Citation Nr: 21008218 Decision Date: 02/12/21 Archive Date: 02/12/21 DOCKET NO. 19-35 370 DATE: February 12, 2021 ORDER New and material evidence having been received, the claim for service connection for hypertension is reopened, and to that extent only, the appeal is granted. Service connection for hypertension is granted. Service connection for radiation exposure is denied. An initial rating in excess of 10 percent for tinnitus is denied. A total disability rating based on individual unemployability (TDIU) is granted. An effective date earlier than January 3, 2018 for the grant of service connection for tinnitus is denied. An effective date earlier than January 3, 2018 for the grant of service connection for back scars is denied. An effective date earlier than January 3, 2018 for the grant of service connection for right lower extremity radiculopathy (sciatic) is denied. An effective date earlier than January 3, 2018 for the grant of service connection for left lower extremity radiculopathy (sciatic) is denied. An earlier effective date for a 20 percent disability rating for a lumbar spine disability is denied. REMANDED Service connection for an acquired psychiatric disorder, to include as secondary to service-connected disabilities, is remanded. Service connection for sleep apnea, to include as secondary to service-connected disabilities, is remanded. Service connection for headaches, to include as secondary to service-connected disabilities, is remanded. Service connection for a right knee disability is remanded. Service connection for a left knee disability is remanded. Service connection for a right foot disability, to include as secondary to service-connected disabilities, is remanded. Service connection for a left foot disability, to include as secondary to service-connected disabilities, is remanded. Service connection for a right hand disability, to include as secondary to service-connected disabilities, is remanded. Service connection for a left hand disability, to include as secondary to service-connected disabilities, is remanded. Entitlement to a disability rating in excess of 20 percent for lumbar spine disability is remanded. Entitlement to an initial rating in excess of 20 percent for right lower extremity radiculopathy (sciatic) is remanded. Prior to June 17, 2020, entitlement to an initial rating in excess of 20 percent for left lower extremity radiculopathy (sciatic) is remanded. From June 17, 2020, entitlement to a disability rating in excess of 40 percent for left lower extremity radiculopathy (sciatic) is remanded. Prior to June 17, 2020, entitlement to an initial compensable rating for back scars is remanded. From June 17, 2020, entitlement to a disability rating in excess of 10 percent for back scars is remanded. Prior to June 17, 2020, entitlement to an initial compensable rating for abdomen scars is remanded. From June 17, 2020, entitlement to a compensable rating for abdomen scars is remanded. Prior to June 17, 2020, entitlement to an initial compensable rating for left lower extremity radiculopathy (femoral) is remanded. From June 17, 2020, entitlement to a disability rating in excess of 20 percent for left lower extremity radiculopathy (femoral) is remanded. Prior to June 17, 2020, entitlement to an initial compensable rating for left lower extremity radiculopathy (external cutaneous) is remanded. From June 17, 2020, entitlement to a compensable rating for left lower extremity radiculopathy (external cutaneous) is remanded. Prior to June 17, 2020, entitlement to an initial compensable rating for left lower extremity radiculopathy (ilio-inguinal) is remanded. From June 17, 2020, entitlement to a compensable rating for left lower extremity radiculopathy (ilio-inguinal) is remanded. Prior to June 17, 2020, entitlement to an initial compensable rating for left lower extremity radiculopathy (obturator) is remanded. From June 17, 2020, entitlement to a compensable rating for left lower extremity radiculopathy (obturator) is remanded. FINDINGS OF FACT 1. An April 1990 rating decision denied service connection hypertension. The rating decision was not appealed nor was new and material evidence received within the appeal period. 2. The evidence received since the last final rating decision relates to an unestablished fact necessary to substantiate the claim of service connection for hypertension and raises a reasonable possibility of substantiating the claim. 3. The Veteran’s hypertension is reasonably shown to be related to/caused by his active service. 4. There is no competent and credible evidence that the Veteran has a current diagnosis of radiation exposure or a disability associated with radiation exposure. 5. The Veteran’s service-connected tinnitus, while causing ringing in the ears, has not been shown to cause an exceptional or unusual degree of occupational impairment. 6. Affording the Veteran the benefit of the doubt, his service-connected disabilities preclude him from securing and maintaining all forms of substantially gainful employment. 7. On January 3, 2018, the Veteran submitted claims for service connection for tinnitus, back scars, and right and left lower extremity radiculopathy (sciatic). In a June 2018 rating decision, the RO granted service connection for tinnitus, back scars, and right and left lower extremity radiculopathy (sciatic), effective January 3, 2018, the date of the Veteran’s service connection claim. 8. There is no legal basis upon which to award an earlier effective date for a 20 percent disability rating for a lumbar spine disability. CONCLUSIONS OF LAW 1. The April 1990 rating decision that denied service connection for hypertension is final. 38 U.S.C. § 7105(c); 38 C.F.R. §§ 20.302, 20.1103. 2. New and material evidence has been received; the claim of service connection for hypertension is reopened. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. 3. The criteria are met for service connection for hypertension. 38 U.S.C. §§ 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. 4. The criteria are not met for service connection for radiation exposure. 38 U.S.C. §§ 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304. 5. The 10 percent rating currently assigned for tinnitus is the maximum available schedular evaluation, and there is no basis for an extraschedular evaluation shown in this case. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.321(b)(1), 4.87, DC 6260; Smith v. Nicholson, 451 F.3d 1344 (Fed. Cir. 2006). 6. The criteria are met for a TDIU rating. 38 U.S.C. §§ 1154(a), 1155, 5107; 38 C.F.R. §§ 3.102, 3.340, 3.341, 4.1, 4.16, 4.19. 7. The criteria have not been met for an effective date earlier than January 3, 2018 for the grant of service connection for tinnitus. 38 U.S.C. §§ 5107, 5110; 38 C.F.R. §§ 3.102, 3.156, 3.400. 8. The criteria have not been met for an effective date earlier than January 3, 2018 for the grant of service connection for back scars. 38 U.S.C. §§ 5107, 5110; 38 C.F.R. §§ 3.102, 3.156, 3.400. 9. The criteria have not been met for an effective date earlier than January 3, 2018 for the grant of service connection for right lower extremity radiculopathy (sciatic). 38 U.S.C. §§ 5107, 5110; 38 C.F.R. §§ 3.102, 3.156, 3.400. 10. The criteria have not been met for an effective date earlier than January 3, 2018 for the grant of service connection for left lower extremity radiculopathy (sciatic). 38 U.S.C. §§ 5107, 5110; 38 C.F.R. §§ 3.102, 3.156, 3.400. 11. By law, there is no basis to award an earlier effective date for a 20 percent disability rating for service connection for a lumbar spine disability. See Sabonis v. Brown, 6 Vet. App. 426 (1994). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from March 1985 to September 1989. These matters come before the Board of Veterans’ Appeals (Board) on appeal from a June 2018 rating decision by the Department of Veteran Affairs (VA) Regional Office (RO). In June 2017, the Veteran filed a claim for entitlement to a TDIU rating, although technically that issue was already on appeal because of Rice. See Rice v. Shinseki, 22 Vet. App. 447 (2009). However, as a result of this, the RO decided to adjudicate the issue of entitlement to TDIU as well as all of the Veteran’s other outstanding increased rating claims in an October 2020 rating decision. The RO reported that the Veteran filed a new claim for increased evaluations on June 17, 2020. THIS IS INCORRECT. The October 2020 rating decision stems directly from the original January 2018 appeal, and because of this, is NOT a separate and new claim. In the October 2020 rating decision, the RO increased the Veteran’s left lower extremity radiculopathy (sciatic) from 20 percent to 40 percent, effective June 17, 2020, increased the rating of the Veteran’s back scars from a noncompensable rating to 10 percent, effective June 17, 2020, granted a separate 20 percent rating for left lower extremity radiculopathy (femoral), granted separate noncompensable ratings for the left lower extremity radiculopathy (external cutaneous, ilio-inguinal, and obturator), and granted a separate compensable rating for a scar on the abdomen, evaluated as noncompensable, all effective June 17, 2020. Because this does not constitute full grants, these issues remain on appeal. AB v. Brown, 6 Vet. App. 35, 39 (1993). Additionally, the Veteran initially filed claims to establish service connection for nerve damage and depression. In determining the scope of a claim, the Board must consider the Veteran’s description of the claim, symptoms described, and the information submitted or developed in support of the claim. Clemons v. Shinseki, 23 Vet. App. 1 (2009). In light of the decision in Clemons and the diagnoses of record, the Board has expanded the Veteran’s claims to include all the various nerves in his upper and lower extremities and an acquired psychiatric disorder, and the issues have been recharacterized as stated on the title page. This will provide the most favorable review of the Veteran’s claims in keeping with the holding in Clemons. New and Material Evidence New and material evidence has been received to reopen the claim for service connection for hypertension. Generally, when a claim is disallowed, it may not be reopened and allowed, and a claim based on the same factual basis may not be considered. 38 U.S.C. § 7105. However, a claim on which there is a final decision may be reopened if new and material evidence is submitted. 38 U.S.C. § 5108. “New” evidence means existing evidence not previously submitted to agency decision-makers. “Material” evidence means existing evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. New and material evidence can be neither cumulative nor redundant of the evidence of record at the time of the last prior final denial of the claim sought to be reopened and must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a). When determining whether the claim should be reopened, the credibility of the newly submitted evidence is to be presumed. Fortuck v. Principi, 17 Vet. App. 173, 179-80 (2003). The requirement of new and material evidence raising a reasonable possibility of substantiating the claim is a low threshold. Specifically, 38 C.F.R. § 3.156(a) creates a low threshold, and the phrase “raises a reasonable possibility of substantiating the claim” enables, rather than precludes, reopening. See Shade v. Shinseki, 24 Vet. App. 110 (2010). In this case, service connection for hypertension was denied in an April 1990 rating decision. That appeal was not perfected nor was new and material evidence received within the appeal period. 38 U.S.C. § 7105. Evidence received since that decision includes a June 2020 positive nexus opinion from the Veteran’s private physician. This evidence is new to the record, relates to previously unestablished facts to support the claim, and raises a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a). Accordingly, the claim is reopened. Service Connection Legal Criteria Service connection may be granted for a disability resulting from a disease or injury incurred or aggravated during active military service. 38 U.S.C. § 1131. Generally, service connection requires (1) the existence of a present disability, (2) in-service incurrence or aggravation of an injury or disease, and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service. Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004). Certain disabilities, including arthritis, organic neurological disorders, and psychoses, are presumed to be serviced connected if manifested to a compensable degree within one year following service. 38 C.F.R. §§ 3.303, 3.307, 3.309. 1. Service connection for hypertension is granted. Factual Background In a June 2020 opinion, the Veteran’s private physician noted that the Veteran was service connected for intervertebral disc syndrome (IVDS) with degenerative disc disease (DDD) of the lumbar spine, bilateral lower extremity radiculopathy, and tinnitus. The private physician reported that, on the Veteran’s March 1985 Report of Medical Examination for enlistment, his blood pressure was in the normal range. Service treatment records (STRs) noted that the Veteran had a back injury during active service and reported back pain. In a September 1987 STR, the Veteran’s blood pressure was recorded as 140/95. The Veteran again reported back pain in a June 1988 STR and his blood pressure was recorded as 148/98. The private physician wrote that in the March 2018 VA examination report, it was noted that the Veteran continued to have chronic low back pain with intermittent pain, and tingling and numbness down both legs into his feet. The Veteran’s post-service treatment reports showed that he continued to experience elevated blood pressure and is prescribed Atenolol for his hypertension. According to the private physician, medical research has shown that chronic pain is associated with an increased risk of hypertension. Chronic pain intensity is a significant predictor of hypertensive status independent of the effects of age, race/ethnicity, and parental hypertension. Because of this, after reviewing the Veteran’s claims file, the private physician opined that it was as likely as not that the Veteran’s hypertension began in service and that his chronic pain from his service-connected conditions continued to contribute to and aggravate his hypertension. Analysis Although a causal relationship has not been demonstrated through a VA opinion, the absence of a “valid [VA] medical opinion” is not an absolute bar to service connection. Davidson v. Shinseki, 581 F.3d at 1316. Weighing the available evidence, the Board finds that the June 2020 opinion from the Veteran’s private physician, concluding that the Veteran’s hypertension was as likely as not caused by active service and aggravated by his current service-connected disabilities, is of greater probative value than the VA negative nexus opinion. Because of this, the Board finds that it is at least as likely as not that the Veteran’s hypertension is causally related to active service. Accordingly, the criteria for service connection have been met, and the claim for hypertension is granted. 38 C.F.R. §§ 3.303, 3.307, 3.309. 2. Service connection for radiation exposure is denied. The Veteran reported that he was exposed to radiation during active service. The Board notes that radiation exposure, by itself, is not a disease or injury that is entitled to service connection. Noted above, service connection may be granted for a disability resulting from disease or injury incurred or aggravated during active military service. 38 U.S.C. § 1131. However, when the Veteran filed his service connection claim back in January 2018, he never specified what disability he believed was caused by his radiation exposure or even the time frame when he was exposed to radiation. In March 2018, a letter was sent to the Veteran asking him to specify what disability was caused by his radiation exposure. No response was received. The Veteran has never had a VA examination for his claimed radiation exposure. In a claim for service connection, VA’s duty to assist the Veteran includes providing a VA medical examination when there is (1) competent evidence of a current disability or persistent or recurrent symptoms of a disability; (2) evidence establishing that an event, injury, or disease occurred in service, or establishing that certain diseases manifested during an applicable presumptive period for which the claimant qualifies; and (3) an indication that the disability or persistent/recurrent symptoms of a disability may be associated with the Veteran’s service or with another service-connected disability; but (4) insufficient competent medical evidence on file for the Secretary to make a decision on the claim. McLendon v. Nicholson, 20 Vet. App. 79, 81 (2006); see also 38 U.S.C. § 5103A(d)(2); 38 C.F.R. § 3.159(c)(4)(i). With respect to the third factor above, this element establishes a low threshold and requires only that the evidence “indicates” that there “may” be a nexus between the current disability or symptoms and the Veteran’s service. The types of evidence that “indicate” that a current disability “may be associated” with military service include, but are not limited to, medical evidence that suggests a nexus but is too equivocal or lacking in specificity to support a decision on the merits, or credible evidence of continuity of symptoms such as pain or other symptoms capable of lay observation. McLendon v. Nicholson, 20 Vet. App. 79 (2006). In this case, no examination is necessary to adjudicate the Veteran’s claim of service connection for radiation exposure. Specifically, there is no indication, besides the Veteran’s own statements, that he was exposed to radiation. Additionally, the Veteran has never specified any disability that might be caused by his claimed radiation exposure. On his October 2018 Notice of Disagreement and his November 2019 VA Form 9 Substantive Appeal, the Veteran neither specified what disability was caused by his radiation exposure or even explained when he was allegedly exposed to radiation. There is no evidence of radiation exposure (or any symptoms thereof) occurring in service or after service. The Veteran has also provided no private medical evidence or opinions relating his alleged radiation exposure to service. Because of this, a VA examination is not warranted. Id. There is no competent medical evidence showing a diagnosis of radiation exposure or any disability related to radiation exposure. The most fundamental requirement for any claim for service connection, on either a direct or secondary basis, is that the Veteran must first establish he or she has the condition claimed. See Degmetich v. Brown, 8 Vet. App. 208 (1995); 104 F.3d 1328 (1997); see also Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). In other words, the evidence must show that, at some point during the appeal period, the Veteran has or had the disabilities for which benefits are being claimed. See McClain v. Nicholson, 21 Vet. App. 319 (2007). Based on the above analysis, the preponderance of the evidence is against the claims for service connection for radiation exposure and the claim must be denied. See 38 U.S.C. § 5107; 38 C.F.R. § 3.102. Increased Ratings Legal Criteria Disability ratings are determined by applying the criteria set forth in VA’s Schedule for Rating Disabilities. Ratings are based on the average impairment of earning capacity. Individual disabilities are assigned separate diagnostic codes. See 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 required for that rating; otherwise, the lower rating will be assigned. See 38 C.F.R. § 4.7. Staged ratings are, however, appropriate for an increased rating claim when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings. An initial rating in excess of 10 percent for tinnitus is denied. The Veteran states that his tinnitus warrants a disability rating in excess of 10 percent. The Veteran’s tinnitus is rated as 10 percent disabling, effective January 3, 2018. 38 C.F.R. § 4.87, Diagnostic Code 6260. This is the maximum schedular rating available for this disability and, therefore, there is no legal basis on which to award a higher schedular disability rating. See 38 C.F.R. § 4.87, Diagnostic Code 6260; see also Sabonis v. Brown, 6 Vet. App. 426 (1994). The Board has not overlooked the Veteran’s statements about the frequency, severity, and duration of his tinnitus. He is competent to report on factual matters of which he had firsthand knowledge; and the Board finds that his reports concerning his tinnitus symptoms have been credible. See Washington v. Nicholson, 19 Vet. App. 362, 368 (2005). However, these statements do not establish that a higher rating is warranted because they do not explain (or even assert) that the Veteran is experiencing symptoms not considered by the applicable diagnostic code in the VA Rating Schedule. The Board is sympathetic to the Veteran’s reports and understands that his tinnitus has a significant effect on his daily life. However, these symptoms more nearly approximate the currently assigned 10 percent evaluation and do not warrant an increase in the rating at this time. The Board also notes that this decision does not leave the Veteran without recourse. If the disabilities and the impairments they cause should worsen in the future, the Veteran is free to file claims for increased disability ratings at that time. Neither the Veteran nor his attorney have raised any other issues, nor have any other issues been reasonably raised by the record. See Doucette v. Shulkin, 28 Vet. App. 366 (2017). TDIU A TDIU rating is granted. Legal Criteria It is the established policy of VA that all veterans who are unable to obtain and maintain a substantially gainful occupation because of service-connected disabilities shall be rated as totally disabled. 38 U.S.C. § 1155; 38 C.F.R. §§ 4.16, 3.340. Substantially gainful employment is work that is more than marginal and permits the individual to earn a living wage. Moore v. Derwinski, 1 Vet. App. 356 (1991). The central inquiry is whether the Veteran’s service-connected disabilities alone are severe enough to cause unemployability. Hatlestad v. Brown, 5 Vet. App. 524, 529 (1993). VA must consider the veteran’s level of education, special training, and previous work experience, but may not consider age or the effect of nonservice-connected disabilities. 38 C.F.R. §§ 3.341, 4.16, 4.19. SSA determinations are relevant but not binding on the Board because there are significant differences between SSA and VA criteria. See Collier v. Derwinski, 1 Vet. App. 413, 417 (1991). A schedular TDIU rating may be assigned when the unemployable veteran has (1) a single service-connected disability rated at 60 percent or more; or (if there are two or more service-connected disabilities), (2) one disability rated at 40 percent or more, and the additional service-connected disabilities bring the combined rating to 70 percent or more. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.340, 3.341, 4.16(a). If these percentage criteria are not met but a veteran is, nevertheless, unemployable because of a service-connected disability or disabilities, then an extraschedular TDIU rating must be assigned. 38 U.S.C. § 1155; 38 C.F.R. §§ 4.16(b) (“[A]ll veterans who are unable to obtain and maintain a substantially gainful occupation because of service-connected disabilities shall be rated as totally disabled.”) (emphasis added). Factual Background In a June 2020 opinion, the Veteran’s private physician noted that the Veteran was service connection for intervertebral disc syndrome (IVDS) with degenerative disc disease (DDD) of the lumbar spine, bilateral lower extremity radiculopathy, and tinnitus, for a combined total disability rating of 70 percent. After reviewing the evidence and the Veteran’s claims file, the examiner opined that it was as likely as not that the combination of pain and limitations caused by the Veteran’s service-connected disabilities prevented him from being able to work full time. In a March 2018 VA examination report, it was noted that his service-connected back disability caused pain that was aggravated by bending or by moderate to heavy lifting, standing, and walking more than 15 to 20 minutes. The Veteran also experienced numbness in both feet. When the Veteran’s back was examined, he was noted to have significantly limited range of motion, disturbance of locomotion, interference with standing, and positive bilateral straight leg raising with decreased sensation and severe intermittent pain, severe numbness, and moderate paresthesias bilaterally. In an April 2020 letter, the Veteran’s spouse wrote that he struggled due to pain in his back and legs. She reported that the Veteran was constantly getting up and sitting down all day, always shifting between sitting, standing, and walking. The Veteran’s spouse wrote that he had difficulty with balance due to numbness in his legs and required help with things like bending and putting on his shoes and socks. She noted that the Veteran had difficulty sleeping due to pain and was tired during the day. The Veteran’s spouse reported that his pain made concentrating and focusing difficult and that he was frequently irritable, sad, and frustrated because of his pain and limitations. When the private physician interviewed the Veteran, the Veteran reported that he worked as a plasterer from 2001 until December 2017. He noted that his job required climbing, twisting, bending, and lifting. The Veteran reported that he had difficulty at work almost daily, which affected his body both during work and after. The Veteran stated that by the end of his career, he required medication to make it through the day which made him dizzy and sleepy, and even less productive. While the Veteran took great pride in his work, eventually, he was considered a “liability” to his employer and was “quite sad” when he had to medically retire. Based on the objective findings of the Veteran’s service-connected disabilities, the various VA examination reports, the statements from the Veteran’s spouse, and the June 2020 interview with the Veteran, the private physician opined that the Veteran’s service-connected disabilities precluded him from obtaining and/or maintaining gainful employment. Analysis Based on the June 2020 private opinion from the Veteran’s physician, the Board finds that it is at least as likely as not that the Veteran’s service-connected disabilities preclude him from securing and following substantially gainful employment, consistent with his educational and employment background. 38 C.F.R. §§ 3.102, 3.303. Therefore, a TDIU rating is granted. Effective Dates Unless otherwise provided, the effective date for an award of compensation for service-connected disability shall be fixed in accordance with the facts found but shall not be earlier than the date of receipt of application therefor. The effective date will be the date of receipt of the claim, or the date entitlement arose, whichever is later. 38 U.S.C. § 5110(a); 38 C.F.R. § 3.400. 1. An effective date earlier than January 3, 2018 for the grant of service connection for tinnitus is denied. 2. An effective date earlier than January 3, 2018 for the grant of service connection for back scars is denied. 3. An effective date earlier than January 3, 2018 for the grant of service connection for right lower extremity radiculopathy (sciatic) is denied. 4. An effective date earlier than January 3, 2018 for the grant of service connection for left lower extremity radiculopathy (sciatic) is denied. In this case, the Veteran seeks an effective date earlier than January 3, 2018 for the grants of service connection for tinnitus, back scars, and bilateral lower extremity radiculopathy (sciatic). In January 2018, the Veteran applied for service connection for tinnitus, back scars, right lower extremity radiculopathy, and left lower extremity radiculopathy. In a June 2018 rating decision, these claims were granted with an effective date of January 3, 2018, the date of the Veteran’s claim. The Veteran and his attorney have provided no explanation as to why he should be entitled to an earlier effective date for these grants of service connection. Likewise, they have provided no alternative date from which service connection should be granted. According to 38 C.F.R. § 3.400, the effective date of an award of compensation based on an original claim, “will be the date of receipt of the claim or the date entitlement arose, whichever is the later” (emphasis added). Because the Veteran filed his claims for service connection on January 3, 2018, that is the earliest possible date that service connection can be granted. Id. 5. An earlier effective date for a 20 percent disability rating for a lumbar spine disability is denied. The Veteran is seeking an earlier effective date for his 20 percent rating for a lumbar spine disability. The Veteran’s lumbar spine has been rated 20 percent since September 2, 1989. The Veteran and his attorney have not asserted a specific date for the 20 percent rating. In an April 1990 rating decision, the Veteran was granted service connection for his lumbar spine and rated 20 percent, effective September 2, 1989, the date of his claim. Since then, the Veteran has filed numerous increased rating claims and his 20 percent lumbar spine evaluation has been readjudicated and denied in rating decisions in December 1992, July 1994, September 2004, and August 2009. All these rating decisions eventually became final. In January 3, 2018, the Veteran filed a new increased rating claim for his service-connected lumbar spine, which was denied in a June 2018 rating decision. In his October 2018 Notice of Disagreement, the Veteran disagreed with the evaluation assigned and the effective date. Because the Veteran’s lumbar spine rating has not changed during the appeal period, and no effective date has been assigned, it is legally impossible for there to be an earlier effective date. Because there is no legal basis upon which to award an earlier effective date for service connection for a lumbar spine disability, the claim for this benefit is without legal merit. See Sabonis v. Brown, 6 Vet. App. 426 (1994). REASONS FOR REMAND 1. Service connection for an acquired psychiatric disorder is remanded. 2. Service connection for sleep apnea is remanded. 3. Service connection for a right knee disability is remanded. 4. Service connection for a left knee disability is remanded. 5. Service connection for headaches is remanded. Because there is considerable overlap in the applicable evidence for the Veteran’s claims, the Board will discuss them together. In an April 2020 letter, the Veteran’s spouse wrote that she had watched him “struggle” with pain in his back and legs. She noted that he could not walk or stand for very long. The Veteran’s spouse wrote that he was “up and down all day.” She noted that when he walked, “his gait is off. He kind of drags his foot when he is walking.” The Veteran’s spouse reported that “his knees hurt if he sits for too long. He has to get up and stretch.” She wrote that he had trouble sleeping at night because of the pain from his service-connected disabilities and other conditions. She noted that the Veteran was more tired during the day because he cannot sleep at night. Because of this, it was harder for him to focus and concentrate and he would get headaches. The Veteran’s spouse also wrote that he no longer enjoyed hobbies or activities like he used to because of his service-connected disabilities. She wrote that he was very limited in what he can do regarding housework and yardwork. The Veteran’s spouse wrote that he becomes “very frustrated” because of his limitations and gets irritable because of the pain. She noted that he “gets sad and depressed.” The Board notes that the Veteran has never had VA examinations to determine if he is diagnosed with a sleep disorder or a psychiatric condition. Likewise, he has never had a VA examination for his knees and headaches. Because of this, examinations are necessary to determine if the Veteran is diagnosed with a sleep condition, psychiatric disorder, knee conditions, or headaches, and if so, whether they are related to active service or were caused or aggravated by his service-connected disabilities. 6. Service connection for a right foot disability is remanded. 7. Service connection for a left foot disability is remanded. 8. Service connection for a right hand disability is remanded. 9. Service connection for a left hand disability is remanded. Because there is considerable overlap in the applicable evidence for the Veteran’s claims, the Board will discuss them together. In a June 2018 VA foot examination report, the examiner noted that the Veteran had no diagnosis for his left foot. The Veteran’s right foot was not evaluated. The Veteran reported that he had never been diagnosed with flat feet, but that he had gout on the dorsal aspect. He also noted that he experienced tingling and numbness in his feet but no pain. The Veteran reported that he started noticing this around 1985, during active service. The Board notes that an October 2008 VA medical report mention treatment for gout. In a June 2018 VA hand examination report, the examiner noted that the Veteran had no right-hand diagnosis. The Veteran’s left hand was not evaluated. The Veteran reported that he had occasional pain to his left-hand ring, middle, and index fingers. While the Veteran was not diagnosed with a right or left hand condition, the examiner noted that range of motion for both hands was abnormal or outside the normal range. The Board finds that the June 2018 VA foot and hand examination reports are inadequate. For the feet, the examiner found no diagnosis and seemed to ignore the Veteran’s prior history of gout. For the hands, the examiner again found no diagnosis, yet marked that range of motion was abnormal or outside the normal range without providing an explanation. Because of this, new VA examinations are necessary to determine if the Veteran is diagnosed with feet and hand conditions, and if so, whether they are directly related to active service or were caused or aggravated by his other service-connected disabilities. 10. Entitlement to a disability rating in excess of 20 percent for a lumbar spine disability is remanded. 11. Prior to June 17, 2020, entitlement to an initial rating in excess of 20 percent for left lower extremity radiculopathy (sciatic) is remanded. 12. From June 17, 2020, entitlement to a disability rating in excess of 40 percent for left lower extremity radiculopathy (sciatic) is remanded. 13. Entitlement to an initial rating in excess of 20 percent for right lower extremity radiculopathy (sciatic) is remanded. 14. Prior to June 17, 2020, entitlement to an initial compensable rating for back scars is remanded. 15. From June 17, 2020, entitlement to a disability rating in excess of 10 percent for back scars is remanded. 16. Prior to June 17, 2020, entitlement to an initial compensable rating for abdomen scars is remanded. 17. From June 17, 2020, entitlement to a compensable rating for abdomen scars is remanded. 18. Prior to June 17, 2020, entitlement to an initial compensable rating for left lower extremity radiculopathy (femoral) is remanded. 19. From June 17, 2020, entitlement to a disability rating in excess of 20 percent for left lower extremity radiculopathy (femoral) is remanded. 20. Prior to June 17, 2020, entitlement to an initial compensable rating for left lower extremity radiculopathy (external cutaneous) is remanded. 21. From June 17, 2020, entitlement to a compensable rating for left lower extremity radiculopathy (external cutaneous) is remanded. 22. Prior to June 17, 2020, entitlement to an initial compensable rating for left lower extremity radiculopathy (ilio-inguinal) is remanded. 23. From June 17, 2020, entitlement to a compensable rating for left lower extremity radiculopathy (ilio-inguinal) is remanded. 24. Prior to June 17, 2020, entitlement to an initial compensable rating for left lower extremity radiculopathy (obturator) is remanded. 25. From June 17, 2020, entitlement to a compensable rating for left lower extremity radiculopathy (obturator) is remanded. Because there is considerable overlap in the applicable evidence for the Veteran’s claims, the Board will discuss them together. In an October 2020 rating decision, the RO increased the Veteran’s left lower extremity radiculopathy (sciatic) from 20 percent to 40 percent, effective June 17, 2020, increased his back scars from a noncompensable rating to 10 percent effective June 17, 2020, granted a separate noncompensable rating for abdomen scars effective June 17, 2020, granted a separate 20 percent rating for left lower extremity radiculopathy (femoral), and separate noncompensable ratings for left lower extremity radiculopathy (external cutaneous, ilio-inguinal, and obturator). Additionally, the RO proposed to reduce the Veteran’s service-connected lumbar spine disability from 20 percent to 10 percent. In that same rating decision, it assigned a 10 percent rating effective September 22, 2020. Finally, the RO proposed to reduce the Veteran’s service-connected right lower extremity radiculopathy (sciatic) from 20 percent to 10 percent and assigned a 10 percent rating effective September 22, 2020. Under 38 C.F.R. § 19.31, a Supplemental Statement of the Case should be furnished if the agency of original jurisdiction received additional pertinent evidence after a Statement of the Case or the most recent Supplemental Statement of the Case has been issued and before the appeal is certified to the Board of Veterans’ Appeals and the appellate record is transferred to the Board. 38 C.F.R. § 19.31(b)(1). Here, the RO received additional evidence after the November 2019 Statement of the Case. In December 2019, the Veteran’s appeal was certified to the Board. However, the Veteran’s claim was readjudicated in an October 2020 rating decision after the Statement of the Case and the certification to the Board. Because of this, a remand is necessary so the RO can readjudicate the Veteran’s claim in a Supplemental Statement of the Case. Finally, the Board notes that the RO proposed to reduce the Veteran’s service-connected lumbar spine and right lower extremity radiculopathy (sciatic) disabilities AND reduced them in the October 2020 rating decision. In general, where a reduction in an evaluation of a service-connected disability occurs, VA must notify the Veteran of this proposed reduction, and provide him or her with at least 60 days time to present additional evidence showing that compensation should be continued at the present level. 38 C.F.R. § 3.105(e). In the October 2020 rating decision, the RO simultaneously proposed to reduce the Veteran’s lumbar spine and right lower extremity ratings and reduced the ratings. The Veteran and his attorney were not notified or given at least 60 days to respond. Because of this, a Supplemental Statement of the Case is necessary to readjudicate the Veteran’s claims from the October 2020 rating decision. The matters are REMANDED for the following actions: 1. Please note that, by law, ALL remanded claims must be processed expeditiously. 2. In accordance with the provisions of 38 C.F.R. § 3.159(c)(1), contact the Veteran for additional information about treatment for his condition and make efforts to obtain all VA and private treatment records concerning these claims. 3. Schedule the Veteran for a VA examination to determine the nature and cause of any diagnosed acquired psychiatric disorder. Prior to the examination, the claims folder and a copy of this remand must be made available to the examiner for review of the case. A notation to the effect that this record review took place should be included in the report. After the above has been completed, the examiner must opine as to whether it is at least as likely as not (a 50 percent probability or greater) that any diagnosed acquired psychiatric disability is causally related to active service, represents the initial manifestations of his current diagnoses, OR was proximately CAUSED BY or AGGRAVATED BY his service-connected disabilities. In reaching any conclusion, the examiner must consider the April 2020 letter from the Veteran’s spouse describing how the pain from his service-connected disabilities caused him to become irritated and depressed. 4. Schedule the Veteran for a VA examination to assist in determining the nature and cause of his claimed sleep apnea. The Veteran’s claims folder must be made available to the examiner. Based on a review of the record and examination of the Veteran, the examiner should provide opinions that respond to the following: Please identify the likely cause of the Veteran’s sleep problems. Specifically, is it at least as likely as not that this disability is causally related to active service, represents the initial manifestations of his current diagnoses, OR was proximately CAUSED BY or AGGRAVATED BY his service-connected disabilities, to include as due herbicide exposure. In addition, although sleep apnea is often diagnosed by overnight polysomnogram (sleep study), the Board notes that several other clinical predictors of sleep apnea have been developed, including questionnaires such as the STOP-BANG, a validated screening tool for sleep apnea (See, e.g. “STOP-Bang Questionnaire: A Practical Approach to Screen for Obstructive Sleep Apnea” published in the peer-reviewed medical journal Chest in March 2016 at 149(3):631-8 (noting 8 clinical predictors of sleep apnea, including Snoring, Tiredness during the day, Observed apnea during sleep, high blood Pressure, BMI (Body Mass Index) greater than 35 kg/m2, Age over 50 years, Neck circumference greater than 40 cm, and male Gender)). Therefore, while reviewing the claims file, the examiner should consider whether any clinical indicators of sleep apnea were present IN THE PAST, for example, during service or any time after service but before a formal sleep diagnosis. The examiner should identify any such clinical indicators and explain whether they might support a retrospective sleep apnea diagnosis. In reaching any conclusion, the examiner must consider the April 2020 letter from the Veteran’s spouse describing how the pain from his service-connected disabilities caused him to have trouble sleeping. 5. Schedule the Veteran for a VA examination to determine the nature and cause of any diagnosed headaches, to include migraines. Prior to the examination, the claims folder and a copy of this remand must be made available to the examiner for review of the case. A notation to the effect that this record review took place should be included in the report. The examiner should address whether it is at least as likely as not (a 50 percent or greater probability) that any diagnosed headaches are causally related to active service, represent the initial manifestations of his current diagnoses, OR was proximately CAUSED BY or AGGRAVATED BY his service-connected disabilities. In reaching any conclusion, the examiner is asked to consider the lay statements regarding headaches. 6. Schedule the Veteran for VA examinations to determine the nature and cause of any diagnosed bilateral knee, foot, and hand conditions. Prior to the examination, the claims folder and a copy of this remand must be made available to the examiner for review of the case. A notation to the effect that this record review took place should be included in the report. The examiner should address whether it is at least as likely as not (a 50 percent or greater probability) that any diagnosed bilateral knee, foot, and hand conditions are causally related to active service, represent the initial manifestations of his current diagnoses, OR were proximately CAUSED BY or AGGRAVATED BY his service-connected disabilities. In reaching any conclusion, the examiner is asked to consider the lay statements regarding knee, foot, and hand pain as well as the VA treatment records for gout. 7. After completion of the above and any further development deemed necessary, readjudicate ALL issues in the October 2020 rating decision in a Supplemental Statement of the Case. The Veteran and his attorney must be provided with a copy of the SSOC, which includes a summary of any additional evidence submitted. The requisite period of time for a response should be afforded. The case should then be returned to the Board for further consideration. 8. A detailed explanation (rationale) is requested for all opinions provided. (By law, the Board is not permitted to rely on any conclusion that is not supported by a thorough explanation. Providing an opinion or conclusion without a thorough explanation will delay processing of the claim and may also result in a clarification being requested). VICTORIA MOSHIASHWILI Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board J. Abrams, 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.