Citation Nr: 21014264 Decision Date: 03/11/21 Archive Date: 03/11/21 DOCKET NO. 14-03 437A DATE: March 11, 2021 ORDER Entitlement to service connection for right ear hearing loss is granted. Entitlement to service connection for left shoulder disability is denied. Entitlement to service connection for right shoulder disability, to include as due to left shoulder disability is denied. Entitlement to a rating in excess of 20 percent for cervical spine disability is denied. Entitlement to an initial disability evaluation for lumbar spine disability, including intervertebral disc syndrome greater than 10 percent prior to September 17, 2013, is denied. Entitlement to a disability evaluation for lumbar spine disability, including intervertebral disc syndrome greater than 20 percent, from September 17, 2013, to September 18, 2019, is denied. Entitlement to a disability evaluation greater than 40 percent for lumbar spine disability, including intervertebral disc syndrome from September 18, 2019 is denied. Entitlement to disability rating in excess of 10 percent for lower left extremity radiculopathy is denied. Entitlement to effective date prior to December 8, 2013 for service connection of lower left extremity radiculopathy is denied. REMANDED Entitlement to a total disability rating due to individual unemployability is remanded. FINDINGS OF FACT 1. The competent, credible, and probative lay and medical evidence is at least in relative equipoise to support that right ear hearing loss was aggravated beyond its natural progression by active duty service. 2. The Veteran’s left shoulder disability did not have its onset in and is not otherwise attributable to service. 3. The Veteran does not have evidence of a current right shoulder disability. 4. The Veteran's cervical spine disability at its worst produced symptoms of limitation of forward flexion of the cervical spine to 20 degrees. 5. Prior to September 17, 2013, the Veteran’s lumbar spine disability at its worse produced symptoms of painful motion with forward flexion to 85 degrees and a combined range of motion in the thoracolumbar spine of 150 degrees; no muscle spasms, localized tenderness, or guarding severe enough to result in an abnormal gait or abnormal spinal contour; and no incapacitating episodes requiring physician ordered bed rest having a total duration of at least two weeks during a 12-month period. 6. Prior to September 18, 2019, the Veteran’s lumbar disability at its worst produced abnormal spinal contour due to muscle guarding; incapacitating episodes due to IVDS requiring physician-ordered bed rest having a total duration of less than two weeks during a 12-month period; and forward flexion limited to 45 degrees with pain. 7. From September 18, 2019, the Veteran’s lumbar disability at its worst produced symptoms of limitation of forward flexion to 30 degrees and incapacitating episodes due to IVDS requiring physician-ordered bed rest having a total duration of three weeks. 8. The Veteran’s left lower extremity radiculopathy at its worst produced symptoms of mild constant pain, mild paresthesias and/or dysesthesias, and mild numbness which most nearly approximates mild incomplete paralysis of the sciatic nerve. 9. VA examinations and outpatient records do not show a diagnosis of left lower extremity radiculopathy prior to December 8, 2014. CONCLUSIONS OF LAW 1. Resolving reasonable doubt in the Veteran’s favor right ear hearing loss was incurred in or caused by service. 38 U.S.C. § 1101, 1110, 1131, 1137, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.303. 2. The criteria for entitlement to service connection for left shoulder disability have not been met. 38 U.S.C. § 1101, 1110, 1131, 1137, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.303. 3. The criteria for entitlement to service connection for right shoulder disability have not been met. 38 U.S.C. § 1101, 1110, 1131, 1137, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.303. 4. The criteria for entitlement to an initial evaluation greater than 20 percent disabling for cervical spine disability have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.321, 4.1, 4.7, 4.10, 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes 5242, 5243. 5. The criteria for entitlement to a disability evaluation greater than 10 percent for lumbar spine disability prior to September 17, 2013 have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.321, 4.1, 4.7, 4.10, 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes 5242, 5243. 6. The criteria for entitlement to a disability evaluation greater than 20 percent for lumbar spine disability prior to September 18, 2019 have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.321, 4.1, 4.7, 4.10, 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes 5242, 5243. 7. The criteria for entitlement to a disability evaluation greater than 40 percent for lumbar spine disability from September 18, 2019 have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.321, 4.1, 4.7, 4.10, 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes 5242, 5243. 8. The criteria for entitlement to an initial disability evaluation for lower left extremity radiculopathy greater than 10 percent have not been met. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.1, 4.3, 4.7, 4.14, 4.124a, Diagnostic Code 8520. 9. The criteria for an earlier effective date for left lower extremity radiculopathy have not been met. 38 U.S.C. §§ 5107, 5110; 38 C.F.R. §§ 3.156(c); 3.400. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served active duty in the United States Army from August 1997 to August 2001. These matters come before the Board of Veterans’ Appeals (Board) on appeal from July 2009, December 2014, and February 2018 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO). The matters in the July 2009 and December 2014 rating decisions were remanded by the Board in December 2018 for further evidentiary development. The Board is satisfied that there has been substantial compliance with the remand directives. See Dyment v. West, 13 Vet. App. 141, 146-67 (1999). Service Connection The Veteran contends that his right ear hearing loss and right and left shoulder disabilities had their onset in, were aggravated by or are otherwise attributable to service. To prevail on a direct service connection claim, there must be competent evidence of (1) a current disability, (2) in-service incurrence or aggravation of a disease or injury, and (3) a nexus between the in-service disease or injury and the current disability. Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2009); 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Competent medical evidence means evidence provided by a person who is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions. Competent medical evidence may also mean statements conveying sound medical principles found in medical treatises. It also includes statements contained in authoritative writings, such as medical and scientific articles and research reports or analyses. 38 C.F.R. § 3.159(a)(1). Competent lay evidence means any evidence not requiring that the proponent have specialized education, training, or experience. Lay evidence is competent if it is provided by a person who has knowledge of the facts or circumstances and conveys matters that can be observed and described by a lay person. 38 C.F.R. § 3.159(a)(2). In other words, lay testimony is competent when it reflects readily observable features or symptoms of injury or illness. Layno v. Brown, 6 Vet. App. 465, 469 (1994). Where pain alone results in functional impairment, even if there is no identified underlying diagnosis, it can constitute a disability. However, subjective pain and numbness in and of itself will not establish a current disability. Consideration should be given to the impact, or lack thereof, from pain, focusing on evidence of functional limitation caused by pain. See Saunders v. Wilkie, 886 F. 3d 1356 (Fed. Cir. 2018). 1. Entitlement to service connection for right ear hearing loss A veteran is presumed to have been in sound condition when examined, accepted and enrolled in service, except for defects noted at the time of entrance, or where clear and unmistakable evidence demonstrates that the injury or disease existed before acceptance and enrollment and was not aggravated by such service. 38 U.S.C. § 1111. According to 38 C.F.R. § 3.304(b), the term "noted" denotes only such conditions that are recorded in examination reports. If a preexisting disability is noted upon entry into service, the Veteran may not bring a claim for service connection for that disability on a direct-incurrence basis, only instead a claim for aggravation of the disability during or as a result of his service. In this circumstance, the provisions of 38 U.S.C. § 1153 apply and the Veteran has the burden of establishing aggravation. See Jensen v. Brown, 19 F.3d 1413, 1417 (Fed. Cir. 1994); see also 38 C.F.R. § 3.306. A preexisting disease will be considered to have been aggravated by military service when there is an increase in disability during such service, unless there is a specific finding that the increase is due to the natural progression of the disease. 38 U.S.C. § 1153; 38 C.F.R. § 3.306(a). The presumption of aggravation applies only when pre-service disability increases in severity during service. Beverly v. Brown, 9 Vet. App. 402, 405 (1996). But clear and unmistakable evidence is required to rebut the presumption of aggravation when the pre-service disability underwent an increase in severity during service. 38 C.F.R. § 3.306(b). A claimant is not required to show that the disease or injury increased in severity during service before VA's duty under this rebuttal standard attaches. Cotant v. Principi, 17 Vet. App. 116 (2003). Independent medical evidence generally is needed to support a finding that the pre-existing disorder increased in severity during service beyond its natural progression. See Paulson v. Brown, 7 Vet. App. 466, 470-471 (1995); Crowe v. Brown, 7 Vet. App. 238, 246 (1994). The presumption of aggravation applies where there was a worsening of the disability in service, regardless of whether the degree of worsening was enough to warrant compensation. Browder v. Derwinski, 1 Vet. App. 204, 206-207 (1991). For purposes of applying the laws administered by VA, impaired hearing will be considered to be a disability when the auditory threshold in any of the frequencies 500, 1000, 2000, 3000, 4000 Hertz is 40 decibels or greater; when the auditory thresholds for at least three of the above frequencies are 26 decibels or greater; or when speech recognition scores using the Maryland CNC Test are less than 94 percent. 38 C.F.R. § 3.385. The Veteran’s DD 214 indicates that the Veteran’s Military Occupational Specialty (MOS) was finance specialist. He received the Expert Marksman Qualification including an Automatic Rifle Bar. The Veteran’s service treatment records (STRs) include an entrance, interim, and separation audiograms. Pre-induction in May 1997, the audiologist reported the following pure tone thresholds (in decibels for the right ear: HERTZ HERTZ 500 1000 2000 3000 4000 Right Ear 45 30 30 20 30 In August 1997, a recheck was done in which the audiologist reported the same audiometric pure tone thresholds (in decibels) as in the May 1997 examination of the right ear. In July 1999, the audiologist reported the following pure tone thresholds (in decibels) for the right ear: HERTZ 500 1000 2000 3000 4000 Right Ear 45 35 40 20 25 In June 2001, the audiologist reported the following pure tone thresholds (in decibels) for the right ear: HERTZ 500 1000 2000 3000 4000 Right Ear 45 35 35 30 35 VA received a buddy statement from M.H. attesting to the absence of any complaints of hearing loss prior to the Veteran’s service beginning in August 1997 and his complaints during service of a hearing problem due to exposure to loud equipment and the firing range. Turning to the VA treatment records, the Veteran reported hearing loss due to exposure to loud noises while in the military during an April 2008 primary care visit for unrelated medical issues. The Veteran was afforded a VA hearing examination with addendum opinion in February and April 2009 respectively. The Board noted in its December 2018 decision that the VA examiner applied an incorrect standard in concluding that it was less likely than not that the Veteran’s pre-existing right ear hearing loss was aggravated due to service. As the addendum opinion did not use the correct standard of clear and unmistakable evidence, a remand was required for an addendum opinion applying the appropriate standard. Turning to the evidence of record, the February 2009 audiologist examiner reported that following pure tone thresholds (in decibels): HERTZ 500 1000 2000 3000 4000 Right Ear 50 50 45 45 40 The Veteran’s speech recognition acuity for the right ear was 98 percent. During his examination, the Veteran gave a history of constant exposure to loud noises from firing weapons and backfiring military vehicles that needed servicing. His military occupational specialties were accounts payable, motor pool, and armory which involved servicing weapons including taking them to the firing range to ensure that they fired properly. The Veteran acknowledged use of earplugs in the military. The VA examiner opined that the sensorineural component of the Veteran’s hearing loss was at least as likely as not due to military noise exposure. In April 2009, the Veteran underwent audiometry examination with a VA contract examiner who compared all results through the February 2009 audiogram performed in his office. The contract examiner noted that given that the majority of the decibel shift in the abnormal right ear had occurred since separation from military service, with a 15-decibel shift at 1000 Hz, 10-decibel shift at 2000 Hz, and 15 decibel-shift at 3000 Hz since service separation, the claimed aggravation of hearing loss was less likely than not to have occurred during service. Upon remand, an addendum opinion was requested given that the Veteran had a pre-existing hearing loss, the appropriate standard was “clear and unmistakable evidence of aggravation” and not the “less likely than not” standard. The Veteran was afforded an addendum opinion for right ear hearing loss in September 2019. The VA examiner conducted a review of the claims file and previous examinations in September 2019. The examiner opined that the Veteran’s right ear hearing loss clearly and unmistakably existed prior to service, and provided the following rationale regarding whether the Veteran’s right ear hearing loss was clearly and unmistakably not aggravated beyond its natural progression by an in-service injury, event or illness. The examiner opined, based upon an OSHA standard, that it is less likely than not that the claimant's pre-existing right-sided hearing loss was aggravated beyond its natural progression by military noise exposure. The examiner compared the Veteran’s audiograms with “dates most proximal to documented entries (sic) and exit from military service,” noting that an OSHA Standard Threshold Shift (average of 10 dB at 2000, 3000, and 4000 Hz) was not observed for the right ear. The Board notes that the objective audiometric results at the time of the Veteran induction reflect clear and unmistakable evidence of a right ear hearing loss for VA purposes with both a threshold of 40 decibels in at least one frequency and three thresholds above 26 decibels. On remand for an opinion using the clear and unmistakable evidence standard, the VA examiner again used the phrase “less likely than not” in rationalizing his opinion which is the incorrect standard that necessitated the remand. However, the Board is satisfied with the medical evidence of record and find that such is sufficient to make a decision on the claim, with regards to the Veteran’s preexisting hearing loss condition of the right ear. Here, the Board finds that the principle of presumption of aggravation applies to the instant claim for hearing loss. Reflecting upon the objective evidence of record, there is no question that the Veteran’s entered service with hearing loss in his right ear. Likewise, the objective medical evidence in the Veteran’s STRs are clear in demonstrating some level of aggravation of that hearing loss; applying the lower of the pure tone thresholds from the audiometric results between the 1997 induction and 1999 after induction audiometric results, the lower thresholds were 30 at 2000 Hz, 20 at 3000 Hz, and 25 at 4000 Hz. Shortly before separation from service, the thresholds were 30 at 2000 Hz indicative of no shift, 30 at 3000 Hz a 10-decibel shift, and 35 at 4000 Hz a 10-decibel shift constituting a 10 decibel threshold shift at two frequencies over a period of less than 4 years. While such shift is not as severe as that required by the OSHA standard for occupational hearing damage, which requires threshold shifts of 10 decibels at 2000 Hz, 3000 Hz and 4000 Hz, the Board notes that this OSHA standard is guidance and not VA law. Accordingly, the presumption of aggravation attaches, and must be rebutted by clear and unmistakable evidence that aggravation was not caused by service. The Board finds that there is not clear and unmistakable evidence that the Veteran’s right ear hearing loss was not aggravated beyond its normal progression in service. To this end, the United States Court of Appeal for Veteran Claims has specifically stated that clear and unmistakable evidence is such evidence that “cannot be misinterpreted and misunderstood, i.e., it is undebatable.” Quirin v. Shinseki, 22 Vet. App. 390, 396 (2009). As such, the Board finds that the two failed attempts by the VA to acquire opinions that such aggravation was not clearly and unmistakably caused by the Veteran’s active service shows that such finding to rebut such presumption of aggravation is not an ‘undebatable’ matter, and, by its nature, this process is evidence that this matter cannot constitute clear and unmistakable evidence. Accordingly, in the absence of clear and unmistakable evidence that the Veteran’s bilateral right ear hearing loss was not aggravated beyond its normal progression in service, service connection for right ear hearing loss is warranted. See Gilbert, supra. 2. Entitlement to service connection for left shoulder disability 3. Entitlement to service connection for right shoulder disability A review of the Veterans STRs indicates that the Veteran was treated for a right shoulder injury sustained during a fall in April 1999. There were no complaints relating to the left shoulder and it was not examined. Bilateral shoulder x-rays were obtained which revealed no abnormalities. The military physician assessed a probable right shoulder grade-I acromioclavicular joint separation and prescribed conservative management for one week. A month prior to separation from service in 2001 the Veteran underwent a clinical examination. A normal evaluation of the upper extremities was documented. The Veteran completed and signed a Report of Medical History in which he endorsed a painful or “trick” shoulder. Upon separation the Veteran affirmatively indicated that he did not intend to seek disability compensation for any condition. Turning to the Veteran’s VA treatment records, an April 2008 primary care examination documented that no abnormalities were detected upon examination of the Veteran’s shoulders and extremities. In a February 2009 primary care visit the Veteran indicated that he had no complaints other than low back pain. A June 2009 radiology x-ray of the left shoulder showed normal alignment of the acromioclavicular and glenohumeral joints with no evidence of fracture or other structural abnormalities. The joint spaces were maintained and surrounding soft tissues were unremarkable. The Veteran was afforded a VA examination in June 2009 for shoulder conditions. During the examination, the Veteran reported an injury to his left shoulder in 1998 after falling down a flight of stairs. Examination the left shoulder revealed no signs of edema, effusion, weakness, tenderness, redness, heat, subluxation or guarding of movement. Range of motion in the Veteran’s left shoulder demonstrated limitation of flexion to 110 and abduction to 150 of the full 180 degrees; and internal and external rotation both to 80 of the full 90 degrees. The joint function was limited by pain with an additional 15 degrees of functional limitation following repetitive use. There was no additional limitation due to fatigue, weakness, lack of endurance, or incoordination. The Veteran was diagnosed with left shoulder strain. Range of motion for the right shoulder demonstrated flexion to 150 degrees and abduction to 160 degrees of the full 180 degrees; and internal and external rotation both to the full 90 degrees. The right shoulder function was not limited by pain, fatigue, weakness, lack of endurance, or incoordination after repetitive use. No diagnosis of a disability of the right shoulder was given. However, the examiner opined that the finding of mild limitation of motion in the Veteran’s right shoulder was at least as likely as not related to the Veteran’s left shoulder strain based upon overcompensation by the right shoulder. In October 2019, the Veteran was afforded an addendum opinion regarding left and right shoulder disabilities. After a review of the Veterans STRs and VA treatment records the physician examiner opined that the grade I right acromioclavicular separation resolved in service. The physician examiner emphasized that there was no reference to a left shoulder injury in April 1999 in the Veteran’s STRs and that the recent VA treatment records were silent as to any complaints of pain or other disability of either shoulder. Finally, the examiner noted that there was a lack of any objective evidence as well as a lack of continuity of symptoms since service to such that he was unable to confirm any current pathology for the right shoulder. The Veteran is of the belief that his current left and right shoulder disabilities are related to service. The Board does not question the Veteran's credibility in his assertions that he first experienced symptoms in service, noting however, that treatment records reflect that his only right shoulder was injured in service. See Caluza, supra. The Veteran is not considered competent to medically attribute his current left shoulder and right shoulder disabilities to a specific cause, as doing so requires medical knowledge and expertise that the Veteran has not been shown to possess. See Kahana, 24 Vet. App. 428; Jandreau v. Nicholson, 492 F. 3d at 1376-77. Therefore, his statements do not constitute competent medical evidence that may be probative in assessing whether there is an etiological relationship between the in-service right shoulder pain and any current left or right shoulder disability. To this end, the Board assigns more probative weight to the competent medical evidence of record, to explicitly include the VA examination and opinions with regards to etiological nexus of the Veteran’s claimed bilateral shoulder disabilities. The Board finds for both the right and left shoulder, the VA examiner has concluded that neither claimed disability were etiologically related to the Veteran’s active service. With regards to the left shoulder, the examiner opined that as there was no evidence of any injury to the left shoulder during service, to include on the Veteran’s separation examination, and for years after separation, that the Veteran’s current left shoulder disability, was less likely than not due to any aspect of the Veteran’s active service. The Board notes that a such finding and rationale are corroborated by the evidence of record, which show no evidence of a left shoulder injury, treatment, or diagnosis, during his active service, to especially include as a result of his recorded 1999 injury to the right shoulder. To this end, the Veteran’s post-service treatment records also reveals no additional treatment or complaint regarding the left shoulder, until several years later, after a different injury unrelated to service. With regard to the right shoulder, the examiner noted that the Veteran currently had no pathology or a diagnosable disability, however, even assuming that one existed, the examiner noted that such disability on the right shoulder would not be related to any injury/incurrence during service. To this end, the examiner reasoned that the Veteran’s inservice right shoulder injury was resolved prior to separation, and that no further/additional shoulder disability progressed since that injury, or after service. As such, the examiner found that neither the left nor right shoulder disability is related to any aspect of the Veteran’s active service. The Board finds that such opinion, as it was provided by a medical professional with appropriate medical education, training, and experience, and based on a noted review of the Veteran’s claims file and medical history, is of the higher probative value. Therefore, as there is no contradictory medical opinions or evidence, the Board must find that the preponderance of the evidence is against the Veteran’s claim for service connection, and as such the claims must be denied. See Gilbert, supra. Increased Disability Ratings The Veteran contends that the severity of his symptoms are greater than the 20 percent rating for his cervical spine disability, and 10 percent rating prior to September 17, 2013, 20 percent rating prior to September 18, 2019; and 40 percent from September 18, 2019 for lumbar spine disability, including intervertebral disc syndrome. In addition, the Veteran contends that the severity of his symptoms is greater than contemplated by the 20 percent rating for lower left extremity radiculopathy. Disability ratings are determined by applying the criteria set forth in VA's Schedule for Rating Disabilities (Rating Schedule), which is based on the average impairment of earning capacity. Individual disabilities are assigned separate diagnostic codes. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. The basis of disability evaluations is the ability of the body as a whole, or of the psyche, or of a system or organ of the body to function under the ordinary conditions of daily life including employment. 38 C.F.R. § 4.10. If there is a question as to which evaluation to apply to the Veteran's disability, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. When reasonable doubt arises as to the degree of disability, such doubt will be resolved in the Veteran's favor. 38 C.F.R. § 4.3. Pertinent regulations do not require that all cases show all findings specified by the Rating Schedule, but that findings sufficiently characteristic to identify the disease and the resulting disability and above all, coordination of rating with impairment of function will be expected in all cases. 38 C.F.R. § 4.21. Therefore, the Board has considered the potential application of various other provisions of the regulations governing VA benefits, whether or not they were raised by the Veteran, as well as the entire history of her disability in reaching its decision. Schafrath v. Derwinski, 1 Vet. App. 589, 595 (1991). The Veteran's entire history is reviewed when assigning a disability evaluation per 38 C.F.R. § 4.1. However, where service connection has already been established and an increase in the disability rating is at issue, it is the present level of disability that is of primary concern. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). The Court has held that in determining the present level of a disability for any increased evaluation claim, the Board must consider the application of staged ratings considering whether there are times when a service-connected disability has been more severe than others. See Hart v. Mansfield, 21 Vet. App. 505, 509-510 (2007). When evaluating joint disabilities rated on the basis of limitation of motion, VA must consider granting a higher rating in cases in which functional loss due to pain, weakness, excess fatigability, or incoordination is demonstrated, and those factors are not contemplated in the relevant rating criteria. See 38 C.F.R. §§ 4.40, 4.45, 4.59 (2015); DeLuca v. Brown, 8 Vet. App. 202 (1995). Recently, the Court clarified that although pain may be a cause or manifestation of functional loss, limitation of motion due to pain is not necessarily rated at the same level as functional loss where motion is impeded. See Mitchell v. Shinseki, 25 Vet. App. 32 (2011). Pursuant to 38 C.F.R. §§ 4.40 and 4.45, the possible manifestations of functional loss include decreased or abnormal excursion, strength, speed, coordination, or endurance, as well as less or more movement than is normal, weakened movement, excess fatigability, and pain on movement (as well as swelling, deformity, and atrophy) that affects stability, standing, and weight-bearing. See 38 C.F.R. §§ 4.40, 4.45. Thus, functional loss caused by pain must be rated at the same level as if the functional loss were caused by any of the other factors cited above. When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case, the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Entitlement to increased ratings for lumbar spine disability. including intervertebral disc syndrome, cervical spine disability and left lower extremity radiculopathy All spinal disabilities are evaluated under the General Rating Formula for Diseases and Injuries of the Spine. Degenerative arthritis of the spine and spondylolisthesis or segmental instability are to be evaluated either under the General Rating Formula for Diseases and Injuries of the Spine or under the Formula for Rating Intervertebral Disc Syndrome (IVDS) Based on Incapacitating Episodes (DC 5243), whichever method results in the higher rating. Under the General Rating Formula for Diseases and Injuries of the Spine, a 10 percent rating is warranted when the forward flexion of the thoracolumbar spine is greater than 60 degrees but not greater than 85 degrees; or, the combined range of motion of the thoracolumbar spine is greater than 120 degrees but not greater than 235 degrees; or, muscle spasm, guarding, or localized tenderness not resulting in abnormal gait or abnormal spinal contour; or, vertebral body fracture with loss of 50 percent or more of the height. For VA compensation purposes, normal forward flexion of the thoracolumbar spine is zero to 90 degrees, extension is zero to 30 degrees, left and right lateral flexion are zero to 30 degrees, and left and right lateral rotation are zero to 30 degrees. The normal combined range of motion of the thoracolumbar spine is 240 degrees. The combined range of motion refers to the sum of the range of forward flexion, extension, left and right lateral flexion, and left and right rotation. The normal ranges of motion for each component of spinal motion provided in this note are the maximum that can be used for calculation of the combined range of motion. Id. A 20 percent rating is warranted when the forward flexion of the thoracolumbar spine is greater than 30 degrees but not greater than 60 degrees; or, the combined range of motion of the thoracolumbar spine is not greater than 120 degrees; or, there is muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis. A 30 percent rating is assigned for forward flexion of the cervical spine limited to 15 degrees or less; or, favorable ankylosis of the entire cervical spine. A 40 percent rating is warranted when forward flexion of the thoracolumbar spine is 30 degrees or less; or, there is favorable ankylosis of the entire thoracolumbar spine. A 50 percent rating is assigned for unfavorable ankylosis of the entire thoracolumbar spine. A 100 percent rating is assigned for unfavorable ankylosis of entire spine. 38 C.F.R. § 4.71a. For VA compensation purposes, unfavorable ankylosis is a condition in which the entire cervical spine, the entire thoracolumbar spine, or the entire spine is fixed in flexion or extension, and the ankylosis results in one or more of the following: difficulty walking because of a limited line of vision; restricted opening of the mouth and chewing; breathing limited to diaphragmatic respiration; gastrointestinal symptoms due to pressure of the costal margin on the abdomen; dyspnea or dysphagia; atlantoaxial or cervical subluxation or dislocation; or neurologic symptoms due to nerve root stretching. Fixation of a spinal segment in neutral position (0 degrees) always represents favorable ankylosis. The rater is to round each range of motion measurement to the nearest five degrees. 38 C.F.R. § 4.71a, General Rating Formula for Diseases and Injuries of the Spine, Note (5). The Formula for Rating Intervertebral Disc Syndrome (IVDS) Based on Incapacitating Episodes provides a 60 percent rating for incapacitating episodes having a total duration of at least 6 weeks during the past 12 months. A 40 percent rating is warranted for incapacitating episodes having a total duration of least 4 weeks but less than 6 weeks during the past 12 months. A 20 percent rating is warranted for incapacitating episodes having a total duration of at least 2 weeks but less than 4 weeks during the past 12 months. A 10 percent rating is warranted for incapacitating episodes having a total duration of at least one week but less than 2 weeks during the past 12 months. 38 C.F.R. § 4.71a, DC 5243. An incapacitating episode is defined as a period of acute signs and symptoms due to intervertebral disc syndrome that requires bed rest prescribed by a physician and treatment by a physician. Id. at Note (1). The Veteran has also been diagnosed with lower extremity radiculopathy associated with lumbar spondylosis. VA regulations provide that any associated objective neurologic abnormalities are to be evaluated separately under the appropriate diagnostic code. See 38 C.F.R. § 4.71a Note (1). In this case, the Veteran's radiculopathy has been rated under DCs 8520, for paralysis of the sciatic nerve. Under DC 8520, an 80 percent disability rating is assigned for complete paralysis of the sciatic nerve, demonstrated by foot drop, no active movement possible of the muscles below the knee, and knee flexion that is weakened or (very rarely) lost. Lower disability ratings are provided for incomplete paralysis, defined by the Rating Schedule as "a degree of lost or impaired function substantially less than the type picture for complete paralysis given." A 60 percent disability rating is assigned for severe, incomplete paralysis, with marked muscular atrophy. A 40 percent disability rating is assigned for moderately severe, incomplete paralysis. A 20 percent disability rating is assigned for moderate, incomplete paralysis. A 10 percent disability rating is assigned for mild, incomplete paralysis. 38 C.F.R. § 4.124a. Entitlement to an evaluation greater than 20 percent disabling for cervical spine disability The Veteran was service connected for cervical spine disability from May 23, 2008. In June 2009, the Veteran was afforded a contract VA examination of his cervical spine. Upon examination of the cervical spine, there was no ankylosis, no evidence of tenderness to palpation, and no radiating pain or muscle spasm with movement. The Veteran demonstrated initial full flexion to 45 degrees, 30 of the 45 degrees of extension, 30 of the 45 degrees of right lateral flexion, 40 of the 45 degrees of left lateral flexion, 35 of the 80 degrees of right rotation and 45 of the 80 degrees of left rotation. There was not additional limitation of range of motion after repetitive use due to fatigue, weakness lack of endurance or incoordination, however, after repetitive use, pain limited forward flexion of the cervical spine to 30 degrees. There was normal head position with symmetry of spinal motion with normal curves of the spine and no evidence of cervical intervertebral disc syndrome or nerve root involvement. In January 2010, the Veteran was seen in a private medical clinic to establish patient care. He complained of neck pain and cervical neck spasm was palpated upon examination. There were no further complaints of neck pain documented in subsequent clinic visits. The Veteran was afforded a second cervical spine VA examination in September 2013. His neck was tender to palpation but without muscle spasm and exhibited normal strength, normal sensory examination, and normal posture. He had 35 degrees of forward flexion and extension with painful motion at 25 degrees for both forward flexion and extension. Pain, weakness, fatiguability added an additional 15 degrees of limitation of motion in all 6 directions of cervical spine motion after repetitive use or during flare-ups. Accordingly, pain limited the Veteran to 20 degrees of forward flexion during cervical spine flare-ups and with repetitive motion. Finally, in a September 2019 VA examination, the Veteran was again evaluated on the nature and severity of his cervical spine disability. To this end, the objective test revealed similar results as his prior examination. Upon testing the examiner noted 35 degrees of forward flexion, with repeat motion decreased motion on all planes by 5 degrees. The examiner noted that during flare-ups and due to pain, additional functional loss to range of motion was an additional 15 degrees, with forward flexion being limited to 20 degrees of motion. No ankylosis was noted and no IVDS was noted. As noted above, for a higher 30 percent rating for cervical spine disability, the Veteran would need to demonstrate limitation of forward flexion of the cervical spine to 15 degrees or less; or, favorable ankylosis of the entire cervical spine. Such is not evident. Here, even considering additional loss of function, to include pain, weakness, fatiguability, and flare-ups, which the latter VA examination determined to add an additional 15 degrees of limitation, the Veteran’s forward flexion at worse still is only limited to 20 degrees; short of the requisite 15 degrees required for a higher 30 percent rating. As there has been no evidence of any objective findings of ankylosis, the Board must find that the preponderance of evidence is against the finding that the criteria for a higher rating has been reached. The Veteran is competent to report his symptoms, and the Board acknowledges the Veteran's belief that the symptoms of his service-connected cervical spine disability are worse than that contemplated by the 20 percent disability rating. However, the objective clinical findings do not support his assertions for the reasons stated above. The preponderance of the evidence is against the Veteran's claim and an increased rating in excess of 20 percent for cervical spine disability must be denied. See 38 C.F.R. § 3.102; Gilbert, 1 Vet. App. at 55. Lumbar spine disability, including intervertebral disc syndrome prior to September 17, 2013 The Veteran was service connected for lumbar intervertebral disc syndrome in May 2008 with a 10 percent disability rating. The Board remanded the issue in its December 2018 decision in order to obtain treatment records. In February through November 2009 the Veteran was seen for complaints of back pain; each examination showed that the Veteran had a normal gait, intact sensation, and normal muscle tone. He had been taking Naproxen for partial relief of the pain. The examiner indicated that the back pain was more likely myofascial pain syndrome given that the sacroiliac findings had improved. In June through November 2009 the Veteran received lumbar stabilization treatment from a chiropractor in which he was initially noted to have normal forward flexion and near normal range of thoracolumbar motion with some pain. The Veteran noted that the backpack that he carried for school aggravated his back pain. In June 2009 the Veteran underwent a VA lumbar spine examination. Lumbar spine x-ray revealed exaggeration of the lordotic curve with normal height, normal disc spaces, and intact posterior arches with unremarkable facet joints. The examiner noted the Veteran’s report of 10/10 pain with squeezing, burning and aching elicited by physical activity and stress. The Veteran functioned with pain using over-the-counter pain medication and had not been incapacitated by the pain. Functionally he had difficulty lifting heavy things and bending due to back pain. Upon examination of the thoracolumbar spine, the Veteran demonstrated 85 degrees of forward flexion, 25 degrees of extension, right and left lateral flexion and right and left rotation for a combined range of motion of 210 degrees. The examiner noted that after repetitive use, pain limited the Veteran’s range of motion in all aspects an additional 10 degrees resulting in a combined range of motion of 150 degrees. A buddy statement dated December 2009 from the Veteran’s roommate indicates that the Veteran complained of daily back pain and that he assisted the Veteran with lifting anything over 5 pounds and putting on his shoes. In a January 2010 private clinic visit, the Veteran endorsed low back pain, tingling, nonspecific, and muscle spasm for which he was taking Flexeril. Paraspinal muscle spasm with no leg weakness was detected upon examination. February 2010 lumbar x-rays were unremarkable; magnetic resonance imaging (MRI) in February 2010 of the lumbar spine revealed a small disc protrusion at the L5-S1 level indenting the anterior aspect of the thecal sac. There was mild foraminal narrowing at the L5-S1 level due to facet arthritis. During March through June 2010, the Veteran was noted to have mild low back pain with no scoliosis or motor deficits. The criteria for a disability rating in excess of 10 percent, prior to September 17, 2013, have not been met. As noted above, in order to warrant the next-higher 20 percent rating under the General Rating Formula, the Veteran must demonstrate forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees; or, the combined range of motion of the thoracolumbar spine is not greater than 120 degrees; or, there must be muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis. Such was not shown during the relevant time period by either the VA examinations, or the private/VA treatment records. To this end, VA examinations during this period showed that, at worse, the Veteran’s back disability was only limited to 85 degrees of forward flexion, and a combined range of motion of 210. A close review of the contemporaneous VA/private records reveals no additional evidence of a worse objective range of motion for this time period. A higher rating is also not warranted under the Formula for Rating Intervertebral Disc Syndrome (IVDS) Based on Incapacitating Episodes. At no time during the relevant period did the Veteran experience an incapacitating episode associated with his service-connected lumbar spine disability. More importantly, the Veteran had not been diagnosed with IVDS during this time period. A rating in excess of 10 percent for the Veteran's service-connected lumbar spine disability is not warranted based on the lack of physician-prescribed incapacitating episodes as set forth under DC 5243. The General Rating Formula also provides that neurologic abnormalities associated with disabilities of the spine are to be separately evaluated under an appropriate diagnostic code. See 38 C.F.R. § 4.71a, General Rating Formula, Note (1). The June 2009 examiner did not note any neurologic abnormalities related to the service-connected lumbar spine disability. Specifically, the examiner noted that muscle strength testing, deep tendon reflexes and bowel and bladder function were normal. Thus, the medical evidence of record does not show associated objective neurologic abnormalities of a radiculopathy which would warrant a separate neurological disability rating. The Board has also considered whether a higher rating is warranted on the basis of functional loss due to pain, weakness, fatigability, or incoordination. See 38 C.F.R. §§ 4.40, 4.45, 4.59; DeLuca v. Brown, 8 Vet. App. 202, 204-7 (1995). Based upon the results from the June 2009 examination, the Veteran’s range of motion was not decreased to the level of a compensable rating, however, evidence of painful motion that resulted in additional functional loss is the basis for his compensable rating. See Mitchell, 25 Vet. App. at 38-43; DeLuca, 8 Vet. App. at 204-7. As noted previously, the Veteran's service-connected back disability was evaluated under 38 C.F.R. § 4.71a, DC 5242. Under DC 5003 (degenerative arthritis), if the limitation of motion is noncompensable, a rating of 10 percent is for application for each such major joint or group of minor joints affected by limitation of motion, to be combined, not added, under DC 5003. 38 C.F.R. § 4.71a. Here, the Veteran has a compensable rating due to limitation of motion, so DC 5003 is inapplicable. As such, the Veteran is rated under the General Rating Formula for Diseases and Injuries of the Spine. The Veteran is competent to report his symptoms, and the Board does not doubt the sincerity of the Veteran's belief that his service-connected back disability was worse than contemplated by the 10 percent disability rating during this period. However, the objective clinical findings do not support his assertions for the reasons stated above. The preponderance of the evidence is against the Veteran's claim and an increased rating in excess of 10 percent for chronic lumbar strain, prior to September 17, 2013, must be denied. See 38 C.F.R. § 3.102; Gilbert, 1 Vet. App. at 55. Lumbosacral spine disability prior to September 18, 2019 The Veteran appealed his rating increase to 20 percent disabling effective September 17, 2013, to September 18, 2019. The Veteran was afforded a VA examination on September 17, 2013 which confirmed a diagnosis of lumbar disc syndrome with herniated nucleus pulposus at the L5-S1 level and facet joint arthrosis and range of motion findings consistent with a 20 percent disability rating. Upon clinical examination, the Veteran demonstrated 60 degrees of forward flexion with painful motion at 45 degrees; 10 degrees of extension with painful motion at 5 degrees; right and left lateral flexion to 20 degrees with painful motion at 10 degrees; and right and left rotation at 20 degrees with painful motion at 10 degrees. With repetitive use and flare-ups, the ranges of motion were decreased to the level where painful motion started. There was functional loss in ambulation, sitting, and lifting. The examiner noted intervertebral disc syndrome but did not document any incapacitating episodes. The Veteran’s posture and gait remained within normal limits. In the report of VA examination for thoracolumbar spine in December 2014 the examiner noted abnormal spinal contour due to muscle spasm consistent with a 20 percent disability rating. The Veteran’s lumbar range of motion was also consistent with a 20 percent disability rating reflecting 55 degrees of forward flexion which was decreased to 50 degrees with repetitive use testing or due to pain, without ankylosis or muscle atrophy. In addition, the examiner documented that the Veteran had incapacitating episodes with acute symptoms that required bed rest in the preceding 12-month period that required more than a week but less than 2 weeks total duration. VA treatment records reflect a February 2018 x-ray showing mild degenerative disc disease and a May 2018 primary care visit in which the Veteran described “off and on” back pain indicating that he had no back symptoms at the time. Upon physical examination the Veteran had no tenderness to palpation or muscle spasm in the lumbar area. In August 2018, the Veteran indicated that an episode of back pain from a couple of weeks before had resolved with no weakness or numbness in the legs. The treating physician noted mild degenerative disc disease on x-ray with stable symptoms after one flare-up. The evidence of record does not reflect treatment records prescribing physician-ordered bedrest, however, accepting the Veteran’s assertion of up to two weeks total of physician- prescribed incapacitating episodes in the preceding 12 months as set forth under DC 5243, a higher rating under the IVDS category is not possible. As noted above, the higher-40 percent rating contemplates incapacitating episodes having a total duration of least 4 weeks but less than 6 weeks during the past 12 months which has not been demonstrated by the evidence or even alleged by the Veteran. As noted under the General Rating Formula, in order to warrant the next higher rating of 40 percent for lumbosacral spine disability, the Veteran would demonstrate forward flexion limited to 30 degrees or less. Such was not evident upon normal testing or with decreased range of motion due to repetitive motion testing or flare-ups. Further, pain did not result in additional functional loss or loss of range of motion to 30 degrees or less. Likewise, a review of all the VA examinations and VA/Private treatment records reveal no evidence a diagnosis of ankylosis, or those restrictions of movement akin to such a condition. As such, the Board must find that a higher rating is not warranted. The preponderance of the evidence is against the Veteran's claim and an increased rating in excess of 20 percent for chronic lumbar strain, prior to September 18, 2019, must be denied. See 38 C.F.R. § 3.102; Gilbert, 1 Vet. App. at 55. Entitlement to a disability evaluation greater than 40 percent for lumbosacral spine intervertebral disc syndrome with degenerative disc disease from September 18, 2019 The Veteran contends that from September 18, 2019 the symptoms of his lumbosacral spine disorder were more severe than contemplated by a 40 percent disability rating. On September 18, 2019, the Veteran underwent a VA examination for thoracolumbar spine conditions. The examiner conducted an in-person evaluation, considered the Veteran’s lay statements, and reviewed of the Veterans electronic claims file. The Veteran alternately described his current symptoms as chronic pain with moderate to severe flare-ups lasting over 3 hours several times a day, or, several times a day lasting 30 minutes to an hour. Current treatment included narcotic pain medication, topical cream, a heating pad, and a back brace. There was evidence of muscle spasm upon examination which resulted in abnormal spinal contour. Lumbar spine x-ray on that date revealed a very mild levoscoliosis and exaggerated lordotic curve. Initial range of motion testing demonstrated 60 degrees of forward flexion and decreased ranges of motion that contributed to functional losses in the ability to bend and lift objects from the ground. Repetitive use over time resulted in limitation to 45 degrees of forward flexion. During flare-ups, forward flexion was assessed as limited to 30 degrees of forward flexion. The criteria for a disability rating in excess of 40 percent, from September 18, 2019, have not been met. As noted above, in order to warrant the next-higher 50 percent rating under the General Rating Formula, the Veteran must demonstrate unfavorable ankylosis of the entire thoracolumbar spine. Such has not been shown in this case. The Veteran met the criteria for a 40 percent disability rating based upon his range of motion being decreased from 60 degrees of forward flexion to 30 degrees during flare-ups. Here, as there is no evidence that there is no movement in the Veteran’s lumbar spine, and as there is no record in the VA examination or contemproanous treatment record of a finding of ankylosis, the Board must find that the criteria for a higher rating is not achieved. A higher rating is also considered under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes. VA received a second buddy statement on September 18, 2019 from the Veteran’s roommate who stated that the Veteran has constant lower back pain, and that the Veteran and has been confined to bed rest for more than 3 weeks at a time. The Board has scrutinized the treatment records in evidence and has not seen a physician-prescribed bed rest for back pain. In May 2018, the Veteran noted that he had no acute back symptoms during a primary care visit. Although physician-supervision is not mentioned in the treatment records during this period, accepting the lay buddy statement of the Veteran’s 3 weeks of an incapacitating episode, a 20 percent rating is warranted for incapacitating episodes having a total duration of at least 2 weeks but less than 4 weeks during the past 12 months. The preponderance of the evidence is against the Veteran's claim and an increased rating in excess of 40 percent for lumbosacral spine disability from September 18, 2019, must be denied. See 38 C.F.R. § 3.102; Gilbert, 1 Vet. App. at 55. Entitlement to disability rating in excess of 10 percent for left lower extremity radiculopathy The Veteran was service connected for radiculopathy of the lower left extremity associated with degenerative disc disease in December 2014. He was service connected for his right lower extremity radiculopathy in September 2019. He contends that the symptoms of his left lower extremity radiculopathy are more severe than contemplated by a 10 percent disability evaluation. By way of history, a September 17, 2013 VA examination for thoracolumbar spine, clinical examination by the VA physician examiner documented a negative straight leg raising test and no radiculopathy. In the December 2014 VA examination for thoracolumbar spine, the Veteran had negative straight leg raising tests bilaterally. Examination instructions indicate that “A positive [straight leg raising] test suggests radiculopathy.” The Veteran described intermittent mild left lower leg pain with mild parasthesias, and mild numbness. The examiner indicated that the Veteran had a mild radiculopathy involving the sciatic nerve. In a May 2018 primary care visit the Veteran noted that he had no acute back pain symptoms and no weakness or numbness in his legs. In an April 2019 primary care note, the Veteran confided that he aggravated his lower back problem when he did more lifting while caring for his mother after her surgery and that he was experiencing bilateral radiation of pain down his legs with tingling. The Veteran’s September 2019 thoracolumbar spine VA examination included evaluation of the left lower extremity radiculopathy. The right and left ankles and feet had decreased sensation and straight leg raising was positive bilaterally. The Veteran was noted to experience only some mild intermittent pain in his left lower extremity, with no reports of constant pain, paresthesia, or numbness. The examiner determined an incomplete paralysis of the sciatic nerve for the left side, and that such condition was considered only mild. A close review of the VA treatment record and private treatment records for this period show no additional reports, complaints, or treatments for a nerve condition more severe than that described by the VA examiner in the September 2019 examination, and as such, the Board finds that such examination report to be higher probative in establishing the level of severity of this reported condition. As set forth above, a higher 20-percent rating for radiculopathy requires moderate, incomplete paralysis of the lower extremity. Such symptomatology has not been demonstrated. The preponderance of the evidence is against the Veteran's claim for a rating in excess of 10 percent for left lower extremity radiculopathy and the claim must be denied. See 38 C.F.R. § 3.102; Gilbert, 1 Vet. App. at 55. Entitlement to effective date prior to December 8, 2014 for service connection of left lower extremity radiculopathy Except as otherwise provided, the effective date of an evaluation and award of compensation based on an original claim or a claim reopened after final disallowance, will be the date of receipt of the claim or the date entitlement arose, whichever is the later. 38 C.F.R. § 3.400. The effective date of an award of service connection shall be the day following the date of discharge or release if application is received within one year from such date of discharge or release. Otherwise, the effective date is the date of receipt of claim, or the date entitlement arose, whichever is later. 38 U.S.C. § 5110; 38 C.F.R. § 3.400(b)(2)(i). In a November 12, 2014 Notice of Disagreement, the Veteran, contended entitlement to service connection for radiculopathy of the left lower extremity. The Veteran’s representative submitted an additional NOD contending that in a February 2009 infectious disease appointment, the Veteran mentioned his radiculopathy which may represent constructive notice of the condition when an underlying condition is granted citing Criswell v. Nicholson, 20 Vet. App. 401 (2006) (Court reaffirmed that other than for an increase of an awarded claim, the mere existence of medical records generally cannot be construed as an informal claim as there must be a showing of intent to apply for a benefit) Prior to March 24, 2015, VA recognized formal and informal claims. A claim is defined as a formal or informal communication in writing requesting a determination of entitlement, or evidencing a belief in entitlement, to a benefit. 38 C.F.R. § 3.1(p). An informal claim was any communication or action indicating intent to apply for one or more benefits and must identify the benefit sought. 38 C.F.R. § 3.155(a). VA must look to all communications from a claimant that may be interpreted as applications or claims both formal and informal for benefits and is required to identify and act on informal claims for benefits. Servello v. Derwinski, 3 Vet. App. 196, 198 (1992). A close review of the review of the evidence of record indicates that in multiple treatment notes throughout 2009, the Veteran denied numbness or tingling in his lower extremities except for a reference to “occasional numbness of bilateral lower extremities” in February 2009. A September 2013 VA examination documents the absence of radiculopathy. Service connection was granted effective December 8, 2014, the date of VA examination and date of the factual demonstration that a left lower extremity radiculopathy existed. As prior VA examinations and outpatient records do not show a diagnosis of radiculopathy prior to December 8, 2014, entitlement to an earlier effective for the initial grant of service connection is not warranted. Therefore, entitlement to an earlier effective date for lower extremity radiculopathy is denied. Gilbert, supra. REASONS FOR REMAND Entitlement to a total disability rating due to total disability due to individual unemployability (TDIU) VA received Veteran’s Application for Increased Compensation Based on Unemployability on April 20, 2018. The Veteran contends that his service-connected lumbar and cervical spine disabilities have rendered him unemployable. Regrettably a remand is necessary to ensure that due process is followed and that there is a complete record upon which to decide the Veteran's claim so that he is afforded every possible consideration. 38 U.S.C. § 5103A; 38 C.F.R. § 3.159. The Veteran is service connected for depressive disorder, not otherwise specified (70 percent), lumbar spine disorder (40 percent), cervical spine disorder (20 percent), and LLE radiculopathy (10 percent) for a combined total disability rating of 90 percent. Herein, the Veteran has been granted service connection for right ear hearing loss and a decision regarding TDIU is inextricably intertwined with right ear hearing loss. See Smith v. Gober, 236 F.3d 1370, 1373 (Fed. Cir. 2001). The evidence of record includes an earlier January 2014 application for TDIU based upon back/neck disorders and depression noting his last employment as a security screener working 60 hours a week at the airport ending in 2004. The evidence of record reflects that the Veteran had been unemployed for 10 years at that time after completing a year of graduate education in film school post-military. The Veteran underwent VA examinations of the cervical spine and the thoracolumbar spine in October 2019. Addressing the Veteran’s employability, the examiner recommended employment that was consistent with the Veteran’s limitations of prolonged sitting, standing, and walking, repetitive bending, heavy lifting and carrying and repetitive turning of the neck with driving. The Veteran’s last mental disorders examination performed in September 2013 does not provide current information as to the Veteran’s ability to perform the mental requirements of gainful employment. At that time, the examiner found occupational and social impairment due to mild or transient symptoms which decrease work efficiency and' ability to perform occupational tasks only during periods of significant stress, or; symptoms controlled by, medication. The physician examiner specifically stated that the Veteran could work if the employment did not cause too much stress on the Veterans back. Hence, consideration of the TDIU claim must be deferred pending further development. The matter is REMANDED for the following action: 1. Contact the Veteran and request that he provide or identify and authorize the release of any additional records of treatment for service-connected disabilities acquired psychiatric disorder. If any are obtained, associate these treatment records with the electronic claims file. 2. Obtain and associate any updated VA treatment records with the claims file. All records/responses received must be associated with the electronic claims file. 3. Arrange for VA examinations with an appropriate examiner or examiners with medical expertise in mental disorders to address the current severity of the Veteran’s depressive disorder and any occupational limitations associated with that diagnosis. The evidentiary record, including a copy of this remand, must be made available to and reviewed by the examiner or examiners. The examiner should be mindful that the Veteran is competent to report symptoms that are observable to a layperson. Any lay statement that is discounted should be explained. A complete rationale should be provided for all opinions expressed. 4. Upon completion of the above development, re-adjudicate the Veteran’s claim. If the claim remains averse to the Veteran, provide the Veteran with a supplement statement of the claim (SSOC) and allow a period for the Veteran to respond before returning the claim to the Board. Zi-Heng Zhu Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Denise Adams Hill, Associate Counsel The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.