Citation Nr: 21014116 Decision Date: 03/11/21 Archive Date: 03/11/21 DOCKET NO. 13-22 972 DATE: March 11, 2021 ORDER As new and material has not been received to reopen a claim of service connection for missing teeth, the appeal is denied. As new and material evidence has been received to reopen a claim of service connection for a gastrointestinal condition, the appeal to this extent is granted. As new and material evidence has been received to reopen a claim of service connection for hemorrhoids, the appeal to this extent is granted. As new and material has been received to reopen a claim of service connection for a right thumb and hand condition, to include residuals of right thumb strain, the appeal to this extent is granted. As new and material has been received to reopen the claim of service connection for a low back condition, the appeal to this extent is granted. Service connection for a schizoaffective disorder, posttraumatic stress disorder (PTSD) and bipolar disorder is granted. Service connection for an eye condition is denied. Service connection for hemorrhoids is denied. Service connection for heart disease is denied. An increased disability rating in excess of 20 percent for hypertension is denied. An increased initial disability rating in excess of 10 percent for left ankle sprain is denied. REMANDED Service connection for a right thumb and hand condition. Service connection for a low back condition. Service connection for dementia, claimed as alcohol and drug use. Service connection for a gastrointestinal condition. An initial compensable disability rating for hearing loss prior to February 22, 2019, in excess of 30 percent from February 22, 2019, and in excess of zero percent from July 1, 2020. An increased disability rating in excess of 10 percent for a skin disability involving tinea pedis, tinea unguium, tinea cruris and tinea versicolor of the upper back and shoulders, prior to April 27, 2010, and in excess of 30 percent therefrom. A total disability rating based on individual unemployability due to service-connected disability (TDIU). REFERRED The issues of service connection for (1) erectile dysfunction and (2) headaches secondary to hypertension were raised by the record and are referred to the RO for adjudication. FINDINGS OF FACT 1. New and material has not been received to reopen the prior claim of service connection for missing teeth. 2. The Veteran has a psychiatric condition, variously diagnosed as schizoaffective disorder, PTSD, and bipolar disorder, that is related to service. 3. The Veteran’s eye condition is not related to a service-connected disability, or it is refractive error. 4. The Veteran’s heart disease is not related to service or a service-connected disability. 5. The Veteran’s hemorrhoids are not related to service or a service-connected disability. 6. The Veteran’s hypertension has not been manifested by diastolic pressure predominantly 120 or more. 7. The Veteran’s left ankle sprain has not manifested with marked limitation of motion, including less than 5 degrees of dorsiflexion or less than 10 degrees of plantar flexion. CONCLUSIONS OF LAW 1. The criteria for to reopen the claim of service connection for missing teeth have not been met. 38 U.S.C. §§ 5108, 7105; 38 C.F.R. §§ 3.156, 20.1100. 2. The criteria for service connection for schizoaffective disorder, PTSD, and bipolar disorder have been met. 38 U.S.C. § 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304. 3. The criteria for service connection for an eye condition have not been met. 38 U.S.C. §§ 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.310. 4. The criteria for service connection for heart have not been met. 38 U.S.C. §§ 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.310. 5. The criteria for service connection for hemorrhoids have not been met. 38 U.S.C. §§ 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.310. 6. The criteria for an increased disability rating in excess of 20 percent for hypertension have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.3, 4.7, 4.104, Diagnostic Code (DC) 7101. 7. The criteria for an increased initial disability rating in excess of 10 percent for left ankle sprain have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.3, 4.7, 4.40, 4.45, 4.59, 4.71a, DC 5271 (2020); 4.71a, DC 5271 (2021). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from November 1976 to December 1980. The case is on appeal from July 2010, October 2011, and August 2013 rating decisions. In December 2016, the Veteran testified at a Board hearing. An April 2019 rating decision increased the disability rating for hearing loss to 30 percent effective February 22, 2019. In May 2019, the Veteran filed a notice of disagreement (NOD) with the April 2019 rating decision. He appealed the issues involving (1) an evaluation in excess of 30 percent for hearing loss, and (2) an effective date prior to February 22, 2019. The Board finds that this NOD is moot as these issues are already on appeal. The Veteran’s appeal ultimately arises from the rating decision granting service connection for hearing loss. The April 2019 rating decision simply granted staged ratings for the disability. The appeal of the effective date for the 30 percent rating is subsumed by the appeal for an increased disability rating because the partial grant of a higher rating for part of the appeal period was not a full grant of the benefit sought on appeal. See, e.g., Harper v. Wilkie, 30 Vet. App. 356, 362 (2018). As such, the Veteran did not need to file an NOD as to the increased rating or effective date issues, and the Board has retained the original characterization of the issue to accurately reflect the status of that appeal. See, e.g., Hazan v. Gober, 10 Vet. App. 511 (1997). The Veteran’s May 2019 NOD also appealed the issue of “applicable back pay” for hearing loss. He specified that the was seeking a retroactive award from 1980. Essentially, this is an appeal for an earlier effective date for the award of service connection for hearing loss as he has not been service-connected for hearing loss since 1980. To this end, this appeal actually constitutes a freestanding claim for an earlier effective date as this NOD was not filed within one year of the October 2011 rating decision granting service connection for hearing loss. No further action is needed as to that issue. See Rudd v. Nicholson, 20 Vet. App. 296 (2006). A request for revision of a prior decision based on clear and unmistakable error (CUE) would be the sole avenue for obtaining an earlier effective date. A May 2020 rating decision decreased the disability rating of hearing loss from 30 percent to zero percent effective July 1, 2020. Rating reductions, as opposed to awards of staged ratings, are separately appealable issues. See Green v. Nicholson, 21 Vet. App. 512 (2006). The Veteran, however, did not appeal that rating reduction. Hence, the Board will consider whether a compensable rating is warranted effective from July 1, 2020, but the issue of the propriety of the reduction is not within the scope of the appeal at this time. In August 2019, the Veteran filed a Supplemental Claim (VA Form 20-0995) seeking service connection for sleep apnea. Although an appeal was already pending for that condition, the RO denied the claim in an October 2019 decision. The Veteran’s prior attorney representative filed an NOD (VA Form 10182) in October 2019. The Hearing Lane before the Board was selected. As the issue cannot be in both the Legacy appeal system and the AMA (Appeals Modernization Act) system, the Board finds the issue has effectively been removed from the Legacy system and is now in the AMA system. That appeal is not currently within the scope of the instant decision and will be addressed at a later time. The Veteran also has separate appeals pending for entitlement to a clothing allowance and VA Vocational Rehabilitation and Employment (VR&E) benefits. Those appeals will be the subject of later Board decisions. An appeal involving entitlement to attorney fees also remains open and pending. It too will be the subject of a separate Board decision at a later date. Additional evidence has been received since the statements of the case (SOCs). In August 2020, the Board sent the Veteran a letter regarding waiver of initial RO consideration of the evidence. Although there was an initial indication of no waiver, in January 2021, the Veteran’s duly appointed representative waived RO review of any additional evidence. See 38 C.F.R. § 20.1305(c). Although the Board is remanding some claims for additional development, remand is not necessary for any issue denied herein, as there is no reasonable possibility that further assistance would substantiate the claim. See 38 C.F.R. § 3.159(d). The Board has limited the discussion below to the relevant evidence required to support its finding of fact and conclusion of law, as well as to the specific contentions regarding the case as raised directly by the Veteran and those reasonably raised by the record. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015); Robinson v. Peake, 21 Vet. App. 545, 552 (2008). New and Material Evidence To reopen and review a claim that has been previously denied, new and material evidence must be submitted by or on behalf of a claimant. 38 U.S.C. § 5108; 38 C.F.R. § 3.156(a); see also Hodge v. West, 155 F.3d 1356 (Fed. Cir. 1998). The question of whether to reopen a claim should be considered under the standard of 38 C.F.R. § 3.159(c)(4)(iii), consistent with McLendon v. Nicholson, 20 Vet. App. 79 (2006), for determining whether a VA examination is necessary. See Shade v. Shinseki, 24 Vet. App. 110, 118-19, 123 (2010). If the McLendon standard is met, the claim should be reopened. See id. In this case, as a threshold matter, the Board observes that additional service records were received after the prior, final denials in all the instant claims. Specifically, the Veteran’s service personnel records (SPRs) were forwarded by the service department in October 2009. These service records are not relevant or material to any of the prior claims as they do not pertain to missing teeth, a gastrointestinal condition; hemorrhoids; a right thumb and hand condition, or a low back condition. The SPRs show the dates and circumstances of his service, which were not issues of material fact in dispute at the time of the prior denials. Hence, reconsideration under 38 C.F.R. § 3.156(c) is not in order. 1. Whether new and material has been received to reopen the claim of service connection for missing teeth. By a November 1997 rating decision, a claim of service connection for dental injury from service trauma was denied. The Veteran was notified of the decision by letter later that month, which was mailed to the then current mailing address of record. He then filed an NOD in December 1997. An SOC was issued in June 2000, and he filed a substantive appeal in July 2000. The Board remanded the matter in May 2001. Upon return, the Board denied the claim in April 2004. The Veteran did not appeal that decision to the United States Court of Appeals for Veterans Claims (Court). Thereafter, nothing further regarding the claim was received until the present claim to reopen in August 2009. Hence, the original claim is final. See 38 U.S.C. § 7105; 38 C.F.R. § 20.1100. The Board’s April 2004 decision denied the claim on the basis that the evidentiary record failed to demonstrate dental trauma in service. The Board considered the available service treatment records (STRs), but noted that the dental STRs were not available despite efforts to obtain them. The Board otherwise considered the Veteran’s lay assertion of dental trauma, plus post-service medical records showing dental treatment. The Board finds that new and material evidence has not been submitted to reopen the previously denied claim of service connection. The new evidence consists of ongoing post-service medical records showing dental treatment. This evidence does not pertain to whether in-service dental trauma occurred, which is the reason the claim was previously denied. Also of record are written testimonial statements from the Veteran, such as in June 2010, and his Board hearing testimony from December 2016. These statements assert leeching of toxic substances from the amalgam used to fill his teeth in service. This evidence is not duplicative of his prior statements previously considered by the April 2004 Board. However, the Veteran is only claiming missing teeth due to the exposures, not bone loss through trauma. Hence, his new statements do not assert a legally cognizable claim of service connection for a dental condition. As a matter of law, service connection could not be granted for the claim notwithstanding his new contentions. See 38 C.F.R. § 4.150. Under these circumstances, the Board concludes that new and material evidence to reopen the claim has not been received. As he has not met the threshold burden of submitting new and material evidence reopening the claim is not warranted. See 38 U.S.C. § 5108; 38 C.F.R. § 3.156(a). 2. Whether new and material evidence has been received to reopen a claim of service connection for a gastrointestinal condition. 3. Whether new and material evidence has been received to reopen a claim of service connection for hemorrhoids. By an April 1993 rating decision, claims of service connection for a chronic gastrointestinal disability and hemorrhoids were denied. The Veteran was notified of the decision by letter in May 1993, which was mailed to the then current mailing address of record. Thereafter, nothing further regarding the claim was received until the present claim to reopen in August 2009. No new evidence or NOD was received by VA within one year of the issuance of the April 1993 rating decision. As the Veteran did not appeal the decision, that rating decision is final. See 38 U.S.C. § 7105; 38 C.F.R. §§ 20.302, 20.1103. The Board finds that new and material evidence has been submitted so that the previously denied claims of service connection are reopened. See 38 U.S.C. § 5108; 38 C.F.R. § 3.156(a). The claims were previously denied because the STRs and post-service VA examinations were negative for any indication of either condition. Additional evidence received since then consists of VA medical records showing complaints and treatment for these two conditions. Hence, the appeal is granted to this limited extent. 4. Whether new and material has been received to reopen the claim of service connection for a right thumb and hand condition. By a May 1981 rating decision, a claim of service connection for a right thumb condition was denied. The Veteran filed an NOD in October 1981. The RO issued an SOC in October 1981. The Veteran perfected his appeal to the Board by filing a substantive appeal in November 1981. The Board initially remanded the claim in February 1983. Upon return, the Board denied the claim in April 1984. The Veteran filed a petition to reopen in September 1984. The claim was denied in a September 1984 rating decision. The Veteran filed a second petition to reopen in July 1996, which was denied in a July 1997 rating decision. Notice of this decision was sent to the Veteran later that month. Nothing further was received until the instant claim in August 2009. No NOD was received by VA within one year of the issuance of the July 1997 rating decision. As the Veteran did not appeal the decision, that rating decision is final. See 38 U.S.C. § 7105; 38 C.F.R. §§ 20.302, 20.1103. The Board finds that new and material evidence has been submitted so that the previously denied claim of service connection is reopened. See 38 U.S.C. § 5108; 38 C.F.R. § 3.156(a). The claim was originally denied in May 1981 on the basis that the condition was not found on last examination. The RO noted treatment for strained right thumb in November 1980. A VA examiner noted the Veteran’s report of pain on exertion of the right hand; the examiner found some limitation of motion of the right thumb. The RO determined that this failed to establish a chronic problem. The subsequent rating decisions denied on the basis that new and material evidence was not submitted. Since that time, the claims file contains new evidence consisting of September 2019 VA x-ray results showing degenerative arthritis changes in the hand. As this evidence shows an ongoing condition in the hand, which is the reason the claim was previously denied, the new evidence is material. Hence, the claim is granted to this extent. 5. Whether new and material has been received to reopen the claim of service connection for a low back condition. By a December 1981 rating decision, a claim of service connection for a low back condition was denied. Petitions to reopen were then denied in September 1984, April 1993, and July 1997, respectively. The Veteran was notified of the July 1997 decision by letter later that month, which was mailed to the then current mailing address of record. Thereafter, nothing further regarding the claim was received until the present claim to reopen in January 2011. No new evidence or NOD was received by VA within one year of the issuance of the July 1997 rating decision. As the Veteran did not appeal the decision, that rating decision is final. See 38 U.S.C. § 7105; 38 C.F.R. §§ 20.302, 20.1103. The Board finds that new and material evidence has been submitted so that the previously denied claim of service connection is reopened. See 38 U.S.C. § 5108; 38 C.F.R. § 3.156(a). See also January 2014 VA Chiropractic medical record; December 2016 Board hearing testimony. Service Connection Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active service. See 38 U.S.C. § 1131; 38 C.F.R. § 3.303. A veteran seeking compensation under these provisions must establish three elements: “(1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service.” Saunders v. Wilkie, 886 F.3d 1356, 1361 (Fed. Cir. 2018) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004)). Service connection may also be granted for a disability that is proximately due to, or aggravated by, service-connected disease or injury. See 38 C.F.R. § 3.310. “Congress specifically limits entitlement to service-connected disease or injury where such cases have resulted in a disability. In the absence of a proof of present disability there can be no claim.” Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992) (internal citation omitted). The requirement of a “current disability” is satisfied if a disorder is diagnosed at the time a claim is filed or at any time during the pendency of the appeal; service connection may be awarded even though the disability resolves prior to adjudication of the claim. See McClain v. Nicholson, 21 Vet. App. 319, 321 (2007). The standard is whether a disability exists at the time the claim was filed. See Romanowsky v. Shinseki, 26 Vet. App. 289, 293 (2013). 6. Service connection for a psychiatric condition, to include PTSD. Service connection for PTSD requires medical evidence diagnosing the condition in accordance with § 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 Veteran maintains that he has a current psychiatric condition that is due to various stressful events of service, including a motor vehicle accident (MVA), the death of a friend, and actions during the Iran hostage crisis. Board Hr’g Tr. 15-16, 20-21. The evidence also reasonably raises the question of whether the Veteran’s condition arose directly during service notwithstanding these events. The VA medical records and an August 2019 VA examination reflect diagnoses of schizoaffective disorder and PTSD. A private (non-VA) examiner in January 2017 diagnosed Bipolar Disorder I, currently mixed, and PTSD. Thus, the current disability element of the claim is established. The Veteran’s STRs show that he requested a psychiatric evaluation in February 1979. The SPRs show multiple infractions for which he received non-judicial punishment, plus a summary court martial. Thus, an in-service event is established. As to the nexus element, the favorable evidence shows ongoing symptoms after service. An August 1983 VA examination noted such complaints severe inability to sleep; being irritable, snappy and grumpy; inability to focus for long; and hyperactivity. Subsequent VA medical records in June 1984, October 1995, February 1996, July 1996, August 1997, and onwards reflect continued complaints of insomnia, anxiety, and depression. Other medical records, such as in November 2006, document his report of such symptomatology since service. This evidence is favorable as it tends to indicate ongoing symptoms since service. The January 2017 private examiner opined that the Veteran’s bipolar disorder “clearly” began when onboard the ship as he described quite clearly emerging hypomania symptoms and recalled them as distressing. The examiner noted that the Veteran had a family history predisposing him to such conditions, and he was working awake overnight shifts at that time. According to the examiner, such disruptions to the circadian rhythm are well-known and precipitate manic states, especially in persons with predisposition to bipolar disorder. Also, the examiner observed, the Veteran was 19 years old at the time, which is consistent with the typical age of onset for bipolar mania in males. The August 2019 VA examiner likewise opined that the Veteran’s condition was at least as likely as not related to service. The examiner noted that the Veteran had no mental health issues prior to service. He now had clear symptoms of schizoaffective disorder, identified in the report, which the examiner found to be related to the claimed in-service events. The examiner found the symptoms to meet the DSM criteria for the disorder. He had significant stressors in which he developed mental health symptomology during and after his service. Three specific incidents occurred which he referenced. One was being part of when the embassy was taken over; he felt constant fear the enemy would invade and he would not survive. The second incident was when he learned another comrade overdosed on substances. Also, the Veteran typically engaged in substance use with the fellow comrade but decided not to use the night the other individual passed away. He often thought it could have been him. The last situation involved his primary mission of working with explosives as he felt enormous responsibility and often felt he would blow himself and or others up. Collectively, the private and VA examiners opinions tend to indicate that the Veteran’s condition most likely began during service. There is some indication of symptoms prior to service. The Veteran himself has not been entirely consistent in this regard. For example, at VA in September 2012, he reported having some behavioral problems as a child such as getting into fights and using drugs and alcohol; he also stated he was depressed as a child but did not know it. He gave a similar history during treatment in October 1995, August 2010, and December 2015. Notwithstanding these indications of pre-service symptoms, the STRs do not note a psychiatric condition at service entrance. Hence, the presumption of soundness applies and, by operation of law, a psychiatric condition did not preexist service. See 38 U.S.C. § 1111; Wagner v. Principi, 370 F.3d 1089, 1096 (Fed. Cir. 2004). Hence, the private and VA examiner did not rely on an inaccurate history. Overall, the evidence is at least in equipoise in showing a current psychiatric condition that is related to service. When reasonable doubt is resolved in the Veteran’s favor, the Board finds that he has a psychiatric condition that is related to service. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. Accordingly, service connection is warranted for schizoaffective disorder, PTSD and bipolar disorder. 7. Service connection for an eye condition. The Veteran contends he has an eye condition secondary to hypertension and ischemic heart disease. See 10/03/2013 NOD. VA medical records, most recently in October 2018, show diagnoses of dry eye syndrome (DES) with Meibomian Gland Dysfunction (MGD); and refractive error with presbyopia. With regard to refractive error with presbyopia, refractive errors of the eye are not diseases or injuries within the meaning of applicable legislation. 38 C.F.R. § 3.303(c). Likewise, there is no indication that his hypertension or ischemic heart disease has caused or aggravated his DES with MGD. A VA examination has not been conducted. However, a VA examination is not warranted based only on the Veteran’s own conclusory, generalized statements, where there is no other supporting evidence in the record. Waters v. Shinseki, 601 F.3d 1274, 1278 (Fed. Cir. 2010). In sum, the preponderance of the evidence is against the claim, the benefit-of-the-doubt doctrine is not applicable, and therefore, service connection for an eye condition is not warranted. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. 8. Service connection for hemorrhoids. The Veteran is seeking service connection for hemorrhoids. He has not offered any statement that the Board can liberally construe or read sympathetically to determine why he believes service connection is warranted. An April 2014 VA colonoscopy shows the presence of hemorrhoids. However, the file contains no indication of a nexus to service or a service-connected disability. A VA examination has not been conducted. However, a VA examination is not warranted based only on the Veteran’s own conclusory, generalized statements, where there is no other supporting evidence in the record. Waters, 601 F.3d at 1278. Hence, the preponderance of the evidence is against the claim, the benefit-of-the-doubt doctrine is not applicable, and therefore, service connection for hemorrhoids is not warranted. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. 9. Service connection for heart disease. The Veteran maintains that service connection is warranted for heart disease, including for ischemia. At the outset, the Board observes that the Veteran has cited findings in the brain, but also the heart. For example, he wrote in an April 2013 statement that he had been diagnosed with ischemic blockage in the small blood vessels of his brain in 2010. The Board observes that the VA examiner medical records contain a brain magnetic resonance imaging scan (MRI) from March 2009 reflecting the findings cited by the Veteran. The Board herein below remands a claim of service connection for dementia based on this same evidence. Hence, the remanded claim encompasses the findings associated with the brain whereas the instant claim involves the heart. Conversely, he claimed the instant “ischemia” condition as hypertensive heart disease and cardiovascular disease, which is consistent with ischemic heart disease. Hence, the Board finds that this claim is most appropriately construed as a claim of service connection for ischemic heart disease. According to a private provider’s August 2017 medical record, the Veteran had findings consistent with aortic atherosclerosis, cardiomyopathy, and hypertensive heart disease without heart failure. Earlier evidence, such as in September 2013, showed that he did not have ischemic heart disease. Assuming as true that the diagnoses provided in August 2017 qualify within the generally accepted medical definition of ischemic heart disease, service connection is not warranted. There is no indicatio of a relation to service or a service-connected disability. A VA examination has not been conducted. However, a VA examination is not warranted based only on the Veteran’s own conclusory, generalized statements, where there is no other supporting evidence in the record. Waters, 601 F.3d at 1278. In sum, the preponderance of the evidence is against the claim, the benefit-of-the-doubt doctrine is not applicable, and therefore, service connection for heart disease is not warranted. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. Increased Ratings Ratings are based on a schedule of reductions in earning capacity from specific injuries or combination of injuries. The ratings shall be based, as far as practicable, upon the average impairments of earning capacity resulting from such injuries in civil occupations. 38 U.S.C. § 1155. Generally, the degrees of disability specified are considered adequate to compensate for considerable loss of working time from exacerbations or illnesses proportionate to the severity of the several grades of disability. 38 C.F.R. § 4.1. Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. 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 U.S.C. § 5107(b); 38 C.F.R. §§ 3.102, 4.3. 10. An increased disability rating in excess of 20 percent for hypertension. The Veteran is seeking an increased rating for hypertension. He filed a claim for increase in August 2009, which begins the period of appellate review now before the Board (plus consideration of the one-year look back period prior to the filing of that claim). See Gaston v. Shinseki, 605 F.3d 979, 984 (Fed. Cir. 2010). This disability has been assigned a 20 percent rating throughout the entire appeal period. A. Rating Schedule The Veteran’s hypertension has been assigned a disability rating under DC 7101 of 38 C.F.R. § 4.104. The applicable rating schedule is set forth as follows: 7101 Hypertensive vascular disease (hypertension and isolated systolic hypertension): Diastolic pressure predominantly 130 or more 60 Diastolic pressure predominantly 120 or more 40 Diastolic pressure predominantly 110 or more, or; systolic pressure predominantly 200 or more 20 Diastolic pressure predominantly 100 or more, or; systolic pressure predominantly 160 or more, or; minimum evaluation for an individual with a history of diastolic pressure predominantly 100 or more who requires continuous medication for control 10 NOTE (1): Hypertension or isolated systolic hypertension must be confirmed by readings taken two or more times on at least three different days. For purposes of this section, the term hypertension means that the diastolic blood pressure is predominantly 90mm. or greater, and isolated systolic hypertension means that the systolic blood pressure is predominantly 160mm. or greater with a diastolic blood pressure of less than 90mm. NOTE (2): Evaluate hypertension due to aortic insufficiency or hyperthyroidism, which is usually the isolated systolic type, as part of the condition causing it rather than by a separate evaluation. NOTE (3): Evaluate hypertension separately from hypertensive heart disease and other types of heart disease. Note (1) to 38 C.F.R. § 4.104, DC 7101, which requires two or more blood pressure readings on at least 3 different days, only applies to the initial confirmation of the hypertension diagnosis, and not the assignment of a disability rating. Gill v. Shinseki, 26 Vet. App. 386, 391 (2013). B. Discussion The VA and private medical records contain extensive blood pressure readings. Although the 10 percent level refers to a history, the higher levels pertain to the present findings. The highest readings of record were 149/106, 148/111, 157/107 (February 2010); 164/108 (November 2010); 166/102, 180/105 (October 2011); 166/111 (November 2011); 170/104 (February 2012); 171/102 (November 2013); 162/104 (June 2014); 150/100 (October 2016); and 172/102 (February 2019). His blood pressure at a June 2010 VA examination was 162/109, 161/112, 157/111. These readings were isolated and were less than diastolic pressure 120. Aside from these readings, the diastolic readings of record were predominantly less than 100. Hence, the Veteran’s diastolic pressure was not predominantly 120 or more. According to a June 2010 VA examination, the Veteran complained of headaches related to hypertension. He has also complained of dizziness and erectile dysfunction related to blood pressure medication. See, e.g., 4/29/2010 private physical therapy; 11/4/2010 VA Nursing; 7/24/2019 VA Nursing. The reports of headaches and erectile dysfunction reasonably raise a claim of secondary service connection for those conditions and are not part of the rating as the symptoms are not in the DC for hypertension. They are referred herein above for further action by the AOJ. Bailey v. Wilkie, No. 19-2661, 2021 U.S. App. Vet. Claims LEXIS 13, at *34 (U.S. Vet. App. Jan. 6, 2021). Regarding dizziness, the complaints of dizziness are not shown by the medical evidence to be secondary to hypertension. Nor is there is any indication of a diagnosis associated with those complaints. In either event, the Board finds that such complaints are reasonably contemplated by DC 7101. It is commonly understood and within ordinary knowledge to recognize that dizziness is a symptom generally associated with hypertension. To this end, DC 7101 provides for mechanical application of the rating schedule based on designated blood pressure readings. This type of DC, which involves a continuum of broad and non-exclusive benchmarks, reasonably encompasses all related symptomatology. See, e.g., Rossy v. Shulkin, 29 Vet. App. 142, 145 (2017). As such, dizziness is contemplated by the rating schedule. Even were it not, the evidence does not indicate any exceptional factors associated with the complaints of dizziness, such as hospitalizations or marked interference with employment. Hence, extraschedular referral is not warranted. See 38 C.F.R. § 3.321; Long v. Wilkie, No. 16-1537, 2020 U.S. App. Vet. Claims LEXIS 2371 (U.S. Vet. App. Dec. 30, 2020). In sum, the evidence is not in equipoise in showing a disability level higher than the current percent 20. As such, the benefit-of-the doubt doctrine is not applicable, and a higher rating for hypertension is not warranted. See 38 U.S.C. § 5107(b); 38 C.F.R. §§ 3.102, 4.3. 11. An increased initial disability rating in excess of 10 percent for left ankle sprain. The Veteran is seeking a higher initial rating for his left ankle disability. The appeal period now before the Board begins in January 2011, which is when service connection went into effect for this condition. This disability has been assigned a 10 percent rating throughout the entire appeal period. A. Rating Schedule The Veteran’s ankle disability has been assigned a disability rating under DC 5271 of 38 C.F.R. § 4.71a. The applicable rating schedule is set forth as follows: THE ANKLE Rating 5270 Ankle, ankylosis of: In plantar flexion at more than 40°, or in dorsiflexion at more than 10° or with abduction, adduction, inversion or eversion deformity 40 In plantar flexion, between 30° and 40°, or in dorsiflexion, between 0° and 10° 30 In plantar flexion, less than 30° 20 5271 Ankle, limited motion of: Marked 20 Moderate 10 5272 Subastragalar or tarsal joint, ankylosis of: In poor weight-bearing position 20 In good weight-bearing position 10 5273 Os calcis or astragalus, malunion of: Marked deformity 20 Moderate deformity 10 5274 Astragalectomy 20 Effective February 7, 2021, the rating schedule for the ankles was amended as follows: The Ankle Rating 5270 Ankle, ankylosis of: In plantar flexion at more than 40°, or in dorsiflexion at more than 10° or with abduction, adduction, inversion or eversion deformity 40 In plantar flexion, between 30° and 40°, or in dorsiflexion, between 0° and 10° 30 In plantar flexion, less than 30° 20 5271 Ankle, limited motion of: Marked (less than 5 degrees dorsiflexion or less than 10 degrees plantar flexion) 20 Moderate (less than 15 degrees dorsiflexion or less than 30 degrees plantar flexion) 10 5272 Subastragalar or tarsal joint, ankylosis of: In poor weight-bearing position 20 In good weight-bearing position 10 5273 Os calcis or astragalus, malunion of: Marked deformity 20 Moderate deformity 10 5274 Astragalectomy 20 Thus, for limitation of motion, the severity levels where characterized in degrees as well. The revised criteria apply for the period only beginning on the effective dates of the new provisions. See Kuzma v. Principi, 341 F.3d 1327 (Fed. Cir. 2003). B. Discussion The evidence shows that the Veteran’s dorsiflexion of the left ankle was to 20 degrees in December 2011; 20 degrees in January 2013; 5 degrees in March 2016 and August 2019; and 15 degrees in February 2020. His plantar flexion was to 20 degrees in June 2013; 45 degrees in August 2019; and 15 degrees in February 2020. (The March 2016 medical record does not specify whether the limitation was dorsiflexion or plantar flexion; the Board finds based upon context that it most likely was dorsiflexion as it went on to state that there was pain on dorsiflexion.) This evidence is consistent with a moderate, but not severe limitation of motion prior to February 7, 2021. Under the criteria in effect since February 2021, there was not less than 5 degrees dorsiflexion or less than 10 degrees plantar flexion, which is the equivalent of marked impairment. The Board acknowledges the Veteran’s lay reports of symptoms and that there was functional loss. He testified that he had been given an ankle brace and, although his symptom were not severe, it bothered him when walking or running. Board Hr’g Tr. 11. Even considering the Veteran’s lay reports of symptoms and functional loss, the degree of additional limitation reflected by the statements would not result in symptoms more nearly approximating severe limited motion. The Board has considered whether any other DCs related to disabilities of the ankle would provide for a higher disability rating. However, the evidence does not reflect that the symptoms would warrant a higher rating under a different DC. See 38 C.F.R. § 4.71a. The evidence shows that he did not have ankylosis, malunion of the os calcis or astragalus, or astragalectomy In conclusion, the Board finds that the preponderance of the evidence is against the Veteran’s appeal for a rating in excess of 10 percent. As such, the Board finds the benefit of the doubt doctrine is not applicable. See 38 U.S.C. § 5107(b); 38 C.F.R. §§ 3.102, 4.3. Therefore a higher initial rating is not warranted. REASONS FOR REMAND 1. Service connection for a right thumb and hand condition. The Veteran testified that he hurt his thumb during service while playing football. Board Hr’g Tr. 27. Consistent with his testimony, the Veteran’s STRs show treatment in November 1980 for complaints of pain in the right thumb for three days; the diagnosis was sprained thumb. After service, he was diagnosed with right hand strain at an April 1981 VA examination. He complained of having repeatedly hurt his fingers running and playing football. X-rays failed to demonstrate a recent fracture or dislocation, but physical examination revealed some limitation of motion. At subsequent VA examinations in June 1983 and August 1983, the Veteran again complained of painful right thumb. In February 1988, he sought treatment for complaints of painful right hand after striking someone. X-rays showed fractures of the 2nd and 3rd metacarpals. Most recently, a September 2019 VA x-ray showed joint space narrowing and overhanging edges; moderate arthritic degenerative changes of the first metacarpal phalangeal and PIP joints, and second third, and fourth DIP joints. In short, this evidence shows an injury in service with ongoing complaints of right thumb pain after service. There was an intervening injury after service, which involved fractures of other fingers. The Board finds that a VA examination is warranted in light of this evidence. 2. Service connection for a low back condition. The Veteran contends that he hurt his back in service and it still hurts. See 1/1/1991 & 5/16/2012 testimonial statements. He testified at his Board hearing that as an aviation ordnance man, he was bending, turning, and lifting heavy things, such as bombs, missiles, rockets. Board Hr’g Tr. 9. He had been using a back brace on, basically, on and off since service. Board Hr’g Tr. 10. Consistent with his testimony, he was seen for complaints of back pain during service in August 1977, August 1979, and January 1980. After service, he voiced complaints of intermittent low back pain at VA examinations in April 1981, June 1983, August 1983, and May 1984. An x-ray at VA in August 1994 was negative. A December 1996 VA x-ray showed positive findings. He has since had other injuries. For example, he was diagnosed with back sprain at VA in October 2007 after bending over and lifting something. He was seen in March 2008 for an exacerbation. In July 2008, he complained of back pain since a MVA that morning. A VA examiner in June 2013 opined that the Veteran’s condition was less likely than not related to service as the Veteran had not been diagnosed nor treated for degeneration of the intervertebral discs, and x-rays indicated no evidence of significant disease either old or recent. According to a January 2014 VA medical record, he likely had multifactorial low back pain involving difficulties tolerating mechanical loads in his lumbar spine; age-appropriate degeneration of the ligamentum flavum and associated joint complexes; chronic microtrauma to the ligaments, joints and the mechanoreceptors within; and congenital stenotic changes in the lumbar spine. According to a February 2015 VA Chiropractic note, the Veteran had low back pain that was weight-dependent. (Other VA medical records indicate obesity.) In January 2019, he complained of back pain after falling 2 days prior from a height and hitting his back. In May 2019, he complained of back pain after moving furniture the day prior. Overall, this evidence indicates initial complaints of low back pain in service with complaints of intermittent back pain ongoing after service. There were also intervening injuries, plus an assessment of age-relating findings. The June 2013 VA examiner’s opinion is not particular probative as it essentially relied on an absence of documented evidence during and after service without explaining why this was relevant. See McKinney v. McDonald, 28 Vet. App. 15, 30 (2016); Fountain v. McDonald, 27 Vet. App. 258, 272-75 (2015); Buczynski v. Shinseki, 24 Vet. App. 221, 223-24 (2011). Hence, the Board finds that a new opinion is warranted. 3. Service connection for dementia, claimed as alcohol and drug use. At the outset, the Board observes that service connection, including for secondary disabilities, is not precluded if alcohol abuse is secondary to a service-connected disability. See Allen v. Principi, 237 F.3d 1368, 1376, 1378 (Fed. Cir. 2001). To this end, the Board herein above grants service connection for a psychiatric condition, variously diagnosed as schizophrenia, PTSD and bipolar disorder. The medical records, such as a January 2017 private (non-VA) evaluation and an August 2019 VA examination, diagnosed poly substance use disorder, in remission. (Various VA medical records refer to prior alcohol abuse, plus use of other substances, including marijuana.) The medical opinions indicate that his substance use was a symptom of his service-connected psychiatric disability. With regard to the brain, an August 1997 VA Psychology report noted test findings suggesting generally normal-range functioning in most neurobehavioral domains, with some circumscribed deficits of unknown etiology. The most salient aspect of his profile was noted to be evidence of significant psychological and emotional problems, all of which could account for his academic difficulties, but he did have a slightly exaggerated psychological condition on the MMPI-2 because of acute distress or as a plea for assistance. A more focused and detailed psychological evaluation was recommended to rule out a thought disorder or other severe psychological disturbance. According to a March 2009 VA magnetic resonance imaging (MRI), the Veteran had moderately extensive small vessel ischemic disease. He underwent neuropsychological testing at VA in September 2012, which indicated normal-range functioning across most measured neurobehavioral domains, with circumscribed deficits of unclear etiology. This was noted to conceivably represent the effects of very mild cerebral impairment primarily involving the right cerebral hemisphere, but his performance pattern was also consistent with a history of heavy and sustained alcohol consumption. The Board finds that remand is warranted to assess whether the Veteran may have dementia due to a service-connected disability, including alcohol and/or drug use associated with the service-connected psychiatric disability. 4. Service connection for a gastrointestinal condition. According to an April 2018 letter from his VA primary care provider, the Veteran had gastroesophageal reflux disease (GERD). Earlier, he complained of stomach symptoms at an August 1983 VA examination. A diagnosis of rule out peptic ulcer disease (PUD) was made in November 1992. In March 1993, he was diagnosed with gastritis. This assessment was listed after a condition identified as “stress related”; he was also advised to discontinue alcohol. Overall, this evidence indicates a current diagnosis, GERD, and a possible relationship to a service-connected disability, the psychiatric condition, and potentially alcohol use. Under these circumstances, a VA opinion is warranted. 5. An initial compensable disability rating for hearing loss prior to February 22, 2019, in excess of 30 percent from February 22, 2019, and in excess of zero percent from July 1, 2020. There may be missing relevant audiograms as VA Audiology consultations from October 2009, August 2011, March 2013, February 2014, January 2016, September 2018, and March 2019, state that audiometry testing was done. Those audiograms are not in the file. As they are potentially relevant, the Board finds that they should be obtained on remand. With regard to the need for a VA examination, the ongoing private and VA medical records show a diagnosis of mixed hearing loss, but the Veteran is not service-connected for a mixed hearing loss. See, e.g., 11/16/2016 private audiology; October 2016 VA ENT consultation. Service connection for this disability was initially granted in an October 2011 rating decision. The rating decision did not specify if service connection was being granted for a mixed hearing loss or only a sensorineural hearing loss. According to an August 2010 VA Audio examination, however, the Veteran had a sensorineural hearing loss related to noise exposure in service. The rating decision cited this VA examination in granting service connection. Hence, the mixed hearing loss, as opposed to only a sensorineural hearing loss, is not service-connected. A VA examination is needed to clarify which portion of the Veteran’s current hearing impairment is associated with which aspect of his hearing loss. 6. An increased disability rating in excess of 10 percent for a skin disability involving tinea pedis, tinea unguium, tinea cruris and tinea versicolor of the upper back and shoulders, prior to April 27, 2010, and in excess of 30 percent therefrom. The Veteran last underwent a VA examination in June 2010. The examiner stated that the Veteran used a topical treatment that was neither a corticosteroid nor an immunosuppressive. This examination does not fully address the rating criteria pertaining to the skin as it is not clear if the Veteran’s medication fits the definition of a systemic therapy. See Burton v. Wilkie, 30 Vet. App. 286, 291-92 (2018); Johnson v. Shulkin, 862 F.3d 1351, 1355-56 (Fed. Cir. 2017). Likewise, unretouched color photographs were not taken, as required by the rating schedule. 7. A TDIU. The development and decision on the remanded increased rating issues will significantly impact a decision on the TDIU issue. Likewise, the Board herein above grants service connection for a psychiatric disability. According to a private psychological evaluation in September 2017, the Veteran was unemployable due to his psychiatric symptoms. In a February 2012 statement, the Veteran likewise identified his psychiatric disability as one of the multiple disabilities preventing him from working. Therefore, the issues are inextricably intertwined, and a remand of the TDIU issue is also warranted. The matters are REMANDED for the following action: 1. Obtain all audiological records, including from October 2009, August 2011, March 2013, February 2014, January 2016, September 2018, and March 2019. 2. Schedule the Veteran for an examination (or telehealth interview, review of the record, etc., if an in-person examination is not feasible) by an appropriate clinician to determine the nature and etiology of right thumb and hand condition. The examiner must address whether a current disorder at least as likely as not (1) began during active service, (2 manifested within 1 year after discharge from service, (3) was noted during service with continuity of the same symptomatology since service, or (4) is otherwise related to an in-service injury, event, or disease. In answering these questions, the examiner is asked to consider the treatment, complaints, and statements from the Veteran indicating ongoing symptoms starting during service. The examiner is asked to explain why this evidence make it more or less likely that a current condition started during service. If indicated, it should be explained whether there is a **medical** reason to believe that the Veteran’s recollection of his symptoms during and after service may be inaccurate or not medically supported as the onset or cause of his current diagnosis. The examiner should not rely on silence in the medical records unless it can be explained: (a) why the silence in the available records can be taken as proof that the symptom(s) did not occur, including why the fact would have normally been recorded if present, or (b) why the absence of medical records is medically significant. 3. Schedule the Veteran for an examination (or telehealth interview, review of the record, etc., if an in-person examination is not feasible) by an appropriate clinician to determine the nature and etiology of the claimed low back condition. The examiner must address whether a current disorder at least as likely as not (1) began during active service, (2) manifested within 1 year after discharge from service, (3) was noted during service with continuity of the same symptomatology since service, or (4) is otherwise related to an in-service injury, event, or disease. In answering these questions, the examiner is asked to consider the treatment, complaints, and statements from the Veteran indicating ongoing symptoms starting from service. The examiner is asked to explain why this evidence make it more or less likely that a current condition started during service. If indicated, it should be explained whether there is a **medical** reason to believe that the Veteran’s recollection of his symptoms during and after service may be inaccurate or not medically supported as the onset or cause of his current diagnosis. The examiner should not rely on silence in the medical records unless it can be explained: (a) why the silence in the available records can be taken as proof that the symptom(s) did not occur, including why the fact would have normally been recorded if present, or (b) why the absence of medical records is medically significant. 4. Schedule the Veteran for an examination (or telehealth interview, review of the record, etc., if an in-person examination is not feasible) by an appropriate clinician to determine the nature and etiology of the claimed dementia, claimed as alcohol and drug use. The examiner is asked to address each of the following: (a.) Does the Veteran have a current diagnosis associated with dementia and/or drug and alcohol use? The examiner must provide a diagnosis for any conditions found extant. In doing so, the examiner must conduct all necessary diagnostic testing, unless it can be explained why such testing is not medically necessary. (b.) For each diagnosis, the examiner must address whether the current condition is at least as likely as not (1) proximately due to a different medical condition, or (2) aggravated beyond its natural progression by a different medical condition. If so, the examiner is asked to identify the primary medical condition. The examiner should particularly address whether the condition is associated with the service-connected psychiatric disability. 5. Schedule the Veteran for an examination (or telehealth interview, review of the record, etc., if an in-person examination is not feasible) by an appropriate clinician to determine the nature and etiology of the claimed gastrointestinal condition, to include hiatal hernia, acid reflex, and stomach problems. The examiner is asked to address for each diagnosis whether the current condition is at least as likely as not (1) proximately due to a different medical condition, or (2) aggravated beyond its natural progression by a different medical condition. If so, the examiner is asked to identify the primary medical condition. The examiner should particularly address whether the condition is associated with the psychiatric disability and/or alcohol or substance abuse secondary to the service-connected psychiatric disability. 6. Schedule the Veteran for an examination by an appropriate clinician to determine the current severity of his service-connected hearing loss. The examiner should provide a full description of the disability and report all signs and symptoms necessary for evaluating the Veteran’s disability under the rating criteria. The examiner is particularly asked to identify what degree of his hearing impairment has been solely attributable to the service-connected sensorineural hearing loss instead of the mixed hearing loss. 7. Schedule the Veteran for an examination (or telehealth interview, review of the record, etc., if an in-person examination is not feasible) to assess the severity of his service-connected skin conditions. (a.) The examiner should provide a full description of the disability and report all signs and symptoms necessary for evaluating the Veteran’s disability under the rating criteria. (b.) For any medication taken, the examiner must identify (1) whether it is a systemic therapy (including a topical medication that affects the entire body as a whole in its treatment of the skin condition), and (2) whether it is, or is like, a corticosteroid or immunosuppressive drug. If any medication is not equivalent, it should be explained why this is so. (c.) Unretouched color photographs must be taken. RYAN T. KESSEL Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board C. Bosely, Counsel The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.