Citation Nr: 21067744 Decision Date: 11/05/21 Archive Date: 11/05/21 DOCKET NO. 16-25 113 DATE: November 5, 2021 ORDER 1. The appeal to reopen the claim of service connection for a left hip disability is denied. 2. Entitlement to service connection for a right hip disability is denied. 3. Entitlement to service connection for a bilateral lower extremity disability other than service-connected bilateral lower extremity radiculopathy and left knee disability, is denied. 4. Entitlement to service connection for a right shoulder disability is denied. 5. Entitlement to service connection for a sleep disorder, to include obstructive sleep apnea (OSA) and/or insomnia, is denied. 6. Entitlement to service connection for a bilateral foot disability is denied. 7. Entitlement to service connection for a cervical spine disability is denied. 8. Entitlement to service connection for a right knee disability is denied. 9. Entitlement to service connection for a liver disability is denied. 10. Entitlement to ratings for a lumbar spine disability in excess of 10 percent prior to May 9, 2021 and in excess of 20 percent from that date, is denied. 11. Entitlement to a rating in excess of 20 percent for left lower extremity radiculopathy is denied. 12. Entitlement to a rating in excess of 20 percent for right lower extremity radiculopathy is denied. 13. Entitlement to a compensable rating for bilateral hearing loss is denied. 14. Entitlement to a rating in excess of 10 percent for tinnitus is denied. 15. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) is granted. REMANDED 16. Entitlement to service connection for a disability manifested by memory loss is remanded. FINDINGS OF FACT 1. An unappealed March 2011 rating decision denied service connection for a left hip disability on the basis that such disability was not shown; evidence submitted or received for the record since the March 2011 rating decision does not how or support that the Veteran has a left hip disability. 2. The Veteran is not shown to have a right hip disability, a right or left lower extremity disability other than service-connected bilateral lower extremity radiculopathy and left knee disability, a right shoulder disability, or a sleep disorder. 3. The preponderance of the evidence is against a finding that any right or left foot disability, cervical spine disability, right knee disability, or liver disability is etiologically related to the Veteran's active-duty service. 4. Prior to May 9, 2021, the Veteran's lumbar spine disability was not shown to have been manifested by flexion limited to 60 degrees or less, combined range of motion of the thoracolumbar spine limited to 120 degrees or less, or muscle spasm or guarding severe enough to result in abnormal gait or abnormal contour; ankylosis of the spine; incapacitating episodes of thoracolumbar disc disease, or neurological manifestations (other than bilateral lower extremity radiculopathy) were not shown; from that date, the lumbar spine disability is not shown to have been manifested by flexion limited to 30 degrees or less or ankylosis of the spine; incapacitating episodes of thoracolumbar disc disease, or neurological manifestations other than bilateral lower extremity radiculopathy are not shown. 5. The Veteran's bilateral lower extremity radiculopathy is most appropriately characterized as no more than moderate incomplete paralysis; moderately severe incomplete paralysis is not shown. 6. The Veteran's bilateral hearing loss is not shown to have been manifested by auditory acuity worse than level II in either ear. 7. The Veteran's service-connected tinnitus is assigned a 10 percent rating, the maximum rating authorized under Diagnostic Code (Code) 6260; factors warranting referral for extraschedular consideration are not shown and have not been specifically alleged. 8. The Veteran's service-connected disabilities are rated 80 percent combined with a single disability rated 50 percent, and are shown to have precluded him from obtaining and maintaining substantially gainful employment. CONCLUSIONS OF LAW 1. New and material evidence has not been received, and the claim of service connection for a left hip disability may not be reopened. 38 U.S.C. §§ 5108, 7105; 38 C.F.R. § 3.156. 2. Service connection for a right hip disability is not warranted. 38 U.S.C. § 1131; 38 C.F.R. §§ 3.303, 3.304, 3.309. 3. Service connection for a right or left lower extremity disability other than bilateral lower extremity radiculopathy and a left knee disability, is not warranted. 38 U.S.C. § 1131; 38 C.F.R. §§ 3.303, 3.304. 4. Service connection for a right shoulder disability is not warranted. 38 U.S.C. § 1131; 38 C.F.R. §§ 3.303, 3.304. 5. Service connection for a sleep disorder is not warranted. 38 U.S.C. § 1131; 38 C.F.R. §§ 3.303, 3.304. 6. Service connection for a right or left foot disability is not warranted. 38 U.S.C. § 1131; 38 C.F.R. §§ 3.303, 3.304, 3.309. 7. Service connection for a cervical spine disability is not warranted. 38 U.S.C. § 1131; 38 C.F.R. §§ 3.303, 3.304, 3.309. 8. Service connection for a right knee disability is not warranted. 38 U.S.C. § 1131; 38 C.F.R. §§ 3.303, 3.304, 3.309. 9. Service connection for a liver disability is not warranted. 38 U.S.C. § 1131; 38 C.F.R. §§ 3.303, 3.304. 10. Ratings for a lumbar spine disability in excess of 10 percent prior to May 9, 2021 and in excess of 20 percent from that date are not warranted. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.10, 4.21, 4.40, 4.45, 4.59, 4.71a, Codes 5010-5237. 11. A rating in excess of 20 percent for left lower extremity radiculopathy is not warranted. 38 U.S.C. § 1155; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.124a, Code 8520. 12. A rating in excess of 20 percent for right lower extremity radiculopathy is not warranted. 38 U.S.C. § 1155; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.124a, Code 8520. 13. A compensable rating for bilateral hearing loss is not warranted. 38 U.S.C. §§ 1155, 5107(b); 38 C.F.R. §§ 3.321, 4.1, 4.85, 4.86, Code 6100. 14. A rating in excess of 10 percent for tinnitus is not warranted. 38 U.S.C. §§ 1155, 5107(b); 38 C.F.R. §§ 3.321, 4.1, 4.87, Code 6260. 15. The schedular requirements for a TDIU rating are met, and a TDIU rating is warranted. 38 U.S.C. §§ 5101, 5110; 38 C.F.R. §§ 3.340, 3.341, 4.16 (a). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The appellant is a Veteran who had active-duty service from May 1977 to May 1980. This case is before the Board of Veterans' Appeals (Board) on appeal from 2014 and 2015 Department of Veterans Affairs (VA) rating decisions. The December 2014 rating decision continued denial of service connection for a lumbar spine disability, a left hip disability, and a bilateral foot disability, and denied service connection for a right hip disability, a bilateral lower extremity disability, a cervical spine disability, a right knee disability, a sleep disorder, a disability manifested by memory loss, and tinnitus. The June 2015 rating decision granted service connection for a lumbar spine disability, bilateral lower extremity radiculopathy, and bilateral hearing loss. A December 2018 Board decision reopened the claim of service connection for a bilateral foot disability, granted service connection for a left shoulder disability, a left knee disability, a headache disability, and a depressive disorder, and remanded the claim to reopen a claim of service connection claim for a left hip disability and claims of service connection for a right hip disability, a bilateral lower extremity disability other than bilateral lower extremity radiculopathy and left knee disability, a bilateral foot disability, a right shoulder disability, a cervical spine disability, a right knee disability, a liver disability, a sleep disorder, to include obstructive sleep apnea and/or insomnia, and memory loss, and claims for increased ratings for a lumbar spine disability, bilateral lower extremity radiculopathy, bilateral hearing loss, and tinnitus, and for a TDIU rating, for further development including for outstanding private medical records. In July 2019, the agency of original jurisdiction (AOJ) provided the required form and requested that the Veteran complete, sign, and return the form. He has not responded, and the development for private records could not proceed without his co-operation. VA's duty to assist is not a one-way street. See Wood v. Derwinski, 1 Vet. App. 190 (1991). A September 2021 rating decision increased the rating for lumbar spine disability to 20 percent, effective May 9, 2021, and denied a TDIU rating. Claim to Reopen Generally, when a claim is disallowed and unappealed, it may not be reopened and allowed, and a claim based on the same factual basis may not be considered. 38 U.S.C. § 7105. However, a claim on which there is a final decision may be reopened if new and material evidence is received. 38 U.S.C. § 5108. "New" evidence means existing evidence not previously submitted to agency decision-makers. "Material" evidence means existing evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. New and material evidence can be neither cumulative nor redundant of the evidence of record at the time of the last prior final denial of the claim sought to be reopened, and must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a). When determining whether a claim should be reopened, the credibility of the newly submitted evidence is presumed. Fortuck v. Principi, 17 Vet. App. 173, 179-80 (2003). The U.S. Court of Appeals for Veterans Claims (CAVC) has held that the requirement of new and material evidence raising a reasonable possibility of substantiating the claim is a low threshold requirement. The CAVC interpreted the language of 38 C.F.R. § 3.156(a) as "enabling rather than precluding reopening." See Shade v. Shinseki, 24 Vet. App. 110 (2010). An unappealed March 2011 rating decision denied the Veteran's service connection claim for a left hip disability on the basis that such current disability was not shown. The evidence of record in March 2011 included the Veteran's service treatment records (STRs), VA treatment records, the report of a September 2010 VA examination, and private medical records. The Veteran's STRs show that he injured his left hip playing baseball in June 1978. His STRs contain no further mention of complaints, treatment, or diagnosis of a chronic left hip disability. In a January 1980 medical questionnaire just prior to his separation from active-duty service, he denied ever having swollen or painful joints. In February 1980, he declined a service separation examination. Postservice treatment records show that the Veteran reported that he had lumbar spine pain that radiated into his left hip and lower extremity. In October 2008, the Veteran's physician noted that the Veteran's STRs show that he dislocated his hip in June 1978 and that his hip pain was due to his active-duty service. On September 2010 VA examination, the Veteran reported a left hip injury sustained playing softball in service. He related that after three days of rest, he was able to return to regular duty. The examiner reviewed the Veteran's claims file and interviewed and examined the Veteran. Left hip x-rays were normal. The examiner indicated that no left hip pathology was found on examination, and that the Veteran's left hip symptoms likely represented lumbar spine radiculopathy, and were caused by or the result of the acute left hip injury during his service. The examiner concluded that a left hip disability was not found. Based on such evidence, the March 2011 rating decision denied service connection for a left hip disability (as not shown). In March 2013, the Veteran again filed a service connection claim for a left hip disability, asserting he has a left hip disability due to his active-duty service. As the claim was previously denied on the basis that the Veteran was not shown to have a left hip disability, for evidence to be new and material in this matter, it would have to pertain to this threshold unestablished fact, i.e., tend to show that he has a current left hip disability. Evidence received since March 2013 includes additional VA treatment records and medical records received Social Security Administration (SSA), considered in connection with the Veteran's claim for SSA disability benefits. While the new VA treatment records shows that the Veteran reported symptoms of radiating pain in the left hip area, the pain was considered to be from lower extremity radiculopathy associated with his low back disability (as was found on the 2010 VA examination prior to the 2011 rating decision). Thus, such evidence is cumulative, and not new. The VA treatment records, and the medical records received from SSA do not show any findings, treatment, or diagnosis pertaining to a hip disability. The Veteran's assertions that he has such disability are cumulative and not new (he previously alleged he has such disability); it was previously found, and not in dispute that he reports pain radiating through his hips. He has not submitted, or identified for VA to seek on his behalf any medical (opinion) evidence supporting that he has a hip disability. On May 2015 VA examination, a VA examiner reviewed the Veteran's claims file and opined that he did not have a diagnosis of a chronic left hip disability. Such evidence is against his claim, and does not raise a reasonable possibility that the claim of service connection for a hip disability may be substantiated. Accordingly, the evidence added to the record since March 2011 does not pertain to the unestablished fact necessary to establish the claim; does not raise a reasonable possibility of substantiating the claim; and is not material. Even the low threshold standard for reopening endorsed by the CAVC in Shade is not met, and the claim of service connection for a left hip disability may not be reopened. Service Connection Claims Service connection is warranted for disability due to disease or injury incurred in or aggravated by active military service. 38 U.S.C. § 1131; 38 C.F.R. § 3.303. To substantiate a claim of service connection there must be competent evidence showing: (1) the existence of a claimed disability; (2) incurrence or aggravation of a disease or injury in service; and (3) a causal relationship between the present claimed disability and the disease or injury incurred or aggravated during service. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Certain chronic diseases (to include arthritis) may be presumed to be service connected if manifested as chronic in service or to a compensable degree within a specified period after service (one year for arthritis). 38 U.S.C. §§ 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309(a). For chronic disease listed in 38 C.F.R. § 3.309(a) service connection may be established by showing continuity of symptomatology. See Walker v. Shinseki, 718 F.3d 1331 (Fed. Cir. 2013). Secondary service connection is warranted for a disability which is proximately due to, or the result of, or aggravated by a service-connected disability. 38 C.F.R. § 3.310. To substantiate a claim of secondary service connection, the record must show (1) a current disability (for which secondary service connection is sought); (2) an already service-connected disability; and (3) that the already service-connected disability caused or aggravated the disability for which service connection is sought. Wallin v. West, 11 Vet. App. 509 (1998). Right Hip Disability, Bilateral Lower Extremity Disability, Right Shoulder Disability, and Sleep Disorder The Veteran has asserted that he has right hip, bilateral lower extremity (other than radiculopathy or a left knee disability), right shoulder, and sleep disabilities that were incurred in service (he has established service connection for bilateral lower extremity radiculopathy and a left knee disability). He has also established service connection for a depressive disorder (which encompasses symptoms of disturbed sleep). The Veteran's STRs do not show complaints, treatment, or diagnosis of a right hip disability, a right or left lower extremity disability (other than numbness and tingling in his right leg and left knee), a right shoulder disability, or a sleep disorder. In a January 1980 medical questionnaire completed just prior to his separation from service, he denied having swollen or painful joints (and he declined a service separation examination). Postservice treatment records show that the Veteran was seen treated for symptoms related to his service-connected lumbar spine, bilateral lower extremity radiculopathy, and left knee disabilities, but do not show specific complaints, treatment, or diagnosis pertaining to a right hip disability, a lower extremity disability other than radiculopathy, or a left knee disability. They also do not show any complaints, treatment or diagnosis pertaining to a right shoulder disability. In October 2016, OSA was suspected, and he was referred for a sleep study. He was found to not have OSA in March 2021 and May 2021. On May 2015 VA examination, upon review of the Veteran's claims file and interview and examination of the Veteran, the examiner found that he did not a have a diagnosis of a right shoulder disability. On February 2021 VA examination for depressive disorder, the Veteran reported that he had problems sleeping due to chronic pain. Upon review of the Veteran's claims file and interview and examination of the Veteran, the examiner did not find that the Veteran had a chronic sleep impairment disability. On March 2021 VA examination, the Veteran reported variable sleep problems. He denied having sleep abnormalities, but reported that his pain caused insomnia. Upon review of the Veteran's claims file and interview and examination of the Veteran, the examiner found that the Veteran did not have OSA and did not meet the DSM-5 diagnostic criteria for insomnia. The examiner noted that there was no evidence of a sleep disorder in the Veteran's STRs, and no medical evidence that the Veteran had a sleep disorder distinct from his service-connected depressive disorder. The examiner found that the Veteran had chronic sleep impairment due to (a symptom of) his depressive disorder. The examiner opined that the Veteran's sleep problems were subsumed by his depressive disorder, and that any sleep disorder was not due to his active service or caused or aggravated by his service-connected depressive disorder. The Veteran has not submitted any medical (and thus probative, as the diagnoses of musculoskeletal and sleep disorder disabilities are medical question) evidence supporting that he has a right hip, right or left lower extremity (other than his service connected bilateral lower extremity radiculopathy and left knee disability), right shoulder , or sleep (separate from symptoms associated with his depressive disorder) disability. His medical records do not show a diagnosis of any such disability. The Veteran is a layperson and does not profess to have any medical expertise. He does not cite to supporting clinical data or medical opinion or treatise evidence, and his own opinion has no probative value. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). A threshold requirement for substantiating a claim of service connection is that there must be competent evidence of the disability for which service connection is sought. In the absence of proof of a current disability, there is no valid claim for service connection. Boyer v. West, 210 F.3d 1351, 1353 (Fed. Cir. 2000); Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). As it is not shown by competent (medical) evidence that at any time during the pendency of the instant claims the Veteran was found to have a right hip disability, a right or left lower extremity disability other than lower extremity radiculopathy and a left knee disability), a right shoulder disability, or a sleep disability (distinct from his service-connected depressive disorder), that threshold requirement is not met. Considering the foregoing, the Board finds that the preponderance of the evidence is against these claims. Therefore, the appeals in these matters must be denied. Bilateral Foot, Cervical Spine, Right Knee, and Liver Disabilities. The Veteran asserts that he has a bilateral foot, a cervical spine, a right knee, and a liver disabilities that were incurred in service. The Veteran's STRs show that he sustained right foot injury in a climbing accident in June 1977. They do not show complaints, treatment, or diagnoses for any other foot injury or a cervical spine, right knee, or liver disability. On a January 1980 medical questionnaire just prior to his separation, he denied having swollen or painful joints. In February 1980, he a service separation examination. Post-service treatment records show that the Veteran was seen for tinea pedis and pedal cellulitis in February 2000, but contain no other mention of treatment or diagnosis for such problems. He first seen for foot lesions in October 2015. He reported that he had foot lesions for the past 17 years (approximately since 1998). On April 2015 VA examination, upon review of the Veteran's claims file and interview and examination of the Veteran, the examiner found that the Veteran did not have diagnoses of a foot disability or a right knee disability. The Veteran's cervical spine spondylosis with radiculopathy was first diagnosed in March 2018. He first complained of right knee pain after a urologic procedure in April 2021; subsequent right knee x-rays showed mild degenerative changes. The record contains reports of liver function studies from April 2016 and April 2017, but does not show a diagnosis of a chronic liver disability. A February 2021 chest CT showed multiple hypodensities in the liver that were stable. The Veteran's STRs do not show any diagnoses of a chronic foot disability, a cervical spine disability, a right knee disability, or a liver disability. He did not begin receiving treatment for any such disability until 1998, at the earliest. Based on the foregoing, the Board finds that a right or left foot disability, a cervical spine disability, a right knee disability, or a liver disability was not manifested as chronic in service, and that service connection for the disabilities on such basis is not warranted. Arthritis of a foot, the cervical spine, or right knee was not manifested in the first year following the Veteran's separation from active duty (and thus may not be presumed to be service-connected under 38 U.S.C. §§ 1112,1137). The first evidence of arthritis was not until a May 2021 right knee x-ray showing mild degenerative changes. And as continuity of right knee arthritis is not shown, service connection for such disability base on a continuity theory of entitlement is also not warranted. What remains for consideration is whether a current right or left foot, cervical spine, right knee, or liver is otherwise shown by competent evidence to be etiologically related to the Veteran's active-duty service. Those are medical questions. See Jandreau, 492 F.3d 1372, 1377. The Veteran has not submitted any competent (medical opinion or treatise) evidence supporting that a current foot, cervical spine, right, or liver disability is indeed etiologically related to his active-duty service. The Board has determined that development for an examination or opinion in these matters is not necessary. An examination or medical opinion is necessary 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 that certain specified diseases were manifested to a compensable during an applicable presumptive period), and (3) an indication that the current disability may be associated with the veteran's service or with another service-connected disability, but (4) there is insufficient competent evidence for a determination on the claim. See McLendon v. Nicholson, 20 Vet. App. 79, 81 (2006). Here, the Board finds that a medical opinion regarding the etiology of the claimed bilateral foot disability, cervical spine disability, right knee disability, or liver disability is not necessary absent any competent (medical) evidence suggesting that these disabilities may be related to a disease, injury, or event in service; even considering the low threshold standard for determining when an examination is necessary endorsed by the Court in McLendon. While the Veteran is competent to report he has had foot, neck, right knee, and liver-related symptoms, he is a layperson and lacks the medical expertise to establish by his own (unsupported) opinion that any foot, cervical spine, right knee, or liver disability is related to his active-duty service. Therefore, his assertions that there is a nexus to service have no probative value. Considering the foregoing, the Board finds that the preponderance of the evidence is against these claims. Therefore, the appeal in these matters must be denied. Increased Ratings Disability ratings are determined by applying a schedule of ratings that is based on average impairment of earning capacity. Separate diagnostic codes identify the various disabilities. 38 U.S.C. § 1155; 38 C.F.R., Part 4. Each disability must be viewed in relation to its history and the limitation of activity imposed by the disabling condition should be emphasized. 38 C.F.R. § 4.1. Examination reports are to be interpreted in light of the whole recorded history, and each disability must be considered from the point of view of the appellant working or seeking work. 38 C.F.R. § 4.2. Where there is a question as to which of two disability evaluations shall be applied, the higher evaluation is to be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating is to be assigned. 38 C.F.R. § 4.7. Reasonable doubt regarding degree of disability is to be resolved in favor of the claimant. 38 C.F.R. § 4.3. In determining the degree of limitation of motion, the provisions of 38 U.S.C. §§ 4.10, 4.40, and 4.45 are for consideration. See DeLuca v. Brown, 8 Vet. App. 202 (1995). The basis of disability evaluation 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. Disability of the musculoskeletal system is primarily the inability, due to damage or infection in parts of the system, to perform the normal working movements of the body with normal excursion, strength, speed, coordination, and endurance. Functional loss may be due to the absence or deformity of structures or other pathology, or it may be due to pain, supported by adequate pathology and evidenced by the visible behavior in undertaking the motion. Weakness is as important as limitation of motion, and a part that becomes painful on use must be regarded as seriously disabled. 38 C.F.R. § 4.40. With respect to joints, in particular, the factors of disability reside in reductions of normal excursion of movements in different planes. Inquiry will be directed to more or less than normal movement, weakened movement, excess fatigability, incoordination, pain on movement, swelling, deformity or atrophy of disuse. 38 C.F.R. § 4.45. Painful motion is an important factor of disability; and joints that are actually painful, unstable, or malaligned, due to healed injury, should be entitled to at least the minimum compensable rating for the joint. 38 C.F.R. § 4.59. Lumbar Spine Disability Disabilities of the spine are rated under either the General Rating Formula for Diseases and Injuries of the Spine (General Rating Formula) or the Formula for Rating Intervertebral Disc Syndrome (IVDS) based on Incapacitating Episodes (Incapacitating Episodes Formula), whichever method results in a higher evaluation when all disabilities are combined. 38 C.F.R. § 4.71a. Under the Incapacitating Episodes Formula, a 10 percent rating is assigned when IVDS results in incapacitating episodes having a total duration of at least one week but less than two weeks during a 12-month period. A 20 percent rating is assigned when IVDS results in incapacitating episodes having a total duration of at least two weeks but less than four weeks during a 12-month period. A 40 percent rating is assigned when IVDS results in incapacitating episodes having a total duration of at least four, but less than six, weeks during a 12-month period. A 60 percent rating is assigned when IVDS results in incapacitating episodes having a total duration of at least six weeks during a 12-month period. An incapacitating episode is a period of acute signs and symptoms due to IVDS that requires bed rest prescribed by a physician and treatment by a physician. 38 C.F.R. § 4.71a, Code 5243, Note (1). Under the General Rating Formula, a 10 percent rating is warranted if forward flexion of the thoracolumbar spine greater is greater than 60 degrees but not greater than 85 degrees; the combined range of motion of the thoracolumbar spine is greater than 120 degrees but not greater than 235 degrees; if there is muscle spasm or guarding not resulting in an abnormal gait or abnormal spinal contour; or for vertebral body fracture with loss of 50 percent or more of the height. A 20 percent evaluation is warranted if forward flexion of the thoracolumbar spine is greater than 30 degrees but not greater than 60 degrees, the combined range of motion of the thoracolumbar spine is not greater than 120 degrees; or if there is 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 evaluation is warranted if forward flexion of the thoracolumbar spine is limited to 30 degrees or less or for favorable ankylosis of the entire thoracolumbar spine. A 50 percent evaluation 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. The criteria for evaluating musculoskeletal disorders were amended effective February 7, 2021. As relevant to this decision, the amended rating criteria limit the types of back disorders entitled to consideration under the alternative criteria for rating IVDS based on incapacitating episodes but do not otherwise revise the substance of the pertinent rating criteria. The amended regulation specifies that only disc herniation with compression and/or irritation of the adjacent nerve root qualifies as IVDS; otherwise, the back disorder is to be rated under Code 5242. Since the prior rating criteria are less restrictive, and are more favorable to the Veteran, those former criteria will be applied. Normal ranges of motion of the thoracolumbar spine are flexion from 0 to 90 degrees, extension from 0 to 30 degrees, lateral flexion from 0 to 30 degrees, and lateral rotation from 0 to 30 degrees. 38 C.F.R. § 4.71, Plate V. The Veteran's lumbar spine disability is rated 10 percent prior to March 9, 2021, and 20 percent from that date, under Code 5010-5237. The evidence of record does not show that the Veteran has experienced incapacitating episodes of IVDS. The April 2021 VA examiner indicated that the Veteran did not have IVDS. There is no evidence in the record showing that bed rest has been prescribed to treat the Veteran's lumbar spine disability. Therefore, rating the disability under the Incapacitating Episodes Formula is not for consideration. Thus, the analysis turns (and is limited to) whether ratings in excess of 10 percent prior to March 9, 2021, and in excess of 20 percent from that date, are warranted under the General Formula and whether a further separate rating is warranted for neurological manifestations (other than bilateral lower extremity radiculopathy). The Veteran's treatment records show that he has received treatment for his lumbar spine disability, but they do not note any range of motion studies for assessment of motion limitation or ankylosis (for consideration of whether higher ratings are warranted. They do show that for a large part of the period for consideration opiod medication was prescribed for treatment (and treatment providers were seeking to wean him off opioids) They also show that he consistently reported that the back disability disrupted his sleep. Regarding neurological manifestations, the Veteran's treatment records do not show bowel or bladder incontinence. He denied having bowel or bladder changes in July 2020 and denied having incontinence in May 2021. On January 2021 VA examination, he again denied having incontinence. Therefore, the record does not show any neurological manifestations of the lumbar spine disability (other than bilateral lower extremity radiculopathy) that would warrant an additional separate rating. On January 2021 VA examination, the Veteran reported having back pain. He reported having flare-ups and functional loss of limited prolonged ambulation or standing. On examination, flexion was to 45 degrees. The examiner noted that there was evidence of pain on examination, with weight bearing, and with non-weight bearing, but that pain did not cause functional loss. Repetitive use testing did not result in any additional limitation of motion or loss of function. The examiner found that pain, fatigability, lack of endurance or incoordination did not significantly limit functional ability with repeated use over a period of time or during flare-ups. The examiner indicated that there were no additional contributing factors of disability. He retained normal (5/5) lower extremity strength, with no muscle atrophy. He retained normal reflexes and normal sensation. The examiner stated that the Veteran did not have any other neurological abnormalities or findings related to his lumbar spine disability, such as bowel or bladder problems, and that the Veteran's spine was not ankylosed. The pertinent evidence is summarized above. Prior to March 9, 2021, there is no evidence that shows limitation of thoracolumbar flexion to 60 degrees or less or a combined range of motion of the thoracolumbar spine limited to 120 degrees or less, so as to warrant a 20 percent rating. Ankylosis of the spine was not shown. And neurological manifestations (other than bilateral lower extremity radiculopathy) were not shown. From March 9, 2021, there is no evidence that thoracolumbar flexion was limited to 30 degrees or less, or that the spine was ankylosed, so as to warrant a 40 percent rating. On examination flexion was to 45 degrees, even considering such factors as repetitive use and severity during flare-ups, and the spine was found to not be ankylosed. Furthermore, neurological manifestations other than bilateral lower extremity radiculopathy were not found. The Board has considered whether a higher rating may be warranted based on functional loss due to pain or due to weakness, fatigability, incoordination, or pain on movement under 38 C.F.R. §§ 4.40 and 4.45 (or on the level of impairment present during flare-ups). See also DeLuca, 8 Vet. App. 202. In that regard, the March 2021 VA examiner indicated that pain, weakness, fatigability, or incoordination did not significantly limit functional ability with repeated use over a period of time or during flare-ups. The Veteran's treatment records do not show functional limitation warranting ratings in excess of those assigned during the periods on appeal. Accordingly, rating in excess of 10 percent prior to March 9, 2021, and in excess of 20 percent from that date, based on such factors are not warranted. While the Veteran reported experiencing lumbar spine pain, pain alone is not sufficient to warrant a higher rating, unless it results in additional loss of function. Mitchell, 25 Vet. App. 32, 36-38. The Board has no reason to question the Veteran's reports that his lumbar spine disability results in pain that limits physical activities, such as prolonged ambulation or standing. Such limitations are contemplated by the criteria for the currently assigned ratings. The record does not show or suggest that the rating criteria are inadequate for rating the Veteran's lumbar spine disability so as to warrant referral for consideration of an extra-schedular rating. The effects of the disability (detailed above) are fully contemplated by the criteria for the 10 percent rating and 20 percent rating assigned under Code 5010-5237. The Board also finds that the lumbar spine disability symptoms and impairment shown do not include any that are not adequately addressed by the schedular rating criteria. The disability picture presented is not shown (nor alleged) to be exceptional, so as to suggest referral for consideration of an extraschedular rating under 38 C.F.R. § 3.321 may be warranted. Considering the foregoing, the Board finds that the preponderance of the evidence is against this claim. Therefore, the appeal in this matter must be denied. Bilateral Lower Extremity Radiculopathy The Veteran has asserted that he is entitled to higher ratings, each, for his right and left lower extremity radiculopathy. The Veteran's bilateral lower extremity radiculopathy is rated under Code 8520, (for paralysis of the sciatic nerve). Moderate incomplete paralysis of the nerve is rated 20 percent, moderately severe incomplete paralysis of the nerve is rated 40 percent, severe incomplete paralysis of the affected nerve with marked muscular atrophy is rated 60 percent, and complete paralysis of the nerve is rated 80 percent disabling. 38 C.F.R. § 4.124a, Code 8520. The words "moderate," "moderately severe," and "severe" as used in the various Codes are not defined in the VA Schedule for Rating Disabilities. Rather than applying a mechanical formula, the Board must evaluate all of the evidence for "equitable and just decisions." 38 C.F.R. § 4.6. The term "incomplete paralysis" indicates a degree of lost or impaired function substantially less than the type picture for complete paralysis given with each nerve, whether due to varied level of the nerve lesion or to partial regeneration. When the involvement is wholly sensory, the rating should be for the mild, or at most, the moderate degree. 38 C.F.R. § 4.124a, Diseases of the Peripheral Nerves. The Veteran's treatment records do not contain findings consistent with the criteria for higher ratings. Bilateral lower extremity radiculopathy was diagnosed as early as in 2009 (prior to the evaluation period). Significantly, on January 2021 examination the Veteran was found to have 5/5 (full) lower extremity muscle strength; there was no muscle atrophy; and reflexes and sensation were normal. On March 2021 VA examination, the examiner opined that the Veteran had mild bilateral lower extremity radiculopathy. Such clinical data clearly do not support a finding of more than moderate incomplete paralysis of the sciatic nerve (as would be needed to warrant rating in excess of the 20 percent currently assigned). The Board has no reason to question the Veteran's reports that his lumbar spine disability results in radiating pain into his bilateral lower extremities. Such limitations are fully contemplated by the criteria for the ratings that have been assigned. Considering the foregoing, the Board finds that the preponderance of the evidence is against these claims. Therefore, the appeals in these matters must be denied. Bilateral Hearing Loss Disability ratings for hearing loss are derived by a mechanical application of the rating schedule to the numeric designations assigned after audiometric evaluations are performed. See Lendenmann v. Principi, 3 Vet. App. 345, 349 (1992). Hearing loss disability evaluations range from 0 to 100 percent based on organic impairment of hearing acuity, as measured by controlled speech discrimination tests in conjunction with the average hearing threshold, as measured by puretone audiometric tests in the frequencies 1000, 2000, 3000 and 4000 cycles per second. The rating schedule establishes eleven auditory acuity levels designated from Level I for essentially normal hearing acuity, through Level XI for profound deafness. VA audiometric examinations are conducted using a controlled speech discrimination test together with the results of a puretone audiometric test. The horizontal lines in Table VI (in 38 C.F.R. § 4.85) represent nine categories of the percentage of discrimination based on the controlled speech discrimination test. The vertical columns in Table VI represent nine categories of decibel loss based on the puretone audiometric test. The numeric designation of impaired hearing (Levels I through XI) is determined for each ear by intersecting the horizontal row appropriate for the percentage of discrimination and the vertical column appropriate to the puretone decibel loss. Table VIA (in 38 C.F.R. § 4.85) is used when speech discrimination tests are inappropriate due to language difficulties, inconsistent speech discrimination scores, etc., or where there is an exceptional pattern of hearing loss (as defined in 38 C.F.R. § 4.86). One such pattern occurs when puretone thresholds at each of the four specified frequencies is 55 decibels or more. The percentage evaluation is derived from Table VII (in 38 C.F.R. § 4.85) by intersecting the horizontal row appropriate for the numeric designation for the ear having the better hearing acuity with the appropriate vertical column for the hearing acuity level for the ear with the poorer hearing acuity. See 38 C.F.R. § 4.85(e). The Veteran's bilateral hearing loss has been rated under Code 6100 for hearing loss. He asserted that he was entitled to an initial compensable rating. The Veteran's medical records do not contain include any audiometry reports showing or suggesting that a compensable rating for his hearing loss is warranted. On April 2015 VA audiological examination, audiometry showed a puretone threshold average of 23 decibels with a discrimination of 88 percent in the right ear and a puretone threshold average of 21 decibels with 88 percent discrimination in the left ear. Such findings reflect Level II hearing acuity in each ear. Under Table VII, such level of hearing acuity warrants a 0 percent rating. As the testing did not reveal an exceptional pattern of hearing impairment (as defined in 38 C.F.R. § 4.86), and the examiner found that the speech recognition scores were appropriate for rating, consideration of an alternate rating under Table VIA (based on puretone thresholds alone) would not be appropriate. The Board notes the Veteran's lay accounts describing the difficulty he has hearing; he is competent to report his observations. However, he is not competent to, by his own observation, establish the Level of hearing impairment present. That is a medical determination made based on findings on regulation-mandated diagnostic studies. See Moray v. Brown, 2 Vet. App. 211, 214 (1993). The rating for hearing impairment is derived by the mechanical application of the Rating Schedule to the numeric designations assigned based on objective audiometric test results. The Board has no reason to question that the Veteran's bilateral hearing loss resulted in the functional limitations he has described, such as difficulty hearing speech. Such limitations are contemplated by the criteria for the 0 percent rating that is assigned. The symptoms and impairment shown do not include any that are not adequately addressed by the schedular rating criteria. The disability picture presented by the hearing loss is not shown to be exceptional (nor is it alleged to be), so as to suggest referral for consideration of an extraschedular rating under 38 C.F.R. § 3.321 may be warranted. Considering the foregoing, the Board finds that the preponderance of the evidence is against this claim. Therefore, the appeal in the matter must be denied. Tinnitus Tinnitus is evaluated under Code 6260. A single 10 percent rating, the maximum schedular rating, is assigned for tinnitus, whether the sound is perceived as being in one ear, both ears, or in the head. Here, the Veteran's tinnitus has been assigned the maximum schedular rating available for tinnitus under that Code, a 10 percent rating, throughout. Therefore, there is no legal basis for a schedular higher rating for tinnitus. The Board has no reason to question that the Veteran's tinnitus has resulted in the functional limitations he has reported, including difficulty hearing (due to ringing) and headaches (which are service-connected, and separately rated). However, it is specifically based on such impairment that the 10 percent schedular rating has assigned. Such limitations are contemplated by the criteria for the 10 percent rating that was assigned (and the separate 0 percent ratings for hearing impairment as discussed above and a headache disability). The Board also finds that the tinnitus symptoms and impairment shown do not include any not adequately addressed by the schedular rating criteria. The disability picture presented by the tinnitus is not exceptional (or alleged to be so), so as to suggest referral for consideration of an extraschedular rating under 38 C.F.R. § 3.321 may be warranted. Considering the foregoing, the Board finds that the preponderance of the evidence is against the claim. Therefore, the appeal in the matter must be denied. TDIU Total disability will be considered to exist when there is present any impairment of mind or body which is sufficient to render it impossible for the average person to follow a substantially gainful occupation. 38 C.F.R. § 3.340. Total disability ratings for compensation may be assigned, where the schedular rating is less than total, when the disabled person is unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities, provided that, if there is only one such disability, the disability shall be ratable at 60 percent or more, and that, if there are two or more service-connected disabilities, at least one must be rated at 40 percent or more and the combined rating must be 70 percent or more. 38 C.F.R. § 4.16(a). Being unable to maintain substantially gainful employment is not the same as being 100 percent disabled. "While the term 'substantially gainful occupation' may not set a clear numerical standard for determining TDIU, it does indicate an amount less than 100 percent." Roberson v. Principi, 251 F.3d 1378 (Fed Cir. 2001). Assignment of a TDIU evaluation requires that the record reflect some factor that "takes the claimant's case outside the norm" of any other veteran rated at the same level. Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993) (citing 38 C.F.R. §§ 4.1, 4.15). The sole fact that a claimant is unemployed or has difficulty obtaining employment is not enough. A disability rating in itself is recognition that the impairment makes it difficult to obtain or keep employment, but the ultimate question is whether the veteran is capable of performing the physical and mental acts required by employment, not whether he or she can find employment. Id. On his January 2020 VA Form 21-8940 Veteran's Application for Increased Compensation Based on Unemployability, the Veteran reported that his service-connected disabilities prevented him from securing or following a substantially gainful occupation. He reported that he last worked parttime in 2009 in housing construction. He indicated that he has three years of high school education. The Veteran's service connected disabilities meet the schedular requirements for a TDIU in 38 C.F.R. § 4.16(a) throughout as he has had a single disability rated at 40 percent or more (depressive disorder rated at 50 percent) and the combined rating for his service-connected disabilities is 80 percent (depressive disorder rated 50 percent, a lumbar spine disability rated 10 percent prior to March 9, 2021, and 20 percent from that date, left and right lower extremity radiculopathy rated 20 percent, each, a left shoulder disability rated 20 percent, a left knee disability rated 10 percent, and tinnitus rated 10 percent, with 0 percent ratings, each, for a headache disability and bilateral hearing loss. In October 2008 and February 2009, the Veteran's treating-physician opined that he was unable to work due to his lumbar spine disability and left hip pain (which has been attributed to lumbar spine radiculopathy). In November 2010, the Social Security Administration (SSA) found the Veteran was disabled due to his lumbar spine disability with radiculopathy, left shoulder disability, right shoulder disability (which are service-connected disabilities), and cervical spine disability with radiculopathy (which is not service-connected). An April 2015 VA examiner found that the Veteran's bilateral hearing loss did not impact on his ability to engage in occupational tasks but that his tinnitus resulted in headaches, which impacted on ability to work. An April 2015 VA examiner indicated that the Veteran's left shoulder disability prevented him from lifting heavy objects or performing overhead activities and that his left knee disability prevented him from doing extending walking. In January 2017, an independent medical professional reviewed the Veteran's claims file and interviewed the Veteran. The medical professional opined that the Veteran's depressive disorder resulted in occupational and social impairments. The provider opined that the Veteran's depressive disorder, lumbar spine disability, bilateral lower extremity radiculopathy, bilateral hearing loss, and tinnitus prevented him from maintaining substantially gainful employment. A March 2021 VA examiner indicated that the Veteran's lumbar spine disability with bilateral lower extremity radiculopathy limited his prolonged ambulation and standing and therefore compromised his ability to perform job functions. A March 2021 VA examiner indicated that the Veteran's depressive disorder resulted in occupational and social impairment with reduced reliability and productivity. The examiner indicated that the Veteran's depressive disorder resulted in disturbances of motivation and mood and difficulty in establishing and maintaining effective work and social relationships. Upon review of the evidence of record, and resolving reasonable doubt in the Veteran's favor, the Board finds the evidence at least in equipoise regarding whether the Veteran's service-connected disabilities render him unemployable, and that a TDIU rating is warranted. The Veteran has a limited (eleventh grade) education, and has had no additional education or training. His occupational experience has primarily been in physically demanding work/heavy labor in housing construction (inconsistent with his service-connected orthopedic disabilities). Furthermore, he is shown (by competent medical evidence) to have reduced reliability and productivity due to his service-connected psychiatric disability. In addition, impairment from his use of opioids prescribed for spine disability at least early during the evaluation period and due to impaired sleep due to back disability cannot be discounted. Such impairment clearly would have impact on ability to drive and operate machinery as well as concentration. While the SSA decision that granted SSA disability benefits is not controlling on VA determinations, and also considered disabilities that are not-service-connected, it is evidence for consideration regarding whether he is considered to be employable. Resolving any remaining reasonable doubt in the Veteran's favor, as required (see 38 C.F.R. § 4.3), the Board finds that that it is reasonably shown that due to his service-connected disabilities, the Veteran is precluded in any regular substantially gainful employment. A TDIU rating is warranted. REASONS FOR REMAND The Veteran has asserted that he had memory loss secondary to his service-connected disabilities, to include as due to medication prescribed to treat his service-connected disabilities. The December 2018 Board remand found that no VA examiner had determined whether the Veteran had a [cognitive] disability manifested by memory loss. In April 2021 he was afforded a VA examination in connection with this claim. However, the opinion provided is inadequate for rating purposes. First, the examiner did not provide an opinion fully responsive to the Board's request. Specifically, the examiner was to determine the nature and etiology of the Veteran's memory loss and opine whether any memory loss was at least as likely as not due to his active-duty service or caused or aggravated by a service-connected disability. However, the examiner did not address whether the Veteran's memory loss was due to or aggravated by a service-connected disability. Second, the examiner found that the Veteran did not have a "significant" memory loss, but did not define what was meant by significant (leaving unclear whether he in fact has memory loss impairment). Finally, the examiner did not address an April 2016 medical record showing that the Veteran reported that his medications caused memory loss and reconcile it with the February 2021 VA examination notation that he reported that his memory was good and denied having memory issues. Development for a clarifying medical opinion is necessary. See Stegall v. West, 11 Vet. App. 268, 271 (1998). The matter is REMANDED for the following: 1. With the Veteran's assistance (identifying providers and submitting authorizations for VA to obtain any private treatment records), secure for the record any outstanding medical records pertaining to evaluations and treatment he may have received for memory loss. 2. Thereafter, arrange for the Veteran's claims file to be forwarded to an appropriate clinician for review and an advisory medical opinion regarding the likely nature and etiology of the claimed memory loss [If further examination of the Veteran is deemed necessary for an opinion sought, such should be arranged.] The opinion should include responses to the following: (a) Does the Veteran at least as likely as not (a 50 percent or greater) have a cognitive disability manifested by memory loss? If the response is qualified by an adjective (such as significant) define how that term is used (i.e., to indicate there is no such disability or to indicate there is such disability, but of minor severity). (b) If a disability manifested by memory loss is found, was it at least as likely as not that was (i) caused or (ii) aggravated by a service-connected disability to include medication prescribed for treatment of a service-connected disability? (b) If a chronic disability manifested by memory loss is not found to be shown, reconcile that conclusions with the clinical data in the record and the Veteran's lay reports suggesting otherwise. All opinions must include rationale that cites to supporting clinical data and medical principles, and considers the Veteran's lay statements. GEORGE R. SENYK Veterans Law Judge Board of Veterans' Appeals Attorney for the Board T. Berryman, 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.