Citation Nr: 21073782 Decision Date: 12/10/21 Archive Date: 12/10/21 DOCKET NO. 21-00 833 DATE: December 10, 2021 ORDER Entitlement to service connection for tooth loss is denied. Entitlement to service connection for diabetes mellitus II (DMII) due to Agent Orange exposure is denied. Entitlement to service connection for diabetic peripheral neuropathy of the bilateral lower extremities due to Agent Orange exposure is denied. Entitlement to service connection for osteoarthritis due to Agent Orange exposure is denied. Entitlement to service connection for hypertension is denied. Entitlement to an initial evaluation in excess of 20 percent for service-connected degenerative disc disease of the lumbar spine (lumbar disability) is denied. Entitlement to an effective date earlier than June 21, 2018 for service-connected lumbar disability is denied. REMANDED Entitlement to service connection for a right knee disorder is remanded. Entitlement to service connection for ischemic heart disease (IHD) due to Agent Orange exposure is remanded. Entitlement to service connection for bilateral hearing loss is remanded. FINDINGS OF FACT 1. The preponderance of the evidence is against a finding that any tooth loss is related to service. 2. The preponderance of the evidence is against a finding that Veteran was exposed to Agent Orange while in service. 3. The preponderance of the evidence is against a finding that the DMII is related to service, to include as due to Agent Orange exposure. 4. The preponderance of the evidence is against a finding that the diabetic peripheral neuropathy of the bilateral lower extremities is related to service, to include as due to Agent Orange exposure. 5. The preponderance of the evidence is against a finding that the osteoarthritis represents a primary disability separate and distinct from other diagnosed disabilities but, instead, is part and pace of the service-connected lumbar disability and left knee disability. 6. The preponderance of the evidence is against a finding that the hypertension is related to service. 7. The lumbar disability was not manifest by forward flexion of 30 degrees or less, unfavorable ankylosis of the entire thoracolumbar spine, or favorable ankylosis of the entire thoracolumbar spine. 8. The Veteran filed for service connection for the lumbar disability on June 21, 2018, and is not entitled to an earlier effective date. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for tooth loss are not met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. 2. The criteria for entitlement to service connection for DMII have not been met. 38 U.S.C. §§ 1110, 1131, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304, 3.307, 3.309. 3. The criteria for entitlement to service connection for diabetic peripheral neuropathy of the bilateral lower extremities have not been met. 38 U.S.C. §§ 1110, 1131, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304, 3.307, 3.309. 4. The criteria for service connection for osteoarthritis are not met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. 5. The criteria for service connection for hypertension are not met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. 6. The criteria for entitlement to an evaluation in excess of 20 percent for service-connected lumbar disability have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.71a, Diagnostic Code (DC) 5242. 7. The criteria for entitlement to an effective date earlier than June 21, 2018 for service-connected lumbar disability have not been met. 38 U.S.C. §§ 5101, 5110; 38 C.F.R. §§ 3.102, 3.400. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from July 1961 to June 1964, from September 1964 to September 1970, and from February 1971 to March 1982. This case comes before the Board of Veterans' Appeals (Board) on appeal from a February 2019 rating decision of the Department of Veteran Affairs (VA) Regional Office (RO). Service Connection Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). To establish a right to compensation for a present disability, a Veteran must show: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service - the so-called "nexus" requirement. Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2009) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004)). Service connection may be granted for any disease initially diagnosed after discharge when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). In addition, service connection for certain chronic diseases may be established on a presumptive basis by showing that the condition manifested to a degree of 10 percent or more within one year from the date of separation from service. 38 U.S.C. §§ 1101, 1112, 1113, 1131, 1137; 38 C.F.R. §§ 3.307, 3.309(a); Fountain v. McDonald, 27 Vet. App. 258, 271-72 (2015). Although the disease need not be diagnosed within the presumptive period, it must be shown, by acceptable lay or medical evidence, that there were characteristic manifestations of the disease to the required degree during that time. 38 U.S.C. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309(a). Additionally, for certain chronic diseases with potential onset during service, there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time. If chronicity in service is not established, a showing of continuity of symptoms after discharge may support the claim. 38 C.F.R. §§ 3.303(b), 3.309; Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Effective February 24, 2011, VA amended its regulations to extend a presumption of herbicide exposure to certain Veterans who served in Korea. Specifically, VA added a new paragraph to 38 C.F.R. § 3.307 that provides that a Veteran who served between April 1, 1968, and August 31, 1971, in a unit that, as determined by the Department of Defense (DoD), operated in or near the Korean DMZ in an area in which herbicides are known to have been applied during that period, shall be presumed to have been exposed during such service to an herbicide agent, unless there is affirmative evidence to establish that the Veteran was not exposed to any such agent during that service. See 38 C.F.R. § 3.307(a)(6)(iv). For Veterans presumed to have been exposed to herbicides, certain enumerated diseases shall be service connected even though there is no record of such disease during service, so long as the requirements of 38 U.S.C. § 1116 and 38 C.F.R. § 3.307(a)(6)(iii) are met, and the rebuttable presumption provisions of 38 U.S.C. § 1113 and 38 C.F.R. § 3.307(d) are also satisfied. 38 C.F.R. § 3.309(e). 1. Entitlement to service connection for tooth loss The Veteran alleges broadly that they have tooth loss due to service. The Board notes January 2021 VA treatment records indicating that the Veteran had very minimal teeth at the time as they were in the process of having them removed; however, it is unclear which teeth have been removed or for what reasons, and the Veteran has not specified which missing teeth they believe are due to service. Service treatment records (STRs) do indicate that the Veteran received some dental work while in service, including temporary bridge work in 1980. However, the STRs do not otherwise reflect any service-related trauma to the teeth, and the Veteran and their representative have made no arguments for why service connection should be granted. VA has a duty to assist claimants to obtain evidence needed to substantiate a claim, including providing a medical examination when necessary to make a decision on a claim. 38 U.S.C. § 5103A (2012); 38 C.F.R. § 3.159(c)(4). Here, the RO did not provide the Veteran with an examination. Such development is necessary if the information and evidence of record does not contain sufficient competent medical evidence to decide the claim, but (1) contains competent evidence of diagnosed disability or recurrent symptoms of disability, (2) establishes that the Veteran suffered an event, injury or disease in service, or has a presumptive disease during the pertinent presumptive period, and (3) indicates that the claimed disability may be associated with the in-service event, injury, or disease, or with another service-connected disability. 38 C.F.R. § 3.159(c)(4); McLendon v. Nicholson, 20 Vet. App. 79, 83-86 (2006) (noting that the third element establishes a low threshold and requires only that the evidence "indicates" that there "may" be a nexus between the current disability or symptoms and active service, including equivocal or non-specific medical evidence or credible lay evidence of continuity of symptomatology). However, the Board finds that remanding for a VA examination is not warranted at present. The first complaints of any additional dental issues appear in VA treatment records nearly 40 years following separation from service, and as noted above, the Veteran has made no statements or arguments explaining why the tooth loss should be service-connected. The Veteran has not even asserted continuity of symptomatology. In other words, there are no grounds on which service connection may be granted here. Accordingly, the claim of entitlement to service connection for tooth loss is denied. In reaching this decision the Board considered the doctrine of reasonable doubt, however, as the preponderance of the evidence is against the Veteran's claim, the doctrine is not for application. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). 2. Entitlement to service connection for DMII due to Agent Orange exposure The Veteran alleges that the DMII is due to Agent Orange exposure while in service in Korea. First, the Board finds that there is a current disability. See Holton, 557 F.3d at 1366; 38 C.F.R. § 3.303(d). June 2021 VA treatment records note a diagnosis of DMII. Accordingly, the first element of service connection is met. Second, the Board finds that there was not an in-service event, injury or disease. See Holton, 557 F.3d at 1366; 38 C.F.R. § 3.303(d). The Veteran's STRs are silent for any complaints of or treatment for DMII. However, as noted above, the Veteran asserts that they were exposed to Agent Orange while in service in Korea. On their June 2018 claim, the Veteran stated that they served as a Transportation Noncommissioned Officer in Charge (NCOIC) in South Korea, transporting Agent Orange from 1966 to 1967, and taking 55-gallon drums, and transporting them to other bases and outposts located in Korea. In a September 2018 statement, the Veteran asserted that they were assigned United States Army Institute for Professional Development at the Incheon Petroleum Depot from April 1966 to May 1967, and that they were the only military GI soldier in that division as a NCOIC. They explained that while there they shipped every petroleum product, and that they were placed at sites throughout South Korea, including the DMZ. The Veteran asserted that they handled 55-gallon drums of Agent Orange going to Vietnam, and that they were involved with military vehicles that had spread Agent Orange throughout the country. A review of the Veteran's military personnel records does confirm that they served in Incheon, South Korea from April 1966 through May 1967; however, there is no indication that they were ever posted in the DMZ. In January 2019, a memorandum was issued from the Defense Personnel Records Information Retrieval System (DPRIS) regarding the Veteran's possible exposure to Agent Orange while in Korea. The memorandum stated that following coordinated research with the National Archives and Records Administration (NARA), they were unable to locate any unit history for the Incheon Petroleum Depot from 1966. They reviewed the 1966 1967 United States Army Station Lists and Chronologies submitted by the 8th United States Army which lists the Incheon Petroleum Depot; however, the records do not document the use, storage, spraying, or transporting of tactical herbicides to include Agent Orange. Additionally, the records do not document any specific duties performed by the Incheon Petroleum Depot unit members along the DMZ. Even should the Board concede that the Veteran served along the DMZ, VA regulations only permit for presumptive Agent Orange exposure there from the dates of April 1, 1968, and August 31, 1971. See 38 C.F.R. § 3.307(a)(6)(iv). The Veteran was only in Korea from 1966 through 1967. Regarding the Veteran's assertions that they were exposed to vehicles that spread Agent Orange throughout the country, this lay testimony is outweighed by the absence of documentation of such exposure. The record does not otherwise show exposure to herbicides while performing their duties. The Board finds that the Veteran was certainly competent to report that they served in South Korea while during service. 38 U.S.C. § 1154(a) (2012); Washington v. Nicholson, 19 Vet. App. 362, 368 (2005) (noting that a lay witness is competent to report to factual matters of which he or she has first-hand knowledge). However, the Board does not find these statements that they were exposed to Agent Orange to be supported by the record. Caluza v. Brown, 7 Vet. App. 498, 511 (1995) (noting that the credibility of a witness may be impeached by a showing of interest, bias, inconsistent statements, consistency with other evidence), aff'd, 78 F.3d 604 (Fed. Cir. 1996). Accordingly, the presumption of herbicide exposure during service does not apply. The record reflects no medical opinion relating DMII to the Veteran's military service. While the Board acknowledges that the Veteran has not been afforded a VA examination for this claim, as an in-service onset of the disability is not suggested by the medical record, remand for an examiner's opinion is not warranted. See McLendon, 20 Vet. App. 79. As a chronic disability is not shown to have been present during service or in the first year after separation of service, and continuity of symptomatology leading to a diagnosis of such is not shown, in-service incurrence of a DMII disorder cannot be presumed. See 38 C.F.R. §§ 3.307, 3.309(a). For the above reasons, the preponderance of the evidence is against the claim and service connection for DMII is denied. In reaching this decision the Board considered the doctrine of reasonable doubt, however, as the preponderance of the evidence is against the Veteran's claim, the doctrine is not for application. Gilbert, 1 Vet. App. at 49. 3. Entitlement to service connection for diabetic peripheral neuropathy of the bilateral lower extremities due to Agent Orange exposure The Veteran alleges that bilateral diabetic neuropathy of the lower extremities is due to Agent Orange exposure while in service in Korea. First, the Board finds that there is a current disability. See Holton, 557 F.3d at 1366; 38 C.F.R. § 3.303(d). June 2021 VA treatment records indicate a diagnosis of diabetic peripheral neuropathy associated with DMII. Accordingly, the first element of service connection is met. Second, the Board finds that there was not an in-service event, injury or disease. See Holton, 557 F.3d at 1366; 38 C.F.R. § 3.303(d). The Veteran's STRs are silent for any complaints of or treatment for peripheral neuropathy of the lower extremities. The Veteran has asserted that the neuropathy is due to Agent Orange exposure; however, as found above, the record does not support a finding that the Veteran was exposed to herbicides during service, to include Agent Orange. Accordingly, the presumption of herbicide exposure during service does not apply. The record reflects no medical opinion relating diabetic peripheral neuropathy to the Veteran's military service. While the Board acknowledges that the Veteran has not been afforded a VA examination for this claim, as an in-service onset of the disability is not suggested by the medical record, remand for an examiner's opinion is not warranted. See McLendon, 20 Vet. App. 79. As a chronic disability is not shown to have been present during service or in the first year after separation of service, and continuity of symptomatology leading to a diagnosis of such is not shown, in-service incurrence of a diabetic peripheral neuropathy cannot be presumed. See 38 C.F.R. §§ 3.307, 3.309(a). For the above reasons, the preponderance of the evidence is against the claim and service connection for diabetic peripheral neuropathy of the bilateral lower extremities is denied. In reaching this decision the Board considered the doctrine of reasonable doubt, however, as the preponderance of the evidence is against the Veteran's claim, the doctrine is not for application. Gilbert, 1 Vet. App. at 49. 4. Entitlement to service connection for osteoarthritis due to Agent Orange exposure The Veteran alleges that the osteoarthritis is related to Agent Orange exposure while in service in Korea. Except as otherwise provided in the rating schedule, all disabilities, including those arising from a single disease entity, are to be rated separately, unless the conditions constitute the same disability or the same manifestation. 38 C.F.R. § 4.14; Esteban v. Brown, 6 Vet. App. 259 (1994). The critical inquiry in making such a decision is whether any of the symptomatology is duplicative of or overlapping; the appellant is entitled to a combined rating where the symptomatology is distinct and separate. Esteban, 6 Vet. App. at 262. The Veteran is currently service-connected for degenerative disc disease of the lumbar spine, and left knee degenerative arthritis, and is seeking service connection for a right knee degenerative arthritis, which remains on appeal and is remanded below. While June 2021 VA treatment records list osteoarthritis on the Veteran's problem list, the list does not include the knee or lumbar spine. The record is otherwise absent any competent evidence of a disability manifested by arthritis that is separate or distinct from the service-connected lumbar disability, the service-connected left knee disability, or the right disability that the Veteran is currently appealing. The Veteran has not submitted or identified any additional evidence of a diagnosis of a disability manifested by arthritis at any time during the current appeal. The Court has held that Congress specifically limited entitlement to service-connected benefits to cases where there is a current disability. In the absence of proof of a present disability, there can be no valid claim. Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). Accordingly, service connection must be denied. In reaching this decision the Board considered the doctrine of reasonable doubt, however, as the preponderance of the evidence is against the Veteran's claim, the doctrine is not for application. Gilbert, 1 Vet. App. at 49. 5. Entitlement to service connection for hypertension The Veteran alleges broadly that the hypertension is related to service. First, the Board finds that there is a current disability. See Holton, 557 F.3d at 1366; 38 C.F.R. § 3.303(d). June 2021 VA treatment records indicate a diagnosis of hypertension. Accordingly, the first element of service connection is met. Second, the Board finds that there was not an in-service event, injury or disease. See Holton, 557 F.3d at 1366; 38 C.F.R. § 3.303(d). The Veteran's STRs are silent for any complaints of or treatment for hypertension or any elevated blood pressure. For VA purposes, "[h]ypertension or isolated systolic hypertension must be confirmed by readings taken two or more times on at least three different days," and "hypertension means that the diastolic blood pressure [the bottom number of the blood pressure ratio] is predominantly 90mm. or greater, and isolated systolic hypertension means that the systolic blood pressure [the top number of the blood pressure ratio] is predominantly 160mm. or greater with a diastolic of less than 90mm." 38 C.F.R. § 4.104, DC 7101, Note (1). At the December 1981 separation examination, the systolic pressure was recorded at 122, and diastolic pressure was recorded at 86. Readings in March 1980 recorded systolic pressure at 104 and diastolic pressure at 76. December 1976 readings recorded systolic pressure at 148 and diastolic at 88. A careful review of the remaining STRs do not reveal any readings that would be considered hypertension for VA purposes. The Board notes that the Veteran and their representative have otherwise made no arguments for why service connection should be granted. The record reflects no medical opinion relating hypertension to the Veteran's military service. While the Board acknowledges that the Veteran has not been afforded a VA examination for this claim, as an in-service onset of the disability is not suggested by the medical record, remand for an examiner's opinion is not warranted. See McLendon, 20 Vet. App. 79. The first complaints of any hypertension appear in VA treatment records nearly 40 years following separation from service, and as noted above, the Veteran has made no statements or arguments explaining why the hypertension should be service-connected. The Veteran has not even asserted continuity of symptomatology. In other words, there are no grounds on which service connection may be granted here. Accordingly, the claim of entitlement to service connection for hypertension is denied. In reaching this decision the Board considered the doctrine of reasonable doubt, however, as the preponderance of the evidence is against the Veteran's claim, the doctrine is not for application. Gilbert, 1 Vet. App. at 49. Increased Rating 6. Entitlement to an evaluation in excess of 20 percent for service-connected lumbar disability Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (Schedule), found in 38 C.F.R. Part 4. The Schedule is primarily a guide in the evaluation of disability resulting from all types of diseases and injuries encountered as a result of or incident to military service. The ratings are intended to compensate, as far as can practicably be determined, the average impairment of earning capacity resulting from such diseases and injuries and their residual conditions in civilian occupations. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. When reasonable doubt arises as to the degree of disability, such doubt will be resolved in the Veteran's favor. 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 any disability present. 38 C.F.R. § 4.2; Peyton v. Derwinski, 1 Vet. App. 282 (1991). Although the regulations do not give past medical reports precedence over current findings, the Board is to consider the Veteran's medical history in determining the applicability of a higher rating for the entire period in which the appeal has been pending. Powell v. West, 13 Vet. App. 31, 34 (1999). Where entitlement to compensation has been established and an increase in the disability rating is at issue, the present level of disability is of primary concern. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). Where an appeal is based on an initial rating for a disability, however, evidence contemporaneous with the claim and the initial rating decision are most probative of the degree of disability existing when the initial rating was assigned and should be the evidence "used to decide whether an original rating on appeal was erroneous." Fenderson v. West, 12 Vet. App. 119, 126 (1999). In either case, if later evidence 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. Fenderson, 12 Vet. App. at 126; Hart v. Mansfield, 21 Vet. App. 505 (2007) (noting that staged ratings are appropriate whenever the factual findings show distinct time periods in which a disability exhibits symptoms that warrant different ratings). When adjudicating a claim for an increased initial evaluation, the relevant time period is from the date of the claim. Moore v. Nicholson, 21 Vet. App. 211, 215 (2007), rev'd in irrelevant part, Moore v. Shinseki, 555 F.3d 1369 (2009). Here, the Veteran filed their claim for service connection in June 2018, which was granted in February 2019 with a 20 percent evaluation effective the date of the claim. Accordingly, the relevant time period for consideration is the date the claim was filed. Disability of the musculoskeletal system is primarily the inability, due to damage or infection in the parts of the system, to perform the normal working movements of the body with normal excursion, strength, speed, coordination, and endurance. It is essential that the examination on which ratings are based adequately portray the anatomical damage and the functional loss with respect to all of these elements. In evaluating disabilities of the musculoskeletal system, it is necessary to consider, along with the schedular criteria, functional loss due to flare-ups of pain, fatigability, incoordination, pain on movement, and weakness. DeLuca v. Brown, 8 Vet. App. 202 (1995). Functional loss may be due to absence of part, or all, of the necessary bones, joints and muscles, or associated structures, or to deformity, adhesions, defective enervation, or other pathology, or it may be due to pain, supported by adequate pathology and evidenced by visible behavior of the claimant undertaking the motion. Weakness is as important as limitation of motion, and a part that becomes painful on use must be regarded as seriously disabled. 38 C.F.R. §§ 4.10, 4.40, 4.45. VA must analyze the evidence of pain, weakened movement, excess fatigability, or incoordination and determine the level of associated functional loss under 38 C.F.R. § 4.40, which requires VA to regard as "seriously disabled" any part of the musculoskeletal system that becomes painful on use. See DeLuca, 8 Vet. App. 202. Although pain may cause a functional loss, "pain itself does not rise to the level of functional loss as contemplated by VA regulations applicable to the musculoskeletal system." Rather, pain may result in functional loss, but only if it limits the ability "to perform the normal working movements of the body with normal excursion, strength, speed, coordination, or endurance." Mitchell v. Shinseki, 25 Vet. App. 32 (2011). Furthermore, the intent of the rating schedule is to recognize painful motion with joint or periarticular pathology as productive of disability. Thus, actually painful, unstable, or malaligned joints, due to healed injury, are entitled to at least the minimum compensable rating for the joint. The joints should be tested for pain on both active and passive motion, in weight-bearing and non-weight-bearing and, if possible, with the range of the opposite undamaged joint. 38 C.F.R. § 4.59. When 38 C.F.R. § 4.59 is raised by the claimant or reasonably raised by the record, even in a non-arthritis context, the Board should address its applicability. Burton v. Shinseki, 25 Vet. App. 1, 5 (2011). Regulations specify that disabilities of the spine should be evaluated under the General Rating Formula for Diseases and Injuries of the Spine (Spinal Formula). 38 C.F.R. § 4.71a, DC 5235 to 5243. When intervertebral disc syndrome (IVDS) is present, it is to be evaluated under the Spinal Formula unless it is more favorable to rate under the Formula for Rating IVDS Based on Incapacitating Episodes (IVDS Formula). Ratings under the Spinal Formula are made with or without symptoms such as pain (whether or not it radiates), stiffness, or aching in the area of the spine affected by residuals of injury or disease. The Veteran's service-connected back disability is rated as DC 5242. As relevant to the thoracolumbar spine, the Spinal Formula provides for a 10 percent rating for forward flexion of the thoracolumbar spine greater than 60 degrees but not greater than 85 degrees; or, combined range of motion of the thoracolumbar spine greater than 120 degrees but not greater than 235 degrees; or, muscle spasm, guarding, or localized tenderness not resulting in abnormal gait or abnormal spinal contour; or, vertebral body fracture with loss of 50 percent or more of the height. A 20 percent disability rating is assigned when forward flexion of the thoracolumbar spine is greater than 30 degrees but not greater than 60 degrees, when the combined range of motion of the thoracolumbar spine is not greater than 120 degrees, or when muscle spasm or guarding is severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis. A 40 percent disability rating is assigned for forward flexion of the thoracolumbar spine to 30 degrees or less, or with favorable ankylosis of the entire thoracolumbar spine. A 50 percent disability rating is assigned for unfavorable ankylosis of the entire thoracolumbar spine and a 100 percent rating is assigned with unfavorable ankylosis of the entire spine. 38 C.F.R. § 4.71a, Spinal Formula. For VA compensation purposes, normal forward flexion of the thoracolumbar spine is zero to 90 degrees, normal extension is zero to 30 degrees, normal left and right lateral flexion is zero to 30 degrees, and normal left and right lateral rotation is zero to 30 degrees. 38 C.F.R. § 4.71a, General Rating Formula, Note 2. Ankylosis is a condition in which an entire spinal segment is immobile and fixed in position. Unfavorable ankylosis exists where the fixation is in flexion or extension. Fixation of a spinal segment at zero degrees is considered favorable ankylosis. See 38 C.F.R. § 4.71a, General Rating Formula, Note 5. The functional equivalent of ankylosis during flare-ups, pursuant to 38 C.F.R. § 4.40 and 4.45, can satisfy the criteria for a rating based on ankylosis, specifically a rating higher than 40 percent for the lumbar spine. Chavis v. McDonough, 34 Vet. App. 1 (2021). Alternatively, the IVDS Formula provides for rating based on the total duration of incapacitating episodes. 38 C.F.R. § 4.71a, IVDS Formula. Incapacitating episodes are defined as a period of acute signs and symptoms due to IVDS that requires bed rest prescribed by a physician and treatment by a physician. Id., Note (1). A 20 percent disability rating is assigned with incapacitating episodes having a total duration of at least 2 weeks. A 40 percent disability rating is assigned or IVDS with incapacitating episodes having a total duration of at least 4 weeks but less than 6 weeks during the past 12 months. A 60 percent disability rating for IVDS with incapacitating episodes having a total duration of at least 6 weeks during the past 12 months. 38 C.F.R. § 4.71a, DC 5243. During the pendency of the instant appeal, VA promulgated new regulations governing ratings for musculoskeletal system and muscle disabilities, effective February 7, 2021. See 85 Fed. Reg. 76,453 (Nov. 30, 2020). The rating criteria for the spine were amended. DC 5242 was amended to make clear that its application was for degenerative arthritis/disc disease of the spine other than IVDS. DC 5243 was amended to make clear that it should only be applied for disc herniation with compression and/or irritation of the adjacent nerve root, and that all other disc diagnoses should be rated under DC 5242. Regarding the use of the earlier and current criteria for evaluating the Veteran's chronic low back pain, the Board may not apply a current regulation prior to its effective date unless the regulation explicitly provides otherwise. See VAOPGCPREC 7-2003 (Nov. 19, 2003); Kuzma v. Principi, 341 F.3d 1327 (Fed. Cir. 2003) (overruling Karnas v. Derwinski, 1 Vet. App. 308 (1991) to the extent it conflicts with the precedents of the United States Supreme Court and the Federal Circuit). However, this rule does not prohibit the Board from applying the earlier criteria to the period on or after the effective dates of the new rating criteria if the prior versions were in effect during the pendency of the appeal, as is the case here. Thus, the Board will evaluate this claim under both versions of the regulation and apply whichever is more favorable. Evidence The Veteran underwent VA examinations in September 2018 and January 2020. During the September 2018 VA examination, the Veteran reported worsening back pain. Initial range of motion testing on both active and passive motion demonstrated forward flexion to 60 degrees, and extension, bilateral flexion, and bilateral rotation to 15 degrees each, with range of motion contributing to functional loss, and pain on rest, weight-bearing, and non-weight bearing. The Veteran was able to perform repetitive-use testing with at least three repetitions, but there was no additional loss of function or range of motion. The Veteran reported flare ups that limit bending or lifting. The Veteran was not examined immediately after repetitive use over time or during a flare up, but the examiner opined that the examination is medically consistent with the Veteran's statements describing functional loss. The examiner stated that pain significantly limits functional ability with repeated use over time, but not during a flare up, and opined that there would be no additional loss of range of motion. There were no findings of ankylosis or IVDS. During the January 2020 VA examination, the Veteran reported that the low back condition has progressed, and that they have functional loss with walking, standing, and lifting. Initial range of motion testing demonstrated forward flexion to 60 degrees, and extension, bilateral flexion, and bilateral rotation to 20 degrees each, with range of motion and pain contributing to functional loss, and pain on all motions, on palpation, and on weight-bearing and non-weight bearing motion. The Veteran was able to perform repetitive-use testing with at least three repetitions, and demonstrated forward flexion to 50 degrees, extension to 15 degrees, bilateral flexion to 15 degrees each, and bilateral rotation to 20 degrees each, with pain and fatigue contributing to functional loss. The Veteran reported flare ups consisting of muscle spasms and increased pain in the back, and requiring the use of a walker. The Veteran was not examined immediately after repetitive use over time or during a flare up, but the examiner opined that the examination is medically consistent with the Veteran's statements describing functional loss. The examiner stated that pain significantly limits functional ability with repeated use over time and during a flare up. For both, the examiner opined that the Veteran would be able to demonstrate forward flexion to 45 degrees, and extension, bilateral flexion, and bilateral rotation to 15 degrees each. There were no findings of ankylosis or IVDS. March 2018 private treatment records (PTRs) indicate that the Veteran does not complain of back pain. January 2020 VA treatment records indicate tender lumbar spine with painful range of motion, but no measurements are noted. June 2021 VA treatment records indicate that the Veteran did not report any back pain. Analysis Upon review of the evidence of record, the Board finds that the Veteran is adequately compensated and already in receipt of a 20 percent schedular rating for the back disability. Range of motion testing demonstrated forward flexion at worst 45 degrees, even during a flare-up or after repeated use over time. Treatment records do not show greater limitation of motion than the examination findings, nor do the Veteran's statements. The examination also did not find any evidence of unfavorable ankylosis of the entire thoracolumbar spine or favorable ankylosis of the entire thoracolumbar spine. Neither the September 2018 or the January 2020 VA examinations indicate any ankylosis, or even the functional equivalent of favorable ankylosis. Favorable ankylosis means that the person's spine is frozen in a neutral position or zero degrees. See 38 C.F.R. § 4.71a, 5010-5238, Note (5). Further, Note (5) clarifies that unfavorable ankylosis is a condition in which... the entire thoracolumbar spine... is fixed in flexion or extension, and the ankylosis results in one or more of the following: difficulty walking because of a limited line of vision, restricted opening of the mouth and chewing, breathing limited to diaphragmatic respiration, gastrointestinal symptoms due to pressure of the costal margin on the abdomen, dyspnea or dysphagia, atlantoaxial... subluxation or dislocation, or neurologic symptoms due to nerve root stretching. Thus, the Board finds that higher ratings based on ankylosis are not supported or warranted under the General Rating Formula. See 38 C.F.R. § 4.71a, 5010-5238. Additionally, the Board has considered whether a higher disability evaluation is warranted on the basis of functional loss due to pain or due to weakness, fatigability, incoordination, or pain on movement of a joint under 38 C.F.R. §§ 4.40 and 4.45. DeLuca, 8 Vet. App. at 206. Despite the Veteran's complaints, pain did not result in unfavorable ankylosis of the lumbar spine at any time during the period on appeal. See Chavis, 34 Vet. App. 1. In this regard, VA examinations do not reveal additional functional impairment, including additional limitation of motion, on account of pain, weakness, that is not already contemplated by the assigned ratings. 38 C.F.R. § 4.59. Thus, a higher rating is not warranted during the entire appeal period for the Veteran's back disability even in consideration of painful motion and other factors such as weakness, fatigability, lack of endurance, and incoordination. Consideration was given to assigning a rating under the Formula for Rating Intervertebral Disc Syndrome (IVDS) Based on Incapacitating Episodes. However, the evidence of record is against a finding any IVDS requiring physician prescribed bed rest for a duration that meets the criteria for a higher rating at any point during the entire appeal period. 38 C.F.R. § 4.71a. In addition to considering the orthopedic manifestations of a lumbar spine disability, VA regulations also require that consideration be given to any associated objective neurologic abnormalities, which are to be evaluated separately under an appropriate diagnostic code. Here, all potentially applicable diagnostic codes have been considered. Schafrath v. Derwinski, 1 Vet. App. 589, 592-93 (1991) (holding that the Board must consider all potentially applicable regulatory provisions). The Board notes that the Veteran is already service-connected for radiculopathy of the sciatic and femoral nerves of the bilateral lower extremities, each evaluated at 20 percent from December 23, 2019 under DC 8520 (sciatic nerve) and DC 8526 (femoral nerve). For the sciatic nerve, disability evaluations of 10 percent, 20 percent, and 40 percent are assignable for incomplete paralysis, which is mild, moderate, or moderately severe in degree, respectively. A 60 percent evaluation is warranted for severe incomplete paralysis with marked muscle atrophy. Complete paralysis of the sciatic nerve, which is rated as 80 percent disabling, contemplates foot dangling and dropping, no active movement possible of muscles below the knee, and flexion of the knee weakened or (very rarely) lost. 38 C.F.R. § 4.124a, DC 8520. For the femoral nerve, disability evaluations of 10 percent, 20 percent, and 30 percent are warranted, respectively, for mild, moderate, and severe incomplete paralysis respectively. A rating of 40 percent is warranted for complete paralysis of the quadriceps extensor muscles. 38 C.F.R. § 4.124a, DC 8526. There were no findings of any radiculopathy at the December 2018 VA examination, and the January 2020 VA examination only indicates evidence of moderate symptoms of radiculopathy. Accordingly, the Board finds that the Veteran is already adequately compensated with 20 percent evaluations from December 23, 2019. Based on these findings, the Board concludes that a rating higher than 20 percent is not warranted, under either the rating criteria prior to, or from February 7, 2021. In denying higher ratings, the Board has considered the applicability of the benefit-of-the-doubt doctrine. However, as the preponderance of the evidence is against the Veteran's claim, the doctrine is not for application and the claim is denied. 38 U.S.C. § 5107; 38 C.F.R. §§ 4.3, 4.7. Earlier Effective Date 7. Entitlement to an effective date earlier than June 21, 2018 for service-connected lumbar disability Generally, the effective date of an award of disability compensation based on an original claim shall be the date of receipt of the claim or the date entitlement arose, whichever is later. 38 U.S.C. § 5110(a); 38 C.F.R. § 3.400. Unless otherwise provided, the effective date of compensation will be fixed in accordance with the facts found, but will not be earlier than the date of receipt of the claimant's application. 38 U.S.C. § 5110(a). If a claim is filed within one year after separation from service, service connection will be effective as of the day after separation. 38 C.F.R. § 3.400(b)(2). With regard to the date of entitlement, the term date entitlement arose is the date when the claimant met the requirements for the benefits sought, on a facts found basis. 38 U.S.C. § 5110(a); McGrath v. Gober, 14 Vet. App. 28, 35 (2000). These facts found include the date the disability first manifested and the date entitlement to benefits was authorized by law and regulation. See generally 38 C.F.R. § 3.400. For instance, if a claimant filed a claim for benefits for a disability before they actually had the disability, the effective date for benefits can be no earlier than the date the disability first manifested. Ellington v. Peake, 541 F.3d 1364, 1369-70 (Fed. Cir. 2008). However, the date entitlement arose is not the date that the RO receives the evidence, but the date to which that evidence refers. McGrath, 14 Vet. App. at 35. If VA receives a complete application form prescribed by the Secretary, as defined in paragraph (a) of 38 C.F.R. § 3.160, appropriate to the benefit sought within 1 year of receipt of an intent to file a claim VA will consider the complete claim form filed as of the date of the intent to file a claim was received. 38 C.F.R. § 3.155(b). As noted above, the Veteran filed for service connection for a lumbar disability June 21, 2018. Service connection was granted effective the date of the claim. The Veteran has submitted no argument explaining why they should receive an earlier effective date for the lumbar disability. Accordingly, the Board finds that an earlier effective date is not warranted, and the claim is denied. REASONS FOR REMAND 1. Entitlement to service connection for a right knee disorder is remanded. Remand is required for an addendum VA medical opinion. Where VA provides the Veteran with an examination in a service connection claim, the examination must be adequate. Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). The Veteran underwent a VA examination in November 2020 where a diagnosis of bilateral degenerative arthritis of the knee was found, but the examiner only provided a nexus opinion for the left knee. In their positive findings, the examiner referenced ongoing treatment for arthritis treatment of both knees, and July 1980 STRs noting bilateral knee pain, but did not provide a clear etiological opinion for the right knee. In December 2020 the RO asked for an addendum given the above mentions of bilateral knee symptoms and pain. In response, a separate examiner stated that there was no evidence of any right knee arthritis anywhere in the Veteran's claims file, and reiterated the positive findings for the left knee. The Board again notes the November 2020 findings of bilateral knee arthritis. Still, there is no clear etiological opinion for the right knee. Accordingly, remand is required for an addendum VA medical opinion regarding the right knee. 2. Entitlement to service connection for IHD due to Agent Orange exposure is remanded. 3. Entitlement to service connection for bilateral hearing loss is remanded. Along with the above claims, the Veteran filed for service connection for IHD and bilateral hearing loss in June 2018. The claims of entitlement to service connection for IHD and bilateral hearing loss were denied in the February 2019 rating decision, and the Veteran filed a legacy appeal for these claims with a timely notice of disagreement in February 2020. Shortly after, the Veteran filed a Supplemental Claim in the modernized review system (AMA) for the IHD and bilateral hearing loss claims. The AMA modernized review system applies to all claims for which VA issues a notice of an initial decision on or after the February 19, 2019 effective date of the modernized review system. The AMA may also apply to claims where the claimant has elected review of a legacy claim under the modernized review system. 38 C.F.R. §§ 3.2400, 19.2. A legacy claim is a claim for which VA provided notice of an initial decision prior to the February 19, 2019 effective date of the AMA modernized review system. 38 C.F.R. §§ 3.2400, 19.2. A claimant with a legacy claim may elect to participate in the AMA modernized review system in one of two ways: First, a claimant with a legacy claim could elect to opt-in to the modernized review system on or after November 1, 2017 as part of the rapid appeals modernization program (RAMP) pursuant to section 4 of Public Law 115-55. 38 C.F.R. §§ 3.2400; 19.2. Second, a claimant with a legacy claim may elect to opt-in to the AMA modernized review system following issuance, on or after the effective date of the AMA, of a VA Statement of the Case (SOC) or Supplemental Statement of the Case (SSOC). 38 C.F.R. §§ 3.2400, 3.2500, 19.2. Thus, an AMA appeal can come before the Board in one of three ways: 1) an appeal of a Rapid Appeals Modernization Program rating decision; 2) an appeal of a rating decision with a notification letter dated on or after February 19, 2019; or 3) a timely appeal of a statement of the case or supplemental statement of the case issued on or after February 19, 2019. 38 C.F.R. § 19.2 (d); 38 C.F.R. § 3.2400. Here, the rating decision was February 6, 2019, so it fell under the legacy appeals system. A SOC had also not yet been issued for these issues at the time that the Veteran filed a Supplemental Claim in the AMA system. Nonetheless, the RO issued a rating decision in March 2020 again denying these claims. In response, the Veteran filed a request for a Higher-Level Review in February 2021. In April 2021 the Veteran was sent a letter explaining that the claims for service connection for IHD and bilateral hearing loss were presently on appeal in the legacy appeals system, so a Higher-Level Review was not possible. In August 2021, the RO issued an SOC for all issues on appeal, other than the IHD and bilateral hearing loss, and the Veteran filed a timely VA Form 9 for all issues in the SOC. Although the Veteran failed to successfully bring these claims forward in the AMA system, they remain yet in the legacy system. However, they are not yet ready for appellate review as the Veteran has not perfected an appeal for the IHD and bilateral hearing loss. Accordingly, remand is required for the issuance of a SOC and to allow the Veteran the opportunity to perfect an appeal so as to confer jurisdiction of the appeals to the Board. Manlincon v. West, 12 Vet. App. 238 (1999). The matters are REMANDED for the following action: 1. Issue a statement of the case addressing entitlement service connection for ischemic heart disease and service connection for bilateral hearing loss. This issuance should include notification of the need to timely file a substantive appeal on these issues. 2. Obtain an addendum opinion regarding the etiology of the right knee disorder from a VA examiner. The entire claims file must be made available to and be reviewed by the examiner. If an examination is deemed necessary, it shall be provided. An explanation for all opinions expressed must be provided. (a) The examiner must provide an opinion regarding whether it is at least as likely as not (50 percent or greater probability) that the right knee disorder had onset in, or is otherwise related to, active service. (b) The examiner should consider the following: 1) the July 1970 report of medical history endorsing swollen painful joints; 2) the July 1970 STRs noting continuing bilateral knee pain; 3) the January 1982 STRs noting a history of knee problems, and continued pain on both knees; and 4) the November 2020 VA examination. KELLI A. KORDICH Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J. Rogos 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.