims, including the claim for service connection for bilateral hearing loss. NEW AND MATERIAL In a July 1991 rating decision, the RO denied, inter alia, the Veteran's claim of entitlement to service connection for lumbar spine disability. The Veteran filed a timely notice of disagreement in September 1991 and was issued a statement of the case in October 1991. However, the Veteran did not timely perfect his appeal, thus, the July 1991 rating decision became final. Generally, a claim which has been denied in an unappealed AOJ decision is final and may not thereafter be reopened and allowed. 38 U.S.C.§ 7105 (c); 38 C.F.R. § 20.1100. One exception to this rule is that a previously denied claim may be reopened by submission of new and material evidence. 38 U.S.C. § 5108; 38 C.F.R.§ 3.156. New and material evidence cannot be cumulative or redundant of the evidence of record at the time of the last prior final denial of the claim sought to be reopened, and must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a). The threshold for determining whether new and material evidence raises a reasonable possibility of substantiating a claim is "low." See Shade v. Shinseki, 24 Vet. App. 110, 117 (2010). In determining whether this low threshold is met, VA should not limit its consideration to whether the newly submitted evidence relates specifically to the reason why the claim was last denied, but instead should ask whether the evidence could reasonably substantiate the claim were the claim to be reopened, either by triggering the Secretary's duty to assist, or through consideration of an alternative theory of entitlement. Id. at 118. At the time of the July 1991 rating decision, evidence relevant to the service connection claim included service treatment records from January 1986 to June 1990. Evidence received since the July 1991 rating decision includes VA treatment records reflecting treatment for low back pain, a November 2013 medical opinion, and the Veteran's representative's brief. This evidence is not redundant of the record and raises a reasonable possibility of substantiating the claims as the VA treatment records provide evidence of a current disability, and treatment since service. The evidence is thus new and material, and the service connection claim for lumbar spine disability is reopened. SERVICE CONNECTION Service connection will be granted if the evidence demonstrates that current disability resulted from an injury suffered or disease contracted in active military, naval, or air service. 38 U.S.C. § 1131; 38 C.F.R. § 3.303(a). Establishing service connection generally requires competent evidence of three things: (1) current disability; (2) in-service injury or disease; and (3) a relationship between the two. Saunders v. Wilkie, 886 F.3d 1356, 1361 (Fed. Cir. 2018). Consistent with this framework, service connection is warranted for a disease first diagnosed after service when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Service connection is also warranted for disability proximately due to or the result of a service-connected disease or injury. 38 C.F.R. § 3.310 (a). Such secondary service connection is warranted for any increase in severity of a nonservice-connected disability that is proximately due to or the result of a service-connected disease or injury. 38 C.F.R. § 3.310 (b). Sleep Disability The Veteran's service treatment records do not reflect treatment for, or complaints of a sleep disability, or sleep disability symptomatology, his May 1990 medical examination report upon discharge is normal, and his May 1990 medical history report does not indicate that the Veteran suffered from a sleep disability, or sleep disability symptomatology. July 2012 VA treatment records reflect that the Veteran reported that things are going "great", and that he did not suffer from sleep disturbance. In his August 2017 Form 9, the Veteran reported that his lack of sleep during service contributed to his insomnia. For the following reason the claim must be denied. The presence of a disability at the time of filing of a claim or during its pendency warrants a finding that the current disability requirement has been met, even if the disability resolves prior to the Board's adjudication of the claim. McClain v. Nicholson, 21 Vet. App. 319, 321 (2007). Moreover, the Board cannot draw a bright line at the date of claim but must consider all the evidence of record in determining whether the Veteran has met the current disability requirement. Romanowsky v. Shinseki, 26 Vet. App. 289, 293 (2013) (Board erred in failing to address pre-claim evidence in assessing whether a current disability existed, for purposes of service connection, at the time the claim was filed or during its pendency). In addition, pain can constitute disability if it results in impairment and is due to disease or injury in service. Saunders, 886 F.3d 1356, 1364-65. In this case, however, the weight of the evidence reflects that the Veteran has not suffered from a sleep disability, or sleep disability symptomatology at any time during the pendency of the claim. The Veteran's treatment records during service and post-service are devoid of any indication that the Veteran suffered from, or was treated for a sleep disability or sleep disability symptomatology at any time during the period on appeal. Moreover, while the Veteran has reported insomnia caused by lack of sleep during service, the evidence does not reflect sleep disability symptoms that cause impairment in earning capacity, or that is related to, or may be associated with service. The Board acknowledges that, to date, the Veteran has not been afforded a VA examination for a sleep disability. However, the Veteran has not provided evidence of persistent or recurrent symptoms of a sleep disability that may be associated with service, nor is evidence of persistent or recurrent symptoms of a sleep disability otherwise shown by the evidence of record. Thus, a VA examination under of McLendon v. Nicholson, 20 Vet. App. 79 (2006) is not warranted at this time. Under 38 U.S.C. § 5107 (a), a claimant has the responsibility to present and support a claim for VA benefits. See Skoczen v. Shinseki, 564 F.3d 1319, 1323 (Fed. Cir. 2009) (the "support" requirement of section 5107(a) obligates the claimant to provide some evidentiary basis for his or her benefits claim). The Veteran has not offered sufficient competent evidence which indicates that he suffers from a sleep disability or sleep disability symptomatology which resulted from a disease or injury that occurred in service. For the foregoing reasons, the preponderance of the evidence reflects that service connection for a sleep disability is not warranted. As the preponderance of the evidence is against the claim, the benefit of the doubt doctrine is not for application. 38 U.S.C. § 5107 (b); 38 C.F.R. §§ 3.102. Tinnitus The Veteran's service treatment records do not indicate that the Veteran was treated for tinnitus, and his May 1990 medical examination report and May 1990 medical history report upon discharge do not reflect complaints of tinnitus. The Veteran's DD-214 reflects that his military occupational specialties were as a unit supply specialist and personnel administrative specialist. In a November 2013 VA examination report, the Veteran reported that he experiences bilateral tinnitus which occurs once or twice a week and had its onset in service. He also reported exposure to excessive noise from heavy equipment and aircraft while in service as a supply clerk, and stated that he sometimes did not wear hearing protection due to being "in a hurry". The audiologist opined that the Veteran's tinnitus was less likely than not (less than a 50 percent probability) a symptom associated with the Veteran's hearing loss as hearing is within normal limits, and less likely than not (less than a 50 percent probability) caused by, or a result of military noise exposure as there were no complaints or reports of tinnitus during service, and the audiometric data does not suggest acoustic trauma. Tinnitus is a disability capable of lay observation, and the Veteran has offered competent, credible evidence that he experiences tinnitus. See Charles v. Principi, 16 Vet. App. 370, 374 (2002) ("ringing in the ears is capable of lay observation"). Additionally, the Veteran is competent to report the observable manifestations of his claimed disability and assert the occurrence of an in-service injury to include noise exposure. See Jandreau v. Nicholson, 492 F.3d at 1372, 1376-77 (Fed. Cir. 2007). The Veteran has also provided competent evidence of in-service noise exposure which is consistent with the circumstances of his service. 38 U.S.C. § 1154 (a); 38 C.F.R. § 3.303 (a) (each disabling condition for which a veteran seeks service connection must be considered based on factors including the basis of places, types, and circumstances of service as shown by service record). The dispositive issue is whether there is a nexus between the Veteran's in-service noise exposure and his tinnitus. For the following reasons, the evidence is at least evenly balanced as to whether the Veteran's tinnitus is related to in-service noise exposure. While the November 2013 audiologist opined that the Veteran's tinnitus was less likely than not caused by service, the audiologist based their opinion on a lack of complaints of tinnitus during service, and normal hearing. However, the audiologist did not consider the Veteran's reports of tinnitus symptomatology since service, and based her opinion on a lack of treatment records which is impermissible. See Buchanan v. Nicholson, 451 F. 3d 1331 (Fed. Cir. 2006). Therefore, the November 2013 examination report is afforded no probative value as to the etiology of the Veteran's tinnitus. The Veteran, however, has competently stated that he first noticed tinnitus during service, and has been suffering from it ever since. There is no indication in the evidence of record that the Veteran lacks credibility, thus his statements as to the onset of his tinnitus is afforded significant probative value. As the reasonable doubt created by this relative equipoise in the evidence must be resolved in favor of the Veteran, entitlement to service connection for tinnitus is warranted. 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102; Buchanan, 451 F.3d at 1335 ("[N]othing in the regulatory or statutory provisions [relating to evidence to be considered] require both medical and competent lay evidence; rather, they make clear that competent lay evidence can be sufficient in and of itself"). RATINGS Disability ratings are determined by applying the criteria set forth in the VA's Schedule for Rating Disabilities, which is based on the average impairment of earning capacity. Individual disabilities are assigned separate diagnostic codes. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. The basis of disability evaluations is the ability of the body as a whole, or of the psyche, or of a system or organ of the body to function under the ordinary conditions of daily life including employment. 38 C.F.R. § 4.10. In determining the severity of a disability, the Board is required to consider the potential application of various other provisions of the regulations governing VA benefits, whether or not they were raised by the Veteran, as well as the entire history of the Veteran's disability. 38 C.F.R. §§ 4.1, 4.2; Schafrath v. Derwinski, 1 Vet. App. 589, 595 (1991). If the disability more closely approximates the criteria for the higher of two ratings, the higher rating will be assigned; otherwise, the lower rating is assigned. 38 C.F.R. § 4.7. It is not expected that all cases will show all the findings specified; however, findings sufficiently characteristic to identify the disease and the disability therefrom and coordination of rating with impairment of function will be expected in all instances. 38 C.F.R. § 4.21. In deciding this appeal, the Board has considered whether separate ratings for different periods of time, based on the facts found, are warranted, a practice of assigning ratings referred to as "staged" ratings. See Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2008). Allergic Rhinitis The Veteran's allergic rhinitis is currently rated noncompensable under DC 6522. A compensable rating of 10 percent is warranted for allergic rhinitis without polyps, but with greater than 50 percent obstruction of nasal passage on both sides or complete obstruction on one side. A 30 percent rating is warranted for allergic rhinitis with polyps. This rating code does not contain provisions for a zero percent evaluation. In every instance where the schedule does not provide a zero percent evaluation for a diagnostic code, a zero percent evaluation shall be assigned when the requirements for a compensable evaluation are not met. 38 C.F.R. § 4.31. A November 2013 VA examination report indicates that the Veteran has a history of recurrent nasal congestion, and itchy eyes since the mid-1980s, and that he uses antihistamines daily with intermittent use of steroid spray and saline. The Veteran also reported occasional sinusitis, and stated he takes an antibiotic once every 2 years for sinus infection. The examiner noted rhinitis which did not cause greater than a 50 percent obstruction of the nasal passage on both sides, or complete obstruction on either the left or right side. There was no permanent hypertrophy of the nasal turbinates or nasal polyps, and the Veteran did not have any granulomatous conditions. The examiner stated that the Veteran's condition did not impact his ability to work, but noted that some congestion was associated with headaches, and pressure sensations. The preponderance of the evidence indicates that, since the grant of service connection, a compensable rating for allergic rhinitis is not warranted. Based on the above, the Veteran's allergic rhinitis has been manifested by nasal congestion and itchy eyes. As previously discussed, a compensable rating under DC 6522 requires greater than 50 percent obstruction of the nasal passage on both sides, or complete obstruction on one side, or nasal polyps. See 38 C.F.R. § 4.97. While nasal congestion is noted, it is not shown to approximate sufficient obstruction in one or both nasal passages as to warrant a compensable rating under this diagnostic code. The November 2013 examination report does not show obstruction of either nasal passage greater than 50 percent, complete obstruction of one nasal passage, or nasal polyps. There is no evidence of record which indicates that the Veteran suffered from symptoms which more nearly approximate those contemplated by a compensable rating under DC 6522 at any time during the period on appeal. The Board notes that when a condition is specifically listed in the Schedule, as is rhinitis, it may not be rated by analogy. Copeland v. McDonald, 27 Vet. App. 333, 337 (2015). The Board will therefore not consider any other diagnostic codes. As to consideration of referral for an extraschedular rating, the Veteran has not contended, and the evidence does not reflect, that he has experienced symptoms outside of those listed in the rating criteria. Doucette v. Shulkin, 28 Vet. App. 366, 369-70 (2017) (the Board is not obligated to analyze whether remand for referral for extraschedular consideration is warranted if "§ 3.321(b) (1) [is] neither specifically sought by [the claimant] nor reasonably raised by the facts found by the Board" (quoting Dingess v. Nicholson, 19 Vet. App. 473, 499 (2006), aff'd, 226 Fed. Appx. 1004 (Fed. Cir. 2007)). For the foregoing reasons, the preponderance of the evidence reflects that the Veteran's allergic rhinitis symptoms have not more nearly approximated the criteria for a compensable rating. As the preponderance of the evidence is against the claim, the benefit of the doubt doctrine is not for application. 38 U.S.C. § 5107 (b); 38 C.F.R. § 4.3. Tension Headaches The Veteran's tension headaches are currently rated noncompensable under DC 8100. Under DC 8100, a 10 percent rating is assigned with characteristic prostrating attacks averaging one in two months, over the last several months. A 30 percent rating is assigned with characteristic prostrating attacks occurring on an average of once a month over the last several months. Finally, a 50 percent rating is assigned for migraines with very frequent, completely prostrating headaches, with prolonged attacks that are productive of severe economic inadaptability. 38 C.F.R. § 4.124a, DC 8100. Prostrating under DC 8100 has been interpreted to mean "causing extreme exhaustion, powerlessness, debilitation or incapacitation with substantial inability to engage in ordinary activities." In Pierce v. Principi, 18 Vet. App. 440 (2004), the Court held that, where the Board refused to award a 50 percent disability rating for a headache disorder without discussing the "interplay" among the regulations found at 38 C.F.R. § 4.3 (reasonable doubt resolved in favor of claimant), 38 C.F.R. § 4.7 (higher possible evaluation applies "if disability picture more nearly approximates the criteria for that rating[;] otherwise, the lower rating will be assigned"), and 38 C.F.R. § 4.21 (all the elements specified in a disability grade need not necessarily be found although "coordination of rating with impairment of function will, however, be expected in all instances"), the Board committed reasons or bases error. See Pierce, 18 Vet. App. at 445. However, in Johnson v. Wilkie, 30 Vet. App. 245, 253 (2018), the Court clarified that the criteria of DC 8100 are successive and 38 C.F.R. § 4.7 is therefore not for application. In addition, in Pierce, the Court examined the "productive of severe economic inadaptability" criterion for a 50 percent evaluation under DC 8100 and noted that "[n]owhere in the DC is 'inadaptability' defined, nor can a definition be found elsewhere in title 38 of the [C.F.R.]." 18 Vet. App. at 446. The Court explained that, contrary to the Secretary's argument, "nothing in DC 8100 requires that the claimant be completely unable to work in order to qualify for a 50 percent rating" because "[i]f 'economic inadaptability' were read to import unemployability," a claimant who "met the economic-inadaptability criterion, would then be eligible for a rating of total disability based on individual unemployability [(TDIU)]... rather than just a 50 percent rating." Id. The Court therefore rejected the notion that "severe economic inadaptability" was equivalent to an inability to secure or follow a substantially gainful occupation, the unemployability standard for TDIU. Id. (citing 38 C.F.R. § 4.16 (a)). In addition, the Court in Pierce acknowledged the Secretary's concession that the phrase "productive of severe economic inadaptability" in DC 8100 should be construed as either "producing" or "capable of producing" severe economic inadaptability. Id. at 445. An August 2014 VA examination report indicates that the Veteran's tension headaches occur about 6 times a month, sometimes in the frontal region, sometimes occipital regions, and sometimes both regions. He reported taking ibuprofen for the headaches, but he did not indicate that he experiences non-headache symptoms associated with his tension headaches. The examination report reflects that his head pain lasts for 1 to 2 days, impacts both sides of his head, and that he did have characteristic prostrating attacks of non-migraine headache pain. The examiner noted that the Veteran did not have very prostrating and prolonged attacks of non-migraine pain productive of severe economic inadaptability. The examiner reported that the Veteran's headache pain impacted his ability to work as he reported missing a total of 10 days of work in the past 12 months due to his headaches. A February 2017 VA examination report reflects that the Veteran takes ibuprofen to treat his tension headaches, and that his headache pain is constant on both sides of his head, but the Veteran reported not suffering non-headache symptoms associated with headaches. He reported that his headaches occur on both sides of his head, and last less than 1 day. The examiner noted that the Veteran did not have characteristic prostrating attacks of non-migraine headache pain, or any other pertinent physical findings, complications, conditions, signs, or symptoms. The examiner indicated that the Veteran's tension headaches did not impact his ability to work. The evidence of record is at least evenly balanced as to whether the Veteran's tension headache symptomatology more nearly approximates prostrating attacks averaging one in two months, over the last several months as contemplated by a 10 percent disability rating. While the February 2017 VA examination report reflects that the Veteran did not have characteristic prostrating attacks of non-headache pain, the August 2014 VA examination report reflects that he does. The Veteran has also described constant headache pain on both sides of his head, and the evidence indicates that his headache pain lasts between less than one day to 2 days and requires the use of over the counter medication. The Veteran is competent to describe the symptoms associated with his migraine headaches, and there is no evidence of record which suggests he lacks credibility as to this symptomatology. Jandreau v. Nicholson, 492 F. 3d 1372, 1377, n.4 (Fed. Cir. 2007). The evidence regarding the Veteran's migraine symptomatology is thus afforded significant probative value. However, an initial rating higher than 10 percent is not warranted. While there is evidence that the Veteran suffers from characteristic prostrating attacks of non-migraine headache pain, there is no indication that the attacks occurred on an average of once a month over the last several months, particularly considering the evidence of the February 2017 examination which indicates that the Veteran did not suffer prostrating attacks of non-migraine headache pain at that time, or any other complications, signs, or symptoms. The evidence of record reflects that the Veteran's tension headaches have caused him to miss a total of 10 days of work in 12 months, thus the Board will consider whether an extraschedular rating under 38 C.F.R. § 3.321 (b)(1) is warranted. An exceptional or unusual disability picture occurs where the diagnostic criteria do not reasonably describe or contemplate the severity and symptomatology of a veteran's service-connected disability. Thun v. Peake, 22 Vet. App. 111, 115 (2008). If there is an exceptional or unusual disability picture, the Board must consider whether the disability picture exhibits other factors such as marked interference with employment and frequent periods of hospitalization. Id. at 115-116. When those two elements are met, the appeal must be referred for consideration of the assignment of an extraschedular rating to the Director of Compensation Service. 38 C.F.R. § 3.321 (b)(1). Here, referral to the Director of Compensation Service for extraschedular rating consideration is not warranted for the Veteran's tension headaches. The Veteran does not contend, and the evidence of record does not otherwise suggest, that his tension headache symptomatology presents an exceptional or unusual disability picture where the diagnostic criteria do not reasonably describe or contemplate the severity and symptomatology of his service connected disability. While the August 2014 examination report indicates that the Veteran's tension headache pain caused him to miss 10 days of work in 12 months, the Veteran's pain is specifically contemplated by the rating criteria under DC 8100. While the Veteran has provided evidence of marked interference with employment, he has failed to show that his tension headaches present an exceptional or unusual disability picture where the diagnostic criteria do not reasonably describe or contemplate the severity and symptomatology of his service connected disability. Therefore, the first element for extraschedular consideration under Thun has not been satisfied, and referral for consideration of an extraschedular rating is not warranted. 38 C.F.R. § 3.321; Thun, 22 Vet. App. 111. As the reasonable doubt caused by this relative equipoise in the evidence must be resolved in favor of the Veteran, entitlement to an increased 10 percent disability rating for migraine headaches under DC 8100 is warranted. As the preponderance of the evidence is against a higher rating, the benefit of the doubt doctrine is not otherwise for application. 38 U.S.C. § 5107 (b); 38 C.F.R. § 4.3. REASONS FOR REMAND Lumbar Spine Disability As previously discussed, in its August 2014 rating decision the RO denied the application to reopen the claim of service connection for lumbar spine disability because the evidence received since the most recent prior final denial was not new and material. The RO adhered to this determination in the subsequent statement of the case and supplemental statement of the case. In the decision above, the Board granted the application to reopen the claim of service connection for lumbar spine disability. When the Board reopens a claim after the RO has denied reopening that same claim, the matter generally must be returned to the RO for consideration of the merits. This is because the RO should, in the first instance, consider that new evidence and decide the matter so as to preserve for that claimant the one review on appeal as provided by 38 U.S.C. § 7104. Hickson v. Shinseki, 23 Vet. App. 394, 399-400 (2010). Here, the Board has not secured a waiver from the Veteran or his representative which would allow it to adjudicate the claim in the first instance. Consequently, a remand is required for initial RO review of the reopened claim of service connection for lumbar spine disability, to include any additional development deemed warranted. Hearing Loss A hearing loss disability is defined for VA compensation purposes with regard to audiologic testing involving pure tone frequency thresholds and speech discrimination criteria. 38 C.F.R. § 3.385. For purposes of applying the laws administered by VA, impaired hearing will be considered a disability when the auditory threshold in any of the frequencies of 500, 1,000, 2,000, 3,000, or 4,000 Hertz (Hz) is 40 decibels (dB) or greater; or when the auditory thresholds for at least three of the frequencies of 500, 1,000, 2,000, 3,000, or 4,000 Hz are 26 dB or greater; or when speech recognition scores using the Maryland CNC Test are less than 94 percent. Id. July 1988 service treatment records reflect that the Veteran was treated for left ear pain and had a history of ear infections. On the authorized audiological evaluation in November 2013, pure tone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 20 20 20 15 15 LEFT 20 20 15 15 10 Speech audiometry revealed speech recognition ability of 94 percent in the right ear and of 94 percent in the left ear. The Veteran reported that his wife tells him to turn down the television, and sometimes speaks to him and he cannot hear her. As previously noted, the Veteran reported exposure to excessive noise from heavy equipment and aircraft while in service as a supply clerk, and stated that he sometimes did not wear hearing protection due to being "in a hurry". The examining audiologist noted that the Veteran's hearing was within normal limits and did not meet the criteria for disability under VA regulations. The Veteran has provided competent and credible evidence of acoustic noise exposure during service consistent with his circumstances of service as a unit supply specialist, and has indicated that his hearing loss stems from the in-service acoustic noise exposure. However, there is no evidence of record that reflects bilateral hearing loss for VA purposes. VA must provide a medical examination or obtain a medical opinion when there is (1) competent evidence of a current disability or persistent or recurrent symptoms of a disability, (2) evidence establishing that an event, injury, or disease occurred in service, or establishing that certain diseases manifested during an applicable presumptive period for which the claimant qualifies, and (3) an indication that the disability or persistent or recurrent symptoms of a disability may be associated with the veteran's service or with another service-connected disability, but (4) there is insufficient competent medical evidence on file for the Secretary to decide the claim. McLendon, 20 Vet. App. at 79; see also 38 U.S.C. § 5103A (d)(2) (2012); 38 C.F.R. § 3.159 (c)(4)(i) (2018). The third prong, which requires that the evidence of record "indicate" that the claimed disability or symptoms "may be" associated with the established event, disease, or injury, is a low threshold. McLendon, 20 Vet. App. at 83. While the Veteran has reported bilateral hearing loss due to in-service noise exposure which has worsened, there is insufficient medical evidence for the Board to address whether the Veteran now meets the criteria for establishing hearing loss disability under 38 C.F.R. § 3.385, with the last audiological report of record from November 2013. Therefore, a remand for a VA examination is necessary to determine whether the Veteran now meets the criteria of 38 C.F.R. § 3.385. Sinusitis, DMII, Bilateral Lower Extremity Peripheral Neuropathy June 1986 service treatment records reflect treatment for bilateral maxillary sinus tenderness, and treatment for chronic sinus congestion. January 2012 VA treatment records reflect a complaint for sinus congestion. January 2012 VA treatment records indicate that the Veteran's neuropathy is worse in the evening and likely contribute to leg pain. September 2013 VA treatment records reflect that the Veteran indicated that he cannot walk more than an hour a day, lift more than 40 lbs., or sit and stand due to his peripheral neuropathy from his DMII. October 2013 VA treatment records reflect that lab results returned a diagnosis of DMII. In his August 2017 Form 9 appeal, the Veteran stated that his lack of sleep and poor eating habits during service caused his DMII. The Veteran's representative asserted in his August 2020 brief that the Veteran's sinusitis may be secondary to his service connected allergic rhinitis. Unfortunately, the Board cannot make a fully-informed decision on the issues of entitlement to service connection for sinusitis, DMII, or bilateral lower extremity peripheral neuropathy as no VA examiner has opined whether the Veteran's current sinus congestion, or DMII are related to service. The Veteran's service treatment records reflect treatment for sinus congestion, and his VA treatment records indicate that he has a diagnosis of DMII, and has been treated for sinus congestion and peripheral neuropathy. Additionally, the Veteran and his representative have indicated that his DMII may be associated with service due to his poor sleep and eating habits, and the Veteran's representative indicated that the Veteran's sinusitis may be due to his service connected allergic rhinitis. The Veteran's claim for service connection for bilateral lower extremity peripheral neuropathy is inextricably intertwined with the claim for service connection for DMII, as the September 2013 VA treatment records reflect that the peripheral neuropathy is due to his DMII. As the evidence is insufficient to make an informed decision on the claims, a remand for medical opinions is warranted. The matters are thus REMANDED for the following actions: 1. After conducting any additional development deemed appropriate, readjudicate the claim for entitlement to service connection for lumbar spine disability, with consideration of the new and material evidence of record. 2. Schedule the Veteran for a VA examination with an audiologist to conduct audiological and speech recognition testing. The audiologist should also opine as to whether a bilateral hearing loss disability, if present pursuant to the applicable regulation, is at least as likely as not (at least a 50 percent probability) related to service, to include exposure to acoustic noise during service. The audiologist is advised that the Veteran is competent to report symptoms and treatment, and these reports must be considered when formulating the requested opinion. Any opinion expressed must be accompanied by a complete rationale. 3. Obtain an opinion to determine the nature and etiology of the Veteran's sinus congestion. If an opinion cannot be obtained without an examination, schedule the Veteran for an examination, to include via telehealth if appropriate, to determine the nature and etiology of his sinus congestion. The clinician must opine whether any sinus congestion is at least as likely as not (at least a 50 percent probability) related to an in-service injury or disease, including the treatment for bilateral maxillary sinus tenderness and chronic sinus congestion reflected by his June 1986 service treatment records. The clinician must also opine as to whether any sinus congestion is at least as likely as not (at least a 50 percent probability) caused or aggravated by his service connected allergic rhinitis. A complete rationale should accompany any opinion(s) provided. The clinician is advised that the Veteran is competent to report symptoms, treatment, and injuries, and that his reports must be considered in formulating the requested opinions. 4. Obtain an opinion to determine the nature and etiology of the Veteran's DMII. If an opinion cannot be obtained without an examination, schedule the Veteran for an examination, to include via telehealth if appropriate, to determine the nature and etiology of his DMII. The clinician must opine whether the Veteran's DMII is at least as likely as not (at least a 50 percent probability) related to an in-service injury or disease, including the Veteran's reports of poor nutrition and lack of sleep during service. A complete rationale should accompany any opinion(s) provided. The clinician is advised that the Veteran is competent to report symptoms, treatment, and injuries, and that his reports must be considered in formulating the requested opinions. 5. Obtain an opinion to determine the nature and etiology of the Veteran's bilateral lower extremity peripheral neuropathy. If an opinion cannot be obtained without an examination, schedule the Veteran for an examination, to include via telehealth if appropriate, to determine the nature and etiology of his bilateral lower extremity peripheral neuropathy. The clinician must opine whether the Veteran's bilateral lower extremity peripheral neuropathy is at least as likely as not (at least a 50 percent probability) caused or aggravated by his DMII. A complete rationale should accompany any opinion(s) provided. The clinician is advised that the Veteran is competent to report symptoms, treatment, and injuries, and that his reports must be considered in formulating the requested opinions. Jonathan Hager Veterans Law Judge Board of Veterans' Appeals Attorney for the Board R. Maddox, 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.