Citation Nr: 21013830 Decision Date: 03/10/21 Archive Date: 03/10/21 DOCKET NO. 15-09 939 DATE: March 10, 2021 ORDER Service connection for headaches is denied. Service connection for bilateral foot disorder, claimed as hammertoes and swollen feet, to include as secondary to service-connected back disability and left ankle disability is denied. Service connection for acquired psychiatric disorder, claimed as posttraumatic stress disorder (PTSD), mood disorder, and major depressive disorder is denied. Service connection for left knee disorder, to include as secondary to service-connected disabilities is denied. A rating greater than 20 percent disabling for left ankle sprain with instability is denied. An initial compensable rating for bilateral hearing loss is denied. REMANDED The issue of service connection for peripheral neuropathy of the bilateral upper extremities, to include as secondary to service-connected back disability is remanded. The issue of service connection for peripheral neuropathy of the bilateral lower extremities, to include as secondary to service-connected back disability is remanded. The issue of a total disability rating based on individual unemployability (TDIU) prior to November 20, 2014, is remanded. FINDINGS OF FACT 1. The Veteran’s headaches are not secondary to a service-connected disability and is not otherwise related to an in-service injury or disease. 2. The Veteran’s bilateral foot disorder is not secondary to service-connected disabilities and is not otherwise related to an in-service injury or disease. 3. The Veteran’s acquired psychiatric disorder, claimed as posttraumatic stress disorder (PTSD), mood disorder, and major depressive disorder, is not secondary to service-connected disabilities, and is not otherwise related to an in-service injury or disease. 4. The Veteran’s left knee disorder is not secondary to service-connected disabilities and is not otherwise related to an in-service injury or disease. 5. The Veteran’s left ankle sprain with instability is rated as 20 percent disabling, which is the maximum schedular rating permitted for limited motion of the ankle. The Veteran also does not have ankylosis, malunion of subastragalar or tarsal joint, malunion of os calcis or astragalus, or astragalectomy. 6. Veteran’s bilateral hearing has been manifested by hearing acuity of no worse than Level I in the right ear and no worse than Level I in the left ear. CONCLUSIONS OF LAW 1. The criteria for service connection for headaches due to service or service-connected disease or injury are not met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.310. 2. The criteria for service connection for bilateral foot disorder, claimed as hammertoes and swollen feet, to include as secondary to service-connected back disability and left ankle disability, due to service or service-connected disease or injury are not met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.310. 3. The criteria for service connection for acquired psychiatric disorder, claimed as posttraumatic stress disorder (PTSD), mood disorder, and major depressive disorder, due to service or service-connected disease or injury are not met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.310. 4. The criteria for service connection for left knee disorder, due to service or service-connected disease or injury are not met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.310. 5. The criteria for a rating in excess of 20 percent for left ankle sprain with instability have not been met. 38 U.S.C. § 1155; 38 C.F.R. §§ 4.1, 4.71a, Diagnostic Codes 5270-74. 6. The criteria for a compensable rating for bilateral hearing loss have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.85, 4.86, Diagnostic Code 6100. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service from February 1975 to February 1979. The record reflects that the Veteran had subsequent service in the United States Army Ready Reserve until January 12, 1981. The Veteran subsequently enlisted in the Washington Army National Guard in September 1988 and then transferred to the Puerto Rico Army National Guard effective March 15, 1989 and discharged in February 1990. Furthermore, there appears to be an undated transfer from the Puerto Rico Army National Guard to the Florida Army National Guard. The record also indicates that the Veteran was discharged from the Army Reserve in January 1996. The record does not reflect, however, if the Veteran was in the Inactive (Ready) Reserve or Active Reserve. These issues were previously before the Board. In November 2016, the Board remanded the appeal to the agency of original jurisdiction (AOJ) for additional development. Specifically, the Board directed the AOJ to 1) obtain any outstanding treatment records related to the remanded claims, 2) obtain a medical opinion on whether the Veteran’s preexisting headaches were permanently aggravated during his period of active duty and to address his in-service complaints, 3) obtain a medical opinion on whether the Veteran’s claimed sleep apnea was caused or aggravated by service, to include the possibility of the head injury causing sleep apnea, 4) obtain a medical opinion on whether the Veteran has any current peripheral neuropathy of the bilateral upper and lower extremities, cervical spine disorder, bilateral foot disorder, and left knee disorder was related to his active service or secondary to a service-connected disability, 5) obtain a medical opinion on whether the Veteran has any current acquired psychiatric disorder related to or aggravated by his active service or secondary to a service-connected disability, 6) obtain a medical opinion on whether the Veteran has any current sexual dysfunction related to or aggravated by his active service or secondary to a service-connected disability, 7) schedule an examination to determine the current severity of his bilateral hearing loss disability, 8) schedule an examination to determine the current severity of his back and left ankle disorders, and 9) adjudicate the Veteran’s claim for a TDIU. In March 2017, the Veteran was afforded VA examinations for bilateral hearing loss, peripheral neuropathies,headaches, sexual dysfunction, sleep apnea, PTSD, cervical spine, left ankle disability, bilateral foot disability, left knee disability, and back disability. In May 2017, the AOJ added VA Medical Center treatment records from December 2006 to May 2017, and in June 2017, it added treatment records from May 2017 to June 2017. In December 2017 and again in February 2018, the Veteran was afforded VA examinations for his back disability. In March 2018, VA Medical Center treatment records up to March 2018 were added to the Veteran’s file. In an April 2018 rating decision, the AOJ, in pertinent part, granted a 40 percent rating for service-connected discogenic disease of the lumbar spine effective March 10, 2017, granted service connection for cervical strain with an initial evaluation of 10 percent effective October 3, 2011 and an evaluation of 20 percent from March 10, 2017, granted service connection for obstructive sleep apnea with an evaluation of 50 percent effective March 9, 2017, granted service connection for erectile dysfunction claimed as sexual dysfunction, and granted entitlement to individual unemployability effective November 29, 2016 to February 2, 2018. The RO’s action constitutes a full award of the benefit sought on appeal with respect to the claims. See Grantham v. Brown, 114 F.3d 1156, 1158 (Fed. Cir. 1997) (holding that a separate notice of disagreement must be filed to initiate appellate review of downstream elements such as the disability rating or effective date assigned). The Veteran submitted a Notice of Disagreement (NOD) in June 2018 on which he indicated that he disagreed, in pertinent part, with the effective date of award and the evaluation of the disability of the discogenic disease of the lumbar spine, effective date of award and evaluation of the cervical strain, and the effective date of obstructive sleep apnea. The Veteran did not specifically disagree with the grant of entitlement to individual unemployability and sexual dysfunction. In a January 2019 rating decision, in pertinent part, the AOJ granted a 40 percent rating for discogenic disease of the lumbar spine effective January 23, 2016, and an earlier effective date of November 20, 2014 for obstructive sleep apnea. In a corresponding Statement of the Case (SOC), the AOJ denied both entitlement to an earlier effective date and an increased rating for cervical strain. In February 2019, the Veteran submitted a VA Form 9 requesting a hearing at a local VA office. He contended, in pertinent part, that he was entitled to an effective date of October 3, 2011 with an evaluation of 60 percent disabling for discogenic disease of the lumbar spine, an effective date of October 3, 2011 with an evaluation greater than 10 percent for cervical strain, and an effective date of November 20, 2014 with an evaluation of 50 percent disabling for obstructive sleep apnea. In March 2019, the Veteran submitted another NOD contending that he was entitled to an effective date of October 3, 2011 with a 60 percent evaluation for his lumbar spine disability and an effective date of October 3, 2011 for his TDIU. In October 2019, the Veteran submitted a VA Form 9 for the above claims and requested a hearing at a local VA office. In January 2020, the AOJ notified the Veteran that the claims were already on appeal and therefore that the March 2019 NOD could not be accepted. In a May 2020 decision, the Board, in pertinent part, remanded the claim of entitlement to an initial rating greater than 20 percent for discogenic disease of the lumbar spine prior to January 23, 2016 and greater than 40 percent thereafter, and the claim of entitlement to an initial rating greater than 10 percent for cervical strain prior to March 10, 2017 and greater than 20 percent thereafter. Specifically, the Board directed the AOJ to obtain any outstanding medical records and schedule the Veteran for a VA examination to assess the current severity of his discogenic disease of the lumbar spine and cervical strain. Thus, the claims for increased ratings on the Veteran’s lumbar and cervical spine are not currently before the Board. In May 2020, the AOJ added VA Medical Center treatment records up to May 2020, and then up to June 2020 in June 2020. In August 2020, treatment records up to August 2020 were added. The Board notes that the AOJ, however, has not yet scheduled the Veteran for a VA examination to assess the current severity of his cervical strain or discogenic disease of the lumbar spine. Following evidentiary development, the VA Appeals Management Center (AMC) issued a supplemental statement of the case (SSOC) in December 2020. In the SSOC, the AOJ denied service connection for headaches, peripheral neuropathy of the bilateral upper and lower extremities, bilateral foot disorder, acquired psychiatric disorder, and left knee disorder. It also denied entitlement to a rating greater than 20 percent for discogenic disease of the lumbar spine, initial compensable rating for bilateral hearing loss, and a rating greater than 20 percent for left ankle sprain with instability. The Veteran’s VA claims file has been returned to the Board for further appellate proceedings. This appeal has been advanced on the Board’s docket pursuant to 38 C.F.R. § 20.902(c). 38 U.S.C. § 7107(b). Service Connection Service connection may be granted for a disability resulting from personal injury suffered or disease contracted in the line of duty. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. §§ 3.303, 3.304. Service connection may also be granted for a 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). Establishing service connection generally requires (1) evidence of a current disability; (2) evidence of in-service incurrence or aggravation of a disease or injury; and (3) evidence of a nexus between the claimed in-service disease or injury and the present disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). The standard of proof to be applied in decisions on claims for VA benefits is set forth in 38 U.S.C. § 5107(b). Under that provision, VA shall consider all information and lay and medical evidence of record in a case before the Secretary with respect to benefits under laws administered by the Secretary. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. Id.; see also Gilbert v. Derwinski, 1 Vet. App. 49 (1990). “It is in recognition of our debt to our veterans that society has [determined that,] [b]y tradition and by statute, the benefit of the doubt belongs to the veteran.” Gilbert, 1 Vet. App. at 54. 1. Service connection for headaches The Veteran contends that his headaches were aggravated by service. The Veteran does not contend that his preexisting headaches were aggravated by a service-connected disability. Service treatment records show that the Veteran reported a history of occasional headaches in January 1975, prior to his enlistment. In his February 1978 medical examination and corresponding report of medical history, the Veteran did not report headaches, but noted that he had, or has had, dizziness or fainting spells. VA Medical Center treatment records show that the Veteran reported headaches in February 2012, September 2019, November 2019 and in March 2020. The reports of headaches from September 2019 pertained to his left jaw, according to the Veteran. The great majority of the treatment records, however, show that the Veteran did not report headaches since discharge. Specifically, the VA Medical Center marked “negative” on whether the Veteran had any headaches in April 2007, July 2008, September 2008, December 2008, May 2009, June 2010, February 2011, June 2011, August 2011, November 2011, July 2012, September 2012, December 2012, January 2015, May 2015, February 2016, July 2016, September 2016, March 2017, August 2017, February 2018, and July 2018. In July 2018, the Veteran actively denied having headaches while complaining of cough and nasal congestion. In May 2012, the Veteran was afforded a VA examination for his headaches, and the examiner diagnosed the Veteran as having tension headaches. The Veteran reported that he had prostrating attacks of non-migraine headache pain more than once a month. The examiner opined that the headaches were less likely than not caused by the Veteran’s service. The examiner noted that the service treatment records treating the Veteran after getting struck in the head was noted as a contusion and that there were no further complaints or symptoms related to the injury afterwards, including in his separation medical examination. The examiner also observed that there was no further objective evidence of headache as a chronic condition. The examiner did not provide an opinion on whether the Veteran’s pre-existing headaches were aggravated by service. In April 2016, the Veteran testified that he had chronic headaches since trauma to the head in service. In March 2017, the Veteran was afforded another VA examination for his headaches. The Veteran reported that he has had headaches since service but did not take medication. The examiner opined that there was no evidence in the active military records that supported worsening of preexisting headaches and that the current medical record was silent for headaches. After considering the evidence of record, the Board concludes that the most probative evidence establishes that the Veteran’s preexisting headaches were not aggravated by service. Both the April 2016 and the March 2017 VA examiners reviewed the Veteran’s file and found no medical evidence supporting a causal relationship between his service and his headaches. The March 2017 VA examiner additionally found no evidence of record supporting an aggravation of the Veteran’s headaches. Furthermore, the March 2017 VA examiner opined that the current medical record was silent for headaches. Although the examiner did not specifically opine on whether the Veteran’s preexisting headaches were aggravated by a service-connected disability, the Board finds that the absence of headaches noted by the examiner obviates the need for a specific opinion. There is also no medical opinion to the contrary. The VA Medical Center treatment records support his finding as the Veteran did not report any headaches until February 2012, or until 43 years since his discharge from active service in February 1979. The passage of many years between discharge from active service and the objective documentation of a claimed disability is a factor that tends to weigh against a claim for service connection for the disability. Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000). In addition, had the Veteran experienced symptoms of continuous, recurrent headaches, he would have reported it in a clinical setting as he did with his other ailments. Cf. Kahana v. Shinseki, 24 Vet. App. 428, 440 (2011) (Lance, J., concurring) (holding that silence in a medical record can be weighed against lay testimony if the alleged injury, disease, or related symptoms would ordinarily have been recorded in the medical record being evaluated by the fact finder (citing Fed. R. Evid. 803(7))); see AZ v. Shinseki, 731 F.3d 1301 (Fed. Cir. 2013) (recognizing the widely held view that the absence of an entry in a record may be considered evidence that the fact did not occur if it appears that the fact would have been recorded if present). It is also well established that internal inconsistency, bias, facial plausibility, and consistency with other evidence submitted on behalf of the Veteran may be considered. Caluza v. Brown, 7 Vet. App. 498, 511-12, aff’d, 78 F.3d 604 (Fed. Cir. 1996) (per curium) (table); Madden v. Gober, 125 Fed. Cir. 1477, 1481 (Fed. Cir. 1997) (holding that the Board has the “authority to discount the weight and probative value of evidence in light of its inherent characteristics in its relationship to other items of evidence”). Given the inconsistencies and contradictions in the record, including the examples discussed above, the record does not establish continuous recurrent headaches nor worsening of such headaches. Therefore, the evidence in this case is not so evenly balanced as to allow application of the benefit-of-the-doubt rule as required by law and VA regulations. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert, 1 Vet. App. at 54. The preponderance of the evidence is against the Veteran’s claim, and as such service connection for headaches is denied. 2. Service connection for bilateral foot disorder, claimed as hammertoes and swollen feet, to include as secondary to service-connected back disability and left ankle disability The Veteran contends that his current bilateral foot complaints are related to service or secondary to his back and left ankle disorders. In November 2016, the Board found that while the May 2012 VA examiner’s opinion was adequate in answering the question of direct service connection, it did not answer the question of secondary service connection. Thus, the remaining question at issue is whether the Veteran’s bilateral foot disorder, claimed as hammertoes and swollen feet, were caused or aggravated by the Veteran’s service-connected disability. In March 2017, the Veteran was afforded a VA examination for his bilateral foot disorder. The examiner, after reviewing the evidence of record and examining the Veteran, opined that the Veteran’s swelling of the feet was most likely due to vascular conditions. The Veteran is not service connected for any vascular conditions. On the Veteran’s bilateral hammer toes, the examiner opined that they were not etiologically related to the service-connected left ankle or back disabilities as it is a chronic condition that worsen over time with the natural aging process and/or repetitive trauma. The examiner further explained that this was a long-standing process more likely than not caused by age, obesity, and occupational history. The examiner also stated that there was no medical literature available that supported the Veteran’s service-connected disabilities causing and/or aggravating the Veteran’s bilateral hammer toes or swelling of the feet. The Board finds that the March 2017 VA examination to be adequate as it addressed the Veteran’s contentions and provided a rationale supporting the examiner’s opinion. Moreover, there are no competent medical opinion of record that contradict the March 2017 VA examination. Moreover, to the extent the Veteran asserts that a relationship exists between his bilateral foot disability and his purported service-connected disabilities, the Board finds that such assertions do not provide persuasive evidence in support of the claim. The matter of the medical etiology of the disability here at issue is one within the province of trained medical professionals. Jones v. Brown, 7 Vet. App. 134, 137-38 (1994). Although lay persons are competent to attest to matters within their own personal knowledge, to include symptoms experienced or observed (as appropriate), as well as to provide opinions on some medical issues, such as those perceived through the senses (see Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011)), here, the etiology of the Veteran’s bilateral foot disorder is a complex medical matter that falls outside the realm of common knowledge of a lay person. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Thus, lay assertions as to the etiology of the Veteran’s bilateral foot disorder, to include secondary causation, have no probative value. In summary, the absence of competent medical or scientific evidence documenting a relationship between the Veteran’s bilateral foot disorder and his service-connected disabilities, service connection must be denied. Therefore, the evidence in this case is not so evenly balanced as to allow application of the benefit-of-the-doubt rule as required by law and VA regulations. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert, 1 Vet. App. at 54. The preponderance of the evidence is against the Veteran’s claim, and as such service connection for bilateral foot disorder, to include as secondary to service-connected disabilities, is denied. 3. Service connection for acquired psychiatric disorder, claimed as posttraumatic stress disorder (PTSD), mood disorder, and major depressive disorder The Veteran contends that he has trauma and depression from an incident at the barracks where he was punched in the face by another soldier. Service connection for posttraumatic stress disorder (PTSD) requires medical evidence diagnosing the condition in accordance with 38 C.F.R. § 4.125(a); a link, established by medical evidence, between current symptoms and an in-service stressor; and credible supporting evidence that the claimed in-service stressor occurred. 38 C.F.R. § 3.304(f). The medical evidence diagnosing PTSD must be in accordance with 38 C.F.R. § 4.125(a), which refers to the American Psychiatric Association Diagnostic and Statistical Manual for Mental Disorders (DSM) as the source of criteria for the diagnosis of claimed psychiatric disorders. The Board notes that DSM-V is the updated version of the Fourth Edition (DSM-IV). The DSM-V applies to all claims received on or after August 4, 2014. In this case, the Veteran’s claim was certified to the Board after that date, in April 2016. Thus, the DSM-V applies. The Court of Appeals for Veterans Claims (Court) has held the Board should not rely on DSM-IV findings when DSM-V applies. Golden v. Shulkin, 29 Vet. App. 221, 225 (2018). In November 2016, the Board found that the May 2012 VA examination was inadequate as it did not provide an opinion with respect to secondary service connection on an aggravation basis, while also stating the possibility of the Veteran’s depressive symptoms having been caused by his back disability. The Veteran was granted service connection for his back disability shortly after the May 2012 VA examination, and thus the Board directed the AOJ to schedule the Veteran for another VA examination. In March 2017, the Veteran received a VA examination for his acquired psychiatric disorder claim. After reviewing the Veteran’s medical evidence of record and examining him, the examiner opined that the Veteran’s acquired psychiatric disorder was less likely than not related to his service or service-connected disabilities. The examiner first found that the Veteran was not diagnosed as having PTSD as he did not meet the DSM-V stressor criteria nor symptoms criteria, and explained that the Veteran “was living a very successful marital relation, parenting performance, social and occupational life [until] he was caught in a drug transaction by the FBI [and] jailed for 12 years.” The examiner attributed the change in the Veteran’s life to this legal case rather than military service. Regarding the diagnosed major depressive disorder, the March 2017 examiner opined that it was not caused by the Veteran’s military service based on the lack of contemporaneous medical records during and within a year after discharge from active duty. The examiner also stated that the Veteran sought treatment around 2007, almost 32 years after the event in the barracks or the onset of his service-connected disabilities. The examiner added that the etiology or pathophysiology of major depressive disorder and the service-connected disabilities are not related with the other. The Veteran’s service-connected disabilities also did not cause, nor did the Veteran experience, a change in the Veteran’s major depressive disorder as there is no evidence of worsening symptoms. The Board finds that the March 2017 VA examination is adequate, as its opinion is supported by rationale. There are no competent medical opinions to the contrary. Again, to the extent the Veteran asserts that a relationship exists between his acquired psychiatric disorder and his getting punched in the face during service, the Board finds that such assertions do not provide persuasive evidence in support of the claim. The matter of the medical etiology of the disability here at issue is one within the province of trained medical professionals. Jones, 7 Vet. App. at 137-38; see also Jandreau, 492 F.3d at 1372. Thus, lay assertions as to the etiology or aggravation of the Veteran’s acquired psychiatric disability have no probative value. Therefore, the evidence in this case is not so evenly balanced as to allow application of the benefit-of-the-doubt rule as required by law and VA regulations. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert, 1 Vet. App. at 54. The preponderance of the evidence is against the Veteran’s claim, and as such service connection for an acquired psychiatric disability is denied. 4. Service connection for left knee disorder, to include as secondary to service-connected disabilities The Veteran contends that his left knee disorder was caused by his service-connected disabilities, to include his left ankle and back. In January 2016, the VA examiner opined that the left knee disability was not caused by the Veteran’s service-connected left ankle or back disabilities and was mostly due to aging. The examiner did not, however, provide an opinion as to whether the left knee disability was aggravated by the service-connected left ankle or back disabilities. As such, the Board found the January 2016 VA examination to be inadequate and directed the AOJ to obtain another opinion. The Veteran was afforded a VA examination for his knee in March 2017, and was diagnosed as having knee joint osteoarthritis. The Veteran reported that he has had left knee pain since military service when he stepped in a hole and fell. He reported that his left leg was placed in a cast. After reviewing the Veteran’s medical evidence of record and examining the Veteran, the examiner opined that the Veteran’s left knee disability was less likely than not proximately due to, or aggravated by, a service-connected disability. As rationale, the examiner noted that the Veteran’s service-connected disabilities did not cause dynamic abnormality in his gait which could induce knee degenerative joint disease. The examiner instead offered that the disability and its worsening were at least as likely as not due to his natural aging process. There is no contradictory medical evidence of record. Again, to the extent the Veteran asserts that a relationship exists between his left knee disability and his service-connected disabilities, the Board finds that such assertions do not provide persuasive evidence in support of the claim. The matter of the medical etiology of the disability here at issue is one within the province of trained medical professionals. Jones, 7 Vet. App. at 137-38; see also Jandreau, 492 F.3d at 1372. Thus, lay assertions as to the etiology or aggravation of the Veteran’s left knee disability have no probative value. Therefore, the evidence in this case is not so evenly balanced as to allow application of the benefit-of-the-doubt rule as required by law and VA regulations. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert, 1 Vet. App. at 54. The preponderance of the evidence is against the Veteran’s claim, and as such service connection for a left knee disability is denied. Increased Rating Disability evaluations are determined by the application of a schedule of ratings which is based on average impairment of earning capacity. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Separate diagnostic codes identify the various disabilities. Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. Any reasonable doubt regarding the degree of disability is resolved in favor of the Veteran. 38 C.F.R. § 4.3. It is not expected that every case will show every criterion for a particular rating. 38 C.F.R. § 4.21. In considering the severity of a disability, it is essential to trace the medical history of the Veteran. 38 C.F.R. §§ 4.1, 4.2, 4.41. Consideration of the whole-recorded history is necessary so that a rating may accurately reflect the elements of disability present. 38 C.F.R. § 4.2; Peyton v. Derwinski, 1 Vet. App. 282 (1991). Where a claimant appeals the initial rating assigned following an award of service connection, evidence contemporaneous with the claim for service connection and with the rating decision granting service connection would be most probative of the degree of disability existing at the time that the initial rating was assigned and should be the evidence “used to decide whether an [initial] rating on appeal was erroneous.” Fenderson v. West, 12 Vet. App. 119, 126 (1999). If later evidence obtained during the appeal period indicates that the degree of disability increased or decreased following the assignment of the initial rating, “staged” ratings may be assigned for separate periods of time based on facts found. Id. 5. A rating greater than 20 percent disabling for left ankle sprain with instability The Veteran contends that he is entitled to a 30 percent rating for his service-connected residuals of a left ankle sprain with instability. The Veteran is currently in receipt of a 20 percent rating effective October 3, 2011, and is rated under 38 C.F.R. § 4.71a, Diagnostic Code 5271. A 20 percent rating is the maximum disability rating under this Diagnostic Code. Therefore, the regulations pertaining to functional impairment (38 C.F.R. §§ 4.40, 4.45, 4.59) do not provide a basis for any rating higher than a 20 percent. See Johnston v. Brown, 10 Vet. App. 80, 85 (1997). The remaining issue at question is whether the left ankle sprain with instability warrant a separate rating under other diagnostic codes. Specifically, the questions are whether the Veteran has ankylosis of the left ankle, whether there is ankylosis of the subastragalar or tarsal joint, malunion of os calcis or astragalus, and/or astragalectomy. The May 2012 VA examination showed that the Veteran did not have ankylosis or disabilities other than degenerative or traumatic arthritis of the left ankle that manifested in painful motion. The March 2017 VA examination also showed that the Veteran did not have ankylosis, “shin splints,” stress fractures, achilles tendonitis, achilles tendon rupture, malunion of os calcis or astragalus, or astragalectomy. Although instability or dislocation was suspected, there was no laxity compared to the opposite ankle. Effective February 7, 2021, VA revised the criteria for evaluating musculoskeletal disorders. See Schedule for Rating Disabilities: Musculoskeletal System and Muscle Injuries, 85 Fed. Reg. 76453, 76464 (Nov. 30, 2020); Correction, 86 Fed. Reg. 8142, 8143 (Feb. 4, 2021) (changing new diagnostic code applicable to plantar fasciitis from 5285 to 5269). The only changes to Diagnostic Code 5271 was the definition of “marked” (less than 5 degrees of dorsiflexion and 10 degrees of plantar flexion) and “moderate” (less than 15 degrees of dorsiflexion and 30 degrees of plantar flexion). Thus, because the Veteran’s ankle disability is rated at the maximum schedular rate, the changes have no bearing on this appeal. For the foregoing reasons, the preponderance of the evidence reflects that the criteria for a rating greater than 20 percent for the Veteran’s service-connected left ankle sprain with instability have not been met or more nearly approximated. The benefit-of-the-doubt-doctrine is therefore not for application and the claim must be denied. 38 U.S.C. § 5107(b); 38 C.F.R. § 4.3. 6. An initial compensable rating for bilateral hearing loss The Veteran contends that he is entitled to an initial compensable rating for bilateral loss. The Veteran is currently in receipt of a 0 percent rating for bilateral sensorineural hearing loss effective October 3, 2011. The Veteran does not contend he has symptoms or disabilities other than bilateral hearing loss. Impairment of auditory acuity (hearing loss) is evaluated pursuant to the provisions set forth at 38 C.F.R. § 4.85. Under that regulation, an examination for hearing impairment must be conducted by a state-licensed audiologist and must include a controlled speech discrimination test (Maryland CNC) and a pure tone audiometry test. Examinations are to be conducted without the use of hearing aids. 38 C.F.R. § 4.85(a). To evaluate the degree of disability from defective hearing, the Rating Schedule establishes 11 auditory acuity levels from Level I, for essentially normal acuity, through Level XI, for profound deafness. These are assigned based on a combination of the percent of speech discrimination and the pure tone threshold average, as contained in a series of tables within the regulations. 38 C.F.R. § 4.85(b). The “puretone threshold average” is the sum of the pure tone thresholds at 1000, 2000, 3000, and 4000 Hertz (Hz), divided by four. This average is used in all cases to determine the Roman numeral designation for hearing impairment from Table VI or VIA. 38 C.F.R. § 4.85(d). Table VII, “Percentage Evaluations for Hearing Impairment,” is used to determine the percentage evaluation by combining the Roman numeral designations for hearing impairment of each ear. The horizontal rows represent the ear having the better hearing and the vertical columns the ear having the poorer hearing. The percentage evaluation is located at the point where the row and column intersect. 38 C.F.R. § 4.85(e). In cases where impaired hearing is service-connected in only one ear, in order to determine the percentage evaluation from Table VII, the non-service-connected ear will be assigned a Roman Numeral designation for hearing impairment of I, subject to the provisions of 38 C.F.R. § 3.383. 38 C.F.R. § 4.85(f). The regulatory provisions also provide two additional circumstances under which alternative tables can be employed. One is where the pure tone thresholds of the frequencies of 1000, 2000, 3000, and 4000 Hz are 55 decibels or greater; the rating specialist will determine the Roman numeral designation for hearing impairment from either Table VI or Table VIA, whichever results in the higher numeral. The second is where pure tone thresholds are 30 decibels or less at frequencies of 1000 Hz and below and are 70 decibels or more at 2000 Hz; the rating specialist will determine the Roman numeral designation for hearing impairment from either Table VI or Table VIA, whichever results in the higher numeral, and then elevate it to the next higher Roman numeral. See 38 C.F.R. § 4.86. In May 2012, the audiogram showed that the Veteran’s pure tone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 10 15 15 45 50 LEFT 15 15 15 35 50 The puretone threshold averages were 31 decibels for the right ear and 29 decibels for the left. His speech discrimination scores were 96 percent for the right ear and 96 percent for the left using the Maryland CNC wordlist, amounting to a Level I hearing loss for the right ear and Level I hearing loss for the left ear resulting in a 0 percent rating. During the April 2016 hearing, the Veteran testified that he could not understand people without his hearing aids if they were speaking to somebody else and that he had to wear his hearing aids constantly. He also testified that his hearing worsened since he “first detected it” and that he had to read lips to understand people. In November 2016, the Board remanded the claim as the Veteran testified that his hearing worsened since the last VA examination. In March 2017, the audiogram showed that the Veteran’s pure tone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 15 25 25 50 45 LEFT 20 20 25 40 50 The puretone threshold averages were 36 decibels for the right ear and 34 decibels for the left. His speech discrimination scores were 96 percent for the right ear and 100 percent for the left using the Maryland CNC wordlist, amounting to a Level I hearing loss for the right ear and Level I hearing loss for the left ear resulting in a 0 percent rating. Applying the criteria set forth above to the facts in this case, the Board finds that the preponderance of the evidence is against the assignment of an initial compensable rating for bilateral hearing loss. The record contains the results of two audiological examinations, conducted in May 2012 and March 2017, with results corresponding with Level I hearing loss in his right ear and Level I hearing loss in his left ear, corresponding to a 0 percent rating. See Tables VI and VII, 38 C.F.R. § 4.85. The Veteran’s hearing loss also does not show an exceptional pattern (as set forth in Section 4.86) and therefore Table VI will be used. Accordingly, the VA examinations of record do not support a rating greater than his initial 0 percent rating. For the foregoing reasons, the preponderance of the evidence reflects that the criteria for a compensable rating for the Veteran’s bilateral hearing loss have not been met or more nearly approximated. The benefit-of-the-doubt-doctrine is therefore not for application and the claim must be denied. 38 U.S.C. § 5107(b); 38 C.F.R. § 4.3. REASONS FOR REMAND 1. The issue of service connection for peripheral neuropathy of the bilateral upper extremities, to include as secondary to service-connected back disability is remanded. 2. The issue of service connection for peripheral neuropathy of the bilateral lower extremities, to include as secondary to service-connected back disability is remanded. The Veteran was afforded a VA examination in March 2017. The Veteran reported that he has had lower extremity peripheral neuropathy since 2009. After reviewing the medical evidence of record and examining the Veteran, the examiner opined that the Veteran’s peripheral neuropathies were not caused by service as there is no evidence of record supporting onset of peripheral neuropathies in service. On the question of secondary causation, the examiner opined that they were not caused by the Veteran’s service-connected left ankle and back disability. Rather, the examiner opined, the cause of peripheral neuropathies was known to be diabetes mellitus, vitamin deficiencies, autoimmune diseases, and long use of alcohol. The examiner did not state, however, whether this applied to the Veteran, nor did the examiner opine whether the peripheral neuropathies were aggravated by the Veteran’s service-connected disabilities. Secondary service connection is a two-part issue that involves causation and/or aggravation. See Allen v. Brown, 7 Vet. App. 439, 448 (1995) (holding that secondary service connection is a two-part issue that involves causation and/or aggravation); 38 C.F.R. § 3.310 (providing that “[a]ny increase in severity of a nonservice-connected disease or injury that is proximately due to or the result of a service-connected disease or injury, and not due to the natural progress of the nonservice-connected disease, will be service connected”). The Court of Appeals for Veterans Claims (Court) had held that a medical opinion that focuses solely on causation is inadequate to address whether a service-connected disability aggravated another condition. See El-Amin v. Shinseki, 26 Vet. App. 136, 140 (2013). Thus, because the VA examiner did not address the second element of secondary service connection, the March 2017 VA examination and opinion is inadequate. Accordingly, it necessary to remand the Veteran’s claim of service connection for sleep apnea for additional development. This is so because once VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate. See Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). 3. The issue of a total disability rating based on individual unemployability (TDIU) prior to November 20, 2014, is remanded. The claim of entitlement to a TDIU is inextricably intertwined with the remanded claims as the decision will affect the TDIU claim. See Harris v. Derwinski, 1 Vet. App. 180 (1991) (noting that two issues are “inextricably intertwined” when they are so closely tied together that a final decision on one issue cannot be rendered until a decision on the other issue has been rendered). Thus, consideration of the appeal regarding entitlement to a TDIU will be deferred. The matters are REMANDED for the following action: 1. Schedule the Veteran for an examination by a VA clinician to determine the nature and etiology of peripheral neuropathy of the bilateral upper extremities and bilateral lower extremities, to include as secondary to service-connected back disability. The examiner should review the virtual file. The examiner is to address the following: (a) Whether it is at least as likely as not (50 percent or greater probability) that peripheral neuropathy of the bilateral upper extremities and bilateral lower extremities, manifested during or is otherwise related to the Veteran’s period of active service. (b) Whether it is at least as likely as not (50 percent or greater probability) that peripheral neuropathy of the bilateral upper extremities and the bilateral lower extremities, were aggravated by a service-connected disability. The examiner is advised that aggravation means any increase in the severity of the underlying disability beyond its natural progression. If aggravation is found, the examiner should attempt to quantify the degree of additional disability resulting from the aggravation. A rationale for all opinions is to be provided. All pertinent evidence, including both lay and medical, should be considered. If an opinion cannot be given without resorting to speculation, the clinician should explain why and state whether the need to speculate is due to a deficiency in the state of general medical knowledge, the record, or the clinician. (Continued on next page) 2. After the RO develops and readjudicates the above claims and completes any additional development deemed necessary, readjudicate the Veteran’s TDIU claim based on a review of the entire evidentiary record. JAMES L. MARCH Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board H. Yun 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.