Citation Nr: 21009689 Decision Date: 02/23/21 Archive Date: 02/23/21 DOCKET NO. 16-50 857 DATE: February 23, 2021 ORDER The petition to reopen the previously denied claim of entitlement to service connection for bilateral knee disability is granted. The petition to reopen the previously denied claim of entitlement to service connection for low back disability is granted. The petition to reopen the previously denied claim of entitlement to service connection for bilateral ankle disability is granted. A compensable rating for otitis externa is denied. An effective date earlier than August 13, 2012, for the grant of service connection for erectile dysfunction, is denied. An effective date earlier than February 25, 2014, for the grant of service connection for tinnitus, is denied. REMANDED Entitlement to service connection for obstructive sleep apnea (OSA) is remanded. Entitlement to service connection for hypertension is remanded. Entitlement to service connection for bilateral ankle disability is remanded. Entitlement to service connection for bilateral knee disability is remanded. Entitlement to service connection for low back disability is remanded. FINDINGS OF FACT 1. An unappealed October 2014 rating decision denied entitlement to service connection for bilateral knee disability is final; new and material evidence was not received prior to expiration of the appeal period; subsequently received evidence includes evidence that is not cumulative or redundant and relates to an unestablished fact necessary to reopen the claim. 2. An unappealed October 2014 rating decision that denied service connection for low back disability is final; new and material evidence was not received prior to expiration of the appeal period; subsequently received evidence includes evidence that is not cumulative or redundant and relates to an unestablished fact necessary to reopen the claim. 3. An unappealed July 2013 rating decision that denied service connection for bilateral ankle disability is final; new and material evidence was not received prior to expiration of the appeal period; subsequently received evidence includes evidence that is not cumulative or redundant and relates to an unestablished fact necessary to reopen the claim. 4. The Veteran’s service-connected otitis externa was not more nearly manifested by frequent and prolonged treatment during the period on appeal. 5. The July 2013 rating decision granting service connection for erectile dysfunction from August 13, 2012, is final; the claim for an earlier effective date is an impermissible freestanding claim. 6. The September 2014 rating decision granting service connection for tinnitus effective February 25, 2014, is final; the claim for an earlier effective date is an impermissible freestanding claim. CONCLUSIONS OF LAW 1. The October 2014 rating decision denying the claim for service connection for bilateral knee disability is final; and new and material evidence has been received to reopen the claim. 38 U.S.C. §§ 5103, 5103A, 5108, 7105(c); 38 C.F.R. §§ 3.156(a), 3.160(d), 20.1103. 2. The October 2014 rating decision that denied service connection for low back disability is final; and new and material evidence has been received to reopen the claim. 38 U.S.C. §§ 5103, 5103A, 5108, 7105(c); 38 C.F.R. §§ 3.156(a), 3.160(d), 20.1103. 3. The July 2013 rating decision that denied service connection for bilateral ankle disability is final; and new and material evidence has been received to reopen the claim. 38 U.S.C. §§ 5103, 5103A, 5108, 7105(c); 38 C.F.R. §§ 3.156(a), 3.160(d), 20.1103. 4. The criteria for a compensable rating for otitis externa have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.87, Diagnostic Code 6210. 5. The July 2013 rating decision that granted service connection for erectile dysfunction from August 12, 2012, is final; and the claim of entitlement to an effective date earlier than August 12, 2012, for the grant of service connection for erectile dysfunction, a freestanding claim, is denied as a matter of law. 38 U.S.C. §§ 5103, 5109A, 5110, 7105(c); 38 C.F.R. §§ 3.105(a), 20.1103 6. The September 2014 rating decision granting service connection for tinnitus effective February 25, 2014, is final; and the claim of entitlement to an effective date earlier than February 25, 2014, for the grant of service connection for erectile tinnitus, a freestanding claim, is denied as a matter of law. 38 U.S.C. §§ 5103, 5109A, 5110, 7105(c); 38 C.F.R. §§ 3.105(a), 20.1103 REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from November 1964 to November 1968, with service in the Republic of Vietnam and Camp Lejeune, North Carolina. He is presumed to have been exposed to herbicide agents and contaminated water at Camp Lejeune. See 38 C.F.R. §§ 3.307(a)(6)(iii) and (7)(i). The record shows that the Veteran is service-connected for depressive disorder with anxious distress, diabetes mellitus, asthma, urethritis, tinnitus, otitis externa, erectile dysfunction, left ear hearing loss, left foot plantar warts, and bilateral lower extremity peripheral neuropathy; he has a combined disability rating of 90 percent from April 13, 2018; and he has been awarded special monthly compensation under 38 U.S.C. § 1114(k). These matters come before the Board of Veterans’ Appeals (Board) on appeal from rating decisions of a Department of Veterans Affairs (VA) Regional Office (RO). A March 2019 Board decision denied the claim of entitlement to service connection for OSA and remanded the claims of entitlement to service connection for glaucoma, bilateral upper extremity peripheral neuropathy, bilateral lower extremity peripheral neuropathy, and left foot disability; increased ratings for asthma, and left ear hearing loss; and a total disability rating based on individual unemployability due to service-connected disability (TDIU). Although an August 2020 rating decision granted the claims of entitlement to service connection for glaucoma, bilateral upper extremity peripheral neuropathy, bilateral lower extremity peripheral neuropathy, left foot disability, and TDIU, there appears to be ongoing development as an opinion addendum regarding the peripheral nerve disability has been requested, and a supplemental statement of the case has not been issued for the claims of entitlement to increased ratings for asthma and left ear hearing loss. Accordingly, those claims will be the subject of a separate Board decision. The Veteran appealed the Board’s denial of entitlement to service connection for OSA to the United States Court of Appeals for Veterans Claims (Court). The Court granted an August 2019 Joint Motion for Remand, vacating the prior Board decision and remanding the appeal to Board decision. A March 2020 Board decision remanded the claim of entitlement to service connection for OSA for further development consistent with the August 2019 Court remand. Unfortunately, there has not been substantial compliance with the Board’s previous remand directive and another remand is required. Stegall v. West, 11 Vet. App. 268, 271 (1998). Although an examination was provided in April 2020, as explained in the Remand section of this decision, it is inadequate. Where VA provides an examination or obtains an opinion, it must be adequate. Barr v. Nicholson, 21 Vet. App. 303 (2007). The Board notes that the Veteran’s substantive appeal failed to select an optional Board hearing preference. Additionally, there has been no response, from either the Veteran or his counsel, to October 2020 and December 2020 Board letters requesting clarification of the Veteran’s optional Board hearing preference. Moreover, there has been no response, from either the Veteran or his counsel, to November 2020 and January 2021 telephone calls regarding the Veteran’s optional Board hearing preference. The Veteran and counsel are reminded that a request for a hearing must be made within 90 days following the mailing of notice to them that an appeal has been certified to the Board for appellate review and that the appellate record has been transferred to the Board, or up to and including the date the appellate decision is promulgated by the Board, whichever comes first. 38 C.F.R. § 20.1305. Lastly, although the Veteran’s counsel requested the credentials of the VA clinician providing medical opinions in certain matters before the Board here, the Board finds that, as those matters are remanded, the request is now moot. See Francway v. Wilkie, 940 F.3d 1304 (Fed. Cir. 2019). New and Material Evidence A claim that has been denied in an unappealed Regional Office (RO) decision may not thereafter be reopened and allowed. 38 U.S.C. § 7105(c). The exception to this rule is 38 U.S.C. § 5108, which provides that 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 is defined as existing evidence not previously submitted to agency decision makers. Material evidence means 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 previously of record, and must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a). The regulation is designed to be consistent with 38 C.F.R. § 3.159(c)(4), which “does not require new and material evidence as to each previously unproven element of a claim.” Shade v. Shinseki, 24 Vet. App. 110 (2010). In establishing whether new and material evidence has been submitted, the credibility of evidence is presumed unless the evidence is inherently incredible or consists of statements that are beyond the competence of the person or persons making them. See Justus v. Principi, 3 Vet. App. 510, 513 (1992). Regardless of whether the RO found that new and material evidence had been submitted to reopen a claim for service connection, it is well established that the Board must determine on its own whether new and material evidence has been submitted to reopen a claim. See Barnett v. Brown, 83 F.3d 1380 (Fed. Cir. 1996). 1. Whether new and material evidence has been received to reopen the previously denied claim of entitlement to service connection for bilateral knee disability. The Veteran filed a request to reopen the previously denied claim of entitlement to service connection for bilateral knee disability in April 2018. See VA 21-526b, Veteran Supplemental Claim (April 2018). In support, the Veteran submitted printouts of online medication information which shows that common side effects of Albuterol, for which the Veteran is prescribed for the treatment of his service-connected diabetes, include muscle and bone pain. See Third Party Correspondence (April 2018). The Veteran’s counsel contends that the claim should be reopened based on a new theory of entitlement, and the medical literature submitted regarding the association between joint pain and depression. See NOD (February 2019). The issue in this appeal is whether new and material evidence has been received to reopen the previously denied claim for service connection for bilateral knee disability. The Board concludes that the October 2014 rating decision denying the claim for service connection for bilateral knee disability is final. The Board further concludes that new and material evidence has been received to reopen the claim. In this case, an unappealed July 2013 rating decision denied service connection for bilateral knee disability because the condition neither occurred in nor was caused by service. An October 2014 rating decision confirmed and continued the prior denial because the Veteran’s STRs do not contain complaints, treatment, or diagnosis for the condition. VA notified the Veteran of this decision in an October 2014 letter and how to appeal. VA received no appeal or new and material evidence prior to expiration of the appeal period. Therefore, the October 2014 rating decision became final. A January 2019 rating decision reopened the claim but denied service connection for bilateral knee disability. This appeal arises from the January 2019 adverse decision. At the time of the prior final disallowance in October 2014, the evidence before adjudicators included STRs and VA treatment records. STRs show no knee complaints or treatment. A November 1968 service examination reflects normal clinical evaluation of the lower extremities. VA treatment records show complaints of knee pain, but no indication of service relation was provided. Evidentiary submissions received since the October 2014 decision includes new and material evidence. Specifically, the Veteran now contends that secondary service connection is warranted, a new theory of entitlement, based on submitted medical literature showing an association between joint pain and depression, and that medication prescribed for service-connected diabetes, Albuterol, causes musculoskeletal pain as a side effect. Notably, a secondary theory of service connection has not been considered, as the July 2013 and September 2014 rating decisions, and the June 2018 report of VA examination indicate that only direct service connection was considered. Additionally, a VA knee and lower leg examination was provided in June 2018, which shows that the examiner diagnosed knee tendonitis/tendinosis with an onset date of 1967. The Board finds that the evidence is new as it was not previously considered by VA adjudicators and material as it tends to show a nexus relationship to a service-connected disability not previously considered. See Boggs v. Peake, 520 F.3d 1330, 1336-37 (Fed. Cir. 2008) (while a new theory of entitlement cannot be the basis to reopen a claim under 38 U.S.C. § 7104(b), if the evidence supporting a new theory of entitlement constitutes new and material evidence, then VA must reopen the claim under section 5108). It is noted that the credibility of the evidence is presumed. See Justus, 3 Vet. App. 510, 513 (1992). Accordingly, the petition to reopen is granted. 2. Whether new and material evidence has been received to reopen the previously denied claim of entitlement to service connection for low back disability. 3. Whether new and material evidence has been submitted to reopen the previously denied claim of entitlement to service connection for bilateral ankle disability. The Veteran contends that his low back and bilateral ankle disorders are related to his military service or service-connected disability. The claims were previously denied in an unappealed rating decision. The question for the Board is whether new and material evidence has been submitted to reopen the previously denied claims for service connection for the low back and ankles. The Board concludes that July 2013 and October 2014 rating decisions, denying the claims for service connection for bilateral ankle disability and low back disability, respectively, are final. The Board further concludes that new and material evidence has been received to reopen the claims. A November 1982 rating decision denied the claim for service connection for low back and ankle disability because evidence did not show a currently diagnosed disability. The Veteran appealed to the Board. A September 1983 Board decision denied the claims on the same basis. It is noted that a decision of the agency of original jurisdiction affirmed by the Board is subsumed by a final appellate decision. 38 C.F.R. § 20.1104. A January 1996 rating decision denied the application to reopen the claim of entitlement to service connection for right ankle disability to include bone spur. The Veteran appealed to the Board. An April 1999 Board decision denied the petition to reopen. The Board notified the Veteran of this decision and how to appeal. The record shows that he did not appeal this decision to the Court of Appeals for Veterans Claims. Therefore, this decision is final. A July 2013 rating decision denied the application to reopen the claim of entitlement to service connection for bilateral ankle disability because the recent evidentiary submissions did not tend to show that he had a persistent disability in service even though his service treatment records shows complaints. A July 2013 VA letter notified the Veteran of this decision and how to appeal. VA did not receive a timely appeal or new and material evidence prior to expiration of the appeal period. Therefore, this decision is final. 38 U.S.C. § 7105; 38 C.F.R. §§ 3.104, 20.1103. An October 2014 rating decision denied the application to reopen the claim of entitlement to service connection for low back disability. An October 2014 VA letter notified the Veteran of this decision and how to appeal. VA received no appeal or new and material evidence prior to expiration of the appeal period. Therefore, the October 2014 rating decision became final. 38 U.S.C. § 7105; 38 C.F.R. §§ 3.104, 20.1103. VA received in Apri 2018 the Veteran’s application to reopen the previously denied ankle and low back claims. See VA Form 21-526b (April 2018). A January 2019 rating decision denied the application to reopen these matters. This appeal arises from the Veteran’s disagreement with that decision. Evidentiary submission received since the prior final disallowances constitutes new and material evidence. Specifically, as to the ankle claim, the recent evidentiary submissions included evidence that medical prescribed for the Veteran’s service-connected disability has been linked to joint pain. As to the low back claim, the recent evidentiary submissions include a private medical statement, dated in March 2010, that shows diagnoses of degenerative disc disease of the lumbar spine and low back pain. See Medical Treatment Record – Non- Governmental Facility (July 2010). This evidence is new as it was not previously considered by adjudicators and material as it tends to cure a prior evidentiary defect. It is noted that the threshold for reopening is low and that the credibility of the evidence is presumed for the purposes of reopening. See Justus, supra. Accordingly, the petitions to reopen are granted. Evaluations Disability ratings are determined by the application of the VA Schedule for Rating Disabilities (Rating Schedule). 38 C.F.R. Part 4. The percentage ratings contained in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and their residual conditions in civil occupations. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Any reasonable doubt regarding the degree of disability will be resolved in favor of the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 4.3. If two ratings are potentially applicable, 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 essential, in determining the level of current impairment, that the disability be considered in the context of the entire recorded history. 38 C.F.R. § 4.1. 4. Entitlement to a compensable rating for otitis externa. The Veteran contends that he has symptoms of ear discharge with dry, itchy, and scaly skin. See VA 21-4138 Statement In Support of Claim (May 2020). The Veteran’s counsel contends that the Veteran’s symptoms are severe enough to warrant a compensable rating. See NOD (February 2019). The Veteran’s counsel also contends that the VA examination is inadequate as the examiner did not consider statements of symptoms during outbreaks, not present during the examination. See Form 9 (April 2020). The issue in this appeal is whether the Veteran’s associated symptoms caused the level of impairment required for a compensable rating. The Board concludes that the preponderance of the evidence is against finding that the criteria for a compensable rating for otitis externa are met as the disability is not shown by the more persuasive evidence to more nearly approximate the symptoms associated with a compensable rating. The Veteran’s otitis externa is rated under 38 C.F.R. § 4.87, Diagnostic Code 6210. Under Diagnostic Code 6210, a 10 percent rating is assigned for swelling, dry and scaly or serous discharge, and itching requiring frequent and prolonged treatment. Notably, in every instance where the schedule does not provide a zero percent evaluation for a diagnostic code, a zero percent evaluation shall be assigned when the requirements for a compensable evaluation are not met. See 38 C.F.R. § 4.31. Here, the Veteran filed a claim for an increase rating in April 2018. A report of VA ear condition examination dated in June 2018 shows that the Veteran reported ear infection and discharge, and that his condition has stayed the same. The examiner noted that the Veteran was normal on physical examination and that the condition was inactive. Notably, VA and private treatment records show no complaints or treatment for the condition. A compensable disability rating is not warranted as the record shows no evidence of frequent and prolonged treatment as contemplated by a compensable rating. The Board has considered the counsel’s contention that the Veteran’s symptoms warrant a compensable rating based on symptoms which were not present during the VA examination. Although the Veteran reported infection and drainage that he treats with vinegar drops, there is no indication that his symptoms required frequent and prolonged treatment as contemplated by a compensable rating. The Veteran reported that his ear drainage “comes and goes” but did not report how often he treats his symptoms with vinegar drops. Rather, the Veteran specifically reported that he has not been to an ear, nose, and throat doctor in four to five years. See VA 21-4138 Statement In Support of Claim (May 2020). Notably, neither the lay nor the medical evidence shows that the criteria required for a compensable rating have been met at any time during the appeal. Whether a disability meets the schedular criteria for the assignment of a higher evaluation is a factual determination by the Board based on the complaints coupled with the medical evidence. Here, although the Veteran and his counsel believe that the Veteran meets the criteria for a higher disability rating, the complaints and the medical findings do not meet the schedular requirements for the higher rating, as explained and discussed above. Both the lay and the medical evidence are probative here. However, it does not more nearly reflect the criteria for a higher rating under the assigned diagnostic code or any other potentially relevant code, or entitlement to a separate evaluation. Also, there is no basis to stage the rating as the evidence shows no distinct period where the disability exhibited symptoms that would warrant different ratings than assigned. See Hart v. Mansfield, 21 Vet. App. 505 (2007) (staged ratings are appropriate when the factual findings show distinct period where the service-connected disability exhibits symptoms that would warrant different ratings); see also Fenderson v. West, 12 Vet. App. 119, 126 (2001). Therefore, the preponderance of the evidence is against finding that the Veteran’s otitis externa symptoms more nearly approximate the symptoms associated with a compensable rating. Accordingly, the claim is denied. There is no doubt to resolve. See 38 U.S.C. § 5107(b); 38 C.F.R. § 4.3; Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). Effective Dates Generally, the effective date of compensation based on an original claim, a claim reopened after final disallowance, or a claim for increase will be on the date of receipt of the claim or the date entitlement arose, whichever is the later. 38 U.S.C.§ 5110(a); 38 C.F.R. § 3.400. The effective date based upon a grant of direct service connection will be the day following service from active service or date entitlement arose if claim is received within 1 year after separation from service; or the date entitlement arose, whichever is later. 38 C.F.R. § 3.400(b)(2). Notwithstanding, an unappealed decision by the agency of original jurisdiction (AOJ) may not thereafter be reopened and allowed. 38 U.S.C. § 7105(c). The exception is where the evidence establishes that there is clear and unmistakable evidence (CUE) in the prior final decision. 38 U.S.C. § 5109A. A claim of CUE is a collateral attack on an otherwise final rating decision by a VA regional office. Smith v. Brown, 35 F.3d 1516, 1527 (Fed. Cir. 1994). As such, there is a presumption of validity that attaches to a final decision and, when such a decision is collaterally attacked, the presumption becomes even stronger. Fugo v. Brown, 6 Vet. App. at 43-44. Therefore, a claimant who seeks to obtain retroactive benefits based on CUE has a much heavier burden than that placed on a claimant who seeks to establish prospective entitlement to VA benefits. Akins v. Derwinski, 1 Vet. App. 228, 231 (1991). The reference above to “the date entitlement arose” is not defined in the current statute or regulation. The Court has interpreted it as the date when the claimant met the requirements for the benefits sought; this is determined on a “facts found” basis. See 38 U.S.C. § 5110(a); see also McGrath v. Gober, 14 Vet. App. 28, 35 (2000). Prior to March 24, 2015, when VA amended its rules as to what constitutes a claim, a claim was a formal or informal communication in writing requesting a determination of entitlement or evidencing a belief in entitlement to a benefit. 38 U.S.C. § 101(30); 38 C.F.R. § 3.1(p). The date of receipt shall be the date on which a claim, information or evidence was received by VA. 38 U.S.C. § 101(30); 38 C.F.R. § 3.1(r). Any communication or action, indicating intent to apply for one or more benefits under the laws administered by VA, from a claimant, his or her duly authorized representative, a Member of Congress, or some person acting as next friend of a claimant who is not sui juris may be considered an informal claim. Such informal claims must identify the benefit sought. 38 C.F.R. § 3.155. 5. Entitlement to an effective date earlier than August 13, 2012, for the award of service connection for erectile dysfunction. The Veteran’s counsel requested an effective date of April 13, 2018, in response to the January 2019 rating decision which improperly assigned an effective date of June 8, 2018 for the already service-connected erectile dysfunction. See NOD (February 2019). Although the April 2020 statement of the case (SOC) informed the Veteran and counsel that the January 2019 rating decision’s assignment of a June 8, 2018 effective date was invalid and had no effect on the already assigned effective date of August 13, 2012, counsel selected the option to appeal all issues listed on the statement of the case. See Form 9 (April 2020). Because the claims file reflects that service connection for erectile dysfunction with nonspecific urethritis has been in effect continuously since August 13, 2012, the Board has construed the appeal as a claim for an effective date prior to August 13, 2012, for the grant of service connection for erectile dysfunction. In this case, VA received the Veteran’s claim for service connection for erectile dysfunction on August 13, 2012. A July 2013 rating decision granted service connection for erectile dysfunction effective from August 13, 2012 (date of claim). A July 2013 VA letter notified the Veteran of this decision and how to appeal. VA received no appeal. Therefore, the July 2013 rating decision became final. 38 U.S.C. § 7105; 38 C.F.R. §§ 3.104, 20.1103. The Veteran and counsel do not contend otherwise. Because the July 2013 rating decision is final, any later action to alter the effective date assigned in a final decision would “vitiate the rule of finality,” and constitute a “freestanding” earlier effective date claim, which is simply not permissible absent a showing of CUE. Leonard v. Nicholson, 405 F.3d 1333, 1337 (2005) (citing Cook v. Principi, 318 F.3d 1334, 1339 (Fed. Cir. 2002) (en banc) (The “purpose of the rule of finality is to preclude repetitive and belated readjudications of veterans’ benefits claims.”). The record does not reflect that the Veteran has submitted a motion for revision of the July 2013 rating decision as to the effective date for erectile dysfunction based on CUE. CUE is not before the Board at this time. A motion of CUE in a prior rating decision to revise or reverse must be addressed in the first instance by the AOJ. See Andre v. Principi, 301 F.3d 1354, 1361 (Fed. Cir. 2002); Jarrell v. Nicholson, 20 Vet. App. 326, 332-33 (2006). Therefore, the claim for an effective date prior to August 13, 2012, for the grant of service connection for erectile dysfunction is denied as a matter of law. Sabonis v. Brown, 6 Vet. App. 426 (1994). 6. Entitlement to an effective date earlier than February 25, 2014, for the award of service connection for tinnitus. The Veteran’s counsel requested an effective date of April 13, 2018, in response to the January 2019 rating decision which improperly assigned an effective date of June 8, 2018 for the already service-connected tinnitus. See NOD (February 2019). Although the April 2020 statement of the case informed the Veteran and counsel that the January 2019 rating decision’s assignment of a June 8, 2018 effective date was invalid and had no effect on the already assigned effective date of February 25, 2014, counsel selected the option to appeal all issues listed on the statement of the case. See Form 9 (April 2020). Because the claims file reflects that service connection for tinnitus has been in effect continuously since February 25, 2014, the Board has construed the appeal as a claim for an effective date prior to February 25, 2014, for the grant of service connection for tinnitus. In this case, VA received the Veteran’s claim for service connection for tinnitus on February 25, 2014. A September 2014 rating decision granted service connection for tinnitus effective from February 25, 2014 (date of claim). An October 2014VA letter notified the Veteran of this decision and how to appeal. VA received no appeal. Therefore, the September 2014 rating decision became final. 38 U.S.C. § 7105; 38 C.F.R. §§ 3.104, 20.1103. The Veteran and counsel do not contend otherwise. Because the September 2014 rating decision is final, any later action to alter the final decision would constitute a “freestanding” earlier effective date claim, which is simply not permissible absent a showing of CUE. See Leonard, 405 F.3d 1333, 1337 (Fed. Cir. 2005); Sears v. Principi, 349 F.3d 1326 (Fed. Cir. 2003); Rudd v. Nicholson, 20 Vet. App. 296 (2006) (finding that only a request for revision based on CUE could result in the assignment of an effective date earlier than the date of a final decision). A claim of CUE is not before the Board at this time. A motion of CUE in a prior rating decision to revise or reverse must be addressed in the first instance by the AOJ. See Andre, 301 F.3d 1354, 1361 (Fed. Cir. 2002); Jarrell, 20 Vet. App. 326, 332-33 (2006). Therefore, the claim for an effective date prior to February 25, 2014, for the grant of service connection for tinnitus is denied as a matter of law. Sabonis, 6 Vet. App. 426 (1994). REASONS FOR REMAND Although further delay is regrettable, the Board finds that remand is required to ensure that VA has met its duty to assist the Veteran in the following claims. 38 C.F.R. § 3.159(c)(4). In remanding these matters, the Board makes no finding, implicit or otherwise, as to the credibility of the Veteran's assertions. Neither the Veteran’s credibility nor any lack thereof should be presumed in this remand. 1. Entitlement to service connection for OSA. The Veteran contends that his obesity began after his asthma, and that his OSA could be related to his obesity, service-connected asthma and diabetes, and/or exposure to herbicide agents during the Vietnam War and contaminated water at Camp Lejuene, North Carolina. See Correspondence (April 2018). The Veteran’s counsel contends that the Veteran’s OSA is due to his exposure to herbicide agents during the Vietnam War and contaminated water at Camp Lejuene, North Carolina. See Third Party Correspondence (April 2018). Counsel also contends that the Veteran’s service-connected disabilities caused his obesity, which caused or aggravated his OSA. See Third Party Correspondence (January 2017), (November 2019). Counsel further contends that the April 2020 VA medical opinion is inadequate because the examiner provided no opinion regarding whether the Veteran’s obesity aggravated his OSA. See Third Party Correspondence (January 2021). A remand by the Board imposes upon the Secretary of VA a concomitant duty to ensure compliance with the terms of the remand. Where remand orders of the Board are not complied with, the Board errs in failing to ensure compliance. Stegall, 11 Vet. App. at 271. Here, the Board finds that the April 2020 VA medical opinion (VAMO) is inadequate for adjudicative purposes. Among other reasons, it is inadequate because it relied on the absence of documented in-service diagnosis or treatment; it suggests that the time gap between service and the Veteran’s diagnosis of OSA is dispositive without any explanation; it not fully address the Veteran’s theory that OSA is cause by or the result of his exposure to herbicide agents and/or contaminated water at Camp Lejuene or explain the significance of the opinon’s reference to the gap in time between service and findings for OSA; it does not adequately address obesity as an intermediate step in secondary service connection. It is noted that an in-service diagnosis is not required to establish service connection. Cosman v. Principi, 3 Vet. App. 503 (1992); see also 38 C.F.R. § 3.303(d) (service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service). Further, an examination report or opinion must contain a clear conclusion with supporting data, and a reasoned medical explanation connecting the two. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 301 (2008). 2. Entitlement to service connection for hypertension. The Veteran contends that he had hypertension “ever since I’ve had this diabetes.” See Correspondence (April 2018). The Veteran’s counsel contends that the Veteran’s hypertension is due to service-connected depressive disorder, based on submitted medical literature regarding the association between hypertension and psychiatric disorders, and requests a medical opinion which considers secondary service connection. See NOD (February 2019); Form 9 (April 2020). Here, the Veteran is service-connected for diabetes and depressive disorder with anxious distress. The Veteran’s counsel submitted medical literature which indicates that hypertension is associated with depression and anxiety. The submitted literature discussed a medical study which found that there is a “significant correlation” between blood pressure values and depression, and that depression “may interfere with blood pressure control.” Correspondence (February 2019). The submitted literature also discussed a medical study which suggests that there is an “association between anxiety and increased risk of hypertension.” Id. The Board cannot make a fully-informed decision on the issue of entitlement to service connection for hypertension because no VA examiner has opined whether hypertension is due to service-connected depressive disorder. See McLendon v. Nicholson, 20 Vet. App. 79 (2006). Therefore, remand is necessary. 3. Entitlement to service connection for bilateral ankle disability. The Veteran contends that his ankle pain began following his service in Vietnam and has continued since service to the present. See Correspondence (April 2018). The Veteran also contends that his ankle pain is secondary to medication, Albuterol, prescribed for service-connected diabetes. Id. The Veteran’s counsel reiterates the Veteran’s contentions, see Third Party Correspondence (April 2018), and further contends that secondary service connection is warranted, based on submitted medical literature regarding an association between joint pain and depression. See NOD (February 2019). Service treatment records (STRs) include notations of ankle complaints. For example, a July 10, 1967, STR reflects that the Veteran presented with complaints of sore ankles, and that “when he wears civilian shoes he has no support and his ankles give way.” He was given two ACE wraps for his ankles. A July 13, 1967, STR shows back and ankles complaints, again in the context of wearing civilian shoes that had no support. A November 1968 STR reflects that the Veteran was playing football when he injured his right foot. His November 1968 report of examination at separation shows normal clinical evaluation of the lower extremities and feet. The Veteran’s original VA compensation claim did not include any claim for the ankles. The first documented indication post service of any ankle disorder is on the Veteran’s October 1982 disability claim. See Third Party Correspondence (October 1982). It is noted that the nature and etiology of the Veteran’s ankle complaints is unclear. A May 2015 VA treatment note indicated complaints of the ankles giving way. A September 2015 VA examination report (peripheral neuropathy) reflects that the Veteran report that his ankles ache. The Board cannot make a fully-informed decision on the issue of service connection for right or left ankle disability because no VA examiner has opined whether on whether the Veteran has right or left ankle disabilty that is related to service or secondary to service-connected disabilty to include medications taken therefor. See McLendon, supra. 4. Entitlement to service connection for bilateral knee disability. The Veteran contends that his knee pain began following his service in Vietnam and has continued since service to the present. See Correspondence (April 2018). The Veteran also contends that his knee pain is secondary to medication, Albuterol, prescribed for service-connected diabetes. Id. The Veteran’s counsel reiterates the Veteran’s contentions, see Third Party Correspondence (April 2018), and further contends that secondary service connection is warranted, based on submitted medical literature regarding the association between joint pain and depression. See NOD (February 2019). Although a June 2018 VAMO was obtained, the Board finds that it is inadequate for adjudication for several reasons. For example, it relied on the absence of a diagnosis or treatment in service when an in-service diagnosis is not required to establish service connection. See Cosman, supra; 38 C.F.R. § 3.303(d). Also, it does not reflect consideration of the theory that his condition/symptoms are secondary to medication taken for service-connected disability and the supporting references therefor. See Third Party Correspondence (April 2018). It is also noted that a medical opinion must support the conclusions reached with an analysis that is adequate for the Board to consider and weigh against other evidence of record. See Stefl v. Nicholson, 21Vet. App.102, 124-25. A “medical examination report must contain not only clear conclusions with supporting data, but also a reasoned medical explanation connecting the two.” Nieves-Rodriguez v. Peake, 22Vet. App.295, 301 (2008). Therefore, to ensure that VA has met its duty to assist, remand is necessary to obtain another medical opinion. 5. Entitlement to service connection for low back disability. The Veteran contends that his back pain began following his service in Vietnam and has continued since service to the present. See Correspondence (April 2018). The Veteran also contends that his back pain is secondary to medication, Albuterol, prescribed for service-connected diabetes. Id. The Veteran’s counsel reiterates the Veteran’s contentions, see Third Party Correspondence (April 2018), and further contends that secondary service connection is warranted based on submitted medical literature regarding the association between joint pain and depression. See NOD (February 2019). Here, the Board finds that the June 2018 VAMO is inadequate for adjudication for several reasons. For example, the VAMO provided a negative nexus to service based on the lack of a diagnosis or treatment for the claimed disability in the STRs. However, an in-service diagnosis is not required to establish service connection. Cosman; 38 C.F.R. § 3.303(d). Also the VAMO does not reflect consideration of the theory that the Veteran’s low back pain is linked ot his service-connected psychiatric disorder with consideration of relevant literature; or that it is linked to medication taken to treat service-connected disability. It is noted that the Veteran submitted printouts of online medication information which shows that common side effects of Albuterol includes muscle and bone pain. See Third Party Correspondence (April 2018). It is also noted that the Veteran’s counsel submitted medical literature discussing an association between joint pain and psychiatric disorders. The matters are REMANDED for the following action: 1. Obtain the Veteran’s VA treatment records for the period from October 2018 to the Present. 2. Obtain an addendum opinion from an appropriate clinician on the etiology of the Veteran’s OSA. The entire claims file, to include a copy of this REMAND, should be made available to and reviewed by the clinician. The opinion should, among other things, include a discussion of the Veteran's documented history and assertions. The opinion should also identify and explain the relevance or significance, as appropriate, of any history, clinical findings, medical knowledge or literature, etc., relied upon in reaching the conclusion(s). NOTE (1): An adequate medical opinion may not be predicated solely on the absence of an in-service diagnosis or documented complaints. NOTE (2): An adequate medical opinion may not be predicated solely on the absence of medical studies or literature supporting causation or aggravation. NOTE (3): A negative medical opinion may be predicated on the absence of the condition in the list of diseases enumerated in VA regulations as associated with exposure to herbicide agents or contaminated water at Camp Lejeune. The clinician must opine on: Direct Service Connection (a) Whether the Veteran's OSA at least as likely as not (1) began during active service or (2) is related to an in-service injury, event, or disease to include exposure to herbicide agents and contaminated water at Camp Lejeune. Secondary Service Connection (b) Whether the Veteran’s OSA is at least as likely as not (1) proximately due to service-connected depressive disorder, asthma, or diabetes mellitus; or (2) aggravated beyond its natural progression by service-connected depressive disorder, asthma, or diabetes mellitus. Provide a rationale that addresses causation and aggravation as independent concepts. Secondary Service Connection Medication (c) Whether the Veteran’s OSA is at least as likely as not (1) proximately due to medication taken for service-connected disabilities; or (2) aggravated beyond its natural progression by medication taken for service-connected disabilities. Consider and expressly address the Veteran's theory that his Albuterol causes or aggravates his OSA. Provide a rationale that deals with causation and aggravation as independent concepts. Indirect Secondary Service Connection Obesity as an “Intermediate Step” (d) Is it at least as likely as not that the Veteran’s service-connected depressive disorder, asthma, and/or diabetes mellitus, to include medication taken therefor, caused the Veteran to become obesity? Provide a rationale that deals with causation and aggravation as independent concepts. (e) If so, was the resulting obesity a substantial factor in causing the Veteran’s OSA?. (f) If yes, but for the Veteran’s obesity, would the Veteran have developed OSA? 3. Schedule the Veteran for a VA examination by an appropriate clinician to address the etiology of his hypertension. The entire claims file, to include a copy of this REMAND, should be made available to and reviewed by the clinician. The examiner should address the following: Whether the Veteran’s hypertension is at least as likely as not (1) proximately due to service-connected depressive disorder, asthma, or diabetes mellitus, to include medication taken therefor; or (2) aggravated beyond its natural progression by service-connected depressive disorder, asthma, or diabetes mellitus, to include medication taken therefor. Provide a rationale that addresses causation and aggravation as independent concepts. 4. Schedule the Veteran for a VA examination for his claimed disabilities of the ankles, knees, and low back and obtain an opinion on the etiology of any ankle, knee, or low back disability found. As to each claimed condition, detail his reported symptoms in service and thereafter, including the nature, onset, progression and severity of his reported symptoms. The opinion should, among other things, include a discussion of the Veteran’s documented history and assertions. The opinion should also identify and explain the relevance or significance, as appropriate, of any history, clinical findings, medical knowledge or literature, etc., relied upon in reaching the conclusion(s). NOTE (1): An adequate medical opinion may not be predicated solely on the absence of an in-service diagnosis or documented complaints. NOTE (2): An adequate medical opinion may not be predicated solely on the absence of medical studies or literature supporting causation or aggravation. The clinician must address the following: Ankle Conditions (a) Whether the Veteran has a right or left ankle disability that (1) began during active service or (2) is related to an in-service injury, event, or disease to include the documented complaints noted in service. (b) Whether the Veteran has a right or left ankle disability that is at least as likely as not (1) proximately due to medication taken for service-connected depressive disorder, asthma, or diabetes mellitus; or (2) aggravated beyond its natural progression by medication taken for service-connected depressive disorder, asthma, or diabetes mellitus. Provide a rationale that addresses causation and aggravation as independent concepts. Specifically address the Veteran’s theory that his use of Albuterol is linked to the development of his ankle joint problems and consider any medical literature submitted to support that theory. Knee Conditions (c) Whether the Veteran has a right or left knee disability, to include tendonitis/tendinosis, that (1) began during active service or (2) is related to an in-service injury, event, or disease. (d) Whether the Veteran has a right or left knee disability that is at least as likely as not (1) proximately due to medication taken for service-connected depressive disorder, asthma, or diabetes mellitus; or (2) aggravated beyond its natural progression by medication taken for service-connected depressive disorder, asthma, or diabetes mellitus. Provide a rationale that addresses causation and aggravation as independent concepts. Specifically address the Veteran’s theory that his use of Albuterol is linked to the development of his knee joint problems and consider any medical literature submitted to support that theory. Low Back Condition (e) Whether the Veteran has a low back disability, to include lumbosacral strain, that (1) began during active service or (2) is related to an in-service injury, event, or disease. (f) Whether the Veteran has a low back disability that is at least as likely as not (1) proximately due to medication taken for service-connected depressive disorder, asthma, or diabetes mellitus; or (2) aggravated beyond its natural progression by medication taken for service-connected depressive disorder, asthma, or diabetes mellitus. Provide a rationale that addresses causation and aggravation as independent concepts. Specifically address the Veteran’s theory that his use of Albuterol is linked to the development of his joint problems and consider any medical literature submitted to support that theory. 5. Ensure that the VA medical opinions obtained include a complete rationale for the conclusions reached. The medical opinions must support the conclusions reached with an analysis that is adequate for the Board to consider and weigh against other evidence of record; medical opinions must contain not only clear conclusions with supporting data, but also a reasoned medical explanation connecting the two. If an opinion cannot be expressed without resort to 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). 6. Readjudicate. C.A. SKOW Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Thaddaeus J. Cox, Associate 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.