Citation Nr: 21071933 Decision Date: 12/01/21 Archive Date: 12/01/21 DOCKET NO. 17-23 887 DATE: December 1, 2021 ORDER Entitlement to service connection for gout of the feet and hands is denied. Entitlement to service connection for a bilateral foot disability is denied. Entitlement to a rating in excess of 30 percent prior to December 2, 2019 and 50 percent thereafter for an acquired psychiatric disorder is denied. Entitlement to a rating in excess of 10 percent for a right hip disability is denied. Entitlement to a rating in excess of 10 percent for a neck disability is denied. Entitlement to a compensable rating for a left hip scar is denied. Entitlement to a compensable rating prior to December 2, 2019 and 30 percent thereafter for headaches is denied. Entitlement to a rating in excess of 50 percent for a left hip replacement disability from October 1, 2012 is denied. Entitlement to a compensable rating for a leg length discrepancy is denied. Entitlement to a total disability rating based on individual unemployability (TDIU) effective October 1, 2012 is granted. REMANDED Entitlement to service connection for sleep apnea is remanded. Entitlement to service connection for chronic obstructive pulmonary disease (COPD) is remanded. Entitlement to service connection for a heart disability is remanded. Entitlement to service connection for a back disability is remanded. FINDINGS OF FACT 1. The Veteran does not have gout that was incurred in or due to his time in service or that is proximately due to his service-connected disabilities. 2. The Veteran does not have a bilateral foot disability that was incurred in or due to his time in service or that is proximately due to his service-connected disabilities. 3. Prior to December 2, 2019, the Veteran's mental health disability is not manifested by occupational and social impairment with reduced reliability and productivity. From December 2, 2019, the Veteran's mental health disability is not manifested by occupational and social impairment with deficiencies in most areas. 4. The Veteran's right hip disability is not manifested by limitation of abduction or motion lost beyond 10 degrees. 5. The Veteran's neck disability is not manifested by limitation of forward flexion from 15 to 30 degrees. 6. The Veteran's left hip scar is not unstable or painful. 7. Prior to December 2, 2019, the Veteran's headaches were not manifested by characteristic prostrating attacks averaging one in two months over last several months. From December 2, 2019, the Veteran's headaches were not manifested by very frequent completely prostrating and prolonged attacks productive of severe economic inadaptability. 8. The Veteran's left hip replacement disability is not manifested by markedly severe residual weakness, pain or limitation of motion following implantation of prosthesis. 9. The Veteran's leg length discrepancy disability is not manifested by shortening 1.25 to 2 inches (3.2 cm to 5.1 cm). 10. From October 1, 2012, the Veteran's service-connected disabilities have rendered him unable to work. CONCLUSIONS OF LAW 1. The criteria for service connection for gout are not met. 38 U.S.C. §§ 1110, 1131, 5107(b); 38 C.F.R. §§ 3.102, 3.303, 3.310. 2. The criteria for service connection for a bilateral foot disability are not met. 38 U.S.C. §§ 1110, 1131, 5107(b); 38 C.F.R. §§ 3.102, 3.303, 3.310. 3. The criteria for a rating in excess of 30 percent from December 2019, and 50 percent thereafter for a psychiatric disability have not been met. 38 C.F.R. §§ 3.102, 4.1, 4.2, 4.3, 4.7, 4.14, 4.130, Diagnostic Code (DC) 9440. 4. The criteria for a rating in excess of 10 percent for a right hip disability been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.1, 4.3, 4.7, 4.71a, DC 5253. 5. The criteria for a rating in excess of 10 percent for a neck have not been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.1, 4.3, 4.7, 4.71a, DC 5237. 6. The criteria for compensable rating for a left hip scar have not been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.1, 4.3, 4.7, 4.118, DC 7805. 7. The criteria for a compensable rating prior to December 2, 2019 and 30 percent thereafter for headaches have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. § 4.130, DC 8100. 8. The criteria for a rating in excess of 50 percent for a left hip replacement disability been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.1, 4.3, 4.7, 4.71a, DC 5054. 9. The criteria for a compensable rating for a leg length discrepancy have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. § 4.71a, DC 5275. 10. The criteria for entitlement to a TDIU effective October 1, 2012 have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.340, 3.341, 4.3, 4.7, 4.15, 4.16, 4.18, 4.19. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service from July 1975 to October 1977. These matters are on appeal from December 2016, January 2017, April 2017, and February 2018 rating decisions by a Department of Veterans Affairs (VA) regional office (RO). A January 2017 rating decision denied service connection for COPD and denied reopening the claim to service connection for sleep apnea because no new and material evidence was submitted. The claim to service connection for sleep apnea was subsequently reopened in a November 2019 Statement of the Case (SOC). The Veteran had a hearing before the undersigned Veterans Law Judge in May 2021. A transcript has been associated with the file. The Board notes that while many of the Veteran's claims are denied below, the Board has also found that the Veteran's overall disability picture from October 1, 2012 warrants the award of a TDIU from that date. Therefore, overall, the grant of any remaining service connection claims or increased rating claims from that time would not result have resulted in a higher than 100% monetary compensation. Service Connection Claims Generally, to prevail on a claim of service connection on the merits, there must be competent evidence of (1) a current disability, (2) medical, or in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury, and (3) medical evidence or other competent evidence of a nexus between the claimed in-service disease or injury and the present disease or injury. See Hickson v. West, 12 Vet. App. 247 (1999); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). To establish service connection on a secondary basis, the evidence must show (1) that a current disability exists and (2) that the current disability was either (a) caused by or (b) aggravated by a service-connected disability. 38 C.F.R. § 3.310. Gout Claim The Veteran contends he has gout that was incurred in or due to his time in service. The Veteran has been diagnosed with right foot gout. (See e.g. November 2016 examination.) The Veteran's STRs do not indicate he was seen for ongoing gout while in service. The Veteran had an examination in November 2016. The onset of the Veteran's condition was approximately six to seven years prior. The examiner, after reviewing the Veteran's file, seeing him in person, and noting several relevant treatment records, opined it was less likely than not the Veteran's right hand gout was incurred in or due to his time in service as there was no diagnosis of this condition. The examiner opined it was less likely than not the Veteran's right foot gout was incurred in or due to his time in service. The examiner noted the Veteran's treatment for his right foot in service, but that they had to do with calluses or corns on his right little toe. The examiner noted there was no mention of treatment of the Veteran's claimed foot conditions while in service and that the treatment in service involved the Veteran's little toe while the Veteran's current diagnosis involved his first great toe. The Veteran's treatment records note a past history of gout. (See e.g. October 2008, February 2021 treatment records.) However, the Veteran's record does not show that the Veteran had gout while in service or that his gout is due to his time in service or is proximately due to his service-connected disabilities. Bilateral Foot Claim The Veteran has been diagnosed with bilateral foot conditions, including flat foot and hallux valgus. (See e.g. November 2016 examination.) The Veteran's STRs do indicate he was seen for treatment for his feet while in service. However, this treatment was for a right great toe injury and a corn. The Veteran had an examination for his bilateral feet in November 2016. The Veteran said that the onset of his symptoms was six or seven years ago and that he had been told he had flat feet in the past. The examiner opined it was less likely than not the conditions were incurred in or due to his time in service, explaining there was no mention of flat feet or hallux valgus while in service and that the treatment sought in service was for other parts of the Veteran's feet. The Veteran's record does not show that the Veteran had treatment for the same foot conditions he has now while in service or that his foot disabilities are due to his time in service or are proximately due to his service-connected disabilities. Pertaining to the claims above, the Veteran's treatment records indicate he has been treated for gout and foot problems over the years. Even if the Veteran were to have been diagnosed with gout in other areas of his body, the preponderance of the evidence does not indicate that it was incurred in or due to his time in service. While the Board understands it cannot rely solely on the absence of treatment during the Veteran's time in service as a reason to deny the claim, the United States Court of Appeals for Veterans Claims (Court) has indicated that normal medical findings at the time of separation from service, as well as the absence of any medical records of a diagnosis or treatment for many years after service is probative evidence against the claim. See Mense v. Derwinski, 1 Vet. App. 354, 356 (1991) (affirming Board where it found that Veteran failed to account for the lengthy time period after service for which there was no clinical documentation of low back condition). In this case, the Veteran separated from service in October 1977 and treatment records do not indicate he was seen for these conditions for over twenty years. The Board finds this gap in treatment to be probative and along with the other evidence of record, finds that service connection is not warranted. Increased Rating Claims Disability evaluations (ratings) are determined by evaluating the extent to which a veteran's service-connected disability adversely affects his ability to function under the ordinary conditions of daily life, including employment, by comparing the symptomatology with the criteria set forth in the Schedule for Rating Disabilities (Rating Schedule). 38 U.S.C. §§ 1155; 38 C.F.R. §§ 4.1, 4.2, 4.10. The evaluation of a problem during time that is clearly getting worse is complex. In evaluating a disability, the Board considers the current examination reports in light of the whole recorded history to ensure that the current rating accurately reflects the severity of the condition. The Board has a duty to acknowledge and consider all regulations that are potentially applicable. Schafrath v. Derwinski, 1 Vet. App. 589 (1991). The medical as well as industrial history is to be considered, and a full description of the effects of the disability upon ordinary activity is also required. 38 C.F.R. §§ 4.1, 4.2, 4.10. 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. See Fenderson v. West, 12 Vet. App. 119 (1999). The evaluation of the same disability under multiple diagnostic codes, known as pyramiding, must be avoided. 38 C.F.R. § 4.14. Separate ratings may be assigned for distinct disabilities resulting from the same injury so long as the symptomatology for one condition is not duplicative of or overlapping with the symptomatology of the other condition. Id. 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. Mental Health Claim The Veteran contends that his mental health disability is worse than indicated by his 30 percent rating prior to December 2, 2019 and 50 percent thereafter. Under DC 9440, a 30 percent evaluation for PTSD requires occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks (although generally functioning satisfactorily, with routine behavior, self-care, and conversation normal), due to such symptoms as: depressed mood, anxiety, suspiciousness, panic attacks (weekly or less often), chronic sleep impairment, mild memory loss (such as forgetting names, directions, recent events.) A 50 percent evaluation requires occupational and social impairment with reduced reliability and productivity due to such symptoms as: flattened affect; circumstantial, circumlocutory, or stereotyped speech; panic attacks more than once a week; difficulty in understanding complex commands; impairment of short- and long-term memory (e.g., retention of only highly learned material, forgetting to complete tasks); impaired judgment; impaired abstract thinking; disturbances of motivation and mood; and, difficulty in establishing and maintaining effective work and social relationships. A 70 percent rating is prescribed when there is evidence of occupational and social impairment, with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood, due to such symptoms as: suicidal ideation; obsessional rituals which interfere with routine activities; speech intermittently illogical, obscure, or irrelevant; near-continuous panic or depression affecting the ability to function independently, appropriately, and effectively; impaired impulse control (such as unprovoked irritability with periods of violence); spatial disorientation; neglect of personal appearance and hygiene; difficulty in adapting to stressful circumstances (including work or a work like setting); and inability to establish and maintain effective relationships. A 100 percent rating is prescribed when there is evidence of total occupational and social impairment due to such symptoms as: gross impairment in thought processes or communication; persistent delusions or hallucinations, grossly inappropriate behavior; persistent danger of hurting self or others; intermittent inability to perform activities of daily living (including maintenance of minimal personal hygiene); disorientation as to time or place; and memory loss for names of close relatives, own occupation, or own name. The list of symptoms under the rating criteria are meant to be examples of symptoms that would warrant the rating, but are not meant to be exhaustive, and the Board need not find all or even some of the symptoms to award a specific rating. Mauerhan v. Principi, 16 Vet. App. 436, 442-3 (2002). However, a veteran may only qualify for a given disability rating under § 4.130 by demonstrating the particular symptoms associated with that percentage, or others of similar severity, frequency, and duration, and that such symptoms have resulted in the type of occupational and social impairment associated with that percentage. Vazquez-Claudio v. Shinseki, 713 F.3d 112, 117-18 (Fed. Cir. 2013). Prior to December 2, 2019, the Veteran had trouble in his social life with his only companion being his wife. The Veteran reporting having no friends and no social life. Work for the Veteran was also very difficult because it was hard to get along with co-workers and obey instructors from supervisors. The Veteran had not been employed since 1990. The Veteran found it hard to read a book, had trouble with his memory, and remembering his grandchildren's names. The Veteran also had trouble with low energy. (See May 2021 hearing transcript.) The Veteran had an examination for his mental health in November 2016. The examiner opined the Veteran's mental health had been diagnosed but symptoms were not severe enough either to interfere with occupational and social functioning or to require continuous medication. The Veteran was married, having been divorced once previously. The Veteran had a daughter, attended church, but did not have any significant social activities. The Veteran last worked in 1990, saying he was unable to work due to his mental and physical problems and had not sought work. The Veteran reported symptoms of anxiety and depression, feelings of inadequacy, irritability, diminished energy. The examiner also reported the Veteran's symptoms included flattened affect and that he continued to socially isolate. From December 2, 2019, the Veteran reported passive suicidal ideations and would go to a dark place. The Veteran said he called a crisis line and spoke to people but was scared to use the word "suicidal." The Veteran also felt his life was worthless, had nightmares that interfered with his sleep about four days a week. The Veteran also reported crying spells three times a month. The Veteran also reported having some hallucinations. The Veteran said he did not leave his house and had sleep trouble which led to lower energy and fatigue. (See May 2021 hearing transcript.) The Veteran had another examination for his mental health in December 2019. The examiner opined the Veteran's mental health disability led to occupational and social impairment due to mild or transient symptoms. The Veteran reported he was separated from his wife and spent little time with others. The Veteran had contact with his children and some friends. The Veteran also reported not going to church. The examiner said the Veteran's symptoms included depressed mood, chronic sleep impairment, flattened affect, and difficulty in establishing and maintaining effective work and social relationships. The Veteran was appropriately dressed and groomed with normal speech, congruent affect, with linear thinking. The Veteran did not have suicidal or homicidal ideations, no hallucinations and was oriented with adequate judgment and insight. The Veteran's medical treatment records indicate he had been seen for his mental health. The Veteran has often denied suicidal ideations. (See e.g. April 2012, May 2018, March 2020, February 2021 treatment records.) The Veteran's records also indicate he did not have problems with psychosis, problems with his thoughts or speech, and that his judgment and insight were normally fair to adequate. (See e.g. April 1012, December 2015, May 2018 treatment records.) After reviewing the Veteran's entire record, the Board does not find the Veteran's mental health warrants a higher disability for any time period on appeal. Prior to December 2, 2019, the Veteran's mental health did not lead to occupational and social impairment with reduced reliability and productivity. While the Veteran had not worked since 1990, this was reported to be due to a combination of mental health symptoms and a lot of physical problems unrelated to his mental health. Additionally, during this period, while the Veteran did not have friends or much of a social life, he did remain in a committed relationships. The Veteran's symptoms during this time did not approximate problems with speech, impaired judgment, impaired abstract thinking, or disturbances of motivation and mood. The Veteran's record also does not indicate he had trouble with panic attacks more than once a week or difficulty in understanding complex commands. From December 2, 2019, the Veteran's record does not indicate his mental health led to of occupational and social impairment, with deficiencies in most areas. Regarding his social impairment, the Veteran had separated from his wife, but still reported some contact with friends and his children. The Veteran also had not worked during this time period, but again, this was reported to be due to his mental health and his physical conditions, not solely due to his mental health. While the Veteran reported a passive suicidal ideation, he did not regularly report suicidal ideations. Additionally, the Veteran's record does not indicate he struggled with symptoms that approximate obsessional rituals which interfere with routine activities, speech problems, near-continuous panic or depression affecting the ability to function independently, appropriately, and effectively, impaired impulse control (such as unprovoked irritability with periods of violence), spatial disorientation, or neglect of personal appearance and hygiene. Therefore, the Board finds the Veteran's mental health did not warrant a higher rating for any time period on appeal. Headache Claim The Veteran contends that his headache disability is worse than indicated by his compensable rating prior to December 2, 2019 and 30 percent thereafter. The Veteran's headaches are rated under DC 8100. Under DC 8100, a 10 percent disability rating is warranted for headaches with characteristic prostrating attacks averaging one in two months over the last several months. A 30 percent disability rating is warranted for headaches with characteristic prostrating attacks occurring on average once a month over the last several months. A 50 percent disability rating is warranted for headaches with frequent completely prostrating and prolonged attacks productive of severe economic inadaptability. In his May 2021 hearing, the Veteran said since 2012, he would need to lay down and be motionless because of the pain associated with his headaches. The Veteran said he would have to use something to cover his eyes and was sensitive to light or loud noises and had some memory issues. The Veteran also reported some nausea and that he had headaches about three times per week. The Veteran had an examination for his headaches in November 2016. The examiner did not experience non-headache symptoms associated with his headaches and his typical headaches lasted less than a day. The Veteran did not have prostrating attacks or migraines or non-migraines. The examiner stated the headaches were most consistent with tension-type headaches. The Veteran had another examination for his headaches in December 2019. The Veteran said that he was sensitive to light, got headaches twice per week and would take over the counter medication. The Veteran said his headaches got better with revision hip surgery but he still got headaches. The examiner noted the Veteran's symptoms included pulsating or throbbing pain along with nausea, sensitivity to light and sound. The examiner found the Veteran had characteristic prostrating attacks of migraines once per month but that they were not very prostrating or prolonged productive of severe economic inadaptability. The Veteran's medical treatment records show he often denied having headaches. (See e.g. November 2015, December 2016 treatment records.) The Veteran was seen in the ER in March 2016 with headaches and atypical chest pain. The Board had considered all of the evidence of record but finds the Veteran is not entitled to a higher disability rating for his headaches for any time on appeal. Prior to December 2, 2019, the Veteran's headaches clearly bothered him. However, the Veteran's record does not indicate he had characteristic prostrating attacks averaging one in two months over the last several months. From December 2, 2019, the Veteran's record does not indicate he had headaches with frequent completely prostrating and prolonged attacks productive of severe economic inadaptability. This does not mean the Veteran did not experience headaches or that they did not cause him pain or the other symptoms he reported. However, the record does not indicate that his headaches rose to the severity as to warrant higher disability ratings. Neck Claim The Veteran contends his neck disability is worse than indicated by his 10 percent rating. The Veteran's neck is rated under DC 5237. There were no changes to the rating criteria as of February 7, 2021. In his May 2021 hearing, the Veteran reported it was difficult for him to turn his head right or left and that he had to use a heat or cold pack on his neck for about eight years. Under DC 5237, a 10 percent rating is warranted for forward flexion of the cervical spine greater than 30 degrees but not greater than 40 degrees. A 20 percent rating is warranted for forward flexion of the cervical spine greater than 15 degrees but not greater than 30 degrees. A 30 percent rating is warranted for forward flexion of the cervical spine 15 degrees or less. A 40 percent rating is warranted for unfavorable ankylosis of the entire cervical spine. A 50 percent rating is warranted for unfavorable ankylosis of the entire thoracolumbar spine. A 100 percent rating is warranted for unfavorable ankylosis of the entire spine. The Veteran had an examination for his neck in November 2016. The Veteran reported neck pain that started ten years ago and had remained the same. The Veteran also reported stiffness and soreness along with decreased range of motion. The examiner reported the Veteran's forward flexion was to 40 degrees with range of motion not contributing to functional loss. The Veteran was able to perform repetitive use testing but there was no additional loss or range of motion. The Veteran did not report flare ups and the examiner found the Veteran did not have muscle spasms or localized tenderness. The Veteran did have guarding, but it did not lead to abnormal gait or abnormal spinal contour. The Veteran did have less movement than normal. The Veteran did not have radiculopathy symptoms or ankylosis. The Veteran did use a can and a walker. The Veteran had another examination for his neck in December 2019. The examiner noted the Veteran's cervical strain and degenerative arthritis of the spine. The Veteran reported he was seen in the ER for his neck, given antibiotics for his neck, and diagnosed with pneumonia. The Veteran also reported pain and stiffness and flare ups of his condition but did not report functional impairment. The Veteran's forward flexion was to 45 degrees with pain noted on examination that did not result in functional loss. The Veteran was able to perform repetitive use testing but it did not result in additional loss of range of motion. During a flare up, the examiner estimated the Veteran's forward neck flexion would be further limited to 35 degrees. The Veteran had guarding not resulting in abnormal gait or abnormal spinal contour. The Veteran did not have radiculopathy or ankylosis but did use a cane constantly. The Veteran's medical records show he often denied neck pain. (See e.g. April, October 2016 treatment records.) But sometimes did report neck pain. (See e.g. June 2012 treatment records.) The Board does not find the evidence of record indicates the Veteran's neck disability warrants a higher, 20 percent disability rating. The Veteran's neck clearly causes him pain and often he has trouble turning his head. However, even during flare ups of his condition, the evidence does not indicate the Veteran's forward flexion is limited to 15 to 30 degrees, which is required to obtain a 20 percent disability rating. Therefore, a higher rating is not warranted. Right Hip, Left Hip Replacement, Leg Length Discrepancy, and Left Hip Scar Claims The Veteran contends his right hip disability is worse than indicated by his 10 percent rating. The Veteran's right hip disability is rated under DC 5253. There were no changes to the rating criteria as of February 7, 2021. Under DC 5253, limitation of rotation of or cannot toe-out more than 15 degrees warrants a 10 percent rating. Limitation of adduction or cannot cross legs warrants a 10 percent rating. Limitation of abduction or motion lost beyond 10 degrees warrants a 20 percent rating. In his May 2021 hearing the Veteran said it was very painful to turn his right leg outward and got sharp pain where his hip bone was. The Veteran reported getting flare ups about twice a week with severe pain and it was hard for him to put weight on his right side and he has been advised not to life anything over 30 pounds. The Veteran took over the counter pain medication and attended physical therapy. The Veteran contends his left hip replacement disability is worse than indicated by his 50 percent rating. The Veteran's left hip replacement disability is rated under DC 5054. Prior to February 7, 2021, under DC 5054, a 50 percent rating is warranted for moderately severe residuals of weakness, pain, or limitation of motion. A 70 percent rating is warranted for markedly severe residual weakness, pain or limitation of motion following implantation of prosthesis. A 90 percent rating is warranted for following implantation of prosthesis with painful motion or weakness such as to require the use of crutches. A 100 percent rating is warranted for one year following implantation of prosthesis. After February 7, 2021, under DC 5054, a 30 percent rating is warrants as a minimum evaluation, total replacement only. There were no changes to the rating requirements for a 50, 70, and 90 percent evaluations. A 100 percent evaluation is warranted for four months following implantation of prosthesis or resurfacing. The note states that after the conclusion of the 100 percent evaluation period, evaluate resurfacing under DCs 5250 to 5255; there is no minimum evaluation for resurfacing. In his May 2021 hearing, the Veteran said he was obese and it was causing him to trip and fall. The Veteran said his left leg was longer than his right leg and so his balance was off. The Veteran reported using canes and a walker and needed to use a shower chair. The Veteran also reported his wife sometimes had to help him. The Veteran said he had severe weakness and pain on motion, but hadn't had any falls because of his left hip replacement. The Veteran contends his leg length discrepancy claim warrants a compensable rating. The Veteran's leg length discrepancy disability is rated under DC 5275. There were no changes to the rating criteria as of February 7, 2021. Under DC 5275, shortening 1.25 to 2 inches (3.2 cm to 5.1 cm) warrants a 10 percent rating. Shortening 2 to 2.5 inches (5.1 cm to 6.4 cm) warrants a 20 percent rating. Shortening 2.5 to 3 inches (6.4 cm to 7.6 cm) warrants a 30 percent rating. Shortening 3 to 3.5 inches (7.6 cm to 8.9 cm) warrants a 40 percent rating. Shortening 3.5 to 5 inches (8.9 cm to 10.2 cm) warrants a 50 percent rating. Shortening over 4 inches (10.2 cm) warrants a 60 percent rating. In his May 2021 hearing: The Veteran reported that even with platform shoes and prosthetics, his balance was still off. The Veteran reported he would be willing to have his leg measured again. The Veteran contends his left hip scar warrants a compensable rating. The Veteran's left hip scar is rated under DC 7805. DC 7805 provides that any scars (including linear scars) and other disabling effects of scars should be evaluated, even if not considered in a rating provided under DCs 7800-04, under an appropriate DC. 38 C.F.R. § 4.118. The Veteran's scar is not due to burns and is not on his face, head, or neck. Under DC 7804, one or two scars that are unstable or painful warrant a 10 percent rating. Three or four scars that are unstable or painful warrant a 20 percent rating. Five or more scars that are unstable or painful warrant a 30 percent rating. In his May 2021 hearing, the Veteran said his scar as painful and kind of numb. The Veteran also reported pain when his shorts would get bunched up and it would crease right where his scar was. The Veteran had an examinations for his hips in November 2016. The examiner noted the Veteran's leg length discrepancy. The Veteran also reported pain and that he had flare ups with pain leading to functional loss. The Veteran had difficulty going up and down stairs, prolonged sitting, and walking. The Veteran used a walker. The Veteran's right hip range of motion was abnormal but with normal adduction. The Veteran was able to cross his legs. The examiner noted pain on examination that caused functional loss. The Veteran's left hip also had abnormal range of motion with pain on examination and flexion. After repetitive use testing, there was no additional loss of range of motion in either hip. Pain, weakness, and fatigability led to functional loss but no additional loss of range of motion with repetitive use over time. The Veteran did not have muscle atrophy, or ankylosis. The examiner noted the Veteran's right leg was 1 cm shorter than his left leg. The Veteran also had a total hip joint replacement of his left side with moderately severe residuals of weakness, pain, or limitation of motion. The Veteran had a scar from his left hip surgery but it was not unstable or painful. The Veteran had an examination for his left hip scar in December 2019. The examiner reported the Veteran's scar was not unstable and that it was not tender to palpation, unstable, or have any underlying soft tissue damage. Additionally, there was no elevation, depression, or adherence to the underlying tissue and the scar did not limit range of motion. The Veteran had another examination for his hips in December 2019. The Veteran reported it was very hard to walk due to his hips and he had to use two canes or a walker and must often sit to rest. The examiner reported flare ups of the pain in his hips that was severe and daily, which led to functional loss. The Veteran's right hip range of motion was abnormal but his adduction was normal and he was able to cross his legs. The Veteran had pain in both hips upon range of motion testing. The Veteran was able to perform repetitive use testing with no additional loss of range of motion. After repetitive use over time, there was no additional loss of range of motion. During a flare up, the examiner said the testing was neither medically consistent or inconsistent with the Veteran's statements. The examiner noted that pain, weakness, fatigability, or incoordination did not significantly limit functional ability with flare ups. The examiner offered range of motion estimate during a flare up for the Veteran's left hip but not his right hip. The Veteran was not found to have muscle atrophy or ankylosis. The examiner noted the Veteran's right leg was 112 cm and his left leg was 114.5 cm, a difference of 2.5 cm. The examiner also noted the Veteran's left hip replacement led to moderately severe residuals with weakness, pain, or limitation of motion. The Veteran's left hip scar was not painful or unstable. The Veteran constantly used a cane. The Veteran's treatment records show that he required assistive devices to walk or that he sometimes used a wheelchair and often had a lot of pain in his hip. (See e.g. June, October 2013, September 2016 treatment records.) The Veteran's record also indicates he was fitted for special shoes due to his leg length discrepancy. (See e.g. August 2013 treatment records.) The Veteran also has often reported bilateral hip pain. (See e.g. November 2016 treatment records.) The Board finds the Veteran's right hip does not warrants a higher, 20 percent rating. While the Veteran has said he has trouble toe-ing in, the Veteran's record does not indicate he has limitation of abduction or motion lost beyond 10 degrees. This does not mean the Veteran's right hip disability does not cause him problems or cause him pain. It simply means the Veteran's right hip does not meet the objective criteria for a higher rating. The Veteran's left hip replacement also does not warrant a higher evaluation. percent rating is warranted for markedly severe residual weakness, pain or limitation of motion following implantation of prosthesis. While the Veteran clearly experienced pain and used assistive devices, this evidence must be weighed by the other evidence that shows the Veteran's hip replacement did not lead to significant reduced range of motion, even during a flare ups as noted by the December 2019 examiner. Indeed, after examining the Veteran's left hip replacement, two examiners opined the Veteran's symptoms and disability picture most closely approximated a 50 percent rating. Therefore, the Board finds a higher disability rating is not warranted for the Veteran's left hip disability. The Veteran's leg length discrepancy also does not warrant a compensable evaluation. While the Board has considered the Veteran's treatment records that show him getting special shoes and that his leg length discrepancy still causes him balance problems and pain, the Board finds the most probative objective evidence does not indicate the Veteran's leg length discrepancy is 1.25 to 2 inches (3.2 cm to 5.1 cm). Therefore, a higher rating is not warranted. Lastly, the Board will address the Veteran's claim to a compensable rating for his left hip scar. The Board has considered the Veteran's hearing statement in which he said his scar was painful. However, the Board has also reviewed the Veteran's examinations and medical treatment records in which examiners found the scar to not be painful and the Veteran did not continually report his scar was painful in his treatment records. Thus, the Board must weigh the Veteran's report of a painful scar with the majority of the evidence which indicate the Veteran's scar is neither unstable or painful. In this regard, the Board finds the majority of the evidence does not show the Veteran's left hip scar warrants a higher rating. Regarding the claims above, the Board acknowledges the Veteran's statements that his conditions continue to affect his daily life and still causes symptoms and pain and that his conditions were incurred in or due to his time in service and are worse than indicated by his current disability ratings. The Board has also considered the Veteran's statements about his ongoing pain since service and how he believes his conditions were incurred. However, while the Veteran is competent to report the symptoms of his disability, he is not competent to opine on matters requiring medical knowledge, such as determining the nature, etiology, or severity of his complex medical condition. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Therefore, the Board lends more weight to the examinations, medical records, and objective personnel records on file and has weighed them as discussed above and discussed the relative probative value of each. It is important for the Veteran to understand that the most probative medical evidence of record provides evidence against these claims that the Board cannot, unfortunately, ignore, outweighing the Veteran's belief that he is entitled to service connection for his conditions or that his service-connected disabilities warrant higher ratings. This does not mean that the Veteran's conditions do not cause him problems; clearly, his conditions cause him significant difficulties. This is reflected in the fact that the Board has granted a TDIU from October 1, 2012 as discussed below. Regarding all the above, the Board has considered the applicability of the benefit of the doubt doctrine. Because the preponderance of the evidence is against the Veteran's claim, the benefit of the doubt doctrine does not apply. See 38 U.S.C. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49, 55-57(1990). TDIU Claim The Veteran contends his is entitled to a TDIU prior to July 25, 2017. Because the determinations of the claims above that are being remanded, the Board finds this matter inextricably intertwined and a remand is therefore necessary. Harris v. Derwinski, 1 Vet. App. 180, 183 (1991). The Veteran met the schedular criteria from October 1, 2012. The Board notes the Veteran was in receipt of a temporary 100 percent disability as of September 21, 2012 but as this was not a permanent rating, his eligibility for a TDIU based on his schedular rating began October 1, 2012. From 2012 to 2017, the Veteran's record indicates he had difficulty due to his numerous disabilities. The Veteran denied suicidal ideations sometimes, but had nightmares, and even once called a suicide hotline. (See July 2013 treatment records.) The Veteran also reported depression. During this time, the Veteran was having pain and difficulty walking due to his hips. The Veteran reported leg pain and only being able to walk about 15 minutes with a cane (see March 2016 treatment record), having trouble sitting, walking, bending, sleeping, and using the stairs (see September 2016 treatment record) and that he had a moderate risk of falling due to his hips. (See June 2013 treatment record.) While a November 2016 examiner reported the Veteran's hip disabilities did not impact his ability to work, the Board finds that conclusion is not supported by the examination or the treatment records during this time as noted above. November 2016 examiners reported the Veteran's headaches and heck disability didn't impact his ability to work. An examiner in November 2016 did report the Veteran's right foot gout would impact his ability to work as it would make prolonged standing and walking difficult for the Veteran. The Veteran had an evaluation for his employability from 2012 to 2017 in July 2021. The Veteran stated he used a walker for years between 2012 and 2017. The Veteran reported his risk for falls was high due to his left hip disability. The Veteran said he could walk about 20 feet with a cane or a walker. During this time period, the Veteran weighed 360 pounds. The Veteran also said he had difficulty sitting for too long due to his hips and low back pain. The Veteran's lifting was limited to 15 to 20 pounds and that he didn't drive a lot. The Veteran said during this time period, he was always in pain. The Veteran also had difficulty climbing stairs. The Veteran also said he had headaches which were a "funny sensation" and that they lasted three days per week for about three hours each. The Veteran also had trouble with his sleep and neck disability. The Veteran said he had trouble moving his head side to side. The examiner stated that the Veteran's long history working construction did not yield any transferrable skills to light or sedentary work and that the Veteran had no GED or high school diploma. The examiner also said the Veteran's mental health also contributed to his ability to be employed with his diminished energy levels and his easy agitation and irritability making good relationships with co-workers difficult. The Veteran last worked in 1990, which would also indicate an absence of marketable skills. The Board agrees with the July 2021 examiner. The Veteran does not have a high school degree or GED. He last worked over 20 years ago in jobs that do not have any transferrable skills to jobs in which his physical and mental disabilities would not bother him. The Veteran's mental health would make it difficult for him to interact with the public and his physical disabilities would make sitting for prolonged periods of time hard and any physically demanding work near impossible. Therefore, the Board finds the Veteran is entitled to a TDIU effective October 1, 2012. REASONS FOR REMAND The Board finds a remand is warranted in several of the Veteran's claims. However, in light of the grant of a TDIU from October 1, 2012, the earliest effective date for these claims, the Veteran may wish, in consultation with his representative, to withdraw, in writing, the remaining issues on appeal. Back Claim The Veteran contends he has a back disability that was incurred in or due to his time in service. The Veteran has been seen frequently for back pain that radiates from his hips and causes him severe pain that interferes with his ability to walk. The Veteran has not been afforded an examination for his back disability. The Board finds there is sufficient evidence that the Veteran may have a back condition that is related to his time in service or that is otherwise proximately due to his service-connected disabilities, to include his hip conditions, to warrant an examination. McLendon v. Nicholson, 20 Vet. App. 79 (2006). COPD Claim The Veteran contends his COPD was incurred in or due to his time in service. In his May 2021 hearing, the Veteran said he had pneumonia while in service and was put on light duty for it. While in service, the Veteran said the environment he was in may have caused his COPD. The Veteran's STRs do not show that he was treated for COPD while in service, but does show he had pneumonia while in service. The Veteran has not had an examination for his COPD and the Board finds one is warranted. McLendon v. Nicholson, 20 Vet. App. 79 (2006). Heart and Sleep Apnea Claims The Veteran contends he has a heart disability and sleep apnea that were incurred in or due to his time in service or that they are proximately due to his service-connected disabilities, in particular, saying his PTSD put stress on his heart. The Veteran has been diagnosed with a heart disability. The Veteran had an examination for his heart in December 2017. The Veteran said that he had a heart attack in 2013 and that his PTSD caused stress on his heart. The Veteran reported he suffered from frequent chest pain and dyspnea. The examiner reviewed the Veteran's file, saw him in person, and opined it was less likely than not the Veteran's heart condition was incurred in or due to his time in service. The examiner noted the Veteran's STRs showed he had multiple complaints of chest pain, but that those episodes of chest pain in the 1970s were unlikely the cause of his current heart disease or heart attack. The examiner did not address whether the Veteran's heart condition was secondary to his PTSD. Therefore, the Board finds this examination and opinion to be inadequate and a remand is necessary in order to address this theory of secondary service connection. Barr v. Nicholson, 21 Vet. App. 303 (2007). The Veteran has not had an examination for his sleep disability. The Veteran has said that he believes his service-connected mental health disability, including his medication, proximately caused his sleep problems. The Veteran has not had an examination that addresses this theory of entitlement. McLendon v. Nicholson, 20 Vet. App. 79 (2006). The matters are REMANDED for the following action: 1. The AOJ should obtain any of the Veteran's outstanding medical records and associate them with the claims file. If possible, the Veteran himself should submit any pertinent new evidence regarding the condition at issue in order to expedite the claim. 2. After completing the above development and all outstanding records have been associated with the claims file, the Veteran should be afforded an appropriate VA examination for his 1) his back disability, 2) his COPD/respiratory disability, 3) his heart disability, and 4) his sleep disability, to include sleep apnea. The record, to include a copy of this Remand, must be made available to and be reviewed by the examiner. For each of the each of the listed disabilities, the examiner should opine as to the following: (a) Whether it is at least as likely as not (a 50 percent or greater probability) the disability was incurred in and due to his time in service. (b) Whether it is at least as likely as not (a 50 percent or greater probability) the disability is proximately due to any of the Veteran's service-connected disabilities. (c) Whether it is at least as likely as not (a 50 percent or greater probability) that the Veteran's disability was aggravated beyond its natural progression by any of his service-connected disabilities. (Continued on the next page) The examiner should offer a rationale for any opinion offered. 3. After the requested development has been completed, together with any additional development as may become necessary, readjudicate the Veteran's claim. If the benefit sought on appeal remains denied, issue to the Veteran and the Veteran's representative a supplemental statement of the case and give an opportunity to respond thereto. John J. Crowley Veterans Law Judge Board of Veterans' Appeals Attorney for the Board A. Snoparsky 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.