Citation Nr: 21013132 Decision Date: 03/08/21 Archive Date: 03/08/21 DOCKET NO. 10-22 599 DATE: March 8, 2021 ORDER 1. An initial disability rating for bilateral hearing loss, in excess of 10 percent for the period from May 19, 2008 to April 14, 2016, and in excess of 30 percent for the period from April 14, 2016 forward, is denied. 2. For the entire rating period on appeal, as a matter of law, a rating in excess of 10 percent for tinnitus is denied. 3. An effective date earlier than May 19, 2008 for service connection for bilateral hearing loss is denied. 4. Reopening of the claim for service connection for a thoracolumbar spine disability is granted. 5. Service connection for a lumbar spine disability, to include arthritis of the lumbar spine and intervertebral disc syndrome, is denied. 6. Service connection for peripheral neuropathy of the lower extremities is denied. 7. Service connection for arthritis of the hips, shoulders, hands, and feet is denied. 8. A total disability rating based on individual unemployability due to service-connected disabilities (TDIU) is denied. FINDINGS OF FACT 1. For the entire rating period from May 19, 2008 to April 14, 2016, the bilateral hearing loss disability has been manifested by no worse than Level III hearing loss in the right ear and Level V hearing loss in the left ear. 2. For the entire rating period from April 14, 2016 forward, the bilateral hearing loss disability has been manifested by no worse than Level VII hearing loss in the right ear and Level VI hearing loss in the left ear. 3. For the entire rating period on appeal, the service-connected tinnitus has been assigned the maximum 10 percent schedular rating available under Diagnostic Code 6260. 4. The claim to reopen service connection for a bilateral hearing loss disability was first received by VA on May 19, 2008. 5. A December 2002 rating decision denied service connection for a lumbar spine disability due to a lack of a nexus between the current lumbar spine disability and active service. 6. The Veteran did not enter a timely Notice of Disagreement to the December 2002 rating decision to deny service connection for a lumbar spine disability. 7. Evidence received since the December 2002 rating decision, including a May 2008 statement by the Veteran, pertains to the previously unestablished fact of a nexus between the current lumbar spine disability and active service. 8. The Veteran has current diagnoses of degenerative disc disease of the thoracic spine, a herniated disc, and intervertebral disc syndrome. 9. The Veteran experienced back pain and a fall during active service. 10. The current diagnoses of arthritis, degenerative disc disease of the thoracic spine, a herniated disc, or intervertebral disc syndrome are not related to the fall and back pain experienced during service. 11. The thoracolumbar spine disability is not service connected. 12. The Veteran has a current diagnosis of diabetic peripheral neuropathy of the lower extremities. 13. The Veteran has been diagnosed with osteoarthritis, and has hip, shoulder, and foot pain. 14. For the period from February 23, 2012 forward, the Veteran was not unable to secure or maintain substantially gainful employment as a result of the service-connected disabilities. 15. The VA examinations of record are adequate and contain sufficient information to allow the Board to apply the relevant rating criteria. CONCLUSIONS OF LAW 1. For the entire rating period from May 19, 2008 to April 14, 2016, the criteria for an initial disability rating in excess of 10 percent for the bilateral hearing loss disability have not been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 3.159, 4.3, 4.7, 4.10, 4.85, 4.86, Diagnostic Code 6100. 2. For the rating period from April 14, 2016 forward, the criteria for an initial disability rating in excess of 30 percent for the bilateral hearing loss disability have not been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 3.159, 4.3, 4.7, 4.10, 4.85, 4.86, Diagnostic Code 6100. 3. There is no legal basis for the assignment of a disability rating in excess of 10 percent for tinnitus for the entire rating period on appeal. 38 U.S.C. § 1155; 38 C.F.R. § 4.87, Diagnostic Code 6260. 4. The criteria for an effective date earlier than May 19, 2008 for service connection for bilateral hearing loss have not been met. 38 U.S.C. § 5110; 38 C.F.R. §§ 3.1(p), 3.151, 3.155, 3.157, 3.400. 5. The December 2002 rating decision denying service connection for a lumbar spine disability became final. 38 U.S.C. § 7105; 38 C.F.R. §§ 20.302, 20.1103. 6. Evidence received since the December 2002 rating decision is new and material to reopen service connection for a lumbar spine disability. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. 7. The criteria for service connection for a thoracolumbar spine disability, to include arthritis of the thoracolumbar spine, degenerative disc disease of the thoracic spine, a herniated disc, and intervertebral disc syndrome, have not been met. 38 U.S.C. §§ 1110, 1112, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309(a). 8. The criteria for service connection for peripheral neuropathy of the lower extremities have not been met. 38 U.S.C. §§ 1110, 1112, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309(a). 9. The criteria for service connection for arthritis of the hips, shoulders, hands, and feet have not been met. 38 U.S.C. §§ 1110, 1112, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309(a). 10. For the period from February 23, 2012 forward, the criteria for a TDIU have not been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.340, 3.341, 4.15, 4.16, 4.18, 4.19, 4.25. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from October 1968 to August 1972. The Veteran declined a Board of Veterans’ Appeals (Board) hearing on the June 2010 VA Form 9, Appeal to the Board. In June 2011, the issues currently on appeal were remanded by the Board for further development. Development has been completed, and the case is again before the Board. The Board has carefully considered the assertions of the Veteran’s representative on the February 2021 Informal Hearing Presentation, namely, that there are conflicting medical opinions in the file and that some VA examinations are inadequate for rating purposes. Specifically, the Veteran’s representative asserts that the VA examiners who performed the VA examinations of record have taken inconsistent and fundamentally irreconcilable positions regarding the Veteran’s medical history, including conflicting findings regarding whether the Veteran has a current diagnosis of diabetes. The Veteran’s representative asserted that the issues of service connection for a back condition, thoracic spine condition, peripheral neuropathy, and arthritis of the hips, shoulders, hands, feet, and back should all be remanded due to inadequate medical opinions being provided, but did not elaborate specifically on the inadequacies except to state that the fact of whether the Veteran ever wore a back brace prior to service is in dispute, and that the VA examiners have taken fundamentally irreconcilable positions regarding the Veteran’s medical history. However, the Board finds that disputes about certain elements of the Veteran’s medical history, in and of themselves, do not render a VA examination inadequate. The Board finds that the VA examinations of record are adequate for rating purposes as they contain sufficient information to allow the Board to apply the relevant rating criteria, were performed by medical professionals based on a review of claims file, and involved a solicitation of history and symptomatology from the Veteran, and a thorough examination of the Veteran. Disability Rating Legal Authority Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (Rating Schedule) found in 38 C.F.R. Part 4. 38 U.S.C. § 1155. It is not expected that all cases will show all the findings specified; however, findings sufficiently characteristic to identify the disease and the disability therefrom and coordination of rating with impairment of function will be expected in all instances. 38 C.F.R. § 4.21. Where there is a question as to which of two disability ratings shall be applied, the higher rating will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. It is the defined and consistently applied policy of VA to administer the law under a broad interpretation, consistent, however, with the facts shown in every case. When, after careful consideration of all procurable and assembled data, a reasonable doubt arises regarding the degree of disability, such doubt will be resolved in favor of the claimant. 38 C.F.R. § 4.3. Separate ratings may be assigned for separate periods of time based on the facts found, a practice known as “staged” ratings. 38 C.F.R. § 4.2; Fenderson v. West, 12 Vet. App. 119, 125-26 (1999). See also Hart v. Mansfield, 21 Vet. App. 505 (2007) (addressing staged ratings for increased rating claims). If an increase in disability occurred within one-year prior to the claim for increase, the increase is effective as of the date the increase was factually ascertainable. See 38 U.S.C. § 5110(b)(2); 38 C.F.R. § 3.400(o)(2); Gaston v. Shinseki, 605 F.3d 979, 982 (Fed. Cir. 2010) (holding “that an increase in a veteran’s service-connected disability must have occurred during the one year prior to the date of the veteran’s claim in order to receive the benefit of an earlier effective date”). In general, all disabilities, including those arising from a single disease entity, are rated separately, and all disability ratings are then combined in accordance with 38 C.F.R. § 4.25. Pyramiding, the rating of the same disability, or the same manifestation of a disability, under different diagnostic codes, is to be avoided when rating a veteran’s service-connected disabilities. 38 C.F.R. § 4.14. It is possible for a veteran to have separate and distinct manifestations from the same injury which would permit rating under several diagnostic codes; however, the critical element in permitting the assignment of several ratings under various diagnostic codes is that none of the symptomatology for any one of the conditions is duplicative or overlapping with the symptomatology of the other condition. Esteban v. Brown, 6 Vet. App. 259, 261-62 (1994); Lyles v. Shulkin, 29 Vet. App. 107 (2017) (holding that 38 C.F.R. § 4.14 prohibits compensating a veteran twice for the same symptoms or functional impairment). When an unlisted condition is encountered, it will be permissible to rate it under a closely related disease or injury in which not only the functions affected, but the anatomical localization and symptomatology are closely analogous. Conjectural analogies will be avoided, as will the use of analogous ratings for conditions of doubtful diagnosis, or for those not fully supported by clinical and laboratory findings. Nor will ratings assigned to organic diseases and injuries be assigned by analogy to conditions of functional origin. 38 C.F.R. § 4.20. 1. Initial Rating of Bilateral Hearing Loss For the period from May 19, 2008 to April 14, 2016, the bilateral hearing loss is assigned a 10 percent disability rating, and from April 14, 2016 forward, the bilateral hearing loss is assigned a 30 percent rating. Both ratings are assigned under Diagnostic Code 6100. 38 C.F.R. § 4.85. The Veteran contends that these ratings do not adequately compensate the severity of symptoms of the bilateral hearing loss. After a review of all the evidence, both lay and medical, the Board finds that, for the period from May 19, 2008 to April 14, 2016, the evidence of record demonstrates that the bilateral hearing loss disability has been manifested by no worse than level III hearing in the right ear and level V hearing in the left ear at any point during the period on appeal, which more nearly approximates a 10 percent rating. The bilateral hearing loss has not more nearly approximated a higher (20 percent) level of hearing loss for VA purposes. The Board has also considered all evidence of record during the year prior to the claim. The Board finds that, for the period from April 14, 2016 forward, the evidence of record demonstrates that the bilateral hearing loss disability has been manifested by no worse than level VII hearing in the right ear and level VI hearing in the left ear at any point during the period on appeal, which more nearly approximates a 30 percent rating. The bilateral hearing loss has not more nearly approximated a higher (40 percent) level of hearing loss for VA purposes. The Board has also considered all evidence of record during the year prior to the claim. An October 2008 VA audiological examination showed puretone thresholds as follows: 1000 Hz 2000 Hz 3000 Hz 4000 Hz RIGHT 45 dB 50 dB 70 dB 105 dB LEFT 40 dB 70 dB 75 dB 90 dB On the October 2008 VA examination, speech recognition scores using the Maryland CNC Test revealed speech discrimination of 84 percent in the right ear and 80 percent in the left ear. The average decibel loss for the right ear was 67.5 dB and for the left ear was 68.75 dB. From Table VI of 38 C.F.R. § 4.85, Roman Numeral III is determined for the right ear and Roman Numeral IV is determined for the left ear. A 10 percent rating is derived from Table VII of 38 C.F.R. § 4.85 by intersecting row III, the better ear, with column IV, the poorer ear. Thus, the evidence does not support a rating higher than 10 percent for bilateral hearing loss during the relevant rating period. A March 2011 VA audiological examination showed puretone thresholds as follows: 1000 Hz 2000 Hz 3000 Hz 4000 Hz RIGHT 40 dB 60 dB 75 dB 95 dB LEFT 40 dB 75 dB 85 dB 95 dB On the March 2011 VA examination, speech recognition scores using the Maryland CNC Test revealed speech discrimination of 84 percent in the right ear and 80 percent in the left ear. The average decibel loss for the right ear was 68 dB. From Table VI of 38 C.F.R. § 4.85, Roman Numeral III is determined for the right ear. The average decibel loss for the left ear was 74 dB. From Table II of 38 C.F.R. § 4.85, Roman Numeral V is determined for the left ear. A 10 percent rating is derived from Table VII of 38 C.F.R. § 4.85 by intersecting row III, the better ear, with column V, the poorer ear. Thus, the evidence does not support a rating in excess of 10 percent for bilateral hearing loss during the relevant rating period. A May 2015 VA audiological examination showed puretone thresholds as follows: 1000 Hz 2000 Hz 3000 Hz 4000 Hz RIGHT 35 dB 55 dB 75 dB 100 dB LEFT 35 dB 80 dB 85 dB 90 dB Speech recognition scores using the Maryland CNC Test were not reported on the May 2015 VA examination. An April 2016 VA audiological examination showed puretone thresholds as follows: 1000 Hz 2000 Hz 3000 Hz 4000 Hz RIGHT 40 dB 50 dB 75 dB 100 dB LEFT 40 dB 70 dB 80 dB 90 dB On the April 2016 VA examination, speech recognition scores using the Maryland CNC Test revealed speech discrimination of 68 percent in the right ear and 68 percent in the left ear. The average decibel loss for the right ear was 66 dB and for the left ear was 70 dB. From Table VI of 38 C.F.R. § 4.85, Roman Numeral VI is determined for the right ear and Roman Numeral VI is determined for the left ear. A 30 percent rating is derived from Table VII of 38 C.F.R. § 4.85 by intersecting row VI with column VI. Thus, the evidence does not support a rating higher than 30 percent for bilateral hearing loss during the relevant rating period. A May 2019 VA audiological examination showed puretone thresholds as follows: 1000 Hz 2000 Hz 3000 Hz 4000 Hz RIGHT 45 dB 75 dB 80 dB 100 dB LEFT 50 dB 85 dB 85 dB 95 dB On the May 2019 VA examination, speech recognition scores using the Maryland CNC Test revealed speech discrimination of 64 percent in the right ear and 68 percent in the left ear. The average decibel loss for the right ear was 75 dB and for the left ear was 79 dB. From Table VI of 38 C.F.R. § 4.85, Roman Numeral VII is determined for the right ear and Roman Numeral VI is determined for the left ear. A 30 percent rating is derived from Table VII of 38 C.F.R. § 4.85 by intersecting row VI, the better ear, with column VII, the poorer ear. Thus, the evidence does not support a rating higher than 30 percent for bilateral hearing loss during the relevant rating period. For the period from May 19, 2008 to April 14, 2016, the October 2008 VA audiology examination shows Level III and Level IV hearing loss in the right and left ears respectively, and that the March 2011 VA audiological examination shows Level III hearing loss in the right ear and Level V hearing loss in the left ear; however, affording the Veteran the benefit of the doubt, the Board has considered the highest levels of hearing loss recorded at any time during the entire appeal period, which is Level III hearing loss in the right ear and level V hearing loss in the left ear. These levels of hearing loss still approximate a 10 percent rating under Table VII of 38 C.F.R. § 4.85. As the audiometric testing during the period from May 19, 2008 to April 14, 2016 reflects an average decibel loss of no worse than 68 dB in the right ear and 74 dB in the left ear, and speech recognition scores of no worse than 84 percent in the right ear and 80 percent in the left ear, the evidence supports findings of no worse than Level III hearing in the right ear and Level V hearing in the left ear throughout the entire period on appeal. Such findings demonstrate that a higher 20 percent disability rating is not warranted for the period from May 19, 2008 to April 14, 2016. 38 C.F.R. §§ 4.85, Diagnostic Code 6100. For the period from April 14, 2016 forward, the April 2016 VA audiology examination shows Level VI and Level VI hearing loss in the right and left ears respectively, and the May 2019 VA audiological examination shows Level VII hearing loss in the right ear and Level VI hearing loss in the left ear. Level VI hearing loss in one ear with Level VII hearing loss in the other ear approximates a 30 percent rating under Table VII of 38 C.F.R. § 4.85. As the audiometric testing during the period from April 14, 2016 forward reflects an average decibel loss of no worse than 75 dB in the right ear and 79 dB in the left ear, and speech recognition scores of no worse than 68 percent in the right ear and 68 percent in the left ear, the evidence supports findings of no worse than Level VII hearing in the right ear and Level VI hearing in the left ear throughout the period from April 14, 2016 forward. Such findings demonstrate that a higher 40 percent disability rating is not warranted for the period from April 14, 2016 forward. 38 C.F.R. §§ 4.85, Diagnostic Code 6100. The exceptional hearing patterns of § 4.86 do not apply for any period on appeal. For these reasons, the preponderance of the evidence weighs against a finding that the bilateral hearing loss disability more closely approximated a disability rating higher than 10 percent for the period from May 19, 2008 to April 14, 2016, or higher than 30 percent for the period from April 14, 2016 forward, during the period on appeal; therefore, the appeal for a higher rating must be denied. See 38 C.F.R. §§ 4.3, 4.7, 4.85. 2. Rating Tinnitus The Veteran appeals for a higher initial rating for the service-connected tinnitus. See December 2008 Notice of Disagreement. The service-connected tinnitus is assigned a 10 percent (maximum) initial disability rating for the entire rating period under Diagnostic Code 6260. 38 C.F.R. § 4.87. Tinnitus is rated under Diagnostic 6260, which provides a 10 percent maximum disability rating for recurrent tinnitus. 38 C.F.R. § 4.87. Note (2) further explains that the Board must assign only a single rating for recurrent tinnitus, whether the sound is perceived in one ear, both ears, or in the head. The United States Court of Appeals for the Federal Circuit (Federal Circuit) affirmed VA’s long-standing interpretation of Diagnostic Code 6260 as authorizing only a single 10 percent rating for tinnitus, whether perceived as unilateral or bilateral. Smith v. Nicholson, 451 F.3d 1344 (Fed. Cir. 2006). Citing United States Supreme Court precedent, the Federal Circuit explained in Smith that an agency’s interpretation of its own regulations was entitled to substantial deference by the courts as long as that interpretation was not plainly erroneous or inconsistent with the regulations. Finding that there was a lack of evidence in the record suggesting that VA’s interpretation of Diagnostic Code 6260 was plainly erroneous or inconsistent with regulations, the Federal Circuit concluded that the United States Court of Appeals for Veterans Claims had erred in not deferring to VA’s interpretation. The regulations preclude a schedular rating in excess of a single 10 percent rating under Diagnostic Code 6260 for tinnitus; therefore, the Veteran’s appeal for a disability rating greater than 10 percent for tinnitus must be denied as a matter of law. 38 C.F.R. § 4.87. As disposition of this issue is based on the law and not the facts of the case, the issue must be denied based on a lack of entitlement under the law. See Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). Earlier Effective Date Legal Authority Generally, the effective date of an evaluation and award of pension, compensation, or dependency and indemnity compensation based on an original claim, a claim for increase, or a claim reopened after final disallowance, will be 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. If a claim for disability compensation is received within one year after separation from service, the effective date of entitlement is the day following separation or the date entitlement arose. 38 U.S.C. § 5110(b)(1); 38 C.F.R. § 3.400(b)(2). The applicable statutory and regulatory provisions require that VA look to all communications from a veteran which may be interpreted as applications or claims - formal and informal - for benefits. In particular, VA is required to identify and act on informal claims for benefits. See 38 U.S.C. § 5110(b)(3); 38 C.F.R. §§ 3.1(p), 3.155(a). The Federal Circuit has emphasized that VA has a duty to fully and sympathetically develop a veteran’s claim to its optimum, which includes determining all potential claims raised by the evidence and applying all relevant laws and regulations. See Harris v. Shinseki, 704 F.3d 946, 948-49 (Fed. Cir. 2013); Szemraj v. Principi, 357 F.3d 1370, 1373 (Fed. Cir. 2004); Moody v. Principi, 360 F.3d 1306, 1310 (Fed. Cir. 2004); Roberson v. Principi, 251 F.3d 1378 (Fed. Cir. 2001). The Board is required to adjudicate all issues reasonably raised by a liberal reading of the appeal, including all documents and oral testimony in the record prior to the Board’s decision. See Brannon v. West, 12 Vet. App. 32 (1998); Solomon v. Brown, 6 Vet. App. 396 (1994). However, in determining whether an informal claim has been made, VA is not required to read the minds of the veteran or representative. Cintron v. West, 13 Vet. App. 251, 259 (1999). A specific claim in the form prescribed by the Secretary must be filed in order for benefits to be paid or furnished to any individual under the laws administered by the Secretary. See 38 U.S.C. § 5101(a); 38 C.F.R. §§ 3.151(a). A claim is a formal or informal communication in writing requesting a determination of entitlement or evidencing a belief in entitlement to a benefit. 38 C.F.R. § 3.1(p). Any communication or action indicating intent to apply for VA benefits from a claimant or representative may be considered an informal claim. Such an informal claim must identify the benefit sought. 38 C.F.R. § 3.155(a). Again, VA is required to identify and act on informal claims for benefits. 38 U.S.C. § 5110(b)(3); 38 C.F.R. §§ 3.1(p), 3.155(a). However, VA is not required to anticipate any potential claim for a particular benefit where no intention to raise it was expressed. See Brannon v. West, 12 Vet. App. 32, 35 (1998) (holding that before VA can adjudicate a claim for benefits, “the claimant must submit a written document identifying the benefit and expressing some intent to seek it”). See also Talbert v. Brown, 7 Vet. App. 352, 356-57 (1995). The essential elements for any claim, whether formal or informal, are: (1) an intent to apply for benefits; (2) an identification of the benefits sought; and (3) a communication in writing. Brokowski v. Shinseki, 23 Vet. App. 79, 84 (2009); see also MacPhee v. Nicholson, 459 F.3d 1323, 1326-27 (Fed. Cir. 2006) (holding that the plain language of the regulations requires a claimant to have intent to file a claim for VA benefits). 3. Effective Date for Service Connection for Bilateral Hearing Loss The Veteran generally asserts that an earlier effective date than May 19, 2008 for service connection for a bilateral hearing loss disability is warranted. See December 2008 Notice of Disagreement. The Veteran first filed a claim for service connection for a bilateral hearing loss disability in January 2002. In December 2002, the regional office (RO) issued a rating decision denying service connection for a bilateral hearing loss disability. As the Veteran did not file a notice of disagreement with the December 2002 rating decision, the December 2002 rating decision became “final.” On May 19, 2008, VA received the Veteran’s claim to reopen service connection for a bilateral hearing loss disability. This claim to reopen is the earliest possible date for which service connection may be granted. 38 U.S.C. § 5110(a) and 38 C.F.R. § 3.400(r). In consideration of the foregoing, the Board finds that the criteria for an effective date earlier than May 19, 2008 for service connection for bilateral hearing loss are not met. Reopening with New and Material Evidence Legal Authority Generally, a claim which has been denied may not thereafter be reopened and allowed based on the same record. 38 U.S.C. § 7105. However, pursuant to 38 U.S.C. § 5108, if new and material evidence is presented or secured with respect to a claim which has been disallowed, the VA 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 is defined as 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). In determining whether evidence is “new and material,” the credibility of the new evidence must be presumed. Justus v. Principi, 3 Vet. App. 510, 513 (1992). The threshold for determining whether new and material evidence raises a reasonable possibility of substantiating a claim is low. See Shade v. Shinseki, 24 Vet. App. 110, 117 (2010). Furthermore, in determining whether this low threshold is met, VA should not limit its consideration to whether the newly received evidence relates specifically to the reason why the claim was last denied, but instead should ask whether the evidence could reasonably substantiate the claim were the claim to be reopened, either by triggering the VA Secretary’s duty to assist or through consideration of an alternative theory of entitlement. Id. at 118. Regardless of the RO’s determination as to whether new and material evidence had been received, the Board must address the issue of the receipt of new and material evidence in the first instance because it determines the Board’s jurisdiction to reach the underlying claims and to adjudicate the claims de novo. See Woehlaert v. Nicholson, 21 Vet. App. 456, 460-61 (2007) (citing Barnett v. Brown, 83 F.3d 1380, 1383 (Fed. Cir. 1996)). If the Board determines that the evidence submitted is both new and material, it must reopen the case and evaluate the claim in light of all the evidence. Justus, 3 Vet. App. at 512. Such evidence is presumed to be credible for the purpose of determining whether the case should be reopened; once the case is reopened, the presumption as to credibility no longer applies. Id. at 513. 4. Reopening Service Connection for a Lumbar Spine Disability In this case, a December 2002 rating decision denied service connection for a back disability (lumbar spine disability), finding there was no nexus between the current lumbar spine disability and active service. The Veteran did not file a timely Notice of Disagreement. The December 2002 rating decision became final as to the evidence then of record and is not subject to revision on the same factual basis. See 38 U.S.C. § 7105; 38 C.F.R. §§ 3.156(a), (b), 20.302, 20.1103. Since the December 2002 rating decision denying service connection for a lumbar spine disability, VA has received additional lay and medical evidence that pertains to a nexus between the current lumbar spine disability and active service. For example, a May 2008 statement by the Veteran tends to show a nexus between the current lumbar spine disability and service, a fact not previously established at the time of the December 2002 rating decision. The credibility of new evidence is presumed for the purposes of reopening the claim. This evidence relates to the unestablished fact of a nexus between the current lumbar spine disability and service and could reasonably substantiate the issue of service connection for a lumbar spine disability. For this reason, the Board finds that the additional evidence is new and material to reopen service connection for a lumbar spine disability. 38 U.S.C. § 5108; 38 C.F.R. § 3.156(a). Service Connection Legal Authority Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. §§ 3.303(a). 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. 38 C.F.R. §§ 3.303(d). Service connection generally requires (1) medical evidence of a current disability; (2) medical or, in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in service disease or injury and the current disability. Where the evidence shows a “chronic disease” such as arthritis in service or “continuity of symptoms” after service, the disease shall be presumed to have been incurred in service. For the showing of “chronic” disease in service, there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time. With chronic disease as such in service, subsequent manifestations of the same chronic disease at any later date, however remote, are service connected, unless clearly attributable intercurrent causes. If a condition noted during service is not shown to be chronic, then generally, a showing of “continuity of symptoms” after service is required for service connection. 38 C.F.R. § 3.303(b). Additionally, where a veteran served 90 days or more of active service, and certain chronic diseases, such as arthritis, become manifest to a degree of 10 percent or more within one year after the date of separation from such service, such disease shall be presumed to have been incurred in service, even though there is no evidence of such disease during the period of service. While the disease need not be diagnosed within the presumption period, it must be shown, by acceptable lay or medical evidence, that there were characteristic manifestations of the disease to the required degree during that time. 38 C.F.R. §§ 3.307, 3.309(a). In addition to direct service connection (discussed above), service connection may also be established on a secondary basis for disability which is proximately due to, or the result of, a service-connected disease or injury. 38 C.F.R. § 3.310(a). Secondary service connection may also be established for a disorder which is aggravated by a service-connected disability; compensation may be provided for the degree of disability (but only that degree) over and above the degree of disability existing prior to the aggravation. 38 C.F.R. § 3.310(c). Establishing service connection on a secondary basis essentially requires evidence sufficient to show (1) that a current disability exists and (2) that the current disability was either (a) caused by or (b) aggravated by a service-connected disability. 38 C.F.R. § 3.310(c). The Veterans’ Claims Assistance Act of 2000 (VCAA) enhanced VA’s duty to notify and assist claimants in substantiating their claims for VA benefits. 38 U.S.C. §§ 5100, 5102, 5103, 5103A, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a). The Board finds that in this case VA met the duties under the VCAA to notify and assist. In this case, neither the Veteran nor the representative has raised specific contentions regarding VCAA duties. 5. Service Connection for a Lumbar Spine Disability The Veteran claims that he has current diagnoses of arthritis of the thoracolumbar spine, degenerative disc disease of the thoracic spine, a herniated disc, and intervertebral disc syndrome that are related to a fall during active service. See May 2008 Statement in Support of Claim. The Veteran asserted in a May 2008 Statement that he sustained a back injury in 1969 during active service when he fell while working on a loading platform on the flight line. The Board finds the Veteran is currently diagnosed with degenerative arthritis of the thoracolumbar spine and experiences chronic back pain. See December 1991 and September 1995 private treatment records. An October 1990 medical record shows arthritis of the lower back. April 2008 private treatment records show operative findings of a right herniated disc and intervertebral disc syndrome. January 2006 private treatment records show a diagnosis of facet joint disease at L4-L5, a form of arthritis. A May 2004 private treatment records also shows “perhaps some osteoarthritic changes.” A July 2004 private treatment records also show mild degenerative changes at all levels and sclerotic changes. A February 2004 private treatment records shows a diagnosis of thoracic disc degeneration. Regarding an in-service injury or event, the Board finds that the Veteran experienced back pain during service that resolved prior to service discharge. The Board also finds that the Veteran experienced a fall from a platform while working on the flight line during service. See December 2008 Notice of Disagreement. A June 1972 Report of Medical History at separation from service shows that the Veteran reported a history of recurrent back pain. The physician examining the Veteran during the separation examination wrote “recurrent back pain since 1965. EPTS. No comp., No seq.” On a September 1968 Report of Medical History, the physician examining the Veteran wrote “backache hurt when swimming – no trouble now.” The Board has also carefully considered a note in the April 1970 service treatment records (also referenced by the Veteran’s representative in the February 2021 Informal Hearing Presentation) that the Veteran experienced a back injury at age 12 which required a brace and that the Veteran sleeps on a hard board; however, the Board affords this statement no probative weight, as it was later specifically contradicted by the Veteran in a May 2005 statement wherein the Veteran asserted that he never wore a back brace as a child and that he has five sisters and two brothers who can attest that this was not the case. The Veteran also contradicted this statement in a May 2010 statement wherein he stated “I never slept on a board when I was younger; I have no idea where that statement originated.” The Board presumes the Veteran was in sound condition upon service entrance. The presumptive service connection questions for the Board are whether the Veteran has a chronic disease (arthritis of the thoracolumbar spine) that manifested with chronic symptoms in service, continuous symptoms since service, or to 10 percent within one year of service. After a review of all the evidence, lay and medical, the Board concludes that, while the Veteran has arthritis of the thoracolumbar spine, which is a chronic disease under 38 C.F.R. § 3.309(a), the weight of the evidence shows that symptoms of arthritis of the thoracolumbar spine were not chronic in service, were not continuous since service, and arthritis of the thoracolumbar spine did not manifest to a compensable degree within one year of service. 38 U.S.C.§§1101(3), 1112, 1113, 1137; 38 C.F.R. §§ 3.303(b), 3.307, 3.309(a). Rather, the weight of the evidence shows that symptoms of the current thoracolumbar spine arthritis first had onset many years after service discharge. VA treatment records show the Veteran was not diagnosed with arthritis of the thoracolumbar spine until October 1990, respectively, over 17 years after separation from service and over 16 years outside of the applicable presumptive period. For these reasons, the Board finds that the criteria for presumptive service connection for arthritis of the thoracolumbar spine have not been met. After reviewing all the lay and medical evidence of record, the Board finds that the weight of the evidence shows that the current thoracolumbar spine disability to include arthritis did not have onset during service and is not otherwise related to service. An April 2012 VA examination, which shows a current diagnosis of thoracic spine degenerative disc disease, also includes a medical opinion that weighs against a nexus between current spine disability and service. The VA examiner in April 2012 wrote, “It is my medical opinion that it is less likely than not that the Veteran’s condition of thoracic spine degenerative disc disease status post-surgical treatment was caused by or a result of any injury that occurred during military service.” The VA examiner reasoned from the fact that the Veteran immediately returned to work, and that the disorder did not appear for many years after service, that there was insufficient biomechanical force during the in-service injury to cause the current back disorder. Regarding the Veteran’s assertion that the current thoracolumbar spine disability is related to a fall during service while working on the flight line, the Board finds that, under the specific facts of this case that include symptoms that resolved in service and were not continuous after service, the Veteran is not competent to make this assertion. The Veteran is a lay person and, while competent to relate symptoms that may be associated with a thoracolumbar spine disability such as pain, he does not have the requisite medical knowledge, training, or experience to be able to diagnose medically complex orthopedic disorders such as DDD or arthritis to opine as to their etiology. Orthopedic disorders such as DDD require specialized testing to diagnose, and observable symptomatology can overlap with other disorders. Diagnosing orthopedic disorders such as DDD involves some internal and unseen system processes unobservable by the Veteran, not simply observation of observable symptoms such as pain. Under the facts of this case, that include back symptoms that resolved during service, and were not continuous after service, and no diagnosis of a thoracolumbar spine disability for many years after service, the Veteran has not been shown to have such knowledge, training, or experience to relate currently diagnosed thoracolumbar spine disorders to service. See Kahana v. Shinseki, 24 Vet. App. 428, 438 (2011) (holding that ACL injury is too “medically complex” for lay diagnosis); King v. Shinseki, 700 F.3d 1339, 1345 (Fed. Cir. 2009) (holding that it was not erroneous for the Board to find that a lay veteran claiming service connection for a back disorder and his wife lacked the “requisite medical training, expertise, or credentials needed to render a diagnosis” and that their testimony “could not establish medical causation nor was it a competent opinion as to medical causation”); Clyburn v. West, 12 Vet. App. 296, 301 (1999) (holding that a veteran is not competent to relate currently diagnosed chondromalacia patellae or degenerative joint disease to the continuous post-service knee symptoms); Savage v. Gober, 10 Vet. App. 488, 496-97 (1997) (requiring that a veteran present medical nexus evidence relating currently diagnosed arthritis to in-service back injury). The first documentation of treatment for back pain or back problems after service is in December 1991. In the context of other findings in this case, this additional fact tends to show that, while the Veteran experienced some back pain during service, the evidence did now show chronic back symptoms in service or during the approximately 18 years after service discharge. Based on the foregoing evidence, the Board finds that the preponderance of the lay and medical evidence is against a finding that the current thoracolumbar spine disability is causally related to service. The weight of the evidence demonstrates that the thoracolumbar spine disability had onset after service and that the Veteran was not diagnosed with the current thoracolumbar spine disability until December 1991. The evidence of record does not contain a competent opinion establishing a nexus between the current thoracolumbar spine disability and the in-service fall. Rather, the weight of the evidence shows that the symptoms of the fall the Veteran experienced during service were not chronic in nature, and that the current thoracolumbar spine disability had onset many years after service discharge, in December 1991. For these reasons, the Board finds that the weight of the evidence is against service connection for a thoracolumbar spine disability, and the claim must be denied. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. 6. Service Connection for Peripheral Neuropathy of the Lower Extremities The Veteran contends that current peripheral neuropathy of the lower extremities was caused by the (non-service-connected) thoracolumbar spine disability. This is the sole contention or theory of service connection, and the Veteran has offered no other theory of entitlement to service connection. See May 2008 Statement in Support of Claim. There is a current diagnosis of diabetic neuropathy and nerve compression in the lower extremities. See August 2007 private treatment records. As discussed above, service connection for a thoracolumbar spine disability has been denied; therefore, as a matter of law, the Veteran is unable to receive service connection on a secondary basis for peripheral neuropathy of the bilateral lower extremities, claimed as due to the non-service-connected thoracolumbar spine disability, because the claimed primary disability is not service connected. As a theory of secondary service connection is not available under the law, rather than on the facts of the case, service connection under this theory must be denied as a matter of law. 7. Service Connection for Arthritis of the Hips, Shoulders, Hands, and Feet Veteran contends that he has current arthritis of the hips, shoulders, hands, and feet that was caused by the (non-service-connected) thoracolumbar spine disability. This is the sole contention or theory of service connection, and he has offered no other theory of entitlement to service connection. See May 2008 Statement in Support of Claim. Initially, the Board finds that the Veteran has chronic hip pain (See May 2008 private treatment records), shoulder pain (See November 2007 private treatment records), foot pain (See July 1986 private treatment records), and osteoarthritis generally (See August 2005 private treatment records). As discussed above, service connection for a thoracolumbar spine disability has been denied; therefore, as a matter of law, the Veteran is unable to receive service connection on a secondary basis for arthritis of the hips, shoulders, hands, and feet, claimed as due to the non-service-connected thoracolumbar spine disability. As a theory of secondary service connection is based on the law and not the facts of the case, service connection under this theory must be denied as a matter of law. 8. TDIU Disability ratings are determined by applying the criteria set forth in VA’s Schedule for Rating Disabilities (Rating Schedule), which is based on the average impairment of earning capacity. 38 U.S.C. § 1155. Total disability is considered to exist when there is any impairment which is sufficient to render it impossible for the average person to follow a substantially gainful occupation. Total disability may or may not be permanent. 38 C.F.R. § 3.340(a)(1). Total ratings are authorized for any disability or combination of disabilities for which the Rating Schedule prescribes a 100 percent evaluation. 38 C.F.R. § 3.340(a)(2). TDIU may be assigned when the disabled person is, in the judgment of the rating agency, unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities. The service-connected disabilities, employment history, educational and vocational attainment, and all other factors having a bearing on the issue will be addressed in both instances. 38 C.F.R. § 4.16(a), (b). If there is only one such disability, it must be rated at 60 percent or more; if there are two or more disabilities, at least one disability must be rated at 40 percent or more, with sufficient additional disability to bring the combined rating to 70 percent or more. 38 C.F.R. § 4.16(a). For the above purpose of one 60 percent disability, or one 40 percent disability in combination, the following will be considered as one disability: (1) disabilities of one or both upper extremities, or of one or both lower extremities, including the bilateral factor, if applicable, (2) disabilities resulting from common etiology or a single accident, (3) disabilities affecting a single body system, e.g. orthopedic, digestive, respiratory, cardiovascular-renal, neuropsychiatric, (4) multiple injuries incurred in action, or (5) multiple disabilities incurred as a prisoner of war. 38 C.F.R. § 4.16(a). If a veteran’s disabilities do not meet the objective combined rating percentage criteria of 38 C.F.R. § 4.16(a), it then becomes necessary to consider whether the criteria for referral for extraschedular consideration are met under § 4.16(b) criteria. It is the established policy of VA that all veterans who are unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities shall be rated totally disabled. Submission to the Director, Compensation and Pension Service, for extraschedular consideration is warranted in all cases of veterans who are unemployable by reason of service-connected disabilities, but who fail to meet the percentage standards set forth in § 4.16(a). 38 C.F.R. § 4.16(b). Individual unemployability must be determined without regard to any non-service-connected disabilities or a veteran’s advancing age. 38 C.F.R. §§ 3.341(a), 4.19; Van Hoose v. Brown, 4 Vet. App. 361 (1993). The sole fact that a veteran is unemployed or has difficulty obtaining employment is not enough. A high rating in itself is recognition that the impairment makes it difficult to obtain or keep employment, but the ultimate question is whether a veteran is capable of performing the physical and mental acts required by employment, not whether a veteran can find employment. Id. at 361. When reasonable doubt arises as to the degree of disability, such doubt will be resolved in a veteran’s favor. 38 C.F.R. § 4.3. In Faust v. West, 13 Vet. App. 342 (2000), the United States Court of Appeals for Veterans Claims (Court) defined “substantially gainful employment” as an occupation that provides an annual income that exceeds the poverty threshold for one person, irrespective of the number of hours or days that a veteran actually works and without regard to a veteran’s earned annual income. In Hatlestad v. Derwinski, 5 Vet. App. 524, 529 (1993), the Court held that the central inquiry in determining whether a veteran is entitled to a TDIU is whether a veteran’s service-connected disabilities alone are of sufficient severity to produce unemployability. The determination as to whether a total disability rating is appropriate should not be based solely upon demonstrated difficulty in obtaining employment in one particular field, which could also potentially be due to external bases such as economic factors, but rather to all reasonably available sources of employment under the circumstances. See Ferraro v. Derwinski, 1 Vet. App. 326, 331-332 (1991). In evaluating a veteran’s employability, consideration may be given to the level of education, special training, and previous work experience in arriving at a conclusion, but not to age or impairment caused by non-service-connected disabilities. 38 C.F.R. §§ 3.341, 4.16, 4.19. Marginal employment is not considered substantially gainful employment and generally is deemed to exist when a veteran’s earned income does not exceed the amount established by the U.S. Department of Commerce, Bureau of the Census, as the poverty threshold for one person. Marginal employment may also be held to exist in certain cases when earned annual income exceeds the poverty threshold on a facts-found basis. Consideration shall be given in all claims to the nature of the employment and the reason for termination. 38 C.F.R. § 4.16(a). Marginal employment, odd-job employment, and employment at half the usual remuneration is not incompatible with a determination of unemployability if the restriction to securing or retaining better employment is due to disability. 38 C.F.R. § 4.17(a). The ultimate issue of whether a TDIU should be awarded is not a medical issue, but rather is a determination for the adjudicator. See Moore v. Nicholson, 21 Vet. App. 211, 218 (2007) (ultimate question of whether a veteran is capable of substantial gainful employment is not a medical one; that determination is for the adjudicator), rev’d on other grounds sub nom, Moore v. Shinseki, 555 F.3d 1369 (Fed. Cir. 2009). Although VA must give full consideration, per 38 C.F.R. § 4.15, to “the effect of combinations of disability,” VA regulations place responsibility for the ultimate TDIU determination on VA, not a medical examiner’s opinion. Geib v. Shinseki, 733 F.3d 1350, 1354 (Fed. Cir. 2013); 38 C.F.R. § 4.16(a); see also Smith v. Shinseki, 647 F.3d 1380, 1385-86 (Fed. Cir. 2011) (VA is not required to obtain an industrial survey from a vocational expert before making a TDIU determination but may choose to do so in an appropriate case). The Veteran asserts that the current service-connected disabilities of bilateral hearing loss and tinnitus prevent him from securing and maintaining substantially gainful employment. See December 2008 Notice of Disagreement. The threshold requirements for a TDIU under 38 C.F.R. § 4.16(a) are met if there is only one service-connected disability ratable at 60 percent or more, or, if there are two or more disabilities, there shall be at least one disability ratable at 40 percent or more, and sufficient additional disability to bring the combined rating to 70 percent or more. 38 C.F.R. § 4.16(a). For the period from May 19, 2008 to April 14, 2016, the Veteran is service connected for bilateral hearing loss and tinnitus, each rated as 10 percent disabling. The combined disability rating for all service-connected disabilities for that period is 20 percent. For the period from April 14, 2016 forward, the service-connected bilateral hearing loss is rated as 30 percent disabling, for a combined disability rating of 40 percent. The Veteran is also service connected for allergic rhinitis, which is rated as non-compensable (0 percent), from November 11, 2019 forward. The combined disability rating criteria of 38 C.F.R. § 4.16(a) for TDIU eligibility have not been met for this period. Under Roberson v. Principi, 251 F.3d 1378 (2001), the Board must also consider TDIU even when the 38 C.F.R. § 4.16(a) combined disability rating criteria are not met. VA policy is that all veterans unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities shall be rated as totally disabled. 38 C.F.R. § 4.16(b). Rating boards should refer to the Director of Compensation and Pension Service for TDIU consideration all cases where veterans are unemployable by reason of service-connected disabilities but who fail to meet the percentage requirements set forth in 38 C.F.R. § 4.16(a). Although the Board cannot assign a TDIU in the first instance where the criteria of 38 C.F.R. § 4.16(a) are not met, the Board is not precluded from specifically adjudicating whether to refer a case for TDIU when the issue is either raised by the claimant or is reasonably raised by the record. See Wages v. McDonald, 27 Vet. App. 233, 236 (2015). Here, the evidence of record indicates referral for TDIU consideration under 38 C.F.R. § 4.16(b) is not warranted. September 2007 Social Security Administration records show that the Veteran was granted disability benefits based on diabetic and other peripheral neuropathy and disorders of the back including discogenic and degenerative disorders. The Veteran is not service connected for either neuropathy or a back disorder. A June 2008 short-term disability claim by the Veteran filed in June 2008 shows that the Veteran has been unable to work due to non-service-connected diabetic neuropathy and tarsal tunnel syndrome since September 2007. The Board notes that the Veteran has not received service connection for either diabetic neuropathy or tarsal tunnel syndrome. In a December 2008 Notice of Disagreement, the Veteran writes that “attempting a regular work schedule is going to be impossible due to my hearing.” The Veteran also asserted that he is “totally unemployable because of my hearing [loss] alone.” In a May 2010 Notice of Disagreement, the Veteran asserted that “I am totally disabled and unable to work. My hearing, back and legs are keeping me from being able to work.” “I was also told by my new VA doctor that I don’t have diabetes. She also said that my nerve damage in my legs could just as likely be caused from my back.” Service connection is not in effect for a back or leg disability. A March 2011 VA examination shows the VA examiner’s statement that “It is my professional opinion that the service-connected disabilities of hearing loss and tinnitus do not render the Veteran unable to secure and maintain substantially gainful employment.” An April 2012 VA examination shows the VA examiner’s re-emphasized statement that “I did a VA compensation and pension examination as a medical opinion only dated 3/22/11 and diagnosed that [the Veteran] is able to secure and maintain gainful employment in any capacity... especially in his trained capacity as an engineer when considering his claim for hearing loss and tinnitus. He did not stop working based on these conditions and is not kept from working based on these conditions at this time. I noted that the Veteran is an engineer and had stopped working to have surgery on a kneecap but not due to any of his service-connected conditions.” An April 2012 VA examiner also stated “The Veteran is retired and last worked in September 2008 as a senior control systems engineer and designer. He states that he could no longer work due to the difficulty of walking and climbing stairs. It is my medical opinion that the Veteran is able to secure and maintain gainful employment in any capacity... when considering his service connected and claimed conditions. He was more likely than not limited from further working based on his morbid obesity and deconditioned status.” An April 2016 VA examination for hearing loss and tinnitus shows the VA examiner’s statement that “It is my medical opinion that the Veteran has no functional limitations when considering his service-connected conditions of hearing loss and tinnitus.” A May 2019 VA examination for hearing loss and tinnitus shows the VA examiner’s statement that the current bilateral hearing loss disability and tinnitus do not affect the Veteran’s ability to work. As discussed above, the service-connected hearing loss, tinnitus, and allergic rhinitis have not resulted in symptoms or occupational impairment that would preclude employment. For example, multiple VA examiners in March 2011, April 2012, April 2016, and May 2019 have specifically indicated that the service-connected hearing loss and tinnitus do not prevent the Veteran from securing or maintaining substantially gainful employment. In short, the Board finds that the service-connected hearing loss, tinnitus, and allergic rhinitis do not, on their own or combined, prevent the Veteran from securing or maintaining substantially gainful employment. The weight of the evidence shows the Veteran’s unemployability is due to various significantly impairing non-service-connected disabilities. As such, referral for consideration of TDIU under 38 C.F.R. § 4.16(b) is not warranted. J. PARKER Veterans Law Judge Board of Veterans’ Appeals Department of Veterans Affairs A. Caruso, Attorney for the Board 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.