Citation Nr: 21074950 Decision Date: 12/16/21 Archive Date: 12/16/21 DOCKET NO. 15-37 968A DATE: December 16, 2021 ORDER As new and material evidence has been received, the claim for entitlement to service connection for left ear hearing loss is reopened; to that extent only, the appeal is granted. As new and material evidence has been received, the claim for entitlement to service connection for posttraumatic stress disorder (PTSD) is reopened; to that extent only, the appeal is granted. As new and material evidence has been received, the claim for entitlement to service connection for a left arm disability, to include a left elbow disability, is reopened; to that extent only, the appeal is granted. As new and material evidence has been received, the claim for entitlement to service connection for a traumatic brain injury (TBI) is reopened; to that extent only, the appeal is granted. As new and material evidence has been received, the claim for entitlement to service connection for a sleep disorder is reopened; to that extent only, the appeal is granted. Entitlement to service connection for a left arm disability, to include a left elbow disability, and to include as secondary to service-connected cervical spine strain, is denied. Entitlement to service connection for an acquired psychiatric disorder, to include PTSD, is denied. Entitlement to service connection for a sleep disorder is denied. Entitlement to an initial compensable evaluation for right knee scar is denied. REMANDED Entitlement to an effective date earlier than July 29, 2016 for the award of the grant of service connection for left lower extremity (LLE) lumbar spine radiculopathy is remanded. Entitlement to an initial evaluation in excess of 10 percent for LLE lumbar spine radiculopathy is remanded. Entitlement to service connection for left ear hearing loss is remanded. Entitlement to a compensable evaluation for right ear hearing loss is remanded. Entitlement to service connection for a TBI is remanded. Entitlement to an evaluation in excess of 20 percent for cervical spine strain is remanded. Entitlement to an evaluation in excess of 10 percent for degenerative lumbar spine is remanded. Entitlement to an evaluation in excess of 30 percent for mini incision right knee total knee replacement is remanded. (A separate decision under a separate docket number will be issued with respect to the issue of whether the overpayment of Department of Veterans Affairs (VA) compensation benefits for the time period during the Veteran's incarceration was properly created.) FINDINGS OF FACT 1. In a February 2011 rating decision, the RO denied the Veteran's claim for entitlement to service connection for left ear hearing loss; the Veteran appealed the decision, but did not perfect his appeal; no new and material evidence was received within one year of the rating decision, and the decision became final. 2. The evidence received since the February 2011 rating decision is not cumulative or redundant of the evidence of record, does relate to an unestablished fact, and does raise a reasonably possibility of substantiating the Veteran's claim of entitlement to service connection for left ear hearing loss. 3. In a February 2011 rating decision, the RO denied the Veteran's claim for entitlement to service connection for PTSD; the Veteran appealed the decision, but did not perfect his appeal; no new and material evidence was received within one year of the rating decision, and the decision became final. 4. The evidence received since the February 2011 rating decision is not cumulative or redundant of the evidence of record, does relate to an unestablished fact, and does raise a reasonably possibility of substantiating the Veteran's claim of entitlement to service connection for PTSD. 5. In a February 2011 rating decision, the RO denied the Veteran's petition to reopen a claim for entitlement to service connection for a left elbow disability; the Veteran appealed the decision, but did not perfect his appeal; no new and material evidence was received within one year of the rating decision, and the decision became final. 6. The evidence received since the February 2011 rating decision is not cumulative or redundant of the evidence of record, does relate to an unestablished fact, and does raise a reasonably possibility of substantiating the Veteran's claim of entitlement to service connection for a left elbow disability. 7. In a February 2011 rating decision, the RO denied the Veteran's claim for entitlement to service connection for a TBI; the Veteran appealed the decision, but did not perfect his appeal; no new and material evidence was received within one year of the rating decision, and the decision became final. 8. The evidence received since the February 2011 rating decision is not cumulative or redundant of the evidence of record, does relate to an unestablished fact, and does raise a reasonably possibility of substantiating the Veteran's claim of entitlement to service connection for a TBI. 9. In a February 2011 rating decision, the RO denied the Veteran's claim for entitlement to service connection for a sleep disorder; the Veteran appealed the decision, but did not perfect his appeal; no new and material evidence was received within one year of the rating decision, and the decision became final. 10. The evidence received since the February 2011 rating decision is not cumulative or redundant of the evidence of record, does relate to an unestablished fact, and does raise a reasonably possibility of substantiating the Veteran's claim of entitlement to service connection for a sleep disorder. 11. The competent and credible evidence does not demonstrate that the Veteran has a current diagnosis for a left arm disability, to include a left elbow disability. 12. The competent and credible evidence does not demonstrate that the Veteran has a current diagnosis for a psychiatric disorder. 13. The competent and credible evidence does not demonstrate that the Veteran has a current diagnosis for a sleep disorder. 14. Throughout the appeal period, the Veteran's right knee scar is not painful or unstable. CONCLUSIONS OF LAW 1. The February 2011 rating decision that denied the claim for entitlement to service connection for left ear hearing loss is final. 38 U.S.C. § 7105; 38 C.F.R. §§ 19.52, 20.1103. 2. New and material evidence has been received to reopen a claim for entitlement to service connection for left ear hearing loss. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. 3. The February 2011 rating decision that denied the claim for entitlement to service connection for PTSD is final. 38 U.S.C. § 7105; 38 C.F.R. §§ 19.52, 20.1103. 4. New and material evidence has been received to reopen a claim for entitlement to service connection for PTSD. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. 5. The February 2011 rating decision that denied the claim for entitlement to service connection for a left elbow disability is final. 38 U.S.C. § 7105; 38 C.F.R. §§ 19.52, 20.1103. 6. New and material evidence has been received to reopen a claim for entitlement to service connection for a left elbow disability. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. 7. The February 2011 rating decision that denied the claim for entitlement to service connection for a TBI is final. 38 U.S.C. § 7105; 38 C.F.R. §§ 19.52, 20.1103. 8. New and material evidence has been received to reopen a claim for entitlement to service connection for a TBI. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. 9. The February 2011 rating decision that denied the claim for entitlement to service connection for a sleep disorder is final. 38 U.S.C. § 7105; 38 C.F.R. §§ 19.52, 20.1103. 10. New and material evidence has been received to reopen a claim for entitlement to service connection for a sleep disorder. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. 11. The criteria for entitlement to service connection for a left arm disability, to include a left elbow disability, have not been met. 38 U.S.C. §§ 1110, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.303. 12. The criteria for entitlement to service connection for an acquired psychiatric disorder, to include PTSD, have not been met. 38 U.S.C. §§ 1110, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.303. 13. The criteria for entitlement to service connection for a sleep disorder have not been met. 38 U.S.C. §§ 1110, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.303. 14. The criteria for entitlement to an initial compensable evaluation for right knee scar have not been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 4.1, 4.2, 4.3, 4.6, 4.7, 4.118, Diagnostic Code 7805. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the U.S. Army from November 1979 to December 1999 with additional service in the Army National Guard from November 1978 to November 1979. These matters come before the Board of Veterans' Appeals (Board) on appeal from rating decisions in August 2016 and December 2018 by the Department of Veterans Affairs (VA) Regional Office (RO). In the August 2016 rating decision, the RO granted service connection for a right knee scar and assigned a noncompensable evaluation, effective April 29, 2016; denied a higher than 30 percent evaluation for mini incision right knee total knee replacement; denied a higher than 20 percent evaluation for cervical spine strain; denied a higher than 10 percent evaluation for degenerative lumbar spine; denied a compensable evaluation for right ear hearing loss; denied service connection for left ear hearing loss; and denied reopening the claims for service connection for a left elbow disability, PTSD, a sleep disorder, and a TBI. The Veteran appealed for higher evaluations and service connection. In the December 2018 rating decision, the Board, in pertinent part, granted service connection for LLE lumbar spine radiculopathy and assigned a 10 percent evaluation, effective July 29, 2016. The Veteran appealed for an earlier effective date and a higher initial evaluation. The August 2016 rating decision reopened the claim for service connection for left ear hearing loss and denied the claim for service connection for left ear hearing loss. Despite the RO's action, the Board must perform its own de novo review of whether new and material evidence has been received to reopen the claim of entitlement to service connection for left ear hearing loss before addressing the claim on its merits. See 38 U.S.C. § 7104; see also Barnett v. Brown, 83 F.3d 1380 (Fed. Cir. 1996). The Veteran testified before the undersigned Veterans Law Judge at an August 2021 Virtual hearing. A transcript of this hearing is of record. Although the issues certified to the Board were for entitlement to service connection for left arm pain now claimed as left elbow and entitlement to service connection for PTSD, in light of Clemons v. Shinseki, 23 Vet. App. 1 (2009), the issues have been recharacterized as entitlement to service connection for a left arm disability, to include a left elbow disability, and entitlement to service connection for an acquired psychiatric disorder, to include PTSD, to comport with the record. In June 2021, the Veteran submitted additional evidence in support of his appeal along with a signed waiver of RO consideration of evidence. The Board accepts this evidence for inclusion in the record. See 38 C.F.R. § 20.1305. Duties to Notify and Assist Pursuant to the Veterans Claims Assistance Act (VCAA), VA has duties to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C. §§ 5102, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.156(a), 3.159. Neither the Veteran nor his representative has raised any issues with the duty to notify or duty to assist. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that "the Board's obligation to read filings in a liberal manner does not require the Board . . . to search the record and address procedural arguments when the veteran fails to raise them before the Board."); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to a duty to assist argument). New and Material Evidence Rating actions are final and binding based on evidence on file at the time the claimant is notified of the decision and may not be revised on the same factual basis except by a duly constituted appellate authority. 38 C.F.R. § 3.104(a). The claimant has one year from notification of a RO decision to initiate an appeal by filing a notice of disagreement (NOD) with the decision, and the decision becomes final if an appeal is not perfected within the allowed time period. 38 U.S.C. § 7105(b) and (c); 38 C.F.R. §§ 3.160(d), 19.20, 19.21, 19.22, 19.52. If new and material evidence is presented or secured with respect to a claim which has been disallowed, the Secretary shall reopen the claim and review the former disposition of the claim. New evidence means existing evidence not previously submitted to agency decisionmakers. Material evidence means existing evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. New and material evidence can be neither cumulative nor redundant of the evidence of record at the time of the last prior final denial of the claim sought to be reopened, and must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a). The U.S. Court of Appeals for Veterans Claims (Court) has held that the determination of whether newly submitted evidence raises a reasonable possibility of substantiating the claim should be considered a component of the question of what is new and material evidence, rather than a separate determination to be made after the Board has found that evidence is new and material. See Shade v. Shinseki, 24 Vet. App. 110 (2010). The Court further held that new evidence would raise a reasonable possibility of substantiating the claim if, when considered with the old evidence, it would at least trigger the Secretary's duty to assist by providing a medical opinion. Id. For the purpose of establishing whether new and material evidence has been submitted, the credibility of the evidence is to be presumed. Justus v. Principi, 3 Vet. App. 510, 513 (1992). 1. Whether new and material evidence has been received to reopen a claim for entitlement to service connection for left ear hearing loss In a February 2011 rating decision, the RO denied the Veteran's original claim for entitlement to service connection for left ear hearing loss, because there was no evidence of left ear hearing loss for VA purposes. That decision is final. Since the Veteran's last prior final denial in February 2011, the record includes August 2021 Board hearing testimony reflecting the Veteran's reports of worsening symptoms of left ear hearing loss and testing reportedly conducted by his former employer six months earlier that showed worsening left ear hearing loss since his last annual hearing test, even though he said he had used hearing protection. The Boards finds that this evidence is new as it was not previously of record and tends to relate to an unestablished fact necessary to substantiate the underlying claim of service connection. The August 2021 Board hearing testimony will be presumed credible for the purpose of reopening the claim. Consequently, the claim of entitlement to service connection for left ear hearing loss is reopened. 2. Whether new and material evidence has been received to reopen a claim for entitlement to service connection for PTSD In a February 2011 rating decision, the RO denied the Veteran's original claim for entitlement to service connection for PTSD, because there was no evidence of a current diagnosis for PTSD. That decision is final. Since the last prior final denial in February 2011, the record includes August 2021 Board hearing testimony reflecting the Veteran's reports of symptoms of hypervigilance, exaggerated startle response, and aggressiveness. He also testified about an in-service incident of being deployed to an airplane crash site to act as the security force and to secure the area. The Boards finds that this evidence is new as it was not previously of record and tends to relate to an unestablished fact necessary to substantiate the underlying claim of service connection. Consequently, the claim of entitlement to service connection for PTSD is reopened. 3. Whether new and material evidence has been received to reopen a claim for entitlement to service connection for a left arm disability, to include a left elbow disability In an August 2001 rating decision, the RO denied the Veteran's original claim for entitlement to service connection for left arm pain, because there was no evidence of a chronic left arm disability that occurred as a result of an in-service left arm injury. That decision is final. In a July 2002 rating decision, the RO denied the Veteran's petition to reopen a claim for entitlement to service connection for left arm pain, because there was no residual disability related to an in-service left arm injury. That decision is final. In a February 2011 rating decision, the RO denied the Veteran's petition to reopen a claim for entitlement to service connection for a left arm pain now claimed as a left elbow disability, because there was no new and material evidence to reopen the claim. That decision is final. Since the last prior final denial in February 2011, the record includes August 2021 Board hearing testimony reflecting the Veteran's reports of being told by his doctors that his left arm and elbow symptoms were related to his cervical spine. The Boards finds that this evidence is new as it was not previously of record and tends to relate to an unestablished fact necessary to substantiate the underlying claim of service connection. Consequently, the claim for entitlement to service connection for a left arm disability, to include a left elbow disability, is reopened. 4. Whether new and material evidence has been received to reopen a claim for entitlement to service connection for a TBI In a February 2011 rating decision, the RO denied the Veteran's original claim for entitlement to service connection for a TBI, because there was no evidence that a TBI occurred in or was caused by service. That decision is final. Since the last prior final denial in February 2011, the record includes August 2021 Board hearing testimony reflecting the Veteran's reports that he had current symptoms of memory problems. He also testified that he had experienced in-service incidents of losing consciousness after hitting the ground while performing Airborne operations and being close to large explosions, where he got "rattled" several times. The Boards finds that this evidence is new as it was not previously of record and tends to relate to an unestablished fact necessary to substantiate the underlying claim of service connection. Consequently, the claim of entitlement to service connection for a TBI is reopened. 5. Whether new and material evidence has been received to reopen a claim for entitlement to service connection for a sleep disorder In a February 2011 rating decision, the RO denied the Veteran's original claim for entitlement to service connection for a sleep disorder, because there was no evidence of a sleep disorder that began in or was caused by military service. That decision is final. Since the last prior final denial in February 2011, the record includes August 2021 Board hearing testimony reflecting the Veteran's reports of current sleep symptoms and noticing that he had sleep problems during the "later years of service." The Boards finds that this evidence is new as it was not previously of record and tends to relate to an unestablished fact necessary to substantiate the underlying claim of service connection. Consequently, the claim of entitlement to service connection for a sleep disorder is reopened. Service Connection Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). Generally, service connection requires: (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. See Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004); see also Caluza v. Brown, 7 Vet. App. 498 (1995). Service connection may also be granted for any disease diagnosed after discharge when the evidence establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Service connection for PTSD requires medical evidence diagnosing the condition; a link, established by medical evidence, between current symptoms and an in-service stressor; and credible supporting evidence that the claimed in-service stressor occurred. 38 C.F.R. § 3.304(f). A diagnosis of PTSD must be established in accordance with 38 C.F.R. § 4.125(a), which provides that all psychiatric diagnoses must conform to the fifth edition of the American Psychiatric Association's Diagnostic and Statistical Manual for Mental Disorders (DSM-5). See 38 C.F.R. § 3.304(f). In addition, service connection may be established on a secondary basis for a disability which is shown to be proximately due to or the result of a service-connected disease or injury. 38 C.F.R. § 3.310. Establishing service connection on a secondary basis requires evidence sufficient to show that a current disability exists and that the current disability was either caused by or aggravated by a service-connected disability. 38 C.F.R. § 3.310; Allen v. Brown, 7 Vet. App. 439 (1995). 6. Entitlement to service connection for a left arm disability, to include a left elbow disability, and to include as secondary to service-connected cervical spine strain The Veteran asserts that his left arm and elbow symptoms are caused by his service-connected cervical spine strain. At the August 2021 Board hearing, the Veteran testified that he had symptoms from his neck all the way down into his left arm. He described how he had burning, tingling, and an inability to do finesse maneuvers. He also had a constant ache. He said that his doctors told him that his left arm symptoms were caused by the compression of his spine. He said that he was not presently receiving treatment for his left arm problems. The question before the Board is whether the Veteran has a current diagnosis for a left arm disability, to include a left elbow disability. Based on a careful review of all the subjective and clinical evidence, the Board finds that the preponderance of the evidence weighs against finding service connection for a left arm disability, to include a left elbow disability, and to include as secondary to service-connected cervical spine strain, is warranted. The Veteran's service treatment records (STRs) document the Veteran's history of left arm problems. In July 1998, the Veteran injured his left elbow and left shoulder in a slow speed motorcycle fall. He was treated for multiple lacerations to his left elbow and forearm and received multiple sutures. He also had a tube placed in his left arm for drainage. An objective evaluation revealed left elbow flexion to 95 degrees and extension to 180 degrees. He was able to supinate and pronate his hands bilaterally. Positive edema below the injury with positive tenderness over the olecranon was noted. The physician diagnosed the Veteran with trauma to the left elbow with an open laceration and an external drain. At subsequent clinic visits in July 1998 and August 1998, the Veteran's laceration to his left elbow was found to be improving and healing well. At a November 1999 separation examination, the Veteran had normal upper extremities clinical evaluations results. On the Veteran's November 1999 report of medical history, the examiner noted that the Veteran had pain and paresthesia of the left forearm. At a November 1999 clinic visit, the Veteran reported having nerve problems in his left arm, characterized as pain and hand weakness, for the past three weeks. He also reported tingling in the left hand. A November 1999 upper extremity electromyography (EMG) report revealed that the Veteran had mild left ulnar neuropathy at the elbow. He was diagnosed with grade II left carpal tunnel syndrome with associated ulnar neuropathy. See December 1999 STR. At an August 2000 VA examination, the Veteran reported having pain, numbness, and tingling in his elbows and wrists, which went down from his shoulders down to his hands. He said that at times, he had poor grip and poor muscle strength. He also sometimes dropped tools while trying to work, and he occasionally had to get assistance from his wife to button his clothes in the morning because of his pain, stiffness, and numbness. Following an objective evaluation, to include an EMG, the Veteran was diagnosed with carpal tunnel syndrome and ulnar neuropathy. At a June 2002 VA examination, the Veteran reported being treated for epicondylitis in his left elbow. The VA examiner noted that the Veteran had undergone surgery for nerve relocation in October 2000. Upon objective evaluation, the VA examiner noted that the Veteran had well-healed surgical incisional scars from the cubital tunnel surgery. No tenderness or effusion was noted. Numbness in the area of the surgery was noted in the posterior aspect of the left elbow around the area of the scar. The VA examiner diagnosed the Veteran with status post carpal tunnel surgeries of both wrists with mild residuals of cramping and status post left cubital tunnel syndrome surgery. At a September 2010 VA examination, the Veteran reported having cervical spine pain radiating to his right shoulder. Following an objective evaluation, the VA examiner diagnosed the Veteran with cervical spine strain and no radiculopathy. At a July 2016 VA examination, the Veteran reported having neck pain occurring more frequently. He denied having any upper extremity pain or cervical radicular symptoms. Following an objective evaluation, the VA examiner found no cervical radiculopathy. An April 2020 EMG report noted that the Veteran had complained of intermittent numbness in the bilateral hands and fingers that had been present for the past several months. The EMG report revealed that the Veteran had moderate, bilateral, sensory-motor median neuropathies across the wrists (carpal tunnel) and moderate, bilateral ulnar neuropathies with slowing of conduction velocities across the elbows (cubital tunnel) without conduction blocks. There was otherwise no evidence for any cervical radiculopathy, brachial plexopathy, myopathy, or diffuse peripheral neuropathy. At a July 2020 private clinic visit, the Veteran's private physician noted that he had personally and independently reviewed the Veteran's April 2020 EMG of the bilateral upper extremities. In addition to the findings of bilateral sensory-motor median neuropathy across the wrist such as carpal tunnel syndrome and bilateral ulnar neuropathy across the elbows such as cubital tunnel syndrome, the private physician found that the results revealed no evidence for radiculopathy, brachial plexopathy, myopathy, or diffuse peripheral neuropathy. The Veteran was diagnosed with carpal tunnel syndrome and ulnar neuropathy of both upper extremities. In October 2020, the Veteran underwent another EMG, which revealed moderate, bilateral sensory-motor mononeuropathies localized to the wrists, i.e., carpal tunnel syndrome and moderate right ulnar mononeuropathy with slowing conduction velocity across the elbow without conduction block, i.e., cubital tunnel syndrome. The left ulnar neuropathy previously found at the elbow had improved. There was otherwise no significant evidence for any radiculopathy, plexopathy, myopathy, or diffuse peripheral neuropathy. As a preliminary matter, the Board noes that the Veteran is currently service-connected for right wrist carpal tunnel syndrome, major, and left carpal tunnel syndrome, minor. No underlying disability has been clinically diagnosed during the appeal period or proximate thereto. McClain v. Nicholson, 21 Vet. App. 319 (2007); Romanowsky v. Shinseki, 26 Vet. App. 289 (2013). Notably, throughout the appeal period, the Veteran's symptoms of left arm and elbow pain, numbness, and tingling have been consistently diagnosed as associated with his service-connected left carpal tunnel syndrome. Further, the record does not include any findings of cervical radiculopathy or any other nerve condition not already associated with his service-connected bilateral carpal tunnel syndrome. Although the Veteran reported how his private doctors had found his left arm problems were related to his cervical spine, his April 2020 and October 2020 EMGs did not find any evidence of cervical radiculopathy. Finally, an independent review of the April 2020 EMG by his private physician confirmed the EMG findings. The Veteran is certainly competent to report his history of left arm and elbow problems. See Layno v. Brown, 6 Vet. App. 465, 470 (1994). However, the Veteran has not demonstrated that he has the requisite specialized knowledge to attribute his symptoms of pain, numbness, and tingling in his left arm and elbows to a separate disability from his service-connected left carpal tunnel syndrome. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). The Veteran has not presented any competent and credible evidence of a current diagnosis for a left arm disability, to include a left elbow disability, and the available evidence does not support that the Veteran has any persistent symptomatology that would suggest that he has an underlying chronic disability, other than that for which he is already service-connected. Accordingly, the Veteran's assertions that he has a left arm disability, to include a left elbow disability, have little probative value. In summary, the preponderance of the evidence weighs against finding in favor of the Veteran's service connection claim for a left arm disability, to include a left elbow disability, and to include as secondary to service-connected cervical spine strain. Therefore, the benefit-of-the-doubt rule does not apply, and the service connection claim must be denied. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). 7. Entitlement to service connection for an acquired psychiatric disorder, to include PTSD The Veteran asserts that he warrants service connection for PTSD. At the August 2021 Board hearing, the Veteran testified that he experienced symptoms of hypervigilance, where he walked into a room and looked up, down, left, and right, avoided or limited time in crowds, was easily jumpy, and did not allow people to get behind him. He said that he was constantly evaluating his surroundings for threats while he drove and did not sit with his back to the door or window in a restaurant. He also described how his wife knew not to wake him by touching him, because "it causes problems." He said that he had not received any mental health treatment. Additionally, the Veteran described how during his active duty service, he was deployed to multiple overseas locations where he was constantly on alert for his next deployment. He said that during one incident during service, he was deployed as part of a security force to an airplane crash site of a government official, where he was charged with securing the site and protecting government property. He recalled how he had to engage with the locals to retrieve some of the property stolen from the aircraft by searching rooms and buildings, an experience that caused him to currently have problems entering rooms and buildings. The question before the Board is whether the Veteran has a current diagnosis for a psychiatric disorder, to include PTSD. Based on a careful review of all the subjective and clinical evidence, the Board finds that the preponderance of the evidence weighs against finding service connection for an acquired psychiatric disorder, to include PTSD, is warranted. The Veteran's STRs do not document any findings related to any complaints, treatment, or diagnosis for mental health problems. At the Veteran's November 1999 separation examination, he had normal psychiatric clinical evaluation results, and there was no pertinent symptomatology identified on his associated report of medical history. At an October 2010 VA psychiatric examination, the Veteran reported that he had a violent temper, which he had learned to control; he did not want to be around people and wanted to be left alone; he had sleeping problems; and he did not do well in crowds and was always on alert and aware of his surroundings. He was reportedly not receiving any mental health treatment. Following a review of the Veteran's claims file and conducting an objective evaluation, the VA examiner found that the Veteran did not currently appear to meet sufficient diagnostic criteria for PTSD. The VA examiner also found that the Veteran had no other psychiatric diagnosis under the DSM-IV criteria. No underlying disability has been clinically diagnosed during the appeal period or proximate thereto. McClain v. Nicholson, 21 Vet. App. 319 (2007); Romanowsky v. Shinseki, 26 Vet. App. 289 (2013). The Veteran is certainly competent to report his history of mental health problems. See Layno v. Brown, 6 Vet. App. 465, 470 (1994). However, the Veteran has not demonstrated that he has the requisite specialized knowledge or training to diagnose a psychiatric disorder. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). The Veteran has not presented any competent and credible evidence of a current diagnosis for a psychiatric disorder, and the available evidence does not support that the Veteran has any persistent symptomatology that would suggest that he has an underlying chronic disability. Accordingly, the Veteran's assertions that he has a psychiatric disorder, to include PTSD, have little probative. In summary, the preponderance of the evidence weighs against finding in favor of the Veteran's service connection claim for an acquired psychiatric disorder, to include PTSD. Therefore, the benefit-of-the-doubt rule does not apply, and the service connection claim must be denied. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). 8. Entitlement to service connection for a sleep disorder The Veteran asserts that he warrants service connection for a sleep disorder. At the August 2021 Board hearing, the Veteran reported that his legs moved constantly at night like he was crawling, moving, walking, running, or fighting. He also experienced periods of sleeplessness, and then he had times where all he wanted to do was sleep. He said that he recalled having sleeping problems in the "later years of service." The Veteran said that his doctor had recommended that he get a sleep study for a diagnosis of restless leg syndrome, because there was medication that could treat the condition, or for sleep apnea. He said that he did not undergo any testing, because he did not believe in those conditions. The question before the Board is whether the Veteran has a current diagnosis for a sleep disorder. Based on a careful review of all the subjective and clinical evidence, the Board finds that the preponderance of the evidence weighs against finding service connection for a sleep disorder is warranted. The Veteran's STRs do not document any findings related to any complaints, treatment, or diagnosis for any sleep problems. At the November 1999 separation examination, no pertinent symptomatology was noted. On the November 1999 report of medical history, the Veteran affirmatively denied having frequent trouble sleeping. VA and private treatment records do not document any findings related to any complaints, treatment, or diagnosis for any sleep problems. No underlying disability has been clinically diagnosed during the appeal period or proximate thereto. McClain v. Nicholson, 21 Vet. App. 319 (2007); Romanowsky v. Shinseki, 26 Vet. App. 289 (2013). Notably, the Veteran testified that he declined to undergo the recommended testing to confirm and treat his sleep problems. The Veteran is certainly competent to report his history of sleep problems. See Layno v. Brown, 6 Vet. App. 465, 470 (1994). However, the Veteran has not demonstrated that he has the requisite specialized knowledge or training to diagnose a sleep disorder. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). The Veteran has not presented any competent and credible evidence of a current diagnosis for a sleep disorder, and the available evidence does not support that the Veteran has any persistent symptomatology that would suggest that he has an underlying chronic disability. Accordingly, the Veteran's assertions that he has a sleep disorder has little probative value. In summary, the preponderance of the evidence weighs against finding in favor of the Veteran's service connection claim for a sleep disorder. Therefore, the benefit-of-the-doubt rule does not apply, and the service connection claim must be denied. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Increased Evaluation 9. Entitlement to an initial compensable evaluation for right knee scar At the August 2021 Board hearing, the Veteran testified that his right knee scar was "not an issue." He said that his right knee scar was not painful. Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities, found in 38 C.F.R., Part 4. The rating 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. Because the level of disability may have varied over the course of the claim, the rating may be "staged" higher or lower for segments of time during the period under review in accordance with such variations. Hart v. Mansfield, 21 Vet. App. 505, 509-10 (2007); Fenderson v. West, 12 Vet. App. 119, 126 (1999). In initial-rating cases, where the appeal stems from a granted claim of service connection with respect to the initial evaluation assigned, VA assesses the level of disability from the effective date of service connection. See Fenderson, 12 Vet. App. at 125; 38 U.S.C. § 5110; 38 C.F.R. § 3.400. The Veteran's right knee scar has been currently evaluated as noncompensable, effective April 29, 2016, under 38 C.F.R. § 4.118, Diagnostic Code 7805. The Board notes that VA amended the criteria for rating skin disabilities effective from August 13, 2018. These new regulations apply to all applications for benefits received by VA or that are pending before the agency of original jurisdiction on or after August 13, 2018. Claims pending prior to the effective date will be considered under both old and new rating criteria, and whatever criteria is more favorable to the veteran will be applied. The Board may not apply a current regulation prior to its effective date, unless the regulation explicitly provides otherwise. Kuzma v. Principi, 341 F.3d 1327 (Fed. Cir. 2003). However, the Board is not precluded from applying prior versions of the applicable regulation to the period on or after the effective dates of the new regulation if the prior version was in effect during the pendency of the appeal. Under both the pre-August 13, 2018 and post-August 13, 2018 rating criteria, Diagnostic Code 7805, for other scars, provides that other effects of scars are evaluated under Diagnostic Codes 7800, 7801, 7802, or 7804. Diagnostic Code 7800 was not changed by the August 13, 2018, amendments. However, Diagnostic Code 7800 pertains to scars or other disfigurement of the head, face, or neck and is not applicable in this case. Prior to August 13, 2018, Diagnostic Code 7801 was for burn scar(s) or scar(s) due to other causes, not of the head, face, or neck, that are deep and nonlinear. Under these criteria, a scar with an area or areas of at least 6 square inches (39 sq. cm.) but less than 12 square inches (77 sq. cm.) warrants a 10 percent rating. A scar with an area or areas of at least 12 square inches (77 sq. cm.) but less than 72 square inches (465 sq. cm.) warrants a 20 percent rating. A scar with an area or areas of at least 72 square inches (465 sq. cm.) but less than 144 square inches (929 sq. cm.) warrants a 30 percent rating. A scar with an area or areas of 144 square inches (929 sq. cm.) or greater warrants a 40 percent rating. 38 C.F.R. § 4.118. Prior to August 13, 2018, Note 1 to Diagnostic Code 7801 instructed that a deep scar is one associated with underlying soft tissue damage. Id. Since August 13, 2018, Diagnostic Code 7801 is for burn scar(s) or scar(s) due to other causes, not of the head, face, or neck, that are associated with underlying soft tissue damage. 38 C.F.R. § 4.118. Diagnostic Code 7801 was otherwise unchanged by the August 13, 2018 amendments. Prior to August 13, 2018, Diagnostic Code 7802 was for burn scar(s) or scar(s) due to other causes, not of the head, face, or neck, that were superficial and nonlinear. Under these criteria, a scar with an area or areas of 144 square inches (929 sq. cm.) or greater warrants a 10 percent rating. 38 C.F.R. § 4.118. Note 1 to Diagnostic Code 7802 instructed that a superficial scar was one not associated with underlying soft tissue damage. Id. Since August 13, 2018, Diagnostic Code 7802 is for burn scar(s) or scar(s) due to other causes, not of the head, face, or neck, that are not associated with underlying soft tissue damage. 38 C.F.R. § 4.118. Diagnostic Code 7802 was otherwise unchanged by the August 13, 2018 amendments. Diagnostic Code 7803 was removed from the diagnostic criteria as of October 23, 2008. Diagnostic Code 7804 was not changed by the August 13, 2018 amendments. Under Diagnostic Code 7804, one or two scars that are unstable or painful scars warrants a 10 percent rating. Three or four scars that are unstable or painful scars warrants a 20 percent rating. Five or more scars that are unstable or painful warrants a 30 percent rating. An unstable scar is one where, for any reason, there is frequent loss of covering of skin over the scar. 38 C.F.R. § 4.118., Diagnostic Code 7804, Note 1. If one or more scars are both unstable and painful, add 10 percent to the evaluation that is based on the total number of unstable or painful scars. Id. at Note 2. Scars evaluated under diagnostic codes 7800, 7801, 7802, or 7805 may also receive an evaluation under this diagnostic code, when applicable. Id. at Note 3. Diagnostic Code 7805 was not changed by the August 13, 2018 amendments. Diagnostic Code 7805 instructs that any disabling effect(s) not considered in a rating provided under Diagnostic Codes 7800-04 are to be evaluated under an appropriate diagnostic code. Based on a careful review of all the subjective and clinical evidence, the Board finds that throughout the appeal period, the Veteran's right knee scar does not warrant an initial compensable evaluation under Diagnostic Codes 7801 to 7805 under either pre-August 13, 2018 or post-August 13, 2018 rating criteria. According to the clinical findings in July 2016, October 2018, and October 2019 VA examinations, the Veteran had one scar located at the right anterior knee, which measured 23 x 0.5 cm. (July 2016 VA examination), 24 x 0.025 cm. (October 2018 VA examination), and 22 x 0.2 cm. (October 2019 VA examination). The scar was not painful or unstable. Given the above findings, the Board finds that the Veteran's right knee scar does not exhibit any underlying soft tissue damage (Diagnostic 7801), does not cover an area or areas of 144 square inches or greater (Diagnostic 7802), and is not unstable or painful (Diagnostic 7804). Therefore, Diagnostic Code 7801 through 7804, both prior to and from August 13, 2018, are inapplicable. Finally, the evidence of record shows that there are no other disabling effects not considered in a rating provided under Diagnostic Code 7800 to 7804 as contemplated under both pre- and post-August 13, 2018. See 38 C.F.R. § 4.118, Diagnostic Code 7805. The Board finds that there is no basis upon which to award a compensable evaluation for the Veteran's right knee scar under Diagnostic Codes 7801 to 7805. Accordingly, throughout the appeal period, the Veteran's right knee scar remains noncompensable. The Board has considered whether any other relevant diagnostic codes may afford the Veteran a compensable evaluation for his right knee scar. However, given that there were no findings related to any current treatment or complications associated with the Veteran's right knee scar, the Board finds that there are no other applicable diagnostic codes. In summary, the preponderance of the evidence weighs against finding in favor of the Veteran's initial compensable evaluation claim for right knee scar. Therefore, the benefit-of-the-doubt rule does not apply, and the initial compensable evaluation claim must be denied. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). REASONS FOR REMAND 1. Entitlement to an effective date earlier than July 29, 2016 for the award of the grant of service connection for LLE lumbar spine radiculopathy is remanded. 2. Entitlement to an initial evaluation in excess of 10 percent for LLE lumbar spine radiculopathy is remanded. As discussed above, in a December 2018 rating decision, the RO granted service connection for LLE lumbar spine radiculopathy. In a December 2019 NOD, the Veteran appealed for an earlier effective date for the award of the grant of service connection for LLE lumbar spine radiculopathy and a higher initial evaluation for LLE lumbar spine radiculopathy. However, a careful review of the record shows that the RO has not issued a statement of the case (SOC) with regard to the issues of entitlement to an effective date earlier than July 29, 2016 for the award of the grant of service connection for LLE lumbar spine radiculopathy and entitlement to an initial evaluation in excess of 10 percent for LLE lumbar spine radiculopathy. See Manlincon v. West, 12 Vet. App. 238 (1999). Therefore, these matters are remanded for issuance of a SOC. 3. Entitlement to service connection for left ear hearing loss is remanded. At a July 2016 VA audiological examination, the VA examiner diagnosed the Veteran with left ear sensorineural hearing loss, but the diagnosis did not comport with VA regulations. See 38 C.F.R. § 3.385. At an August 2021 Board hearing, the Veteran testified that he had undergone a hearing test at his former job six months earlier that showed his left ear hearing loss had worsened since his last annual hearing test. The Veteran's exposure to hazardous noise during active duty service has been established. Because the Veteran contends that his left ear hearing loss has worsened, the Board finds that a remand is required to obtain another VA examination to determine whether his current left ear hearing loss now meets VA standards. See McLendon v. Nicholson, 20 Vet. App. 79 (2006). 4. Entitlement to a compensable evaluation for right ear hearing loss is remanded. The Veteran's claim for a compensable evaluation for right ear hearing loss may be affected by the outcome of the service connection claim for left ear hearing loss. It would be premature to adjudicate the claim for a compensable evaluation for right ear hearing loss until the service connection claim for left ear hearing loss has been considered. Therefore, the issues are inextricably intertwined, and the claim for a compensable evaluation for right ear hearing loss must also be remanded. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991). 5. Entitlement to service connection for a TBI is remanded. At the August 2021 Board hearing, the Veteran testified that he had experienced in-service incidents of loss of consciousness after hitting the ground while performing Airborne operations. He also described how during service he had been close to large explosions and was "rattled" several times. The Veteran's STRs document how he had been diagnosed with post-concussion syndrome in 1986 and had a head trauma with loss of consciousness for six hours following a bicycle accident in 1988. Currently, the Veteran said he had been having memory problems. The record does not include a VA examination to confirm whether the Veteran has a TBI, or any residuals thereof. The Board finds that the available competent evidence is insufficient to decide the claim. Because the evidence suggests that the Veteran has symptoms that may be related to a TBI that occurred during service, a remand is required to afford the Veteran a VA examination. See McLendon v. Nicholson, 20 Vet. App. 79 (2006). 6. Entitlement to an evaluation in excess of 20 percent for cervical spine strain is remanded. The Veteran's last VA examination for his service-connected cervical spine strain was in July 2016. At the August 2021 Board hearing, the Veteran testified that his cervical spine range of motion had worsened over the years. VA is required to afford the Veteran a contemporaneous VA examination to assess the current nature, extent, and severity of his service-connected disability. See Palczewski v. Nicholson, 21 Vet. App. 174, 181 (2007); Snuffer v. Gober, 10 Vet. App. 400, 403 (1997); see also 38 C.F.R. § 3.326(a). As the Veteran's cervical spine strain may have worsened since his last VA examination, a remand is required to determine the current severity of his service-connected disability. 7. Entitlement to an evaluation in excess of 10 percent for degenerative lumbar spine is remanded. In July 2016, the Veteran was last afforded a VA examination for his degenerative lumbar spine. However, the VA examiner noted that no records had been reviewed. The Veteran, through his attorney, explained that the July 2016 VA examiner did not consider medical records from Florida Diagnostic Imaging, which showed that the Veteran experienced moderate stenosis, mild disc intrusion, and nerve impingement. See August 2017 correspondence. Moreover, since the July 2016 VA examination, the Veteran has reported having urinary incontinence associated with his degenerative lumbar spine. See March 2018, July 2019, July 2020, August 2020, and March 2021 private treatment records and August 2021 Board hearing. VA is required to afford the Veteran a contemporaneous VA examination to assess the current nature, extent, and severity of his service-connected disability. See Palczewski v. Nicholson, 21 Vet. App. 174, 181 (2007); Snuffer v. Gober, 10 Vet. App. 400, 403 (1997); see also 38 C.F.R. § 3.326(a). As the Veteran's degenerative lumbar spine may have worsened since his last VA examination, a remand is required to determine the current severity of his service-connected disability. 8. Entitlement to an evaluation in excess of 30 percent for mini incision right knee total knee replacement is remanded. In October 2019, the Veteran was provided a VA examination for his service-connected mini incision right knee total knee replacement. However the Board finds that the October 2019 VA examination was inadequate for rating purposes. The October 2019 VA examiner discussed the Veteran's two in-service right knee arthroscopic surgeries in 1992 and 1994; however, the VA examiner did not address the Veteran's post-service 2006 right knee total knee replacement and 2010 revision. As a result, the VA examiner also did not provide any information on any residuals from those surgeries. Based on the above, the Board finds that the October 2019 VA examination is inadequate, because it did not provide the necessary information to make a decision on the claim. See Stefl v. Nicholson, 21 Vet. App. 120, 123-24 (2007). Therefore, a remand is required to obtain a new VA examination to evaluate the Veteran's service-connected mini incision right knee total knee replacement. The matters are REMANDED for the following actions: 1. Issue the Veteran an SOC, to include notification of the need to timely file a Substantive Appeal, regarding the issues of entitlement to an effective date earlier than July 29, 2016 for the award of the grant of service connection for LLE lumbar spine radiculopathy and entitlement to an initial evaluation in excess of 10 percent for LLE lumbar spine radiculopathy. The issues shall not be returned to the Board unless a sufficient Substantive Appeal is submitted. 2. Obtain all the outstanding treatment records for the Veteran's bilateral hearing loss, TBI, cervical spine strain, degenerative lumbar spine, and mini incision right knee total knee replacement that are not currently of record, including hearing tests conducted by the Veteran's former employer as reported at the August 2021 Board hearing. 3. Schedule the Veteran for a VA examination by an appropriately qualified clinician (M.D.) for his left ear hearing loss. The examiner should respond to the following: (a.) Does the Veteran have a current diagnosis for left ear hearing loss that comports with VA regulations under 38 C.F.R. § 3.385? (b.) Is it at least as likely as not (50 percent probability or greater) that the Veteran's currently diagnosed left ear hearing loss had its onset during active duty service or was otherwise etiologically related to service, to include military noise exposure? In providing the above opinion, the examiner should note that the Veteran's exposure to hazardous noise during active duty service has already been established. If it is the opinion of the examiner that the Veteran's current left ear hearing loss is not related to in-service acoustic trauma, a rationale must be provided to fully explain why the Veteran's current symptomatology is not consistent with in-service noise exposure or why such exposure is not at least a "contributing factor" to any current hearing loss. A complete rationale with discussion of medical literature for any opinion expressed must be provided. If an opinion cannot be expressed without resort to speculation, discuss why this is the case. 4. Schedule the Veteran for a VA examination by an appropriately qualified clinician (M.D.) for his TBI. The examiner should respond to the following: (a.) Does the Veteran have a TBI, or any residuals thereof? If so, please identify. (b.) Is it at least as likely as not (50 percent or greater probability) that the Veteran's TBI, or any residuals thereof, had its onset during active duty service or was otherwise etiologically related to service? In providing the above opinions, the examiner should address the Veteran's STRs in 1986 to 1999 documenting his treatment for post-concussion syndrome and head trauma with loss of consciousness. The examiner should also address the Veteran's August 2021 Board hearing testimony that during service he had loss of consciousness after hitting the ground while performing Airborne operations and had been close to large explosions and was "rattled" several times. A complete rationale with discussion of medical literature for any opinion expressed must be provided. If an opinion cannot be expressed without resort to speculation, discuss why this is the case. 5. Schedule the Veteran for a VA examination by an appropriate clinician (M.D.) to determine the current severity of his service-connected cervical spine strain, degenerative lumbar spine, and mini incision right knee total knee replacement. The examiner should provide a full description of the disabilities and report all signs and symptoms necessary for evaluating the Veteran's disabilities under the rating criteria. The examiner should also state whether the examination is taking place during a period of flare-up. If not, the examiner should ask the Veteran to describe the flare-ups he experiences, including: frequency, duration, characteristics, precipitating and alleviating factors, severity and/or extent of functional impairment he experiences during a flare-up of his cervical spine, lumbar spine, and right knee symptoms and/or after repeated use over time. Based on the Veteran's lay statements and the other evidence of record, the examiner should provide an opinion estimating any additional degrees of limited motion caused by functional loss during a flare-up or after repeated use over time. If it is not possible to provide a specific measurement, or an opinion regarding flare-ups, symptoms, or functional impairment without speculation, the examiner must state whether the need to speculate is due to a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts), a deficiency in the record (additional facts are required), or the examiner does not have the knowledge or training. The examiner should comment on the extent of any functional impairment caused by the Veteran's service-connected cervical spine strain, degenerative lumbar spine, and mini incision right knee total knee replacement, to include in an occupational setting and in performing ordinary, daily activities. The examiner should discuss any neurologic abnormalities associated with the Veteran's service-connected degenerative lumbar spine, to include his reported urinary incontinence. The examiner should comment on the Veteran's private treatment records in March 2018, July 2019, July 2020, August 2020, and March 2021 documenting his associated urinary incontinence. All findings should be fully documented in the examination report. 6. To avoid another remand, the Agency of Original Jurisdiction (AOJ) must review the requested development and ensure that the Board's specific instructions have been completed in full. If any development is found to be inadequate, it must be returned to the providing examiner for corrective action. If such corrective action is not requested, then the Board will be required to return the case to the AOJ for substantial compliance with its remand instructions. See Stegall v. West, 11 Vet. App. 268 (1998). 7. After ensuring the above development has been completed, readjudicate the issues on appeal, to include the inextricably intertwined issue of entitlement to a compensable evaluation for right ear hearing loss. If the benefits sought on appeal are not granted to the Veteran's satisfaction, send the Veteran and his representative a supplemental statement of the case and provide an opportunity to respond. Then, return the case to the Board for further appellate review. LESLEY A. REIN Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Journet Shaw, 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.