Citation Nr: 21077592 Decision Date: 12/30/21 Archive Date: 12/30/21 DOCKET NO. 17-64 315 DATE: December 30, 2021 ORDER A higher initial rating in excess of 10 percent for right knee tendonitis (right knee disability) is denied. A higher initial rating in excess of 10 percent for left knee tendonitis (left knee disability) is denied. A separate compensable disability rating for right knee instability is denied. A separate compensable disability rating for left knee instability is denied. A higher initial disability rating in excess of 50 percent for posttraumatic stress disorder (PTSD) is denied. Special monthly compensation (SMC) based on the need for aid and attendance is dismissed. Service connection for alopecia is dismissed. Service connection for jaw pain is dismissed. REMANDED Service connection for obstructive sleep apnea, to include as secondary to the service-connected knee disabilities and/or PTSD, is remanded. A higher (compensable) initial rating for right ear hearing loss is remanded. Service connection for left ear hearing loss is remanded. A total disability rating based on individual unemployability due to service-connected disabilities (TDIU) is remanded. FINDINGS OF FACT 1. For the entire initial rating period on appeal from September 14, 2016, the right knee tendonitis disability has been manifested by flexion greater than 60 degrees, extension less than 15 degrees and painful motion, without ankylosis, dislocation or removal of semilunar cartilage, nonunion or malunion of the tibia and fibular, or genu recurvatum. 2. For the entire initial rating period on appeal from September 14, 2016, the left knee tendonitis disability has been manifested by flexion greater than 60 degrees, extension less than 15 degrees and painful motion, without ankylosis, dislocation or removal of semilunar cartilage, nonunion or malunion of the tibia and fibular, or genu recurvatum. 3. For the entire initial rating period on appeal from September 14, 2016, the right knee has not been manifested by slight instability. 4. For the entire initial rating period on appeal from September 14, 2016, the left knee has not been manifested by slight instability. 5. For the entire initial rating period on appeal from September 14, 2016, the PTSD has manifested in symptoms that more nearly approximate occupational and social impairment with reduced reliability and productivity, and the severity of the PTSD has not caused occupational and social impairment with deficiencies in most areas. 6. Per the July 2021 Board testimony, prior to the promulgation of a decision in the present appeal, the Veteran asked to withdraw the issue of entitlement to SMC based on the need for aid and attendance. 7. Per the July 2021 Board testimony, prior to the promulgation of a decision in the present appeal, the Veteran asked to withdraw the issue of service connection for alopecia. 8. Per the July 2021 Board testimony, prior to the promulgation of a decision in the present appeal, the Veteran asked to withdraw the issue of service connection for jaw pain. CONCLUSIONS OF LAW 1. For the entire initial rating period on appeal from September 14, 2016, the criteria for a higher initial disability rating in excess of 10 percent for the right knee tendonitis disability have not been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 3.159, 3.321, 3.326(a), 4.3, 4.7, 4.14, 4.21, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5024-5260. 2. For the entire initial rating period on appeal from September 14, 2016, the criteria for a higher initial disability rating in excess of 10 percent for the left knee tendonitis disability have not been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 3.159, 3.321, 3.326(a), 4.3, 4.7, 4.14, 4.21, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5024-5260. 3. For the entire initial rating period on appeal from September 14, 2016, the criteria for a separate 10 percent disability rating for slight instability of the right knee have not been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.321, 3.326(a), 4.3, 4.7, 4.14, 4.21, 4.71a, Diagnostic Code 5257. 4. For the entire initial rating period on appeal from September 14, 2016, the criteria for a separate 10 percent disability rating for slight instability of the left knee have not been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.321, 3.326(a), 4.3, 4.7, 4.14, 4.21, 4.71a, Diagnostic Code 5257. 5. For the entire initial rating period from September 14, 2016 forward, the criteria for a higher initial disability rating in excess of 50 percent for PTSD have not been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 4.3, 4.7, 4.130, Diagnostic Code 9411. 6. The criteria for withdrawal of a substantive appeal have been met regarding the appeal for SMC based on the need for aid and attendance. 38 U.S.C. § 7105; 38 C.F.R. § 19.55. 7. The criteria for withdrawal of a substantive appeal have been met regarding the appeal for service connection for alopecia. 38 U.S.C. § 7105; 38 C.F.R. § 19.55. 8. The criteria for withdrawal of a substantive appeal have been met regarding the appeal for service connection for jaw pain. 38 U.S.C. § 7105; 38 C.F.R. § 19.55. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran, who is the appellant, served on active duty from November 2013 to September 2016. Disability Rating Legal Criteria Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (Rating Schedule) found in 38 C.F.R. Part 4. 38 U.S.C. § 1155. It is not expected that all cases will show all the findings specified; however, findings sufficiently characteristic to identify the disease and the disability therefrom and coordination of rating with impairment of function will be expected in all instances. 38 C.F.R. § 4.21. Where there is a question as to which of two disability ratings shall be applied, the higher rating will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. It is the defined and consistently applied policy of VA to administer the law under a broad interpretation, consistent, however, with the facts shown in every case. When after careful consideration of all procurable and assembled data, a reasonable doubt arises regarding the degree of disability such doubt will be resolved in favor of the claimant. 38 C.F.R. § 4.3. When evaluating disabilities of the musculoskeletal system, 38 C.F.R. § 4.40 allows for consideration of functional loss due to pain and weakness causing additional disability beyond that reflected on range of motion measurements. DeLuca v. Brown, 8 Vet. App. 202 (1995); Mitchell v. Shinseki, 25 Vet. App. 32 (2011). Further, 38 C.F.R. § 4.45 provides that consideration also be given to decreased movement, weakened movement, excess fatigability, incoordination, and pain on movement, swelling, and deformity or atrophy of disuse. Painful motion is considered limited motion at the point that pain actually sets in. See VAOPGCPREC 9-98. 1. Rating the right knee disability 2. Rating the left knee disability For the entire initial rating period on appeal from September 14, 2016, the Veteran is in receipt of initial 10 percent disability ratings for the right and left knee tendonitis disabilities under the substantive rating criteria of Diagnostic Code 5003 (10 percent for painful, noncompensable limitation of motion). 38 C.F.R. § 4.71a. The Regional Office (RO) assigned 10 percent ratings for the right and left knee disabilities for limitation of flexion under Diagnostic Code 5024-5260 for the rating period from September 14, 2016 in the January 2017 rating decision on appeal; however, the rating decision and evidence of record shows the 10 percent ratings were assigned actually using the substantive rating criteria of Diagnostic Code 5003. Hyphenated Diagnostic Codes are used when a rating under one Code requires use of an additional Diagnostic Code to identify the basis for the rating assigned. 38 C.F.R. § 4.27. The additional Code, shown after the hyphen, represents the basis for the rating, while the primary Code indicates the underlying source of the disability. The reasons and bases analysis in the January 2017 rating decision shows that the criteria of Diagnostic Code 5003 were used. Diagnostic Code 5003 provides for a 10 percent rating for a major joint (includes the knee) where there is pain with noncompensable limitation of motion. 38 C.F.R. § 4.71a. The evidence in this case shows only noncompensable limitation of right and left knee flexion and extension; therefore, use of Diagnostic Codes 5260 or 5261 with the 10 percent rating is not appropriate until the evidence shows actual compensable limitation of motion. The appropriate diagnostic codes for rating compensable limitation of motion of the knees are Diagnostic Codes 5260 and 5261. 38 C.F.R. § 4.71a. Normal range of motion of the knee is from 0 degrees of extension to 140 degrees of flexion. 38 C.F.R. § 4.71, Plate II. In VAOPGCPREC 9-2004, the VA General Counsel interpreted that, when considering Diagnostic Codes 5260 and 5261 together with 38 C.F.R. § 4.71, a veteran may receive a rating for limitation in flexion only, limitation of extension only, or, if the 10 percent criteria are met for both limitations of flexion and extension, separate ratings for limitations in both flexion and extension under Diagnostic Code 5260 (leg, limitation of flexion) and Diagnostic Code 5261 (leg, limitation of extension). Under Diagnostic Code 5260, limitation of knee flexion is rated 30 percent disabling where flexion is limited to 15 degrees; 20 percent disabling where flexion is limited to 30 degrees; 10 percent disabling where flexion is limited to 45 degrees; and noncompensable where flexion is limited to 60 degrees. 38 C.F.R. § 4.71a. Under Diagnostic Code 5261, limitation of knee extension is rated 50 percent disabling where extension is limited to 45 degrees; 40 percent disabling where extension is limited to 30 degrees; 30 percent disabling where extension is limited to 20 degrees; 20 percent disabling where extension is limited to 15 degrees; 10 percent disabling where extension is limited to 10 degrees; and noncompensable where extension is limited to 5 degrees. 38 C.F.R. § 4.71a. Diagnostic Code 5257 contemplates "other impairment" of the knee including recurrent subluxation or lateral instability. Under Diagnostic Code 5257, where impairment is severe, moderate or slight, disability evaluations of 30, 20, and 10 percent are assigned, respectively. 38 C.F.R. § 4.71a. Diagnostic Code 5262 contemplates impairment of the tibia and fibula, assigning a 40 percent rating for nonunion of the tibia and fibula, and 10, 20, and 30 percent ratings for slight, moderate or marked knee or ankle disabilities. The words "slight," "moderate," "severe," and "marked" as used in the various diagnostic codes are not defined in the VA Rating Schedule. Rather than applying a mechanical formula, the Board must evaluate all of the evidence for "equitable and just decisions." Id. Under Diagnostic Code 5256, disability ratings are assigned when ankylosis is present. Id. Diagnostic Code 5258 provides a 20 percent disability rating when a dislocated semilunar cartilage is present with frequent episodes of "locking," pain, and effusion into the joint. Id. Diagnostic Code 5259 provides for a 10 percent disability rating when semilunar cartilage has been removed and related symptoms are present. Id. A 10 percent disability rating is assigned under Diagnostic Code 5263 when genu recurvatum is identified. Id. Diagnostic Code 5003 provides a rating of 10 percent for a knee (major) joint where there is evidence of painful, but noncompensable limitation of motion. 38 C.F.R. § 4.71a. See also 38 C.F.R. § 4.59 (providing that painful motion should be considered limitation of motion, with a 10 percent rating as the minimum rating for a painful major joint); Burton v. Shinseki, 25 Vet. App. 1 (2011). After a review of all the lay and medical evidence of record, the Board finds that, for the entire initial rating period on appeal from September 14, 2016, the right and left knee disabilities have been manifested by flexion greater than 60 degrees, extension less than 15 degrees and painful motion, without ankylosis, dislocation or removal of semilunar cartilage, nonunion or malunion of the tibia and fibula, or genu recurvatum. Accordingly, the Board finds that for the entire initial rating period on appeal from September 14, 2016, the criteria for separate 10 percent ratings or higher initial disability ratings in excess of 10 percent for the right and left knee disabilities have not been met under Diagnostic Codes 5260 or 5261. 38 C.F.R. §§ 4.3, 4.7, 4.71a. An October 2016 VA examination report reflects the Veteran reported constant knee pain that was worse with walking more than 30 minutes or when climbing stairs. Ranges of motion in the right and left knees were normal in all planes tested, with pain noted upon examination that did not cause functional loss. The Veteran underwent another VA examination in July 2017, the examination report for which reflects ranges of motion in the right knee were measured to 90 degrees of flexion and 105 degrees of extension, and ranges of motion in the left knee were measured to 90 degrees of flexion and 95 degrees of extension, with pain noted upon examination that caused functional loss. The ranges of motion recorded during this examination are not reliable, as they significantly depart from the other ranges of motion measurements in the right and left knees recorded before and after the July 2017 VA examination, and are internally inconsistent. Specifically, extension in the right and left knees were measured beyond the points where flexion was measured, which necessarily indicates that the right and left knees either had more flexion than what was measured, or had less limitation of extension than what was recorded. For these reasons, the Board finds that the range of motion measurements in the July 2017 VA examination report are not valid for rating purposes. In October 2017, the Veteran was provided with another VA examination, the report for which reflects the Veteran complained of sharp, intermittent pain in the knees that worsened with climbing stairs, squatting, and high impact activities. The Veteran denied mechanical symptoms of instability and loss of distal motor or sensory function. Ranges of motion in the right knee were measured to 70 degrees of flexion and 10 degrees of extension, with pain noted upon examination that caused functional loss. Ranges of motion in the left knee were also measured to 70 degrees of flexion and 10 degrees of extension, with pain noted upon examination that caused functional loss. A January 2019 VA examination report shows the Veteran endorsed episodes of flare ups described as sharp stabbing pain after 30 minutes of sitting or standing or following prolonged walking. Flexion in the right and left knees were measured to 95 degrees, with extension measured to 10 degrees and pain noted upon examination that caused functional loss. While the January 2019 VA examiner found that the right and left knees would have additional loss of function following repetitive use over time and during episodes of flare ups, the VA examiner did not describe the additional loss in ranges of motion. An October 2019 private treatment record shows right knee flexion measured to 110 degrees with full extension and left knee flexion measured to 105 degrees with full extension. A November 2019 private treatment record reflects right knee flexion measured to 123 of flexion with full extension and left knee flexion measured to 120 degrees with full extension. A December 2019 private treatment record reflects flexion in the right and left knees were measured to 130 degrees, with full extension in both knees. A February 2020 private treatment record similarly shows right and left knee flexion measured to 130 degrees with full extension. The Veteran underwent another VA examination in March 2020, during which the Veteran reported knee pain that was worse with weightbearing and that he uses a cane on a daily basis to assist with ambulation. The Veteran endorsed episodes of flare ups described as the knees locking up when climbing stairs. Flexion in the right and left knees were measured to 70 degrees, and extension was measured to 0 degrees with pain noted upon examination that caused functional loss. Although the VA examiner assessed that pain would significantly limit functional ability during episodes of flare ups, the VA examiner assessed that additional limitation in functional ability did not cause additional loss of motion in either the right or left knees. The March 2020 VA examiner also noted that the lack of motion in the right and left knees were significantly out of proportion to the nature of the diagnosed knee disabilities and may have been a result of incomplete effort. An August 2020 VA treatment record reflects the Veteran complained of bilateral knee pain that was worse in the morning. The Veteran reported having difficulty reaching his feet due to pain and pressure placed on the knees when bending over. Ranges of motion in the right and left knees were measured to 90 degrees of flexion and full extension. The examiner also found full strength in the lower extremities and good balance. The Board has considered whether higher disability ratings for the right or left knees are 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, 4.45, and 4.59. See also DeLuca. While the right and left knee tendonitis disabilities have caused pain which has restricted overall motion, and the Veteran has reported right and left knee pain and difficulty with walking and standing for a long period of time, even taking into account additional functional limitation due to pain, following repetitive use, and during episodes of flare ups, the lay and medical evidence, including as shown in the VA treatment records, private treatment records, and VA examination reports, indicate ranges of motion that do not more nearly approximate the 20 percent criteria, or separate 10 percent criteria for both compensable limitation of flexion with compensable limitation of extension. Based on the evidence discussed above, the degree of functional impairment does not warrant higher initial ratings based on limitation of motion of the right or left knees. The weight of the evidence of record shows that the Veteran had, at worst, right knee flexion to 70 degrees and 10 degrees of extension, and left knee flexion to 70 degrees and 10 degrees of extension, as noted in the October 2007 VA examination report, which does not more nearly approximate limitation to 30 degrees of flexion or 15 degrees of extension as needed for higher initial (20 percent) ratings. For these reasons, higher initial disability ratings in excess of 10 percent are not warranted under either Diagnostic Code 5260 (limitation of flexion) or Diagnostic Code 5261 (limitation of extension) for the right or left knees, or separate 10 percent ratings for both knee flexion and knee extension, for the entire initial rating period from September 14, 2016. 38 C.F.R. § 4.71a. 3. Whether a separate rating for right knee instability 4. Whether a separate rating for left knee instability The Board has also considered whether separate disability ratings are warranted for any other right and/or left knee disability. The Veteran testified during the July 2021 Board hearing that he experiences laxity and instability in the right and left knees, that he uses knee braces and a cane, and has a handicap placard due to his knee disabilities. At the outset, the Board finds that the evidence of record does not reflect that the right or left knee is ankylosed, has recurrent subluxation, that the semilunar cartilage is dislocated, that the semilunar cartilage has been removed, that there is malunion or nonunion of the tibia and fibula, that there is a current diagnosis of genu recurvatum, and/or that the right and/or left knee disabilities have been manifested by limitation of flexion or extension to a compensable degree, or locking or effusion, separate or increased disability ratings are not warranted under Diagnostic Codes 5256, 5258, 5259, 5261, 5262, or 5263. 38 C.F.R. § 4.71a. As noted above, Diagnostic Code 5257 contemplates "other impairment" of the knee including recurrent subluxation or lateral instability. Under Diagnostic Code 5257, where impairment is severe, moderate, or slight, disability ratings of 30, 20, and 10 percent are assigned, respectively. 38 C.F.R. § 4.71a. Effective February 7, 2021, VA revised the portion of the Schedule for Rating Disabilities that addresses the musculoskeletal system. The amendments divided Diagnostic Code 5257 into two subsections recurrent subluxation or instability and patellar instability, each with its own criteria. Schedule for Rating Disabilities: Musculoskeletal System and Muscle Injuries, 85 Fed. Reg. 76453, 76463 (Nov. 30, 2020) (to be codified at 38 C.F.R. § 4.71a, Diagnostic Code 5257). For recurrent subluxation or instability, three ratings are available. A 10 percent rating is warranted for a sprain, incomplete ligament tear, or complete ligament tear (repaired, unrepaired, or failed repair) causing persistent instability, without a prescription from a medical provider for an assistive device (e.g., cane(s), crutch(es), walker) or bracing for ambulation. A 20 percent is warranted under one of two scenarios: sprain, incomplete ligament tear, or repaired complete ligament tear causing persistent instability, and a medical provider prescribes a brace and/or assistive device (e.g., cane(s), crutch(es), walker) for ambulation; or unrepaired or failed repair of complete ligament tear causing persistent instability, and a medical provider prescribes either an assistive device (e.g., cane(s), crutch(es), walker) or bracing for ambulation. A 30 percent rating is warranted for unrepaired or failed repair of complete ligament tear causing persistent instability, and a medical provider prescribes both an assistive device (e.g., cane(s), crutch(es), walker) and bracing for ambulation. For patellar instability, three ratings are available. A 10 percent rating is warranted for a diagnosed condition involving the patellofemoral complex with recurrent instability (with or without history of surgical repair) that does not require a prescription from a medical provider for a brace, cane, or walker. A 20 percent rating is warranted for a diagnosed condition involving the patellofemoral complex with recurrent instability after surgical repair that requires a prescription by a medical provider for one of the following: a brace, cane, or walker. A 30 percent rating is warranted for a diagnosed condition involving the patellofemoral complex with recurrent instability after surgical repair that requires a prescription by a medical provider for a brace and either a cane or a walker. Two Notes accompany the revised Diagnostic Code 5257. Note 1 states that for patellar instability, the patellofemoral complex consists of the quadriceps tendon, the patella, and the patellar tendon. Note 2 states that a surgical procedure that does not involve repair of one or more patellofemoral components that contribute to the underlying instability shall not qualify as surgical repair for patellar instability (including, but not limited to, arthroscopy to remove loose bodies and joint aspiration). After a review of all the lay and medical evidence of record, the Board finds that the weight of the evidence demonstrates that the right and left knees did not manifest in slight instability as set forth under Diagnostic Code 5257 prior to February 7, 2021. The Board further finds that the right and left knees did not manifest in recurrent subluxation, instability, or patellar instability as set forth under Diagnostic Code 5257 as of February 7, 2021. Although VA examination reports, VA treatment records, and private treatment records throughout the relevant rating period on appeal show that the Veteran has consistently reported subjective complaints of knee joint instability and giving out and has been observed to use knee braces and a cane, these same records repeatedly reflect that right and left knee joint stability testing have shown no instability in either the right or left knees. The October 2016 and July 2017 VA examination reports reflect negative findings for subluxation, instability, and recurrent effusion; joint stability testing was performed and no instability was found. The October 2017, January 2019, March 2020 VA examination report shows negative findings for recurrent subluxation, lateral instability, and joint stability testing performed that showed no right or left knee joint instability; these same VA examinations did reflect positive findings for recurrent effusion. December 2019 and February 2020 private treatment records reflect negative findings for swelling, edema, malalignment, and knee effusion. Examination of the Veteran revealed negative findings for varus and valgus laxity and 0 and 15 degrees in the right and left knees. Although the Veteran has reported subjective symptoms of right and left knee instability and giving out, stability testing in the right and left knees, performed during multiple VA examinations and during private treatment, all consistently demonstrate negative findings for any right or left knee instability. Based on the foregoing, the Board finds that the evidence does not demonstrate right or left knee instability as to warrant separate compensable ratings for right or left knee instability under Diagnostic Code 5257 at any time during the entire initial rating period on appeal from September 14, 2016. 38 C.F.R. § 4.71a. 5. Rating PTSD For the entire initial rating period on appeal from September 14, 2016, the Veteran is in receipt of a 50 percent rating for the service-connected PTSD under Diagnostic Code 9411. 38 C.F.R. § 4.130. During the July 2021 Board hearing, the Veteran testified to symptoms of anger, anxiety, panic attacks, and isolation. Pertinent to this case, the General Rating Formula for Mental Disorders provides that a 10 percent rating is assigned for occupational and social impairment due to mild or transient symptoms which decrease work efficiency and ability to perform occupational tasks only during periods of significant stress, or symptoms controlled by continuous medication. 38 C.F.R. § 4.130. A 30 percent rating is assigned for occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks (although generally functioning satisfactorily, with routine behavior, self care, and conversation normal), due to such symptoms as: depressed mood, anxiety, suspiciousness, panic attacks (weekly or less often), chronic sleep impairment, and mild memory loss (such as forgetting names, directions, recent events). Id. A 50 percent rating is provided when there is occupational and social impairment with reduced reliability and productivity due to such symptoms as: flattened affect; circumstantial, circumlocutory, or stereotyped speech; panic attacks more than once a week; difficulty in understanding complex commands; impairment of short and long-term memory (e.g., retention of only highly learned material, forgetting to complete tasks); impaired judgment; impaired abstract thinking; disturbances of motivation and mood; and difficulty in establishing and maintaining effective work and social relationships. Id. A 70 percent rating is provided when there is evidence that the psychiatric disability more closely approximates occupational and social impairment, with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood, due to such symptoms as: suicidal ideation; obsessional rituals which interfere with routine activities; speech intermittently illogical, obscure, or irrelevant; near-continuous panic or depression affecting the ability to function independently, appropriately, and effectively; impaired impulse control (such as unprovoked irritability with periods of violence); spatial disorientation; neglect of personal appearance and hygiene; difficulty in adapting to stressful circumstances (including work or a work like setting); and inability to establish and maintain effective relationships. Id. A 100 percent rating requires evidence of total occupational and social impairment, due to such symptoms as: gross impairment in thought processes or communication; persistent delusions or hallucinations; grossly inappropriate behavior; persistent danger of hurting self or others; intermittent inability to perform activities of daily living (including maintenance of minimal personal hygiene); disorientation to time or place; and memory loss for names of close relatives, own occupation, or own name. Id. The use of the term "such as" in the General Rating Formula for Mental Disorders in 38 C.F.R. § 4.130 demonstrates that the symptoms after that phrase are not intended to constitute an exhaustive list, but rather are to serve as examples of the type and degree of symptoms, or their effects, that would justify a particular rating. See Mauerhan v. Principi, 16 Vet. App. 436, 442 (2002). It is not required to find the presence of all, most, or even some, of the enumerated symptoms recited for particular ratings. Id. The use of the phrase "such symptoms as," followed by a list of examples, provides guidance as to the severity of the symptoms contemplated for each rating, in addition to permitting consideration of other symptoms particular to each veteran and disorder, and the effect of those symptoms on his/her social and work situation. Id. In Vazquez-Claudio v. Shinseki, 713 F.3d 112, 117 (2013), the Federal Circuit held that VA "intended the General Rating Formula to provide a regulatory framework for placing veterans on a disability spectrum based upon their objectively observable symptoms." The Federal Circuit stated that "a veteran may only qualify for a given disability rating under § 4.130 by demonstrating the particular symptoms associated with that percentage, or others of similar severity, frequency, and duration." It was further noted that "§ 4.130 requires not only the presence of certain symptoms but also that those symptoms have caused occupational and social impairment in most of the referenced areas." After a review of all the evidence, lay and medical, the Board finds that, for the entire initial rating period on appeal from September 14, 2016, the service-connected PTSD has manifested in symptoms that more nearly approximate occupational and social impairment with reduced reliability and productivity, due to symptoms such as depressed mood, anxiety, suspiciousness, chronic sleep impairment, disturbances of motivation and mood, difficulty establishing and maintaining effective work and social relationships, and difficulty adapting to stressful circumstances. The severity of the PTSD has not caused occupational and social impairment with deficiencies in most areas. The record includes a November 2016 VA examination report, which reflects findings of depressed mood, anxiety, suspiciousness, disturbances of motivation and mood, and difficulty adapting to stressful circumstances. During the November 2016 VA examination, the Veteran reported having a good relationship with his wife and stepdaughters, that he has friends in Virginia that he kept in touch with, and was close to his family. The Veteran was observed to be casually dressed with good hygiene, and demonstrated no evidence of thought disorder or gross cognitive impairments. The Veteran made appropriate eye contact and was cooperative, alert, and oriented during the examination. The Veteran demonstrated generally euthymic and positive affect and denied any suicidal or homicidal ideation and did not appear to have any manic, hypomanic, or psychotic symptoms (no auditory or visual hallucinations or delusions). The November 2016 VA examiner assessed occupational and social impairment due to mild or transient symptoms which decrease work efficiency and ability to perform occupational tasks only during periods of significant stress. The Veteran underwent another VA examination in July 2017, the examination report for which reflects findings of depressed mood, anxiety, suspiciousness, chronic sleep impairment, disturbances of motivation and mood, difficulty establishing and maintaining effective work and social relationships, and difficulty adapting to stressful circumstances. During the July 2017 VA examination, the Veteran reported he was currently taking classes studying aeronautics, that his marriage was rocky, that he does not have friends, and that he isolates himself when he is at home. The Veteran was observed to be appropriately dressed and oriented. The Veteran made intermittent eye contact and frequently looked to the ground. The Veteran's insight and judgment appeared intact, his thought pattern was linear, and was cooperative throughout the examination. The Veteran denied suicidal and homicidal ideation, intent, and/or plan. The July 2017 VA examiner assessed occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks. The Board has carefully reviewed the lay and medical evidence of record and finds that the preponderance of the evidence is against the assignment of a higher initial disability rating in excess of 50 percent for the service connected PTSD for the entire initial rating period on appeal from September 14, 2016. The evidence of record shows the PTSD more nearly approximates occupational and social impairment with reduced reliability and productivity, due to symptoms such as depressed mood, anxiety, suspiciousness, chronic sleep impairment, disturbances of motivation and mood, difficulty establishing and maintaining effective work and social relationships, and difficulty adapting to stressful circumstances. The evidence shows that the severity, frequency, and duration of the PTSD symptoms have not caused occupational and social impairment with deficiencies in most areas. The November 2016 and July 2017 VA examination reports reflect the Veteran was observed to be alert and oriented, in touch with reality, without impairment of judgment, ability to communicate, or ability to understand and follow simple directions. Additionally, VA treatment records throughout the relevant rating period on appeal also demonstrate the Veteran has been consistently observed to be alert and oriented, in no acute distress, with normal thought processes, without symptoms such as suicidal ideation, obsessional rituals which interfere with routine activities, speech intermittently illogical, obscure, or irrelevant, impaired judgment, or near continuous panic or depression affecting the ability to function independently (criteria required for a higher initial 70 percent rating), at any time during the rating period on appeal. See e.g., May 2017 VA treatment record; August 2017 VA treatment record, January 2019 VA treatment record; March 2019 VA treatment record; February 2020 VA treatment record; June 2020 VA treatment record; August 2020 VA treatment record; March 2021 VA treatment record; June 2021 VA treatment record. Moreover, a March 2019 VA treatment record reflects the Veteran was going to school and reported doing fairly well; he reported earning As and Bs in his classes and was observed to have sustained attention and concentration. An August 2020 VA treatment record shows the Veteran reported completing his bachelor's degree and was currently working on obtaining his master's degree; the August 2020 VA provider noted the Veteran is able to manage his appointments and medication regimen and that he is able to effectively communicate his health symptoms and needs. The Board has considered all the symptoms discussed above, including their severity, frequency, and duration, and considered the impact on social and occupational functioning. In evaluating these symptoms, the Board finds that the severity, frequency, and duration of the PTSD is more consistent with the symptoms and degrees of social and occupational impairment contemplated by the 50 percent disability rating, and do not more nearly approximate the symptoms and degrees of social and occupational impairment contemplated for a 70 percent disability rating. See 38 C.F.R. § 4.130, Diagnostic Code 9411. For these reasons, the Board finds that the preponderance of the evidence is against the appeal for a higher initial disability rating for PTSD in excess of 50 percent for the initial rating period from September 14, 2016. Therefore, a higher initial disability rating in excess of 50 percent is not warranted. 38 U.S.C. § 1155; 38 C.F.R. §§ 4.3, 4.7, 4.130, Diagnostic Code 9411. 6. Special monthly compensation based on aid and attendance 7. Service connection for alopecia 8. Service connection for jaw pain Under 38 U.S.C. § 7105, the Board may dismiss any appeal that fails to allege a specific error of fact or law in the determination being appealed. A veteran may withdraw a substantive appeal by telling the Board of the decision to withdraw either in writing or on the record at a Board personal hearing. 38 C.F.R. § 20.204. Per the July 2021 Board hearing testimony, the Veteran asked to withdraw the issues of entitlement to special monthly compensation based on aid and attendance, service connection for alopecia, and service connection for jaw pain. As the Veteran has withdrawn the appeals for entitlement to special monthly compensation based on aid and attendance, service connection for alopecia, and service connection for jaw pain, there remains no allegation of errors of fact or law for appellate consideration as to these issues. Accordingly, the Board does not have jurisdiction to review these issues, and the issues of entitlement to special monthly compensation based on aid and attendance, service connection for alopecia, and service connection for jaw pain will be dismissed. REASONS FOR REMAND 9. Service connection for obstructive sleep apnea is remanded. The Veteran generally contends that service connection for sleep apnea is warranted as secondary to the service connected knee disabilities and/or PTSD. The Veteran's primary contention is that the service connected knee disabilities and/or PTSD have caused him to become obese, resulting in obstructive sleep apnea for which secondary service connection is warranted. During the July 2021 Board hearing, the Veteran testified that the service-connected knee disabilities and/or PTSD have caused him to gain weight due to the medications taken to treat these service-connected disabilities and also due to the lack of mobility resulting from the knee disabilities; the Veteran asserts that he developed obstructive sleep apnea as a result of the weight gain. VA's General Counsel issued a precedential opinion concerning service connection based on obesity. See VAOPGCPREC 1-2017. Precedential opinions issued by VA's chief legal officer are binding on the Board. 38 U.S.C. § 7104(c). The opinion holds, inter alia, that obesity is not a disease or injury for purposes of 38 C.F.R. §§ 1110 and 1131 and, therefore, may not be service connected on a direct basis. VAOPGCPREC 1-2017 at 7. Similarly, obesity cannot be service connected on a secondary basis as a disability directly resulting from a veteran's service connected disability under 38 C.F.R. § 3.310, and may not be considered an "in-service event" under 38 C.F.R. § 3.159(a)(4) for the purposes of establishing service connection for a disease that is diagnosed after service discharge; however, obesity may act as an "intermediate step" to establish proximate causation between a service connected disability and a current disability that may be service connected on a secondary basis under 38 C.F.R. § 3.310(a). Id. at 7-9. Proximate causation is a factual finding to be determined by the adjudicator. Id. at 9 (citing VAOPGCREC 6-2003 and 19-1997). In order to establish a service connected disability proximately caused a current disability through obesity, the adjudicator must determine: (1) whether the service connected disability caused the veteran to become obese; (2) if so, whether the obesity as a result of the service connected disability was a substantial factor in causing the current disability; and (3) whether the current disability would not have occurred but for obesity caused by the service connected disability. Id. at 9-10. If all of the above questions are answered in the affirmative, then the current disability may be service connected on a secondary basis. Id. at 10. The record includes a March 2021 private medical opinion from Dr. J.D., who does not appear to have treated the Veteran; it is also unclear whether Dr. J.D. even interviewed the Veteran prior to providing the March 2021 medical opinion. Dr. J.D. opined that the Veteran is currently obese partly as a result of "passage of time" and also due to degenerative changes in the right and left knees, which has necessarily reduced his activity levels and caused weight gain. Dr. J.D. speculated that the Veteran's sleep apnea symptoms likely began during active service and opined that it is at least as likely as not that the Veteran's obstructive sleep apnea is related to service. Dr. J.D. did not address the Veteran's ability to exercise and lose weight, which hd did as recently as February 2021, which indicates that the Veteran is still able to remain physically active despite the service-connected right and left knee disabilities, and is able to lose weight. Dr. J.D. also did not explain whether obesity was a substantial factor in causing the current obstructive sleep apnea, and did not address the question of whether the current sleep apnea would have occurred anyway, without obesity. For these reasons, the Board finds that Dr. J.D.'s March 2021 private medical opinion is of no probative value in demonstrating that the service-connected knee disabilities caused the Veteran to become obese, that obesity was a substantial factor in causing the current obstructive sleep apnea, and that the current sleep apnea would not have occurred but for obesity. The record does not contain a competent medical opinion as to whether the service-connected knee disabilities and/or PTSD caused the Veteran to become obese, either through reduced mobility or due to medications taken to treat the knee disabilities and/or PTSD, and if so, whether the obesity caused the currently diagnosed obstructive sleep apnea. Moreover, the record does not contain a competent medical opinion as to whether the Veteran's current obstructive sleep apnea was either caused or worsened beyond its natural progression by the service-connected knee disabilities and/or PTSD. As such, the Board finds that remand for VA addendum opinions is needed. 10. A higher (compensable) initial rating for right ear hearing loss is remanded. 11. Service connection for left ear hearing loss is remanded. During the July 2021 Board hearing, the Veteran testified to worsening hearing loss symptoms as of the last VA audiometric examination in December 2016. Because the Veteran testified to worsening hearing loss symptoms since 2016, the Board finds that further examination is required so the decision is based on a record that contains a current examination. 12. A TDIU is remanded. The issue of entitlement to a TDIU is inextricably intertwined with the adjudication of rating right ear hearing loss and service connection for left ear hearing loss and obstructive sleep apnea. The appeals are REMANDED for the following actions: 1. Request that a VA medical professional review the electronic file and provide the VA addendum opinions requested below for the claimed obstructive sleep apnea. If the VA examiner determines that additional examination(s) of the Veteran is necessary to provide reliable opinions as to causation, such examination(s) should be scheduled; however, the Veteran should not be required to report for another examination as a matter of course, if it is not found to be necessary. The VA examiner should provide the following opinions: a) Is it at least as likely as not (i.e., 50 percent probability or greater) that the service-connected knee disabilities, including any medications taken to treat the knee disabilities, caused the Veteran to become obese? In answering this question, discuss the range of physical activities the Veteran is able to do, the recent weight loss, and the role of dietary choices/intake in weight gain/loss. b) Is it at least as likely as not (i.e., 50 percent probability or greater) that the service-connected PTSD, including any medications taken to treat the PTSD, caused the Veteran to become obese? In answering this question, discuss the range of physical activities the Veteran is able to do, the recent weight loss, and the role of dietary choices/intake in weight gain/loss. c) Is obesity a substantial factor in causing the current obstructive sleep apnea? d) Would the current obstructive sleep apnea have occurred but for the obesity? 2. Schedule the appropriate VA examination in order to assist in determining the current level of severity and functional impairment of the service-connected right ear hearing loss and claimed left ear hearing loss. J. PARKER Veterans Law Judge Board of Veterans' Appeals Attorney for the Board E. Choi, 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.