Citation Nr: 21072270 Decision Date: 12/02/21 Archive Date: 12/02/21 DOCKET NO. 16-15 141 DATE: December 2, 2021 ORDER New and material evidence having been received, the previously denied claim of entitlement to service connection for a lumbar spine disability is reopened. Entitlement to an initial rating in excess of 10 percent for bilateral hearing loss is denied. Entitlement to an initial rating of 30 percent, and no higher, for vertigo is granted. Entitlement to compensation under 38 U.S.C. § 1151 for claimed disability incurred during a September 2012 VA hospitalization is denied. REMANDED Entitlement to service connection for a right shoulder disability is remanded. Entitlement to service connection for a lumbar spine disability is remanded. Entitlement to a total disability rating based on individual unemployability due to service-connected disability (TDIU) is remanded. FINDINGS OF FACT 1. An April 1987 rating decision, in pertinent part, denied entitlement to service connection for a back disability. The appellant was duly notified of the RO's decision and his appellate rights in an April 29, 1987, letter, but did not appeal, nor was new and material evidence received within the applicable period. 2. Evidence received since the final April 1987 rating decision denying the claim of service connection for a back disability relates to an unestablished fact necessary to substantiate the claim and, presuming its credibility, raises a reasonable possibility of substantiating the service connection claim for a back disability. 3. Throughout the period on appeal, the appellant's bilateral hearing loss has been productive of no worse than Level I hearing impairment in the right ear and Level XI in the left ear. 4. The evidence is in relative equipoise as to whether the appellant's vertigo has been manifested by dizziness and occasional staggering throughout the appeal period. 5. The most probative evidence indicates that the appellant did not incur additional disability due to carelessness, negligence, lack of proper skill, error in judgment, or similar instance on fault on the part of VA, or an event not reasonably foreseeable with respect to his September 2012 VA treatment. CONCLUSIONS OF LAW 1. The April 1987 rating decision denying entitlement to service connection for a lumbar spine disability is final. 38 U.S.C. § 4005(c) (1982); 38 C.F.R. §§ 3.104, 19.129, 19.192 (1986). 2. New and material evidence has been received to warrant reopening of the previously denied claim of service connection for a lumbar spine disability. 38 U.S.C. §§ 5107, 5108 (2018); 38 C.F.R. § 3.156 (2020). 3. The criteria for entitlement to an initial rating in excess of 10 percent for bilateral hearing loss have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. § 4.85, Diagnostic Code (DC) 6100. 4. The criteria for entitlement to an initial rating of 30 percent, and no higher, for vertigo have been met. 38 U.S.C. § 1155, 5107; 38 C.F.R. § 4.87, DC 6204. 5. The criteria for entitlement to compensation under 38 U.S.C. § 1151 for claimed disability incurred during a September 2012 VA hospitalization have not been met. 38 U.S.C. §§ 1151, 5107; 38 C.F.R. § 3.361. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The appellant served on active duty in the U.S. Navy from July 1957 to August 1959. This matter comes before the Board of Veterans' Appeals (Board) from rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO). An October 2013 rating decision, in pertinent part, awarded entitlement to service connection for bilateral hearing loss and assigned an initial 10 percent rating, effective September 21, 2012, and denied entitlement to service connection for a lumbar spine disability and a right shoulder disability. An August 2015 rating decision, in pertinent part, awarded entitlement to service connection for vertigo and assigned an initial 10 percent rating, effective November 12, 2013, denied entitlement to compensation under 38 U.S.C. § 1151 for a blood infection during a September 2012 VA hospitalization, and denied entitlement to a TDIU. The appellant was afforded a video hearing in April 2019 before a Veterans Law Judge. The Board remanded the matter in September 2019. A Supplemental Statement of the Case (SSOC) was issued in March 2021. In a July 2021 letter, the Board advised the appellant that the Veterans Law Judge before whom he had testified in April 2019 was no longer employed by the Board. He was offered the opportunity to attend another hearing before the Veterans Law Judge who would decide his claim, but the appellant did not respond. As noted in the July 2021 letter, absent a response from the appellant, the Board will presume that he does not want another hearing and proceed with consideration of his claims based on the evidence of record. New and Material Evidence In general, decisions of the RO and the Board that are not appealed in the prescribed time period are final. See 38 U.S.C. §§ 7104, 7105; 38 C.F.R. §§ 3.104, 20.1100, 20.1103. Pursuant to 38 U.S.C. § 5108, a finally disallowed claim may be reopened when new and material evidence is presented or secured with respect to that claim. For claims such as this one, filed on or after August 29, 2001, 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. To reopen a previously disallowed claim, new and material evidence must be presented or secured since the last final disallowance of the claim on any basis, including on the basis that there was no new and material evidence to reopen the claim since a prior final disallowance. See Evans v. Brown, 9 Vet. App. 273, 285 (1996). For purposes of reopening a claim, the credibility of newly submitted evidence is generally presumed. See Justus v. Principi, 3 Vet. App. 510, 513 (1992) (in determining whether evidence is new and material, the credibility of newly presented evidence is to be presumed unless evidence is inherently incredible or beyond competence of witness). The threshold for determining whether new and material evidence raises a reasonable possibility of substantiating a claim is low. See Shade v. Shinseki, 24 Vet. App. 110, 117 (2010). Furthermore, in determining whether this low threshold is met, VA should not limit its consideration to whether the newly submitted evidence relates specifically to the reason why the claim was last denied, but instead should ask whether the evidence could reasonably substantiate the claim were the claim to be reopened, to include by triggering the Secretary's duty to assist. Id. at 118; but see Villalobos v. Principi, 3 Vet. App. 450 (1992) (evidence that is unfavorable to a claimant is not new and material). At any time after VA issues a decision on a claim, if VA receives or associates with the claims file relevant official service department records that existed and had not been associated with the claims file when VA first decided the claim, VA will reconsider the claim as opposed to requiring new and material evidence to reopen it. 38 C.F.R. § 3.156(c). As such, new and material evidence is not needed to reopen a previously denied claim when relevant service treatment records and/or any other relevant service department records are received after a prior final denial. Rather, the claim is simply reviewed on a de novo basis. 1. The application to reopen the previously denied claim of entitlement to service connection for a lumbar spine disability. An April 1987 rating decision, in pertinent part, denied entitlement to service connection for a lumbar spine disability, in part because the RO determined that there was no current diagnosis of a lumbar spine disability. The appellant was duly notified of the RO's decision and his appellate rights in an April 29, 1987, letter, but did not appeal, nor was new and material evidence received within the applicable period. As such, the decision is final and not subject to revision on the same factual basis. The appellant does not contend otherwise. The Board observes that this issue was characterized as entitlement to service connection for a lumbar spine disability on the merits by the Board in September 2019. However, as delineated below, there was a prior final rating decision regarding the matter. Notably, although the appellant's service treatment records were not associated with the claims file for a large portion of the current appeal, they were of record and considered by the RO at the time of the April 1987 rating decision. As such, although the appellant's service treatment records were re-associated with the claims file in June 2020 according to the Veterans Benefits Management System (VBMS), reconsideration of the claim pursuant to 38 C.F.R. § 3.156(c) is not warranted. Regarding the appellant's personnel records, which were first associated with the claims file after the April 1987 rating decision, such are not relevant, as they do not pertain to a lumbar spine disability. The Board thus finds that the provisions of 38 C.F.R. § 3.156 (c)(1)(i) do not apply to the facts of this particular issue because the additional service personnel records are not relevant to the claim. The appellant and his representative do not contend otherwise. In any event, as the Board is reopening the claim, and remanding for the reasons discussed below, no prejudice to the appellant has resulted, despite the previous Board decision characterizing the issue as service connection on the merits. See Bernard v. Brown, 4 Vet. App. 384, 394 (1993). Despite the finality of a prior adverse decision, a claim will be reopened and the former disposition reviewed if new and material evidence is presented or secured with respect to the claim which has been disallowed. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. The Board has therefore reviewed the entire record, with particular attention to the additional evidence received since the last final decision discussed above. Evidence received since the final April 1987 rating decision includes a statement from the appellant received in July 2016 which makes reference to a May 2016 VA clinical note which appears to attribute the appellant's lumbar spine arthritis to the reported 1958 in-service injury. This evidence is new, as the evidence of record at the time of the last final decision did not include any indication of a nexus between a current lumbar spine disability and the appellant's active service. Further, this additional evidence, when presumed credible, relates to unestablished facts necessary to substantiate the claim and triggers VA's duty to provide a medical examination. 38 C.F.R. § 3.159(c)(4); McLendon v. Nicholson, 20 Vet. App. 79 (2006) (discussing the four elements to consider in determining whether a VA medical examination should be provided). Under these circumstances, the Board finds that new and material evidence has been presented. Shade v. Shinseki, 24 Vet. App. 110, 117-18 (2010). Accordingly, the Board finds that the appellant's previously denied claim of service connection for a lumbar spine disability is reopened. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. Although the record is sufficient to warrant reopening of the claim, it is not sufficient to allow the grant of the benefits sought. Once a claim is reopened, the statutory duty to assist is triggered. See 38 U.S.C. § 5103. For reasons explained below, additional development is necessary before the Board may proceed with a decision on the merits. Initial Ratings Disability evaluations are determined by the application of a schedule of ratings which is based on average impairment of earning capacity. 38 U.S.C. § 1155; 38 C.F.R. Part 4. Separate diagnostic codes identify the various disabilities. Where there is a question as to which of two evaluations should be applied, the higher evaluation will be assigned if that disability picture more nearly approximates the criteria required for that rating. 38 C.F.R. § 4.7. Any reasonable doubt regarding the degree of disability is resolved in favor of the veteran. 38 C.F.R. § 4.3. In considering the severity of a disability, it is essential to trace the medical history of the veteran. 38 C.F.R. §§ 4.1, 4.2, 4.41. Consideration of the whole recorded history is necessary so that a rating may accurately reflect the elements of disability present. 38 C.F.R. § 4.2; Peyton v. Derwinski, 1 Vet. App. 282 (1991). Where a claimant appeals the initial rating assigned following an award of service connection, evidence contemporaneous with the claim for service connection and with the rating decision granting service connection would be most probative of the degree of disability existing at the time that the initial rating was assigned and should be the evidence "used to decide whether an [initial] rating on appeal was erroneous. . . ." Fenderson v. West, 12 Vet. App. 119, 126 (1999). If later evidence obtained during the appeal period indicates that the degree of disability increased or decreased following the assignment of the initial rating, "staged" ratings may be assigned for separate periods of time based on facts found. Id. 1. Entitlement to an initial rating in excess of 10 percent for bilateral hearing loss. For the reasons that follow, the Board finds that the preponderance of the evidence is against the award of entitlement to an initial rating in excess of 10 percent for bilateral hearing loss for any portion of the period on appeal. Impairment of auditory acuity (hearing loss) is evaluated pursuant to the provisions set forth at 38 C.F.R. § 4.85. Under that regulation, an examination for hearing impairment must be conducted by a state-licensed audiologist and must include a controlled speech discrimination test (Maryland CNC) and a pure tone audiometry test. Examinations are to be conducted without the use of hearing aids. 38 C.F.R. § 4.85(a). To evaluate the degree of disability from defective hearing, the Rating Schedule establishes 11 auditory acuity levels from Level I, for essentially normal acuity, through Level XI, for profound deafness. These are assigned based on a combination of the percent of speech discrimination and the pure tone threshold average, as contained in a series of tables within the regulations. 38 C.F.R. § 4.85(b). The "puretone threshold average" is the sum of the pure tone thresholds at 1000, 2000, 3000, and 4000 Hertz (Hz), divided by four. This average is used in all cases to determine the Roman numeral designation for hearing impairment from Table VI or VIA. 38 C.F.R. § 4.85(d). Table VII, "Percentage Evaluations for Hearing Impairment," is used to determine the percentage evaluation by combining the Roman numeral designations for hearing impairment of each ear. The horizontal rows represent the ear having the better hearing and the vertical columns the ear having the poorer hearing. The percentage evaluation is located at the point where the row and column intersect. 38 C.F.R. § 4.85(e). In cases where impaired hearing is service-connected in only one ear, in order to determine the percentage evaluation from Table VII, the non-service-connected ear will be assigned a Roman Numeral designation for hearing impairment of I, subject to the provisions of 38 C.F.R. § 3.383. 38 C.F.R. § 4.85(f). The regulatory provisions also provide two additional circumstances under which alternative tables can be employed. One is where the pure tone thresholds of the frequencies of 1000, 2000, 3000, and 4000 Hz are 55 decibels or greater. The second is where pure tone thresholds are 30 decibels or less at frequencies of 1000 Hz and below, and are 70 decibels or more at 2000 Hz. See 38 C.F.R. § 4.86. The appellant was afforded a VA examination in September 2013. The claims file was reviewed. It was noted that there was no impact on the ordinary conditions of daily life or the ability to work. Pure tone threshold testing revealed: HERTZ 500 1000 2000 3000 4000 RIGHT 40 30 35 50 75 LEFT 100 85 85 95 100 The 1000-4000 Hertz average was 48 decibels in the right ear and 91 in the left. Speech recognition using the Maryland CNC word list was 100 percent in the right ear and 0 percent in the left. These findings are equivalent to Level I hearing loss in the right ear and Level XI in the left. See 38 C.F.R. § 4.85, Table VI. However, as the pure tone thresholds for the left ear at 1000-4000 Hertz are 55 decibels or more, the appellant exhibits an exceptional pattern of hearing impairment as contemplated by 38 C.F.R. § 4.86(a). Thus, Table VIa is to be used if such would avail the appellant of a higher evaluation. Utilizing Table VIa, the findings are equivalent to Level IX hearing loss in the left ear, which is less beneficial than using Table VI. 38 C.F.R. § 4.85, Table VIa. With Level I hearing loss in the right ear and Level XI in the left, a 10 percent rating is warranted. Id., Table VII. In November 2013, the appellant contended that his hearing loss negatively affected his quality of life such that a rating in excess of 10 percent was warranted. The appellant stated that he had no hearing at all in his left ear. When he perceives sounds, he is unable to discern which direction the sounds are coming from, which results in him turning in circles to find the source. He described such as dangerous. He also explained that he is unable to participate in conversations and it is embarrassing to ask people to repeat what they said multiple times. He misses some of what is being said on television and at church, which is frustrating. He cannot discern high-register sounds which impedes his ability to enjoy music. The appellant also stated that his hearing loss precluded him from being able to renew his commercial driver's license. He was able to get a regular driver's license, however. The appellant contended that this rendered him unemployable at the only job he was qualified for because he could not get a commercial driver's license. The appellant also stated that his hearing loss affects his equilibrium and that he must use a cane because he falls easily. See also July 2015 lay statement. The appellant was afforded a contracted examination in June 2015. The claims file was reviewed. Pure tone threshold testing revealed: HERTZ 500 1000 2000 3000 4000 RIGHT 35 40 40 55 70 LEFT 110+ 110+ 110+ 110+ 110+ The 1000-4000 Hertz average was 51.25 decibels in the right ear and 110+ in the left. Speech recognition using the Maryland CNC word list was 92 percent in the right ear and testing could not be performed for the left. It was noted that there was a conductive component in the appellant's left ear hearing loss. Regarding functional impact, the appellant cannot hear well at all. These findings are equivalent to Level I hearing loss in the right ear. See 38 C.F.R. § 4.85, Table VI. As speech recognition testing could not be performed for the left ear, Table VI is inapplicable. However, as the pure tone thresholds for the left ear at 1000-4000 Hertz are 55 decibels or more, the appellant exhibits an exceptional pattern of hearing impairment as contemplated by 38 C.F.R. § 4.86(a). Thus, Table VIa is to be used if such would avail the appellant of a higher evaluation. Utilizing Table VIa, the findings are equivalent to Level XI hearing loss in the left ear. 38 C.F.R. § 4.85, Table VIa. With Level I hearing loss in the right ear and Level XI in the left, a 10 percent rating is warranted. Id., Table VII. During his April 2019 Board hearing, the appellant reported that his hearing had worsened over the past few years. He had to read lips more now than he used to. Being unable to participate in conversation feels a little lonely. He goes to church less often than he used to, and has difficulty hearing higher-pitched voices. He cannot understand his grandchildren and must turn the radio and television volumes up. He normally cannot hear people behind him or if he cannot see them speaking. His daughter reported that the appellant's neighbors have complained about the loud television and radio volumes that they can hear through the walls. She also reported that the appellant seemed depressed and isolated. The appellant reported that he generally walks with assistance, or close to something so he can grab on if need be. He loses canes when he goes out and about. The appellant reported that he thought that he had lost his equilibrium. His daughter needed to help him into the hearing room so he would not stagger. The appellant lived on the first floor to avoid stairs and he also did not want to become reliant on a walker, as he feared he would never be able to walk without it in the future. He limits his driving due to his impaired hearing but his vertigo is a big part of that. He took short drives a couple of days a week. The representative requested that entitlement to extraschedular ratings for vertigo and hearing loss be referred to the Director, Compensation Service. The appellant was afforded a contracted examination in January 2020. The claims file was reviewed. Pure tone threshold testing revealed: HERTZ 500 1000 2000 3000 4000 RIGHT 35 35 45 70 70 LEFT 100 90 95 100 105 The 1000-4000 Hertz average was 55 decibels in the right ear and 97.50 in the left. Speech recognition using the Maryland CNC word list was 96 percent in the right ear and testing could not be performed on the left. Regarding functional impact, the appellant had difficulty hearing women's voices, difficulty hearing in church, and had to leave the trucking business due to his inability to hear. These findings are equivalent to Level I hearing loss in the right ear. See 38 C.F.R. § 4.85, Table VI. As speech recognition testing could not be performed for the left ear, Table VI is inapplicable. However, as the pure tone thresholds for the left ear at 1000-4000 Hertz are 55 decibels or more, the appellant exhibits an exceptional pattern of hearing impairment as contemplated by 38 C.F.R. § 4.86(a). Thus, Table VIa is to be used if such would avail the appellant of a higher evaluation. Utilizing Table VIa, the findings are equivalent to Level IX hearing loss in the left ear. 38 C.F.R. § 4.85, Table VIa. With Level I hearing loss in the right ear and Level IX in the left, a 10 percent rating is warranted. Id., Table VII. The Board observes that a November 2012 VA clinical note states that pure tone threshold testing results were stored in a separate database than that which contains the clinical notes. The clinician noted that the results were not valid for rating purposes. Additionally, an October 2019 VA ENT note references pure tone threshold testing that was performed in 2018. Although these audiological testing results are not currently associated with the claims file, the Board finds that remand is not necessary to obtain them because these testing results would not be relevant. As delineated above, the appellant was afforded compensation and pension examinations in September 2013, June 2015, and January 2020. There is no indication, nor is it contended, that the appellant's hearing acuity improved between November 2012 and September 2013. Likewise, there is no indication or contention that hearing acuity improved between 2018 and January 2020. As such, because the compensation and pension examination reports of record establish that an initial rating in excess of 10 percent is not warranted, these additional audiological testing results could not indicate otherwise. The Board has considered the appellant's description of his hearing loss disability, to include difficulties discerning speech and the source of sounds, needing to turn up his television and music volumes, being told he speaks too loudly, asking people to repeat themselves numerous times, reading lips, and feeling lonely because it is difficult to have conversations. The appellant has also attributed his failure to maintain a commercial driver's license to his decreased hearing acuity. However, disability ratings for hearing impairment are derived by a mechanical application of the rating schedule to the numeric designations assigned after audiometric evaluations are rendered. See Lendenmann v. Principi, 3 Vet. App. 345, 349 (1992). In this case, as explained above, the numeric designations correlate to the current disability rating. As delineated above, the appellant's audiological testing results establish that an initial rating in excess of 10 percent is not warranted for any portion of the period on appeal. Moreover, the rating criteria contemplate the appellant's reported decreased hearing acuity and difficulty in understanding conversational speech. "[W]hen a claimant's hearing loss results in an inability to hear or understand speech or to hear other sounds in various contexts, those effects are contemplated by the schedular rating criteria." Doucette v. Shulkin, 28 Vet. App. 366, 369-70 (2017). The Board further finds that other than difficulty hearing or understanding sounds, the record on appeal contains no evidence of other symptoms attributable to the service-connected hearing loss not contemplated by the rating criteria. Service connection was denied for tinnitus in an August 2015 rating decision and the appellant did not file a timely NOD. He is in receipt of a separate compensable rating for vertigo, however. The Board in no way discounts the difficulties that the appellant experiences as a result of his service-connected bilateral hearing loss disability. In this regard, it must be emphasized that the disability ratings for hearing impairment are derived by a mechanical application of the rating schedule to the numeric designation assigned after audiometry results are obtained. Hence, the Board must base its determination on the results of the pertinent and valid audiology studies. See Lendenmann, 3. Vet. App. at 345. In other words, the Board is bound by law to apply VA's rating schedule based on the appellant's audiometry results. See 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Under these circumstances, the Board finds that the record presents no basis for assignment of a higher disability rating. In exceptional cases an extraschedular rating may be provided. 38 C.F.R. § 3.321. The Court has set out a three-part test, based on the language of 38 C.F.R. § 3.321(b)(1), for determining whether a veteran is entitled to an extraschedular rating: (1) the established schedular criteria must be inadequate to describe the severity and symptoms of the claimant's disability; (2) the case must present other indicia of an exceptional or unusual disability picture, such as marked interference with employment or frequent periods of hospitalization; and (3) the award of an extraschedular disability rating must be in the interest of justice. Thun v. Peake, 22 Vet. App. 111 (2008), aff'd, Thun v. Shinseki, 572 F.3d 1366 (Fed. Cir. 2009). Therefore, initially, there must be a comparison between the level of severity and symptomatology of the claimant's service-connected disability with the established criteria found in the rating schedule for that disability. The Board finds that the rating criteria contemplate the appellant's bilateral hearing loss disability. His hearing loss is manifested by decreased hearing acuity. A comparison between the level of severity and symptomatology of the appellant's assigned rating with the established criteria found in the rating schedule shows that the rating criteria reasonably describe the appellant's disability level and symptomatology, including his difficulty hearing and understanding speech. Because the rating criteria reasonably describe the claimant's disability level and symptomatology, the appellant's disability picture is contemplated by the Rating Schedule, such that the assigned schedular evaluations are, therefore, adequate, and no referral is required. Thun v. Peake, 22 Vet. App. 111, 115-116 (2008); VAOPGCPREC 6-96. The evidence does not show anything unique or unusual about the appellant's bilateral hearing loss that would render the schedular criteria inadequate. For these reasons, the Board finds that the preponderance of the evidence is against the award of an initial rating in excess of 10 percent for any portion of the period on appeal. As the evidence preponderates against the claim, the benefit of the doubt doctrine is not for application. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). 2. Entitlement to an initial rating in excess of 10 percent for vertigo. For the reasons that follow, the Board finds that the evidence is in relative equipoise as to whether an initial 30 percent rating, and no higher, is warranted for vertigo for the entire period on appeal. The appellant's service-connected vertigo has been evaluated as 10 percent disabling pursuant to 38 C.F.R. § 4.87, DC 6204 for peripheral vestibular disorder throughout the appeals period. Under these criteria, a 10 percent rating is warranted on evidence of peripheral vestibular disorders with occasional dizziness. A maximum 30 percent evaluation will be assigned with dizziness and occasional staggering. 38 C.F.R. § 4.87, DC 6204. The term "staggering" is not defined in the rating schedule, but is generally defined as standing or proceeding unsteadily. See Webster's New College Dictionary, 3rd ed., at 1099. The appellant was afforded a contracted ear conditions examination in June 2015. The claims file was reviewed. Following examination of the appellant and review of the claims file, it was determined that the appellant did not have, nor had he been diagnosed with, an ear or peripheral vestibular condition. The appellant reported a history of urosepsis in 2012 which resulted in a hospitalization for over a month and marked delirium. He continued to have multiple episodes of feeling off-balance, but medical records did not include a specific diagnosis of vertigo or disequilibrium. The appellant had significant hearing loss as a result of military service, including working on an aircraft carrier. Continuous medication was not part of the treatment plan. The appellant experienced vertigo more than once weekly, with a duration of less than one hour. There was no staggering. There was no benign neoplasm of the ear which caused any impairment of function. There had been no surgical treatment. Physical examination of the external ear, ear canal, and tympanic membrane was normal. Gait was normal. Romberg test was positive for unsteadiness. Dix Hallpike test was notable for mild right horizontal nystagmus. Limb coordination test was normal. There was a significant right-sided sensorineural hearing deficit. Regarding functional impact, the appellant felt unsafe standing for prolonged periods of time and was recently stopped from driving. In September 2015, the appellant reported that he staggers frequently. He stands then hesitates momentarily before walking to lessen the staggering. During his April 2019 Board hearing, the appellant reported that his hearing had worsened over the past few years. He had to read lips more now than he used to. Being unable to participate in conversation feels a little lonely. He goes to church less often than he used to, and has difficulty hearing higher-pitched voices. He cannot understand his grandchildren and must turn the radio and television volumes up. He normally cannot hear people behind him or if he cannot see them speaking. His daughter reported that the appellant's neighbors have complained about the loud television and radio volumes that they can hear through the walls. The appellant reported that he generally walks with assistance, or close to something so he can grab on if need be. He loses canes when he goes out and about. The appellant reported that he thought that he had lost his equilibrium. His daughter needed to help him into the hearing room so he would not stagger. The appellant lived on the first floor to avoid stairs and he also did not want to become reliant on a walker, as he feared he would never be able to walk without it in the future. He limits his driving due to his impaired hearing but his vertigo is a big part of that. He took short drives a couple of days a week. The representative requested that entitlement to extraschedular ratings for vertigo and hearing loss be referred to the Director, Compensation Service. The appellant was afforded a contracted ear conditions examination in January 2020. The claims file was reviewed. Following examination of the appellant and review of the claims file, benign paroxysmal positional vertigo (BPPV) was diagnosed. The appellant complained of feeling unbalanced and having fallen many times. He was seen by an ENT last year for cerumen inspection and had to be helped to walk around the hospital by a nurse. He must stand up slowly and start moving slowly. The appellant denied any problems with driving, but walking was difficult. He also had loss of hearing in the left ear. The treatment plan did not include continuous medication. The appellant experienced hearing impairment with vertigo more than once weekly, for greater than 24 hours. There was no staggering. The appellant did not have any chronic ear infection, inflammation, or cholesteatoma. Examination of the external ear, ear canal, and tympanic membrane was normal. Gait was unsteady in that the appellant walked slowly and carefully. Romberg test was positive for unsteadiness. Dix Hallpike test was positive for vertigo. Limb coordination test was normal. Regarding functional impact, the appellant had difficulty walking due to instability, he fell easily, and needed to use a cane for assistance. A June 2020 VA psychology consult note states that the appellant reported difficulty getting up. He is afraid he will fall and not be able to get back up. Vertigo was endorsed. However, except for his nerves, the appellant reported that his health was excellent. His neuropathy was his most impairing health problem. After considering the lay and medical evidence of record, the Board finds that it is at least as likely as not that the appellant's vertigo has been manifested by dizziness and occasional staggering throughout the period on appeal. As such, an initial rating of 30 percent, and no higher, is warranted. Although no VA or contracted examiner described the appellant's vertigo as being manifested by, inter alia, occasional staggering, the appellant and his daughter have reported that the appellant experiences staggering due to perceived balance difficulties. They are competent to report such symptoms and observations because this requires only personal knowledge as it comes through an individual's senses. Layno v. Brown, 6 Vet. App. 465, 470 (1994). A 30 percent rating is the maximum schedular rating available under DC 6204. With respect to the contentions that an extraschedular rating is warranted for vertigo, generally, disability ratings are determined by evaluating the extent to which a veteran's service-connected disability adversely affects his or her ability to function under the ordinary conditions of daily life, including employment, by comparing his or her symptomatology with the criteria set forth in VA's Rating Schedule. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Ordinarily, the VA Rating Schedule will apply unless the case presents such an exceptional or unusual disability picture with such related factors as marked interference with employment or frequent periods of hospitalization that would render impractical the application of the regular schedular standards. See 38 C.F.R. § 3.321(b)(1); see also Fisher v. Principi, 4 Vet. App. 57, 60 (1993). The U.S. Court of Appeals for Veterans Claims (Court) has set out a sequential three-step analysis, based on the language of 38 C.F.R. § 3.321(b)(1), to determine whether to refer a case for extraschedular consideration. Thun v. Peake, 22 Vet. App. 111 (2008). If (1) the schedular criteria do not contemplate the claimant's level of disability and symptomatology, and (2) the disability picture exhibits other related factors such as marked interference with employment or frequent periods of hospitalization, then (3) the case must be referred to an authorized official to determine whether an extraschedular rating is warranted. Id. When the Board finds that an extraschedular rating may be warranted based on the above factors, it cannot grant an extraschedular rating in the first instance. Anderson v. Shinseki, 23 Vet. App. 423, 428-429 (2009). Rather, it must remand the claim to the RO for referral to the Director of Compensation Service. The Board finds that referral for extraschedular consideration is not warranted in this matter because the appellant's symptoms and functional impairment due to vertigo are all contemplated in the rating criteria for such. In Long v. Wilkie, 33 Vet. App. 167 (2020), the Court clarified the criteria for referral of a claim for extraschedular consideration. The Court stressed that the first step in Thun is not a "mechanical test;" it is not automatically satisfied just because a certain symptom or functional effect is not expressly listed in a diagnostic code. The Court also emphasized that "exceptionality remains the touchstone in determining whether extraschedular consideration is warranted under § 3.321(b)(1)" and whether Thun step one is satisfied. This "broad" analysis is "fact-bound and highly contextual" based on "a totality of the factors inquiry" into whether the veteran's disability picture as a whole (i.e., full symptomatology) presents an impairment that is so exceptional that the rating schedule is not capable of assessing it in the first instance. The Court in Long also explained that extraschedular consideration is not applicable to claims that are evaluated properly but ultimately denied under the schedular ratings; rather, it applies only after conventional rating tools prove inadequate to evaluate a veteran's symptomatology in the first place due to its exceptional nature. Thus, the rating schedule must be deemed inadequate before extraschedular consideration is warranted. Extraschedular consideration is appropriate only after the agency has exhausted all other tools for a disability rating, whether direct, secondary, or analogous ratings. The Court additionally held that functional effects are not the focus of the first Thun step; rather, they are relevant to Thun step two, which examines whether the veteran's exceptional symptomatology causes "marked interference with employment," "frequent periods of hospitalization," or other related factors. The Board finds that the appellant's reported symptoms of feeling off-balance, staggering, walking with assistance or near things he can grab onto, living on the first floor to avoid stairs, and falling are contemplated by the 30 percent rating and the rating criteria set forth at 38 C.F.R. § 4.87, DC 6204. Although these symptoms are not expressly listed in the rating criteria, the Board finds that these symptoms are the types of functional effects that derive from dizziness and occasional staggering. Cf. Doucette v. Shulkin, 28 Vet. App. 366, 370-71 (2017). Therefore, an extraschedular rating is not warranted on the basis of the rating criteria being inadequate. 38 C.F.R. § 3.321(b)(1). Because the first step of Thun has not been met by virtue of the schedular criteria contemplating the appellant's level of disability and symptomatology, the analysis ends. See also Long, supra. The level of interference with employment is part of the second step of Thun and, as such, will not be considered. However, the issue of entitlement to a TDIU, to include as on an extraschedular basis, discussed below, is remanded. The preponderance of the evidence is against entitlement to an extraschedular rating for vertigo, and there is no reasonable doubt to be resolved. As the evidence preponderates against the claim, the benefit of the doubt doctrine is not for application. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). However, as set forth above, under the benefit-of-the-doubt rule, for the appellant to prevail, there need not be a preponderance of the evidence in his favor, but only an approximate balance of the positive and negative evidence. In other words, the preponderance of the evidence must be against the claim for the benefit to be denied. See Gilbert v. Derwinski, 1 Vet. App. 49, 54 (1990). Given the evidence set forth above, such a conclusion certainly cannot be made in this case. Under these circumstances, the record is sufficient to award entitlement to an initial rating of 30 percent, and no higher, for vertigo. 38 U.S.C. § 1151 Veterans who sustain an additional disability as the result of VA hospitalization, medical or surgical treatment, vocational rehabilitation, or examination shall receive disability compensation in the same manner as if such disability or death were service connected. 38 U.S.C. § 1151. A disability is a qualifying additional disability if 1) it was not the result of the veteran's willful misconduct and the disability was caused by hospital care, medical or surgical treatment; or examination furnished to the veteran under any law administered by VA, and 2) the proximate cause of the disability was a) carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on the part of VA in furnishing the hospital care, medical or surgical treatment, or examination; or b) an event not reasonably foreseeable. Id. In determining whether a veteran has an additional disability, VA compares the veteran's condition immediately before the beginning of the hospital care or medical or surgical treatment upon which the claim is based to the veteran's condition after such care or treatment. 38 C.F.R. § 3.361(b). To establish causation, the evidence must show that the hospital care or medical or surgical treatment resulted in the veteran's additional disability. Merely showing that a veteran received care or treatment and that the veteran has an additional disability does not establish cause. 38 C.F.R. § 3.361(c) (1). Hospital care or medical or surgical treatment cannot cause the continuance or natural progress of a disease or injury for which the care or treatment was furnished unless VA's failure to timely diagnose and properly treat the disease or injury proximately caused the continuance or natural progress. 38 C.F.R. § 3.361(c). To establish that carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on VA's part in furnishing hospital care, medical or surgical treatment, or examination proximately caused a veteran's additional disability or death, it must be shown that the hospital care or medical or surgical treatment caused the veteran's additional disability or death; and 1) VA failed to exercise the degree of care that would be expected of a reasonable health care provider; or 2) VA furnished the hospital care or medical or surgical treatment without the veteran's informed consent. 38 C.F.R. § 3.361(d). 1. Entitlement to compensation under 38 U.S.C. § 1151 for claimed disability incurred during a September 2012 VA hospitalization. For the reasons that follow, the Board finds that the most probative evidence establishes that the appellant did not incur any additional disability due to carelessness, negligence, lack of proper skill, error in judgment, or similar instance on fault on the part of VA, or an event not reasonably foreseeable. The appellant contends that he should have been admitted and given treatment and testing on September 13, 2012, when he presented to the VA emergency department with lumbar spine pain, which he contends would have revealed that he had a blood infection, sepsis. He contends that he incurred additional disability as a result. As it turned out, based on physical examination, which revealed normal vital signs, the appellant was released after presenting on the 13th. That night, the appellant fell and could not get up. His wife and daughter brought him back to the VA medical center the next day, September 14, 2012. Eventually, sepsis was discovered and treated. Compensation is awarded for a qualifying additional disability or death of a veteran which is the result of VA hospitalization, medical or surgical treatment, vocational rehabilitation, or examination in the same manner as if such disability or death were service connected. 38 U.S.C. § 1151. A VA medical opinion was obtained in May 2015. Following review of the claims file, the VA physician opined that it was less likely than not that the appellant's sepsis with delirium was secondary to medical treatment, carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault in the providing of care. It was explained that the appellant was initially evaluated on September 13, 2012, and that, based on his presenting condition, history, and physical examination, the diagnosis of low back pain based on degenerative changes of the lumbar spine was appropriate. The appellant was advised to return if his medical condition changed. This occurred, and based upon the developing clinical condition, modifications were made to determine what was transpiring. The VA physician also opined that it was less likely than not that the appellant's urinary tract infection and delirium were reasonably foreseeable. It was explained that, given the information on hand at the first visit on September 13, 2012, one could not state that the appellant would have eventually developed such. Rather, only the clinical course of the appellant would have determined that. The Board affords this May 2015 medical opinion minimal probative weight. While the opinion suggests that the appellant did incur additional disability that was not reasonably foreseeable, in the form of urinary tract infection and delirium, it did not address whether the appellant had any current disability, or residuals thereof, as opposed to simply having had a urinary tract infection and delirium during the September 2012 hospitalization. The matter was remanded by the Board in September 2019 for a new medical opinion because it was unclear what additional disability or disabilities the appellant sustained or developed as a result of his September 2012 VA hospitalization, care, and treatment. Additionally, the new opinion was to address whether, based on the facts and reported history, symptoms and presentation at the time, VA failed to exercise the degree of care that would normally be expected of a reasonable health care provideri.e., was negligentby (1) not performing a blood test sooner; (2) not contacting or involving the infectious disease unit sooner; and/or (3) initially prescribing Vancomycin instead of Ampicillin based on the facts and reported history, symptoms, and presentation as they existed at the time. Finally, the new opinion was to address whether VA's impressions and risk assessments were reasonable based on the facts and reported history, symptoms and presentation at the time, and whether the VA's response time and course of action fell within the degree of care owed by a medical professional. Medical opinions were obtained from D.D.V.H., D.O., in January 2020, following examination of the appellant. Dr. D.D.V.H.'s opinions used the incorrect evidentiary standard. As opposed to an equipoise standard, i.e. at least as likely as not (at least 50 percent probability), Dr. D.D.V.H. offered negative opinions because there was not a preponderance of the evidence in favor of the claims. Indeed, he opined, in part, that, "although it is acknowledged that sepsis can cause diffuse myalgia/arthralgia, a greater than 50 percent direct causal relationship cannot be established between musculoskeletal . . . pain and sepsis. Therefore, based upon consideration of the evidence, there was no evidence of wrongdoing on the part of VA attending personnel." Additionally, he also determined that the appellant's falls at home in September 2012, both before and after his first presentation to the Emergency Department, "confounds the etiology/aggravation of low back condition." As such, the Board affords minimal probative weight to the opinions of Dr. D.D.V.H. Eventually, a new medical opinion was obtained from a contracted physician, S.M.G., MD, Ph.D., Infectious Disease, in March 2020. Following review of the claims file, Dr. S.M.G. determined that the appellant indeed sustained additional disability as a result of September 2012 bacteremia which was not a result of his own willful misconduct. He had documented discitis at L5-S1 as a component of the bacteremia, and this aggravated his preexisting back pain from spinal stenosis and degenerative disease. However, Dr. S.M.G. opined that it was less likely than not that (a) the additional disability was caused by hospital care furnished by VA; (b) the proximate cause of any additional disability was due to any fault on the part of VA; and (c) the proximate cause of the additional disability would not likely have been anticipated based on records provided regarding the September 2013 encounter. Although the appellant was not diagnosed with infection at the time of his first presentation on September 13, 2012, he presented with back pain. Thus, Dr. S.M.G. opined that it was more likely than not that the appellant's discitis was already present during that first visit, based upon the complaint of pain. However, with no complaints during that visit of fever or urinary retention, and the presence of completely normal vital signs, there was no compelling reason at that visit to suspect infection, much less sepsis. Even if the diagnosis had been made a day earlier, it is unlikely that his clinical course would have changed. After the appellant re-presented on September 14, 2012, the care given fully met appropriate standards. The appellant received three days of gentamicin therapy. Dr. S.M.G. explained that, while gentamicin can be associated with hearing loss and vertigo, the rationale for its use was well documented by the infectious diseases consultants, the three-day course was quite brief, and the dosing was appropriate. As delineated above, the March 2020 contracted physician determined that, although the appellant indeed sustained additional current back disability as a result of his bacteremia, in the form of discitis, it was more likely than not that this additional disability was already present at the time of the appellant's first presentation to the VA emergency department on September 13, 2012, and that it was more likely than not that the appellant already had bacteremia at that time as well. The March 2020 examiner also opined that it was less likely than not that the appellant incurred any additional disability was caused by hospital care furnished by VA, and that the proximate cause of any additional disability was due to any fault on the part of VA. However, the March 2020 examiner essentially explained that it was not reasonably foreseeable at the time of the first emergency department visit on September 13, 2012, that the appellant had bacteremia. Notably, based upon the appellant's complaints and the results of the physical examination on the 13th, there was no compelling reason to suspect infection, much less sepsis. In other words, the appellant already had bacteremia and discitis when he first presented to the VA medical center. The March 2020 examiner also explained that it was unlikely that the appellant's clinical course would have changed, even if a diagnosis of infection had indeed been rendered on September 13, 2012, as opposed to when he re-presented on September 14, 2012. As it is less likely than not that the appellant's clinical course would have changed had a diagnosis been made on September 13, 2012, there was no additional disability caused by hospital care, medical or surgical treatment; or examination furnished to the veteran under any law administered by VA. Rather, the bacteremia and discitis were present prior to the appellant's first visit to VA on the 13th, and his infection eventually was treated and resolved. There is no current disability attributable to the September 2012 infection aside from discitis, which had been present prior to the September 13, 2012, first visit for VA medical care. Thus, whether additional disability was reasonably foreseeable is not dispositive in this matter. Regarding the appellant's contentions that he would not have fallen the morning of September 14, 2012, and injured his back and shoulder, had VA discovered his bacteremia on September 13, 2012, and not discharged him, questions of competency notwithstanding, the March 2020 opinion explains that it is unlikely the clinical course would have been different. Thus, even assuming there was an acute exacerbation of a back disability due to such fall, and even assuming it was due to VA care, or lack thereof, there is no competent evidence of a current disability which is a qualifying additional disability as contemplated by 38 U.S.C. § 1151 because both the bacteremia and discitis were present prior to the September 13, 2012, visit. Crucially, the Board finds the March 2020 contracted medical opinion to be probative as to the questions of additional disability, etiology, foreseeability, and standard of care, as the opinion is based upon a thorough review of the record and upon the appellant's entire history. See Bloom v. West, 12 Vet. App. 185, 187 (1999) (the probative value of a physician's statement is dependent, in part, upon the extent to which it reflects "clinical data or other rationale to support his opinion"). Here, the March 2020 contracted physician provided a detailed rationale to support her conclusions. The rationale set forth in the March 2020 contracted opinion was substantial, thorough, and based on the overall record. The appellant has not submitted a medical opinion to contradict these conclusions. See 38 U.S.C. § 5107(a) (it is the claimant's responsibility to support a claim for VA benefits). Thus, the only competent and probative opinion of record addressing the question at issue in this case comes from the March 2020 contracted physician, and is against the claim. The Board has considered the lay statements and testimony of the appellant. To this end, the Board recognizes that lay witnesses are competent to opine as to some matters of diagnosis and etiology, and the Board must determine on a case-by-case basis whether a veteran's particular disability is the type of disability for which lay evidence is competent. See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); Kahana v. Shinseki, 24 Vet. App. 428, 433, n. 4 (2011). In this case, the assertions of the appellant as to etiology concern an internal medical process, which extends beyond an immediately observable cause-and-effect relationship that is of the type that the courts have found to be beyond the competence of lay witnesses. Cf. Jandreau, 492 F.3d at 1376 (lay witness capable of diagnosing dislocated shoulder); Barr v. Nicholson, 21 Vet. App. 303, 308-9 (2007); Falzone v. Brown, 8 Vet. App. 398, 403 (1995) (lay person competent to testify to pain and visible flatness of his feet); with Clemons v. Shinseki, 23 Vet. App. 1, 6 (2009) ("It is generally the province of medical professionals to diagnose or label a mental condition, not the claimant"); Woehlaert v. Nicholson, 21 Vet. App. 456, 462 (2007) (unlike varicose veins or a dislocated shoulder, rheumatic fever is not a condition capable of lay diagnosis); Jandreau, 492 F.3d at 1377, n. 4 ("sometimes the layperson will be competent to identify the condition where the condition is simple, for example a broken leg, and sometimes not, for example, a form of cancer"). See also Colantonio v. Shinseki, 606 F.3d 1378, 1382 (Fed. Cir. 2010) (recognizing that in some cases lay testimony "falls short" in proving an issue that requires expert medical knowledge). Significantly, the appellant does not possess the requisite medical expertise to determine whether he incurred additional disability due to VA treatment, and if any additional disability had resulted, whether such was the result of carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on the part of VA in furnishing the hospital care, medical or surgical treatment, or examination; or an event not reasonably foreseeable. As such, these assertions by the appellant are not competent medical evidence and are, therefore, afforded little probative weight. Moreover, the lay theory of the appellant is contradicted by the conclusions of the March 2020 contracted physician who specifically considered these lay contentions, as well as the appellant's medical history, in rendering her negative opinion. The Board finds the specific, reasoned opinion of the trained health care provider who rendered the March 2020 contracted medical opinion to be of greater probative weight than the more general lay assertions of the appellant. In sum, based on the evidence above, including the competent and persuasive opinion provided by the March 2020 contracted physician, the Board finds that the appellant did not incur any additional disability due to hospital care, medical or surgical treatment; or examination furnished to the veteran under any law administered by VA. As the evidence preponderates against the claim, the benefit of the doubt doctrine is not for application. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). REASONS FOR REMAND 1. Entitlement to service connection for a right shoulder disability. 2. Entitlement to service connection for a lumbar spine disability. Since the Board remanded the matter in September 2019, the appellant's service treatment records have been found and reassociated with the claims file. Indeed, the Veterans Benefits Management System (VBMS) indicates that such were associated with the claims file in June 2020. However, the etiological opinions obtained since the September 2019 remand regarding the nature and etiology of the appellant's claimed lumbar spine and right shoulder disabilities were received in March 2020. Thus, the clinicians did not have benefit of review of the appellant's service treatment records when the opinions were offered. As such, remand is warranted for new medical opinions so that such can be based upon review of the appellant's service treatment records. When VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). The appellant and his representative were prematurely misinformed regarding the existence of his service treatment records. Indeed, in a March 2020 letter, the RO prematurely informed the appellant and his representative that his service treatment records could not be located and that further attempts to obtain them would be futile. Reference is also made to this in the informal hearing presentation. However, the appellant and his representative have since been provided a copy of the entire claims file, which includes his service treatment and service personnel records, in September 2021. 3. Entitlement to a TDIU. As resolution of the claims of entitlement to service connection for lumbar spine and right shoulder disabilities may have an impact on the appellant's claim of entitlement to a TDIU, the issues are inextricably intertwined. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991) (holding that where a decision on one issue would have a "significant impact" upon another, and that impact in turn could render any appellate review meaningless and a waste of judicial resources, the two claims are inextricably intertwined). The matters are REMANDED for the following action: 1. Obtain a medical opinion from an appropriate clinician as to the nature and etiology of the appellant's claimed lumbar spine and right shoulder disabilities. Access to the claims file should be made available to the examiner for review. After reviewing the claims file, the examiner should opine as to the following: Is it at least as likely as not that a lumbar spine and/or right shoulder disability had its onset in service or is otherwise related to the appellant's active service, to include a reported fall during a basketball game in 1958? In providing the requested opinions, the clinician should review the relevant evidence of record, to include the appellant's sick call treatment record with a March 1958 complaint of back pain for one and a half weeks and a note that such was treated with, inter alia, heat. A clear rationale for all opinions would be helpful and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. In providing the requested opinions, the clinician should consider the appellant's reported injury and symptoms in service and thereafter, including the nature, onset, progression and severity of the appellant's reported symptoms. If there is any medical reason to accept or reject the proposition that the reported injury and symptoms in service and thereafter represented the onset of the current disabilities, this should be noted. Stated another way, do the appellant's reports about the injury and symptoms align with how lumbar spine and right shoulder disabilities are known to develop or are the appellant's reports generally inconsistent with medical knowledge or implausible? If the clinician determines that an examination of the appellant is necessary, one should be scheduled. K. Conner Veterans Law Judge Board of Veterans' Appeals Attorney for the Board R. Behlen, 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.