Citation Nr: 21067649 Decision Date: 11/04/21 Archive Date: 11/04/21 DOCKET NO. 17-56 107A DATE: November 4, 2021 ORDER The claim of entitlement to a rating in excess of 40 percent for degenerative disc disease of the thoracolumbar spine is denied. The claim of entitlement to a rating in excess of 50 percent for service-connected headaches is denied. The claim of entitlement to a rating in excess of 10 percent for vertigo is denied. The claim of entitlement to a compensable rating for bilateral hearing loss is denied. The claim of entitlement to a rating in excess of 10 percent for tinnitus is denied. The claim of entitlement to a rating in excess of 50 percent for service-connected sleep apnea is denied. The claim of entitlement to an effective date earlier than June 12, 2015, for the grant of a 50 percent rating for service-connected headaches is denied. The claim of entitlement to an effective date earlier than October 29, 2014, for the grant of service connection for right lower extremity sciatic radiculopathy is denied. The claim of entitlement to an effective date earlier than October 29, 2014, for the grant of service connection for right lower extremity femoral radiculopathy is denied. The claim of entitlement to an effective date earlier than October 29, 2014, for the grant of service connection for sleep apnea is denied. REMANDED The claim of entitlement to a rating in excess of 20 percent for right lower extremity sciatic radiculopathy prior to May 27, 2021, and in excess of 40 percent thereafter is remanded. The claim of entitlement to a rating in excess of 20 percent for right lower extremity femoral nerve radiculopathy is remanded. The claim of entitlement to eligibility for automobile or other conveyance and adaptive equipment, or adaptive equipment only, is remanded. FINDINGS OF FACT 1. Throughout the period on appeal, the Veteran's degenerative disc disease of the thoracolumbar spine (hereinafter, a back disability) has not manifested with unfavorable ankylosis of the entire thoracolumbar spine or entire spine, nor have his symptoms been analogous to such. 2. The 50 percent rating currently in effect is the maximum schedular rating for service-connected headaches, and an extraschedular rating has not been sufficiently raised by the Veteran or the record. 3. Throughout the period on appeal, the Veteran's vertigo has manifested with episodes of dizziness, but not occasional staggering. 4. Veteran's bilateral hearing has manifested with hearing acuity of no worse than Level I in the right ear and no worse than Level II in the left ear. 5. The Veteran's service-connected tinnitus is assigned the maximum rating authorized under Diagnostic Code 6260, and an extraschedular rating has not been sufficient raised by the Veteran or the record. 6. The Veteran's sleep apnea does not manifest with chronic respiratory failure with carbon dioxide retention or cor pulmonale, nor does it require a tracheostomy. 7. The Veteran's entitlement to a grant of an increased evaluation for headaches arose as of June 12, 2015; the date of receipt of the claim for an increased rating. 8. The evidence of record reflects that the Veteran's right lower extremity sciatic radiculopathy existed as of October 29, 2014, which is the date of receipt of his claim for service connection in conjunction with an increased rating claim for his service-connected back disability. 9. The evidence of record reflects that the Veteran's right lower extremity femoral radiculopathy existed as of October 29, 2014, which is the date of receipt of his claim for service connection in conjunction with an increased rating claim for his service-connected back disability. 10. The evidence of record reflects that the Veteran's sleep apnea existed as of October 29, 2014, which is the date of receipt of his claim for service connection. CONCLUSIONS OF LAW 1. The criteria for a rating in excess of 40 percent for a back disability have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.71a, Diagnostic Codes 5242, 5243. 2. There is no legal basis for a schedular rating in excess of 50 percent for the Veteran's service-connected headaches, and remand for referral for consideration on an extraschedular basis is not warranted. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.124a, Diagnostic Code 8100. 3. The criteria for a rating in excess of 10 percent for vertigo have not been met. 38 U.S.C. §§ 1155, 5103(a), 5103A, 5107(b); 38 C.F.R. §§ 3.102, 3.159, 4.40, 4.45, 4.87, Diagnostic Code 6204. 4. The criteria for a compensable rating for bilateral hearing loss have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.85, 4.86, Diagnostic Code 6100. 5. There is no legal basis for a schedular rating in excess of 10 percent for the Veteran's tinnitus, and remand for referral for consideration on an extraschedular basis is not warranted. 38 U.S.C. § 1155, 5107; 38 C.F.R. § §§ 3.321, 4.87, Diagnostic Code 6260. 6. The criteria for a rating in excess of 50 percent for sleep apnea have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.2, 4.7, 4.10, 4.96, 4.97, Diagnostic Code 6847. 7. The criteria for an effective date prior to June 12, 2015, for the grant of a 50 percent rating for service-connected headaches have not been met. 38 U.S.C. §§ 5107, 5110; 38 C.F.R. §§ 3.157, 3.159, 3.340, 3.341, 3.400. 8. The criteria for an effective date earlier than October 29, 2014, for the grant of service connection for right lower extremity sciatic radiculopathy have not been met. 38 U.S.C. §§ 5103, 5103A, 5110; 38 C.F.R. § 3.400. 9. The criteria for an effective date earlier than October 29, 2014, for the grant of service connection for right lower extremity femoral radiculopathy have not been met. 38 U.S.C. §§ 5103, 5103A, 5110; 38 C.F.R. § 3.400. 10. The criteria for an effective date earlier than October 29, 2014, for the grant of service connection for sleep apnea have not been met. 38 U.S.C. §§ 5103, 5103A, 5110; 38 C.F.R. § 3.400. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had honorable active duty service with the United States Navy from May 1986 to August 1990. The instant matter is on appeal from May 2015, October 2015, November 2015, and May 2016 rating decisions. The Board previously remanded a portion of the issues herein for additional evidentiary development in August 2019. Since that remand, the issues of special monthly compensation, left sciatic nerve radiculopathy, left femoral nerve radiculopathy, urinary incontinence, an acquired psychiatric disorder, and a total disability rating based upon individual unemployability due to service-connected disabilities (TDIU) have been granted. Thus, these issues are not presently before the Board. Upon more thorough review of the file, the Board has additionally updated the characterization of the issues remaining on appeal as reflected above. By way of example, while the Board previously characterized the effective date claims pertaining to the right lower extremity radiculopathies as ones seeking an earlier increased rating, review of the pertinent procedural documents reveals that the appeal of these issues stemmed from the effective date of the grant of service connection. Thus, the Board has recharacterized these claims to more accurately represent the Veteran's contentions, as well as the subsequent Statements of the Case adjudicating these issues. INCREASED RATINGS Disability ratings are determined by application of a ratings schedule which is based, as far as can practically be determined, on the average impairment of earning capacity. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Each service-connected disability is rated on the basis of specific criteria identified by Diagnostic Codes. 38 C.F.R. § 4.27. The degrees of disability specified are considered adequate to compensate for a loss of working time proportionate to the severity of the disability. 38 C.F.R. § 4.1. If two evaluations are potentially applicable, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that evaluation; otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. Any reasonable doubt regarding a degree of disability will be resolved in favor of the Veteran. 38 C.F.R. § 4.3. However, pyramiding, which is the evaluation of the same disability, or the same manifestation of a disability, under different diagnostic codes, is to be avoided when evaluating a Veteran's service-connected disability. 38 C.F.R. § 4.14; see Esteban v. Brown, 6 Vet. App. 259, 261-62 (1994). In a claim for a greater original rating after an initial award of service connection, all of the evidence submitted in support of the Veteran's claim is to be considered. In initial rating cases, separate ratings can be assigned for separate periods of time based on the facts found, a practice known as "staged" ratings. Fenderson v. West, 12 Vet. App. 119 (1999); 38 C.F.R. § 4.2. VA's determination of the "present level" of a disability may result in a conclusion that the disability has undergone varying and distinct levels of severity throughout the entire time period the increased rating claim has been pending and, consequently, staged ratings are appropriate for an increased rating claim when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings. Hart v. Mansfield, 21 Vet. App. 505 (2007). Disabilities must be reviewed in relation to their entire history. 38 C.F.R. § 4.1. VA must also interpret reports of examination in light of the whole recorded history, reconciling the various reports into a consistent picture so that the current rating may accurately reflect the elements of disability. 38 C.F.R. § 4.2. VA is also required to evaluate functional impairment on the basis of lack of usefulness, and the effects of the disabilities upon the person's ordinary activity. 38 C.F.R. § 4.10. Where functional loss is alleged due to pain upon motion, the provisions of 38 C.F.R. § 4.40 and § 4.45 must be considered. DeLuca v. Brown, 8 Vet. App. 202, 207-08 (1995). Functional loss may be due to pain if supported by adequate pathology and evidenced by the visible behavior of the veteran undertaking the motion. Functional impairment may be due to pain, including during flare-ups, or from repetitive use. Mitchell v. Shinseki, 25 Vet. App. 32, 43-44 (2011). In rendering a decision on appeal, the Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the veteran. See Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). Board determinations with respect to the weight and credibility of evidence are factual determinations going to the probative value of the evidence. Layno v. Brown, 6 Vet. App. 465, 469 (1994). Competency of evidence differs from weight and credibility. Competency is a legal concept determining whether testimony may be heard and considered by the trier of fact, while credibility is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted. Rucker v. Brown, 10 Vet. App. 67, 74 (1997); Layno, 6 Vet. App. at 465. Lay statements may serve to support a claim for service connection by supporting the occurrence of lay-observable events or the presence of disability or symptoms of disability subject to lay observation. 38 C.F.R. § 3.159; see Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). When all of the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with a veteran prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case, the claim is denied. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, the extensive evidence of record. Indeed, the Federal Circuit has held that the Board must review the entire record, but does not have to discuss each piece of evidence. Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000). Therefore, the Board will summarize the relevant evidence where appropriate, and the Board's analysis below will focus specifically on what the evidence shows, or fails to show, as to the claim on appeal. 1. The claim of entitlement to a rating in excess of 40 percent for a back disability The Veteran contends that he is entitled to a rating in excess of 40 percent for his service-connected back disability. The Veteran's back disability is rated under 38 C.F.R. § 4.71a, Diagnostic Code 5242-5243. Hyphenated diagnostic codes are used when a rating under one code requires use of an additional diagnostic code to identify the basis for the rating. 38 C.F.R. § 4.27. As a preliminary matter, 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. 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). 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. 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 for Diseases and Injuries of the Spine, a 10 percent rating is warranted for forward flexion of the thoracolumbar spine greater than 60 degrees but not greater than 85 degrees; or, combined range of motion of the thoracolumbar spine greater than 120 degrees but not greater than 235 degrees; or, muscle spasm, guarding, or localized tenderness not resulting in abnormal gait or abnormal spinal contour; or, vertebral body fracture with loss of 50 percent or more of the height. A 20 percent rating is warranted for forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees; or the combined range of motion of the thoracolumbar spine not greater than 120 degrees; or, muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis. A 40 percent rating is warranted for forward flexion of the thoracolumbar spine to 30 degrees or less; or, favorable ankylosis of the entire thoracolumbar spine. A 50 percent rating is warranted for unfavorable ankylosis of the entire thoracolumbar spine. A 100 percent evaluation is warranted for unfavorable ankylosis of the entire spine. 38 C.F.R. § 4.71a, General Rating Formula for Diseases and Injuries of the Spine. Any associated objective neurological abnormalities, including, but not limited to, bowel or bladder impairment, are to be evaluated separately under an appropriate diagnostic code. Id. at Note 1. The Board notes that the Veteran has been separately service connected for related neurological abnormalities. Unfavorable ankylosis is defined as "a condition in which the entire cervical spine, the entire thoracolumbar spine, or the entire spine is fixed in flexion or extension, and the ankylosis results in one or more of the following: difficulty walking because of a limited line of vision; restricted opening of the mouth and chewing; breathing limited to diaphragmatic respiration; gastrointestinal symptoms due to pressure of the costal margin on the abdomen; dyspnea or dysphagia; atlantoaxial or cervical subluxation or dislocation; or neurologic symptoms due to nerve root stretching." Id. at Note 5. Additionally, fixation of a spinal segment in neutral position (zero degrees) is "always" considered favorable ankylosis. Id. [Include any other relevant Note(s).] When evaluating musculoskeletal disabilities based on limitation of motion, 38 C.F.R. § 4.40 requires consideration of functional loss caused by pain or other factors listed in that section that could occur during flare-ups or after repeated use and therefore, not be reflected on range-of-motion testing. 38 C.F.R. § 4.45 requires consideration also be given to less movement than normal, more movement than normal, weakened movement, excess fatigability, incoordination, and pain on movement. See DeLuca v. Brown, 8 Vet. App. 202 (1995); see also Mitchell v. Shinseki, 25 Vet. App. 32, 44 (2011). Nonetheless, even when the background factors listed in § 4.40 or 4.45 are relevant when evaluating a disability, the rating is assigned based on the extent to which motion is limited, pursuant to 38 C.F.R. § 4.71a; a separate or higher rating under § 4.40 or 4.45 itself is not appropriate. See Thompson v. McDonald, 815 F.3d 781, 785 (Fed. Cir. 2016) ("[I]t is clear that the guidance of § 4.40 is intended to be used in understanding the nature of the veteran's disability, after which a rating is determined based on the § 4.71a criteria."). Under 38 C.F.R. § 4.59, painful motion is a factor to be considered with any form of arthritis; however, 38 C.F.R. § 4.59 is not limited to disabilities involving arthritis. See Burton v. Shinseki, 25 Vet. App. 1 (2011). After a thorough review of the medical and lay evidence of record, the Board finds that the preponderance of the evidence is against a rating in excess of 40 percent for the Veteran's back disability. The Board acknowledges the Veteran's lay reports of symptoms, including burning, stabbing, and twisting pain with intense muscle spasms, as well as separately evaluated neurological impairments, including those presently on appeal. Functional loss has been found due to pain and limited range of motion. At worst, the Veteran's forward flexion has been limited to 30 degrees. He has alternatively endorsed and denied flare-ups throughout the period on appeal. However, even considering the Veteran's lay reports of symptoms and noted functional loss, the degree of additional limitation reflected by the statements that the Veteran cannot engage in usual activities, such as bathing or dressing independently, performing chores or errands, as well as engage in hobbies such as hunting and fishing, such would not result in symptoms more nearly approximating unfavorable ankylosis of the entire thoracolumbar spine. As noted above, unfavorable ankylosis exists when the spine is fixed in one position, either flexion or extension. The Veteran has not reported symptoms that rise to this level, nor have such been noted throughout VA examinations and treatment records. The Board acknowledges the assertion that the Veteran's has expressed that his range of motion is "basically nonexistent", but this contention does not rise to the level of a fixed position of the spine in either flexion or extension, and is not reflected in medical treatment records associated with the claims file. When he endorsed flare ups during the August 2015 VA examination, such flares caused pain as if someone were twisting his back, but he did not endorse symptoms analogous to fixation of his spine in either a position of flexion or one of extension. In the most recent VA examination in May 2021, the Veteran denied experiencing flare-ups. Thus, even when considering additional functional limitation during a flare-up, the Veteran's symptoms are not functionally equivalent to ankylosis and do not more nearly approximate the entire spine fixed in flexion or extension and one of the additional symptoms set forth in Note 5. Consideration has also been given to assigning a rating under the Formula for Rating Intervertebral Disc Syndrome (IVDS) Based on Incapacitating Episodes. However, the evidence of record is against a finding that the Veteran was ever prescribed bed rest by a physician for a duration that meets the criteria for a higher rating. See 38 C.F.R. § 4.71a, Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes. Effective February 7, 2021, Diagnostic Code 5243 was amended to read: "Intervertebral disc syndrome: Assign this diagnostic code only when there is disc herniation with compression and/or irritation of the adjacent nerve root; assign diagnostic code 5242 for all other disc diagnoses." In the present case, the Veteran is rated under both Diagnostic Codes 5242 and 5243 due to a diagnosis of IVDS as well as degenerative disc disease. The updated regulations, however, continue to rate IVDS based upon incapacitating episodes that require bed rest as prescribed by a physician and treatment by a physician. As noted above, there is no indication from the record that the Veteran has been prescribed bed rest by a physician for his IVDS. Thus, a rating under this Diagnostic Code, to include as contemplated by the updated regulations, would not afford a higher evaluation. Regarding neurological impairment, the Veteran has already been granted service connection for radiculopathies of the bilateral lower extremities, as well as urinary incontinence, and the lay and medical evidence of record is against a finding that the Veteran has any other neurological abnormality associated with his spine disability. Furthermore, consideration under other Diagnostic Codes, both prior to and since the amendment of the regulations, would not yield a more favorable rating. In sum, the preponderance of the evidence of record fails to establish that the Veteran's back disability is most closely approximated by a finding of unfavorable ankylosis of the thoracolumbar spine. For the foregoing reasons, the preponderance of the evidence is against the Veteran's claim for a rating in excess of 40 percent for a back disability. In denying such a rating, the Board finds the benefit of the doubt doctrine is not applicable. 38 U.S.C. § 5107; 38 C.F.R. §§ 4.3, 4.7. 2. The claim of entitlement to a rating in excess of 50 percent for service-connected headaches The Veteran contends that he is entitled to an increased rating for his headaches. Following the previous Board remand, the Regional Office assigned a 50 percent rating, the schedular maximum, for his service-connected headaches effective the date of his claim for an increase. The Veteran's headaches are rated under 38 C.F.R. § 4.124a, Diagnostic Code 8100. Under this Diagnostic Code, headaches with characteristic prostrating attacks occurring on an average once a month over last several months warrant a 30 percent rating. Headaches with very frequent prostrating and prolonged attacks productive of severe economic inadaptability warrant a 50 percent rating. In determining the appropriate rating for the Veteran's headache disability, the Board notes that neither the rating criteria nor the Court has defined "prostrating." "Prostration," however, is defined as "extreme exhaustion or powerlessness," Dorland's Illustrated Medical Dictionary 1554 (31st ed. 2007), or as "physically or emotionally exhausted," Webster II New College Dictionary 889 (3rd ed. 2001). The term "productive of severe economic inadaptability," also is not defined by VA regulations. However, the United States Court of Appeals for Veterans Claims has explained that this criterion is not synonymous with being completely unable to work and that the phrase "productive of" could be read to mean either "producing" or "capable of producing" economic inadaptability. Pierce v. Principi, 18 Vet. App. 440, 446-47 (2004). Throughout the appellate period, the Veteran has been in receipt of the maximum schedular rating for his headaches. Thus, a higher schedular rating is not available. In exceptional cases an extraschedular rating may be provided. 38 C.F.R. § 3.321. First, the established schedular criteria must be inadequate to describe the severity and symptoms of the claimant's disability. Then, the case must present other indicia of an exceptional or unusual disability picture, such as marked interference with employment or frequent periods of hospitalization. Finally, the award of an extraschedular disability rating must be in the interest of justice. Thun v. Peake, 22 Vet. App. 111 (2008), aff'd, Thun v. Shinseki, 572 F.3d 1366 (Fed. Cir. 2009). In this case, the Board finds that the rating criteria contemplate the Veteran's service-connected headaches. His symptoms, his headache pain and specific associated symptoms, are contemplated by the rating criteria and considered by the Board in its decision. Neither the Veteran nor his former representative reported symptoms beyond those provided in the rating criteria. The rating criteria are therefore adequate to evaluate his disability and referral for consideration of extraschedular rating is not warranted. 38 C.F.R. § 3.321; Thun, 572 F.3d 1366. Under these circumstances, the disposition of this claim is based on the law, and not the facts of the case, and the claim for an increased schedular rating must be denied based on a lack of entitlement under the law. See Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). 3. The claim of entitlement to a rating in excess of 10 percent for vertigo The Veteran contends that he is entitled to a rating in excess of 10 percent for vertigo. The Veteran's vertigo has been assigned an initial 10 percent rating under Diagnostic Code 6204. Under this Diagnostic Code, for peripheral vestibular disorder, a 10 percent rating is warranted for manifestation of occasional dizziness, and a maximum 30 percent rating is warranted when there is dizziness and occasional staggering. 38 C.F.R. § 4.87. A note provides that objective findings supporting the diagnosis of vestibular disequilibrium are required before a compensable evaluation can be assigned under this code. Hearing impairment or suppuration shall be separately rated and combined. Id. The Board finds that a rating in excess of 10 percent is not warranted at any point during the period of appeal. The medical and lay evidence of record reflects no more than dizziness associated with the Veteran's vertigo. The dizziness typically preceded his headaches, and lasted a few minutes per episode. While his headaches were found to cause episodes of loss of balance, such was not specifically related to the preceding vertigo associated with the headaches. Furthermore, treatment records do not reflect staggering during his episodes of vertigo, nor was such reported in the August 2015 VA examination of record. In fact, while the Veteran has reported an increasing number of falls, such have been attributed to his service-connected back disability and those related neurological impairments. In sum, the Board finds that the Veteran's vertigo does not more nearly approximate the level of severity contemplated by an increased 30 percent rating. Under Diagnostic Code 6204, a 30 percent rating is warranted when symptoms include dizziness and occasional staggering. There is no competent evidence of staggering related to vertigo in this case. As such an increased 30 percent rating is not warranted under Diagnostic Code 6204. The Board has considered whether there is any other schedular basis for granting a higher rating other than that discussed above, but has found none. See Schafrath v. Derwinski, 1 Vet. App. 589, 593 (1991). In this regard, the Board notes that Diagnostic Codes 6200 through 6260 refer to diseases of the ear. The Veteran has tympanic membrane scarring bilaterally, which is already in receipt of service connection. Other diagnostic codes are additionally not applicable. Accordingly, a rating in excess of 10 percent for vertigo is not warranted. 4. The claim of entitlement to a compensable rating for bilateral hearing loss The Veteran contends that he is entitled to a compensable rating for his bilateral hearing loss. Evaluations of defective hearing range from noncompensable to 100 percent based on organic impairment of hearing acuity as measured by the results of a controlled Maryland CNC speech discrimination test together with the average hearing threshold level measured by pure tone audiometry tests in the frequencies of 1000, 2000, 3000, and 4000 cycles per second (Hertz). 38 C.F.R. § 4.85, Diagnostic Code 6100. To evaluate the degree of disability from bilateral service-connected hearing loss, the schedule establishes 11 auditory hearing acuity levels designated from Level I for essentially normal hearing acuity through Level XI for profound deafness. 38 C.F.R. § 4.85, Tables VI and VII. An exceptional pattern of hearing impairment occurs when the pure tone threshold at each of the four specified frequencies (1000, 2000, 3000, and 4000 Hertz) is 55 decibels or more. 38 C.F.R. § 4.86(a). In that situation, the rating specialist will determine the Roman numeral designation for hearing impairment from either Table VI or Table VIA, whichever results in the higher numeral. Further, when the average pure tone threshold is 30 decibels or less at 1000 Hertz, and 70 decibels or more at 2000 Hertz, the rating specialist will determine the Roman numeral designation for hearing impairment from either Table VI or Table VIA, whichever results in the higher numeral, and that numeral will then be elevated to the next higher numeral. 38 C.F.R. § 4.86(b). A March 2015 VA examination attempted to assess the severity of the Veteran's service-connected bilateral hearing loss, but the results were not valid for reporting purposes. The examiner noted that the Veteran showed normal hearing sensitivity to mild sensorineural hearing loss in the right ear with moderate conductive loss in the left ear in 2008 and 2009. Four years later, he displayed severe sensorineural loss in the right ear and profound loss in the left ear; however, current testing showed only mild sensorineural hearing loss in the right ear and profound loss in the left ear. Stenger testing showed that the results were not valid and further testing should be conducted. In August 2015, the Veteran underwent another VA examination. The report revealed no functional impairment associated with his hearing loss, and the Veteran reported improvement since his last test in May 2015. The Veteran's Maryland CNC Word List speech recognition score and pure tone thresholds, in decibels, were as follows: August 2015 HERTZ 1000 2000 3000 4000 Avg CNC RIGHT 30 25 20 30 26 100% LEFT 60 60 50 60 58 92% Applying the results to Table VI, the findings yield a numeric designation of Level I in the right ear and Level II in the left ear. Entering the resulting bilateral numeric designation of Level I for the right ear and Level II for the left ear to 38 C.F.R. § 4.85, Table VII, equates to a noncompensable disability rating under Diagnostic Code 6100. An exceptional pattern of hearing impairment under 38 C.F.R. § 4.86 was not shown. Based on the evidence above, a compensable rating for the Veteran's bilateral hearing loss is not warranted. The Board expressly acknowledges its consideration of the lay evidence of record when adjudicating this claim. The Veteran is competent to report difficulty with his hearing; however, disability ratings for hearing loss are derived from a mechanical application of the rating schedule to the numeric designations resulting from audiometric testing. See Lendenmann v. Principi, 3 Vet. App. 345 (1992). The rating criteria contemplate speech reception thresholds and ability to hear spoken words on Maryland CNC testing. The functional impact that the Veteran describes, is contemplated by the rating criteria. Doucette v. Shulkin, 28 Vet. App. 366 (2017). The Veteran's main complaint is reduced hearing acuity and clarity, which is what is contemplated in the rating assigned. See Rossy v. Shulkin, 29 Vet. App. 142, 145 (2017). Accordingly, the preponderance of the most probative evidence is against the claim of entitlement to a compensable rating for hearing loss. In reaching the conclusion above, the Board considered the doctrine of reasonable doubt, however, as the preponderance of the evidence is against the Veteran's claim, the doctrine is not for application. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). 5. The claim of entitlement to a rating in excess of 10 percent for tinnitus The Veteran asserts entitlement to a rating in excess of 10 percent for tinnitus. Tinnitus is evaluated under Diagnostic Code 6260, which was revised effective June 13, 2003, to clarify existing VA practice that only a single 10 percent evaluation is assigned for tinnitus, whether the sound is perceived as being in one ear, both ears, or in the head. 38 C.F.R. § § 4.87, Diagnostic Code 6260, note 2. This is the maximum schedular evaluation assignable for that condition. The Federal Circuit affirmed VA's long-standing interpretation of Diagnostic Code 6260 as authorizing only a single 10 percent rating for tinnitus, whether perceived as unilateral or bilateral. Smith v. Nicholson, 451 F.3d 1344 (Fed. Cir. 2006). Therefore, the Veteran's claim for greater than a 10 percent schedular rating for his service-connected tinnitus must be denied as a matter of law. See Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). 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). Therefore, referral for extraschedular consideration is not warranted. 6. The claim of entitlement to a rating in excess of 50 percent for service-connected sleep apnea The Veteran asserts entitlement to a rating in excess of 50 percent for sleep apnea. Sleep apnea is rated under Diagnostic Code 6847. Under that code, a 50 percent rating is warranted with required use of a breathing assistance device such as continuous airway pressure (CPAP) machine. A 100 percent rating is warranted when there is chronic respiratory failure with carbon dioxide retention or cor pulmonale, or requires a tracheostomy. The Veteran's treatment records reflect a diagnosis of sleep apnea, but no indication of chronic respiratory failure with carbon dioxide retention or cor pulmonale, nor does the Veteran require a tracheostomy. The Veteran has also not asserted that he experiences such severe symptoms as those required for a 100 percent rating. The Veteran is competent and credible to report symptomatology relating to his because this requires only personal knowledge as it comes to him through his senses. Layno v. Brown, 6 Vet. App. 465, 470 (1994). As such, the Board has considered the lay assertions of record; however, to the extent that the Veteran alleges greater severity, the Board finds that the probative value of his allegations is outweighed by the aforementioned medical records during this period of the appeal. Competent evidence concerning the nature and extent of the Veteran's disability has been provided and included in relevant treatment records. As such, the medical findings directly address the evaluation criteria for the Veteran's disability, and these fail to establish severe symptoms associated with the 100 percent rating criteria. Accordingly, a higher 100 percent evaluation under Diagnostic Code 6847 is not warranted at any time during the appeal period. As such, the claim for a disability rating in excess of 50 percent is denied. EARLIER EFFECTIVE DATES The statutory guidelines for the determination of an effective date of an award of disability compensation are set forth in 38 U.S.C. § 5110. Except as otherwise provided, the effective date of an evaluation and award of compensation based on an original claim, a claim reopened after a final disallowance, or a claim for increase will be the date of receipt of the claim or the date entitlement arose, whichever is later. 38 C.F.R. § 3.400. A specific claim in the form prescribed by the Secretary of VA must be filed in order for benefits to be paid to any individual under the laws administered by the VA. 38 U.S.C. § 5101(a). A "claim" is defined broadly to include a formal or informal communication in writing requesting a determination of entitlement or evidencing a belief in entitlement to a benefit. 38 C.F.R. § 3.1(p); Brannon v. West, 12 Vet. App. 32, 34-5 (1998); Servello v. Derwinski, 3 Vet. App. 196, 199 (1992). Any communication indicating intent to apply for a benefit under the laws administered by the VA may be considered an informal claim provided it identifies, but not necessarily with specificity, the benefit sought. See 38 C.F.R. § 3.155(a); Servello, 3 Vet. App. at 199 (holding that 38 C.F.R. § 3.155(a) does not contain the word "specifically," and that making such precision a prerequisite to acceptance of a communication as an informal claim would contravene the Court's precedents and public policies underlying the statutory scheme). To determine when a claim was received, the Board must review all communications in the claims file that may be construed as an application or claim. See Quarles v. Derwinski, 3 Vet. App. 129, 134 (1992). Upon receipt of an informal claim, if a formal claim has not been filed, an application form will be forwarded to the claimant for execution. If received within one year from the date it was sent to the claimant, it will be considered filed as of the date of receipt of the informal claim. An application is defined as a formal or informal communication in writing requesting a determination of entitlement or evidencing a belief in entitlement to a benefit. 38 C.F.R. § 3.1(p); see also Rodriguez v. West, 189 F.3d. 1351 (Fed. Cir. 1999), (an expressed intent to claim benefits must be in writing in order to constitute an informal claim; an oral inquiry does not suffice). 38 C.F.R. § 3.155(c) provides that when a claim has been filed which meets the requirements of 38 C.F.R. § 3.151 or 38 C.F.R. § 3.152, an informal request for increase or reopening will be accepted as a claim. Specifically, as to claims for increase, the statute provides that the effective date of an award of increased compensation shall be the earliest date as of which it is ascertainable that an increase in disability had occurred, if application is received within one year from such date. 38 U.S.C. § 5110(b)(2). The pertinent provisions of 38 C.F.R. § 3.400 clarify that, except as otherwise provided, the effective date of an evaluation and award of compensation based on a claim for increase will be the date of receipt of the claim or the date entitlement arose, whichever is the later. As to claims for increase, 38 C.F.R. § 3.400 provides that the effective date of an evaluation and award of compensation based on a claim for increase will be the date as of which it is factually ascertainable that an increase in disability had occurred if claim is received within 1 year from such date, otherwise, it will be the date of receipt of the claim. 38 C.F.R. § 3.400(o). The Court and VA's General Counsel have interpreted the laws and regulations pertaining to the effective date for an increase as follows: If the increase occurred within one year prior to the claim, the increase is effective as of the date the increase was "factually ascertainable." If the increase occurred more than one year prior to the claim, the award is effective the date of claim. If the increase occurred after the date of claim, the effective date is the date of increase. 38 U.S.C. § 5110(b)(2); Harper v. Brown, 10 Vet. App. 125 (1997); 38 C.F.R. § 3.400(o)(1), (2). The Board notes that on March 24, 2015, VA amended its adjudication regulations to require that all claims governed by VA's adjudication regulations be filed on standard forms prescribed by the Secretary, regardless of the type of claim or posture in which the claim arises. See 79 Fed. Reg. 57660 (Sept. 25, 2014). The amendments are only effective for claims and appeals filed on or after March 24, 2015. 1. The claim of entitlement to an effective date earlier than June 12, 2015, for the grant of a 50 percent rating for service-connected headaches The Veteran's representative indicated in the Notice of Disagreement that the effective date for the grant of an increase in the evaluation for the Veteran's headaches should be earlier than the initially awarded May 12, 2016. Subsequently, the Regional Office granted the 50 percent as of the date of the claim for increase, June 12, 2015. As the representative withdrew following the grant of entitlement to a TDIU, no additional information has been provided regarding the effective date claim in this case. The Veteran filed his claim for an increased rating for service-connected headaches, which was received on June 12, 2015. This occurred after the March 2015 amended regulations pertaining to claims; thus, a standard form was required for this issue. In May 2015, treatment records reflect complaints of headaches preceded by dizziness. The same month, the Veteran sought treatment for a headache that had been ongoing for approximately two weeks. The headache waxed and waned in this time, but the maximum severity was only noted to be moderate. He did not experience photophobia, numbness, weakness, or vomiting. There was no indication at that time that the headache was incapacitating. In early June 2015, the Veteran sought additional treatment for his headaches, which were noted to not be intractable, but were associated with some vertigo. Once again, there was no indication that these headaches were prostrating or incapacitating. Thereafter, the Regional Office granted a 50 percent rating, the highest schedular rating, for service-connected headaches effective June 12, 2015, the date of the claim for increase. In reviewing the totality of the evidence of record, the Board finds that it was not factually ascertainable that the Veteran's headaches increased in severity within the year prior to his June 2015 claim such that an earlier effective date within one year of his claim would be appropriate. Consequently, entitlement to an earlier effective date for the date of the 50 percent rating is denied. 2. The claims of entitlement to effectives date earlier than October 29, 2014, for the grant of service connection for right lower extremity sciatic radiculopathy, right lower extremity femoral radiculopathy, and sleep apnea Entitlement to earlier effective dates for the dates of service connection for right lower extremity radiculopathies, as well as sleep apnea, have also been appealed by the Veteran's former representative. As noted above, when considering effective dates for the grant of service connection, the effective date will be set as the date of receipt of the claim or the date entitlement arose, whichever is later. As the Veteran's claims originated prior to the regulation change, the Board may also consider informal claims or claims not filed on standardized forms. In the present case, the Veteran filed a claim for an increase to his back disability, which was received on October 29, 2014. From that claim, the Regional Office granted entitlement to service connection for right lower leg radiculopathies, both sciatic and femoral. With this October 2014 claim, the Veteran also asserted entitlement to service connection for sleep apnea. Prior to this October 2014 claim, the Veteran did not submit an informal claim pertaining to these disabilities on appeal, nor could his correspondences prior to this date be construed as claims for disability benefits. The Veteran has also not asserted that he filed an earlier informal claim, nor did his previous representative claim such. At the time of his October 29, 2014, claim, the Veteran had present disabilities of right lower extremity sciatic radiculopathy, right lower extremity femoral radiculopathy, and sleep apnea. Thus, the date of his claim is the earliest possible effective date for these grants of service connection. 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). Effective dates earlier than October 29, 2014, for service connection for right lower extremity radiculopathies and sleep apnea are not warranted. REASONS FOR REMAND 1. The claims of entitlement to increased ratings for right lower extremity sciatic and femoral radiculopathy The Board sincerely regrets the additional delay, but remand is again necessary in order to more accurately determine the severity of the radiculopathies affecting the right lower extremity. The Board previously granted initial ratings of 20 percent for both sciatic and femoral radiculopathies in the right lower extremity, but subsequently remanded to obtain additional Social Security Administration records pertaining to these disabilities. The Board did not determine a date upon which the Veteran's disabilities were reported to have worsened. Since that decision, a 40 percent rating was granted for sciatic radiculopathy effective May 27, 2021, and the 20 percent rating was continued for femoral radiculopathy. Unfortunately, further clarification is required to determine the severities of each neurological impairment throughout the period on appeal. The Veteran's right lower extremity has been progressively worsening, and he has repeatedly discussed severe weakness and difficulty using his right leg. His right leg buckles and has caused falls. Numbness has been noted from his right thigh to his toes. As early as April 2016, the Veteran reported that his right leg was so weak that he could not lift it. In July 2019, it was noted that the combination of his back and leg pain was so severe that he could not ambulate. It's not clear, unfortunately, how much of a role each of these neurological impairments play in the overall weakness and difficulty of use of his right leg. Thus, remand is necessary to obtain an addendum opinion that more thoroughly considers the Veteran's reports of loss of use as attributed to each nerve separately. 2. The claim of entitlement to eligibility for automobile or other conveyance and adaptive equipment, or adaptive equipment only is remanded. As the Veteran is asserting entitlement to increased ratings for nerve impairments in his right lower extremity, the Board finds that this issue is inextricably intertwined with the resolution of the remanded issue. The appropriate remedy where a pending claim is inextricably intertwined with a claim currently on appeal is to defer the claim on appeal pending the adjudication of the inextricably intertwined claim. See Harris v. Derwinski, 1 Vet. App. 180 (1991). Accordingly, this issue is remanded for readjudication following evidentiary development. The matters are REMANDED for the following action: 1. Contact the Veteran in order to identify any outstanding non-VA treatment records regarding the issues on appeal. If non-VA providers are identified, obtain releases for those records. Make all reasonable attempts to obtain the non-VA treatment records and associate them with the claims file. If such records cannot be obtained, inform the Veteran and the representative of record, and afford an opportunity to provide these outstanding records. 2. Obtain any relevant, outstanding VA treatment records that are not already associated with the claims file. If no records are available, the claims folder must indicate this fact and the Veteran should be notified in accordance with 38 C.F.R. § 3.159(e). All attempts to contact the Veteran should be documented in the record. 3. Following completion of the foregoing, obtain an addendum opinion from an examiner to assess the severity of the Veteran's sciatic and femoral radiculopathies in the right lower extremity throughout the appellate period. A new examination may be scheduled if deemed necessary. 4. A complete copy of the claims file must be made available to the examiner. The examiner should consider the Veteran's lay reports of symptoms, specifically his reported loss of use of the right lower extremity due to his neurological impairments. Following a thorough review of the pertinent medical and lay evidence of record, the examiner is asked to discuss the following: 5. Provide a summary of the severity of the Veteran's right lower extremity sciatic radiculopathy since October 2014. 6. Provide a summary of the severity of the Veteran's right lower extremity femoral radiculopathy since October 2014. 7. Discuss whether one or both of the neurological impairments cause any loss of use of the extremity. Note: "Loss of use" is not specifically defined under 38 C.F.R. § 3.808. Regulations pertaining to special monthly compensation for loss of use of a hand or foot state that loss of use is held to exist when no effective function remains other than that which would be equally well served by an amputation with use of a suitable prosthetic appliance. The determination should be made on the basis of the actual remaining function, such as the ability to grasp, manipulate objects, balance, or propel oneself forward. See 38 C.F.R. §§ 3.350(a)(2), 4.63. The United States Court of Appeals for Veterans Claims found that a "loss of use" exists when there is "deprivation of the ability to avail oneself" of that extremity, and functional impairment caused by pain, weakness, or incoordination should be taken into account when making that determination. See Jensen v. Shulkin, 29 Vet. App. 66, 78-79 (2017). The examination report should specifically state that a review of the record was conducted. The examiner should provide a complete rationale for all opinions provided. If an opinion cannot be provided without to resorting to mere speculation, the examiner should identify all medical and lay evidence considered in this conclusion, fully explain why this is the case and identify what additional evidence (if any) would allow for a more definitive opinion. 8. Following completion of the foregoing, the AOJ should review the record and readjudicate the claims on appeal. If any remain denied, the AOJ should issue an appropriate supplemental SOC, afford the Veteran an opportunity to respond, and return the case to the Board. B. MULLINS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board H. Fisher, 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.